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85
Police Services monitor effects of decriminalisation
That:
a) Police Services should monitor the effect of legislation which decriminalises drunkenness with a view to ensuring that people detained by police officers are not being detained in police cells when they should more appropriately have been taken to alternative places of care;
b) The effect of such legislation should be monitored to ensure that persons who would otherwise have been apprehended for drunkenness are not, instead, being arrested and charged with other minor offences. Such monitoring should also assess differences in police practices between urban and rural areas; and
c) The results of such monitoring of the implementation of the decriminalisation of drunkenness should be made public.
Victoria Police must not use alternative powers to undermine the reforms. It is critical that the Victorian Government monitors implementation of the reforms through public and transparent reporting on alternative police powers, including move on powers.
Aboriginal Justice Caucus Assessment
The intent of Recommendation 85 was to monitor the effects of decriminalising public drunkenness to prevent discriminatory detention of Aboriginal people and ensure appropriate care for individuals.
A Monitoring and Evaluation Plan has been developed to guide monitoring and evaluation following public intoxication reforms. Aboriginal stakeholder engagement was integral to the establishment of this plan.
The Implementation Monitoring and Oversight Group comprises several Aboriginal representatives and provides independent advice to the Minister for Mental Health on reform progress and performance, cultural safety, risks and issues. This advice is shared with the Attorney-General and Minister for Police.
Monash University are independently evaluating the impacts of the reforms, particularly the use of alternative powers and offences by police members, as well as impacts on Aboriginal communities. We are involved in the independent evaluation which is looking at the extent to which up charging may be occurring along with a range of other potential justice impacts.
Victoria Police use the Public Drunkenness Reform Application to record information from their interactions with people who are intoxicated in public. This information is monitored as part of Victoria Police’ internal evaluation of the implementation and impacts of the reform. We acknowledge that Victoria Police began providing data collected via this app to the Aboriginal Justice Forum, but this has not continued.
Overall, these actions partially align with the intent of the recommendation, but do not completely address parts b) and c), which require differences in police practices between urban and regional areas to be assessed and monitoring data to be made publicly available.
Victoria Police must not use alternative powers to undermine the reforms. It is critical that the Victorian Government monitors implementation of the reforms through public and transparent reporting on alternative police powers, including move on powers. (Nerita Waight, CEO, VALS)
We are concerned about the quality and timeliness of data provided in response to our (Aboriginal Justice Caucus) requests, and dependency on external bodies for progress updates on reforms.
Recommendation 85 remains highly relevant. Further work to monitor implementation of public intoxication reforms through public and transparent reporting, including on use of alternative police powers and charges, would increase transparency and police accountability and could contribute to reducing incarceration.
Priority for Further Work:
High
Relevance and potential impact | |||||
|---|---|---|---|---|---|
Low (0-2) | Moderate (3-4) | High (5-6) | |||
Extent of action taken and evidence of outcomes | High (5-6) | ||||
Moderate (3-4) | |||||
Low (0-2) | |||||
Potential Actions for Further Work
Monitor implementation of public intoxication through public and transparent reporting
Monitor implementation of public intoxication reforms through public and transparent reporting, including on use of alternative police powers and charges.
Implement Yoorrook for Justice recommendation
In relation to the decriminalisation of public intoxication:
(a) the Chief Commissioner of Police must ensure that Victoria Police conduct is closely monitored to ensure police members do not use existing powers to unnecessarily take intoxicated people into custody, for example by ‘up-charging’, and
(b) the Victorian Government’s planned independent evaluation of the monitoring of police conduct must:
i. be Aboriginal led, with appropriate governance by them
ii. cover at least the first 12 months and then three years of implementation, and
iii. have results that are made public.
(Yoorrook for Justice, Recommendation 30)
Background
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) emphasised the importance of monitoring the effects of legislation that decriminalises public drunkenness to ensure it does not result in the discriminatory detention of Aboriginal people. At the time, government agencies and Aboriginal community organisations had given significant attention to the regulation of Aboriginal drinking. The Commission stressed that these forms of regulation needed to be carefully evaluated to prevent alternative charges from increasing custody rates and to ensure that people are not inappropriately detained in police cells instead of being taken to alternative care facilities. The results of such monitoring were to be made public to ensure transparency and accountability in implementing these policies.
