MEDIA RELEASE 23 April 2022
Victorian Aboriginal Legal Service (VALS)

Over 30 years ago, the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) recommended decriminalising public intoxication in all states and territories across Australia. Of the 99 Aboriginal deaths in custody that were investigated by the RCAIDIC, 35% involved Aboriginal people who were detained in relation to public intoxication.  Since RCIADIC, more lives have been lost as a result of this offence, including much-loved mother, grandmother, sister and proud Yorta Yorta woman, Aunty Tanya Day.

VALS is disappointed that the decriminalisation of public intoxication will not occur as planned in November 2022 as 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. This necessary and overdue reform will save lives if it is implemented properly. Given that the reform is yet to be piloted, VALS supports the extension of the implementation period so that it is done right.

There must be no further delays.  

The Government must utilise this extension to prioritise the development and implementation of the public health response. This reform requires a fundamental shift from a justice to a health response. Victoria Police and the Police Association of Victoria must take a back seat and allow those who have expertise in developing a health response to develop the new public health model and embrace self-determined therapeutic approaches that work for what it is a public health issue not a justice one. 

The Expert Reference Group on Decriminalising Public Intoxication – which was established by the Government to provide advice on this reform – set out the core components of a state-wide health response. Importantly, it emphasised that the Government must fund the health response adequately, to ensure that the role of police is minimised. We do not accept that police should be given a prominent role as First Responders, simply because the Government will not adequately invest in the health response.

Last December, the Government announced that it will trial the new health response in four sites across Victoria. Aboriginal self-determination must be at the forefront of these trials, through Aboriginal-led responses in each of the trial sites. Aboriginal communities must be provided with adequate time, resources and the necessary information to develop sustainable and effective responses, and to support our people when they need help.

Aboriginal and Torres Strait Islander voices must be central to the design of the public health model. We are justifiably concerned about any attempt to give Victoria Police a prominent role in the new model. The views of Victoria Police and The Police Association must not be prioritised over the voices of our communities, who have suffered the most from public intoxication laws.

VALS is of the view that the role and powers of first responders in the health response must be guided by the following:

  • Police officers and Protective Service Officers (PSOs) should not be first responders in a health response to public intoxication.
  • If Victoria Police are involved in the health response as first responders, their role must be strictly limited, to circumstances where there is a “serious and imminent risk of significant harm to the individual or other individuals”. Police should not be given powers to detain someone in a public place while they try and locate a place where the person can safely sober up.
  • Individuals must never be detained in police cells or health facilities because they are intoxicated in public.
  • If any new powers are introduced for first responders, there must be robust safeguards and accountability mechanisms in place to ensure that these powers are not abused.

Our people are overpoliced and overincarcerated. The Government has committed to the justice targets in the new Closing the Gap agreement. Properly implementing the public intoxication reforms, fixing Victoria’s broken bail laws and raising the age of criminal responsibility to at least 14 will go a long way to achieving that commitment.

Find more information about the decriminalisation of public intoxication on our website.

Quotes Attributable to Nerita Waight, CEO, Victorian Aboriginal Legal Service

“It is thanks to the advocacy of the Day family that the Government finally committed to decriminalise public intoxication in 2019. We continue to support the Day family in their ongoing advocacy on this issue.”

“Aboriginal communities in Victoria have waited long enough for this reform. Racist policing across Victoria means that our people continue to be disproportionality locked up for public intoxication. It is only a matter of time before we lose another member of our communities. The Government must prioritise the public intoxication reforms immediately.”

“This reform requires a fundamental shift from a justice to a health response. Development of the health response must be led by health experts, and the development of culturally safe responses for Aboriginal people must be led by Aboriginal communities. Victoria Police and The Victorian Police Association should not play a leading role in these reforms.”

“The Governments tough on crime policies have disproportionately affected our people. The Aboriginal imprisonment rate has almost doubled in the last ten years and Aboriginal women are the fastest growing demographic in Victoria’s prisons. The Government must fix the overincarceration of our people by properly implementing the decriminalisation of public intoxication, fixing Victoria’s broken bail laws and raising the age of criminal responsibility.”

To determine eligibility VALS will:

  • enquire as to the Aboriginality of the client;
  • enquire as to perceived or actual conflict of interest;
  • enquire as to compliance with the Means Test;
  • consider the merit of the client’s matter.

Aboriginality
The first time someone uses VALS they must provide proof of their Aboriginality using the Confirmation of Aboriginality Form. This form must be signed and sealed by the Officer Bearers of a recognised Aboriginal and Torres Strait Islander organisation.

Conflict
VALS must not decline to provide assistance to an eligible person, group or body on the grounds that the other party to the matter is an Aboriginal and/or Torres Strait Islander person. In circumstances where the relationship between the parties to a case would result in a conflict of interest, that conflict must be managed in accordance with the Victorian Legal Practice requirements and Policy Direction 9 – “Managing Conflicts of Interest” – of the Attorney-General’s Department Policy Directions for the Delivery of Legal Aid Services to Indigenous Australians (2008).

VALS will not act if a conflict of interest exists. A conflict of interest may be an ‘actual’ conflict of interest or a ‘perceived’ conflict of interest. A conflict of interest can involve:

  • Clients who have different interests, such as VALS may have advised or acted for person “A” (old client) who has an interest that conflicts with person “B” (intended new client).
  • Clients and VALS, such as a VALS staff member or Board Member has an interest that conflicts with an intended new client. Conflicts involving client-provider relationships are:
    •  An owner, director, manager, employee, contractor or agent of VALS and/or;
    • An employee of the Department; and/or
    • A close relative (spouse, de facto, parent, sibling or child) of any of the above.

VALS provides assistance on a first in best dressed basis (i.e. provide direct assistance to the party who approaches VALS first). VALS will refer the other party to another legal service provider or “brief out” the client to a private lawyer (subject to the client meeting the requirements for brief outs). Where appropriate, VALS may act for one client and provide assistance by brief out to the other.

Means Test
Where a person seeks casework assistance, VALS must ensure that applicants satisfy the Means Testing provisions of the Policy Directions.

VALS must ensure that all applicants for legal casework assistance satisfy one or more of the following requirements:

  • Under 18 years of age;
  • Main source of income comes from Community Development Employment Projects; (CDEP) participant wages or Centrelink (or equivalent) benefits; or
  • Gross household income is under $52,000 per annum.

Note: Household income includes the income of your partner, spouse, relative including an adult child who you live with.

The Means Test will be administered in two parts:

Part A: Requires the completion of a small number of questions relating to the applicant’s personal circumstances and income level.

Part B: Is required where applicants do not satisfy the criteria in Part A. It requires more detail about the applicant’s income, assets, employment status and number of dependents.

Merit Test
Discretion will be used to determine if a particular case has merit.