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Avery, David --- "Duck Pond Toyota: The Northern Territory's Liquor Act -- Restricted Areas and the Seizure of Vehicles: Beneficial Legislation?" [1991] AboriginalLawB 40; (1991) 1(51) Aboriginal Law Bulletin 14


Duck Pond Toyota:

The Northern Territory’s Liquor Act – Restricted Areas and the Seizure of Vehicles:
Beneficial Legislation?

by David Avery

On July 14, 1990, a Toyota 4WD vehicle was seized by Northern Territory (NT) Police for allegedly transporting liquor into a restricted area contrary to the Liquor Act 1978. The Toyota contained 4 Coolabah wine casks and one bottle of rum and was inside the restricted area at Kalkaringi, 100km north of Lajamanu.

Wulaign Association Inc. runs an outstation resource centre based at Lajamanu. Wulaign services an area extending from Mount Davidson outstation 410km by road to the south-east up to Kirkimbie Station and the Western Australian border 300km to the north-west. Wulaign services the 11 outstations located within that area.

In September 1988, Wulaign purchased the Toyota on behalf of the residents of Mirririnyunga (Duck Pond) outstation which is about 100km east of Lajamanu. The purchase money of $30,400 was provided by the Aboriginal Benefit Trust Account which was established under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) to receive funds from mining on Aboriginal land and to redirect some of those funds to Aboriginal communities and groups. Because Duck Pond outstation is not incorporated the Toyota was registered in Wulaign's name in order to satisfy funding rules.

Section 75 of the Liquor Act makes it an offence to possess or bring liquor into a restricted area. Many Aboriginal communities in the NT have successfully applied to be declared as Restricted Areas under the Liquor Act. The scheme is designed to control liquor consumption by enabling Aboriginal communities to become 'dry areas'. Lajamanu and Kalkaringi are both dry areas.

In addition to the usual penalties, S.95 of the Act gives an inspector the power to seize any vehicle, vessel or aircraft if there are reasonable grounds to believe that it is evidence of, or relates to, any offence against the restricted area provisions. Under S.96 anything seized and not released under S.100A is automatically forfeited to the Crown upon the conviction of a person for an offence relating to its seizure. Section 100A allows the owner or a person entitled to possession of the vehicle to apply to the Minister for its release. It is this aspect of the Act which has caused Wulaign so much trouble.

The right to seize vehicles was part of the original restricted area provisions. In 1988, after a number of vehicles transporting alcohol without the owner's knowledge were seized, the Act was amended to give the Minister a discretion to return vehicles in certain circumstances. Subsection 100A(2) provides that the Minister may in his absolute discretion return a vehicle after he has considered any recommendations from the Chairman of the Liquor Commission and is satisfied that the applicant:-

(a) was not involved in the alleged offence; and
(b) had no reason to suspect that the vehicle might be used in connection with the commission of the alleged offence.

The use of words such as "absolute discretion" with reference to Ministerial powers has been a feature of NT legislation for some years now as the Government has increasingly sought to exclude judicial review of Ministerial and Departmental decisions. This trend poses serious long term threats to individual freedom in the NT.

The Minister's discretion to release a vehicle is limited by S.96 to the period prior to the conviction of a person involved in the offence for which it was seized. It is therefore imperative that the Minister and the Chairman of the Liquor Commission act promptly in response to an application for return of a vehicle because their delay may seriously prejudice the owner. If an offender is convicted before the Minister makes a decision the vehicle is forfeited to the Crown notwithstanding that there may be a clear-cut case for its return.

On 20 July, 1990, Wulaign wrote to Fred Finch MLA, Minister for Racing and Gaming, pointing out that the owners had not given permission for the Toyota to be used to carry liquor into the restricted area. Earlier in the year a Pajero owned by Wulaign had also been seized and Wulaign's letter requested a response to correspondence about that vehicle as well. The Minister's reply on 13 September, 1990, foreshadowed problems:-

"Although you state in your letter the vehicle was used without permission, I must seek further clarification of this matter from you. The Police report of 14th and 15th August 1990 would indicate that the driver of the vehicle (name) had permission to use the vehicle."

The extraordinary aspect of the letter is the suggestion that giving permission to use a vehicle negates the owner's rights.

Nowhere in the relevant part of the Liquor Act is permission mentioned and S.100A refers only to being knowingly involved in the offence, or having reason to suspect that the vehicle might be used in connection with the commission of an alleged offence. Permission may be given to use the vehicle for one purpose and it may then be used for an unlawful purpose in breach of that permission.

Wulaign wrote to the Minister on 16 September, requesting that he send a copy of the report he had relied on so that Duck Pond residents could clarify the issues. On 11 October, 1990, the Chairman of theLiquor Commission Kelvin Rae advised that he was seeking legal advice before replying.

Meanwhile, Wulaign had commenced legal proceedings before the Supreme Court seeking the return of the Pajero on the grounds of denial of natural justice. In that instance the Minister had relied on reports adverse to Wulaign which were not disclosed to Wulaign. No doubt this was in the mind of the Chairman, in deciding to seek legal advice, while uppermost in the thoughts of Wulaign was the knowledge that time was passing and forfeiture could occur under s.96 if a conviction was recorded.

