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liquor licensing legislation: Tom Calma(2004)

Race Discrimination

'Implications of the Racial Discrimination Act 1975 with reference to state and territory liquor licensing legislation'

28 OCTOBER 2004, Tom Calma
Acting Race Discrimination Commissioner and
Aboriginal and Torres Strait Islander Social Justice Commissioner

34th Australasian Liquor Licensing Authorities' Conference
26-29 October 2004
Hobart, Tasmania

I would like to acknowledge the traditional owners of the land where we are meeting today and pay my respects to their elders.

I am grateful, as a representative of the Human Rights and Equal Opportunity Commission (HREOC) for the opportunity to address you today. I have been asked to speak with you regarding the implications of the Racial Discrimination Act 1975 (Cth) on liquor licence conditions and restrictions in Indigenous communities. I may at times refer to this act as the RDA.

The RDA is one of a suite of anti-discrimination laws which exist at the Federal level and which prohibit particular conduct by people at all levels of Australian society. The Act makes it unlawful to discriminate against a person on the basis of their race, as well as making speech which amounts to racial hatred or vilification unlawful.

But the RDA does more than prohibit particular acts or speech. It also has a role to play in addressing racial inequalities in Australian society, as well as in promoting racial tolerance. The focus of my presentation today is going to be on both this first, negative or prohibitive aspect to the legislation, as well as this second, positive aspect.

Generally speaking, the purpose of my talk is to identify issues which may arise under the RDA in relation to the creation of restrictive conditions on liquor licences in Indigenous communities, and in areas surrounding those communities. The Act is also relevant to the manner in which the condition is enforced and how the decision to impose the condition was arrived at, that is, what was the level and type of consultation with the community and are the restrictions a 'community-decision'?

I would also like to move away from the more legalistic aspects of these issues and raise for consideration the broader issue currently being debated around the country, that is, the efficacy of restrictions on the purchase and distribution of alcohol. In terms of Indigenous substance abuse, is it sufficient to address just the supply aspects of alcohol without addressing the causes for demand? I'll address this in more detail shortly.

Before I delve into these issues though, I will briefly explain the role and functions of the Human Rights and Equal Opportunity Commission. I have recently been appointed as the Aboriginal and Torres Strait Islander Social Justice Commissioner as well as Acting Race Discrimination Commissioner.

HREOC has existed in its current form since 1986. We are statutory body and are effectively independent from the government.

Although the Government funds us and appoints Commissioners and the President, and is able to exercise some control through these processes, it cannot direct our work program, the content or findings of our research and public consultations, or control the messages that we ultimately deliver to the public.

The Commission is mandated to conduct essentially four core activities.

First, we are the first port of call in the resolution of discrimination disputes. HREOC has a role under the Race Discrimination Act, Sex Discrimination Act, Disability Discrimination Act,Human Rights and Equal Opportunity Commission Act and also the Age Discrimination Act which was enacted in June 2004, to conciliate complaints of discrimination.

Formally, this role is conferred on the President of the Commission. If someone has been discriminated against on one of the grounds covered in these pieces of legislation, then they have a right to lodge a complaint with HREOC that they have been treated unlawfully. HREOC's role is first to determine whether the complaint falls within our jurisdiction, and if it does, to attempt to resolve it through the informal process of conciliation. Where a dispute cannot be resolved, the President terminates the complaint and the complainant is then free to lodge an application to have the matter determined in the Federal Magistrates Court or Federal Court.

Second, and related to this, the Commission has an advocacy role in the Courts relating to discrimination matters specifically and human rights matters more generally. In relation to discrimination matters, when a discrimination complaint goes to a court, individual Commissioners (as opposed to our President, who dealt with the complaints when they came to the Commission) can apply to the court to be what is known as an amicus curie or friend of the court, to assist by putting arguments as to how the court should interpret the law so it is applied consistently with human rights principles. The previous Acting Race Discrimination Commissioner was granted amicus status in order to put arguments relating to how the court should interpret racial hatred laws.

The Commission as a whole also exercises its intervention function. Examples of this have included interventions in High Court cases on native title, the Tampa dispute, and the detention of children in immigration detention centres.

