Aboriginal Law Bulletin
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Aboriginal Law Bulletin |
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by John Corker
It has been said by His Honour Mr Justice Nader In the Supreme Court of the NT and agreed to by their Honours Toohey, McGregor and Morley JJ in the Federal Court of Australia 'that the consequences of amendments to the NT Liquor Act of December 1982 have the potential to become an Instrument for quite grotesque Injustice and that it Is plain that the Act requires the urgent attentions of the legislature if situations are to be avoided In which gross Injustices may be caused to innocent parties.[1]
However despite these judgements and the introduction of an opposition bill in June 1984 to the NT Legislative Assembly, the Country Liberal Party (CLP) NT Government has refused to pass this amending bill or to introduce any amending legislation.
In the Northern Territory, most outlying Aboriginal Communities are Restricted Areas under the Liquor Act (NT) (The Act). One effect of restriction is that it is an offence to bring, consume, control or possess any alcoholic liquor within the boundaries of the area. A first offence carries a maximum penaltyof $1000 or 3 months imprisonment whilst a second offence carries a maximum penaltyof $2,000 or 6 months imprisonment.
S.95 of the Act empowers a police officer to seize, take, detain, remove and secure any vehicle, vessel or aircraft if he has reasonable grounds to believe that it is evidence of or otherwise relates to any offence that has been or is being committed. As a matter of practice any vehicle identified by police that relates to a Restricted Area offence is seized by them and detained in an enclosed yard within the police station complex.
By reason of S.96 of the Act the seized vehicle is automatically forfeited to the NT Government on the conviction of a person for an offence in connection with which it was seized.
The draconian S.96 was introduced to the Act on the 17th day of December 1982. Prior to this date, the magistrate upon conviction had a discretion as to whether or not to forfeit a vehicle.
As the following table indicates, in the seven mentioned Central Australian Aboriginal Communities, 172 vehicles have been seized by police pursuant to the Liquor Act since 12 February 1979, 137 of those being seized in the past 2.5 years.
Vehicles forfeited to the NTGovernment are usually sold at public auction with the proceeds going into Consolidated Revenue. Available sale price figures vary between $20 and $5,000 pervehicle with some vehicles being listed as destroyed. The most common sale prices are between $200 and $500. Up to March 1982, the most valuable vehicles had only raised a little over $1,000.
Recentexperience has seen this change somewhat with two vehicles at auction in 1984 raising $2,800 and one $5,000. A number of quite valuable vehicles, one belonging to the Central Land Council, and some belonging to outstations and communities are still awaiting auction or court decision.
Further to this, court lists and Legal Aid figures indicated that the number of Liquor Act breaches in these communities is not decreasing, nor are the numbers of associated seized vehicles.
Thus the problem outlined by the Federal and Supreme Courts is likewise not decreasing.
It is not completely clear who purchases these vehicles but a perusal of one set of auctioneer's records indicated the purchasers to be car wreckers, speedway drivers and second hand car dealers. There were no Aboriginal purchasers.
Unfortunately no legislative procedure exists in the Liquor Act for an ownerof a vehicle to make application for the return of the forfeited vehicle.
S.101 of the Act provides that all forfeited things may be destroyed or otherwise disposed of in such a manner as the Chair thinks fit.
It is this section and S.96 of the Act that have been the subject of litigation between the Central Land Council and the Chairof the Liquor Commission of the Northern Territory.
In April 1983 the CLC had one of its vehicles seized in the Hermannsburg Restricted Area when 22 cans of beer were discovered on board by police. The vehicle was subsequently forfeited to the NT Government and the CLC submitted a claim for return of the vehicle to the Chair of the Liquor Commission arguing that its vehicle had been used in a way not contemplated by the permission granted to the driver of the vehicle and therefore the CLC should not be made to suffer for an act of a person outside of its knowledge and beyond its control.
