Disadvantage

The Chair’s foreword to the report by the House of Representatives Standing Committee on Indigenous Affairs on food pricing and food security in remote Indigenous communities states

 In early 2020, while many Australians were watching toilet paper supplies disappear from supermarket shelves, stories were emerging of people in remote Aboriginal and Torres Strait Islander communities facing extremely high prices for particular food and grocery items. News outlets reported an iceberg lettuce costing $7.89 and a jar of coffee selling for $55. 

This inquiry was initiated in response to those reports and to other long-standing concerns regarding the availability and affordably of nutritious food in remote communities. 

While there was an answer to each of the reported prices, it also became clear that these stories reflected a persisting disquiet regarding the supply of affordable, nutritious, quality food in many remote Aboriginal and Torres Strait Islander communities. That supply is tenuous and needs to be improved. 

Food security issues for remote Aboriginal and Torres Strait Island communities are not new. For many people living remotely, food security is an annual concern. The supply of quality and affordable food is often unstable due to poor infrastructure, seasonal changes and the high costs of living and operating stores remotely. 

Community stores are not a lucrative business. Stores are operating in situations that are very difficult and where costs are much higher than in urban centres. A broken fridge can’t be quickly and cheaply fixed when the closest fridge repair person is located 200 kilometres up a 4-wheel-drive track. Goods can travel halfway across the country before they arrive at the stores and there is a substantial cost and fragility involved in food supply to remote places. 

However, despite these challenges, the committee also learned that there is a very good story to be told about what happened in remote communities this year during the COVID-19 pandemic. 

In March this year, bio-security zones were created to keep very vulnerable remote communities safe from the coronavirus pandemic. Those bio-security zones meant more people returning to live in remote communities without the capacity to travel into regional centres for supplies. Population influx, coupled with state border closures, heightened demand on stockpiles and social distancing affecting manufacturing, put additional pressure on the already fragile supply chain. 

With a potential new crisis emerging, industry, NGOs, communities and governments of all stripes collaborated with stores to ensure food supply was maintained despite these myriad pressures. 

The advent of the Supermarket Taskforce and the Food Security Working Group allowed for essential collaboration and solution-driven planning to occur. The committee heard stories of food being donated, new initiatives like food baskets being developed at pace and competitors helping one another remove blockages to ensure the problems were resolved. 

We have an opportunity to harness some of the lessons of the Supermarket Taskforce and the Food Security Working Group and can build on the networks and goodwill generated through that process. There is an opportunity to make some important changes that could make a positive difference to the food security and health outcomes experienced by people in remote Aboriginal and Torres Strait Islander communities. This report recommends several measures to build on the cooperative momentum of 2020. 

We also recommend measures to support local food supply, to improve governance and oversight and to ensure competition between management groups continues. 

Finally, it is important to acknowledge that this is the third time this matter has been examined in recent years and none of those inquiries has resolved the concerns about food prices and security that have been expressed. 

Consequently, complaints concerning food pricing need to be examined by a body that is equipped to do the thorough, forensic examination that will satisfy the public. That is why the Committee is recommending these matters be investigated by the ACCC undertaking an enhanced market study which they have never done in remote communities. In addition, real time price monitoring and much better governance training at the local level should help bolster public confidence.

The terms of reference for the Committee's inquiry were  

[to] identify and report upon factors contributing to higher prices and situations where prices are considered unreasonable and in particular investigate whether there is price gouging in any remote community stores. This investigation should pay particular attention to the availability and pricing of fresh and healthy foods in remote community stores. The Inquiry will also consider licensing and regulation as well as the governance arrangements for remote community stores across Australia, and what action, if any, that the Australian Government and State and Territory governments could take to address price gouging in Remote communities. 

The Inquiry should consider, report and where appropriate make recommendations on:

1. The licensing and regulation requirements and administration of Remote Community stores; 

2. The governance arrangements for Remote Community stores; 

3. Comparative pricing in other non-Indigenous remote communities and regional centres; 

4. Barriers facing residents in Remote Communities from having reliable access to affordable fresh and healthy food, groceries and other essential supplies; 

5. The availability and demand for locally produced food in Remote Communities; 

6. The role of Australia's food and grocery manufacturers and suppliers in ensuring adequate supply to Remote Communities, including: a. the volume of production needed for Remote Communities; b. challenges presented by the wet season in Northern Australia as well as any locational disadvantages and transport infrastructure issues that might be relevant; c. geographic distance from major centres;

7. identifying pathways towards greater cooperation in the sector to improve supply;  

8. The effectiveness of federal, state and territory consumer protection laws and regulators in: a. supporting affordable food prices in Remote Communities particularly for essential fresh and healthy foods; b. addressing instances of price gouging in Remote Communities; and c. providing oversight and avenues for redress; 

9. Any other relevant factors.

The recommendations in the report are 

R 1 

The Committee recommends that the Treasurer direct the Australian Competition and Consumer Commission to undertake an enhanced market study into food and grocery prices in remote community stores. This study should make recommendations about how to increase competition in remote areas and put downward pressure on food prices. The study should also identify better complaints handling mechanisms for people in remote communities, any changes to the consumer protection laws that might need to be made to address price gouging in these communities, which the current laws do not address, and a consideration of the impact, if any, of rebates. The study should also recommend ways in which remote community members can be better informed of their rights as consumers, especially the right to make complaints. 

R 2 

The Committee recommends that the Australian Government establish a real-time price monitoring and disclosure mechanism through a point of sale data system across all remote community stores. Such a system should allow for real time information about changes in price and patterns of consumption and supply. The price monitoring system should be reported and made publicly available by the NIAA. 

R 3 

The Committee recommends that the Australian Government investigate the need for upgrading the infrastructure and shipping lanes in the Torres Strait and coastal areas of the Northern Territory, and road infrastructure into remote communities, to improve the supply of food to remote First Nations communities. 

R 4 

The Committee recommends that the Australian Government encourage the establishment of more local distribution centres by wholesalers in major regional centres closer to remote communities. 