Our third primary role is conferred principally on the individual Commissioners - that is the Race Discrimination Commissioner, the Sex Discrimination Commissioner, the Disability Discrimination Commissioner, the Aboriginal and Torres Strait Islander Social Justice Commissioner and the Human Rights Commissioner. It is a monitoring role whereby we are empowered to promote understanding of human rights and how they apply to particular issues or groups - such as to indigenous people in the role of Social Justice Commissioner or in the prevention of racial discrimination in the role of Race Discrimination Commissioner.

In accordance with the role of Social Justice Commissioner it is my job to report annually to the Federal Parliament, through the Attorney-General, on the status of enjoyment of indigenous human rights (the Social Justice Report), and also on the impact of the Native Title Act on the human rights of indigenous peoples (the Native Title Report).

The fourth main role is an educational role. This extends from designing curriculum for courses, to the development of plain English guides to human rights and the maintenance of an extensive website on a range of human rights issues.

The role of the Social Justice Commissioner, by legislation, must be filled by someone with significant experience in the community life of indigenous peoples. It was established as a result of the Royal Commission into Aboriginal Deaths in Custody due to the concern that there needed to be an ongoing body to monitor the status of human rights protection for indigenous peoples.

Under section 46K of the HREOC Act, I also have powers to obtain information from government agencies (at Federal, State and Territory levels).

HREOC also has a number of functions under the RDA which I am largely responsible for. These include promoting an understanding of, and compliance with, the Act, to conduct educational programs to combat racial discrimination and prejudices that lead to racial discrimination; as well as developing guidelines on the interpretation of the Act to promote compliance.

1. Overview of relevant provisions of the Racial Discrimination Act

The RDA is a fairly faithful implementation in our domestic system of an international treaty which Australia is a party to, namely the International Convention on the Elimination of all Forms of Racial Discrimination, or ICERD.

The Act has three main provisions relevant to the issues we are discussing today: sections 8, 9 and 10:

  • Section 9 prohibits discrimination on the basis of race, colour, descent or national or ethnic origin. This can be either direct or indirect discrimination;
  • Section 8 allows for an exemption to direct discrimination where the circumstances of the situation can be described as a special measure; and
  • Section 10 enables a law to be found invalid if it does not provide equal enjoyment of rights on the basis of race.

Let me explain.

Section 9 (1) of the RDA prohibits direct discrimination on the basis of race. Direct discrimination occurs when someone is treated less fairly because of their race than someone of a different race and which has the effect of impairing their ability to exercise their human rights in a wide range of areas of public life. For example, it could be directly discriminatory if a real estate agent did not rent a house to a person because that person is an indigenous person in circumstances where they would be prepared to rent the same house to a non-indigenous person.

An action that breaches section 9 (1) (or other related provisions in the RDA such as section 13 relating to the provision of goods and services) will be unlawful under the RDA. However, the special measures provision of the RDA in section 8 sets up an exception to this. I will discuss the content of this later - but in essence, an action will not be considered discriminatory if it can be established that the purpose of the differential treatment is to confer a benefit on a particular racial group in order to remedy their unequal or disadvantageous level of enjoyment of human rights.

Some acts of discrimination, however, are more subtle than direct discrimination and do not involve a direct exclusion or preference being given to one racial group over another. This is described as indirect discrimination and is set out in section 9 (1A) of the RDA. Indirect racial discrimination can occur when a rule is applied to everyone, but it affects people of a particular race more harshly than other groups and it is not reasonable. For example, a rule that only people over a certain height can be employed in a particular job could be applied to everyone 'equally'. However, it may disadvantage some races more than others. The rule may be indirectly discriminatory if the height requirement is not necessary to do the job and is not a reasonable requirement.

There are a number of factors that a person must satisfy if they were arguing that an action amounted to indirect discrimination under the RDA. They are:

  • That a term, condition or requirement was imposed on the complainant
  • The requirement to comply must have interfered with the recognition, enjoyment or exercise, on an equal footing, by persons of the same race as the complainant, of any relevant human right or fundamental freedom
  • The complainant does not or cannot comply with that term, condition or requirement, and
  • That the term, condition or requirement was not reasonable.

There are two issues I will discuss in more detail in relation to indirect discrimination as it might apply to the context of restrictions on liquor licences. These are issues relating to:

  • Compliance with the term, condition or requirement and
  • The reasonableness of the term, requirement or condition.

