By James Travers-Murison
A legal analysis of consequences for the Commonwealth government if they fail to address the Aboriginal alcohol problem.
By James Travers-Murison who is a lawyer and writer since 1989. He did his articles at Sly & Weigall (now Deacons). He worked in London and has travelled extensively in the third world. He lived with the Aboriginals in Cape York, Queensland in 1995 and 1996. He currently is starting UOCA, a spiritual organisation, and will soon develop his own current affairs and literary magazine catering to professionals called ‘Travers-Murison’. The First Edition will be located on-line at http://www.tmmag.com.au and contains an article on this issue
This report was completed with the assistance and advice of Professor Harold Luntz of Melbourne University Law School (Torts expert), Susan Kneebone of Monash University Law School and author of Tort Liability of Public Authorities, Rachael Lewitan, QC and Human Rights barrister, and Michelle McCann
Submitted as a report to Senator Herron, in 1999 and the Queensland Minister of Aboriginal & TSI Affairs in 2000 and led in part to the Fitzgerald inquiry.
1st ed. May 1999
2nd ed. November 2000
3rd ed. August 2002 Copyright Enligtenart [photos of Lockhart available].
Reviewed 2009
CONTENTS
I. Introduction
Lockhart River Aboriginal Community
II. Legal analysis of consequences for the Government
1. Introduction
2. The Government’s Power to enact Special Measures banning alcohol.
3. The Racial Discrimination Act
4. The Commissioner’s Powers to implement Special Measures under the RDA
5. A duty of Care owed by the Commissioner
6. Duty of Care not arising from Section 20
7. Statutory exemption
8. Summary
III. Summary of Legal Consequences
1. Proposed Action
2. The Future – an addenda
A. Responses to the report
B. In depth study
I. Introduction
Lockhart River I hope will change the world's attitudes to indigenous peoples. When will people learn to love each other? Listen to the wind and behold the story of 'Lockhart', 'Locked Heart', or how to 'unlock the heart' of our discontent and open up to all our peoples the intricacies of human bondage, to triumph over adversity, and so reach beyond the earth to inspire hope and happiness in our children of all races. These solemn utterances must bring our nation together in peace and reconciliation.
· Lockhart River Aboriginal Community
I visited Lockhart River in October and November 1995 over a period of six weeks and a story opened up to me. A sad story, but one that I hope ends happily. I start this bitter journal from the time I first truly entered native territory and that was in September 1995. I had skirted through Iron Range National Park and its heath-like moors and mountains and dipped down into the largest area of lowland rainforest in Australia. I had relaxed with the wild fishermen at Chilli Beach lined with coconut palms for a few days. In that period where the dry is well centred in the yearly seasons, I drove my worn VW combi down the rough gravel road to Lockhart. A kingfisher with a yellow bill circled the van.
A party of eight explorers led by Edmund Kennedy had made a last desperate struggle to reach the tip. Disease, starvation and the local Cannibals took all but two. Carron and Coddard managed to signal the ship Ariel from the mouth of the Pascoe River. That was in 1848 when the first Europeans made contact with the indigenous people.
The evening sun settled behind some high cumulus clouds on the edge of the hill called Mount Tozer and an air of lightness struck me. The gravel road twists onto asphalt as I passed the first weatherboard dwellings, slightly rundown, some with small tropical fruit gardens, most without, but all with a hammered up wood outhouse with either a tin or palmleaf roof. Ramshackle affairs under which occassionally a weatherbeaten and overweight man would sit. The slow meandering heat and the dull ochre brown of the earth's alluvial sediments, one drives past some pretty brick houses with neat gardens, one is in Lockhart and within moments you are by the store to the hooting of a fawn-breasted bower bird.
My first contact with this community of Aboriginals, or Murri's as they like to be called, began when I drove up to the crossroads by the caged petrol pump by the store. A scruffy bearded man approached and I beckoned him closer.
"Where can I stay?"
He smiled and his face looked like it had seen some hard drinking, but held a kind of gentleness, a lightness in the eyes. He was middle aged. I asked where everyone was and the kind 'old fella' pointed to and gave me directions to the guesthouse, my mind switched off as I was more looking for a place to camp, but I let him complete his little dance and drove off in the opposite direction - towards the beckoning face of the Canteen. Bordering the large mulga grass football field were a couple of square, white and light green and paint peeling concrete buildings where the Canteen was. A squat barnyard like structure with a slightly sloping roof. A good 500 metres from the nearest housing, no doubt to sober up wayfearing drunks who might spend the night in a ditch beside the road rather than with their families.
So I went there ordered a beer from a window in the concrete and brick wall and met Mike or was it Claudie. The canteen was in fact the bar and the community’s only official source of alcohol. It sold beer and nothing but beer, and packets of chips if you were lucky. We sat on the bolted down benches and concrete tables. Mike was tubby and short in a chequered shirt with a smile of sunburnt scrub. He was pretty much a full blood aboriginal or Murri and he introduced me to Tom. He was half aboriginal and half white, though to me he looked European. Tom's clothes were torn jeans, filthy and a ripped shirt that he never did up and never tucked in. I was offered hospitality almost immediately and he invited me to stay in his house.
I became their "mintah yabba" or good brother. The house was centred round a kitchen, with a dining room and lounge at one end and a living and washing area at the other. Bedrooms surrounded either side. Cracked windows, holes in the boards, it was cosy and not quite derelict. Between six and ten people slept on mattresses on the floor in the various rooms. "Wuwanaa" was the word to sleep. Rubbish, clothes and bottles of beer lay everywhere. A well-worn rug lay on the lounge floor where the sofa hung together; cushions lay torn and askew next to the TV. Housing conditions for the majority of indigenous people were not good, many bordering on derelict, contrasting with facilities for white administrative staff, including $1,000,000 hospital without a doctor. I would pass by the white area on the way to the beach, larger houses with tidy gardens and fences.
In Tom's house everyone was downing chilims
In Tom's house everyone was downing chilims, as they referred to the practice of filling a plastic bottle full of marijuana smoke then sucking it all in one breath. "Kuppun" was a super smoke in their language. The kids participated. We were going to watch a video. Tom was repairing the video recorder, with no electrical training he had the lid off and the power on, and directed his screwdriver over the green circuit board completely stoned. Marijuana drug and alcohol abuse was excessive. Almost all members of the community seemed to some extent afflicted, including members of the council. Television, video and Western music, in particular Afro-American reggae seemed to have taken over what was left of their culture. There was still a strong sense of community sharing and I was always offered food wherever I went. At mealtimes a mixture of dishes was placed on the table called "kaikai" or "maiyee" and if you felt like eating it you ate it. Often family members just got up and walked away. No one minded. Through the extended families much support was given and a watchful eye kept on their children, though this was not the case after a visit to the canteen.
Some of the housing and conditions, especially of Christian members of the Community were very good. However this was not so for the majority. One of the reasons for this was the European basis for housing. There seemed little incorporation of traditional, open widely spaced, housing made from local natural materials appropriate to the culture. This was so despite consultation and some adaptation to aboriginal needs when they were built.
A local European 'flower power' commune and organic fruit farm showed what could be achieved with open housing and farming, but they also had drug problems.
An organic fruit growing commune at Pasco River lived in open-air housing with nature fairly successfully, and many Aboriginals visited there to barter. Relocation of many of the aboriginals into low density open-air housing each in its own tribal area seemed to be called for. Possibly with encouragement to move into small cattle ranch settlements. From what I understood this may be happening to a limited extent.
Children neglected after binge drinking
I learned quickly that to talk about fighting invited fighting. While I was there I witnessed many bashings, mostly centred around the canteen, including Tom's woman, caught in a female fight, have her throat slashed by a broken beer bottle. She survived with remarkably little injury. Another very beautiful young woman was knocked into concussion by her boyfriend. I was attacked on three occasions. Once for dancing with another man's woman, once for saying I had no problem with the police and once for talking about fighting. Pinky tried to break my fingers as I played guitar, but he was so drunk he could not catch me. Pasco cornered me and he was young and hurt my nose and chest as I tried to block his punches and tell him to stop, but he only stopped when I put my fists up. Then he took me home and fed me and offered a place to sleep. They tell me it is "borra" or initiation - acceptance into the tribe.
