HRLC: No further police powers once public drunkenness is decriminalised: Day family statement

This statement has been reproduced from the Human Rights Law Centre website at:

The Victorian Government has made a formal decision not to give Victorian police any new powers to arrest or lock people up in police cells once public drunkenness is decriminalised in November 2023.

The decriminalisation of public drunkenness was first recommended by the Royal Commission into Aboriginal Deaths in Custody over 30 years ago. Following extensive advocacy by the family of Tanya Day, the Andrews Government committed to decriminalising public drunkenness in August 2019 at the outset of the coronial inquest into their mum’s death.

The Day family have staunchly argued that police should have no additional powers to arrest or lock up people who may be intoxicated when this long overdue reform comes into effect.

Data from the Victorian Aboriginal Legal Service shows that for the past six months, police have locked up 30-40 Aboriginal people each month under current public drunkenness laws.

Last November the Andrews Government passed legislation delaying the decriminalisation of public drunkenness and the rollout of a state-wide public health response by 12 months to November 2023.

In response, the Day family said:

“Our mother would still be here with us today if Victoria police had treated her condition seriously and cared for her with a public health response, but they chose to criminalise her at her most vulnerable time. She was left to die alone on the floor of a police cell after the officers responsible for monitoring her failed to adequately care for her as required by the Victoria Police guidelines.

“As our mother's case shows, police cells are dangerous places for those intoxicated, especially our Aboriginal and Torres Strait Islander communities. No person should ever be locked up just for being drunk in public, and there should be no role for police or police cells in a public health response.

“Public drunkenness laws are outdated and discriminatory, which is why the Royal Commission into Aboriginal Deaths in Custody recommended that it be decriminalised over 30 years ago after the death in custody of our uncle Harrison Day.

“We welcome the Andrews government's decision to hear our family’s concerns and not to add or replace already excessive police powers and laws. This is the first time across the nation that a jurisdiction has made a commitment to true decriminalisation.

“We note our family are yet to receive a public apology or acknowledgment of the role police played in our mothers death and we continue to call for independent oversight and accountability of police, to ensure that what happened to our mum doesn’t happen again.

“The Andrews Government must now work with our family and Aboriginal organisations and communities to implement a best practice and culturally appropriate Aboriginal-led health model. Aboriginal self-determination is crucial to ensuring these reforms are delivered in a way that is timely, meaningful and successful.”

Dr Crystal McKinnon, Steering Committee member at the Dhadjowa Foundation said:

“Public drunkenness laws have contributed to many deaths in custody. These changes have been worked towards for a long time and are well overdue. 

“Aunty Tanya’s family mobilised the community and worked really hard door-knocking, on social media platforms and engaging with the media to fight for this change. It was a lot of years of this work to get the government to listen.

“This shows the power of grassroots campaigns when it’s led by families of loved ones who’ve died in custody and the power of getting behind those campaigns which seek to deliver justice on the families' terms.”

Nerita Waight, CEO at the Victorian Aboriginal Legal Service:

“The Victorian Government’s decision to ensure police will not have new powers to respond to public intoxication is the right decision and a testament to the tireless advocacy of the Day Family since the passing of Aunty Tanya Day over 5 years ago. Premier Daniel Andrews, Attorney-General Jaclyn Symes, and Minister for Treaty and First Peoples Gabrielle Williams, have listened to the Day Family and are implementing the change they advocated for.

“This is an important decision that will have a huge positive impact for overpoliced Aboriginal communities as well as other vulnerable communities across Victoria.

“All of the Victorian Aboriginal Deaths in Custody investigated by the Royal Commission into Aboriginal Deaths in Custody over 30 years ago involved detention for public intoxication. The final report of the Royal Commission recommended decriminalising public intoxication and it is beyond time for decriminalisation to be implemented in Victoria. VALS data shows that 30-40 Aboriginal people a month are being arrested by police in Victoria. Every Aboriginal person who is arrested for public intoxication is being unnecessarily harmed.

“In other Australian jurisdictions where police maintain detention powers for public intoxication, despite de-criminalisation of this offence, Aboriginal people continue to be locked up and die in custody. Victoria will be the first jurisdiction to choose another path.

“We will continue to work with the Victorian Government on more reforms that will end the overpolicing of Aboriginal people in Victoria during their third term in power. This decision indicates that the Andrew’s Government is ready to embark on justice policy led by evidence, data and experts that improves the lives and wellbeing of all Victorians.

“There are a lot of reforms to the criminal legal system that are well researched, broadly supported, and ready to be implemented. We are hopeful the Andrews Government can get it done if they continue to listen to the families and communities whose lives are being destroyed by the current system.”

Amala Ramarathinam, Managing Lawyer with the Human Rights Law Centre:

“Laws criminalising public drunkenness have always been discriminatory, dangerous and have led to too many people dying in police custody. The Andrews government has done the right thing in recognising that people who may be intoxicated in public require a health response, not a police response. If somebody is too drunk, they should be taken home or somewhere safe - they should never be locked up behind bars.

“Every day these laws remain in place, there continues to be a risk of a person like Tanya Day needlessly dying in police custody. The Andrews’ government owe it to the Day family to honour their promise and deliver a best practice, Aboriginal-led public health response without further delay. These long overdue reforms are testament to the tireless and ongoing advocacy of the Day family in seeking justice for their mum. 

“Effective and truly independent oversight of police misconduct is also long overdue in Victoria, and the status quo of police investigating themselves and dodging accountability for people dying in their care must end. For as long as the Andrews government allows police in this state to act with impunity, deaths in custody will continue.”

The Day family and the Human Rights Law Centre will not be providing any further comment.

Media contact:
Thomas Feng, Media and Communications Manager at Human Rights Law Centre, 0431 285 275, [email protected]

Patrick Cook, Acting Head of Policy, Communications and Strategy at Victorian Aboriginal Legal Service, 0417 003 910, [email protected]

Circumstances of Tanya Day’s death:

Tanya was a proud Yorta Yorta woman and much-loved sister, mother, grandmother and advocate.

In December 2017, Tanya fell asleep on a train. Despite causing no disturbance, she was arrested for being drunk in a public place in circumstances where the Coroner found that the police should have taken her to hospital or sought urgent medical advice.

While locked up in a concrete police cell at the Castlemaine police station, Tanya hit her head on the wall and subsequently died. The Coroner found that the checks the police officers conducted on Tanya while she was in the cell were inadequate and that the police officers had failed to take proper care for Tanya’s safety, security, health and welfare as required by the Victoria Police guidelines.

The Coroner found that Tanya’s death was preventable and had the checks been conducted by the police in accordance with the relevant requirements, Tanya’s deterioration may well have been identified and treated appropriately earlier.

The Coroner referred two police officers to the Director of Public Prosecutions and recommended that public drunkenness laws be repealed.

A copy of the Coroner’s findings in the inquest into Tanya Day’s death in police custody is available on the Coroners Court website here.

A copy of the Expert Reference Group’s report – Seeing the Clear Light of Day – is available on the Department of Justice and Community Safety’s website here.