R 5 

The Committee recommends that an independent review of the outcomes and quality of governance training conducted by ORIC be undertaken so that in future training be available in language, and that evidence be collected that those who have completed the training actually understand their duties and obligations as directors. Completion of initial governance training and some level of continuing professional development for directors and staff should also become part of the national licensing scheme. 

R 6 

The Committee recommends that the Australian Government institute a national scheme of licensing and inspection of remote community stores. 

R 7 

The Committee recommends that the Stronger Futures in the Northern Territory Act 2012 be amended to remove the requirement that stores be given notice before inspections. 

R 8 

The Committee recommends that remote stores provide material to inform communities on their use of rebates. 

R 9 

The Committee recommends as a means of applying competitive pressure that at the expiration of store managment contracts, new contracts should ideally be open to competitive tender. 

R 10 

The Committee recommends that the Australian Government, in partnership with the States and Territories and First Nations people, develop a strategy for food security and nutrition for remote First Nations communities. 

R 11 

The Committee recommends that the Food Security Working Group that was established during the COVID-19 pandemic be maintained and tasked with:  identifying improvements to the logistics of food and grocery supply into remote communities  assessing the viability of warehousing greater volumes of food and groceries in more remote parts of the supply chain  identifying ways to improve the replenishment cycle of food and groceries in remote community stores  ensuring food supply during pandemics, natural disasters and seasonal changes  identifying ways which the major supermarket chains can help play a role in driving down food prices and guaranteeing supply for remote communities  identifying ways in which Outback Stores might assist independent community stores with the supply of food and grocery stock. 

R 12 

The Committee recommends that the Australian Government support local food production in remote communities to meet food safety standards and other regulations in order to encourage the greater use of locally sourced food. 

R 13 

The Committee recommends that the Australian Government introduce a remote community competitive grants program, with a focus on:  access and continuity of power  improving cold and dry storage in communities  promoting and supporting local food production schemes such as mobile abattoirs, fishing enterprises and community gardens. 

R 14 

The Committee recommends that community stores be eligible to access and apply for any grants that might be available to other essential services in remote communities. 

R 15 

The Committee recommends that the Australian Government consult with the relevant State and Territory Government agencies to develop solutions to deliver reliable electricity to remote communities. 

R 16 

The Committee recommends that the NIAA consult with the relevant stakeholders to ensure that Aboriginal and Torres Strait Islander residents of town camps can receive food deliveries from supermarkets in their vicinity.

Protectionism

'Privacy Protection(ism): The Latest Wave of Trade Constraints on Regulatory Autonomy' by Svetlana Yakovleva in (2020) 74(2) University of Miami Law Review comments 

Countries spend billions of dollars each year to strengthen their discursive power to shape international policy debates. They do so because in public policy conversations labels and narratives matter enormously. The “digital protectionism” label has been used in the last decade as a tool to gain the policy upper hand in digital trade policy debates about cross-border flows of personal and other data. Using the Foucauldian framework of discourse analysis, this Article brings a unique perspective on this topic. The Article makes two central arguments. First, the Article argues that the term “protectionism” is not endowed with an inherent meaning but is socially constructed by the power of discourse used in international negotiations, and in the interpretation and application of international trade policy and rules. In other words, there are as many definitions of “(digital) protectionism” as there are discourses. The U.S. and E.U. “digital trade” discourses illustrate this point. Using the same term, those trading partners advance utterly different discourses and agendas: an economic discourse with economic efficiency as the main benchmark (United States), and a more multidisciplinary discourse where both economic efficiency and protection of fundamental rights are equally important (European Union). Second, based on a detailed evaluation of the economic “digital trade” discourse, the Article contends that the coining of the term “digital protectionism” to refer to domestic information governance policies not yet fully covered by trade law disciplines is not a logical step to respond to objectively changing circumstances, but rather a product of that discourse, which is coming to dominate U.S.-led international trade negotiations. The Article demonstrates how this redefinition of “protectionism” has already resulted in the adoption of international trade rules in recent trade agreements further restricting domestic autonomy to protect the rights to privacy and the protection of personal data. The Article suggests that the distinction between privacy and personal data protection and protectionism is a moral question, not a question of economic efficiency. Therefore, when a policy conversation, such as the one on cross-border data flows, involves non-economic spill-over effects to individual rights, such conversation should not be confined within the straightjacket of trade economics, but rather placed in a broader normative perspective. Finally, the Article argues that, in conducting recently restarted multilateral negotiations on electronic commerce at the World Trade Organization, countries should rethink the goals of international trade for the twenty-first century. Such goals should determine and define the discourse, not the other way around. The discussion should not be about what “protectionism” means but about how far domestic regimes are willing to let trade rules interfere in their autonomy to protect their societal, cultural, and political values.

Repair Right discussion paper

The Productivity Commission has released a 39 page 'Right to Repair Issues Paper' as part of the inquiry noted here. 

The 'Information Requests' in that paper are as follows  

IR 1 

What would a ‘right to repair’ entail in an Australian context? How should it be defined? 

IR 2 

a) What types of products and repair markets should the Commission focus on? 

b) Are there common characteristics that these products share (such as embedded technology and software or a high/low degree of product durability), and which characteristics would allow policy issues to be considered more broadly? 

c) If there are particular products that the Commission should focus on, what are the unique issues in those product repair markets that support such a focus? 

IR 3 

a) Do the consumer guarantees under the ACL provide adequate access to repair remedies for defective goods? If not, what changes could be made to improve access to repair remedies? Are there barriers to repairing products purchased using new forms of payment technologies, such as ‘buy now pay later’? 

b) Is the guarantee of available repair facilities and spare parts effective in providing access to repair services and parts? Or is the opt out clause being widely used, making the guarantee ineffective? 

c) Should consumer guarantees seek to balance the broader societal costs of remedy choices (such as the environmental impacts of replacements) with consumer rights, and if so how? For example, should repairs be favoured as a remedy? 

d) Are consumers sufficiently aware of the remedies that are available to them, including the option to repair faulty products, under the ACL’s consumer guarantees?

