Decriminalisation of public drunkenness

NOTE: Aboriginal and Torres Strait Islander people are advised that the following article contains names and descriptions of people who have died.

The Victorian Government has announced its intention to abolish a law against public drunkenness.^1-2 The decriminalisation of public drunkenness comes as a coronial inquest investigates the death in custody of Aboriginal woman, Tanya Day, following her arrest while intoxicated.³

Ms. Day was asleep on a train from Melbourne to regional Victoria when she was arrested in December 2017. While in police custody at Castlemaine station, she fell and hit her head repeatedly, sustaining brain injuries and a haemorrhage. Less than three weeks later, she died at St. Vincent’s Hospital in Melbourne.

The decision to repeal public drunkenness as a criminal offence has been lauded by Indigenous and human rights groups such as Victorian Legal Aid,¹¹ Human Rights Law Centre¹² and the Victorian Aboriginal Controlled Community Health Organisation (VACCHO).¹³ This change will be particularly beneficial for groups that are disproportionately affected by these laws, such as rough sleepers and Aboriginal people.

Decriminalisation is an important step

Laws against public drunkenness in Victoria and Queensland give police officers the power to arrest individuals they suspect are drunk in a public place.⁴ Public drunkenness carries a penalty of roughly $1160. If someone is also charged with being disorderly, this can result in being barred from a licenced venue, a fine of up to $2900 or a month in prison, and a criminal record.

Minister for Health, Jenny Mikakos, has applauded the move to decriminalise public drunkenness, saying:

“This is a reform that will save lives. We’ll be working carefully with the experts, including health services, Aboriginal groups and Victoria Police on how we can better protect vulnerable people who need support, not punishment.”⁵

History of laws against public drunkenness

The origins of the law prohibiting public drunkenness can be traced back to the English Parliament of 1606, when a law was passed criminalising and “oppressing the odious and loathsome sin of drunkenness.”⁶ In Victoria, laws against public drunkenness have been largely unchanged since 1966.⁷

However, there have been calls to decriminalise public drunkenness for some time. In 1989, the former Law Reform Commission of Victoria was tasked with reviewing the appropriateness of these laws and found “no support for continued reliance on the criminal law as a means of dealing with the problem of public drunkenness.”⁸

The Commission concluded unilaterally that public drunkenness should be decriminalised, endorsed by the Royal Commission into Aboriginal Deaths in Custody in 1991 and an inquiry to reduce harmful alcohol consumption in 2006. ^8,9

Alcohol use is a public health issue, not a criminal justice issue

Personal alcohol and drug use should be treated as a health issue.10,11 It has been widely accepted that the criminalisation of substance use has failed to curb demand for alcohol and other drugs.^12,13

In fact, punitive measures may increase stigma, deter people from seeking help or engaging with harm reduction services.¹⁴

According to Dan Nicholson, Executive Director of Criminal Law at Victoria Legal Aid: “Policing is not the best response to a health problem, especially when it’s Victoria’s most marginalised who so often find their conduct criminalised.”¹⁵

Victorian Attorney-General, Jill Hennessy, added: “Public drunkenness requires a public health response, not a criminal justice one.”⁵

Other advocates of decriminalisation have echoed this sentiment and argued that the law against public drunkenness has been applied unfairly towards Aboriginal communities in the past. VACCHO’s Acting CEO, Trevor Pearce, said alcohol use is:

“a public health issue, not a crime, and should be treated as such. This outdated law is unnecessarily punitive and racist in nature.”¹⁶

According to the Law Institute of Victoria, Aboriginal and Torres Strait Islander peoples comprise more than a quarter (29.6%) of all people imprisoned for public order offences such as public drunkenness in Victoria,¹⁷ and 9% of all Victorians currently serving a sentence for such offences,¹⁷ despite being only 0.8% of the Victorian population.¹⁸

The decriminalisation of public drunkenness is a welcome and positive reform by the Victorian Government and an important part of understanding and treating alcohol and other drug use within a public health framework.