Finally, there may be some circumstances in which someone may wish to challenge the very terms of a piece of state legislation, such as a state or territory liquor licensing Act, as being racially discriminatory rather than the discretionary decisions of, for example, a liquor licensing director in exercising his or her powers under that Act. If someone can establish that a state Act is inconsistent with the provisions of the federal RDA, then according to the Commonwealth Constitution, the federal Act will prevail to the extent of the inconsistency. If someone were to take this course of action, they would have to seek a declaration from a court under section 10 of the RDA that the state legislation is invalid to the extent of the inconsistency with the RDA. However, this particular course of action is carried out independently of the Human Rights and Equal Opportunity Commission and is not the subject of my discussion today.

In terms of liquor licence conditions, variations and declarations, I note that these are framed differently across Australia. It is not possible, within the constraints of this speech, to discuss every possible type of licence condition to decide whether it may or may not comply with the RDA. Therefore, I will attempt to address what appear to be some of the main forms of liquor restrictions imposed in order to then consider the possible impact of the RDA on those restrictions - some licence conditions may potentially raise issues of direct discrimination and special measures, whereas others may raise issues of indirect discrimination.

Before going on to do this, I think it is important to note that the legal testing of the issues I am about to raise in the specific context of liquor licensing will only occur if a complaint is made about the imposition of certain restrictions on a liquor licence. It is possible to imagine circumstances where this may occur, for example, a disaffected member of an Indigenous community who does not agree with the approach taken by other community members who support the restrictions placed on a particular liquor outlet, or by a non-Indigenous person who is unhappy with restrictions that apply to everyone who lives in a particular community. To date, there have been no complaints lodged with the Human Rights and Equal Opportunity Commission about these issues, and no federal court cases that have considered the specific issue. Therefore, a lot of what I am about to discuss is based on our thinking about the issue and applying principles from decided cases in other areas.

2. Direct Discrimination and Special Measures

Where the wording of a licence condition refers to a prohibition or limit on the supply of alcohol to indigenous people specifically, this may raise issues of compliance with the direct discrimination provisions of the RDA. An example of this is a condition which prohibits a licensee selling alcohol to any indigenous person belonging to an aboriginal group in a township.

However, as I mentioned earlier, the RDA exempts a range of actions from being unlawful discrimination if they constitute a special measure. These are actions which on their face might be seen as favouring a particular racial group, but are in fact required in order to raise a group suffering entrenched disadvantage to a level of rights enjoyment equivalent to the mainstream community.

The special measures provision is contained in section 8 of the RDA, and its rationale stems from the acknowledgement under international law that if you treat people who are not equal in exactly the same way, you will not achieve actual equality between them - all you will do is perpetuate the inequality between them.

So to use an analogy, if there are two people stuck down two different wells, one of them is 5m deep and the other is 10m deep, throwing them both 5m of rope would only accord formal equality. Clearly, formal equality does not achieve fairness. The concept of substantive equality recognises that each person requires a different amount of rope to put them both on a level playing field.

Therefore, if an act such as the imposition of the licence condition fits the criteria for a special measure, then it will not be unlawful discrimination under the RDA.

2.1 Characteristics of Special Measures

Special measures have some essential characteristics. These were set out in a High Court decision in 1985 called Gerhardy v Brown.(1) In that case, Justice Brennan recognised that a law or condition (or policy) will constitute a special measure if:

  • It confers a benefit on some or all members of a class, and membership of this class is based on race, colour, descent or national or ethnic origin;
  • It is for the sole purpose of securing adequate advancement of the group so that they may enjoy and exercise equally with others, their human rights and fundamental freedoms;
  • The protection given is necessary so the group may enjoy and exercise equally with others, their human rights and fundamental freedoms.

It is important to note that Justice Brennan qualified this by saying that:

  • The wishes of the members of the class are relevant - a special measure will not bring about advancement if it is conferred against the group's will, and similarly, an advancement cannot confer benefits which convert members of the class from a disadvantaged class into a privileged class;
  • The special measure must not maintain separate rights; and

  • The special measure must not be continued after the objectives for which they were taken have been achieved - although this does not mean that it is necessary that the special measure be created with a finite time for its existence.

2.2 Special Measures and Alcohol Restrictions

An interesting dilemma is raised, however, by alcohol restrictions. This is because normally, special measures treat a disadvantaged group advantageously - but in relation to alcohol restrictions - on the face of it - we are treating the disadvantaged group, disadvantageously, that is, restricting a person's right to purchase 'goods'.

