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Legislating to counter grog fuelled violence

Frank Brennan |  13 June 2013

Frank Brennan on the road into Santa Teresa, Northern Territory. Old metal sign indicates that no alcohol is permitted aheadCountering alcohol-fuelled violence is a major public policy challenge in Australia, especially in the tropical north.

In 1998, the Queensland Government established an Aboriginal and Torres Strait Islander Women's Task Force on Violence. It reported on the adverse effects of gross alcohol consumption especially on Queensland's remote Aboriginal communities, located mainly in Cape York.

In 2001, the respected retired judge and anti-corruption fighter Tony Fitzgerald QC conducted the Cape York Justice Study for the Queensland Government. He set down five preconditions for workable and ethical laws and policies aimed at limiting the damage from excess grog consumption:

First, both Government and the community must accept responsibility. Second, the availability of alcohol and drugs must be controlled. Third, an intolerance of cultural and social abuse must be developed. Fourth, treatment and rehabilitation services must be strengthened. And fifth, the susceptibility of the Aboriginal population to alcohol and drug use must be addressed.

Most politicians who have wrestled with the issue have conceded that any measures adopted should be respectful of basic human rights and should not be racially discriminatory. But they have been stretched in seeking workable proposals. Aboriginal advocate Noel Pearson has been quoted with approval by Queensland Supreme Court justices saying, 'Surely the fact that the per capita consumption of alcohol in Cape York is the highest in the world says something about our dysfunction.'

Shortly the High Court of Australia is expected to rule on the validity of Queensland laws which restrict the possession or consumption of alcohol in public places on remote Aboriginal communities.

The Queensland Government has been backed by the Commonwealth arguing that the Queensland laws are not racially discriminatory as they apply to all persons in public places on these communities even though most of those persons happen to be Aboriginal. In theory, the laws could be applied to non-Aboriginal communities if they were suffering the same level of alcohol abuse and dysfunction.

The Queensland and Commonwealth Governments have also submitted to the High Court that the judges should not just focus on the citizen's right to have a drink but also on the right of other citizens to peace and security. They have said that this balancing act is 'quintessentially a matter for the legislative branch'. The Queensland legislative scheme will most probably be upheld by the High Court.

Meanwhile, the new Country Liberals Government in the Northern Territory led by Aboriginal Chief Minister Adam Giles has abolished the Banned Drinkers Register introduced by the previous Labor Government. That register listed almost 3000 problem drinkers who were unable to buy some types of takeaway liquor under a scheme which required all grog purchasers to provide identification at the time of purchase.

The NT Government scrapped the register claiming that it was ineffective and an unwarranted interference with the right of the ordinary Territorian to buy a drink without government surveillance. The NT police and hospital authorities are known to have strong concerns about this, claiming that hospital admissions and assaults have spiked since the abolition of the register.

The Commonwealth Government was furious that the register was scrapped. Adam Giles answered back to Canberra: 'The Prime Minister seems to think that just because someone has a ban on them, they will stop drinking, but there was nothing to stop third-party sales of grog and drunks still accessing alcohol through friends. One drunk was placed in police protective custody 117 times in one year. That's once every three days.'

The People's Alcohol Action Coalition (PAAC), a non-partisan Northern Territory community organisation seeking ways to limit grog damage, favoured the register provided it was accompanied by measures which make grog less available throughout the community. Dr John Boffa with a lifetime of experience as a doctor working with Aboriginal communities in and around Alice Springs has been a spokesman for the PAAC espousing:

  • increasing the price of the cheapest alcohol, for example cheap wines;
  • introducing a 'floor price' based on the current price of popular full-strength beer brands;
  • reducing take-away alcohol trading hours (including with days free of take-away alcohol sales); and
  • restricting the purchase of large volumes of alcohol.

The idea of a floor price has won bipartisan support in Canberra with Tony Abbott and Julia Gillard coming aboard.

The NT Government is now proposing a treatment scheme for up to 800 problem drinkers a year. It has introduced to Parliament its novel Alcohol Mandatory Treatment Bill. Any person taken by police into protective custody three times within two months for unacceptable behaviour while drunk in a public place will be assessed for treatment.

The drinker will be taken by police from protective custody to a centre where an assessment will be made within 72 hours by a 'senior assessment clinician'. The assessor must determine whether the drinker 'has lost the capacity to make appropriate decisions about his or her alcohol use or personal welfare'; the drinker's 'alcohol misuse is a risk to the health, safety or welfare of the person or others'; the drinker 'could benefit from a mandatory treatment order'; and 'there are no less restrictive interventions reasonably available'.

The assessor's report will then be considered by a three member tribunal usually consisting of a lawyer, a doctor and a community representative who may then make a mandatory residential order for the drinker to be detained and treated for up to three months in a secure treatment centre.

