Alcohol Regulation in Remote NT Communities

There is a broad consensus across the political spectrum that alcohol consumption is a major issue in remote Australia.

All Australian jurisdictions have a regulatory framework which licences the sale of liquor and which restricts the consumption of alcohol in certain locations and contexts. This post focusses largely on the NT, as it has a relatively complex regulatory regime designed specifically to encompass remote areas and it involves regulation by both the NT Government and the Commonwealth.

The NT’s policy framework is set out at a high level on the web site of the NT Department of Business. It provides links to historical data on alcohol sales in the NT, mentions the Commonwealth’s Stronger Futures in the Northern Territory Act 2012 which imposes minimum standards for Alcohol Management Plans (AMPs), lists the AMPs for regional centres, and indicates that AMPs are in place or under development for remote communities, but without providing a list of those communities and the current status of the development of the AMP.

The web site also outlines the framework which controls the licencing and sale of liquor, including arrangements for restricted areas, and for individual revocable permits to allow liquor to be purchased and consumed within a restricted area. However the web site does not provide detail on the NT’s detailed administration of alcohol management arrangements (except in the regional centre AMPs) and nor is there an overarching statement of strategic intent.

The Commonwealth Government’s involvement in the regulation of alcohol derives from the legislation introduced in 2007 to implement the Northern Territory National Emergency Response (NTER), and in particular to prohibit the sale and consumption of alcohol in prescribed areas (which essentially included the majority of Aboriginal settlements and townships across the NT). The effect of this legislation was to modify and toughen the operation of the Northern Territory’s alcohol regulatory scheme in relation to Aboriginal land and townships, and to preclude the NT Parliament from making laws inconsistent with the Commonwealth legislation.

The NTER legislation, which had a five year sunset, was replaced in 2012 by the Stronger Futures in the Northern Territory Act 2012. The Stronger Futures legislation prohibits the sale, possession or consumption of alcohol in an ‘alcohol protected area’, provides that these areas operate as if they were ‘restricted areas’ under the NT Liquor Act, includes provisions which allow the Commonwealth Minister to initiate an assessment of particular licenced premises (anywhere in the NT) if she considers the sale of alcohol by the premises is causing substantial alcohol related harm to the community, and establishes a process for the development of AMPs by communities which must meet five standards promulgated in rules by the Commonwealth Minister, and which then replace the blanket restrictions established by the legislation in that alcohol protected area.

The AMP provisions were incorporated in part to strengthen the Commonwealth’s claim that the alcohol (and other) measures are special measures and thus while they are specifically targeted in large measure at Indigenous citizens, they are not inconsistent with the provisions of the Racial Discrimination Act. The 2007 NTER legislation had explicitly over-ridden the RDA whereas the Stronger Futures legislation removed that provision.

Recently, the NT Government has released the latest Alcohol Management Plan for the Central Australian town of Alice Springs which is focussed on a strategy termed Point of Sale Intervention at take-away outlets. The Guardian has reported that the plan leaves open the possibility of a return to the ALP’s previous policy of a Banned Drinker Register. The Point of Sale Intervention policy is similar to a scheme in Katherine termed Temporary Beat Locations (TBL) which relies on the police to check identification documents of persons buying takeaway liquor.

The ABC recently reported on the NT Chief Minister’s comments that itinerants in Darwin should just ‘piss off and go home’ and the response of Indigenous leaders that these were unprofessional comments.

The ABC reported last year critical comments from the head of the NT Police Association, Vince Kelly, who argued that it was inappropriate that police resources were being tied up managing alcohol sales, and criticised both sides of politics as being constrained by their acceptance of political donations from the alcohol industry:

Nothing is really going to change because both sides of politics are beholden to the liquor industry because they accept so much money off them in terms of political donations.

An admittedly cursory check of the NT Electoral Commission’s web site which lists political donations to parties and candidates does not appear to bear this out, though both parties appear to have access to funding from intermediaries, and the NT business sector is quite small, and both parties certainly work hard not to antagonise business interests. And of course there is extensive academic research documenting the extraordinarily powerful influence of the alcohol industry on public policy both nationally and internationally.

On 16 September 2015, the Department of Prime Minister and Cabinet released a copy of the independent review of the alcohol provisions of the Stronger Futures in the Northern Territory Act 2012 undertaken by law firm MinterEllison. The legislation, which has a ten year sunset provision, mandated an independent review of the alcohol provisions along with the associated NT legislation within five years of its enactment. Interestingly, the Review’s Terms of Reference (which are set out in the Review report) provide that ‘The review will be conducted by the Department of the Prime Minister and Cabinet in collaboration with the Northern Territory Department of Business’; hardly an independent basis for the review, notwithstanding that PMC then subcontracted MinterEllison to undertake the review.