The Chair refused to accept this submission and refused to return their vehicle. The CLC then sought orders in the Supreme Court of the NT for a writ of certiorari to issue to quash the Chair's decision. His Honour Mr Justice Nader's decision in October 1984 indicated that the legislation was such that the CLC or indeed any other owner of forfeited properly, had no standing to require the Chair to entertain the claim and that this potential for grotesque injustice was created by the language of Parliament. This decision has been confirmed on appeal as correct by the Federal Court of Australia in June 1985.
When the automatic forfeiture amendment was introduced by Mr Tuxworth (the then Minister for Health and now the Chief Minister) he indicated in debate that the amendment 'would enable the prompt and righful return to the ownerof such a vehicle, who was not involved in the offence' and ‘where a vehicle has been confiscated, which did not belong to the convicted person, and should rightfully be returned to its owner, then the Chairman of the Liquor Commission should return that vehicle. In our view that is what the amendment says.’[2]
But the situation is now clear. The intention of the legislature has not been realised.
The Liquor Commission's statistics do not always reveal the date when vehicles have been returned to owners but usually a substantial delay between the time of seizure and the time of return is involved. In the 13 cases where figures are available the average delay is seven months, one vehicle recently only being returned after a period of two years.
If a vehicle has been stolen, used in connection with a Liquor Act breach and seized by police, the owner may prevail upon the police to exercise their discretion to return the vehicle.
If the police cannot be convinced to return the vehicle at an early stage then there is a variety of scenarios which may lead to a substantial delay before there is a court hearing. During this period the Liquor Commission has no authority over the vehicle. The most usual cause of delay is that the accused person absconds and a warrant is issued for their arrest. Other reasons involve the matter not being reached on the court list, the court not sitting for its one day that month or either the crown or the defence not being in a position to proceed.
None of these reasons have anything to do with the owner of the vehicle so any delay involves severe prejudice to the owner through no fault of their own. This situation should not be tolerated and a scheme to allow release of vehicles pending prosecution is required.
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1981
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1982
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1983
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1984
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As of 1 July, 1985
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|||||
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Community
|
Seized
|
Returned
|
Seized
|
Returned
|
Seized
|
Returned
|
Seized
|
Returned
|
Seized
|
Returned
|
|
Hermansburg
|
8
|
-
|
-
|
-
|
16
|
3
|
15
|
4
|
3
|
1
|
|
Papunya
|
11
|
1
|
4
|
-
|
10
|
2
|
24
|
2
|
8
|
1
|
|
Ali-Currung
|
6
|
3
|
1
|
-
|
3
|
-
|
4
|
1
|
2
|
1
|
|
Yuendumu
|
2
|
-
|
3
|
-
|
16
|
3
|
15
|
2
|
9
|
-
|
|
Ti-Tree
|
-
|
-
|
-
|
-
|
1
|
-
|
-
|
-
|
1
|
-
|
|
Santa Teresa
|
-
|
-
|
-
|
-
|
2
|
1
|
2
|
-
|
2
|
-
|
|
Docker River
|
-
|
-
|
-
|
-
|
-
|
-
|
3
|
-
|
1
|
-
|
|
|
27
|
4
|
8
|
-
|
48
|
9
|
63
|
9
|
26
|
2
|
The Opposition's Liquor Amendment Bill provides for the re-introduction of the magistrate's discretion in ordering forfeiture of a vehicle upon conviction of the owner or upon the court being satisfied upon the balance of probabilities that the owner supplied their vehicle knowing that it would be used in connection with a Restricted Area offence. This Bill also makes provision for an owner to make application to the court for release of their vehicle after seizure so long as the owner lodges security with the court or guarantees that the vehicle will be available at time of the institution of a prosecution.
The arguments raised by the Government against this bill have been that it involves a watering down of the legislation and Aboriginal people wish to retain a strong law against grog.
However a strong law is a just law and there are a number of cases where an injustice has been done. One such case involves a car owned by the president of theYuendumu Council. In February 1984 the vehicle was seized after one flagon of wine was found concealed in the rear seat of the car. The owner who was driving the car and his passenger in the rear seat were both charged with bringing liquor into a Restricted Area. The owner pleaded not guilty to the charge, gave evidence in his defence that he did not know of the concealed flagon and that he made all reasonable efforts to avoid his vehicle being used to transport liquor. He was acquitted of the charge but the Chair of the Liquor Commission has refused to return his vehicle. It is clear the owner has no legal comeback against this decision. Forfeiture in this case was based upon the fact that the passenger failed to appear at Court when required and was convicted of the offence in ex-parte proceedings.
