Flynn, Martin --- "Supply of Kava: Is it Another 'Aboriginal' Offence?" [1991] AboriginalLawB 63; (1991) 1(53) Aboriginal Law Bulletin 10

• Supply Of Kava: Is It Another ‘Aboriginal’ Offence?
• Introduction
• What Is Kava?
• The Offence
• The Law Is Changed
• The Issues

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Supply of Kava: Is it Another ‘Aboriginal’ Offence?

by Martin Flynn

Introduction

On 2 August, 1991, Gray SM, sitting in the Court of Summary Jurisdiction at Darwin, dismissed a charge of supplying Kave contrary to s.19 of the Consumer Protection Act (NT) (the ‘CPA’). The defendant was an Aboriginal person. The dismissal of the charge occured after the police indicated that they were not proceeding with the charge. It was the first time in the Northern Territory that a person had been charged with supplying Kava.

What is Kava?

Kava is the name given to a drink prepared from the root of a plant called piper methysticum. The most common method of preparing the drink to crush the root of the plant to form a powder. The powder is wrapped in cloth and soaked in cold water. The infused water is then consumed.

Kava consumption is usually associated with the indigenous people and culture of southern Pacific Islands.[1] It was introduced into the NT in early 1982 and was consumed regularly, at least until 1984, in a number of Aboriginal communities.[2] Since 1984, kava has been largely controlled by community bans or restricions on its consumption.[3]

The effects of heavy consumption of kava can be numbness of the mouth and skin, euphoria, incoordination and sedation.[4] Some of these effects are similar to alcohol. However, kava users do not display the frequently violent, anti social effects associated with acute alcohol consumption.[5] This distinction is thought to be one reason why some Aboriginal communities embraced kava as an alternative to alcohol.[6] Other reasons suggested for the populatrity of kava in Aboriginal communities include the facts that under s.75 of the Liquor Act (NT), the possession or consumption of alcohol is an offence in many Aboriginal communities and that kava consumption is a social activity that can be enjoyed by a large group.

Unfortunately, there is medical evidence to show that kava consumption is associated with a number of health problems experienced within some Aboriginal communities:

“...kava can, directly or indirectly, cause malnutrition and weight loss, liver and renal disfunction, a rash, red eyes, shortness of breath, and possible incoordination and pulmonary hypertension...”[7]

The Offence

Section 19 of the CPA created an scheme for the making of an Order by a Minister restricting or prohibiting the sale or supply of ‘dangerous’ goods.[8] It was an offence to contravene an Order; the penalty was $500 or 3 months gaol or both.[9] On 13 June 1990, the Minister published an Order in the NT Government Gazette (No.G23) prohibiting the supply or sale of:

"Kava (Piper methysticum). Any portion of the plant piper methysticum or any drink prepared from any part thereof (except in accord with the Minister's approval)."

A Ministerial Order could not be made unless the Commissioner of Consumer Affairs for the NT had carried out an investigation into nominated goods and reported to theMinister. The report must conclude that the goods were likely to cause death or injury to the body or health of any person.[10] Interim orders could be made by the Minister once an investigation under the CPA had been commenced.[11] The Minister's Order relating to kava was the first time the CPA had been used in relation to a 'good' other than hardware,[12] crockery,[13] toys,[14] weapons,[15] or a portable spring exerciser.[16]

The Law is Changed

The CPA has been repealed and replaced by the Consumer Affairs and Fair Trading Act (WI )1991 ('CAFTA'). which commenced on 1 April 1991. Sections 28 to 32 of CAFTA create a similar, but not identical, scheme to s.19 of CPA. The major differences between CPA and CAFTA are as follows:

(a) The offence under CPA was triggered by an order of the Minister. The sanctions of CAFTA commence with the publication of a Notice in the Government Gazette by the Minister.[17] Under the transitional provisions, an Order in force under CPA has effect as if it were a Notice published under CAFTA.[18] The consequences of a Notice under CAFTA are dealt with in (c) below;

(b) As under the CPA,[19] an investigation by the Commissioner of Consumer Affairs and a report to the Minister are preconditions to the publication of a notice in the Government Gazette by the Minister under CAFTA[20]. However, the criteria to be addressed in the respective reports differ. Under CAFTA the report must conclude that the specified goods are dangerous to health or a possible source of danger to health.[21] Under CPA, the report must have concluded that the goods were likely to cause death or injury to the body or health of any person whether directly or indirectly.[22]

(c) The contravention of the Minister's Order was an offence under CPA.[23] The effect of the contravention of a Notice under CAFTA is three-fold. First, an offence is committed, the penalty for which is a fine not exceeding $20 000.[24] Secondly, CAFTA contains extensive provisions concerning other remedies, statutory defences, procedural matters etc., that apply in relation to proceedings for the bcontravention of notices.[25] Thirdly, under s.32 of CAFTA a civil cause of action is created in favour of the person to whom goods are supplied ('the purchaser'). The purchaser may recover from the supplier (as a debt due) any money paid for the good. Consequently, a person may purchase kava, consume it and then recover the purchase price from the supplier![26]

The Issues

The use of CPA - and now CAFTA – in relation to kava, in the manner described above, raises a number of issues. Firstly, CAFTA is ill-suited to implement complex social policy. The possibility of a purchaser of kava being able to recover the price paid from the seller has been noted above. The legislation is designed to deal with ignorant or unscrupulous suppliers of novel goods that are dangerous. This is a laudable objective. However:

(a) kava is not novel. The immediate effects of kava consumption (euphoria etc.,) have been known for at least 100 years.[27] The possibility of kava causing adverse effects on physical health has been known since at least 1988.[28]

(b) kava is different from 'goods' of the nature of hardware or toys. Kava is a drug.[29] The implementation of a policy to deal with a drug problem requires elements not found in CAFTA: community consultation, community support, community debate and flexibility.

