October 14, 2019

Decriminalisation of public drunkenness

Empty beer bottle on the ground

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.

  1. Wahlquist C. Victoria abolishes public drunkenness as a crime ahead of death in custody inquest. The Guardian. 2019.
  2. Grieve C. 'Long overdue': public drunkenness to be decriminalised in Victoria. The Age. 2019.
  3. Wahlquist C. Tanya Day died in custody because of inadequate police checks, inquest hears. The Guardian. 2019 26 August.
  4. Victoria Legal Aid.Public drunkenness 2018
  5. New Health-Based Response To Public Drunkenness [press release]. Premier of Victoria2019.
  6. Cobbett W, Hansard T. The Parliamentary History of England from the Earliest Period to the Year 1803: From which Last-mentioned Epoch it is Continued Downwards in the Work Entitled "Hansard's Parliamentary Debates.": Parliament of Great Britain 1813.
  7. Summary offences act 1966 - sect 13, (1966).
  8. Law Reform Commission of Victoria. Public Drunkenness Report. 1989. Contract No.: 25.
  9. Drugs and Crime Prevention Committee. Inquiry into Strategies to Reduce Harmful Alcohol Consumption. 2006.
  10. North Richmond Community Health. Victorian Inquiry into Drug Law Reform North Richmond Community Health submission. Melbourne 2017.
  11. Volkow ND, Poznyak V, Saxena S, Gerra G, Network U-WIIS. Drug use disorders: impact of a public health rather than a criminal justice approach. World Psychiatry. 2017;16(2):213-4.
  12. Sim F, Middleton J. Taking a new line on drugs. United Kingdom; 2016.
  13. Willis S. War on Drugs. Salem Press; 2019.
  14. Lancaster K, Seear K, Ritter A. Reducing stigma and discrimination for people experiencing problematic alcohol and other drug use: A report for the Queensland Mental Health Commission. 2017.
  15. Repealing public drunkenness offence a welcome reform [press release]. Victoria: Victoria Legal Aid, 23 August 2019 2019.
  16. Coggan M. Victoria to remove “archaic” public drunkenness law as Tanya Day inquest begins: Pro Bono Australia; 2019
  17. Derkley K. Public drunkenness law should be abolished Victoria: Law Institute of Victoria; 2019
  18. Australian Bureau of Statistics. 2016 Census QuickStats Canberra: Australian Bureau of Statistics; 2017

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