• If not, would more information and education be a cost effective measure to assist consumers understand and enforce guarantees? What would be the best way to deliver this information? What other measures would be more effective? 

IR 4 

a) The Commission is seeking information on the nature of repair markets in Australia, including detailed data on the repair markets for specific products, covering:

• market size — by employment, revenue, number of businesses, profit margins 

• market composition — such as market share between authorised, independent and DIY repairers.

b) Is there any evidence of a difference in quality, safety or data security between authorised repair networks and independent repairers? Are there ways to address concerns around quality, safety or data security while promoting a vibrant independent repair market? 

c) Are there available examples of the contracts between OEMs and authorised repairers? Do these contracts limit effective competition in repair markets (such as by limiting the number and reach of authorised repairers or requiring authorised repairers to not be authorised by a competing brand)?

• What is the process to become authorised? Is it open and competitive? 

d) Are there specific examples or other evidence of practices by OEMs or their authorised repairers that create barriers to competition in repair markets?

• Do other factors also create barriers to competition in repair markets, such as short sighted consumer behaviours, switching costs, poor information availability or consumer lock in? 

e) What is the relationship between the intensity of competition in the primary product market and the risk of consumer harm from a lack of competition in repair markets? Can competitive primary markets compensate for non competitive repair markets?

• Is an absence of effective competition in the primary market a necessary condition for consumer harm from non competitive repair markets? 

• To what extent would measures that enhance competition in the primary market address concerns about a lack of competition in repair markets? 

f) Are the restrictive trade practices provisions of the CCA (such as the provisions on misuse of market power, exclusive dealing or anti-competitive contracts) sufficient to deal with any anti competitive behaviours in repair markets? 

g) What policy changes could be introduced if there is a need to increase competition in repair markets and improve consumer access to, and affordability of, repairs?

• What are the costs and benefits of any such proposal to the community as a whole? How does it balance the rights of manufacturers and suppliers, with those of consumers and repairers? 

IR 5 

a) To what extent do current IP laws already facilitate repairs by consumers or independent third parties (e.g. the spare parts defence under the Design Act)? 

b) Are there any aspects of IP laws where consumers’ rights with respect to repairs are uncertain? 

c) Do current IP protections (e.g. intellectual property rights, technological protection measures, end user licencing agreements) pose a significant barrier to repair in Australia? If yes, please comment on any or all of the following:

• the specific IP protections that prevent consumers from sourcing competitive repairs and/or inhibit competition in repair markets 

• the types of products or repair markets these barriers mainly affect 

• the prevalence of these barriers 

• the impacts of these barriers on third party repairers and consumers (e.g. financial cost, poorer quality repairs) (continued next page) 

• options for reducing these barriers and their associated benefits, costs and risks (including potential impact on market offerings). 

d) In what ways might government facilitate legal access to embedded software in consumer and other goods for the purpose of repairs? What are the pros and cons of these approaches? 

IR 6 

a) What evidence is there of planned obsolescence in Australian product markets? Do concerns about planned obsolescence principally relate to premature failure of devices or in them being discarded still working when more attractive products enter the market? 

b) How can the Commission distinguish between planned product obsolescence and the natural evolution of products due to technological change and consumer demand? 

c) How does planned obsolescence affect repairers, consumers and the broader community in Australia? 

d) What measures do governments currently use to prevent planned obsolescence or mitigate its effects (in Australia and overseas)? How effective are these measures? 

e) What are the benefits, costs and risks of Australia adopting measures similar to those currently used overseas, such as product design standards and reparability ratings? 

f) Do consumers have access to good information about durability and reparability when making purchases? If not, how could access to information be improved? 

IR 7 

a) What data are available on the amount of e waste generated in Australia?

• What data is there on the composition of e waste in terms of particular materials (such as hazardous materials) by product type? 

• How does hazardous e waste compare to hazardous general waste in its prevalence and risks? Is there merit in distinguishing between hazardous e waste and non hazardous e waste? And if so, how could this be done in practice? 

b) What estimates are available on the costs of e waste disposal on the environment, human health and social amenity, in Australia and internationally?

• How do the impacts differ by disposal type, or by the type of product or hazardous material? 

c) How much of Australia’s e waste is shipped overseas for recycling? Is there evidence of circumstances where this creates problems for recipient countries?

• Are there barriers to the expansion of domestic recycling facilities or the adoption of new recycling technologies in Australia (such as plasma arc incinerators)? 

d) What are Australia’s current policy settings for managing the potential environmental and health effects of e waste (such as landfill bans, the National Television and Computer Recycling Scheme or Mobile Muster)? Are these policy settings broadly right — that is, are they proportional to the impacts of e waste on the community? 

e) How can a right to repair policy further reduce the net costs of e waste in Australia, and would such an approach be an effective and efficient means of addressing the costs of e waste to the community? 

IR 8 

a) What policy reforms or suite of policies (if any) are necessary to facilitate a ‘right to repair’ in Australia? 

b) Are there any other barriers to repair and/or policy responses that the Commission should consider? 

c) What are the costs and the benefits of the various policy responses that have been proposed to facilitate repair (such as those outlined in table 1)? 

d) Are there other international policy measures or proposals that the Commission should consider as part of this inquiry?

Insurance

'Regulating the Use of Genetic Information in the Life Insurance Industry' by Sara Golru in [2020] 7 UNSW Law Journal comments 

The Australian life insurance industry has been the subject of extensive media and academic criticism due to their treatment of genetic information in the underwriting process. As the field of genetics advances, the potential for genetic discrimination also increases. The nature of this discrimination can be crudely summarised in the statement of a member of the Australian insurance industry, who informed a carrier of the BRCA1 gene mutation that ‘if you were a horse, we wouldn’t bet on you because we know you wouldn’t finish the race’. The insurer dismissed the relevance of the carrier’s significant efforts to reduce her risk by undergoing preventative surgery, in the form of a double mastectomy as well as the removal of her fallopian tubes and one of her ovaries. 