One woman who was related to Tom's adopted family, a "woolamoo" - sister in law, had been 'cracked' as it was referred to, she seemed to suffer from a premature form of Parkinson's disease, incapable of walking or talking properly. This I was informed was a direct result of suffering severe headbeatings from a boyfriend. She was 26. Incest and sexual abuse seemed to be prevalent. All this was "yuntha" - bad. In fact the community appeared to be made up of three distinct tribal groups, the Umpila, Kuuku Ya'u and Kuthanumpoo, pushed on top of each other with resulting conflicts, some of which I got involved in. The Kuuku were forcibly moved to missions at Orchid Point and Old Site before coming to Lockhart.
The old grandpa, who used to sit under the Banyon tree, his eyes were blank and he could not speak, had suffered too many years of too much drink. There was another old fella I took to hospital. Terrible ulcers on his legs which he had refused to get Western medical treatment for. Somehow he was afraid of our system. The ultra-modern Hospital I was told took 1000 admissions per month. With a community population at 800 this was more than 1 admission per resident per month. Although most admissions were due to assaults, degenerative health disorders, in particular diabetes, alcohol related diseases and obesity seemed to be at a critical level. Fruit and vegetables were overpriced with almost no health foods. There was an abundance of heavily processed and junk food and little adult education on healthy eating. The other small shop, in a dusty aluminium prefab building was an Anglican Church run enterprise, run by a very fat white couple. They sold fish and chips and charged extortionate prices for all goods. It seemed to be a clear case of profiteering. The Anglican Church had a Samoan reverend that had almost no congregation and had not surprising difficulties inspiring trust in the community.
However what was needed was the introduction of subsidised health foods, the reduction of processed and junk food and more and better quality fruit and vegetables
There was some integration of traditional diet into the shops. However what was needed was the introduction of subsidised health foods, the reduction of processed and junk food and more and better quality fruit and vegetables, subsidised to standard Australian consumer prices. In particular the growing of these foods locally. i.e. community market garden venture, banana plantation, orchards, etc. or by the funding of private business ventures within the community to do it. And a better adult health education program.
Aboriginal medicines and traditional food sources seemed not to be adopted or integrated into the white administrative structure (which tended to look down upon the community), although within the aboriginal families traditional hunting, use of medicines and foods occurred. I was invited to go pig hunting which consisted of tracking then running after a pig with a rifle. Fish were called "pungnung" and the community relied heavily on this resource, even being allowed to hunt the rare dugong.
Unofficially there was integration into the Hospital of aboriginal medicines and treatment of sick, through using indigenous people who had such knowledge. But training white nursing staff to have an awareness of such, and giving patients a choice or combination of approaches was not included in the Hospital's system. A male Nurse I met from Adelaide informed me, while they were in some respects supportive of traditional medicines and realising its healing effects (albeit psychological or actual), it was considered acceptable within the Hospital.
I spent time with the kids taking them to waterholes and the beach by the droves.
I spent time with the kids taking them to waterholes and the beach by the droves. Sometimes up to 15 clinging on inside my combi van. They would play in the mud, get lost in amongst the river gums and on the way back they would take it in turns to sit on my lap and steer the car. The children always smiled, but this did not stop them from taking things and I had to learn to lock my car. In one instance children were bashed for stealing from my car. On many occasions I saw children neglected sometimes wondering round very late at night. But the children mostly were full of life and joy, and there was a kind of freedom to do as you like that is sadly lacking in a lot of mainstream Australia.
The kids helped me and I learned a few words.
I wanted to learn a bit of the language as they still spoke a mixture of english and their language. The kids helped me and I learned a few words. I was a "parka" - whiteman. You had to be careful of "kuwacka" and "puma" - dogs and man. Did I have a "wuyarmoo" - a girlfriend?
Apart from this there was little evidence of the culture or language flourishing. On talking to younger members almost no knowledge of their culture. Little remembered by the older generation. Language appeared to be in a precarious stage; although a corrupted mixture of English was used frequently, the pure language seemed to be rarely used. I saw no evidence of initiation ceremonies or dance or mythology.
At the school I talked to some of the teachers, an aboriginal assistant and some of the white staff. From talking to the teachers there seemed little ability to control the children or even guarantee their attendance. The teachers were basically European with little knowledge of the indigenous culture. The teaching methodology was almost entirely based on Western teaching constructs. There was no plan for restoration of the language through bilingual school teaching. However parents were being used in teaching, and assisting teachers to reintroduce culture and language in an interactive way so increasing class attendance and concentration. By being more dynamic and relevant to the culture there was some attempt to modify the European based teaching method.
Unnacceptable housing conditions for Aboriginals neglected by a wealthy nation who are placed in Western housing inappropriate to their cultural needs by an incompetent government
The Lockhart River administration was entrenched in conservative European values without what I could perceive a real respect for the indigenous culture or people. It seemed largely alcohol orientated; one white officer was alcoholic, and the canteen had white managers. The Aboriginal council seemed to make most decisions under the direction of the Council Clerk, another European, therefore the council's role appeared largely nominal. There was an attempt being made to introduce aboriginal administrators, however the poor level of education was preventing any but the lowest positions being filled. I was told by several people that the community had at one stage employed an aboriginal accountant and he had embezzled $100,000. Cultural education of European administrators to know the local culture was given a fairly high priority.
I spoke to some of the educated lower aboriginal administrative officers and one of them told me $20,000 in funds for women's refuge was not issued - at that time there was no women's refuge - and an undisclosed amount of money (over $10,000) had been stolen from Administration and covered up.
One of the sheds was literally collapsing, but it did not seem to bother anyone greatly.
Training and work under the Government scheme seemed to basically work, in particular with heavy machinery. I spent some time round the mechanics shops trying to get my combi fixed. One of the sheds was literally collapsing, but it did not seem to bother anyone greatly. Many of the younger Aboriginals would hang out there smoking and learning the trade. The administration, school and hospital also appeared to be endeavouring to employ community members and encourage training to such posts where possible. David Clarke, the council clerk seemed very much in tune with the Community; he was a local European and spoke their language. On the whole the European staff on the Community was very caring and performed their duties well, facing a very difficult task within the limitations of the European administrative framework.
However there had been no effective attempts to stimulate the culture, such as official reintroduction of cultural ceremonies with financial incentives and an honouring of participants as has occurred successfully around Cairns. Interaction with the tourist market through eco-safaris, accommodation/resort wildlife, cultural events/shows, cultural display/souvenir shops was also practically non-existent.
A sense of comradeship or mateship existed on the community that I have not seen anywhere else in the world.
A sense of comradeship or mateship existed on the community that I have not seen anywhere else in the world. Commune in the true sense of the word. And I say this after having searched the East Coast of Australia for an ideal commune and having spent time in Israeli kibbutz and ashrams throughout the world.
Unfortunately this community like many other aboriginal communities is caught in a vicious cycle of drug abuse.
Unfortunately this community like many other aboriginal communities is caught in a vicious cycle of drug abuse. Because the elders are drug abusers they are not going to take the steps to ban alcohol, nor perhaps more importantly do they provide the role model for their children or tribe to escape the drug culture. The largely white administration is no less guilty as they distribute and profit off the alcohol and often are addicted to it themselves. I visited communities in the Torres Strait where it was banned. The difference was extraordinary. Violence and crime were almost non-existent and a feeling of peace and calm replaced fear.
Alcohol seems to be the cause of almost all the damage.
Alcohol seems to be the cause of almost all the damage. The argument for banning alcohol seems almost irrefutable. The reduction in costs for hospital care, malicious damage and a healthier workforce, as well as a redirection of cash from the breweries means resources would be freed for health and housing schemes, private business ventures and consumer goods.
Why has Australia contributed to this self-destruction of a minority?
