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Calladine, Kayla --- "Liquor Restrictions in Western Australia" [2009] IndigLawB 15; (2009) 7(11) Indigenous Law Bulletin 23

Liquor Restrictions in Western Australia

By Kayla Calladine.[1]

In recent years, Western Australia has experienced a resurgence in liquor regulation in Indigenous communities. Since 1992, s 64 of the Liquor Control Act 1988 (WA) (‘the Liquor Act’) has been used to impose mandatory conditions on licensees in remote towns in the north of the State. Over the last two years, these conditions have become more onerous in application, being used to impose increasingly severe restrictions. In 2007, for example, the Director of Liquor Licensing (‘the Director’) prohibited the sale of full strength packaged liquor at the only licensed premises in Fitzroy Crossing. The effect of this ban has been to significantly reduce the consumption of full-strength alcohol in that community; the Director is currently considering whether the same conditions should be imposed in Halls Creek.

The trend of alcohol restriction continued last year when the State Government introduced regulations under s 175(1a) of the Liquor Act to declare the Wangkatjungka Aboriginal community a restricted area. As a ‘restricted area’, possession of alcohol is prohibited absolutely. This was the first time that s 175(1a) had been used with respect to a community, and the first time a restricted area had been created since the repeal of WA protectionist legislation in 1971. Later in 2008, Oombulgarri Aboriginal community was also declared a restricted area. Notably, both of these restrictions were instituted at the request of the communities concerned.
The Director recently announced restrictions on the sale of takeaway liquor packaged in high volume containers throughout the Kimberley. As of 30 March 2009, all liquor licences located in the areas of the State north of 20o south (including the regional centres of Broome and Kununurra) are prohibited from selling:

i. takeaway liquor (with an alcohol content of more than 6%) in individual containers of more than one litre; and
ii. beer in individual glass containers of more than 400 millilitres.[2]

In each case, the decision to impose restrictions followed recognition by the Director that serious levels of alcohol related harm and ill-health was affecting the quality of life in the particular community[3] and the entire Kimberley region,[4] and that ‘limiting or restricting access to liquor may reduce levels of harm being experienced.’[5] The evidence of serious harm and ill-health has included high numbers of alcohol related suicides, extensive family violence and significant incidence of Foetal Alcohol Syndrome.

Preliminary inquiries into community alcohol restrictions have seen improvements in indicators of health and social behaviour.[6] However, history shows that the Australian experience of liquor regulation has been largely unsuccessful, detrimental, and discriminatory in operation. Accordingly, despite these initially positive signs, it would be unsurprising and indeed understandable if this scepticism were to continue to permeate the current debate. As it stands, compulsory alcohol restrictions, imposed by unilateral state action, are an affront to Indigenous self-determination. Without underlying community support, such measures present, at best, an overly simplistic solution to a complex problem; at worst they are a troubling throwback to WA’s paternalistic, protectionist past.

History of WA Liquor Restrictions

The offence of supplying alcohol ‘to an Aborigine or half caste’ was first legislated for by the WA Government in 1843,[7] and later contained in the Aborigines Act 1905.[8] In 1911, an amendment to this Act saw a shift in liability from the non-Indigenous supplier of alcohol to the Indigenous drinker.[9] This sentiment persisted throughout the first half of the 20th century [10] as Indigenous Australians were punished under the guise of ‘protectionist’ measures for the possession of liquor. Under the Natives (Citizenship Rights) Act 1944 (‘the Citizenship Act’), citizenship certificates were issued to applicants who were deemed ‘no longer a native Aborigine.’[11] Certificates exempted applicants from the burgeoning control of the Aborigines Act, which included alcohol prohibition. Some commentators suggest that the Citizenship Act was principally used to obtain legal access to alcohol. [12] Alcohol prohibition for Indigenous Australians was retained in liquor licensing legislation in relation to particular Aboriginal reserves and designated areas. These areas were gradually reduced; by 1971, Parliament finally removed those remaining restrictions that applied only to Aborigines, thus making the Citizenship Act redundant.[13]

Legislation restricting liquor in Indigenous communities was just one small part of a legislative regime imposing control over the lives of Aboriginal people. And, like many facets of the protectionist legislation, did little to actually assist Aboriginal people. Indigenous drinkers were frequently targeted because possession offences were easier to prosecute than supply offences.[14] Restrictions had little deterrent value and, in some cases, were completely ineffective in preventing access; instead they often negatively affected drinking patterns.[15] Because of the disparity between the purported aims of the legislation and how it functioned in practice, it is not surprising that many people are sceptical of contemporary alcohol restrictions. And it does beg the question: what is different this time?

