Measures to address alcohol abuse
The Northern Territory National Emergency Response Act 2007
(NTNER Act) modified existing NT law in relation to alcohol regulation. In
particular, it prescribed a range of areas in the NT for which it is an offence
to bring liquor into, be in possession or control of liquor, or consume or sell
liquor. There were limited exceptions to allow liquor to be consumed in certain
The prescribed areas applied to most Indigenous land in the NT. The current
minister advised the committee that it is not feasible to provide the numbers
of areas prescribed under this measure, but that in broad terms, the following
areas under the NTNER Act were deemed prescribed areas:
Aboriginal land as defined in the Aboriginal Land Rights
(Northern Territory) Act 1976;
community living areas under the Lands Acquisition Act of the NT;
town camps that have been declared for the purpose by the minister.
The prescribed areas are all areas with predominantly or solely
Indigenous inhabitants. The Stronger Futures legislation continued these
restrictions, turning prescribed areas under the NTNER Act into 'alcohol
protected areas' (APAs).
The same restrictions on alcohol possession, consumption or sale applied to the
APAs as to prescribed areas under the NTNER Act (but with increased penalties
for any breach).
When the Stronger Futures measures were introduced it was intended that
the communities subject to the existing restrictions would be transitioned to
community-driven alcohol management plans (AMPs). The Stronger Futures Act set
out the process by which a person or group could apply for approval of an AMP.
The explanatory memorandum for the Stronger Futures bill explained that the
were intended to ensure that local solutions could be
developed to address the problems of alcohol misuse:
Existing alcohol protections will be preserved in 'alcohol
protected areas' with additional provisions that enable the geographic areas
covered by these protections to be changed over time and for local solutions to
This Bill includes new provisions for the Commonwealth
Minister for Indigenous Affairs to approve alcohol management plans. This
allows for communities to play an active role in continuing to reduce
alcohol-related harm, and to tailor a solution specific to the community's
The Stronger Futures in the Northern Territory (Alcohol Management
Plans) Rule 2013 (the Stronger Futures rule) was subsequently made, setting out
the minimum standards to be met by AMPs. The statement of compatibility for the
Stronger Futures rule stated that the prescribed minimum standards 'will
encourage community groups to take ownership of the way that they manage
alcohol in their community'.
The committee's 2013 report examined the Stronger Futures rule and the
AMP process and concluded:
The committee considers that alcohol management plans
following compliance with the detailed criteria set out in the Stronger Futures
in the Northern Territory (Alcohol Management Plans) Rule 2013 are likely to
avoid the human rights compatibility concerns that attached to alcohol
restrictions permitted under the [NTNER] and continued under the Stronger
However, the committee noted that it was concerned to know whether there
were still communities in which alcohol restrictions apply which had not
followed the new consultation procedures and, if so, whether a timetable was in
place to bring those communities under the new framework.
Following correspondence with the current minister as part of this
inquiry, it has become clear that all of the existing alcohol restrictions
imposed by the NTNER, and continued by the Stronger Futures measures, remain in
place across the NT. As at late 2015, only one AMP has been approved by the current
minister, and there has been no revocation or variations to existing APAs. This
includes the one area which has had its AMP approved; the Titjikala community.
In that case, the AMP operates alongside the existing alcohol restrictions; it
does not replace those restrictions.
In addition, the current minister has refused to approve seven AMPs submitted
by community groups.
As the restrictions imposed in 2007 by the NTNER continue to apply to
Indigenous communities in the NT, the committee considers it necessary to
assess whether the continuation of these measures, within the context of the
current status of the AMP process, is compatible with human rights.
The tackling alcohol abuse measures were designed with the aim of
reducing the effects of alcohol-related harm in Aboriginal and Torres Strait
Islander communities in the NT.
It is clear that alcohol-related harm in many of these communities is a major
concern and greatly affects the health and well‑being of people in those
communities. As such, reducing alcohol-related harm in these communities promotes
a number of human rights, including the:
right to health;
rights of the child (which includes the rights of the child to
protection from all forms of physical or mental violence or neglect and a
child's right to an adequate standard of living);
right to security of the person (which includes protection by the
state against violence or bodily harm).