Similarly, a life insurance applicant who tested positive for Lynch syndrome was consistently denied coverage, despite undergoing regular colonoscopies and preventative surgery. Federal Labor MP Matt Keogh noted that an oncologist informed him that he spent more time discussing the insurance ramifications of genetic tests with his patients than the health ramifications. These cases have prompted politicians, medical and legal professionals as well as academics to call for greater claims process transparency and government oversight of the life insurance industry. 

Genetic test results cannot affect private health insurance in Australia, as it is community risk rated under the Private Health Insurance Act 2007 (Cth). Consequently, private health insurers are required to offer the same premiums to all applicants for equivalent policies and are prohibited from discriminating on the basis of health or other information. However, life insurance is mutually rated so insurers classify individuals according to their personal risk. This regime inevitably creates great potential for genetic discrimination, as genetic results can be used for underwriting life insurance in Australia, with little consumer transparency or government oversight. It is true that the use of genetic information has been relatively rare in Australian life insurance. However, it must also be acknowledged that genetic advancements are occurring at a rapid rate and genetic testing is becoming increasingly common.  In order to harness the true potential of genomics in healthcare, we need to avoid impediments to the uptake of genetic testing and participation in genetic research. 

From 2016 to 2018, the Australian Parliamentary Joint Committee on Corporations and Financial Services conducted an inquiry into the life insurance industry.  Following 77 submissions and seven hearings, the Committee made a number of recommendations including: strengthening consumer protections and regulatory oversight of the industry; greater transparency of remuneration, commissions, payments and fees; appropriate access to personal medical and genetic information and; fairer claims handling practices.  In particular, Recommendation 9.1 suggested that the Financial Services Council, in consultation with the Australian Genetic Non-Discrimination Working Group, assess the consumer impact of imposing a moratorium on life insurers using predictive genetic information, unless the consumer provides genetic information to a life insurer to demonstrate that they are not at risk of developing a disease. 

As a result of this recommendation, the Financial Services Council (‘FSC’) imposed a moratorium on genetic tests in life insurance from 1 July 2019.13 Parts II and III of this article will review the current Australian and international legal frameworks governing the use of genetic information in life insurance. Part IV will highlight policy concerns and Part V will provide recommendations for reform. 

Intoxication

The Seeing the Clear Light of Day: Expert Reference Group on Decriminalising Public Drunkenness report in Victoria states 

 There is a clear, compelling and urgent imperative to overhaul Victoria’s current approach to people who are intoxicated in public. The current punitive, criminal justice led response to intoxicated people is unsafe, unnecessary and inconsistent with current community standards. A safer, sensible health- based approach is required that ensures the health and safety of all Victorians, particularly our most vulnerable. 

Ever since the Royal Commission into Aboriginal Deaths in Custody, calls for the decriminalisation of public drunkenness in Victoria have been strong, sustained and spirited. Numerous reports during the past 30 years have added to the Royal Commission’s clear call for decriminalisation, including the Drugs and Crime Prevention Committee’s Inquiry into Public Drunkenness in 2001 and the Victorian Parliament’s Implementation Review of the Recommendations from the Royal Commission into Aboriginal Deaths in Custody in 2005. 

While the numerous recommendations have been gathering dust, the devastating human impacts of the criminalisation of public drunkenness have continued. The death in police custody of Tanya Day – a much-loved mother, grandmother and a proud Yorta Yorta woman – has been a clarion call for change. Ms Day’s story embodies the tragic human consequences of the continuing criminalisation of public drunkenness in Victoria – a punitive scheme that has widespread unjust, discriminatory and intergenerational impacts on vulnerable Victorians. 

Very regrettably, Ms Day’s story reflects a much larger, systemic issue across Victoria. The human impacts of the criminalisation of public drunkenness are borne out clearly in the data. What the data tells us is that the criminalisation of public drunkenness discriminates against vulnerable people, and in particular Aboriginal and/or Torres Strait Islander people, Sudanese and South Sudanese communities, people experiencing homelessness, substance abuse and people experiencing mental health. 

What the data also tells us is that this reform is eminently achievable. It paints a clear picture that: • the total numbers of incidences of public intoxication are very low, at 159 per week • there is a significant ’low intensity’ cohort of people, with the vast majority of people (84 percent) entering custody in these circumstances only once. However, there is also a small ’high intensity’ cohort (6.5 percent) who are responsible for over a quarter of all public intoxication offences; and • there are a small number of ’high demand’ Local Government Areas (LGAs) where a higher number of public intoxication offences occur. 

While the imperative for change is overwhelming, we are convinced that the changes required to give effect to a health-based response are not. Our work over the last year tells us that there is a clear path away from criminalisation and towards an effective health-based response to public intoxication. 

Based on data, consultations with the community and experts and drawing on the salient lessons of decriminalisation in other jurisdictions, this report outlines our Proposed Health Model for the decriminalisation of public drunkenness in Victoria. 

The design of a new health-based model to respond to public intoxication must begin with the fundamental premise that no one should be placed into a police cell simply because they are intoxicated in public. 

In order to eliminate the use of police cells for public intoxication, there must be safe places available that are accessible and appropriate to meet the health and safety needs of people who are intoxicated. We adopt a ‘supply and demand’ framework to identify the service system response that is required, based on current data on public drunkenness offences being the most appropriate indicator of expected demand for placements. 

This report outlines the public health approach that is required to achieve this transition. Our Proposed Health Model comprises five key stages: • First response • Transportation to a place of safety • Meeting the immediate health needs of an intoxicated person • Providing health and social care pathways for high needs individuals • Broader prevention strategies. 

First response 

An effective health-based approach demands a cultural shift in the characterisation of intoxication as a health rather than a law enforcement issue. The primary First Responders should be personnel from health or community services organisations, such as outreach services (including existing outreach programs associated with homelessness services), alcohol and other drugs (ADO) services and Aboriginal Community Controlled Organisations (ACCOs). While emergency services such as Victoria Police and Ambulance Victoria will play an important role, a range of health-based services must be supported to meet the levels of expected demand across the state. 