A Comparison between Past and Present

Restrictions in the 1950’s to 1970’s applied to restricted areas (predominantly Aboriginal reserves); as a matter of form, these are the same as the most recent liquor restrictions under s 175(1a) of the Liquor Act. Further, both regulatory schemes rely on the police to enforce liquor restrictions. However, the fundamental differentiating factor is legitimacy: legitimacy flows from the fact that all blanket prohibitions in Western Australia are today imposed at the request of the affected community. Self-determination and community control have been widely accepted, at least in Western Australia, as the best way to tackle alcohol problems.[16] Community wishes are often difficult to determine, particularly in the context of liquor restrictions, which attract polarised and often very vocal interest groups. This issue of who speaks for a community is particularly poignant for Indigenous Australians, who have historically suffered from well-intentioned groups or experts purporting to act on their behalf.[17]

The restrictions in Fitzroy Crossing were suggested and supported by the Marniwarnitkura Fitzroy Women’s Resource & Legal Centre, together with the Shire of Derby / West Kimberley, the Drug and Alcohol Office and the Kimberley Aboriginal Law and Culture Council. This widespread support, coupled with the fact that the campaign was initiated and carried out by Aboriginal people and Aboriginal organisations, suggests that the restrictions were indeed community based.

However, because there is no legislative prerequisite for community consensus under the Liquor Act, there is no safeguard to ensure that future restrictions will be determined according to community wishes. Carol Martin, MLA has already submitted that, in the interests of equity, all towns with similar alcohol-related problems should be subjected to the same restrictions that have been implemented in Fitzroy Crossing. Ms Martin specifically mentioned Halls Creek, Broome, Derby and Kununurra.[18] It seems that there would be little to differentiate these proposals from the restrictions that were enforced on Indigenous communities as part of the protectionist regime.

A Question of Equality?

When it comes to alcohol restrictions, there is a tendency to conflate ‘equality’ and ‘identical treatment’. For many Indigenous Western Australians, the prohibition on alcohol was removed around the same time as full citizenship rights were granted; there is a strong temporal link between citizenship and liquor rights. Indeed, it has been argued that the symbolism of free access to alcohol is just as strong as being granted full citizenship; one commentator considers that,

In an everyday sense, the right to front a bar and order a beer is a more visibly potent assertion of equality than the right to vote.[19]

As discussed above, the freedom to access alcohol was closely tied to citizenship rights by virtue of the Citizenship Act. ‘Certificates of Citizenship’ not only exempted applicants from the overbearing controls of the paternalistic legislation, but also allowed Indigenous Australians to legally obtain alcohol. Some commentators argue, therefore, that drinking restrictions cannot be enforced without symbolically affecting fundamental substantive rights.[20] This nexus assumes that communities asserted continuous control over alcohol throughout the protectionist era. However, as the Race Discrimination Commissioner’s Alcohol Report explains, some Indigenous communities, now ravaged by alcohol-related problems, had no access to alcohol prior to being granted citizenship rights.[21] In this way, the cycle of alcohol addiction has created a population of Indigenous Australians who are devastated by alcohol but who have never experienced any alcohol prohibition. There is an unfortunate irony in this conundrum: on the one hand, access to alcohol serves as a powerful symbol of equality; in a practical sense, though, free access effectively intensifies the inequality suffered by and in Aboriginal communities.

Clearly, equality and non-discrimination are fundamental tenets of a democratic society. These principles underlie many of the criticisms related to alcohol restrictions. But the persuasiveness of these criticisms depends whether one interprets equality from a formal or from a substantive perspective.

Formal equality demands equal treatment of everyone regardless of individual circumstances. Enshrined in legislation such as the Racial Discrimination Act 1975 (Cth),supporters of formal equality argue that it disfavours arbitrary decision making, values neutrality and views individual or personal characteristics as irrelevant in determining whether people have a right to some social benefit or gain.[22]

Interpreting the principle of equality as requiring equal treatment for everyone is in direct conflict with liquor restrictions that apply different laws to different categories of people. It is on this basis that some parts of the media claim that liquor restrictions are discriminatory and racist.[23] This argument can be partly refuted if liquor restrictions are seen as being based on issues of health or geography rather than race. In this regard, it could be argued that the restricted area of Wangkatjungka is analogous to other restricted areas declared under s 175(1a) such as sporting stadiums or public parks, insofar as they are restrictions contained to a specialised geographical area. However, this semantic argument provides no useful answer to the conclusion that, ultimately, liquor restrictions treat groups of people differently and are therefore irreconcilable with formal equality.

