Public intoxication to finally be decriminalised

Next week on 7 November 2023, being intoxicated in public will finally be decriminalised. This is an historic and long overdue reform, with laws repealing the offence coming into effect next week.

The decriminalisation of public intoxication was first recommended by the Royal Commission into Aboriginal Deaths in Custody over 30 years ago.

In August 2019, at the outset of the coronial inquest into the death in custody of proud Yorta Yorta woman Aunty Tanya Day, the Victorian Government committed to decriminalising public intoxication, following extensive and sustained advocacy by her family and community.

Victoria will be the first state to meaningfully transition away from a legal response to a public health response to public intoxication, finally treating it as the public health issue it has always been.

Earlier this year, the Victorian Government rightly made the formal decision not to grant police any new powers to arrest or lock people up in police cells once public intoxication is decriminalised. From next week, people who are identified as drunk in public will be supported to go to a safe place, like a sobering up centre, instead of being locked in a police cell under criminal or civil police powers.

In every other state and territory where public intoxication has been decriminalised, civil ‘protective custody’ laws still allow for police to detain intoxicated people in police cells, placing them at risk of dying in custody.

The family of Yorta Yorta woman Aunty Tanya Day said:

“Our mother would still be here today if the Government repealed the laws criminalising public drunkenness as first recommended over 30 years ago in the Royal Commission into Aboriginal Deaths in Custody. We are glad the government is finally listening and is implementing these changes.”

“This is a significant and long overdue day for Victoria. We are the first and only state that has truly committed to decriminalisation. Meaningfully implementing this reform and treating public drunkenness for what it is - a public health issue that demands a public health response - ensures we are keeping the community safe and reducing the risk of people dying in police custody. Other states and territories should follow Victoria’s lead to prevent any more unnecessary injuries or deaths.

“As our mother's case and all the other similar cases show, police cells are dangerous places for intoxicated people. For Aboriginal and Torres Strait Islander people this is especially so, where systemic racism and bias held by individuals means that our people are more likely to die when detained in police cells. No person should ever be locked up for being drunk, or for being perceived to be drunk, in public spaces. There should be no role for police or police cells in any public health response.

“The Allan Government must now continue to work with our family and Aboriginal communities across the State to implement the best practice and culturally appropriate Aboriginal-led health model that they have promised.

“Our family is yet to receive a public apology or acknowledgement of the role that police played in our mother's death and we continue to fight for independent oversight and accountability of police to ensure that what happened to our mum doesn’t happen again.

“The burden of driving all this work should not be left to families who have had their loved ones die at the hands of the state. Governments must be more proactive in getting the job done, so our families don’t feel the pressure of having to pick up the slack while also grieving the death of our family members.”

Associate Professor Crystal McKinnon, Steering Committee member at the Dhadjowa Foundation said:

“The Dhadjowa Foundation welcomes these reforms which will ensure that no more families suffer the trauma of losing their loved ones in police custody for being, or being perceived to be, drunk in public. As shown in the Royal Commission into Aboriginal Deaths in Custody and in countless other reports, we know that Aboriginal people are more likely to be arrested for this due to the racism and bias of police and others, so we know that this reform will help to save lives.”

“Public drunkenness laws have contributed to far too many deaths in custody. These changes have been worked towards and fought for by the Aboriginal community over decades and are well overdue.

“Aunty Tanya Day's family mobilised the community and worked really hard door-knocking, on social media platforms and engaging with the media to fight for this change. It was a lot of years of this work to get the government to listen.

“This shows the power of grassroots campaigns when it’s led by families of loved ones who’ve died in custody and the power of getting behind those campaigns which seek to deliver justice on the families' terms.

“The Dhadjowa Foundation will continue to fight for independent police oversight and police accountability reform. These changes are necessary to ensure justice for families whose loved ones have died in custody, including the family of Aunty Tanya Day.”

Nerita Waight, CEO at the Victorian Aboriginal Legal Service said:

“Victoria’s Aboriginal Communities have waited decades for this reform. This is a critical step that will take us one step closer to ending racist policing against Aboriginal people.”

“Victoria Police must not use alternative powers to undermine the reforms. It is critical that the Victorian Government monitors implementation of the reforms through public and transparent reporting on alternative police powers, including move on powers.

“The state government is establishing health services to support people who are intoxicated in public. It is essential that these services are established as quickly as possible and that Aboriginal organisations are empowered and supported to operate these services in the way that they see fit for their communities.

“This reform is about shifting community perceptions of public intoxication from a criminal issue to a health issue. It is essential that the Victorian Government supports the reform process through a widespread community awareness campaign.”

Monique Hurley, Managing Lawyer at the Human Rights Law Centre who represented the Day family in the coronial inquest into their mother’s death said:

“The Victorian Government has done the right thing removing dangerous and discriminatory laws that criminalise public intoxication from the statute books. This historic and long overdue reform is testament to the tireless and ongoing advocacy of the Day family in seeking justice for their mother.”

“This is a watershed moment. Outdated laws across Australia that still allow police to detain people for being intoxicated in public pipeline people in and out of unsafe police cells and destroy lives. Interstate ‘protective custody’ laws that are used to disproportionately target Aboriginal and Torres Strait Islander people must go. If somebody is too drunk, they should be taken home or somewhere safe - they should never be locked up behind bars and put at risk of dying in custody.

“Reigning in police powers should be backed by further action to end the status quo of police investigating themselves and dodging accountability for discriminatory policing. As long as police are allowed to act with impunity, Aboriginal deaths in custody will continue. It should not be left to families, like the Day family, to endlessly fight for accountability. The Allan Government must step up to the plate and implement effective and truly independent oversight of police as a matter of priority.”

Circumstances of Aunty Tanya Day’s death:

Aunty Tanya Day was a proud Yorta Yorta woman and much-loved sister, mother, grandmother and advocate. In December 2017, Aunty Tanya fell asleep on a train. Despite causing no disturbance, she was arrested for being drunk in a public place in circumstances where the Coroner found that the police should have taken her to hospital or sought urgent medical advice.

While locked in a concrete police cell at the Castlemaine police station, Aunty Tanya hit her head on the wall and subsequently died. The Coroner found that the checks the police officers conducted on Aunty Tanya while she was in the cell were inadequate and that the police officers had failed to take proper care for her safety, security, health and welfare as required by the Victoria Police guidelines.

The Coroner found that had the checks been conducted by the police in accordance with the relevant requirements, Aunty Tanya’s deterioration may have been identified and treated appropriately earlier. The Coroner also referred the two police officers involved in Aunty Tanya’s death to the Director of Public Prosecutions on the basis that she believed “an indictable offence may have been committed” but the Director of Public Prosecutions did not prosecute.

A copy of the Coroner’s findings in the inquest into Aunty Tanya Day’s death in police custody is available on the Coroners Court website here.

A copy of the Expert Reference Group’s report – Seeing the Clear Light of Day – is available on the Department of Justice and Community Safety’s website here.

Photo: Charandev Singh