Why has Australia, a modern Western democracy, tolerated and by supplying the alcohol actually contributed to this self-destruction of a minority? Yet it appears to be the creation of our anti-discrimination legislation. Fulfilling United Nations treaties on human rights and self-determination, where equal freedom is given to all individuals regardless of race, it would be discrimination to ban alcohol from aboriginal communities. Earlier this century it was banned, but that is now seen as patronising. But it may be there is a breach of the Human Rights of the members of the community, in particular the children, (who suffer the worst as a result of drug-inflicted adult community members abuse of them). Where is their protection?
Some non-alcohol drinking Aboriginals are actually requesting help from Human Rights lawyers to implement an alcohol ban on their communities. They are arguing that the self-destruction of their people and their culture, supported by the method the Australian Government bodies are using to deal with indigenous people, in particular allowing the providing of alcohol (a known and substantive cause of severe physical and mental damage which indigenous people are extra-susceptible) seems to be not just immoral, but in breach of the International Convention of Rights of the Child, the International Convention on the Prevention and Punishment of the Crime of Genocide, and the International Convention on Economic, Social and Cultural Rights.
If we truly care about our aboriginal people how can we allow this to persist?
It seems hard to argue in support of the sale of alcohol in community's like Lockhart with hospital statistics connected to severe violence and the consumption of alcohol as they are. The financial let alone human cost are unacceptable. If we truly care about our aboriginal people how can we allow this to persist? If we allow this self-destruction later generations may accuse us of criminal neglect, if not an indirect form of genocide.
Superficially it appears that the Commonwealth government's hands are tied and all matters are for the aboriginal people themselves to determine. The Minister has attempted to intervene in a number of communities and has been prevented due to Federal Legislation such as the Racial Discrimination Act and parliamentary ratified International Treaties. This and other legislation protecting Aboriginals' right to self-determination appears to hand all executive power in aboriginal affairs to Aboriginal statutory authorities. Don Wilkinson, ATSIC's Human Rights lawyer, supports this view of the unfortunate consequences of the legislation, while not necessarily agreeing with the practical consequences.
Can this community look after itself?
However this understanding of the law may not be the case, and if so justice may prevail in preventing the self-destruction of the aboriginal culture, through these treaties to protect indigenous and minority races. And it may be in the Government's best interests to take legal steps to avoid future liability (see II 7.2 and 3).After visiting Lockhart issues such as self-determination, when council decisions were largely made by white administrators and the community were destroying themselves culturally and physically with drugs and alcohol, seemed to be missing the point. Perhaps human rights for children should come first and if this does not occur, in a hundred years time people will not believe we allowed this to happen. However their lawyers may have a different view.
The Lockhart River community is currently upgrading their Canteen facilities and employing security staff as a solution. The Council Clerk informed me that he threw away the letter I sent the Community requesting further information. Recently there has been a very limited attempt to increase community awareness and provide shelter for alcoholics, which has largely been brought about by Maggie Brady’s The Grog Book. Recently the Cape York Justice Study by Tony Fitzgerald in Novermber 2001, has confirmed my experiences and reiterates that the situation since 1998 has deteriorated and recommends immediate action including the possibility of banning alcohol, providing safe houses, and disconnecting alcohol sales from Council control and profit. Noel Pearson also appears to support a ban in his Cape York Partnership work, but through social entrepreneurs and not welfare bureaucrats. He suggests time money management, active intolerance of abuse at a local community level inspiring people to take control of micro-economic development rather than the failed traditional and paternal prevention control methods Fitzgerald put forward.
II. Legal analysis of consequences for the Government
1. Introduction
1. Lockhart River is an Aboriginal community in Cape York Queensland that is in crisis due to a severe drug problem. Like so many aboriginal communities it appears that this community may be unable to make adequate decisions relating to drugs (including banning alcohol) when alcoholism even effects some of the leaders of the community, and the council indirectly benefits from the sale of alcohol through revenue received from canteen sales. This is further exacerbated by the cultural role set by the majority of white administrators advising the council in which alcohol is an accepted part of life.
2. Alcohol abuse is continuing with the proportion of hospital statistics and the incidence of severe violence connected with the consumption of alcohol at exceptional levels. For the connection between alcohol and abuse in the Keyes Young Report, although he tries to point away from a connection, the statistics indicate otherwise and interestingly there was no data comparing communities that had banned alcohol with those that had not; various studies on indigenous people showed 69% of offences were committed under the influence, 85% indigenous homicide victims were alcohol affected, 70% of domestic assaults against women were by men who were drunk; furthermore indigenous people die 18-20 years before non-indigenous. In Barber's study of Palm Island, court records showed almost all forms of crime to be alcohol related.
The National Aboriginal & TSI Survey 1995 showed family violence to be a common problem among 45% of indigenous people, alcohol is seen to be a problem by 3 in 5, 40% are overweight or obese, the male hospital discharge rate is 70% higher than non-indigenous, and 50% of indigenous males between 20-24 have been arrested.
3. To allow this alcohol abuse to occur may be a breach of the Human Rights of the members of the community, in particular the rights of the children, who are subject to unrestricted abuse from many of the drug-inflicted adults on the community.
4. It may be possible for the Government to take steps against alcohol abuse under the Racial Discrimination Act and the International Human Rights Treaties on the children’s behalf, where there has been a breach of their rights arising from inadequate protection, abuse and their consequences.
5. If this is not done legal actions by Aboriginals may arise against the Government for negligence.
6. Aboriginals may be able to bring legal action under the Tort of negligence if a duty of care owed by the Government to the Aboriginals has been breached. Although a duty of care generally does not arise on public authorities in relation to policy-making, it may arise where there has been a failure to execute policy or in operational decisions. This possibility is increased given that under the law of negligence, damage known of now that can be said to be reasonably foreseeable now, is much more likely to be subject to liability in actions brought in the future for an event that occurs now. In this case, damage appears not to be reasonably foreseeable, but inevitable. The Government, for its own financial protection, may wish to take legal action to prevent this abuse under Human Rights Treaties (as outlined below).
2. The Government’s Power to enact Special Measures banning alcohol.
7. The United Nations Convention on Rights of the Child (UNCROC) to which Australia is a signatory and ratified on 17 December 1990, will be very persuasive to the High Court in interpreting legislation relating to this subject and even in developing common law, Ceo v Commonwealth (1993) 68ALJR110 and W.A.v Commonwealth (1995) 183CLR373. In Minister of Immigration v Teoh (1995) 183CLR this was taken further and construed to give rise to a “legitimate expectation” that administrative decisions would be in accordance with the treaty terms. Although ratification does not oblige us to comply with the Treaties unless legislated for; the government would be less than circumspect if it failed to consider that the international standing of our country would be adversely affected with attendant political repercussions in the ballot box.
8. Article 6
“1. States parties recognise that every child has the inherent right to life and 2. States parties shall ensure to the maximum extent possible the survival and development of the child. ”
This should protect the child's inherent right to life, survival and development, and Article 19 gives the right to protection from all forms of physical, mental and sexual abuse. The paramount stated consideration in interpreting the Articles is "in the best interests of the child". If these rights are not being protected due to the breakdown of the family through domestic violence, drug and alcohol abuse, then the child shall be entitled to special protection and assistance from the State, as outlined in Article 20. The importance of the child not being deprived of their family or community is emphasised in Articles 9, 16, 20, 21 and 30. Effectively, this means that all attempts must be made to resolve the conflict in the community before removing a child. This is consistent with current legal and social policies. It may be that such assistance and special protection, in order to conform with the provisions requiring the community to remain intact, and where the community as a whole is destroying themselves to an extent that the consequences breach the rights of all children on the community, then such special protection or assistance may legitimately be the banning of the drug (alcohol) causing the destruction on the community. At the very least, an obligation may be created for the nation State to take all measures to assist the community to voluntarily ban the substance. If the government does not do this now, future actions by indigenous people for damages for failure to take these steps may succeed, when it was known at the time that this was a primary cause for the damage.