Transport 

The preferred and default position is that an intoxicated person organises his/her own transport or does so with the assistance of family or friends. In situations where this is not possible due to health or safety risks, a range of new transport options will be required. Victoria Police will only have a role to play in the transportation of an intoxicated person when there are no other options available. The new range of transport options, in combination, will need to be capable of responding to the expected demand based on geography, time distribution and particular individual circumstances, including health needs and cultural safety. 

Places of safety 

Places of safety are essential to ensuring the health and wellbeing needs of intoxicated people are addressed. Depending on the circumstances, intoxicated people who pose a safety risk to themselves and/or others should, in general, be transported to a private residence, an emergency department or urgent care centre if they require urgent medical care, or a sobering service if they require a short recovery period and cannot be cared for elsewhere. 

New sobering services are integral to our Proposed Health Model. Based on the data, seven new sobering services in high demand areas will provide the capacity to meet the variances in demand across the state. In regional and rural locations where there is much lower demand, the best health response solutions should be locally devised involving engagement of health services and the communities they serve. The expansion of the sobering services network should be combined with modular ’pop-up’ services to expand capacity in a rapid and flexible manner to respond to demand associated with specific sporting or cultural events. 

Health and social care pathways and broader prevention strategies 

A significant minority of people who present intoxicated in public more frequently are likely to be experiencing complex health and welfare challenges that are contributing to their drinking patterns. Increased access to follow-up or ongoing support is a key element of an effective public health approach to public intoxication. This requires improved service pathways and targeted approaches, such as filling the gaps in AOD services for Aboriginal and/or Torres Strait Islander people. 

Under a public health approach, broader prevention strategies also play a valuable and effective role in reducing the impacts of high-risk drinking by addressing underlying causes. 

The path forward 

The major thrust of our recommendations is clear – an effective health-based service system response to public intoxication is absolutely essential for the proposed reforms to be effective. Cultural safety considerations must be at the core of both design and implementation. This requires ongoing consultation and co-design with health services and their staff and with particularly affected communities, such as Aboriginal and CALD communities, to ensure that localised responses are developed that are tailored and effective. 

In light of the complexity involved in the development of the Proposed Health Model, we recommend that a phased implementation take place over a two-year transition period. This will enable the model to be trialled and statewide service infrastructure put in place before full decriminalisation takes effect. 

With detailed attention given to implementation of our Proposed Health Model, we are confident that a shift from a criminal justice approach to a health-based model is both realistic and attainable. 

While the journey to decriminalisation in our state has been long and painful, Victoria now has the opportunity to leapfrog other Australian states and territories and be at the forefront with the development of an innovative and transformative health-based approach to public intoxication. 

Once the shackles of a criminal justice approach to public intoxication have been shed, there can be no going back. The path ahead lies in a comprehensive health-led response that recognises public intoxication for what it is – a public health issue and not one that can be addressed by a blunt and reactive criminal justice approach. 

There is strong community support. The Victorian Government’s commitment is clear. Now is the right time for this long overdue reform to begin. Now is the time to see the clear light of Day.

The recommendations are 

The ERG’s recommendations for a public health response to public intoxication cover the following: • a public health response to public intoxication • various phases required to adopt the ERG’s Proposed Health Model; and • key implementation considerations relating to the successful transition away from the current criminal justice response. 

The journey to decriminalisation 

1. The Expert Reference Group acknowledges the Victorian Government’s acceptance of the coronial findings made by the Deputy State Coroner in the Inquest into the Death of Tanya Day and strongly encourages their full implementation by the Attorney-General, Chief Commissioner of Victoria Police, CEO of V/Line and Secretary of the Department of Justice and Community Safety (DJCS). 

Implementing a public health approach to public intoxication 

2. The Victorian Government repeals the offence of public drunkenness in sections 13, 14 and 16 of the Summary Offences Act 1966 to achieve the decriminalisation of public drunkenness. 3. The Victorian Government ensures no person is detained in a police cell solely for being intoxicated in public. 

4. The Victorian Government should adopt a ‘supply and demand’ approach that identifies the current number of public drunkenness offences as the most likely indicator of the number of placements that that will be required in sobering and other health services under the Proposed Health Model. 

5. The Victorian Government ensures the implementation of the Proposed Health Model takes into account the need for holistic health-based responses that are also capable of responding to drug use and experiences of mental health, including dual diagnosis, where possible. 

6. The Victorian Government undertakes further consultation to ensure that the management of intoxicated people, who have committed criminal offences, and are incarcerated in police cells can be more effectively supported and comply with the mandatory terms of Victoria Police’s governing policy and procedures, including proper medical supervision and access to health treatment where required. 

Stage 1: First responders Roles and functions of first responders 

7. All first responders under the public health model (whether justice-based or health-based first responders) perform their respective roles and functions in such a way as to ensure the health and safety of individuals who are intoxicated in public, consistent with the principles underpinning the public health model. 

First response services and agencies 

8. The Victorian Government considers how the Emergency Services Telecommunications Authority (ESTA) process can change regarding determining what tasks can be referred to certain response agencies in order to promote a health-based response to incidents of public intoxication. This should include how such alternate agencies can be facilitated through such a process – having regard to the contractual arrangements ESTA has with emergency services agencies. 

Consent and powers of Victoria Police Threshold for police powers 

9. The Victorian Government establishes a legislative basis for Victoria Police to detain an intoxicated individual in strictly limited circumstances, including that: a) the Victorian Government defines intoxication within the legislation as ‘affected or apparently affected by alcohol or a drug or other substance to such an extent that there is a significant impairment of judgement or behaviour’ b) the Victorian Government limits the threshold for police with regards to someone who is intoxicated to ’serious and imminent risk of significant harm to the intoxicated individual or other individuals’ c) the Victorian Government explores the appropriate assessment of this threshold which should have an objective element, such as a reasonable person test. 

Strict limits to police powers 

10. The Victorian Government establishes a legislative basis for Protective Services Officers (PSOs) within Victoria Police be given the power to detain an intoxicated individual in an existing designated place and is at serious and imminent risk of significant harm to themselves or others, recognising the safeguards contained in other recommendations. 