It is scandalous that the NT Government allows the law to continue to operate in this way.
Aboriginal people may apply to the Liquor Commission for permits to drink at home in the Restricted Area but these are only granted with the consent of the Community Council and the Police. Often the applicant has prior convictions for Restricted Area breaches and thus the police or Council do not recommend granting of the permit. As of 22nd February 1984 atYuendumu, there were 35 current liquor permits in existence of which only two were for Aboriginal people. Most non-Aboriginal staff and all members of the police force have permits. These people in many cases will refuse to live and work in that community unless they have such a permit. Threats of mass resignation or industrial action have been made by them to Community Councils to support the issue of permits to them. This situation has led in some cases to an attitude, ‘Those white fellas can drink so why can't we?’
Police ore given extensive search powers under 5.95 of the Liquor Act. A member of the police force may without warrant enter with such force as is reasonably necessary at anytime any premises and search those premises if the member has reasonable grounds for suspecting that an offence against the Restricted Areas part of the Act has been, is being or is likely to be committed.
Men are nearly always the culprit drinkers and women will sometimes walk from one end of the Community to the other to contact the police but then the men object to the invasion of their privacy.
The extensive search powers are often cited as a reason why the Aboriginal town camps do not elect to become Restricted Areas.
Access to vehicles for Aboriginal people in remote areas is essential and consequent upon forfeiture there is massive social disruption. When a vehicle belonging to three families that had recently set up an outstation was forfeited, they found that they had no transport to take home one young man recenfy released from goal. This young man had been a bad petrol sniffer and his family wished to remove him from the main community where petrol was available. He unfortunately returned to his petrol sniffing habits.
Magistrates may not like having to make decisions about vehicle forfeiture but they are in the best position to determine when it is appropriate to order forfeiture. It is submitted that the ownerof the vehicle should have a right of appearance in all such cases.
It is acknowledged that Restricted Areas are here because of the desire of Aboriginal Communities to be liquor free and this continuing desire is evidenced by the increasing number of applications made for places to be declared as Restricted Areas.
The first Restricted Area come into effect in July 1979.
The following shows the numberof Restricted Areas throughout the Territory as at 30 June each year.
February-June 1979 = 0
30 June 1980 = 13
30 June 1981 = 33
30 June 1982 = 42
30 June 1983 = 43
30 June 1984 = 47
These figures seem to indicate that most communities applied to be a Restricted Area in the first three years of the operation of the Liquor Act. Since then the growth has been just a few each year but the attitude of communities would indicate that Restricted Areas are here to stay.
Thus there is a real need for an ongoing review of all aspects of the Restricted Area provisions, and in particular the vehicle forfeiture provisions.
However the logic that 'the Government must take the broad Territory wide view in the interests of all members of the Aboriginal Communities rather than focusing on persons rightly or wrongly aggrieved at losing their properties'[3] must be wrong. People respect laws that are fair and just to all and therefore the above proposed amendments which will allow for the owner to be properly heard on the queston of forfeiture will lead to a strengthening and not a weakening of the law.
[1] The Queen v The Chairman of the Liquor Commission of the Northern Territory ex parte Frank Diana and The Queen v The Chairman of the Liquor Commission of the Northern Territory ex parte Central Land Council Coram: Nader J. Supreme Own of the Northern Territory at p. 20. 17 October 1984
and
Central Land Council and Frank Diana v The Chairman of the Liquor Commission of the Northern Territory. Nos, NTG 35 & 36 of 1984.
Coram, Toohey. McGregor & Morling JJ at p. 18 7 June 1985.
[2] Parliamentary Debates: Mr Tuxworth. Thursday 25 November 1982. P. 3504 & 3505
[3] Parliamentary Debates: Mr Dandas (Health) 28 August 1984 at p. 31.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1985/61.html