Lane, Desmond --- "Public Drunkenness in Victoria" [1991] AboriginalLawB 43; (1991) 1(51) Aboriginal Law Bulletin 21

• Public Drunkenness In Victoria

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Public Drunkenness in Victoria

by Desmond Lane

The Summary Offences Act, 1966 (Vic) makes it an offence to be drunk in a public place (s.13), drunk and disorderly in a public place (s.14), to be habitually drunk (s.15) and to behave in a "riotous or disorderly manner" whilst drunk in a public place (s.16(a)). The repeal of such offences has been recommended recently in both the Interim and National Reports of the Royal Commission into Aboriginal Deaths in Custody ("the Royal Commission") and by the Law Reform Commission of Victoria ("V.L.R.C" )[1] Similar laws have been repealed in New South Wales, Western Australia, South Australia, the Northern Territory and the A.C.T.

Two main arguments have been used to support decriminalisation. First, the Royal Commission argued that decriminalisation would significantly reduce the presently high rate of incarceration of Aboriginal people in police cells: the Royal Commission found that more than one-third of the Aboriginal people held in police cells were there merely for public drunkenness.[2] It is also notable that in each of the three cases that were investigated by the Royal Commission in Victoria, the deceased person had been apprehended either for publicd runkenness or for the non-payment of fines imposed for drunkenness offences.

The second argument is a philosophical one:

"it is an accepted principle of criminal jurisprudence that criminal sanctions are only imposed on human conduct when strong reasons exist for doing so. The law on public drunkenness can be traced back to 1606 when the English Parliament passed an Act 'for oppressing the odious and loathsome sin of drunkenness'. Obviously attitudes have changed significantly since that time, and public drunkenness itself is no longer perceived as so heinous as to warrant punishment by detention and conviction. Similarly, it is accepted that criminalisation does not operate as a deterrent against acts of further public drunkenness".[3]

The Public Drunkenness (Decriminalisation) Bill was introduced into the Victorian Parliament in late 1990 and was debated in the Autumn sittings this year. The Bill proposed the repeal of the public drunkenness offences and the establishment of alternative non-criminal procedures for dealing with persons who are intoxicated in public. Under the Bill, a person could be apprehended if he or she was intoxicated in public and, as a result of that intoxication, posed a significant risk to himself, herself or others, or was likely to damage property.

This would have been a significant change, as apprehension would have been authorised only where there was a significant risk of harm and would not have led to criminal sanctions or the stigma of conviction.

The Bill would also have established a hierarchy of options for dealing with the apprehended person. The police officer or authorised person in question would have had to arrange for the release of that person, place him or her in the care of another or take the person home. If these options were inappropriate, the person could betaken to a sobering-up unit or, as a last resort, to a police station or lock up.

The particular significance of this regime is that it would have placed a statutory duty upon police to exercise the "least restrictive option" for dealing with the apprehended person that was appropriate in all of the circumstances. No such statutory obligation exists at the present. The Bill was to be complemented by guidelines and training for police officers and authorised persons to ensure that detention remained a last resort.

However, in June, 1991, the Bill was defeated in the Opposition-controlled Legislative Council. Opposition Members had two main criticisms of the Bill. The first concerned the availability of sobering-up units as an alternative to detention in police cells. The Office of Aboriginal Affairs and the Health Department of Victoria have jointly established six sobering-up units for the Aboriginal community (in Melbourne (Northcote), Mildura, Shepparton, Swan Hill, Morwell and Warrnambool). Two further units are planned for Bairnsdale and Echuca. Each sobering-up unit is to be run by an Aboriginal co-operative. However, the Government had not indicated a commitment to establishing sobering-up units for the non-Aboriginal community and Opposition Members considered that decriminalisation should not proceed unless those facilities were established.

Whilst the establishment of sobering-up units for the non-Aboriginal community is desirable, it is nonetheless unfortunate that the Bill was blocked on that basis. The key thrust of the Bill was to reduce the use of police cells when dealing with intoxicated persons. Other States have decriminalised public drunkenness without state-wide establishment of sobering-up units; the success of decriminalisation is measured by the reduction in incarceration levels for intoxicated persons and is not exclusively dependant on the availability of custodial facilities.

The Opposition's second criticism was that decriminalising public drunkenness "sends the wrong message to the community", i.e that it is acceptable to be intoxicated in public and to harass others. Two points can be made about this. First, the Bill would have provided a range of means for dealing with intoxicated persons who posed a danger to themselves or to others, and criminal sanctions would have remained for antisocial or unacceptable conduct (e.g. property damage, offensive behaviour, assault or the use of threatening language). Second it is futile to "send messages" if the people for whom they are intended are unlikely to receive them. No one who has seen the pathetic charade of the "drunks parade" in any Court would believe that the criminal law has any deterrent value in this area.

So public drunkenness remains an offence in Victoria. The police can still detain an intoxicated person in a police cell, even if a bed is available at a sobering-up unit and staff at the unit are willing to take the person. Police are also not obliged bylaw to consider whether a relative is willing to take the person home (for example, where there is no likelihood of the person becoming violent).

The risk remains, therefore, that despite the findings of the Royal Commission, more Aboriginal people will die in Victorian cells as a result of just being drunk.

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[1] Public Drunkenness (V.L.R.C. Report No.25 1989); Public Drunkenness: Supplementary Report (V.L.R.C Report No.32, 1990);

[2] Royal Commission into Aboriginal Deaths in Custody, National Report (1991), Vol.3, p.6.

[3] Parliamentary Debates (Victoria), Legislative Assembly, 30 November 1990, p.2911 (the Hon. Tom Roper MP).