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The Victorian Government has finally decriminalised public drunkenness, following an extensive public campaign, due to the law’s impacts on the state’s Aboriginal and Torres Strait Islander communities.

The laws being scrapped was originally recommended over 30 years ago by the Royal Commission into Aboriginal deaths in custody, as well as various coronial inquests.

The change has now occurred in every Australian jurisdiction, aside from Queensland which is currently conducting an inquiry to determine whether the offence should be removed.

It was decriminalised by in the Northern Territory in 1974, New South Wales in 1979 and South Australia in 1984.

Victoria will seek to prioritise a ‘health-led’ response rather than introducing new move-on powers for police which occurred in other states and territories.

The transition from the current justice response to a health-led response to public intoxication will mean that new services will be available to those who are intoxicated and in need of assistance.

These services include helping those in need in public, as well as providing them with transport to a safe place (i.e., their house, or a residence of a family member, friend, or carer) where required.

It may also involve a sobering service or a place of safety, which the state government describes as “culturally appropriate and safe spaces they can recover and receive support.”

The state government has noted that it will only be able to transport individuals to a sobering up facility in circumstances where they consent and are able to walk on their own.

They expect that most will spend no longer than 12 hours at a sobering-up facility.

There is currently a six-bed sobering-up facility in Fitzroy, with a 20-bed, 24/7 sobering-up centre in Collingwood to be opened in due course.

There will also be a dedicated six bed sobering-up centre in St Kilda for First Nations people.

Due to the disproportionate impact public intoxication laws and police interactions have had on First Nations people, the model seeks to prioritise services for the Aboriginal community.

A 24/7 phone service run by the Victorian Aboriginal Health Service will triage calls for help and dispatch outreach teams.

It is important to note that even whilst it is a ‘health-led’ response, Victoria police and Ambulance Victoria will still respond where there is a risk to community safety or serious health risks.

“People will no longer be arrested simply for being drunk in public,” said Mental Health Minister, Ingrid Stitt.

“But if there are other community safety issues at play, then those are matters for Victoria police to deal with.”

Previously, section 13 of the Summary Offences 1966 (VIC), provided that it was an offence to merely be “found drunk in a public place” which was punishable by a maximum penalty of a $1,538.48 fine (8 penalty units x current value = $192.31).

There were also various other ‘offences relating to a drunkenness’ including where a person is drunk and disorderly, or deemed a ‘drunkard’ behaving in ‘riotous or disorderly manner’.

The Summary Offences Amendment (Decriminalisation of Public Drunkenness) Act 2021 (VIC) has ultimately repealed these offences, which took force on 7 November 2023.

As outlined, there are no new move-on or arrest powers which have been provided to Victorian police. This can be contrasted to other jurisdictions, including New South Wales, which provide officers with various powers to dealt with intoxicated persons.

Section 198 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’) prescribes that a police officer may direct an intoxicated person in a public place to leave and not return for a specified period.

An intoxicated person means a person who appears to be seriously affected by alcohol or another drug or a combination of drugs.

This power is enlivened where the officer believes on reasonable grounds that the person’s behaviour is disorderly, is likely to cause injury to others, damage to property or otherwise present a risk to public safety.

The period during which a person may be directed not to return to a public place cannot exceed 6 hours after the direction was given.

If you do not comply with the order or repeat your conduct in another public place within the 6 hours, it is an offence punishable by a maximum penalty of a $1,650 fine.

Furthermore, pursuant to section 206, an officer may detain an intoxicated person found in a public place who is:

  • behaving in a disorderly manner, or in a manner that is likely to cause injury to others, damage to property or otherwise present a risk to public safety, or
  • in need of physical protection, due to being intoxicated.

Where a person is detained in such circumstances, they are to be taken to, and released into the care of, a responsible person willing immediately to undertake the care of the intoxicated person.

A reasonable person may include a friend, family member, or staff of an organisation providing welfare or alcohol or other drug rehabilitation services.

 However, an intoxicated person detained by a police officer may be taken to and detained in an authorised place of detention, such as a holding cell, if:

  • it is necessary to temporarily do so to find a responsible person willing to take care of them,
  • a responsible person cannot be found to take care of them,
  • the intoxicated person is not willing to be released into the care of a responsible person and it is impracticable to take the intoxicated person home, or
  • the intoxicated person is behaving or is likely to behave so violently that a responsible person would not be capable of taking care of and controlling the intoxicated person.

Where an intoxicated person is held in an authorised place of detention, they must be given a reasonable opportunity to contact a responsible person, be kept separately from those detained due to alleged crimes, must be provided with necessary food, drink, bedding, and blankets appropriate to the person’s needs and must be released as soon as they recover.

Published on 18/12/2023

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AUTHOR Poppy Morandin

Poppy Morandin is the managing law clerk and an integral part of the team of criminal lawyers at Criminal Defence Lawyers Australia . She's also a part of CDLA's content article production team. Poppy is passionate about law reform and criminal justice.

View all posts by Poppy Morandin