11. The Victorian Government does not extend the power to detain an intoxicated individual who is at serious and imminent risk of significant harm to themselves or others to any other cohort. 

12. The Victorian Government legislates to ensure detention ceases at the moment that the threshold of serious and imminent risk is no longer met, whether this is due to a change in the environment or the person’s personal circumstances (e.g. their degree of intoxication has sufficiently decreased). 

13. The Victorian Government limits the power to detain an intoxicated individual who is at serious and imminent risk of significant harm to themselves or others for no longer than 60 minutes. Any exception to this time limit required to arrange a safe placement should require the authority of a Divisional Patrol Supervisor or Inspector. 

14. The Victorian Government does not establish a specific offence as a result of the establishment of police powers to detain for the purpose of making inquiries to identify a place of safety for an intoxicated person. 

15. The Victorian Government implements a review process for any charges laid in relation to assault police arising from attempts to escape by a superior officer, such as an Inspector. 

Conditions of detention and use of force 

16. The Victorian Government takes steps to ensure that in accordance with the Victorian Charter of Human Rights and Responsibilities Act 2006, Victoria Police exercise their powers to give effect to the least restrictive means of achieving their objective, in terms of both the decision to detain and the nature of restraint employed. 

17. The Victorian Government ensures Victoria Police takes steps to ensure the full protection of the health of persons in their custody and in particular, shall take immediate action to secure medical attention whenever required. 

18. The Victorian Government explores and consults with relevant stakeholders on how to ensure treatment during and conditions of detention of intoxicated people are consistent with relevant state and international human rights obligations and principles. This includes ensuring effective independent oversight of the detention of intoxicated people that is consistent with the Optional Protocol to the UN Convention against Torture (OPCAT). 

19. Victoria Police takes steps to ensure officers use force only when strictly necessary, and the force used must be proportionate to the circumstances. The degree and nature of the force used must account for the fact that the purpose of the power to detain is to keep the person safe from harm. Thus, any use of force must be used by exception and the force used itself minimal. 

Limits on police discretion 

20. The Victorian Government creates comprehensive regulations, guidelines, policies and procedures on the operationalisation of the legislation, to ensure police discretion is applied appropriately and reasonably to all members of the community. 

21. The Victorian Government establishes legislation to ensure police discretion in assessing whether a location is a safe place is limited, including but not limited to risk of family violence and instances where the intoxicated person is behaving or is likely to behave so violently that a responsible person would not be capable of taking care of and controlling them. 

Training 

22. Victoria Police provides police officers and PSO with training on the legislative amendments, regulations, guidelines, policies and procedures and be provided ongoing refresher training. 

23. Victoria Police provides police officers and PSO with training on systemic racism, unconscious bias, culturally appropriate service delivery, effective communication, de-escalation and conflict resolution, and be provided ongoing refresher training. 

24. Victoria Police provides police officers and PSO with training on mental health and disability and be provided with ongoing refresher training. 

Record keeping obligations of police 

25. Victoria Police keeps detailed records of the enquiries they make in relation to locating a safe place for the person, including any reasons for concluding that the location is not a safe place, such as risk of family violence. 

Publicly available information 

26. Victoria Police ensures guidelines, policies, procedures and training and other similar materials are publicly available. 

27. The Victorian Government considers making disaggregated data relating to police assistance provided with consent, and police intervention without consent, publicly available. This information should include, but not be limited to, information with regards to whether people are Aboriginal and/or Torres Strait Islander, CALD status, homelessness, gender, disability and age. 

28. The Victorian Government implements public reporting on the exercise of new police powers and other relevant powers that may be used more frequently subsequent to the reform (e.g. move on powers), as well as arrests for other minor offences. 

Internal police oversight 

29. Victoria Police ensures authorisation of any charges that arise from an incident of public intoxication should be authorised by an Inspector. 

Independent oversight 

30. Victorian Government, in consultation with the Victorian Aboriginal Legal Service and Victoria Police, considers the introduction of a mandatory requirement that where an intoxicated Aboriginal and/or Torres Strait Islander person is detained and/or transported for their safety by Victoria Police they be subject to sections 464AAB and 464FA of the Justice Legislation Miscellaneous Amendment Act 2018. 

31. The Victorian Government empowers an oversight body, such as the Victorian Ombudsman, to adjudicate complaints and conduct investigations in relation to the implementation and operation of these reforms by police. This should include oversight of up-charging practices by police, and the treatment of people detained and conditions of detention during transport. 

Accountability for police negligence and abuse of power 

32. The Victorian Government ensures any abuse of power by police to circumvent the limitations on powers to detain an intoxicated person must be treated seriously and they should be held accountable. 

33. The Victorian Government undertakes further research and consultations to establish an offence in relation to negligent conduct when detaining an individual who is intoxicated. 

Stage 2: Transport to a place of safety 

Guaranteeing transport coverage and availability 

34. The Victorian Government supports outreach teams and sobering services to have a transport capability attached to their service or work together with separate transport teams to achieve the most effective and efficient management of demand. 

35. The Victorian Government ensures that the proposed implementation phase gives local areas an opportunity to test a range of low-demand transport models, including the identification and development of local partnerships. 

36. The Victorian Government ensures that the implementation phase monitors the impact on police and ambulance emergency services, including impact on response time performance measures. 

Consent and powers 

37. The Victorian Government establishes a legislative basis for Victoria Police to transport an intoxicated individual to a place of safety in strictly limited circumstances, including that: a) there be a legislative obligation that police exhaust all other avenues by which an intoxicated person could be transported to a safe place, and that police transport be a last resort b) the Victorian Government does not establish a specific offence as a result of the establishment of police powers to transport intoxicated individuals to a place of safety c) the Victorian Government ensures that all limits, thresholds and accountability measures in relation to the power to apprehend and detain, as outlined in Part 7 of this report, apply to the exercise of the limited power to transport intoxicated individuals to a place of safety. 