In terms of 'dry community laws', or externally imposed restrictions, the question is: do these restrictions actually, in effect, confer a benefit? If the action does not confer a benefit, then the action does not meet the requirement of being classified as a special measure and may constitute unlawful discrimination.

In terms of Indigenous substance abuse, this is where arguments feature around whether it is sufficient to address just the supply aspects of alcohol, without addressing the causes for demand. Restrictions on alcohol supply, and the conditions used to implement them, need to be argued a little differently because, strictly speaking, they do not seem to confer a benefit. In fact, appearance wise, they seem to achieve exactly the opposite.

HREOC's Alcohol Report, published in 1995, considers the fact that while you might be detracting from the rights of the individual to alcohol by virtue of the restriction, you may be in fact conferring rights on the group as a result (known as 'collective rights'). In the Alcohol Report, the Commission reasoned that alcohol restrictions could be conceived as conferring some benefits in terms of the 'collective rights' it might promote in Indigenous communities. Such benefits might be a reduction in the incidence of violent crime, a reduction in the rate of Indigenous incarceration, and an increase in money available for food.

Certainly the object of many State and Territory Acts which restrict alcohol is the promotion of these collective rights, in particular freedom from violence in indigenous communities.

However, before we can presume that alcohol restrictions fall into a class of 'benefit conferral' that would allow us to consider whether they meet the rest of the special measures criteria, I make a disclaimer: ultimately it would be up to a court to decide whether a particular restriction on alcohol does in fact achieve outcomes such as reduced incarceration rates and decreased violence and whether or not the measures taken amounts to a special measure under the RDA.

The question for a court might be: where is the proof that alcohol restrictions or supply limits achieve these rights?

The answer to this question might in fact be contingent upon whether the condition or restriction was at the request of the community (which in fact then raises issues as to how we define the request or consent of the community as a whole).

Alternatively, a judge might look at external reviews of liquor restrictions and their effect. An example of such an external review is the Federal Attorney-General's 2001 Report on Violence in Indigenous Communities(2) which puts forward the view that alcohol restrictions implemented in isolation of measures to address why people abuse alcohol will only exacerbate the consequences that restrictions were designed to prevent, in particular, Indigenous family violence.

It suggests that restrictions may encourage a defection of community members from their home communities to places where alcohol is available and that restrictions can lead to binge-drinking and drink driving in places where alcohol can be readily obtained by those community members. Similar research has shown a rise in other forms of more dangerous substance abuse where alcohol is not available. I want to come back to this point a little later.

We are still awaiting the results of documents such as the alcohol management plan review in Queensland. However I think the net effect is that whether a benefit has been conferred by the restriction or condition might also hinge on the range of policies, laws or practices in place to address the cause of alcohol abuse in Indigenous communities.

So, I would imagine what you want to know is whether certain licence conditions or variations that you impose, which initially appear to discriminate against an aboriginal community, fall into the lawful category of a special measure.

Unlike most other federal, state and territory anti-discrimination legislation, the RDA does not provide a process for obtaining an exemption certificate or some type of warranty that your particular condition, restriction or variation is a special measure and therefore does not contravene the Act. There have been instances where previous Race Discrimination Commissioners have issued 'special measures certificates' for liquor licence variations - but there are a number of issues which will now caveat this practice in the future. These include the fact that:

  • HREOC is going to review whether it will continue the practice of issuing special measures certificates at all;
  • In the instances where HREOC has issued those certificates, it has been at the community's request - and in areas where the community has declared itself 'dry' of its own volition;
  • The certificates have no legal status. They are not binding and they do not prevent complaints being made to the Commission about the restrictions imposed. Nor would the existence of a certificate guarantee that a court would classify a licence restriction as a special measure if a complaint were lodged and it proceeded to a hearing.

In other words, there is no certainty that the condition, variation or restriction is a special measure (and therefore lawful) until it is legally challenged and a court has deemed it so.

However, as I previously noted, the decision in Gerhardy v Brown sets out some important principles that will assist when considering whether a particular restriction constitutes a special measure. One of the important issues here is that of community consultation.

In his decision, Justice Brennan notes HREOC's Alcohol Report and states:

"The wishes of the beneficiaries of the measure are of great importance (perhaps essential) in determining whether a measure is taken for the purpose of securing their advancement. In the Alcohol Report, Commissioner Antonios concluded: alcohol restrictions imposed upon aboriginal groups as a result of government policies which are incompatible with the policy of the community will not be special measures"

In Gerhardy, the importance of this consideration is that the special measure is not conferred against the "community's will".

