Editors --- "Alcohol Report - Digest" [1996] AUIndigLawRpr 39; (1996) 1(2) Australian Indigenous Law Reporter 312

Alcohol Report

Race Discrimination Commissioner

Canberra: Australian Government Publishing Service, 1995

A "Call for Submissions" on race discrimination and human rights as they relate to the distribution of alcohol and the laws on liquor licences in the Northern Territory was issued in October 1990 by the then Race Discrimination Commissioner, Ms Irene Moss.

The present report by Race Discrimination Commissioner, Ms Zita Antonios, grew out of the submissions and the consequent investigation by Ms Moss. The "Foreword", "Overview of the Report" and "Recommendations" are reproduced below.

Foreword

During 1990 the former Race Discrimination Commissioner received expressions of serious concern from a number of Aboriginal communities and organisations in the Northern Territory about alcohol abuse by Aboriginal people and its effect on indigenous communities.

The representations outlined the devastating effects alcohol abuse is having on Aboriginal society. For Aboriginal peoples in Central Australia, alcohol related violence, murder and social breakdown are crucial community concerns. Alcohol abuse is destroying the health and well-being of community members. It is also a major threat to the survival of Aboriginal culture and to the achievement of self-determination by Aboriginal and Torres Strait Islander peoples.

Given the problems also encountered by Aboriginal people in their attempts to restrict the availability of alcohol to their communities, the Commissioner decided to examine race discrimination and human rights issues in the context of the distribution of alcohol in the Northern Territory with particular focus on Central Australia.[1] In late 1990, the former Race Discrimination Commissioner called for submissions on race discrimination, human rights and the distribution of alcohol in the Northern Territory.[2]

I am pleased to present the findings and recommendations which grew up around these submissions and the consequent investigation of the former Race Discrimination Commissioner. I am aware that this Report has been a long time coming and that many people, not least those who provided written submissions to this Investigation, have been extremely patient waiting for it. This is especially the case given the importance of the issue.

The Racial Discrimination Act 1975 (Cth) (RDA) and its relevance to attempts to limit alcohol availability in indigenous communities raise complex legal and social questions. During the early life of this Investigation, changes were afoot in the Northern Territory in relation to the availability of alcohol to Aboriginal communities and to the structures and policies of the Northern Territory Liquor Commission. These changes came partly in the wake of the establishment of the Legislative Assembly of the Northern Territory Sessional Committee into Use and Abuse of Alcohol in the Community. The Committee's findings and recommendations prompted changes which necessitated further research and analysis by this Investigation and complicated an already difficult area.

On my appointment as Race Discrimination Commissioner in late 1994 I recognised that the Report could not be delayed any longer. The problem of alcohol abuse in Aboriginal communities in the Northern Territory as well as uncertainty about the legality of limitations or prohibitions on alcohol availability to these communities were issues in need of urgent consideration. At that time I made a commitment that the Report would be completed by June 1995.

This Report does not provide a blueprint for the treatment of alcohol abuse in Aboriginal communities in the Northern Territory. Many community based, non-legal measures are being undertaken in an attempt to combat alcohol abuse in indigenous communities. I recognise the value of these initiatives, but this Report deals principally with legal and human rights considerations.[3] It is primarily a legal document which provides guidance on the legality of measures undertaken to limit or prohibit the availability of alcohol to members of Aboriginal communities in Central Australia.

I am aware that the legal measures available under the RDA to indigenous peoples to restrict the consumption of alcohol in their communities described in this Report are complex and often difficult to use. They nonetheless provide interim workable solutions for Aboriginal communities attempting to limit or prohibit the sale of alcohol to their members. A community guide has been produced in conjunction with this Report to make its findings more accessible to people without legal training.

The broader issue of legislative review and the development of a more appropriate regime for implementing the demands of Aboriginal and Torres Strait Islander communities who are addressing alcohol abuse will be briefly touched upon in this Report but are outside the terms of reference of this Investigation. The difficult issues which have arisen in the context of the production of this Report provide a perfect example of the need to review the RDA, in particular, the special measures provision. I am undertaking a review of the legislation in this its twentieth year. The findings of this Report will necessarily inform that review and the recommendations for amendment which will arise from it.

Many people have been involved in the production of this Report. It is difficult to single out anyone in particular for special mention. Suffice it to say that the Report would have been impossible to produce without the excellent submissions received by the Race Discrimination Commissioner, in particular, those of Aboriginal communities and organisations, and the dedication of many research and legal officers who grappled with difficult and complex issues in preparing this document.

Alcohol abuse in Aboriginal communities in the Northern Territory is a multi-layered and divisive issue. It is my sincere hope that this Report will provide some guidance on, and contribute meaningfully to, the debate surrounding alcohol limitations and prohibition in Central Australian Aboriginal communities.

Overview of the Report

Submissions to the Race Discrimination Commissioner and the consequent Investigation identified several problems faced by Aboriginal communities which choose to restrict sales of alcohol to their members through informal arrangements between licensees and local Aboriginal communities.

First, there are concerns that the agreements may, ironically, lead to breaches of the Racial Discrimination Act 1975 (Cth) (RDA). It has been widely suggested that any such restrictions on Aboriginal peoples would contravene this Commonwealth legislation. Second, if publicans become unwilling to honour the agreements there is very little Aboriginal communities can do to enforce them.

Even if agreements between Aboriginal communities and publicans are formally included in liquor licences the submissions noted that the policing and enforcement of these provisions was inadequate. Several submissions suggested, for example, that licensees were selling to intoxicated persons and minors.[4]

A related concern was the lack of consultation between the Northern Territory Liquor Commission and indigenous communities with regard to the issue and content of liquor licenses.

