Victoria will delay repealing public drunkenness as a crime, in a move that has triggered the state’s Indigenous legal service to urge the state government to prioritise the “overdue reform”.
The offence was to be officially repealed in November, but Guardian Australia understands the decriminalisation of public drunkenness may not take effect until 2023 – more than five years after the death of 55-year-old Yorta Yorta woman Tanya Day.
Day had been arrested in December 2017 after being found drunk on a train, and later died in hospital from head injuries sustained in a prison holding cell.
Last year, the Andrews government passed landmark legislation that would decriminalise public drunkenness in line with a recommendation made after a coronial inquiry into Day’s death.
But on Friday, the state government said delays in establishing trials of sobering-up centres – as part of a shift to a health-based response – meant that the decriminalisation of public drunkenness would be pushed back. The delay has been attributed to Covid-related pressures on the health system.
Day’s family said they had “serious concerns” about the wellbeing of Aboriginal people who may still be targeted for the offence of public intoxication before the decriminalisation comes into effect.
“The government has now made a commitment and we expect that commitment to be fulfilled with the successful implementation of the reform,” they said.
“There can be no further delays, this reform is already 31 years overdue … we implore the Victorian government to ensure interim safeguards and measures are in place to ensure we have no further Aboriginal deaths in custody in Victoria.”
The Victorian Aboriginal Legal Service said it was “disappointed” decriminalisation would not occur in November but stressed the government should “utilise” the delay to ensure it embraces a model that is based on a health response and does not include police as first responders to intoxicated people.
“Every extra day it takes to implement this reform is another day that Aboriginal and Torres Strait Islander people are being targeted and locked up under the existing laws,” it said in a statement.
“There must be no further delays.”
The Victorian Aboriginal Legal Service (VALS) chief executive, Nerita Waight, urged the government to urgently prioritise the reform.
“Aboriginal communities in Victoria have waited long enough for this reform … our people continue to be disproportionately locked up for public intoxication. It is only a matter of time before we lose another member of our communities,” she said.
Waight said the government’s “tough on crime” policies disproportionately affected Indigenous people, with Aboriginal women the fastest growing demographic of the state’s prisons.
“The government must fix the over-incarceration of our people by properly implementing the decriminalisation of public intoxication, fixing Victoria’s broken bail laws and raising the age of criminal responsibility,” she said.
Day’s family and the VALS have argued police should not be involved as first responders as part of the reform.
The state’s attorney general, Jaclyn Symes, said the Victorian government remained dedicated to implementing a “health-based model” to ensure people who are intoxicated in public could “access the care and support they need”.
“This work is too important to not get right – we must make sure there’s time to test and develop the new model so it’s effective, safe and culturally appropriate,” she said in a statement.
“We will continue to engage with our Aboriginal community stakeholders, health services and first responders to work through these delays and get these reforms right.”
The government’s health-based model will be informed by the trial of sobering-up centres in four locations – the City of Yarra, the City of Greater Dandenong, the City of Greater Shepparton and in Castlemaine.
Guardian Australia understands the government will aim to establish the trial sites –funded with an investment of $26.4m – by the middle of the year.
The Police Association of Victoria had previously warned that decriminalising public drunkenness before a replacement system to deal with the issue was “dangerous virtue signalling”.
Day had fallen asleep on a train from Bendigo to Melbourne when she was arrested for public drunkenness and taken to a police station in Castlemaine. She hit her head at least five times in a holding cell while left unattended and died in hospital from a brain haemorrhage less than three weeks later.
The Victorian coroner in 2020 concluded police officers had failed to adequately check Day’s safety and wellbeing, saying an indictable offence may have been committed. No charges have been laid over the death.
Victoria and Queensland are the only jurisdictions in Australia that have a specific offence for public drunkenness, which the 1991 royal commission into Aboriginal deaths in custody found had disproportionately affected Indigenous people, and recommended that it be abolished.
Of the 99 deaths investigated in the commission, 35% involved Aboriginal people who were detained in relation to public intoxication.