If restrictions upon alcohol supply have not been the declared wishes of the community, but at the imposition of the government, it is not clear whether alcohol restrictions will meet this criterion.

This is important in places like Queensland where community justice groups have the power to recommend variations to licence conditions and to recommend dry-area declarations.(3) In Cape York, there may be a conflict in that the community justice group is often made up of non-drinkers and often is not entirely representative of their community's wishes. This is made even more compromising by virtue of the fact that the community council is the licensee in most cases and often opposed to the recommendations of the community justice group.

On a practical level, you may face dilemmas in implementing licence variations which may be out of step with the wishes of the rest of the community (or community council). This could lead to tensions between the community council and the community justice group.

3. Indirect Discrimination

I now wish to move onto the issue of indirect discrimination and to make some comments about licence restrictions which I understand may be more common across the country. This may arise where a condition is framed in respect of:

  • A defined geographical area instead of by reference to race, or
  • Where a particular outlet is restricted in when, and in what form, it can sell alcohol to all members of the public, without reference to race.

An example of the former is a condition that no alcohol be carried within the borders of a particular community. I understand that this is generally how some of the schemes in Queensland operate.

An example of the latter condition is provided by some recent decisions of the WA Director of Liquor Licensing(4) which imposed restrictive conditions on a number of packaged liquor outlets in Derby. This resulted from an inquiry conducted in accordance with the WA Liquor Licensing Act into the level of alcohol related harm experienced in that community. The conditions included restricted trading hours, limits on the availability and quantity of certain types of high risk liquor products, as well as a ban on the advertising of full-strength "mainstream" packaged beers, ready-to-drink wine/spirit mixes, two litre wine casks; and spirits.(5) Some exemptions were made to cater for the needs of special groups such as tourists, pastoralists, station owners and lodgers,(6) but the restrictions and exemptions were imposed without reference to race.

In these types of cases, the restrictions may attract complaints of indirect discrimination. You will recall the four factors that a complainant must establish in order to make out a complaint of indirect discrimination. These are all equally important, but there are two factors that I wish to briefly talk about in more detail as I think they raise issues that are particularly relevant to today's discussion:

  • That of a complainant's ability to comply with a condition, and
  • The reasonableness of that condition.

The onus of proving inability to comply and that the condition is not reasonable is on the person who makes a complaint of indirect discrimination.

3.1 Ability to Comply

For the purposes of illustrating the point, it is useful to look at the Western Australian cases I mentioned as an example. A person might argue that as a result of the decision of the WA Director, that person is required to comply with the conditions that they can only purchase full strength packaged liquor between 12 noon to 8pm Monday to Sunday from the hotel(7) and that their ability to purchase wine in casks or flagons is limited to one two litre cask or flagon per day.(8)

In order to make out a complaint of indirect discrimination, a complainant would be required to establish that they do not or cannot comply with these conditions. It is difficult to immediately see how this could be satisfied unless one were to argue, for example, that the addictive effects of alcohol make this requirement practically impossible to comply with,(9) or make an argument to the effect that the person cannot comply with the condition "by reason of the cultural imperatives or other attributes of that person's race".(10)

I think it goes without saying that the latter argument, if it were to be made, would be highly contentious particularly from the perspective of many Indigenous people. The former argument is not one that has been tested before the courts. However, I think it may be difficult for a person to successfully rely on it as the conditions I have referred to are not prohibiting the sale of alcohol altogether, but limiting its availability to certain times and in certain forms.

3.2 Reasonableness

In order to establish indirect discrimination, it is necessary to show that the term, condition or requirement is not reasonable. Although a complainant bears the onus of showing that a requirement is unreasonable, the steps you take in your role as a liquor licensing agency in considering whether to impose restrictive conditions will have an impact on whether those conditions are ultimately found to be reasonable or not. In considering whether or not a condition is reasonable, decided cases have held that the reasons for the imposition of the requirement or condition have to be weighed against its discriminatory effects, and all of the circumstances of the case must be considered.(11)

Arguing that a requirement is not reasonable involves showing the nature and extent of the disadvantage suffered. This will usually be done when showing the rights and freedoms that have been damaged and why the affected person does not or cannot comply with the requirement.

