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Public drunkenness law should be abolished

Public drunkenness law should be abolished

By Karin Derkley



Decriminalising public drunkenness would reduce the risk of Aboriginal and Torres Strait Islander people dying in police custody, the LIV and other legal organisations argue.

Abolishing the offence of public drunkenness was one of the recommendations of the Royal Commission into Aboriginal Deaths in Custody, which came out 28 years ago today.

The issue was highlighted recently by a coronial inquest into the death in custody of Yorta Yorta woman Tanya Day who died in December 2017 from an injury she sustained in police custody after being arrested for public drunkenness on a train.

In an open letter to the premier Daniel Andrews supported and signed by 84 legal and social justice organisations, Tanya Day's children argue that their mother would not have died in custody if the offence had been abolished as recommended by the Royal Commission.

Drunkenness requires a public health response, not a criminal one, they say. “If there are concerns that somebody is too intoxicated, the appropriate steps should be taken. That person should be cared for at home or at a medical service. If there are concerns about their wellbeing, an ambulance should be called.”

The LIV has also written a letter to the Victorian Attorney-General urging the state government to heed the recommendation of Coroner Caitlin English, who is hearing the ongoing inquest into the death in custody of Tanya Day, to abolish the offence of public drunkenness as a matter of urgency.

Victoria and Queensland are the only states in in which a person can be arrested for being drunk in a public space. The laws have a disproportionate impact on Aboriginal and Torres Strait Islander people, who account for 29.6 per cent of all people imprisoned for public order offences, including public drunkenness, and account for over 9 per cent of those in prison in Victoria for such offences, the LIV points out.

“There are better ways of dealing with intoxicated Aboriginal people than criminalising them and detaining them in police custody,” LIV president Stuart Webb says.

That could include taking them home, releasing them into the custody of an Aboriginal Community Justice Panel, or to one of the seven Koori Community Alcohol and Drug Resource Centres, such as the Sober Up Shelter in St Kilda, where they can receive culturally appropriate care and treatment, he says.

“We urge the government to adequately fund such programs to maintain a sufficient number of non-custodial facilitates to ensure intoxicated persons receive care and treatment they need,” Mr Webb says.

Meanwhile, lawyers have criticised the lack of government response to last year’s report into high levels of Indigenous incarceration by the Australian Law Reform Commission's Pathways to Justice.

The Law Council of Australia has described the silence with which the report has been met as "troubling" and said it demonstrated a lack of respect for the work of the ALRC, as well as a failure to understand that Aboriginal-led solutions are essential and effective.

“Pathways to Justice painted a grim picture of the national tragedy that is overwhelmingly high Indigenous incarceration rates, but it also offered practical law reform processes that can help us turn the tide,” Mr Moses said.

“The lack of government action also demonstrates a lack of respect for the ALRC, which exists to help ensure Australian law reform is good reform. Ignoring this report is an affront to the arduous work that went into it. The fact is that Aboriginal and Torres Strait Islander Australians are the most incarcerated people on Earth, which is a national disgrace and international embarrassment."

International Commission of Jurists Victoria vice chair Campbell Thomson says “exactly nothing” has happened since the ALRC gave the report to the federal Attorney-General. “[Christian] Porter has been utterly silent, and none of the state attorney generals have addressed it.”

“Incarceration, deaths in custody, and youth suicide are all going up, but clearly this is a very low priority for this government,” he says.

The Victorian Bar has also expressed its disappointment at the lack of response by governments at all levels one year on from the report.

“The Australian Law Reform Commission’s Pathways to Justice report made a range of recommendations aimed at addressing Indigenous over-incarceration," Victorian Bar president Matt Collins said.

"It is important that all levels of government work together urgently to enable real, effective and sustainable progress to be made.”

Photo: Tanya Day's daughter Belinda Stevens and other family members outside the Coronors Court. Photo supplied by the Human Rights Law Centre 

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