Formal equality does not adequately deal with laws (such as liquor laws) that affect certain groups of people in different ways. Attempting to apply such a principle to these laws can result in serious injustice.[24] Indeed,

by masquerading as an independent norm, formal equality blinds us to the real nature of substantive rights and creates a dichotomy between human rights and non-discrimination, wherein both principles appear to operate independently rather than in combination with one another.[25]

Of course, it may be that formal equality is an appropriate vehicle to analyse restrictions when those restrictions have not been determined by the affected community. As a principle, formal equality would be a powerful tool to protect communities from discriminatory regulation such as that suffered during the protectionist era. But while formal equality has a role in policy and society, demanding that it serve as the measuring stick of equality in all circumstances is overly-simplistic and inappropriate. This is particularly so in respect of liquor laws that have been developed at the community’s behest.

Substantive equality, on the other hand, requires different treatment where there is a situation of inequality:

The principle of equality before the law does not mean absolute equality … it means the relative equality, namely the principle to treat equally what are equal and unequally what are unequal. [26]

Because substantive equality requires equality of outcome, rather than equality of means, liquor restrictions can be reconciled with this legal principle where they redress current disparities between Indigenous and non-Indigenous communities. This is most particularly so where they go some way to reducing the deplorable inequalities in the areas of health, education and living standards. Fitzroy Crossing is an important case study to make this evaluation. A ban on the sale of packaged, full-strength alcohol at the only licensed premises in Fitzroy Crossing has been in place since October 2007. Six months into the ban, the University of Notre Dame reported the following statistics:

▪ 88% reduction in the amount of alcohol being purchased;

▪ 48% reduction in the number of Fitzroy residents presenting to the Emergency Department;

▪ 27% reduction in the number of domestic violence call outs to police

▪ Increased school attendance at Fitzroy High School.[27]

There are several limitations to the success of the alcohol restrictions, including the prevalence of unlawful sales of liquor at highly inflated prices to dry communities (‘sly grogging’),[28] a switch to other mind-altering substances, and a geographical shift of alcohol problems from dry communities to nearby towns.[29] More fundamentally, liquor restrictions do not address the complex causes of alcohol-related problems.[30] Nevertheless, this early evidence suggests prima facie improvement in living conditions, suggesting that voluntary prohibition regimes contribute to the aims of substantive equality.

Conclusion

We know that alcohol is having a devastating effect on Indigenous Australians. But compulsory prohibition, at best, simply treats the symptoms of a much larger problem. Without community support, any progress that has been made will only last for as long as the restrictions are in place. There are significant historical, cultural, social and ideological issues that challenge the legitimacy and appropriateness of liquor restrictions, which have been used to punish, or further marginalise, Indigenous people from public life in Western Australia. But this should not be interpreted as an argument against alcohol restrictions; it serves only as a reminder of the danger of unilateral legislative controls that are not supported or determined by the community.

Formal equality is inappropriate and dangerous when used as a blanket principle or independent norm; restrictions should be viewed in terms of their ability to make economic or educational progress for underprivileged communities. Requiring conformity to principles of formal equality may be appropriate when self-determination is absent. That is, communities should be protected from inequality before the law unless it is that community that determines that it should be treated differently. With community support, liquor restrictions can advance Indigenous self-determination; such measures have the potential to be both legitimate and effective tools to address alcohol related harms in communities. But if self-determination is not respected, and state-imposed restrictions are enforced in an effort to achieve ‘equity,’ it would be a throwback to a shameful history - when misguided, discriminatorye and oppressive restrictions were placed upon Indigenous Australians in what was advertised to be for Indigenous peoples’ protection.

Kayla Calladine is a Policy Officer at the Department of Racing, Gaming and Liquor in Western Australia and is completing her final year at the Faculty of Law at the University of Western Australia.


[1] This essay was written as part of Kayla Calladine’s studies of a unit taught by Professor Richard Bartlett at the Faculty of Law at the University of Western Australia.