9. That this is a treaty ratified by the Commonwealth and child welfare is governed by the States and Territories does not absolve the Federal Government as the obligations can be legislated under the "external affairs" head of power under Section 51 (xxix) of Australia's Constitution. This legislation is binding on States and Territories. States and Territories may also be required to take into account Commonwealth ratified treaties. Furthermore international treaties have been held to have persuasive effect in interpreting State legislation. The N.S.W. Children (Care and Protection) Act 1987, despite existing before the ratification of UNCROC, has been interpreted using this treaty.
3. The Racial Discrimination Act
10. The Racial Discrimination Act 1975 (Cth), while commonly thought to absolutely prevent the Government legislatively initiating a ban of alcohol within communities, on the basis that it would be denying a right enjoyed by another race (ss.9 and 10), may not have that effect at all. Special measures under s.8 of the Act are defined according to Art. 1(4) of the ICERD to allow:
“special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be racial discrimination, provided , however such measures do not as a consequence lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.”
11. Community initiatives to restrict alcohol sales by council decision have been considered by the Race Discrimination Commission in the Alcohol Report 1995. The report concluded on the basis of Brennan J in Gerhardy v Brown (1985) 159CLR70 that these initiatives were such a special measure. That despite some derogation from an individual's rights resulting, the collective benefit allowed it to fall within the special measures provision.
12. The Report specifically rejected blanket bans and stated that restrictions must be considered on a case by case basis. “The wishes of the community” to restrict should be “the motivating force” when considering the application of a special measure. However the report continues that, “This adds weight to the contention that appropriate measures demanded by communities should be within the scope of special measures” p.147. It seems to have left the way open to allow the banning of alcohol on communities on a case by case basis even if it is not the wish of the community. Although the commissioner may have emphasised the importance of the initiative coming from the community, and obviously this is the better option, the words of the report do not specifically require this. The main requirement emphasised is the “Restriction must meet a need” (p.147); the need being to secure the adequate advancement of the community. Factors such as the magnitude of the alcohol problem, the communities’ access to other outlets, remoteness, size of community, availability of other options and lack of success of these ways, were influential on the commissioner in determining if the measures were for "the adequate advancement" of the community. The commissioner was influenced by Justice Brennan who in Gerhardy said at p.135, in seeking to avoid paternalism, ‘advancement’ is not to be established by showing that the branch of government made its decision for the purpose of conferring “what it regards” as a benefit requiring a ‘special measure’. He goes on to say “…The wishes of the beneficiaries for the measure are of great importance (perhaps essential).” This merely says the beneficiaries wishes are “perhaps essential” and the government’s opinion alone is not enough to determine what is ‘advancement’. If it can be shown that it is more than just that decision-maker’s opinion, but for instance confirmed by sociological and medical research, then the measure may possibly still be established. Brennan J.’s view could be interpreted as meaning that the beneficiaries wishes, though of great importance and perhaps essential, can be overridden in extreme circumstances.
13. It is to be noted that this is the dictum of one judge. The facts of the case did not require a decision to be made on whether the community had voluntarily made such a decision. Brennan J. assumed it was their wish to restrict public access to their land. However, there is no factual evidence presented in the judgements to say that the restricting legislation was made with the communities consent.
14. Furthermore the commissioner has taken the passage out of context. She omits Brennan’s further remarks which state the circumstances special measures should not apply are when, “…The dignity of the beneficiaries is impaired and they are not advanced by having an unwanted material benefit foisted on them.” (p.135). As such an example he refers specifically “to granting title to land”. He does not mention restricting alcohol and it would seem hard to put restricting alcohol in a category of an “unwanted material benefit”. Perhaps the commissioner’s confusion as to what Brennan J. was saying has influenced her proper consideration in determining the operation of special measures in relation to restricting alcohol. The Commissioner was no doubt influenced by the findings in the early 90s in Europe of UN committee interpreting the Convention (CERD) which determined that consent of the beneficiary of the special measure was necessary before a special measure could be applied. South West Africa Cases (Second Phase) also stated clearly that protection cannot be imposed without consent, however this was a dissenting judgement from Tanaka J from an African court and is merely persuasive in interpreting our law. Extraordinarily enough she does not mention the CERD decisions anywhere in her report, though it clearly is the strongest authority for her decision. It is to be noted that the CERD Committee decisions are non-binding decisions on Australian courts, merely the findings of a committee making a recommendatory determination. The CERD Committee’s General Recommendation XXIII concerning indigenous people 18 Aug 1997 re Sth.Aust.states no decision directly relating to rights can be taken without the informed consent of the beneficiaries and in decision 2(54) on Australia 18 March 1999, the Committee expressly stated that informed consent was required before Australia could alter legislation affecting special measures influencing native title, which it claims was not undertaken. This decision is contested by the Australian government as an incorrect interpretation of the Convention despite the expert evidence of John Basten QC; 16th Report Parliamentary Joint Committee on Native Title June 2000 p.117.
15. It is arguable that in order to protect the equal enjoyment of human rights so securing the adequate advancement of indigenous people that this is precisely the type of special measure the section envisaged as being excluded from being deemed Racial Discrimination. Indeed, to fail to legislate to introduce this special measure and to leave these communities in their current state of abuse, would seem to be preventing the protection of the equal enjoyment of human rights for that race; in this instance the right not to be abused by a drug introduced by another race, the right of a child not to be abused, and the right to have one's culture protected. In addition this would be preventing 'the adequate advancement' of that race, which that section and the Convention wishes to avoid. Given this analysis then the Government under the external affairs power and these Treaties has the power to enact legislation banning alcohol on Aboriginal communities through s.8 RDA.
16.
Legislation, conforming with the above, banning alcohol on individual communities, where it has been determined that the community has reached such a level of self-abuse (i.e. council incapable due to drug addiction of making such a decision), that it is incapable of acting in the best interests of its community, could be considered by the High Court, under these extreme circumstances, as permissible as a special measure without the necessity of informed consent. This is as long as this is not maintained as a separate right after its objective has been achieved. In these circumstances of extreme disintegration such measures would not conflict with self-determination provisions and in fact would be assisting in their implementation. An article by myself, relating to this has been published in the CCH newsletter “Equal Opportunity” No.111 22 May 2000.
4. The Commissioner’s Powers to implement Special Measures under the RDA
17. S.20 RDA
“The functions of the Commissioner are – c) to develop, conduct and foster research and educational programs and other programs for the purpose of – i) combating racial discrimination and prejudices that lead to racial discrimination, …iii) propagating the purposes and principles of the Convention.”
This outlines the functions of the Commissioner. One of these functions is to conduct programs for the purpose of combating racial discrimination and propagating the purposes and principles of the Convention. Although the section refers to research and education, it specifically makes allowance for other programs. There is every reason why those other programs should include special measures to assist racial groups in extreme situations.
18. Implementing special measures is part of the specific purposes of the Convention. Article 2 paragraph 2 of the Convention specifically gives the signatories power to take special measures to ensure adequate development and protection of racial groups, for the purpose of guaranteeing full and equal human rights. Unless S.20 can be so interpreted, then this article of the Convention will not have been given effect by the legislation and this would be contrary to the stated object of the legislation. S.15AAA of the Acts Interpretation Act Cwth (AIA) states that the purpose of the Statute must be the guiding principle in interpretation.
19. Dawson J in Mills v Meeking decided that if the draftsman inadvertently left something out and the courts could repair this defect by looking at the purpose, then they would even if it opposed the literal meaning. The courts are willing to remedy defects which give rise to injustice Toby Mast case. Ut res magis valeat quan perent is the maxim that confirms the object of the legislation must take precedence in interpretation. To this extent it is necessary to examine extrinsic material to determine if article 2 paragraph 2 was to be included as part of the purpose of the RDA. S.15AB of the AIA specifically allows examination of recorded debates, speeches, committee reports and explanatory memorandums to Bills.
