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by Arlie Loughnan
In 1998, the Northern Territory Government enacted the Kava Management Act (‘the Act’). This article critically examines some of the criminal penalties imposed by the Act, raises questions about the justifications given for implementing criminal sanctions and questions the Act’s implications for Indigenous communities in the Northern Territory.
Kava is made from water infused with the crushed root and stem of the piper methysticum plant. It has been classed as a drug by reference to pharmacological criteria, and is said to relax the central nervous system and have a mood-altering effect.[2]
Kava is traditionally associated with the Indigenous peoples of the South Pacific, where it is consumed as part of traditional ceremonies.[3] Kava was introduced to Aborigines in northern Australia in the early 1980s by missionaries.[4] It has been said by Indigenous and non-Indigenous health workers that kava was promoted as an alternative to alcohol and perhaps even a ‘health drink’ or a ‘church drink’.[5] This has led some Indigenous commentators to conclude that Aboriginal people were like ‘guinea pigs’ in their involvement in kava use.[6]
It has been suggested that Aboriginal people may drink kava more frequently and in more concentrated amounts than kava drinkers of the Pacific Islands, as consumption does not take place within a traditional, customary context.[7] Users have indicated that it has an addictive effect.[8]
At the time that kava was introduced, relatively little was known about the effects of its sustained and heavy consumption. That is still the case.[9] Recent studies of kava consumption indicate that there are sustained health consequences of heavy kava use, including raised blood pressure, muscle immobilisation and scaly skin.[10] However, some of the health effects attributed to kava may be the consequence of other environmental factors, such as poor diet, unhygienic drinking methods or heavy alcohol consumption in combination with kava use.
Kava has been the subject of a number of legislative regimes by Federal, State and Territory Governments.
In the Northern Territory, kava was listed as a ‘dangerous good’ under the Consumer Affairs and Fair Trading Act 1991 (NT). In Western Australia, the sale and supply (though not use) of kava has been similarly restricted under the Poisons Act 1964 (WA).
Legislative regimes that define kava as a ‘good’ and attempt to control its use by prohibiting its sale and supply represent a ‘back-door’ method for controlling kava use. Classifying kava as a ‘good’ makes it easier to include in existing legislation; all that is required is a consideration of the general public interest.
Commentator Martin Flynn points out that kava is unlike other ‘goods’ covered by legislation regulating the sale, supply and safety of goods.[11] He has argued that statutory regulation is an inappropriate way to deal with matters that raise complex issues of social policy.[1]
For instance, an area of kava use that warrants more practical and theoretical consideration is the gendered character of the ‘crime’. It seems that kava use is more common among men than women,[12] and that Aboriginal women actively sought Territory intervention in the regulation of kava use. This gendered pattern in the uses of and resistance to kava indicates a possible relationship between Aboriginal women and the policing of the Act, but at the same time indicates how the policing of the Act may be divisive in Aboriginal communities.[13]
The Kava Management Act 1998 (NT) came into force on 21 May 1998.[14] According to its long title, the Act regulates the cultivation, manufacture, production, consumption, possession and supply of kava. With respect to possession, the Act distinguishes between ‘commercial’ quantities (more than 25 kg/25 litres when prepared as a drink or 20 or more plants) and ‘trafficable’ quantities (between 2 and 25 kg or 4 to 20 plants but does not include a quantity of kava prepared as a drink).[15] While possession of less than ‘commercial’ quantities of kava is not an offence under the Act, the kava will be seized.[16]
For possession of a trafficable quantity of kava,[17] and/or supply of a less than trafficable quantity of kava,[18] the Act imposes a fine of $10, 000 or imprisonment for two years. For the supply of a trafficable quantity of kava, penalties increase to eight years’ imprisonment and fourteen years for the supply of a commercial quantity of kava.[19] Under the Act, the cultivation, manufacture and production of kava attracts penalties ranging between $5000 fines and eight-year prison terms, depending on the quantity of kava involved.[20] The strength of these criminal penalties suggests the seriousness with which kava is being treated by the legislature.[21]
The Act provides that Aboriginal communities may apply for licences allowing residents to sell and use kava, thereby avoiding the penalties prescribed under the Act.[22] The licensing provisions of the Act appear to have been included on the basis that some Indigenous commentators have pointed out the advantages of kava, when compared with other drugs such as alcohol.[23] These advantages have been cited by kava drinkers themselves to condone their consumption.[24] Furthermore, some health workers have suggested that a similar licensing system established under the earlier Consumer Affairs and Fair Trading Act 1991 (NT) was not effective in regulating kava use, as kava was available in communities where no licenses were held.[25]
