Blackshield, Simon --- "Alcohol Test Case" [1991] AboriginalLawB 44; (1991) 1(51) Aboriginal Law Bulletin 22

• Alcohol Test Case

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Alcohol Test Case

by Simon Blackshield

Bruce Miles, Principal Solicitor with the Aboriginal Legal Service in New South Wales, agrees with remarks made by an Aboriginal leader some years ago that "Just as important as land rights is the need for Aboriginal people to get off the booze and present a united front against their enemies".

The disease of alcoholism has not only destroyed the lives of countless individual Aboriginals, but has also undermined their collective ability to resist the persistent subjugation of their basic rights by the white Australian community.

It was against this background that Mr Miles and Barrister, Charles Kilduff took instructions to commence proceedings against the Commonwealth Government and Australian alcohol companies for their role in subjecting Aboriginal people to the disease of alcoholism.

The actions were commenced in Bathurst Local Court on behalf of Plaintiffs Alex Christian, Wayne Ryan and Sherry Lucas. All three are Aboriginal alcoholics - two of whom are currently in prison for offences committed whilst under the influence of alcohol.

In their Amended Statement of Claim the Plaintiffs claim that the Commonwealth has been negligent in its failure to control the disease of alcoholism as it effects the Aboriginal people in general and themselves in particular.

They argue that the Commonwealth failed to take the steps that it should have taken both to prevent the disease in the first place, and to enable the disease to be effectively treated once it had become widespread.

On 16 July, 1991, at Orange Local Court the Commonwealth sought to have the Plaintiffs' Amended Statement of Claim struck out claiming that it "discloses no cause of action in negligence". Essentially, it was being argued that the Commonwealth could not possibly be legally responsible for allowing Aboriginal people to fall victim and remain victim to the disease of alcoholism, no matter how strong a case could be argued on the merits.

The Local Court Magistrate hearing the matter, Mr Eland, acknowledged that the duty of care alleged by the Plaintiffs was a novel and controversial one, but concluded that there was "no legal principle" that necessarily prevented the Plaintiffs from being successful.

His Worship noted that the case of Sutherland Shire Council v Heyman (1985)157 C.L.R 424 stands for a broad legal proposition that government can be liable for a negligent failure to act "in the context of the relationship between government and citizen regarding the exercise of an actual conferred power".

He remarked that this relationship of government and citizen might not in itself be sufficient to create the type of duty of care argued for in this case, but then pointed out that as Aboriginal people the Plaintiffs are bringing their action as members of a special class, a class which has had that special identity from "day one" (ie. the date of European settlement).

On this basis, his Worship determined that it may be possible for the Plaintiffs to make out their case, and that accordingly, it was not appropriate to strike out the Statement of Claim.

His Worship identified the key questions to be determined in the Trial as being firstly whether the Commonwealth had "dealt with the Aboriginal race so as to create a duty of care owed to the Aboriginal race as a special class", and secondly whether the Commonwealth, over the course of time, "either through action or inaction (had).... conducted itself in such a way as to create a right in the Plaintiffs to sue for damages".

Answering the first question will involve looking at the entire history of the relationship between the Commonwealth Government (and its predecessors) with the Aboriginal people.

It was argued for the Plaintiffs that in the case of Gala v Preston, decided on May 28 this year, the High Court majority stated that where a court is required to determine whether a sufficiently proximate relationship exists to create a duty of care in a "developing area of the law of negligence", there are a number of factors that need to be considered, and that these factors include policy considerations. One question that will arise in this case is the extent to which the planning and policy operations of Government can be subject to judicial scrutiny.

As to the second question of whether the Commonwealth action or inaction had created a right of suit in the Plaintiffs, His Worship identified as the novel issue "the non-feasance of government concerning policy in action where there is a duty or obligation (to act)".

Mr Eland L.C.M considered that if the case is argued on the basis of non-feasance (as opposed to positive acts of negligence) it would be necessary for the Plaintiffs to show both that a state of affairs existed that imposed an obligation on the Commonwealth, and also that the Plaintiffs relied on that state of affairs existing.

It is worth noting that in Heyman's Case, Mason J (as he was then) suggested that it was not necessary for this "reliance" to be based on previous positive conduct of the Defendant, or that the Plaintiff act to his detriment on the basis of that reliance.

It is also worth noting Gaudron J's suggestions in Hawkins v Clayton (1988)164 C.L.R 539 at 569-7 that in the context of negligent omissions, it is more appropriate to talk of "reasonable expectation" than "reasonable reliance", and that the test for "reasonable expectation" would be satisfied where a member of the class to which the Plaintiff belongs would have that expectation "if.... (he).... turned his mind to the matter".

The Commonwealth has now issued a summons in the Administrative Law Division of the New South Wales Supreme Court seeking a prohibition order against the Magistrate to prevent him from proceeding to a hearing of the case at Orange and requesting that the Magistrate's order dismissing the Commonwealth's Notice of Motion be quashed. The Commonwealth also now seeks a Declaration from the Supreme Courtthat the Plaintiffs' amended Statement of Claim discloses no cause of action in negligence.