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81
Alternatives to detention for intoxicated persons
That legislation decriminalising drunkenness should place a statutory duty upon police to consider and utilise alternatives to the detention of intoxicated persons in police cells. Alternatives should include the options of taking the intoxicated person home or to a facility established for the care of intoxicated persons.
We welcome the Andrews government's decision to hear our family’s concerns and not to add or replace already excessive police powers and laws. This is the first time across the nation that a jurisdiction has made a commitment to true decriminalisation.
Aboriginal Justice Caucus Assessment
The intent of Recommendation 81 is to impose a statutory duty upon police to ensure alternatives to police custody are used in practice. When public drunkenness was decriminalised in Victoria, police were not provided with additional powers:
We welcome the Andrews government's decision to hear our family’s concerns and not to add or replace already excessive police powers and laws. This is the first time across the nation that a jurisdiction has made a commitment to true decriminalisation. (Day family)
There is no statutory requirement for police to consider or use alternatives to detaining intoxicated persons in police cells. While the Chief Commissioner of Police issued instructions outlining response and referral options for police when dealing with publicly intoxicated individuals, there is limited evidence that these options are being applied consistently.
It becomes difficult for us as a Caucus to monitor or evaluate some of these sorts of things, particularly with Victoria Police. We might get a sense of whether the professional development or training that takes place reflects these sorts of directives, but not how it's reported on. We need to keep an eye on it; make sure we’re asking the right questions and getting the information we need. (Lawrence Moser, Chairperson, Eastern Metropolitan RAJAC).
Additional monitoring and data are required to assess whether police are consistently using the available alternatives when dealing with publicly intoxicated individuals. This is particularly important given the uneven availability of outreach, health, and other support services across the state, and the absence of sobering-up services in some areas.
Introduction of a statutory duty mandating that police consider and use alternatives, could further reduce incarceration and increase safety in custody.
Priority for Further Work:
High
Relevance and potential impact | |||||
|---|---|---|---|---|---|
Low (0-2) | Moderate (3-4) | High (5-6) | |||
Extent of action taken and evidence of outcomes | High (5-6) | ||||
Moderate (3-4) | |||||
Low (0-2) | |||||
Potential Actions for Further Work
Introduce a statutory duty so police must consider and use alternatives to custody for intoxicated persons.
Introduce a statutory duty so police must consider and use alternatives to custody for intoxicated persons. Update Victoria Police Manual and other guidance to reflect this statutory duty.
Background
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) identified cases where police did not consider all non-custodial options for the care of intoxicated persons and there were tragic consequences. The Commission recognised that whilst there were some barriers to the use of non-custodial resources, protective custody should be the last resort after the full range of available options have been considered. Additionally, the inappropriateness of the use of police cells for the care of intoxicated persons must be thoroughly understood, accepted and avoided in practice by police services.
Actions Taken Since Last Review
Victorian Government
The Victorian Government introduced the Summary Offences Amendment (Decriminalisation of Public Drunkenness) Bill to Parliament in December 2020. The legislation was passed in early 2021 to repeal existing offences under the Summary Offences Act 1966 and make consequential amendments to the Liquor Control Reform Act 1998 and the Bail Act 1977 to remove references to public drunkenness offences. It came into effect in November 2023.
Further work on guidelines for first responders and consideration of legislative powers for police in relation to these reforms was undertaken.
The Victorian Government recognised that the requirements of a public health response would also strengthen Victoria’s response to RCIADIC Recommendation 81.
Victoria Police
In their 2023 response, Victoria Police noted the Victorian Government had confirmed that police would not be provided with additional powers following the decriminalisation of public drunkenness. Victoria Police were operationalising the policing response to these reforms, including supporting the use of alternatives to police custody for intoxicated persons under a health-led approach.
Department of Health
In a 2023 update the Department of Health noted police would not be given any new powers in response to public intoxication. Instead, a health-based model would be adopted across metropolitan Melbourne, outer metropolitan areas, and regional locations. It included outreach teams and sobering-up services, with a particular emphasis on serving Aboriginal clients.
Impact
Outputs
Chief Commissioner’s Instruction 09/23 – Persons drunk in public was issued pursuant to the powers of the Chief Commissioner of Police under Section 60, Victoria Police Act 2013. Originally published on the Victoria Police intranet in October 2023, this instruction was to expire 18 months from publication unless reissued.
Outcomes
Victoria is the only jurisdiction where public drunkenness has been decriminalised without additional powers being conferred on police. While a statutory duty for police to consider and utilise alternatives to the detention of intoxicated persons in police cells was not introduced at the time public drunkenness offences were repealed, the Chief Commissioner of Police issued instructions outlining response and referral options that police should consider when dealing with a person who is intoxicated in public.
Under the new health-based model, people cannot be arrested or fined for being intoxicated in public. However, police can still approach someone who appears affected by alcohol to check on their wellbeing and offer support.
If police think medical help is needed, they can call an ambulance. Otherwise, they may talk with the person and suggest support options. With the person’s agreement, police can help them get home safely (for example, by contacting family or arranging transport), refer them to a sobering centre or safe place, or in limited cases transport them to a safe location—making clear they are not under arrest and allowing them to change their mind at any time.
Police may also leave the person where they are if help is declined or already arranged but should clearly communicate this. Overall, accepting assistance is voluntary, and individuals can refuse or withdraw consent at any stage.
Community Views
Day family
Day Family Statement – Human Rights Law Centre
We welcome the Andrews government's decision to hear our family’s concerns and not to add or replace already excessive police powers and laws. This is the first time across the nation that a jurisdiction has made a commitment to true decriminalisation.
Nerita Waight
The Victorian Government’s decision to ensure police will not have new powers to respond to public intoxication is the right decision and a testament to the tireless advocacy of the Day Family since the passing of Aunty Tanya Day over 5 years ago… This is an important decision that will have a huge positive impact for overpoliced Aboriginal communities as well as other vulnerable communities across Victoria.
Aboriginal Justice Caucus
Aboriginal Justice Caucus, Aboriginal Justice Forum 68
The AJC remain concerned that Aboriginal Community members are being charged with alternative offences after being approached by a police officer when intoxicated. Anecdotal evidence suggests that this is the case, however data is difficult to obtain. We know that due to ongoing and historical racism and bias, tensions are often high in interactions between police and Community. Alcohol can serve to amplify any agitation.