The daughter of Tanya Day, who died in custody after being arrested for being drunk on a train, has welcomed a decision by the Victorian government not to replace the state’s public intoxication laws with new move-on powers, despite opposition from the police union.
The government on Tuesday confirmed it would not give police any new powers to arrest people for being drunk in public once the existing offence is decriminalised in November 2023.
The Police Association has argued it would be “negligent and reckless” to decriminalise public drunkenness without enacting other laws to “keep people safe”.
However, Day’s daughter, Apryl Day, welcomed the government’s commitment not to replace public intoxication with police move-on powers.
“It’s the first time across the nation that a jurisdiction has made a commitment to true decriminalisation, which I think is a really powerful moment,” she said.
The government committed to repealing public drunkenness as a crime in 2019, amid the coronial inquest into the death of Day, but the implementation of a health-based response to replace the offence was delayed 12 months due to Covid-19.
The 55-year-old Yorta Yorta woman 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 unattended and died in hospital from a brain haemorrhage about three weeks later.
Victoria’s attorney general, Jaclyn Symes, on Tuesday said the reform would not be “perfect” but would provide the “best outcome for the most amount of people”.
“The main reason to decriminalise public intoxication is to ensure that people who are drunk aren’t sobering up in police cells,” she said. “We know that there’s a disproportionate impact on our Aboriginal community.
“We have Aboriginal people who are arrested for the sole offence of being drunk in public and that is causing immense trauma and in some instances we know has resulted in people dying.”
The Police Association secretary, Wayne Gatt, said no other state or territory that has decriminalised public drunkenness has taken such a “cavalier approach with the safety of its community”.
“Decriminalising public drunkenness, of itself, is not a dangerous reform,” Gatt said in a statement.
“What is dangerous however, is to do so without maintaining the safety net that would provide police with a means to manage people in the community that do not consent to a health response or where a health response is simply not available.”
The opposition spokesperson for police and criminal justice reform, Brad Battin, agreed police must retain move-on powers to protect community safety.
“We’ve seen too often on the front page of the papers a coward punch, generally from someone who is intoxicated, and we hear about it in court after they were drunk at the time and didn’t know what they were doing,” he said.
However, Symes stressed the reform would not dilute further police’s powers.
“Police will still have the option of stepping in when somebody is disturbing the peace, causing a scene or concerns about violent behaviour,” she said.
Day dismissed the police union’s comments, saying police were yet to acknowledge the role they played in her mother’s death.
The Victorian coroner in 2020 concluded police officers had failed to adequately check Tanya Day’s safety and wellbeing, finding an indictable offence may have been committed. No charges have been laid over the death.
“They actually have more of a care factor around their police powers being stripped than they do the lives of Aboriginal people and the deaths in custody that are occurring within Victoria,” Day said.
Victoria and Queensland are the only jurisdictions in Australia to still 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.
Public drunkenness laws were repealed in NSW in 1979, but were effectively rolled into the state’s move-on laws. Symes said Victoria had learned from other jurisdictions that creating backup powers “undermines the whole purpose of decriminalisation.”
The chief executive at the Victorian Aboriginal Legal Service, Nerita Waight, said about 30 to 40 Aboriginal people a month continue to be arrested in the state for being drunk in public.
She said the government’s decision to ensure police will not have new powers to respond to public intoxication is the “right” one and will have “a huge positive impact for overpoliced Aboriginal communities as well as other vulnerable communities across Victoria”.
Danny Hill, secretary of the Victorian ambulance union, welcomed the creation ofsobering-up centres with associated transport teams but said more clarity was needed on the responsibilities of paramedics when dealing with an intoxicated person in future.