20. The only debate on s.20 contained in Hansard on 9th April 1975 (p.1400) was John Howard’s attempt as a member of the Opposition to omit paragraph (b). This is relevant as the Opposition wanted to preclude the right of the Commissioner to be pro-active ie. institute court proceedings where settlement failed. The Opposition wanted to limit the role of the Commissioner, in Howard’s words, “The Opposition does not believe the Commissioner should have a role beyond that of conciliator and educator”. This was absolutely rejected by the Government when the Bill was passed. Mr Bryan for the Government said if “the Commissioner was unable to act after having failed to conciliate would be to remove a great deal of the raison d’etre from this piece of legislation” and there “has to be some power by which the Commissioner can enforce his will.” Although this relates to the Commissioner bringing legal proceedings, the Government must have intended for the Commissioner to be pro-active in implementing the articles of the Convention. Had they debated paragraph (c), which they did not, the implementation of special measures may have been considered an acceptable program to be conducted by the Commissioner.
21. Indeed s.20 c) was effectively put in context by Mr Enberby, the Attorney-General, when introducing the RDA on 13th February 1975. He referred specifically to “and other programs to combat racial discrimination” and left the definition decidedly open. He emphasised overseas experience showing that success of the legislation very much depended on these programs. The need to change community attitudes was stressed. “Both government and community based programs to combat racial discrimination are necessary.” He refers specifically to Article 7 of the Convention. He goes on to say, “The Bill represents an important step in the Government’s program with respect to human rights. It will provide the basis upon which Australia can comply with the obligations imposed by the Convention on Racial Discrimination. The Bill is based on the view that laws proscribing racial discrimination are vital, but not in themselves alone can they be sufficient. The educative work is at least as significant and the Bill recognises that there must also be effective and systematic enforcement of rights and the promotion of education and research, if the elimination of racial discrimination in this country is to be achieved in fact as well as in theory”. The Government thus wants to give full effect to the Convention and although Article 2 is not mentioned, the intent is to allow programs that give “effective and systematic enforcement of (human) rights”. Programs that bite ie. can implement, for instance, special measures.
22. On the 9th April 1975 (p.1414) Mr Wentworth of the Opposition expressed concern about special measures under s.8 mainly because he felt a defect in the drafting which he could not pinpoint. His concern was that special measures for aboriginals would be made unlawful because of the wording of the section. He may also have sensed there was no direct provision in the Act for implementing special measures and under what conditions.
The issue of supplying alcohol to aboriginals was considered (p.1396) in relation to s.13 where Mr Gibbs and Mr Wentworth expressed grave concerns that aboriginals would suffer by it being made unlawful for a person not to supply them alcohol on grounds of race. In a precursor to the tragedy occurring to indigenous people Mr Wentworth said “The objectives of the legislation are admirable, but I just worry about the practical effect.” It is clear parliamentarians were concerned that indigenous people would not be protected against alcohol abuse as a result of this Act and in particular preventing State’s ability to legislate to restrict alcohol on the grounds of race. Parliamentarians were concerned to avoid this harm occurring to indigenous people and, though not debated, special measures provisions were the remedy to avoid this.
23. This lack of certainty in the interpretation of the provisions as defined by parliament means one must use the tools of statutory interpretation by applying them to the section itself. Firstly one must examine the wording of the section. Does the use of ‘other’ in S.20 preclude the section being read to encompass the implementation of special measures? The argument that ejusdem generis or noscitur a sociis applies such that the section has to be interpreted in its context and that the general term ‘other’ must be limited to like kinds of things when it follows a number of specific types, has been rejected by the courts as a premise of interpretation. The overall purpose of the legislation will override this; Pearce, Statutory Interpretation in Australia 1996.
24. If ‘other’ in S.20 can be interpreted to include ‘the power to take special measures’ as such an omitted power that was meant to be included as part of the purpose of the legislation. Then the issue becomes one where ‘conducting a program’ can be interpreted as giving powers wide enough to investigate on a case by case basis indigenous communities to determine if there are human rights abuses, and such a program could include taking special measures to prevent such abuse. For non-legal words like ‘program’, not defined in the Act, it would be interpreted according to customary, ordinary and current usage, although cases interpreting the word where used in other statutes, would be persuasive. Limiting the meaning of a word is frowned upon; R v Ford [1945] SASR 118 Mayo J at 121 said “there is no justification for being at pains to interpolate some artificial limit not implicit anywhere in the context.” S.15AA of the AJA requires the purpose of the RDA to be the guiding yardstick as does s.20c)(iii) of the RDA.
25. Program according to ordinary usage means “a plan of action” and appears to have a very broad meaning. Whether this could include restricting the granting of alcohol permits under State legislation will depend on past cases’ determinations of the powers a program can give. Commonwealth Equal Opportunity programs are an example of programs that give restrictive powers that override State legislation or common law rights. The Equal Opportunity Program s.223 of Public Service Act defines itself as “a program designed to ensure that – a) appropriate action is taken to eliminate unjustified discrimination against women and persons in designated groups in relation to employment in the Department; and b) measures are taken to enable women and persons in designated groups to – i. Compete for promotion and transfer in the Department and in the service generally; and ii. pursue careers in the Department and in the Service generally, as effectively as other persons.”
I have used the full wording of the section because it shows how “a program” can include implementing of measures. In this case positive action to prevent unjustified discrimination in employment. Therefore “a program” by definition, in other legislation, encompassed the implementation of special measures to protect a minority, including where of a regulatory nature. For instance ability, quotas or other restrictive criteria for employment were included in such programs; Styles v Department of Foreign Affairs 88 ALR 621.
26. The attorney general, Mr Enberby, as mentioned above in Hansard, specifically expressed the need for such programs as would be “enforcing” the objects of the Convention, which must also include Article 2 - giving the ability to implement special measures. It therefore appears arguable that S.20 of the RDA legislation gives the Commissioner the administrative power to conduct programs for the purpose of implementing special measures to protect racial groups.
27. As the Commissioner has already examined in detail special measures allowable to protect Aboriginals from alcohol abuse, it could be considered that she has already conducted a program which in effect implements special measures by allowing communities which have put in place an alcohol ban to continue with them. She has investigated and reported on this. Exactly what actions the Commissioner has taken in relation to community alcohol addiction has to be examined. She has made very strong recommendations as to certain Northern Territory legislation or regulations being repealed because they are unacceptable as special measures, because of lack of consent by the beneficiaries.
28. It appears she has decided that she does not have the power nor wishes to implement any programs restricting alcohol on indigenous communities, unless it is the wish of that community. She appears to see her role as a moderator of disputes with any positive action such as special measures to come from other State or Commonwealth departments, or through legislation, however her powers may be much greater than she envisages, and she may have already in effect used this power. This is a question of statutory interpretation which could have a profound effect on indigenous people.
***
5. A duty of Care owed by the Commissioner
29. If the Commissioner does have this power and does not take such special measures, or has taken special measures but has not exercised it with proper consideration, when she knows full well of the consequences of not doing so to the indigenous communities, and especially if she now knows of her ability to take such measures through conducting programs, then her failure to act may be in breach of her obligations under the RDA and the ratified international treaties. This may give grounds for future High Court actions by indigenous groups for damages for wilful neglect leading to cultural disintegration and abuse of children's human rights with resultant psychological and physical damage, on the basis of the failure to take such “known” measures.
On grounds of public policy certain public officials have immunity from liability, in particular judges, Sirros v Moore [1975] QB 118, as long as they honestly believe they are acting within their jurisdiction. Immunity has been extended to statutory tribunals to ensure their free and independent performance of their duties; Thompson v Turbott [1962] NZLR 298. This appears to apply to tribunals having court-like functions and not to bodies who merely can exercise natural justice Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180.
Officials carrying out the processes of a court are generally also immune, and not personally liable, however for government liability for their acts the courts have “shown an inclination to restrict the rule as far as possible” Hotop p.463.In Thorne v WA [1964] WAR 147, the Comptroller-General of Prisons was not considered to have immunity. The Commissioner’s report would fall into this category as this activity is merely a function or process as a result of the Tribunal’s court-like apparatus and not the decision of a tribunal acting as a court. Both statutes and courts are broadening liability so that for instance the crown is vicariously liable for acts of its police officers; Australian Federal Police Act s 64B.