It is then necessary to show that the disadvantage is not justified. To do this, the reasons of the person imposing the requirement need to be considered. For example, they may be imposing the requirement for legal reasons (for example, health and safety requirements). Financial circumstances, such as the cost of not imposing the requirement, may also be relevant. It can be important to consider what the requirement is intended to achieve and also to show that this can be done in another, less discriminatory, way.

In HREOC's Alcohol Report, the Commission suggested that a factor a court may consider to be integral to the reasonableness of a liquor licence condition is that a community has declared itself dry, as opposed to having a regime of restrictions imposed upon it legislatively.

In the Alcohol Report, that issue was discussed in relation to the request by the Ngaanyatjarra, Pitjantjatjara, Yankunytjatjara (NPY) communities that the Curtin Springs Roadhouse vary its licence to ban sales of liquor to residents of NPY communities and people it suspects are visitors to the NPY communities. A court has not spoken directly on whether these issues will be conclusive of the reasonableness of the condition and therefore its lawfulness - but it is important to bear this suggestion in mind for two reasons.

First, in Queensland, unlike the Northern Territory, South Australia or Western Australia, communities do not have the option of declaring themselves dry - restrictions are imposed externally.

Second, if a court agrees with the position taken in the Alcohol Report, the type of consultation your agency has undertaken with the affected community may be relevant. The question might be whether you have only consulted with a select group in the community.

The message that comes out of this, as discussed in my previous discussion about special measures, is the importance of consulting with Indigenous communities who may be affected by the conditions you are considering imposing. Doing so has an important practical effect in reducing the chances of a court finding that the condition is unreasonable in the context of determining a complaint of indirect discrimination. More fundamentally, it recognises the importance of members of Indigenous communities having a voice in decisions to limit or prohibit the availability of alcohol to their members.

4. Conclusion

I have already emphasised the importance of ensuring informed, real community consultation when considering alcohol restrictions in Indigenous communities. The Fitzgerald Cape York Justice study last year warned that the current regime of alcohol restrictions in Queensland Indigenous communities would not be successful unless the communities were behind them(12). However there is another issue that must be contemplated, and that is the evidence for the fact that alcohol restrictions often do not tackle the problems of violence and neglect despite these being the reasons for the restrictions in the first place.(13) More to the point, there seems to be evidence suggesting that alcohol restrictions in isolation of any mechanism to address why people are abusing alcohol actually entrench the problems that the restrictions were designed to stop. As I have mentioned, these are the 'collective rights' you would think alcohol restrictions would promote if they could be classified as a special measure.

So there are some important things to note here. When we look at why governments consider alcohol restrictions in Indigenous communities - and rarely would they do so in mainstream, non-Indigenous communities - we need to look at why the patterns of indigenous alcohol-consumption are so different, if in fact they are. It has often been said that in Aboriginal communities, people don't just drink for the enjoyment and then happen to get drunk. Maggie Brady's book published this(14) remarks that of Indigenous people who drink, 80% do so in hazardous proportions. It is a form of self-medication. The concept of self-medication accords with the profile of typical alcohol-abuse in mainstream society also. The difference is the proportion of people feeling the need to engage in this self-medication.

The underlying problems government (and some communities) had hoped to eradicate by virtue of restrictions have been highlighted by a great amount of literature over the last 30 years beyond just the 2001 report of the Attorney-General's Department I mentioned previously. These include the Pathways Report(15), the Fitzgerald Inquiry in Queensland(16) and the Gordon Inquiry(17) in Western Australia. Where these reports have recommended an approach to alcohol management, they have first and foremost recommended methods dealing with 'demand'.

In terms of domestic violence, a recent report addressed the cost of family violence to the tax payer.(18) It noted that a fundamental cause of perpetration of violence was having been a victim. Balancing this with the rest of the research seems to make a very good case for the view that alcohol is often a medium turned to in order to self-medicate past wounds of domestic violence, child abuse, dispossession and dislocation from country and culture, disempowerment, lack of self worth, self esteem etc.

Alcohol restrictions from the indigenous perspective have therefore been identified in criminology as a situational crime prevention technique. It is argued that this is not sustainable on its own, because it is not an underlying crime prevention technique. Situational methods can have a negative effect if there is not a regime of programs addressing the underlying issues. This was the thesis of the 2001 Attorney-General's Report I mentioned earlier.