However, in addition to seeking to promote these rights, the committee
considers that restricting the supply of alcohol in a community solely on the basis
that it is an Aboriginal community engages and limits the following rights:
right to equality and non-discrimination;
right to a private life;
right to self-determination.
Compatibility of the measures with multiple rights
The government's position is that the measures taken to address alcohol
abuse are 'special measures' for the purposes of international human rights
law. A measure which provides differential treatment for certain racial groups
may be considered to be a 'special measure' (and therefore not discriminatory)
if it can be demonstrated that the measure is temporary and taken for the advancement
of that group.
However, as set out in Chapter 1, in its 2013 report the committee found
that measures which criminalise conduct by some members of the group to be
benefited, in order to promote the overall benefit of the group, are not
appropriately classified as a 'special measure' under international law.
As such, the measures limit the right to equality and non-discrimination
as they directly discriminate on the basis of race. The APAs apply only to
Aboriginal land, Aboriginal community living areas and Aboriginal town camps.
The measures also limit the right to a private life as they prohibit
consumption of alcohol in such areas, including in the home. Nevertheless, limitations
on these rights may be permissible if it can be demonstrated that the measures
seek to achieve a legitimate objective and are rationally connected to, and a
proportionate way of, achieving that objective.
The tackling alcohol abuse measures in the Stronger Futures Act were
aimed at reducing alcohol-related harm to Aboriginal people in the NT.
In its 2013 report the committee accepted that this goal is an important and
legitimate objective, and if achieved would contribute to the promotion of a
number of human rights.
The committee reiterates its view that the goal of reducing
alcohol-related harm in Aboriginal communities in the NT is a legitimate
objective for the purposes of international human rights law, and is clearly
aimed at meeting a pressing and substantial concern. The committee considers
that the evidence clearly establishes that alcohol is a major problem in parts
of the NT and the harmful use of alcohol is causing numerous social, cultural,
economic and health problems in many Indigenous communities.
As such, the committee considers that any limitations on human rights imposed
by the tackling alcohol abuse measures seek to address a legitimate objective
for the purposes of international human rights law.
In ascertaining whether the measures are rationally connected to that
objective, the key question is whether the measures are likely to be effective
in achieving the objective of reducing alcohol-related harm in Aboriginal
communities in the NT.
Review of the effectiveness of the
Stronger Futures measures
When the Stronger Futures bill was introduced, emphasis was placed on
the fact that the legislation included a requirement that an independent review
of the effectiveness of NT and Commonwealth laws in reducing alcohol-related
harm was required within three years of the passage of the Stronger Futures
A report prepared in accordance with this requirement was tabled in both
Houses of Parliament on 16 September 2015. However, that review did not,
contrary to the legislative requirements, assess the effectiveness of the
measures. The law firm engaged to conduct the review was engaged on 20 July
2015 (over one year later than required by the legislation) and reported within
14 business days (on 6 August 2015). The approach taken to the review within
this timeframe was to conduct a 'desktop' review. The report's authors noted
'we have not had the benefit of any specific evidence or data collected for the
purposes of this review'.
As such, the review concluded it was unable to assess the effectiveness of the
...given the absence of specific evidence and data concerning
alcohol‑related harm, we have been unable to determine with any certainty
the extent of alcohol-related harm suffered by those communities nor establish
any definitive measure of the extent to which the laws under review may have
been effective in reducing alcohol-related harm.
In terms of making any conclusions, the review stated that sufficient
data and evidence was not identified to allow a proper baseline to be
established regarding the extent of harm caused by alcohol misuse at the
commencement of the Stronger Futures Act or to date.
This is consistent with the submission to this inquiry from the Aboriginal Peak
Organisations NT (APO NT), which noted that data on the effectiveness of
establishing alcohol protected areas has not been collected, analysed or made
The Stronger Futures Progress Report (1 January 2013-30 June
2013) does not contain any data related to the imposition of Alcohol Protected
Areas and other alcohol restrictions, nor does it propose to establish an
evaluation process to measure the impact of these restrictions.
As at December 2015 the progress report from 1 January to 30 June 2013 remains
the most recent report issued by the Department of the Prime Minister and
Cabinet on the implementation of the Stronger Futures measures.