30. The carrying out of the functions of the Commissioner under S.20 may give rise to a duty of care in Torts to carry those functions out with proper consideration. Failure to do so which gives rise to damage may be a breach of that duty. The power to take “Special Measures” through Article [JT-M1] 2.2 of the Convention if it is incorporated into the RDA by S.20 may give rise to a duty of care, owed by the Commissioner, where there has been a decision made to execute policy, or a decision as to the operation of the legislation that is not policy-making Anns v MLBC (1978) AC 728. The Commissioner (see Alcohol Report) has made decisions as to the execution of policy in relation to special measures for alcohol on communities. The policy making has occurred in the treaties and in the legislation by the drafting of the sections of the Act, and administratively in the parameters set out in the Alcohol Report.
31. The commissioner has used her powers under the RDA to effectively utilise Art. 2.2 and in effect has taken special measures to ensure the adequate advancement by the recommendations she has made on p.86-87 of the report to alter the Liquor Act 1978 (NT). Given the influence the commissioner would be aware that she has by making such recommendations, it is more than arguable that this constitutes the first step to implementing special measures. The decision the commissioner has made on the validity of special measures and her recommendations must be subject to some kind of review to determine if they have been made with proper consideration. Whether they are about the operation of the legislation or are a policy decision on the part of the commissioner, the implementing or execution of that policy has occurred, as specified in the Alcohol Report.
32. This execution of that policy may be subject to a duty of care in the law of Tort, if the duty is consistent with the purpose of the statute, and if the duty would be justiciable in relation to cost-benefit / floodgates argument. The duty is consistent with the purpose of the RDA as the legislative aim is not merely to overcome disadvantage due to race, but to protect and ensure an equal enjoyment of human rights, which by Article 2.2 of the Convention specifically empowers the taking of special measures. Secondly the duty could be justiciable, as plaintiffs are strictly limited to those communities where excessive human rights abuse and consequent cultural disintegration has occurred. An action would only arise on those communities disintegrated to such an horrific scale, that it can be shown that there is a causal link between the disintegration due to alcohol abuse and the failure to take such measures to prevent this abuse of human rights under the powers given by the RDA, as defined by the Convention.
33. Commonwealth v Eland [1992] Aus.Torts R. 61,203 where no general duty to protect Aboriginals from the effects of alcohol was imposed on the government, is distinguishable as the duty did not relate to the operation of any specific legislation and had too broad a group of potential plaintiffs to fulfil the requirements of proximity. The situation differs significantly here as plaintiffs are limited, a specific section of legislation (S.20 RDA) is in question giving rise to a specific duty and breach, the defendant is identifiable (the Commissioner) and remedy to avoid the damage known (banning or restricting alcohol on these communities) and the damages quantifiable. This is especially so in these circumstances where the basic policy has been agreed upon, the decision as to 'the extent of the operation of that policy' has been questioned, the government 'knew of the consequences of the failure to operate that policy effectively', and they 'knew that they could have used with greater care those operational measures and so significantly reduced the damage caused'. Given the current trend of decisions within the High Court it may be that they will be more open to view operation of policy in a much wider sense so broadening public authorities and so the government's duty of care.
34. The cost-benefit distribution of resources policy argument holds little ground as a means to deny a duty as millions of dollars of resources have already been and still are being spent in adopting inadequate alternative methods to resolve the alcohol problem; many of which have not worked (see rest of report and in particular statistics on page 58). For example, in 1990 the Commonwealth Government committed an additional $232 million to improve unacceptable health standards over a period of 5 years; in 1991/2 $71 million was allocated specifically for innovative community based action to prevent and counter alcohol and substance abuse; after The Royal Commission into Aboriginal Death's in Custody in 1994 an additional $204 million over 4 years was allocated to improve health. Despite this spending the NAHS in December 1994 admitted there had been ‘inadequate performance information where funds had been applied’ and health statistics were still critically below the rest of the Australian community, and in some instances standards had worsened (Indigenous Australia Today 1995 pp.14-8; NAHS). In fact it appears likely huge amounts of public money would have been and still can be saved and an enormous amount of human suffering could have been and still can be avoided if the special measures provisions had been or are exercised with proper consideration.
35. Alternative public law remedies being available will not preclude a duty, but will be considered as a factor in determining whether a common law duty is appropriate. Although public law remedies are available under the RDA, it is arguable there are no adequate provisions for damages in this case where the Commissioner has acted negligently. Certainly indigenous people may also apply for remedies under the RDA.
36. Both Anns and the minority led by Chief Justice Gibbs in Sutherland v Heyman (1985) 157 CLR 424 decided that a council had a duty at common law to give proper consideration to the question whether it should inspect or not. If it exercised that "proper consideration" negligently it was liable. The majority held there must be a general reliance on the council's continued exercise of its statutory powers by intended beneficiaries who would find it impractical to protect themselves. Indigenous children subject to alcohol abuse must be considered to be of a class necessarily intended to rely on special measures. It may be this is the very situation of reliance where a duty should arise under the RDA to conduct programs which take special measures. Article 2 paragraph 2 of the Convention could be said to be intended to be used for such situations of abuse of human rights. Certainly in Canada Kanloops v Nielsen [1984] 2SCR2 and in New Zealand Johnson v Mont Albert [1979] 2NZLR234, Takara v Rowling [1986] 1NZLR22, common law duties have arisen from a consideration of the legislative purpose of protective legislation. This is arguably applicable in Australia, with the latest High Court judgements possibly opening the way to question policy decisions.
37. Romeo v CC of NT [1998] HCA5 and Nagle v Rottnest IA (1993) 177CLR423 both determined that duties of care arose from the circumstance of an authority being invested with a power to manage and use its responsibilities properly and the plaintiff's interests required protection, because of a relationship of dependency on the government body. This relationship of dependency is particularly relevant in relation to the Government and indigenous people, as the Commonwealth has a special assumed responsibility for the welfare of indigenous people throughout Australia’s history, in our constitution and through legislation such as the RDA, all of which places the Aboriginals in what could be termed ‘a special category’; R.Kaspiew, Does the Commonwealth owe a duty of care to Aboriginals to protect them from alcohol? (1994) 2 TLJ 32. In Pyrenees v Day [1998] HCA3 the council had a range of statutory powers at its disposal to ensure repairs were carried out, yet no steps were taken. This failure to enforce statutory powers where it "knew" of a dangerous situation existing, but failed to exercise its available powers, which might have prevented the damage sustained to the occupier, gave rise to a duty and breach of this duty. The emphasis being where the council was in a position to "control" a situation of danger a duty could be said to arise. Again, in these circumstances, if under S.20 the Commissioner has the power to introduce "special measures" to protect human rights, (and as it is arguable that this power has been used already by the Commissioner by her recommendations allowing voluntary special measures in an attempt to prevent alcohol abuse in communities), then this must put the Commissioner in a position to have such power and to have exercised that power so that this exercise of power gives as much control over a situation of danger as the council did in Day.
38. Therefore there may be a duty on the Commissioner through the RDA to give proper consideration to the question of implementing special measures, specifically to the question of whether it should restrict alcohol on communities. If the Commissioner is in a position to control a situation, involving protecting the human rights of a minority race, and the Commissioner failed to give proper consideration in implementing special measures, (according to its criteria set out in the Alcohol Report to prevent the damage caused by the alcohol with the resulting abuse of human rights), and did not adequately investigate the scope of its powers to restrict alcohol, ignored the consequences of failing to take such steps, and any reasonable Commissioner would have taken such steps, then the government may be open to an action in damages.
39. Again, I reiterate, if the Commissioner does have such powers to implement programs restricting human rights abuse through taking special measures, now that the possibility of such powers have been raised such that the Commissioner has knowledge of this power, inadequate steps to protect the adequate advancement of this racial group to ensure their equal enjoyment of human rights, when the Commissioner knows such steps should be taken, could be construed to be either a failure to act within the limits of the discretion of the power, or simply acting without bona fides in the interests of the racial group. The courts have emphasised that where the plaintiff’s condition is worsening by the failure of the authority to act, they are more likely to impose a duty Anns. It is to be noted that is the narrowest view of when a duty will arise.
