In December last year, Aunty Tanya Day’s death in custody came to public attention with the beginning of a coronial inquest into her death. A year earlier, the Yorta Yorta grandmother was kicked off a train from Echuca to Melbourne by a V/Line staff member, who said she was intoxicated and unruly. The staff member also called the police. At Castlemaine, Aunty Tanya was arrested and taken into police custody, where she sustained a brain injury. She died in hospital 17 days later.
That V/Line kicked Aunty Tanya off the train, that the police were called, that she was arrested, that she was not monitored during her custody, that she sustained injuries and that she died – these are all failures of the Victorian state. They are also a failure to fulfil a key recommendation made nearly 30 years ago by the Royal Commission into Aboriginal Deaths in Custody. The commission cited public drunkenness as the most frequent offence committed by those who died in police custody. It recommended the abolition of public drunkenness as a criminal offence.
In 2001, Victoria’s own inquiry into public drunkenness recommended decriminalisation, citing that “for historic, cultural and instrumental reasons the impact of the criminalisation of public drunkenness has a disproportionate effect and impact upon Indigenous communities”. The committee pushed for the establishment of sobering-up centres across the state, including specific centres for Indigenous people, which would form part of a “holistic treatment service”.
And yet, 18 years on, public drunkenness remains a crime in Victoria. Sobering-up centres have lost funding, which the Victorian Aboriginal Legal Service is fighting to regain. Police still have the power to arrest people if they suspect people are drunk in a public place. This suspicion has cost many lives. Coroner Caitlin English echoed this recommendation at a preliminary hearing ahead of the full inquest into Tanya Day’s death, stating, “… I am planning on making a recommendation as part of my recommendations and findings to abolish the offence of public drunkenness under the Summary Offences Act”.
The criminalisation of public drunkenness is strange when you consider the role of alcohol in Australian culture. Since invasion and the establishment of colonies, alcohol has been a staple of public life. By 1850, more than three million litres of beer, wine and spirits had been shipped to Port Phillip in Victoria. And the love affair with alcohol has persevered. Alcohol has been so normalised and celebrated in Australian culture that we have a special place in our collective memories for politicians guzzling beer. It has become tradition. Undoubtedly, Scott Morrison’s advisers have approved of his recent public appearances – sculling beer at the cricket or attempting to pull the perfect beer – all attempts to make the prime minister appear more likeable, more human and more like the average Aussie. This is because our image of the ordinary Aussie is someone who likes to consume alcohol – a lot of it.
Australia, for years, has been among the world’s biggest consumers of beer. The Australian night is filled with drunk people; any walk down Smith, Brunswick or Oxford Street after dark is full of drunk people. Stadiums, clubs, pubs, hens’ nights, office parties, the Melbourne Cup and other public places and events are routinely full of drunk people. We have a cultural obsession with inebriation. So, clearly, it is not public drunkenness that is the issue, it is who is drunk. The continued criminalisation of public drunkenness, and Aboriginal arrests for the offence, highlights an infuriating fact – we are arrested because police want us to be.
In the wake of Aunty Tanya’s death, her family began pushing for the abolition of the offence of public drunkenness and they have amassed a movement of community support. An online and hardcopy petition has been signed by thousands of people. At the recent Laneway Festival, high-profile performers such as Camp Cope and Courtney Barnett used their performances to urge punters to sign the petition.
While the push to decriminalise public drunkenness is crucial and necessary, it is important we don’t see it as a panacea to stopping black deaths in custody. Even in jurisdictions where the law has changed, black bodies are still routinely controlled in public spaces. Public drunkenness was decriminalised in 1974 in the Northern Territory. However, legislation has evolved to maintain the surveillance of black bodies and public drinking. The introduction of the Alcohol Mandatory Treatment Act NT, Alcohol Protection Orders Act NT, and amendments of the Police Administration Act NT have allowed for paperless arrests and protective custody arrests. According to the Human Rights Law Centre, these changes have actually resulted in police having more power to arrest Aboriginal people for public drunkenness.
Across Australia, if it isn’t drinking in public, it is other public order offences – such as offensive language or public nuisance violations – under which Aboriginal people are disproportionately charged. These all come at the discretion of the police officer. As one former officer put it to me regarding public nuisance, “That’s the go-to charge when you want to load them up.” We are entirely at the whim of individual officers. Even in a state such as Victoria, with so-called progressive leaders, the police and protective custody officers have been given more powers and more prisons have been built for children and adults. This will result in further policing of our black bodies in public spaces.
We must reframe the way public drunkenness is viewed. Rather than responding to it as a criminal issue, we must treat it as an issue of health. We already have laws that deal with violence. Clearly, it is not being drunk that is the issue, it is who is drunk. We can no longer be at the whim of police officers who are determined to criminalise us. Officers who see our arrest as the first course of action rather than a last resort. Arrests by police require a police officer’s suspicion, assessment and desire to charge. This has proved a dangerous and life-threatening position for Aboriginal people.
My own family member, Uncle Arthur Moffatt, boarded a train in Gippsland and was kicked off when he missed his stop and made some noise about it. He was arrested for public drunkenness. He was not drunk, he was experiencing hypoglycaemia and died in a Morwell police cell. Aunty Daphne Armstrong was arrested for public drunkenness in Brisbane in 1992. She died at the Brisbane City Watch House from a heart attack. Likewise, she was not drunk. Both were vulnerable and needed medical assistance. Instead, they were arrested.
Cases such as Uncle Arthur Moffatt, Aunty Daphne Armstrong and Aunty Tanya Day highlight the need for public drunkenness to be treated as a health issue rather than a criminal one. If a community-based health alternative had been called, rather than police officers, perhaps my uncle would not have died. Police do not have the expertise or desire to distinguish between intoxication or a health issue. This was also made clear by the death of Ms Dhu at South Hedland police station in 2014. The arresting officer’s request for medical assistance for Ms Dhu was met with anger by her superior, Sergeant Rick Bond, who called Ms Dhu a “junkie”. When Ms Dhu was able to see a doctor, they said she had “behavioural issues”. In reality, she had septicaemia. Ms Dhu’s inquest heard that had she received appropriate medical attention, she would not have died.
State intervention is too often fatal for black people. So, our response to perceived public drunkenness cannot solely rely on state police or hospital staff to make an accurate assessment of us. Naomi Williams, a 27-year-old Wiradjuri woman, died in 2016 after 18 hospital presentations. During her presentations, she would often be referred to drug and alcohol dependency services – despite the fact those services repeatedly said she wasn’t in need of them. During her last presentation to hospital, Williams was given an incomplete assessment and sent away with paracetamol. She died 15 hours later from meningococcal and sepsis.
What we need is scoping and state funding for community-based health and healing-based solutions. We need an alternative response to this health issue because every contact black people have with police – intoxicated or otherwise – is a potential death sentence. It is a risk we demonstrably can’t afford.
So, yes, let’s abolish the crime of public drunkenness. If we are not vigilant, though, the evolution of police powers and harsh and racist application of public order offences will see us end up in the same position. We need community-based approaches. The fight to end black deaths in custody comes down to the fight for black people to be seen as human – human enough to be able to be drunk in public, human enough to be cared for when we are vulnerable by people who respect us, human enough to be given the benefit of the doubt, human enough to deserve to live.
This article was first published in the print edition of The Saturday Paper on Mar 16, 2019 as "Sobering statistics". Subscribe here.