By 12 November, 1990, Wulaign's frustration was evident when it wrote tothe Minister seeking release of the vehicle "without further bureaucratic delay".

After an election in late 1990, a new Minister, Steve Hatton MLA, took over as "Minister responsible for Liquor" (sic). He told Mr Rae to send Wulaign the report it had requested and when it arrived on December 5,1990, Wulaign observed that the only "evidence" within the report of the owner having knowledge of, or involvement in, or even suspicion of, the offence, was this passage from the police report:-

"The following day Police spoke with an old Lajamanu man who's (sic) full name cannot be ascertained following inquiries (Wulaign Association have not supplied it) although he is known by sight to reporting member. He stated that he had given the vehicle to the young fellas to drive around while he stayed in the community and visited the family. He had travelled with the vehicle from Top Springs and knew that the young fellas had bought a lot of grog."

This statement would be objectionable even if it was not put forward by the Chairman as a reason for the Minister to exercise his discretion against returning the vehicle.

One wonders whether a decision to deprive a non-Aboriginal of property worth about $20,000 would ever be based on such insubstantial information, information which the Minister accepted by initialling the report and signing the attached letter.

To ensure the Minister did just that, the report gratuitously observed that:-

"Lajamanu Police have had their problems with this vehicle bringing liquor into their restricted area."

There was no attempt to explain why Lajamanu police had not seized the vehicle previously, let alone who was involved, or the circumstances of the alleged Lajamanu infraction. The police report went on:-

"No one has approached Kalkaringi Police stating that (name) did not have permission to drive the vehicle and in fact the old man said he did.
The only contact from Wulaign Association is a request to remove an H.F radio belonging to them from the vehicle."

In his report to the Minister dated 10 September, 1990, the Chairman of the Liquor Commission summarised the facts set out in the police report and emphasised the police statement about the car having been used in this way previously. The inference intended to be drawn from the two paragraphs quoted above is that what "the old man" told the police is correct because although Wulaign has been in touch with the police about the car, it did not deny that the driver had permission to use it. The police and the Liquor Commission here equate the word "permission" either with knowing involvement in the offence or reasonable suspicion that the vehicle may be used in connection with an offence.

The reader will recall that within three days of the vehicle's seizure Wulaign had written to the Minister stating that the vehicle was used without permission. The police statement to the contrary was prepared a month later, possibly in response to that letter. Wulaign was in fact unaware of the existence of "the old man" until the police report was produced in December. The police did not make any approach to Wulaign whatsoever about the existence of "the old man" or his allegations.

Wulaign wrote to the Minister on 5 December, 1990, canvassing in great detail all of the matters it was now aware of and concluding that:-

"Any decision to deprive the owner of his rights to his property is not one which you should consider lightly".

The Minister then requested Wulaign to supply him with details of the safeguards that Wulaign and Duck Pond outstation intended to apply "to ensure that (their vehicles) are not used incorrectly". The Minister also wanted to know whether the Duck Pond community intended to take legal action against the offenders for "unlawful use". Apart from the fact that the 6 month period within which such a prosecution must be commenced had expired the day before the Minister wrote, there were other serious problems with this suggestion. The police had made an issue of the necessity for the owner to lay such a complaint in other cases, presumably as some sort of proof that the vehicle was used without permission notwithstanding that it is the use of the vehicle to commit the offence of transporting liquor into a dry area that is the real issue.

Wulaign responded to the Minister pointing out that police at Lajamanu had not accepted past complaints of unlawful use of other vehicles lodged by Wulaign. Wulaign also underlined the insensitivity of the Minister's position by pointing out that the Duck Pond residents should not be obliged to prosecute one of their own clan just to get their vehicle back. In Aboriginal society this last point is very important, particularly as the police had already charged the culprits with the substantive offence.

Speaking about the Wulaign vehicle in the NT Legislative Assembly on 7 February, 1991, Mr Hatton said "I believe the onus rests on the applicant to justify why I should consider returning the vehicle. It is not up to me to justify why I should not return it.", and "If the Wulaign Association is serious about this, why doesn't it go to the offenders and, charge them for the cost of the vehicleit lost. Surprisingly, given those sentiments, the Minister advised Wulaign on 15 April, 1991, that acting on legal advice the vehicle would be released to it but the letter also warned that:-

"The exercising of my discretion to return a vehicle may not go in favour of your community should further breaches of the Liquor Act occur."

Thus a final warning that the owner of any vehicle misused in similar circumstances in future could be subjected to the same treatment.

The remote Duck Pond outstation was deprived of the use of the vehicle for over ten months on the basis of a highly questionable police report, and because of serious confusion or error on the part of the two Ministers involved and their advisers as to the meaning of the legislation.

Abuse of alcohol is a very serious problem in the Northern Territory and may warrant serious measures to bring it under control to protect communities. The more stringent these measures are the greater the care which is needed in their administration to ensure that injustices do not occur.


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