[2] Decision of the Director of Liquor Licensing KR 13032009 (13 March 2009).

[3] Director of Liquor Licensing, ‘Position Statement on Fitzroy Crossing Liquor Restrictions’, (27 September 2007).

[4] Director of Liquor Licensing, ‘Notice under s 64 of the Liquor Control Act’ (13 January 2009).

[5] Ibid.

[6] For recent example, see: L Henderson-Yates et al, Fitzroy Valley Liquor Restriction Report (2008); see generally Dennis Gray et al, ‘What works? A Review of Evaluated Alcohol Misuse Interventions among Aboriginal Australians’ (2000) 95(1) Addiction 11.

[7] An Act to Make Further Provisions for the Regulating of Public Houses 1843 (7th Vic No 3 1843).

[8] Aborigines Act 1905 (WA) s 45.

[9] Aborigines Act Amendment Act 1911(WA) s 10(2) amending Aborigines Act 1905 (WA) s 45.

[10] E.g., Aborigines Act Amendment Act 1936 (WA) amending Aborigines Act 1905 s 29; Native Administration Amendment Act 1940 (WA) s 2 amending the Native Administration Act 1905 – 1940.

[11] The Natives (Citizenship Rights) Act 1944 (WA) s 6.

[12]Commissioner Lyn Furnell, Report of the Royal Commission upon all Matters Affecting the Wellbeing of Persons of Aboriginal Descent in Western Australia, (Royal Commission into Aboriginal Affairs Western Australia, 1974), 25 as cited in Commissioner D J O’Dea, Regional Report of Inquiry into Individual Deaths in Custody in Western Australia, (Royal Commission on Aboriginal Deaths in Custody, 1991) , Vol 2 para 5.5.1.

[13] Ibid, 26.

[14] Elizabeth Eggleston, ‘Fear Favour or Affection; Aborigines and the Criminal Justice System in Victoria, South Australia and Western Australia’ (1976), 215 – 219 as cited in Commissioner D J O’Dea, above n 12, para 5.5.1.

[15] Ibid, 216.

[16] E.g., Ministerial Council on Drug Strategy has recognised ‘community control’ as one of the six common principles for addressing substance abuse: National Drug Strategy, Aboriginal and Torres Strait Islander Peoples Complementary Action Plan 2003-2009 (2006).

[17] Peter D’Abbs and Samantha Togni, ‘Liquor Licensing and Community Action in Regional and Remote Australia: A Review of Recent Initiatives’ (2001) 25(2) Aboriginal and Islander Health Worker Journal 18, 24.

[18] Western Australian State Government, Response to the Hope Report (2008); see also, Jessica Strutt, ‘Put Alcohol limits on Other NW Towns: MP,’ The West Australian (Perth), 22 January 2008, 9.

[19] ‘Aboriginal Equality Tied Up with Drinking Rights’ The West Australian (Perth) 26 April 2008, 20.

[20] Ibid.

[21] Race Discrimination Commissioner, Alcohol Report (1995) 17.

[22] Equal Rights Trust, TheIdeas of Equality and Non Discrimination: Formal and Substantive Equality( 2007), 2.

[23] See Daniel Landon, ‘Indigenous Alcohol Ban Racist’, Canberra Times (Canberra) 8 December 2004, 7; and Graham Ring, ‘Indigenous Politics: A Discriminating Government’, New Matilda, 5 September 2007.

[24] For this argument see Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia, (1990), 6; see also Race Discrimination Commissioner, above n 21..

[25] Equal Rights Trust, above n 22, 3.

[26] South West Africa Case (Second Phase) ICJ Rep 1966 at 305-6 per Judge Tanaka as cited in Race Discrimination Commissioner, above n 21.

[27] Henderson-Yates et al, above, n 6.

[28] The Liquor Control Amendment (Sly Grogging) Bill 2008 was introduced into the Legislative Assembly in June 2008, however, the Bill lapsed upon the election of the new State Government.

[29] Justice Fitzgerald, Cape York Study (2001); Cf L Henderson-Yates et al, above n 6, 29 – 30.

[30] Race Discrimination Commissioner, above n 21, 12-13 referring to Northern Territory Aboriginal Issues Unit submission to Commissioner Elliot Johnson, National Report, (Royal Commission into Aboriginal Deaths in Custody, 1991).


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