In deciding whether to declare an area to be a licensed area, the Kava Management Act provides that the Minister must hold a meeting with residents and consider the needs and opinions of those residents.[26] This process sounds innocuous enough, but a statement by Northern Territory Chief Minister Denis Burke illustrates the presence of an insidious legal paternalism. In Burke’s view, the meeting to determine the granting of the license will not only compel the Northern Territory Government to listen to Aboriginal people, but will constitute a pre-decision making process at which these communities must prove (to white officials) that they believe they can drink kava ‘responsibly’.[27]
The idea of legal paternalism – the theory that the law can protect an individual from him or herself - is fundamental to the logic of the contemporary drug regimes within criminal justice system. Burke has commented in the Northern Territory Parliament that ‘government intervention [in kava use] has become inevitable’, implying that traditional Aboriginal authority structures and the strength of previous Government leadership have proved ineffective in regulating kava use.[28] While appeal to the paternalism of the law appears relatively inoffensive, it must be questioned whether paternalism is, of itself, a justification for the intervention of criminal justice. Indeed, paternalistic laws seem fraught with danger for Aborigines in particular, as it has been the philosophical mantra of State intervention in their lives since colonisation.[29]
The criminal provisions in the Act rely heavily on police for their implementation. Under the Act, members of the police force are automatically ‘authorised officers’ for the purposes of enforcing and reporting breaches of the licensing system set up under the Act.[30] The Act confers on police the discretionary power to ‘stop and search’ people whom they suspect are committing an offence.[31] The police, as ‘authorised officers’, may search a vehicle or premises, inspect and remove documents and seize and remove what she or he reasonably believes to be kava.[32] The use of the extensive powers given to the police under this Act have been said to reinforce the imbalance of power that may be observed in police/Aboriginal relations.[33]
There has been much academic debate about the role of the police in investigating drug crime and in policing Aborigines.[34] There is strong evidence to suggest that Aboriginal people are ‘over-policed’.[35] Chris Cunneen has argued that the concept of over-policing is useful because it encapsulates Aboriginal people’s subjective experience of policing in relation to such ‘crimes’ as disorderly conduct and public drunkenness that are largely responsible for the over-representation of Aboriginal people in custody.[36]
The deterrent effect of criminal provisions and those relating to police powers must also be questioned. In relation to petrol-sniffing, research conducted by Chris Burns and others has indicated that ‘getting in trouble with the police’ was not cited as a reason for ceasing to sniff petrol, despite the fact that 80% of participants in the study reported ‘trouble’ with the police as a result of petrol sniffing.[37] This could well suggest that police enforcement of the penalty provisions for kava use is unlikely to be effective in reducing the number of offences against the Act and that changes in kava use may be due to other factors, such as community resolve.
Are the offences created under the Act so many more public drunkenness offences? This is a question that will only be answered in time.
Much of the legal commentary that surrounds kava use by Aboriginal people and on Aboriginal communities attempts to make the legal issues synonymous with the concerns of Aboriginal people themselves. In the Northern Territory, the Parliamentary discussion surrounding the introduction of the recent legislation emphasises the extent of community consultation undertaken in relation to the development of the legislation, which the Health Minister believed was extensive.[38] That discussion also emphasised that it would be each community’s decision to apply to become a licensed area under the Act.[39]
Elsewhere, addressing the kava ‘profiteers’, Denis Burke has commented that the government will ‘not tolerate them thumbing their noses at the legislation nor will we tolerate exploitation of our Arnhem Land people’.[40] Indeed, there is some evidence that certain ‘power-brokers’, including white and Tongan traders, are the main recipients of profits derived from kava, and that this is a cause of concern for Indigenous communities.[41]
However, comments such as these collapse the distinction between the needs and wishes of Aboriginal communities and those of Government. It has been suggested above that Aboriginal people are actually divided over the issue of kava consumption.[42] This indicates that the idea of Aboriginal ‘community consensus’, in relation to applications for kava licences for example, cannot be taken for granted. The difference in communities’ values, experiences and expectations in relation to kava and the Act will further complicate community-based policing of kava use, as Sutton and James have noted in relation to other drug offences.[43]
It is important to recognise the myriad ways in which health and medical discourse, law and order debates and the criminal law itself intersect to position Aboriginal people as ‘objects’ of official knowledge, protective legislation and regulation. Terry Carney has put it this way:
[C]riminal law cannot be viewed in isolation: its impact on public health goals, its effect on the status of people as citizens and its ‘workability’ at a practical level must all be factored in.[44]
It seems that regulating kava use through the Kava Management Act 1998 (Cth) will contribute to a criminal justice system that is weighted against Aborigines.