As the government has not produced any evidence as to the effectiveness
of the Stronger Futures measures in reducing alcohol-related harm (contrary to
the legislative requirements) it is difficult for the committee to assess
whether the tackling alcohol abuse measures are rationally connected to the
legitimate objective of reducing alcohol-related harm.
At a broad level, the committee notes that the evidence indicates that
policies to reduce alcohol-related harm work best when they have the support of
the local community, while blanket bans on alcohol appear to have had a number
of unintended consequences which may have led to more unsafe drinking
practices, as set out below.
Policies with local support are
most likely to be effective
The committee's 2013 report noted that studies have shown that the
alcohol restrictions most likely to be effective are those decided on by the
community rather than ones imposed from the outside.
In 2007 the National Drug Research Institute conducted a comprehensive review
of all alcohol restrictions in Aboriginal communities and found that there is
no single mix of restrictions that work for all communities.
A review of AMPs (including plans approved since 2002 under different
arrangements to those set out in the Stronger Futures Act) has concluded that
while the evidence is limited, where AMPs are locally driven and owned there
are stronger and more sustainable outcomes.
For example, positive outcomes were recorded in relation to an AMP developed
for Groote Eylandt and Bickerton Island:
A key finding of the study was that the success of the AMP
could be attributed to ownership and support of the system by the Aboriginal
communities and by key local service providers, employers and by the licensed
As set out above at paragraphs [3.4] to [3.5], it was intended that the
Stronger Futures measures would transition the existing blanket bans imposed by
the NTNER Act to AMPs developed by local communities. Yet, since the
legislation was introduced in 2012 only one AMP has been approved by the current
minister, and seven AMPs agreed to by local communities have been rejected. A
number of other communities have been in the process of developing an AMP, but
it appears that these were either rejected by the former minister or have not
been submitted to the current minister for approval.
As a consequence, the existing blanket alcohol bans, which had no community
development or involvement before their imposition in 2007, continue to exist
in all prescribed areas across the NT.
There is some evidence to suggest that the stalled process on AMPs has
had the effect of undermining the capacity of communities to manage alcohol in
their area. For example, in a submission to a recent House of Representatives
inquiry into the misuse of alcohol in Indigenous communities, Professor Peter d'Abbs
provided a case-study of a community that, when developing their AMP, decided
it wanted to have a designated drinking area on the outskirts of the community,
to ensure the safety of those who continued to drink.
This decision was reached after the blanket ban imposed in 2007 had meant a
number of people had been killed after being struck by vehicles while drinking
on crown land located next to a highway not covered by the alcohol bans.
Despite the community having overwhelmingly endorsed this plan (a plan
which included the support of the then regional Police Superintendent and the
local Health Centre), the current minister refused to endorse the AMP.
Professor d'Abbs explains the effect of this process:
One immediate effect was a palpable deflation in the level of
energy that community members were prepared to put into addressing
alcohol-related issues—a deflation that, in my observation, continues to this
day, despite the sustained efforts of a few committed community members.
Another was an ongoing search by drinkers for places where they could drink (in
their terms) safely....
The net effect of all of these events, I suggest, has been to
undermine rather than enhance the community's own capacity to manage alcohol,
and to increase the likelihood of both drink-driving and opportunistic
That House of Representatives inquiry noted that concerns were raised
during the inquiry that once a community had mobilised to develop an AMP, the
lack of responsiveness from governments can mean that impetus and motivation is
Unintended consequences of blanket
In assessing whether the limitations on rights occasioned by the
tackling alcohol abuse measures are justifiable, it is also important to
consider whether the measures would have any unintended consequences and so
fail to achieve the objective of reducing alcohol-related harm. There is some
evidence that the blanket alcohol bans imposed in 2007 and continued under the
Stronger Futures measures are having unintended negative consequences. The
recent House of Representatives inquiry into the misuse of alcohol in
Indigenous communities highlighted that 'where there is a demand for alcohol
and a supply point is not available, people will engage in a range of
activities to circumvent alcohol restrictions'.
This includes: the trafficking of alcohol to restricted areas; setting up
drinking camps outside of restricted areas (in potentially unsafe locations);
the displacement of community members to locations where alcohol is more
readily available; and the possible substitution of alcohol with other drugs.