6. Duty of Care not arising from Section 20
40. Even if the Commissioner’s powers to conduct the Inquiry giving rise to the Alcohol Report do not arise from Section 20, but instead from Division 2, Section 24 of the Act, the same principles apply to the Commissioner in regard to ‘acting with proper consideration’. Even if it is decided there is no obligation on the Commissioner to implement special measures, where the Commissioner has made a determination on special measures, then there is no reason why this determination should not be subject to the same principles of law as to a question of the imposition of a duty of care in making her determinations. J.G Fleming in The Law of Torts LBC Information Services 1998, at page 214, reiterates details concerning the manner of implementation belong to operational decisions which will be subject to a duty of care, for example administrative discretion, professional or technical decisions and general reasonableness; Mason J Sutherland. Social or political policy such as initiating programs and formulating general principles will not. The Commissioner’s determinations on questions of law as to the application of special measures provisions is surely a professional or technical decision and if there is to be any sort of accountability for operational decisions of government decision makers on technical legal questions which they are empowered to determine, then the damage which they can cause through a failure to exercise reasonable care in making such decisions must be actionable under the Tort of negligence. The difference between an inspector’s decision to inspect a premises, ensure repairs are carried out, a minister’s decision to grant a license, or a commissioner’s decision to determine whether alcohol can be banned on an aboriginal community with or without that community’s consent, is one of degree of legal significance and statutory power, but all require technical determinations of the law. Surely the more significant the decision the more necessary it be subject to a duty of care.
7. Statutory exemption
41. Section 45(1) of the Act which states that the Commissioner will not be liable to an action in relation to an act done in good faith in the performance of any function conferred on the Commissioner will not necessarily preclude the courts from determining that the Commissioner is exempt from a duty of care in performing statutory functions. The High Court has tended to read down these statutory protective clauses in administrative law. The wording of section 45 is such that it is unlikely to excuse the Commissioner from acting without proper consideration. Firstly because an act done ‘without proper consideration’ could be construed to have not been done in good faith. Secondly because these sorts of clauses have been held not to preclude a duty of care in negligence.
8. Summary
In summary the possible breaches of power by not exercising discretion within its limits under S.20 or Division 2 by the Commissioner of the RDA are -
· failing to exercise a power to prevent/restrict liquor licences to such communities
· 2.unreasonably exercising a power by failing to prevent/restrict liquor licences to such communities.
It is to be noted that the Chief Executive Officer of the state Liquor Licensing Authority may be exercising power negligently in granting licences for alcohol to disintegrating communities by not taking into account human rights abuse provisions in International Treaties including the requirement to take special measures Teoh.
On this basis the Indigenous Community councils may also be subject to such a duty to protect human rights in managing their Community, with regard to applying for and maintaining a liquor licence, as according to Teoh, there is a legitimate expectation that administrative decisions will comply with ratified International Conventions.
If all endeavours to implement special measures legislatively fail it may still be possible for the Government to bring a class action under the International Human Rights Treaties on the children’s behalf against the communities for failure to restrict alcohol, where there has been a breach of their rights due to inadequate protection and abuse.
III. Summary of Legal Consequences
In conclusion, as well as UNCROC and of course The INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION, there are The International Convention on the Prevention and Punishment of the Crime of Genocide, The International Convention on Economic, Social and Cultural Rights and The International Covenant on Civil and Political Rights, which may be read together with the RDA by the High Court to create an obligation on the State which requires such special measures to be taken to protect the indigenous culture from disintegration. Failure to take such steps, again, may give rise to the potential in the future (or possibly even now) of damages claims as outlined above in II.
IV. CONCLUSION
The field work conducted in relation to Lockhart River could be described as ethnographic qualitative research. Post modern and post experimental, “Qualitative research is a situated activity that locates the observer in the world.” Smith and Deemer, Handbook of Qualitative Research Design” Denzin 2000, page three. It is not statistical nor quantitative empirical experimental research, but it does give a deep personal subjective view of reality that can often not be substituted by other methods. The next step is going back to the empirical methods with this awareness and studying the indigenous drug problem from a broader perspective with direct involvement in determining the research methodology coming from the indigenous people.
1. Proposed Action
The reality is that this community is not in a position to ask for self-determination when white administrators largely make their council decisions and the community is destroying itself culturally and physically with drugs including alcohol. What is required is an implementation of an alcohol ban in this and other like communities that is not to be seen as white patronisation; that gives every opportunity and encouragement for the community to voluntarily introduce the restriction; that offers or requires an human rights education program and an alcohol education program to the councillors to make such a voluntary decision; that offers incentives in finance and programs if such a voluntary decision is made and only as a last resort compels such a decision to be made through legislative or more appropriately administrative action. This implementation of special measures appears, as explained above, to come within the powers of the RDA Commissioner, however a more appropriate and less paternalistic authority would be to enact legislation giving the power to impose such restrictions to the Aboriginals themselves, through perhaps their governing body, ATSIC, or some other independently created indigenous body. Perhaps the most vital action required is to remove the worst of the alcohol addicted white administrative staff, who are to a large extent profiting from and adversely influencing this present weakness in the Aboriginals social condition.
A comprehensive study is required of communities, which have voluntarily banned alcohol in order to determine the methods they used to arrive at this choice. Another lesser study is required to determine the reasons why other communities have not made that choice in order to determine if those methods already adopted on non-alcohol using communities are appropriate. Those methods, as modified according to the circumstances of alcohol using communities, need then to be adopted or implemented in a structured intervention program, with defined goals and time limits, to correct the problem. These goals could be objectively monitored by setting standards for required levels of reported hospital treatment, domestic violence, sexual abuse and criminal offences to determine adequate advancement. According to the Keyes Young report it is largely the female elders that initiate alcohol restrictions.
A methodology to "actively encourage" a voluntary solution could be put in place and only as a last resort would a community be compelled dependant upon the level of abuse as determined by the independent indigenous authority. This way both principles of self-determination and protection of human rights can be delivered. This would also protect the government from any possible breach of duty in Tort or under statute, as an exercise of discretion for a 'known' harm could be said to have been reasonably made according to current standards with ‘proper consideration’. However, failure to implement any study, or to produce positive results in health in the communities, may show a lack of bona fides on the part of the government.
Principles for indigenous social justice, in particular, self determination to decide within the broad context of Australian society the priorities and the directions of their own lives, and to freely determine their own affairs, must be of paramount consideration and only to be outweighed where an individual's human right to protection against physical harm or danger is impinged upon.
Any argument to deny that 'special measures' are necessary, because it would be unnecessarily restricting a minority race's enjoyment of equal rights compared to those of the rest of the Australian community can be opposed on the grounds that:
1. indigenous communities in remote areas are in a special situation by their very nature that separates them from the Australian community at large.
2. indigenous communities have a separate cultural, social and medical history to the rest of the Australian community
3. it is recognised that this separate history needs to be protected and this was taken into account in enacting this legislation RDA
4. that any measures would only be adopted on a case by case basis assessing each community on its level of disintegration, alcohol abuse, remoteness and all other circumstances
6. these separate special circumstances are confirmed by the statistics: -
a) There are pro rata 26 times as many indigenous people taken into police custody compared to non-indigenous, pro rata 15 times as many in prison The National Aboriginal & TSI Survey 1995.
b) Indigenous people's homicide rate is 10 times non-indigenous, serious assault rate is over 5 times non-indigenous in Queensland Keyes Young p.10 per Wilson.
c) 32% of indigenous men are in prison for sexually related offences Greer and Beckenridge 1992 p.191.
d) 88% of rapes were not reported Carter 1987.
e) For the connection between alcohol and abuse see Keyes Young 2.4, although he tries to point away from a connection, the statistics indicate otherwise and interestingly there was no data comparing communities that had banned alcohol with those that had not; various studies on indigenous people showed 69% of offences were committed under the influence, 85% indigenous homicide victims were alcohol affected, 70% of domestic assaults against women were by men who were drunk; 51% of women had been assaulted; indigenous people die 18-20 years before non-indigenous.
f) In Barber's study of Palm Island, court records showed almost all forms of crime to be alcohol related.
g) The National Aboriginal & TSI Survey 1995 showed family violence to be a common problem among 45% of indigenous people, alcohol is seen to be a problem by 3 in 5, 40% are overweight or obese, the male hospital discharge rate is 70% higher than non-indigenous, and 50% of indigenous males between 20-24 have been arrested.