Arlie Loughnan is a fifth-year Arts/Law student at Sydney University.
[1] The title of this article is taken from one brand of kava, the name of which links it to the traditional concept of kin groups. The topic for this article was suggested to me by Alan Clough, from the Menzies School of Health Research, Darwin, Northern Territory. I would like to thank him for his assistance with research. The opinions expressed in this essay are my own.
[2] For a medical assessment of the effects of kava consumption, see J Prescott, ‘Kava Use in Australia’ (1990) 9(4) Drug and Alcohol Review 325; J Prescott, et al, ‘Acute Effects of Kava on measures of cognitive performance, psychological function and mood’ (1993) 12(1) Drug and Alcohol Review 49.
[3] For an anthropological examination of kava use by the peoples of the Pacific Islands see J Brunton, The Abandoned Narcotic: Kava and Cultural Instability in Melanesia (1st ed, 1989).
[4] This has been acknowledged by a number of commentators. See, eg, R Gregory, ‘The Mental Side of Kava’ (1988) 12(3) Aboriginal Health Worker 13.
[5] See ‘Kava Drinking in Arnhem Land’ (1987) 11(4) Aboriginal Health Worker 23; P Gordon, et al., ‘The Kimberly Delegation in the Northern Territory’ (1987) 11(4) Aboriginal Health Worker 30, 34; and C Burns, et al, ‘Patterns of Petrol Sniffing and Other Drug Use in young men from an Australian Aboriginal community in Arnhem Land, Northern Territory’, (1995) 14(2) Drug and Alcohol Review 167.
[6] Gordon, et al, above n 5, 32.
[7] This has been suggested by S Williams, ‘Kava: Use and Abuse’ (1987) 11(4) Aboriginal Health Worker 17 and C Drury, et al, ‘A Kimberly View of Kava – From an Arnhem Land Visit’ (1987) 11(4) Aboriginal Health Worker 28. Research dating from 1986 indicates that 11% of 1000 study respondents drank kava but of those, over 20% consumed it every day: ‘Strength and Survival: Aboriginal Substance Abuse’ (1988) 8(2) Connexions 11.
[8] See C Drury, et al, above n 7, 30.
[9] But see J Matthews et al, ‘Effects of the heavy usage of kava on physical health: Summary of a Pilot survey in an Aboriginal community’, (1998) Medical Journal of Australia, No 148.
[10] See J Prescott, et al, above n 2, 49-57 and S Williams, above n 7, 20-21.
[11] For further development of this argument, see M Flynn, ‘Supply of Kava: Is it Another Aboriginal Offence?’ (1991) 2 (53) Aboriginal Law Bulletin 10.
i[1] ibid.
[12] S Williams, above n 7, 19. Some commentators have set the figure for kava consumption at 17% among Arnhem Land women: see Gordon, et al, above n 5, 36.
[13] Syd Stirling, Member for Nhulunbuy, received a petition against kava, signed by 130 women of the Yirrkala and Nhulunbuy region. S Stirling, Women Against Kava, Northern Territory Parliament, Eighth Assembly, First Session, 1 December 1997.
[14] Note that the Commonwealth has recently classified Kava as a drug under the Customs (Prohibited Imports) Regulations 1998 which, by prohibiting its importation, attempts to control its supply.
See Reg 2 (Interpretation), Reg 5(1) (importation of drugs) and Sch 4, which lists kava as one such drug.