Since this Investigation commenced in 1990 there have been moves by the Liquor Commission to consult with indigenous communities. The policy of the new Chairman of the Liquor Commission is to engage in meetings with Aboriginal people about the content of liquor licences. Enforceable conditions in liquor licences restricting or prohibiting the sale of alcohol are currently being trialed in the Northern Territory.[5]

The RDA includes a special measures provision in section 8(1) which saves otherwise discriminatory acts from being unlawful. The application and relevance of this provision to the context of restrictions on alcohol sales and consumption in Aboriginal communities is a central issue of this Report.

Sub-section 9(1A) of the RDA has the effect that an act which is indirectly discriminatory will not be unlawful if it is reasonable in the circumstances of the case. Therefore, the work of the Investigation regarding licence restrictions further revealed that it would be essential to consider indirect discrimination and the question of its reasonableness in this context.

The Investigation also identified a number of existing legal arrangements in the Northern Territory which may contravene the RDA:

* the `two kilometre law' under s.45D of the Summary Offences Act 1923 (NT) which restricts the drinking of alcohol within two kilometres of a liquor outlet;

* s. 128 of the Police Administration Act 1978 (NT) which allows the police to take into protective custody any person, in a public place or trespassing on private property, when they have reasonable grounds to believe that that person is intoxicated with alcohol or drugs;

* s.122 of the Liquor Act 1978 (NT) which makes it an offence to serve alcohol to certain `declared' persons.

These sanctions are also briefly addressed in the Report.

The legal issues raised by this Investigation cannot properly be understood or evaluated without also examining the social and cultural context in which they are being proposed or already exist. The opening chapters on the Report will therefore provide the context for the legal analysis which follows.

Recommendations

Northern Territory Alcohol Legislation and Policy Chapter 7

* The Northern Territory Liquor Commission should urgently address the Curtin Springs dispute by using its powers to vary licence conditions under Part III of the Liquor Act 1978 (NT). Any hearings should take place in the most appropriate Pitjantjatjara community.

* If Project Sunshine is to continue, immediate funding should be provided by the Northern Territory Government to the Pitjantjatjara Council for community consultations.

Problems with the Application of the Liquor Act Chapter 9

* The Liquor Act 1978 (NT) should be amended so that specific provision is made for Aboriginal communities to seek variation of licence conditions.

* The Northern Territory Liquor Commission should hear licensing matters relevant to Aboriginal communities in a place and a manner which facilitates the expression of Aboriginal views.

* The Liquor Act 1978 (NT) should be amended to include `public interest' or `public health and welfare' as a ground for community complaints to the Northern Territory Liquor Commission regarding the operation of liquor licences.

* The Liquor Act 1978 (NT) should expressly include a harm minimisation objective, preferably by amendment to Parts III (Licensing) and IV (Objections and Complaints) of the Act.

* The Liquor Act 1978 (NT) should be amended to include the number of liquor licences as a factor to be considered in licensing decisions.

* The Liquor Act 1978 (NT) should be amended to enable the public to lodge complaints directly with the police. The police should be required to investigate these complaints, and if substantiated, take appropriate action.

* The Liquor Act 1978 (NT) should be amended to require the Liquor Commissioner to establish clear policies and procedures for providing notice to communities about the investigation and handling of complaints.

* The Liquor Act 1978 (NT) should be amended to allow emergency suspension of a liquor licence `in the public interest' for an indefinite period of time, subject to notification of hearing within 28 days.

* The `community member' of the Northern Territory Liquor Commission should be a person with expertise in community health issues and should provide active support to communities wishing to make submissions.

* The Northern Territory Liquor Commission should restrict takeaway alcohol sales at all petrol stations and roadhouses throughout the Northern Territory in the light of the high incidence of alcohol-related motor accidents and fatalities.

* Magistrates should have a role in determining licences and their conditions of operation analogous to their role in declaring problem drinkers `habitual drunks' under section 122 of the Liquor Act 1978 (NT).

Alcohol Related Sanctions Chapter 10

* Section 45D of the Summary Offences Act 1923 (NT) must be repealed.

* Section 128 of the Police Administration Act 1978 (NT) should be amended. If the police apprehend a person under section 128, that person should be removed to a safe place. A statutory duty should be placed on police to consider and utilise alternatives to the detention of intoxicated people in police cells. Apprehension of intoxicated people in protective custody should be an option of last resort.

See also (1995) 3(77) Aboriginal Law Bulletin 22.

A copy of the report can be purchased ($19.95) from the Australian Government Publishing Service: Mail Order Sales, GPO Box 84, Canberra, ACT 2601. Orders may also be placed by telephone on [phone] or facsimile on [phone]. .

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[1]. The methodology and procedure followed by this Investigation are summarised in Appendix 1.

[2]. See Appendix 2.

[3]. For details of alcohol controls within communities see, for example, Legislative Assembly of the Northern Territory Sessional
Committee on Use and Abuse of Alcohol by the Community, Inquiry into the Operation and Effect of Part VIII `Restricted Areas' of the Liquor Act, Report Number 4, Northern Territory Government Printer, Dec. 1993.

[4] Lyon, P., What Everybody Knows About Alice: A report on the impact of alcohol abuse on the town of Alice Springs, June 1990,
p. 131.

[5] Tennant Creek Trading v The Liquor Commission (unreported, Northern Territory Supreme Court, 7 April 1995 per Thomas J).