Behrendt, Jason; Libesman, Terry --- "Editorial: AboriginalLB Special Issue on Alcohol" [1991] AboriginalLawB 35; (1991) 1(51) Aboriginal Law Bulletin 2

• Editorial: Alb Special Issue On Alcohol

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Editorial: AboriginalLB Special Issue on Alcohol

by Jason Behrendt and Terry Libesman

Alcohol abuse has wrought havoc in Australian society. The Senate Standing Committee on Social Welfare estimated that 1, 200, 000 Australians were effected personally or in their family situation by alcohol abuse.[1] It has impacted on most areas of life, ranging from the high proportion of road carnage involving alcohol as a factor, to family breakdown, birth defects, disease and alcohol related crime. Alcohol has had a particularly deleterious effect on many Aboriginal communities. The Royal Commission into Aboriginal Deaths in Custody (RCIADC) has drawn attention to the urgent need for governments to address alcohol related problems. Many Aboriginal communities have identified alcohol abuse as a key issue which in some instances threatens the very existence of the community. Alcohol abuse is symptomatic of the damage inflicted on Aboriginal communities through violent dispossession and marginalisation.

Theories as to why Aboriginal communities suffer from alcohol problems abound, as do reports and academic works discussing the legislative and social control of alcohol. Whilst the literature on alcohol abuse reflects the magnitude of the problem, governments' responses to alcohol abuse have been slow and ad hoc. Public drunkenness has been decriminalised in a number of Australian jurisdictions. It is still an offence in Queensland and Victoria . Whilst decriminalisation has been the trend it is not a panacea. Eight of the deaths investigated by the RCIADC occurred after detention (rather than arrest) for public drunkenness.[2] Bail considerations were applicable in 53 of the deaths in police custody: bail was refused in 27 of the 53 cases for reasons of intoxication.[3] Public intoxication legislation in the NT, NSW, SA and WA has the objective of providing a social welfare model for dealing with public drunkenness. The legislative schemes established in the NT, NSW and SA only fulfil this limited objective in a partial and unsatisfactory manner. The WA scheme appears to have similar shortfalls. (See Richard Milford's description of the the program on p18).

The retention of significant elements of the criminal justice model within public intoxication legislation has facilitated the continuation of police over -involvement in Aboriginal communities. In addition, evidence before the RCIADC illustrated unsatisfactory practices in administering intoxicated persons legislation including; a failure of police to exercise their discretion independently (eg. reliance on the publican s assessment of a situation), labelling of particular individuals as "trouble makers" and acting on this preconception, treatment of detention as a form of punishment, and failure to adequately consider alternatives to detention in police cells .[4]

The ad hoc approach to addressing alcohol problems has resulted in anomalous and ineffective legislative and social schemes. Implicit in the contradictory policies are the irreconcilable objectives of governments. Public intoxication legislation attempts to address the mutually exclusive objectives of control of public order and care for intoxicated persons. The objectives of decriminalising public drunkenness have been further compromised by implementation of legislation which recriminalises drunkenness in certain contexts in NSW, SA and the NT.

Many Aboriginal communities have declared themselves dry under the Liquor Act 1978 (NT). This has given communities some control over alcohol. However, as David Averydiscusses on p14, the provision in the Act enabling the confiscation of vehicles which have been used to transport alcohol has been administered in a manner which undermines the enhancement of community power. The return of vehicles confiscated is in the absolute discretion of the Minister. Consequently the Minister rather than the community determines under what circumstances vehicles will be confiscated and whether their return is justified. Further, communities which have made the decision to exclude alcohol are actively hindered in their implementation of such policies by liquor licensing practices. Pamela Lyon outlines on p11 the failure of the NT Liquor Commission to respond to community objections when issuing takeaway licences. Evident in liquor licensing policy, the administration of dry areas legislation and the lack of resources such as women's safe houses, is the failure of the NT Government's political will to tackle alcohol problems.

The implementation of dry areas legislation in SA and most recently in NSW is also reflective of inconsistent Government policy pertaining to control of alcohol. Steve Mark and Nancy Hennessy discuss the Local Government (Street Drinking) Amendment Act 1990 (NSW) on p16. They note that this legislation increases the opportunities for Aboriginal/ police contact and conflict, and thereby increases the risk of charges being laid for summary offences such as offensive language. The stated objective of this legislation is to address irresponsible behaviour which arises from drinking in public. What does this legislation regulate which could not be adequately addressed by the Summary Offences Act 1988 (NSW)? Perhaps this question is most usefully addressed by looking at the origins of the Act. The concept originated from local councils in North Western NSW, under the influence of law and order' campaigns[5] and the Act was passed after lobbying from those councils who had cruder forms of the same legislation in operation in the form of ordinances passed under s.249(k) of the Local Government Act which were later found to be invalid. As Chris Cunneen argued in [1991] AboriginalLB 11; 2(49)pg11):

"The Local Government ordinances which prohibit public drinking are almost exclusively used against Aboriginal people in rural areas. The conscious design of such intervention is to remove Aboriginal people from the streets and parks. It is not the drinking per se which is defined as the problem but rather the public location of Aboriginal people."[6]

Clearly, the characterisation of alcohol use and abuse as a public order problem only inflames poor Aboriginal/police relations and cannot offer any assistance in addressing the underlying problems. If these problems are to be addressed a political and financial commitment to tackle the distribution, advertising and community control over alcohol is necessary.

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[1] Senate Standing Committee on Social Welfare (1977) Drug Problems in Australia - An Intoxicated Society?, AGPS, Canberra.

[2] Johnston, E. (1991) National Report, Vol-1, p46, Royal Commission into Aboriginal Deaths in Custody, ALPS, Canberra.

[3] Ibid, p47

[4] See for example the Transcript of the RCIADC hearing into the death of Edward James Murray.

[5] See Cunneen, C. "Constructing a Law and Order Agenda: Conservative Populism and Aboriginal. People in North West New South Wales" in Aboriginal Law Bulletin [1989] AboriginalLB 27; 2(38)pg6.

[6] Cunneen, C. "Moves to Recriminalise Public Drunkenness in NSW" in Aboriginal Law Bulletin [1991] AboriginalLB 11; 2(49)pg11