[15] Kava Management Act 1998 (NT) s 3 (Interpretation).
[21] Compare with s 33(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW), which imposes penalties of $3,500 or imprisonment for 15 years for the possession and supply (including of traffickable quantities) of prohibited plants (eg Cannabis).
[22] Kava Management Act 1998 (NT) Part 7.
[23] See T Assan, ‘Kava Drinking in Arnhem Land’, (1987) 11(4)Aboriginal Health Worker 22 and Gordon, et al, above n 5, 34-5.
[24] Drury, et al, above n 7, 26.
[25] This comment was made in relation to drugs taken in combination with petrol: see C Burns, et al, ‘Patterns of Petrol Sniffing and other Drug Use in Young Men from an Australian Aboriginal Community in Arnhem Land, Northern Territory’ 1995 14(2) Drug and Alcohol Review 160.
[26] Kava Management Act 1998 (NT) s 55 and 57.
[27] D Burke, MLA, Minister for Health, Family and Children’s Services, NT Government, Transcript of an Interview Conducted for Territory Today ABC, 19 March 1998.
[28] See D Burke, Second Reading Speech, Kava Management Police Administration, Northern Territory Parliament, Eighth Assembly First Session, 21 April 1998: 1020.
[29] Bill Craigie points out that paternalism, rooted in racism, led to the policies of the Aboriginal Welfare Board and the Aboriginal Protection Board: see ‘Aboriginal People and the Criminal Justice System in the 1990s’ in C Cunneen (ed), Aboriginal Perspectives on Criminal Justice (1st ed, 1992).
[30] Kava Management Act 1998 (NT) s 29.
[33] Interview with Alan Clough, 22 July 1998.
[34] For a contemporary comment on policing and Aboriginal people, see D McDonald and C Cunneen, Keeping Aboriginal and Torres Strait Islanders out of Custody, (1st ed 1997).
[35] Hal Jackson cites figures from Wiluna, Western Australia, where in 1994 the ratio of police to citizens was 1:41 compared to 1:386 for WA at large: see H Jackson, ‘Policing Remote Aboriginal Communities’, 1995 7(1) Current Issues in Criminal Justice 89.
[36] Cunneen does note that the concept of ‘over-policing’ applies only to certain crimes, such as ‘street crime’, while other crimes, such as domestic violence, are better described as ‘under-policed’: See C Cunneen, ‘Policing and Aboriginal Communities: Is the Concept of Over-Policing Useful?’ in Cunneen, above n 28.
[37] Burns et al, above n 5, 160 and 167.
[38] See, eg, D Burke, Noting Draft Report on Inquiry into Kava Regulation, Northern Territory Parliament, Eighth Assembly, First Session, 1 December 1997: 308.
[39] See, eg, D Burke, Second Reading Speech, Kava Management Police Administration, Northern Territory Parliament, Eighth Assembly First Session, 21 April 1998: 1020.
[40] ‘Kava Haul Seized in Raids’, Northern Territory News, 22 May 1998.
[41] Eradicating profiteers was a reason given for enforcing a temporary ban on kava before introducing a licensing system: see D Burke, MLA, Minister for Health, Family and Children’s Services, NT Government, Transcript of Interview Conducted for Territory Today ABC, 19 March 1988. The problem of kava ‘brokers’, was raised by Alan Clough: Interview with Alan Clough, 22. Cf S Stirling, MLA, Transcript of Interview conducted by 8DDD FM Morning Program, 5 March 1998 and C Drury, et al, above n 7, 26.
[42] See, eg, ‘Editorial – Damage of Kava’, Northern Territory News (Darwin), 6 March 1998, 9. Gatjil Djerrkura has given support for legislative control through a licensing system along the lines of an alcohol licensing system: see G Djerrkura, Chair, ATSIC, Transcript of Interview conducted by 8DDD FM Morning Program, 6 March 1998.
[43] See S James and A Sutton, ‘Policing Drugs in the Third Millennium: The Dilemmas of Community-based Philosophies’, (1998) 10(3) Current Issues in Criminal Justice 225.
[44] T Carney, ‘Contemporary Issues in Cannabis Policy’, (1994) 6(2) Current Issues in Criminal Justice 297.
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