Policy hangover: The missing details in Victoria’s public drunkenness plan

New legislation recently passed both houses of the Victorian Parliament, decriminalising public drunkenness.

By Brendan Roberts

The reform has raised many questions about the future role of police in protecting intoxicated people from themselves and the wider community. In the absence of any firm detail from the Government about how the replacement ‘health-based’ model will operate, TPAV Secretary Wayne Gatt takes you through the reasons for the change, the advice TPAV provided to those charged with driving this reform, the model adopted by other states and the critical questions that we have asked and that require urgent answers before this new legislation comes into effect in 18 months’ time.

How has the Government come to its decision to decriminalise public drunkenness?

The decision to decriminalise public drunkenness was made following a recommendation from the Royal Commission into Aboriginal Deaths in Custody nearly 30 years ago. A few years ago, the Government began talking in earnest about effecting change and commenced a process of consultation during the COVID-19 pandemic, which we say was a fairly loose form of consultation.

The Government’s objective was clear, to scrap the crime of being intoxicated in a public place. It put together an Expert Reference Group (ERG) within the Department of Justice to consider stakeholder views.

The ERG handed down a report late last year outlining a series of recommendations. In short, it sought to decriminalise public drunkenness under the Summary Offences Act as we presently know it and replace the current process that relies heavily on police managing people found intoxicated in their custody, with a health-based model.

What did the Public Drunkenness Expert Reference Group report recommend and how will the replacement model work?

The ERG recommended that a healthbased model be introduced to ensure that no one is kept in police cells simply because they are found to be drunk in public. The report looked at five key areas: first response, transportation to a place of safety, meeting the immediate needs of an intoxicated person, providing health and social care pathways for high needs individuals and broader prevention strategies.

Obviously, police are most involved in the first and second elements of those key areas. The proposed new model seeks to change the first response model from police to personnel from health or community service organisations, such as outreach services, alcohol and other drugs services and Aboriginal communitycontrolled organisations.

The ERG report states that while emergency services such as Victoria Police and Ambulance Victoria will play an important role, a range of healthbased services must be supported to meet the levels of expected demand. In terms of transport, it says that Victoria Police will only have a role to play in the transportation of an intoxicated person when there are no other options available. It falls short however, of telling us what alternative options will be put in place.

In terms of where intoxicated people will be taken, the report talks in broad terms about transporting these people to a private residence, an Emergency Department or an urgent care centre; a hospital facility if they require urgent medical care, or a sobering up service if they require a short period of stay and cannot be cared for anywhere else.

Was TPAV consulted and what did it have to say?

TPAV was consulted during the consultation period. We provided the ERG with our members’ frontline experience of what drunkenness looks like from a police perspective, why police presently have to be involved, the mechanisms and methods by which police already divert people into either the care of friends or loved ones or other services that exist and why from a public safety approach, police will always be relied upon and will always require some capacity to manage drunkenness in public places.

We also provided the ERG with the experiences from our affiliate members, our equivalents in every state and territory of Australia, noting that all but Queensland had already decriminalised public drunkenness. We outlined the alternative pathways that they had created in each jurisdiction to ensure that police could continue to keep the community safe.

In essence, we took a view that the decriminalisation of public drunkenness is actually a progressive reform. While we’re not opposed to it in principle, we recognise that not every intoxicated person that police come into contact with is consenting, nor is everybody necessarily a natural fit for services that already exist. Furthermore, even if services were expanded broadly, there will always be circumstances where for reasons of public safety, based on what we’ve seen interstate, police will still have an active role in managing intoxicated people within a custodytype environment.

What does this mean for police and when will it happen?

The bill to repeal public drunkenness as a crime has recently passed both the upper and lower houses of Parliament and it will take effect in 18 months. When the bill was introduced, we said that the scale of what  was required to effect the change the Government was seeking, was so large that it couldn’t be achieved to the standard required to satisfactorily keep the community safe.

We argued that, in its present form, it would leave police without any powers to manage those intoxicated people who fell through the cracks and with no viable alternative.

Publicly, we accused the Government of putting the cart before the horse. What we recognise and what the ERG ignored was the extent to which police are forced to engage with people in a state of intoxication in the community. These changes were recommended despite the fact that we highlighted these critical gaps prior to the report being finalised.

That’s perhaps the most disappointing feature, that this wasn’t an error or an omission. It appears to us that there was a dismissive approach to the genuine facts and experience we had provided to the Expert Reference Group.

We are now lobbying the Government and providing the best possible advocacy we can to the Health Department to say there has to be a balanced approach to this. We have stressed the need for the ERG to accept that we still need the police to be able to do their job and support the health response. That just as quickly as you remove the crime of public drunkenness, you need to introduce a system that allows police to deal with the types of public safety situations that we have always been called upon to deal with.

The Expert Reference Group has failed to grapple with one critical issue and that is the thousands of people\ each year that are taken into custody who are simply not ‘yes’ people in police parlance, that is people who are not willingly going into custody. It is not taking that into account when\ considering this legislative change, and how it will work. The overwhelming majority of people we come across in these situations are ‘no’ people and have no capacity or means to look after themselves. That’s where the ERG has made the biggest error, they’ve underestimated this critical aspect of this issue.

What do other states do and what aspects of their models should we adopt?

In other states where drunkenness has been decriminalised, police have received alternate options to deal with people who are intoxicated in public. For example, in New South Wales, ‘move on’ directions can be issued to a person to leave a public place and not return for a specified period. It then becomes an offence if they do. In Tasmania, police can still take a person into custody if they are a risk to themselves and others. It’s similar in the Northern Territory and South Australia.

We effectively told the Expert Reference Group that if you are going to remove arrest powers, there must be another mechanism that ensures police are not hamstrung in situations where an intoxicated person is a danger to themselves or others and is not suitable to be left with other health or community-based organisations.

What happens from here?

Following a significant amount of agitation by us, we called on the Government to establish a taskforce of workers, agencies and interest groups, to try to formulate a rational solution to the complex problem that has now been created.

What critical questions does the Government need to provide urgent answers to?

What replacement health-based services will be used, where they will go and how they will operate? What will police be able to do in circumstances in which a person simply fails or refuses to consent to go into another service?

Who is going to transport intoxicated people to health services?

Where will intoxicated people be transported to and what happens when these people become a management issue at the place they are taken to?

What will happen to people who are exhibiting nuisance behaviour that falls under the threshold of criminal behaviour, but is such that it requires police intervention?

Will the history or safety information held about an individual be accessible to other agencies which are called to assist?

How will this new model impact our colleagues in the Ambulance service?

What will happen when the place an intoxicated person is located, is remote or removed from established health infrastructure?

We will keep members updated about the progress of our discussion with the relevant agencies in the coming months.