The NT Government has highlighted research that has found that the bans
introduced by the NTNER Act (and continued under the Stronger Futures measures)
have resulted in drinking camps shifting further away from communities, and
Aboriginal people in remote communities are concerned by the
harms and level of grief being experienced by family members and communities
through unmanaged drinking in unsafe public places. This includes on highways,
close to rivers, or far away from communities hidden in the bush, where family
members cannot watch over drinkers, where anti‑social behaviour arises
between clans and the mixing of communities, and where drinkers are at a long
distance from Night Patrol or police officers. There have been a number of road
deaths of drinkers, drinking on highways and car accidents of people returning
from drinking camps.
UnitingJustice Australia also submitted to this committee:
According to [the] Jumbunna Research Institute, blanket
alcohol bans have undermined successful existing community-led alcohol
management programs, and also may have increased harmful alcohol practices such
as binge drinking, drink driving, and an increase in drinking in urban areas
because people are forced to go outside their community to access alcohol.
A key aspect of whether a limitation on a right can be justified is
whether the limitation is proportionate to the objective sought to be achieved.
In assessing whether a measure is proportionate some of the relevant factors to
consider include whether there are effective safeguards or controls over the
measures, including the possibility of monitoring and review. It is also
relevant to consider whether the communities affected by the measure have been
consulted and agree to the measures imposed.
Monitoring and review
As set out above at paragraphs [3.18] to [3.21], the Stronger Futures
Act contained a legislative requirement for an independent review to assess the
effectiveness of the alcohol laws.
However, a bill was introduced in 2014 seeking to repeal these review
requirements on the grounds it was no longer required.
One of the reasons given was that the Stronger Futures measures would be
assessed as part of the revision of the Stronger Futures National Partnership
In June 2014, the current minister advised the committee that work was
underway to revise Stronger Futures, with a focus on reducing unnecessary
administration and red tape and ensuring funding is directed appropriately.
In July 2015, the current minister further advised that the original
NPA was still being revised and advised that the revisions 'are primarily
administrative and will not require changes to legislation'.
The current minister noted that as consultations were held with affected
communities prior to the 2012 Stronger Futures measures being introduced, there
would be no further community consultation in the development of the new NPA.
The revision of the Stronger Futures NPA will not affect the existing
restrictions imposed by the alcohol abuse measures. Therefore, the committee
does not consider that the review of the NPA, while it may have other benefits,
will be of assistance in determining whether the existing legislative alcohol
restrictions are appropriate.
Consultation with affected
As noted in the committee's 2013 report, one of the much criticised
features of the 2007 NTNER was the failure to consult with the communities and
groups affected by the measures introduced.
The 2013 report acknowledged that in developing and introducing the Stronger
Futures measures the government went to considerable effort to consult with
Indigenous communities and other stakeholders around many aspects of the
However, as found by the Senate Community Affairs Legislation Committee,
notwithstanding this, there remained much confusion and frustration in many
communities over the measures.
The community engagement aspect of the AMP process introduced by Stronger
Futures has support from a number of organisations. The APO NT submitted to
Alcohol Management Plans ("AMP's") could
potentially be an effective way for communities to gain control over alcohol
issues. APO NT agrees with the Committee that the use of Alcohol Management
Plans generally overcome human rights concerns which are presented by some
other strategies implemented under Stronger Futures to address alcohol issues.
The Australian Human Rights Commission has also indicated its support
The Commission believes alcohol management plans have
significant potential to address alcohol related harm in the Northern Territory
by facilitating community control of alcohol regulation and harm reduction
strategies. This is both consistent with human rights standards and the
As noted above at paragraphs [3.4] to [3.5] and [3.25], while it was
intended that the Stronger Futures measures would transition the existing
blanket bans imposed by the NTNER Act (which had no community development or
involvement) to AMPs developed by local communities, since 2012 only one AMP
has been approved across the entire NT.