Secondly, the use of criminal sanctions in relation to kava is questionable. One study of the effect of kava in Aboriginal communities concluded that criminal sanctions should not be part of any policy for the management of kava consumption:

"There is now a strong rationale to discourage the use of kava ... One course of action would be to ban the importation or sale of kava. Such a prohibition would be offensive to some Arnhem Land people, who have seen the value of kava in keeping their communities free of the violence and social disruption that is caused by alcohol. It would seem to be preferable to explain the current situation, to advise Aboriginal people to reduce their consumption of kava as much as is possible, to promote an adequate diet for those who continue to drink kava, and to provide Aboriginal people with the information and skills to reach their own decisions about the necessary social action to reduce the harmful effects of kava."[30]

Thirdly, the creation of any criminal offence by Ministerial Notice (and publication in the Government Gazette) is a matter of concern. A Ministerial Notice under CAFTA may not have to be laid before the Legislative Assembly.[31] Consequently members of the Legislative Assembly will not be afforded the opportunity to debate (and possibly disallow) the Notice. The effect of the Ministerial Order in relation to kava under CPA was to create a novel offence punishable by a fine of $500 or 3 months gaol or both.[32] Under CAFTA, it is now punishable by a fine of up to $20 000. Aboriginal people are the ones most affected by the Minister's Order. In the author's opinion, the lack of publicity and debate associated with the publication of an Order or Notice in the Government Gazette renders CAFTA an inappropriate vehicle for the creation of novel criminal offences.[33]

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[1] Alexander, K., Watson, C, and Fleming, J., Kava in the North: A Research Report on Current Patterns of Kava Use in Arnhem Land Aboriginal Communities, North Australia Research Unit, Darwin, The Australian National University, 1987. pp 9-13.

[2] Ibid, pp14-16.

[3] Ibid, p37.

[4] Alexander, K., et al, op cit,p 6; Mathews, John D; Riley, Malcolm D; Fejo, Lorna; Munoz, Estrella; Mans, Nicholas R; Gardner, Ian D; Powers, Jennifer R; Ganygulpa, Elizabeth; and Gununuwawauy, Bilin J.; Effects of the heavy usage of kava on physical health: summary of a pilot survey in an Aboriginal community,' Med J Aust 148,1988,p548.

[5] Alexander, K,et al, op cit, p30.

[6] Ibid, p.14.

[7] Mathews, John P., et al, op cit.

[8] Section 19 CPA was repealed by s.238, CAFTA. The repeal took effect from 30 April 1991: Government Gazette (GG) NoS20 of 28/3/91. It has been replaced by ss2&32 CAFTA.

[9] Section 19(7) CPA.

[10] Section 19(1),(3) CPA.

[11] Section 19(2) CPA.

[12] GG No. G26 of 29/6/79 and GG No.G23 of 12/6/85

[13] GG No.S5 of 21/2/80 and GG No.G31 of 6/8/82

[14] GG No. G10 of 13/3/81, GC No.G6 12/2/86, GG No.G36 of 10/9/86, GG 4/4/90 and GG 2/5/90

[15] GG No.G10 of 13/3/85.

[16] GG No.G17 3/5/89.

[17] Section 30(3) CAFTA.

[18] . Section 239 CAFTA. If the Minister's Order under CPA is invalid leg, it is ultra sires, s.19 CPA) then obviously the legislative intention cannot be given effect The validity of the Minister's Order is beyond the scope of this article.

[19] Section 19(1),(3) CPA.

[20] Sections 28,29 30(3) CAFTA.

[21] Section 30(3) CAFTA.

[22] Section 19(3) CPA.

[23] Section 19(7) CPA.

[24] Section 88 CAFTA.

[25] Part VI CAFTA.

[26] Section 32(2). CAFTA empowers a court to direct that satisfaction of the debt be by way of the repair or modification of the goods. A court would not contemplate such an order in a case where the good had been consumed.

[27] Alexander, K, et al, op cit p.1.

[28] Mathews, John, D., et al,op cit.

[29] The classification of kava as a 'drug' is justified by reference to pharmacological criteria such as its effect on the central nervous system: see Alexander, K., et al, op cit, pp2.536.

[30] Mathews, John, D., et at, op cit, p.555.

[31] The provisions for the disallowance of delegated legislation refer to "regulations, roles and by-laws : Part VII, Division 2 of Interpretation Act (NT). Question whether this would include a notice under CAFTA.

[32] Section 19(7) CPA.

[33] The Criminal Code Ad 1983 (NT) contains a provision excusing a person from criminal responsibility for an act in contravention of a statutory instrument if the statutory instrument was not known to the person and had not been published in the Government Gazette or otherwise reasonably made available or known to the public or persons likely to be affected by the statutory instrument: Section 30(3),(4).