Summary Offences Amendment (Decriminalisation of Public Drunkenness) Bill 2020 (VIC)

Tuesday 9 February 2021 @ 11.15 a.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

On Thursday 4 February 2021, the Summary Offences Amendment (Decriminalisation of Public Drunkenness) Bill 2020 (VIC) (the Bill) was introduced into the Victorian Legislative Council after having already passed through the Legislative Assembly. In broad terms, the Bill amends the Summary Offences Act 1966 to repeal offences relating to "public drunkenness", and makes consequential amendments to the Bail Act 1977 (VIC) and the Liquor Control Reform Act 1998 (VIC). According to the Bill's explanatory materials, the social intent of the reform is to decriminalise public drunkenness and replace the offence with a "health-based response".  The reforms follow the coronial inquest into the tragic death of Yorta Yorta woman Tanya Day who was being held in a police cell on a charge of public drunkenness. 

Background to the Bill

The Government appointed an Expert Reference Group (ERG) in August 2019  to advise on the reforms. The ERG's report entitled, "Seeing the Clear Light of Day" (Report to the Victorian Attorney-General - August 2020) provided strategic advice and made 86 recommendations to Government on the decriminalisation of public drunkenness and the establishment of an alternative public health model to respond to public drunkenness. In its opening paragraph the ERG report states:

"There is a clear, compelling and urgent imperative to overhaul Victoria’s current approach to people who are intoxicated in public. The current punitive, criminal justice led response to intoxicated people is unsafe, unnecessary and inconsistent with current community standards. A safer, sensible health based approach is required that ensures the health and safety of all Victorians, particularly our most vulnerable."

Essentially the ERG's report recommended the decriminalisation of the "public drunkenness offences" in sections 13, 14 and 16 of the Summary Offences Act 1966 (VIC), along with a recommendation for a 24-month implementation period to enable sufficient time to develop, trial and implement the public health model for dealing with the issue. The Bill would implement the first stage of proposed reforms, which will give effect to the intent of the ERG report in decriminalising public drunkenness offences.

Outline of Proposed Legislation

If passed, the amendments in the Bill would commence on 7 November 2022, or earlier by proclamation. According to the explanatory material, the reason for the delayed commencement is to allow detailed work on the development and implementation of an alternative public health response to public intoxication, and to ensure that it is operational before the repeal of public drunkenness offences comes into effect. This delay period will also allow time to trial the health model, gain a detailed understanding of the required resourcing and roll out a state-wide service response to support people who are intoxicated in public.

In clause 4 the Bill repeals the heading before section 13 of the Summary Offences Act 1966  (VIC) (the Principal Act) namely, "Offences relating to Drunkenness". The amendment is consequential to the repeal of sections 13 to 16 of the Principal Act. Clause 5 repeals section 13 of the Principal Act which creates the offence of being drunk in a public place - the most frequently used of the public drunkenness offences. The repeal of the offence is consistent with the aim of decriminalising public drunkenness. Clause 6 repeals section 14 which creates an offence of being drunk and disorderly in a public place, the second most frequently used of the public drunkenness offences.

Clause 7 repeals section 15 of the Principal Act which provides police officers and certain Protective Services Officers with the power to arrest a person found drunk or drunk and disorderly in a public place. The power is being repealed because, as indicated in the explanatory material, the power will no longer be required when the offences to which it enforces are repealed.

The Bill in Clause 8 repeals section 16 of the Principal Act by removing the offences which relate to "drunkards behaving in a riotous or disorderly manner". This amendment involves repealing two discrete offences:

  •  Paragraph 16 (a) creates the offence of behaving in a riotous or disorderly manner while drunk in a public place.
  •  Paragraph 16 (b) creates an offence of being in charge of a carriage (not including a motor vehicle within the meaning of the Road Safety Act 1986 (VIC)) or a horse or cattle or a steam engine in a public place, while drunk. According to the explanatory material:
"Although this offence is rarely used, it would apply to riding a bicycle while drunk. It is being repealed because it is broadly consistent with the intent of the ERG to move from a justice to a health-based response to public drunkenness. Work will be undertaken in the implementation period to address any provisions that may be needed to address road safety relating to riding a bicycle while drunk . . ."

Clause 9 amends section 60AA which provides for powers related to the issuing of infringement notices for particular summary offences, to remove references to sections 13 and 14 from section 60AA(1) of the Principal Act. Clause 10 amends section 60AB of the Principal Act also to remove references to repealed provisions. Section 60AC of the Principal Act is repealed as it is redundant (see clause 11)  

The Bail Act 1977 (VIC) and the Liquor Control Reform Act 1998 (VIC) are consequentially amended (see clauses 12 and 13) to remove references to the "public drunkardness" provisions of the Principal Act. 

Comments and Reaction

Former Attorney-General, Ms Hennessy, said in her second reading speech that:

"The tragic death in custody of Tanya Day, a proud Yorta Yorta woman, nearly three years ago reignited calls for the decriminalisation of public drunkenness in Victoria from Aboriginal communities and the broader public. . . . This Bill is an important milestone along a journey which acknowledges the failures of the past and the Government’s commitment to move to a better, safer future. At its core, this long-overdue reform will change the way we think about and respond to public drunkenness—moving the response away from law enforcement to an approach that focuses on health and safety."

The Victorian Opposition Leader, Michael O'Brien, has said in a statement that the proposed legislation is premature and fails to provide details of alternatives.

"The Liberal Nationals acknowledge that this legislation follows the recommendation of the Coroner into a recent tragic death in custody of an Indigenous woman. However, this legislation to decriminalise public drunkenness fails to detail the alternative health response model. . . . Both the Police Association and the Australasian College for Emergency Medicine have said ill-thought-out reforms will actually do more harm than good to community safety."

Shadow Attorney-General, Mr O'Donohue, has in a similar line of of argument said:

“Daniel Andrews has put a press release before a policy and failed to address the serious community safety concerns surrounding this change. Time and again we see this government rushing through legislation that only makes things worse. This Bill must be paused until a proper plan is developed and presented to the community and stakeholders alike.”

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