From correspondence with the current minister, it appears that, despite
the legislative requirement for approvals of AMPs, the development of AMPs is
no longer a focus of the alcohol abuse measures:
The requirements for AMPs set out in the AMP Rule have proven
rigid and time-consuming and make it difficult for communities to prepare AMPs
that the Minister can approve in accordance with the legislation. As a result
the Government has adopted a new streamlined approach to AMP approvals in which
the Government is supporting communities to work directly with the NT
Government to implement activities that reduce alcohol-related harm in a more
timely and responsive manner. Both the Commonwealth and NT Governments are
currently working with communities to implement the new approach.
This is in line with a submission from the NT government to the recent
House of Representatives inquiry, which stated that the process for approving
AMPs under the Stronger Futures measures is overly bureaucratic:
The current model of Alcohol Management Planning under the
[Stronger Futures] Act is a top down driven approach, with a protracted
bureaucratic process for gaining approval by the Federal Minister requiring
extensive evidence of meeting the AMP Minimum Standards linked to the
[Stronger Futures] Act.
The committee notes that the House of Representatives inquiry recommended
that communities be empowered to develop the strategies that will work for
their communities and that AMPs and other community driven strategies needed to
be reviewed and processed within a maximum of six months.
The government's December 2015 response to this stated:
The process around Government handling of AMPs has been
streamlined to reduce red tape and support local outcomes. Priority is being
given to working with the Northern Territory (NT) Government and local
communities to advance practical actions that reduce alcohol related harm. For
those communities that choose to submit AMPs, they will be assessed by the
Government in accordance with legislative requirements.
It is not clear to the committee what steps are now being taken in
relation to alcohol restrictions in Aboriginal communities in the NT. The
committee notes the government's advice that work is being done with the NT
government and local communities in relation to 'practical actions' to reduce
alcohol-related harm and encouraging communities to work directly with the NT
Government 'to implement activities that reduce alcohol-related harm'. No
further detail has been provided as to what exactly this entails. What is clear
is that under the Stronger Futures legislation, the existing blanket alcohol
restrictions introduced in 2007, without any community consultation, continue
to apply to Indigenous communities across the NT.
There is evidence that the process for the approval of AMPs has resulted
in widespread frustration and a loss of community goodwill and engagement. The APO NT
submitted to this inquiry that there has been a lack of progress on the
approval of AMPs and a significant number of AMPs which have community
endorsement have been awaiting governmental approval for longer than 12 months:
The purpose of the AMP scheme was to enable communities to
develop and tailor community specific measures to address alcohol. The AMP
scheme seems to indicate an acknowledgement by the legislature of the
importance of community control on issues such as alcohol. Unfortunately, the
slow progress on the approval of these plans is hindering community tailored
control and initiative. 
The recent House of Representatives inquiry into the harmful use of
alcohol in Indigenous communities also received a number of submissions which,
while generally supportive of AMPs, questioned the current approach to the
approval of such plans:
Concern was raised during the inquiry that once a community
has mobilised to develop an AMP, the lack of responsiveness from governments
can mean that impetus and motivation is lost. Professor Langton notes that some
AMPs with community endorsement had been waiting for approval for two years or
One submission to this inquiry also raised concerns with the process
established under the legislation, noting that the requirement for federal
ministerial approval of AMPs is effectively a ministerial override:
This approach does not allow for Indigenous communities to be
self-determining in terms of effectively and appropriately addressing these
issues as they choose.
The committee acknowledges that alcohol is a major problem in parts of
the NT and the harmful use of alcohol is causing numerous social, cultural,
economic and health problems in many Indigenous communities.
The committee therefore considers that any limitation on human rights imposed
by the tackling alcohol abuse measures clearly seek to address a legitimate
objective for the purposes of international human rights law. If the measures
were likely to be effective this would contribute to the enjoyment of a number
of human rights, including the right to health and the rights of the child.
While the committee considers that the measures seek to achieve a
clearly legitimate objective of reducing alcohol-related harm, the committee is
concerned that the government has not established that the measures are likely
to be effective in achieving the stated aim, or are proportionate to that aim.
A key question for the committee in assessing whether the measures are
rationally connected to the stated objective is whether they are likely to be
effective in achieving the aim of reducing alcohol related-harm to Aboriginal
people in the NT. The required legislative review of the effectiveness of the alcohol
laws in the NT did not produce any evidence as to the effectiveness of the
Stronger Futures measures in reducing alcohol-related harm. There appears to be
no government data demonstrating whether the measures have made any difference
in reducing alcohol‑related harm.