In terms of the argument that restrictions can only exacerbate social problems, a non-government review of a Queensland community that had been subject to restrictions revealed some interesting statistics.(19) While there was a decrease in alcohol-related injuries presenting to the clinic, many of the violent offenders were found to be displaced elsewhere, to areas where alcohol is readily available. Some places say there has been an increase in homeless people in towns when community members from dry areas have left in search of a place with alcohol available.

Certain areas which have never dealt with a sustained petrol sniffing problem are saying that they now have a sudden epidemic of petrol sniffing as people look for an alternate substance by which to self-medicate. Research around community courts has also suggested an increase in drink driving offences and drink driving related offences as people travel long distances on dirt roads to obtain alcohol at another location, drink as much as they can while it is readily available and then realise that its not their country to sleep on - so they travel back to their country drunk.

I do not wish to focus on prevention issues (as I have just discussed) at the sacrifice of acknowledging the important rehabilitation strategies or methods of combating drunkenness that have been initiated both by the community and governments. I note that Maggie Brady addresses the need for these programs and the fact that we need to start evaluating their effectiveness. However I strongly believe that both factors of prevention and rehabilitation need to be taken into account if we are serious about successful, sustainable methods of tackling the social problems we associate with alcohol-abuse.

I thank you for the opportunity to present this afternoon. Your roles are challenging and I am sure difficult in endeavouring to meet the needs and demands of many different interest groups. As Race Discrimination Commissioner I encourage you as individual authorities and as a national network to maintain a dialogue with my office so that contraventions of the RDA or human rights generally can be avoided. I support a partnership approach to address this most serious epidemic in Indigenous societies.

I am happy to respond to questions and to assist me are Christine Fougere, Director of the Race Discrimination Unit and Natalie Siegel, Senior Policy Officer with my Social Justice Unit. I will also leave an edited version of the HREOC submission to the NSW Alcohol Summit. Thank you.


  1. (1985) 159 CLR 70.
  2. Memmott, Stacey, Keys & Chambers, Violence in Indigenous Communities, Full Report to Crime Prevention Branch of Commonwealth Attorney-General's Department, Canberra 2001.
  3. Section 173I Liquor Act 1992 (Qld)
  4. A126408 (23 February 2004) and A147051 (30 September 2004).
  5. Set out in full at pages 29-30 of A126408 and summarised at page 1 of A147051.
  6. A126408, page 29.
  7. A126408, page 29.
  8. A126408, page 30.
  9. Australian Medical Council v Wilson (1996) 68 FCR 46, 80 (Sackville J).
  10. State Housing Commission v Martin (1999) EOC 92-975, 79,212.
  11. (1988) 84 ALR 408, 429. This formulation was affirmed on appeal in Secretary, Department of Foreign Affairs & Trade v Styles (1989) 88 ALR 621, 263 (Bowen CJ and Gummow J) and approved by the High Court in Waters v Public Transport Corporation (1991) 173 CLR 349, 395-6 (Dawson and Toohey JJ), 383 (Deane J), considering the Equal Opportunity Act 1984 (Vic).
  12. Justice Fitzgerald, Cape York Justice Study, Queensland Government 2001, pp93-94.
  13. The Indigenous Communities Liquor Licences Act 2002 (Qld) cites this as an objective of its restriction regime.
  14. Brady M, Indigenous Australia and Alcohol Policy: Meeting Difference with Indifference, UNSW Press, Sydney 2004, pp110-111.
  15. Pathways to Prevention, Report for the National Campaign against Violence and Crime and the National Anti-Crime Strategy, Developmental Crime Prevention Consortium, 1999 and Report of the Aboriginal and Torres Strait Islander Women's Taskforce on Violence, Department of Aboriginal and Torres Strait Islander Policy and Development, Queensland Government, 2002.
  16. Justice Fitzgerald, Cape York Justice Study, Queensland Government, 2001.
  17. Gordon Inquiry, Magistrate Sue Gordon's Report into Child & Sexual Abuse, Commissioned by the Western Australian Government, 2002.
  18. Access Economics, The Cost of Domestic Violence to the Australian Economy, Commissioned by the Office of the Status of Women, Canberra, 2004.
  19. Dr D Martin, Napranum Alcohol Management Plan Review, Commissioned by Cape York Partnerships, Queensland, 2004.