MinterEllison concluded that although ‘alcohol misuse has and continues to cause considerable harm to Aboriginal people in the Northern Territory, we have been unable to determine with any precision whether there has been a reduction , or otherwise, in alcohol related harm to Aboriginal people…’

The reviewers went on to conclude ‘that the scheme established by the Liquor Act and provisions of the Stronger Futures Act provide an effective framework for the regulation of supply of alcohol in the Northern Territory, and that regulation of supply is a necessary but not sufficient means (in and of itself) of addressing alcohol misuse that causes harm to Aboriginal people in the Northern Territory’ (emphasis added).

The elephant in the room (on which the review was entirely silent) is why the Commonwealth continues to over-ride the Northern Territory’s legislative remit in relation to alcohol (and other matters specified in Stronger Futures), and what are the merits and demerits of doing so. This is an issue which would require a separate post to do it justice.

A couple of notable points were canvassed by the MinterEllison review. It notes for example the NT Government’s submission to a recent House of Representatives Standing Committee Inquiry into the Harmful Use of Alcohol in Aboriginal and Torres Strait Islander Communities titled Alcohol, Hurting People and Harming Communities identified the under-representation of Indigenous people in national data sets measuring drinking patters, and called for ‘a comprehensive longitudinal study of drinking patters of Aboriginal people…’ (p29).

The review also referred to the Tackling Alcohol Abuse Implementation Plan of the National Partnership Agreement on Stronger Futures in the Northern Territory and noted that the Commonwealth and the Northern Territory had agreed in this plan that ‘communities will be encouraged and supported to develop local alcohol management plans that meet the regulated minimum standards under the Stronger Futures in the Northern Territory Act 2012’. The report also noted that the Partnership Agreement is being renegotiated and that the alcohol provisions under the new agreement are currently being negotiated as part of this process’ (footnote 15, p25).

Finally, the review while noting the Standing Committee’s observation of strong support for the introduction of a volumetric tax on alcohol as well as a minimum flor price, quoted the Prime Minister and Cabinet submission to the Standing Committee:

International price controls have been found to be the most effective intervention of this type [restricting supply]. However, the Australian Government does not support policies that increase alcohol prices….as they do not target heavy and binge drinkers. These drinkers are less responsive to price than the general population, so higher prices may have a limited health benefit and hurt consumers who enjoy alcohol responsibly.

On 2 December 2015, the Department posted the Commonwealth Government’s response to the Standing Committee report on the harmful use of alcohol in Indigenous communities on its web site. As is standard practice with reports of this kind, the Department in a response presumably approved by the Minister commented on each of the Standing Committee’s 23 recommendations, agreeing, agreeing in principle, noting or not agreeing.

The Department gave no joy to the calls for better national data, nor to the NT Government’s call for a longitudinal study (refer comments on recommendation 1).

The Department also noted that work is underway on developing the next version of the whole of Government National Alcohol Strategy for 2016-21, and the National Drug Strategy, which has a component directed to Indigenous peoples.

In relation to the Standing Committee’s most significant recommendation for the introduction of a national minimum floor price, and that prompt consideration be given to the recommendations of the Henry Tax Review on volumetric tax, the Department could only note the recommendation, commenting vaguely on the Government’s commitment to an unspecified tax reform process!

Interestingly, in relation to recommendation 7  on prioritising community driven strategies to reduce alcohol harm, and a comment from the Standing Committee that the current backlog of AMPs in the Department of PMC need to be cleared by January 2016, the Department  vehemently disagreed, denying a backlog existed. The Department noted:

Eight AMPs have been submitted for approval to the Minister for Indigenous Affairs, Senator he Hon Nigel Scullion, in accordance with the Stronger Futures in the Northern Territory act 2012. To date, the Minister has approved one AMP, in May 2014, covering Titjikala community. Between January and April 2015, the Minister declined to approve the remaining seven AMPs in part because they had the potential to increase alcohol related harm.

The Department provided a range of other comments and information, including in relation to IAS funding for alcohol treatment, and commentary on Fetal Alcohol Syndrome issues.

On 6 December 2015, the Department also published a comprehensive paper from the National Drug Research Institute titled Review of the Aboriginal and Torres Strait Islander Alcohol, Tobacco and Other Drugs Treatment Service Sector: Harnessing Good Intentions. The paper was dated August 2014, some fifteen months earlier, and does not appear to have been utilised in assessing the Stronger Futures alcohol regime in the NT, nor in developing the Commonwealth response to the Standing Committee report.