The only evidence that is available indicates that, in general, policies
to reduce alcohol-related harm work best when they have the support of the
local community. AMPs were intended to ensure that locally tailored solutions
could be found to address the problems of alcohol-related harm. The criteria
for community involvement and ownership of such plans led the committee to
previously conclude that alcohol restrictions based on these community-led
plans would be likely to avoid the human rights compatibility concerns attached
to the blanket alcohol restrictions imposed by the NTNER Act and continued
under Stronger Futures.
However, it is now clear that the existing AMP process under the
Stronger Futures Act and Stronger Futures rule is not functioning effectively.
Only one AMP has been approved by the current minister across the entire NT,
several have been rejected and many more appear to have stalled. The government
itself has stated that the existing AMP process is rigid and time-consuming and
a number of stakeholders have stated that the process is overly bureaucratic.
In addition, none of the existing blanket alcohol restrictions have been eased
in any of the areas originally proscribed by the NTNER Act, despite the
Stronger Futures legislation setting out a process by which the existing
restrictions could be eased. Even where communities have decided as a group
that the best solution for their community would be to have designated safe
drinking sites in their community (for a range of sound reasons), this has been
rejected by the current minister. This is despite evidence demonstrating that blanket
bans on alcohol have had a number of unintended consequences which may have led
to more unsafe drinking practices and greater alcohol-related harms.
In addition, a key aspect of whether a limitation on a right can be
justified is whether the limitation is proportionate to the objective sought to
be achieved. In assessing this it is important to consider whether there are
effective safeguards or controls over the measures and whether the communities
affected by the measures have been consulted and agree to the measures imposed.
As set out above, there appears to now be no legislative process to monitor and
review the existing alcohol laws and the blanket alcohol restrictions which
were imposed without community consultation apply to all areas originally prescribed
It is not clear to the committee what steps are now being taken in
relation to alcohol restrictions in Aboriginal communities in the NT. The
government has advised that work is being done with the NT Government and local
communities in relation to 'practical actions' to reduce alcohol-related harm
and encouraging communities to work directly with the NT Government 'to
implement activities that reduce alcohol‑related harm'.
While the committee welcomes the adoption of any steps that might be taken
outside of the legislative process that may reduce alcohol related harm, under
the Stronger Futures Act the existing blanket alcohol restrictions continue to
apply. There does not appear to be any intention to review these legislative
restrictions or make amendments to the legislation. This is despite the current
minister's own acknowledgement that the existing legislative process is rigid
On the basis of the evidence before it, it is difficult for the
committee to establish that the existing legislative alcohol restrictions are
rationally connected or proportionate to the stated objective of reducing
alcohol related harm. The committee considers that it is vitally important that
there be a coherent approach to addressing alcohol related harm in Indigenous
communities in the NT. A human rights compliant approach to the regulation of
alcohol requires that any measures must be effective and genuinely tailored to
the needs and wishes of the local community. It is not apparent that the
current legislative process set out under the Stronger Futures Act meets these
requirements. As such, the committee makes the following recommendations in
order to improve the human rights compatibility of the measures:
The committee recommends that detailed and
evidence-based review be undertaken to assess the effectiveness of existing
legislative alcohol restrictions in the NT in reducing alcohol-related harm.
The review should consider whether any laws should be amended to ensure a more
coherent and effective approach to reducing alcohol-related harm. Specific data
and evidence analysing the effectiveness of the existing laws should be
collected and made available; and the review should be undertaken by
independent experts and given sufficient time to gather and analyse the
The committee recommends that the existing process for
approval of AMPs be streamlined to reduce unnecessary administrative burden and
the legislation amended to remove the power of the minister to unilaterally
refuse to approve AMPs agreed to by the affected communities (with consideration
given to devolving decision‑making power to ensure greater responsiveness
The committee recommends that the existing blanket alcohol
restrictions that continue to apply to all Indigenous land in the NT be
reviewed and that the legislation be amended within a reasonable timeframe to
ensure a transition from the existing blanket restrictions to locally developed
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