Transport safety 

38. The Victorian Government establishes a transport safety standard to ensure the safe transport of intoxicated people. 

Stage 3: Places of safety 

39. The Victorian Government ensures intoxicated people who pose a safety risk to themselves and/or others should, in general, be transported to one of three safe place locations to sober up, including to: a) their home or other private residence where it is determined that the individual is at low- risk and can be adequately and safely cared for by family or friends b) an emergency department or rural trauma and urgent care centre where it is determined the individual requires urgent medical assessment and/or care; or c) a health or sobering service where it is determined the individual does not require emergency care but still requires a short period of recovery and detoxification and/or cannot be cared for safely elsewhere. 

40. The Victorian Government ensures that a home or other safe private residence remain the preferred and default safe place option to assist people with sobering needs. Wherever possible and appropriate, an intoxicated person should be safely cared for by family or friends in order to minimise the impost on health services. Additionally, people who reside alone should not by default be taken to a sobering service simply because they do not have someone to care for them. 

41. The Victorian Government ensures the key elements of intake, assessment, monitoring, further assessment and intervention form the model of care for sobering services in Victoria that comprises: a) outreach and transport services as a key element of a model of care for sobering services in Victoria b) the workforce for sobering services should be multidisciplinary and at a minimum including a health practitioner, such as a registered nurse, and reflect the profile and the needs of the population and region it serves c) a staff to client ratio between 1:6 and 1:8, which would be a reasonable starting point subject to detailed implementation planning for each location and any variations to a core model. 

42. The Victorian Government considers modular health spaces as an infrastructure approach to trialling heath responses as part of the proposed implementation phase, given they are an increasingly accepted part of the health infrastructure mix, offering expanded capacity that can be deployed rapidly and flexibly to meet need. 

43. The Victorian Government expands the Mental Health and Alcohol and Other Drug (ADO) Hubs model of care to enable them to provide sobering services as part of their model of care. This may require additional government investment above that initially allocated. 44. The Victorian Government supports the re-location and substantial expansion of Ngwala Willumbong Sobering Service to service Melbourne’s northern region which will require additional government investment. 

45. The Victorian Government considers whether the rural trauma and urgent care centres could be an effective option for provision of sobering services, and if so, infrastructure may need to be boosted to provide dedicated sobering up placements, where required. 

46. The Victorian Government enhances the capability of the existing health system in areas of low demand in regional and rural Victoria to enable medically supervised sobering up placements. 

47. The Victorian Government establishes both permanent and ’pop-up’ sobering services in LGAs with high demand. The permanent services should operate 24-hours a day seven days a week, with capacity to scale up services at peak times. 

Consent to medical treatment 

48. The Victorian Government establishes a legislative basis for medical practitioners to apprehend or detain an intoxicated individual, where they do not consent to treatment, in strictly limited circumstances, including that: a) the Victorian Government defines intoxication within the legislation as ‘affected or apparently affected by alcohol or a drug or other substance to such an extent that there is a significant impairment of judgement or behaviour’ b) the Victorian Government ensures that limits for the threshold for medical intervention with regard to someone who is intoxicated is serious and imminent risk of significant harm to the intoxicated individual or other individuals c) the Victorian Government explores the appropriate assessment of this threshold which should have an objective element, such as a reasonable person test. 

Safeguards 

49. The Victorian Government legislates to ensure detention ceases at the moment that the threshold of serious and imminent risk is no longer met, whether this is due to a change in the environment or the person’s personal circumstances (e.g. their degree of intoxication has sufficiently decreased). 

50. The Victorian Government ensures health practitioners are required to regularly assess the ongoing need for detention, including upon admission if detained during transport and through regular assessments of whether informed consent can be secured. 

51. The Victorian Government ensures detention for the purposes of the sobering up of an intoxicated person should be a last resort and is limited by appropriate safeguards. 

52. The Victorian Government considers the matters highlighted in the Restrictive Interventions in Victorian Emergency Departments: A Review of Current Clinical Practice commissioned by the Department of Health and Human Service must be addressed by the Victorian Government. 

53. The Victorian Government ensures medical practitioners exercise their powers to give effect to the least restrictive means of achieving their objective, in terms of both the decision to detain and the nature of the restraint, in accordance with the Victorian Charter of Human Rights and Responsibilities Act 2006. 

54. The Victorian Government implements robust safeguards, including comprehensive legislation, regulations, and guidelines, policies and procedures on the operationalisation of the legislation. This is to ensure, for example, that medical practitioners use sedation and other chemical and mechanical restraints on intoxicated people appropriately. 

55. The Victorian Government ensures that medical practitioners: a) maintain appropriate written records, including the reasons for the order, the period for which the person is ordered to be detained, the monitoring regime, treatment provided, restraints used and reasons, and discharge b) to the extent reasonably possible inform the person of the reasons for the detention and their applicable rights c) take reasonable steps to notify the person’s nominated person, guardian or carer of their admission or detention; and d) provide the reasons for detainment and/or the use of restraint in writing to the person upon their discharge/release. 

Independent oversight 

56. The Victorian Government empowers an oversight body, such as the Victorian Ombudsman, to adjudicate complaints and conduct investigations in relation to the implementation and operation of these reforms in health service. This should include oversight of detention conditions and treatment of detained people, as well as use of mechanical and chemical restraints. 

57. The Victorian Government, in accordance with OPCAT obligations, enables the National Preventive Mechanism to have oversight when intoxicated people are deprived of their liberty, including when they are detained and/or restrained in hospitals. 

Stage 4: Health and social care pathways 

58. The Victorian Government ensures that a comprehensive service system is capable of supporting the broader health and wellbeing needs of the high intensity cohort of people, who very often experience quite complex health and welfare challenges that contribute to their drinking patterns. 

Investment in Aboriginal alcohol and other drug services 

59. The Victorian Government establishes a specific adult AOD program for Aboriginal and/or Torres Strait Islander Victorians prior to the end of the implementation phase, with Wotha Daborra considered for further development as part of this process. 