I don’t propose to summarise it closely, but note a few salient issues which emerge. The report identifies that the level of demand for treatment services amongst Indigenous citizens is more than is currently available. Data of sufficient quality to precisely quantify levels of need or the demand for alcohol, tobacco and other drug (ATOD) services are not available, but available data suggests ATOD related problems are at least twice as prevalent amongst Indigenous citizens as in the mainstream. Gaps in treatment provision are unevenly distributed, and service provision planning is deficient. The report identifies alcohol as the most harmful drug of concern (p5). The report is critical of the transfer of funding for treatment of ATOD harms from the Health Department to PMC in 2013 and concludes that the ‘current system for the provision of ATOD services is fractured’. The report has useful and constructive suggestions for improving the funding models utilised by government, and notes the absence of an Indigenous peak body for ATOD services.

Conclusions

What are we to make of the information placed on the public record by PMC in these reports?

First of all, it is notable that the Minister left it to the Department to publish these reports, without fanfare, on its website.

Alcohol harm continues to a major issue for the Australian community, but it is particularly so for Indigenous citizens. Notwithstanding the focussed attention allocated to alcohol harm by Governments, there remains an evidence base deficit, whereby the commitment to collecting and analysing the data required to understand the scale and depth of the problem is absent, and the most effective policy instruments are ignored.

Given the Commonwealth’s fifteen year legislative foray into NT alcohol issues, and its broader concerns about the downstream costs and consequences of alcohol abuse across remote Australia, the lack of commitment to developing better analytical base is difficult to understand.

The arguments advanced against moving towards a volumetric tax on alcohol, against all the evidence, do not stand up to scrutiny. The argument advanced by PMC (and rejected by the Standing Committee) that the appropriate policy action must specifically target binge drinkers, and measures which don’t are not appropriate, amounts to a pathetically weak rationalisation for a policy position which is deeply entrenched, extremely costly in both human and economic terms, and clearly aligned with alcohol industry advocacy. Even accepting the flawed premise of the Department’s rationale, one of the benefits of a volumetric tax is to remove the incentive for excessive drinkers to find and consume cheaper sources of alcohol such as cask wine.

In the light of the intransigent opposition to the most effective policy instrument available to counter social and individual harm, the extraordinary conclusions of both the MinterEllison report and the National Drug Research Institute that the data does not exist to precisely determine the extent of harm from alcohol in the Indigenous community suggests that the Government’s opposition to a full longitudinal analysis of the nature of alcohol harm is motivated by a determination not to understand the full extent of the harm involved.

The decisions by the Minister to reject seven AMPs are curious. We do not have access to the details which would allow a full assessment, and it is the case that some potentially influential groups within remote communities have an incentive to press for potentially harmful levels of alcohol availability. Yet the policy intent in the Stronger Futures Implementation Plan (and it is also replicated in Minister Macklin’s promulgation of rules relating to AMPs) is for the Department to work with communities to develop AMPs.

When confronted by an unacceptable proposed AMP, it was envisaged that the Minister and his Department would not just decline to approve it, but would engage with the community to assist them to understand what an acceptable AMP would look like.

It seems however that there has been a changed approach, and that notwithstanding earlier comments (and here) to the contrary, the Minister may now be more inclined to leave the NTER/ Stronger Futures prohibitions in place in most locations. There appears to have been no policy announcement or explanation made explaining the Minister’s current approach to these matters, which is less than desirable.

In the absence of such an explanation, one might conclude that the Minister is more inclined to adopt a ‘tough on grog’ policy line, notwithstanding that it is important for communities to ultimately transition to models of responsible drinking, and AMPs are eminently suitable mechanisms for assisting in this transition. A cynic would note that such a tough policy line in commercially insignificant areas provides a measure of political protection against calls for the imposition of taxes or price based incentives against alcohol consumption.

Moreover, the AMPs are key elements in justifying the alcohol restrictions as ‘special measures’, and a move away from them will increase the risk of a court striking down the whole Stronger Futures scheme as racially discriminatory, and almost certainly undermine Indigenous support for the regulatory regime in place.

The suggestion, in a footnote to the Commonwealth Response to the Standing Committee Report, that the Stronger Futures National Partnership Agreement, implementation plan, and alcohol measures are being renegotiated is significant. The National Partnership provides for significant funding in a policy framework which makes it less vulnerable to budget cuts and the implementation plan is by definition a key reflection of policy. There would be merit in the Minister outlining in broad terms his strategic approach to alcohol regulation in remote Australia, and in the Northern Territory in particular.

The adverse consequences of alcohol abuse in remote communities are devastating – for individuals, families, children, unborn foetuses, and whole residential communities. Alcohol abuse negatively impacts individuals’ physical health, cognitive ability, mental health, education, employment, safety, and overall well-being. It has broader social consequences for community cohesion, community governance, and social and economic stability, and even economic development. The opportunity cost of failing to effectively regulate alcohol consumption and failing to minimise alcohol induced harm is enormous, and while those costs fall most severely on Indigenous citizens, the costs also extend to all taxpayers, including those who happen to drink alcohol responsibly.