Undoubtedly most of those persons subject to mandatory residential orders will be Aboriginal but the law is so drafted as to be judged non-discriminatory. The protection of basic human rights is another matter when a body which is not a court is able to impose a three month mandatory residential order on a person purportedly not as punishment for a proven offence but as a precondition to medical treatment for someone who has not been determined to be mentally incompetent.

It is difficult to imagine any treatment being cost-effective if the person is not voluntarily undertaking the program. Many of these 800 inmates will rightly and grudgingly apprehend that they are being punished by being held in custody, and without a court order. The High Court is unlikely to uphold such a scheme.

The legislation will be debated in the Northern Territory Parliament on 27 June. Meanwhile the government says that a public consultation is underway. This will be a case of unprincipled, unworkable lawmaking unless the Northern Territory is more attentive to medical, legal and community opinion within its own jurisdiction and 'from down south'. Just because a proposal is novel doesn't mean it's a good idea. There are very good reasons why other jurisdictions have not thought of this solution before.


Frank Brennan headshotFr Frank Brennan SJ is professor of law, director of strategic research projects (social justice and ethics), Australian Catholic University, adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University. He chairs the Policy Committee of Jesuit Social Services. The JSS submission to on the Alcohol Mandatory Treatment Bill can be viewed here.

Pictured: Frank Brennan on the road into Santa Teresa, Northern Territory.



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Submitted comments

Alcohol abuse is a huge problem in Australia, both in Indigenous and non-Indigenous populations. Because of the injustice suffered by Indigenous communities in terms of loss of culture, self-esteem and 'place', the scourge of alcohol abuse is exacerbated. Restrictions and treatments will go some way towards solving the problem but ultimately the person in the grip of alcohol dependence must make the decision to seek help. And when there are myriad other problems to cope with this is heartbreakingly difficult.

Pam 12 June 2013

Of course there is a seemingly impossible correction to be made & as the Buddists say " change comes from within ".The damage began in 1967 when the ignorant voting public & politicians granted our first people 'citizenship ' without the slightest constraint .Those of us associated with remote communities at the time declared it was a unrestricted licence 'to poison themselves '.Those communities which had the presence of responceable management ,such as Balgo ,were promptly robbed of this support via insideous govt interference .Refer Paul Toohey " Fruits of Political Correctness " in the 'The Australian 'If unsourceable I can supply copy . Regards John

JOHN KERSH 14 June 2013

Only one comment in two days underlines our helplessness in the face of the alcohol problem in remote Aboriginal communities. What can we do? One can only support campaigners like Frank Brennan, who have the knowledge and experience to contribute to managing the problem. But how to resolve it? - A much more difficult question! Shifting focus to longterm unemployed urban youth and you very quickly see how so-called recreational drugs help people get through the long, boring day. Or perhaps longterm middle aged unemployed men in rural communities, most of whom are non-indigenous - again, alcohol helps dull the pain of incessant boredom. As Australia continues on its path of current economic orthodoxy, with increasing rates of unemployment and under-employment, we can expect social boredom to remain a problem. With a small population, most of it concentrated in about 20 cities on the coast, it is difficult to define markets to sustain full employment for people outside those cities. And without a generally sound economic base in rural and remote communities, unpaid voluntary work is not sustainable. For both indigenous and non-indigenous Australians in rural and remote areas, lack of employment opportunities is the main problem.

Ian Fraser 14 June 2013

I've only now had time to read yesterday's ES. Nonetheless, I think this is an excellent and very timely article, Fr Brennan. I tried last night (ABC’s ‘Lateline’) with little success to follow the Chief Minister’s argument relating to the Banned Drinkers’ Register (BDR), something like: Women are being bashed by drunks so we’ll now allow them to buy alcohol as before, watch the documented explosion of injured and dying women being treated in emergency departments following scrapping of the BDR, and AFTER the event, imprison and forcibly “treat” the perpetrators of drunken violence. Giles has talked about the right of Territorians to enjoy a drink as part of their way of life. That’s fine, but was it not only harm-causing problem drinkers who were on the register? The current NT government seems to have a “free market at all costs” ideology that over-rides logic, economic and legal realities. It also, as you note, transgresses the basic right of ordinary Territorians of all ethnic groups to live without alcohol-fuelled violence.

Patricia R 14 June 2013

Interested people should follow the debate in issues of the Alice Springs News, alicespringsnews.com.au

Gavan 14 June 2013

Exactly Ian F ,I have long argued against many academics theories .I call it the D/D syndrome , Dignity/Diet . Regards John

JOHN KERSH 14 June 2013

Today the High Court has unanimously upheld the validity of the Queensland grog laws. See Maloney v The Queen at http://www.austlii.edu.au/au/cases/cth/HCA/2013/28.html

Frank Brennan SJ 19 June 2013

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