Actions Taken Since Last Review
Department of Health and Department of Justice and Community Safety
The Department of Health (DH) and Department of Justice and Community Safety (DJCS) provided an update to the Aboriginal Justice Forum on the development of the Monitoring and Evaluation Plan, which aims to ensure that monitoring and evaluation of the public intoxication reforms (PIR) is ‘consistent, coordinated, and complementary, and will deliver comprehensive analysis of the impact of the reforms.’ Aboriginal stakeholder engagement was an integral element in the establishment of this plan.
Victoria Police and DJCS are to prepare quarterly monitoring reports, which include data on:
- number and type of Victoria Police PIR-related contacts by area
- number and type of Victoria Police PIR-related contact outcomes
- number and reason for arrests of intoxicated persons
- adverse outcomes following PIR-related contact
- emergency services call-out volumes, by event type
- client volume, distribution, and demography.
DJCS selected Monash University to undertake the independent evaluation of the justice impacts of the public intoxication reform, particularly any use of alternate powers and offences by police members and impacts on Aboriginal communities who have been disproportionately affected by public intoxication laws. The evaluation involves a team of Aboriginal academics with extensive experience across Aboriginal policy and research, human rights, access to justice for marginalised groups, and law reform evaluation.
Implementation Monitoring and Oversight Group
A key recommendation of the Expert Reference Group’s Seeing the Clear Light of Day report was for the establishment of an independent group to oversee public intoxication reform. The Implementation Monitoring and Oversight Group provides independent advice to the Minister for Mental Health, to be shared with the Attorney-General and Minister for Police:
The advice will primarily focus on reform progress and performance, cultural safety, and risks and issues regarding the decriminalisation of public drunkenness and the statewide health-based response.
The Implementation Monitoring and Oversight Group includes Aboriginal representatives and experts in health and justice.
Victoria Police
Victoria Police require members to record data on their interactions with people who are intoxicated in public, using the Public Drunkenness Reform Application (PDR App). This information is monitored as part of Victoria Police’ efforts to track implementation and impacts of the reform.
Victoria Police committed to transforming its systems and processes in line with the former Chief Commissioner's promise and apology to the Aboriginal community before the Yoorrook Justice Commission. One of the 79 actions outlined in that Statement of Commitment was to:
Monitor the operationalisation of the decriminalisation of public drunkenness to ensure there is no up charging or unequal use of discretion.
Impact
Outputs
Department of Health & Department of Justice and Community Safety
- Monitoring and Evaluation Plan – a framework for monitoring and evaluation projects conducted following the decriminalisation of public drunkenness.
- Implementation Monitoring and Oversight Group – provides independent advice to the Minister for Mental Health, who then shares the advice with the Attorney-General and the Minister for Police. The advice primarily focuses on reform progress and performance, cultural safety, and risks and issues regarding the decriminalisation of public drunkenness and the statewide health-based response.
Victoria Police
- Public Drunkenness Reform Application – used to record data on police interactions with people who are intoxicated in public.
- Chief Commissioner’s Instruction – Persons Drunk in Public
Outcomes
- Aboriginal leadership and membership of the Implementation Monitoring and Oversight Group.
- Aboriginal Justice Caucus involvement in the independent evaluation being conducted by Monash University researchers. The evaluation will examine the extent to which up charging may be occurring (in line with part b) of this recommendation) along with other potential justice impacts.
- Victoria Police began providing data to the Aboriginal Justice Forum collected via the PDR App.
Community Views
Victorian Aboriginal Legal Service
Victorian Aboriginal Legal Service
Victoria Police must not use alternative powers to undermine the reforms. It is critical that the Victorian Government monitors implementation of the reforms through public and transparent reporting on alternative police powers, including move on powers. (Nerita Waight, CEO)
VALS advocated for greater alignment between the Chief Commissioner’s instructions to police members on information to be recorded in the PDR App and the Monitoring and Evaluation Plan, so that members are directed to record:
- use of move on powers in relation to someone who is intoxicated in public
- use of breach of the peace powers in relation to someone who is intoxicated in public
- use of alternative arrest powers in relation to someone who is intoxicated in public
- any investigations and or charges that follow an incident where police have contact with someone who is intoxicated in public
- escalation and/or use of alternative arrest powers when police are providing transport to a safe place.