60. The Victorian Government ensures that all Social and Emotional Wellbeing teams include AOD expertise (a position outlined by the Royal Commission into Victoria’s Mental Health System) and that the role of the teams be expanded to support the government’s public intoxication reforms for Aboriginal and/or Torres Strait Islander Victorians where appropriate. 

Stage 5: Broader prevention strategies 

61. The Victorian Government continues to support and expand where necessary public awareness campaigns focused on primary prevention health initiatives that relate to the prevention of public intoxication, including the work of VicHealth. 

Implementation considerations 

Phased transition 

62. The Victorian Government ensures the Proposed Health Model is phased in over a 24-month period to enable an adequate transition from the current justice-based response to public intoxication. 

Trial sites 

63. The Victorian Government establishes at least three trial sites during the 24-month transition period to inform the development of the statewide implementation of the ERG’s Proposed Health Model. 

Governance 

64. The Victorian Government establishes a dedicated implementation office to operationalise the public intoxication reform agenda. 

65. The Victorian Government establishes a dedicated oversight committee to oversee the overall implementation of the public health approach to public intoxication and to ensure that implementation is consistent with, and gives effect to, the intention of the proposed reforms. 

Ongoing monitoring, evaluation and adaptability 

66. The Victorian Government works with affected communities, including Aboriginal and/or Torres Strait Islander, Sudanese and South Sudanese communities to develop an evaluation framework including outcomes, reporting by agencies and services, provision of data to affected communities and the involvement of affected communities in the governance model. 

67. The Victorian Government undertakes a statutory review of the reforms related to decriminalisation of public drunkenness. 

68. The Victorian Government develops a monitoring and evaluation framework in consultation with relevant stakeholders including representatives from Aboriginal and/or Torres Strait Islander and CALD communities. 

69. The Victorian Government ensures that Aboriginal Community Controlled Organisations evaluate the cultural appropriateness of the implementation and operation of the reforms. 

Cultural safety framework 

70. Consistent with its commitment to self-determination and co-design principles, particularly for Aboriginal and/or Torres Strait Islander people, the Victorian Government consults with affected communities and work wherever possible with community-controlled organisations in the design, delivery and evaluation of the public health response to public intoxication. 

71. The Victorian Government continues to support the implementation of a new funding and governance model across public health services to strengthen and improve approaches to delivery of culturally safe and responsive services for Aboriginal and/or Torres Strait community. 

72. The Victorian Government continues to support further actions via health service statement of priority processes and funding and service agreements for funded organisations to progress Reconciliation Action Plans. 

73. The Victorian Government continues to support and elevate the cultural safety planning undertaken by hospitals and the delivery of culturally safe sobering services provided in hospital settings, including: a) sobering services in hospitals are established in line with the identified six themes impacting cultural safety b) expanding the Aboriginal and/or Torres Strait Islander health workforce, including Aboriginal Health and Liaison Officers, fully utilising Weighted Inlier Equivalent Separation (WIES) loadings and other resources to adequately resource this function c) Aboriginal Health and Liaison Officers – or an appropriate equivalent - are available to support Aboriginal and/or Torres Strait Islander clients utilising sobering services, including access after-hours and on weekends; and d) undertake an audit of cultural safety in relation to both Aboriginal and/or Torres Strait Islander people and CALD communities at relevant emergency department and rural trauma and urgent care centres, and appropriate actions undertaken to address identified areas of concern. 

74. The Victorian Government works in partnership with affected communities at a local level to develop culturally appropriate service responses as part of the public health response, including building on established partnerships with Aboriginal organisations and communities (e.g. Aboriginal Justice Caucus and Regional Aboriginal Justice Advisory Committees (RAJACs), and with Sudanese and South Sudanese communities under the African Community Action Plan, where appropriate. 

75. The Victorian Government support comprehensive cultural safety training to be developed for all first responder agencies (in the justice and health systems), with localised input from, and delivery by, ACCOs and other affected community-controlled organisations, including training on: a) Aboriginal cultural awareness b) unconscious bias c) trauma-informed care d) mental health and disability e) human rights under the Victorian Charter of Human Rights. 

76. The Victorian Government supports the development and delivery of cultural safety training by ACCOs and other affected communities for all staff in services in the public health model. 

77. The Victorian Government ensures that training is provided to all first responders and services on localised service pathways and access for affected communities, including for ACCOs. This will be particularly important during the implementation phase. 

78. The Victorian Government requires that all first responders and staff in services under the public health model undergo cultural safety training, including ongoing, localised and refresher training. 

79. The Victorian Government continues to build the capacity of ACCOs and other community- controlled organisations to deliver cultural safety training in mainstream organisations, including appropriate resourcing and funding of these as professional development activities. 

80. The Victorian Government ensures that culturally appropriate safeguards and service pathways are developed for Aboriginal and/or Torres Strait Islander people coming in to contact with police, including exploring options with the Aboriginal Community Justice Panels (ACJP). 

81. The Victorian Government extends the role of Aboriginal Hospital Liaison Officers (AHLOs) to after-hours and/or implement an on-call model so hospital based sobering services also have access to Aboriginal support persons for relevant clients (noting this could also benefit all Aboriginal and/or Torres Strait Islander clients) ensuring any non-hospital services operate consistent with the eight cultural safety domains now in place at hospitals. This could include consideration of block grants for cultural safety to other health services with a primary direct role in public intoxication (i.e. Ambulance Victoria). 

82. The Victorian Government ensures that interpreters are available across the range of service system responses identified by the ERG for the proposed reform. Further consultation & co-design 

83. The Victorian Government ensures that detailed consultation and co-design occurs as it is critical to the successful establishment and implementation of a public health model. 

Local government 

84. The Victorian Government undertakes a review of relevant local laws in partnership with local government. The scope of such a review might include consideration of amendments as well as operational protocols to support the reform principles underpinning decriminalisation of public drunkenness. 

85. The Victorian Government analyses data relating to enforcement of local laws be monitored to track any unintended consequences associated with the enforcement of local laws. 

Resourcing 

86. The Victorian Government adequately resources all components of the Proposed Health Model, reflecting the interdependency between all components identified in this report.