Strangely enough I have not been able to locate any statistics specifically on severely degenerated alcohol using communities as opposed to alcohol-free communities, perhaps it is because these figures would reveal too much about the failure of the current health programs. However in Lockhart River there were 1000 admissions to hospital each month for a community of 800. This absence of comparative figures was noted in Sherry Saggers and Dennis Gray in their book “Dealing with Alcohol”. They confirmed the failure of current programs and conclude “most success in reducing excessive consumption and related harm appears to have been the result of structural interventions… Such interventions include both demand reduction… and supply reduction strategies, which seek to limit the availability of alcohol.” According to them treatment and educative approaches have much less effect. However they stress that existing intervention strategies, such as rehabilitation schemes, “…merely tinker with existing political and economic systems that marginalise and exclude indigenous people, and perpetuate inequalities that they face”. They say that indigenous people themselves must construct, implement, evaluate and assess their programs if they are to work. It seems a logical axiom that intervening to reduce the sale of alcohol in this indigenous community and others is the most effective means of resolving this problem, the issue is how to persuade communities that do not wish to take that course of action. As Saggers says, “However indigenous people have their own visions for better health. These visions incorporate their understandings of the basis of indigenous ill health and the ways in which communities, and the wider special contexts in which they are situated, will need to be transformed for health improvements. We do not offer our analysis as a substitute for such indigenous visions, but as a compliment to them. We firmly believe that most importantly indigenous people themselves must be enabled to determine their own goals and strategies for their achievement – not only in alcohol and health areas, but in all aspects of their lives. In the process non-indigenous government and people must work in partnership with indigenous people.” Saggers is correct in requiring indigenous implementation of any intervention scheme, however, where a community is incapable of doing this, then, as was suggested previously, there must be a process whereby an indigenous governing body can through conciliation with the community make such decisions on their behalf, otherwise individual’s human rights who are being subject to abuse on those communities will not be protected. To not so act puts the Australian community and therefore this government in danger of being accused by future generations of implicitly allowing the partial self destruction of the aboriginal culture.
2. The Future – an addenda
A. Summary of responses to the report
Just as Lockhart River Community gave no information despite requests for information in the course of two years, so also the Queensland Department of Health Alcohol Drug Policy branch, the Queensland Department of Health, Aboriginal Health division, the Chairman of ATSIC, and the Social Justice Commission did not respond to my request for assistance. Perhaps the most compelling comment comes from the Aboriginals themselves. The NAHS demanded large-scale affirmative action programs, because health statistics are so far behind the rest of the Australian community (Indigenous Australia Today 1995 p.17).
This report on the community (and circumstances in Cape York), which I have already submitted to Aboriginal Legal Aid Queensland, the Federal Minister of Aboriginal and TSI Affairs, the Minister of Aboriginal Affairs in Queensland, Northern Territory and Western Australia and the Federal Democrats party has so far received no substantive comment from any of these bodies apart from a belated thankyou from Senator Herron rejecting the legal analysis and the Queensland government.
The project has so far involved 6 weeks field study, 2 years of research, analysis and contact with the Aboriginal Co-ordinating Councils, the Queensland Department of Health, Monash and Melbourne Law Schools.
Lockhart Community Council and in particular the previous Council Clerk refused to co-operate with this project and have attempted to discredit it, as is to be expected.
Regrettably consent was not sought for the Report from the community at the time of visiting it, contrary to the methodology preferred by this report, because at that stage this project had not been conceived. My visit was a personal enquiry into Aboriginal life in which I was invited to stay with one family.
So the Report is an independent 'behind the scenes' report on an aboriginal community suffering severe drug and alcohol abuse, with a legal solution in which “indigenous people” through a National Indigenous governing body (ie. ATSIC) or independent Indigenous commission run by indigenous people are given the possibility through conciliation of restricting alcohol sales on severely afflicted communities that are decided by that indigenous body as temporarily needing assistance in protecting the human rights of their community members due to an inability by the community to make such decisions necessary to protect their members human rights.
It also asserts bold possibilities for integrating Aboriginal and Western systems and so developing a successful community from what initially appears to be a disastrous situation.
B. In depth study
An in depth study co-ordinated with the Law School and Indigenous Studies School and Department of Social Sciences at James Cook University, Cairns is envisaged on the Aboriginal alcohol issue, which resulted from this visit to the Community of Lockhart River. The aim is with the assistance of the JCU law school to convert this report into a research thesis for a masters of Law and co-ordinate this with methodologies for research and actual research aiming at outcomes with active participation of Indigenous Communities in all aspects of the research including formulation to be conducted by the Indigenous and Social Science Departments. Legal issues under The Racial Discrimination Act and United Nations Convention on the Rights of the Child will be dealt with in full; [an article by myself, relating to this has been published in the CCH newsletter “Equal Opportunity” No.111 22 May 2000].
It is my hope that the legal conclusions as to the possibility of Government negligence under Tort may give rise to a High Court action by Aboriginals, particularly, as a result of human rights and self-determination issues and Treaties currently before the government. The thesis would investigate public and administrative liability of statutory appointed Commissioners and whether and in what circumstances immunity and other exceptions to liability of Commissioners’ reports and their consequences in negligence can be overridden by a public interest and the likelihood of the Australian High Court being amenable to this reform. The report itself suggests bringing an action in negligence against the Racial Discrimination Commissioner based on her findings that consent was necessary by communities to ban alcohol was a negligent administrative operational decision. The thesis would investigate the possibility of negligence arising on this basis and any other alternative basis and would look into negligence of public authorities in general and the policy arguments for extending liability to government bodies and administrative tribunals within the quasi-judiciary. Her decision gave rise to an inability and alteration of state laws that were or could have protected Aboriginals from alcohol abuse and thus has resulted in damages to them. An investigation was recommended by the report in order to determine the viability of obtaining damages for the Aboriginals, and encourage public as well as government awareness of the severity of the alcohol problem, and show the commitment indigenous people have to resolving this situation and so taking the lead in healing their communities. I have pointed out in the report (see Report point 23) why this action may succeed where Commonwealth v Eland [1992] Aus.Torts R. 61,203 failed. The thesis would look into the likelihood of damages being awarded in these circumstances and the remoteness and quantum aspects as well as burdens of proof.
This masters thesis and publication would have an extensive research appendix section included, which would contain all legal research, letters and other data. This would place the thesis at 150 to 200 pages. Further photography at gloss standard of the community would be included. Additional research and minor alterations to the legal analysis introduction would be made and some details of this are appended to this letter, which take into account further research studies by Sherry Saggers and Dennis Gray (Dealing with Alcohol, Camb. Uni. Press 1998). Account will also be made of Gladman’s study in 1997. I have been unable to locate anywhere publications covering my interpretation of the indigenous alcohol issue.
The aim of the findings of this Masters research thesis though superficially may appear as restricting indigenous civil liberties, however the long-term consequences may well untie indigenous people’s hands in 1) being able to seek legal compensation for damage caused by government negligence and 2) being able to force the government to take action to prevent appalling alcohol abuse on extremely desecrated communities so invigorating the health, respect and cultural integrity of indigenous people, protecting human rights and gently allowing a transition to participate to the fullest extent in self-determination as the first and greatest Australians. To this extent recognition through a Federal Constitutional Treaty and Native Title apportioned on a system as is accepted by standards of international justice will be an inherent part of the self-organisation system to be formulated for ATSIC as a primary outcome of this thesis.
Authored by
James Travers-Murison LLB.BA.Dip.Journ. Dip Ed.
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