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Published online by Cambridge University Press: 01 January 2025
The community store licensing regime was first introduced as part of the Northern Territory National Emergency Response Act 2007 (Cth) and subsequently expanded under the Stronger Futures in the Northern Territory Act 2012 (Cth). The legislation introduced a new penalty regime with a range of sanctions that may be imposed if community stores have not complied with their licence conditions.
It is the penalty regime that is the focus of this paper, as a credible sanctioning strategy to deal with breaches of the licensing regime is not currently in place. Such a strategy is essential to ensure that the penalty regime leads to greater compliance with the spirit of the law — ensuring food security — and not just the letter of the law — ensuring that the terms of community store licence conditions are met. Consequently, the article considers the strengths and weaknesses of the new penalty regime and proposes a regulatory approach that may be used by the Secretary to deal with breaches of licence conditions.
I would like to thank Dr Shelley Bielefeld, the referees of the article and the editors of the Journal for their valuable feedback.
1 Under s 92 of the Northern Territory National Emergency Response Act 2007 (Cth) a community store is a business that is a key source of food, drinks or grocery items sold in a prescribed area. This definition was broadened under s 39(1) of the Stronger Futures in the Northern Territory Act 2012 (Cth). Under the 2012 legislation, community stores definition also includes businesses that may be partly selling food, drinks or grocery items at premises located in the food security area.
2 Northern Territory National Emergency Response Act 2007 (Cth) pt 7.
3 Explanatory Memorandum, Northern Territory National Emergency Response Bill 2007 (Cth) iii.
4 Ibid.
5 Under s 37(3) of the Stronger Futures in the Northern Territory Act 2012 (Cth), food security is defined as ensuring that reasonable ongoing level of access to a range of food, drinks and grocery items are available to the community at reasonable price and in sufficient quantity and quality to meet the nutritional needs of a household.
6 Northern Territory National Emergency Response Act 2007 (Cth) s 91A.
7 Harris, Michele (ed), A Decision to DiscriminateAboriginal Disempowerment in the Northern Territory (Concerned Australians, 2012) 489Google Scholar; Australian Government, Stronger Futures in the Northern Territory, Report on Consultations (October 2011) 569; Alastair Nicholson et al, Listening but not Hearing, A Response to the NTER Stronger Futures Consultations (JuneAugust 2011) 89; Altman, Jon, Arguing the Intervention (2013) 14 Journal of Indigenous Policy 1, 7981.Google Scholar For example, Altman noted that reported child malnutrition had increased in the Northern Territory despite the licensing of 85 community stores: at 79.
8 Department of Families, Housing, Community Services and Indigenous Affairs, Evaluation of the Community Stores Licensing Program, Final Report (May 2011) 201, 36. A critique of the licensing regime and analysis of the benefits of and problems with the regime is beyond the scope of this paper.
9 Replacement Revised Explanatory Memorandum, Stronger Futures in the Northern Territory Bill 2012 (Cth) 30.
10 The licensing regime will apply to the whole Northern Territory with the exception of areas which have been excluded by the Minister: Stronger Futures in the Northern Territory Act 2012 (Cth) ss 38(2), 39(1).
11 Ibid s 39(1).
12 Ibid s 41(5).
13 Ibid s 5. The Secretary plays a key part in administering the Stronger Futures in the Northern Territory Act 2012 (Cth). However the role of the Secretary is not just limited to Indigenous affairs but also extends to other areas such as domestic and international policies and national security. See generally Department of the Prime Minister and Cabinet, Organisation Chart <http://www.dpmc.gov.au/organisation-chart>.
14 Stronger Futures in the Northern Territory Act 2012 (Cth) s 41(1).
15 Ibid s 38(1).
16 Ibid s 52.
17 Food security matters include providing satisfactory range of healthy and good quality food, drinks, grocery items and promoting nutritious and healthy products: Stronger Futures in the Northern Territory Act 2012 (Cth) s 46.
18 Stronger Futures in the Northern Territory Act 2012 (Cth) ss 46, 52.
19 Ibid ss 52, 54.
20 Ibid s 52.
21 Ibid s 52(2)(3).
22 Ibid pt 4 div 8.
23 Northern Territory National Emergency Response Act 2007 (Cth) s 106.
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27 Sanctions under other legislation may apply if, for example, there is an immediate threat to personal or community safety: see, eg, Food Act 2004 (NT) pt 3. However, any such sanctions are beyond the scope of this article.
28 Despite the technical differences between a penalty and a sanction, the words will be used interchangeably in this article.
29 Stronger Futures in the Northern Territory Act 2012 (Cth) s 75.
30 Ibid s 90.
31 Ibid ss 989.
32 Ibid s 59.
33 Ibid s 96.
34 Correspondence confirmed that no penalty had yet been imposed under the Stronger Futures in the Northern Territory Act 2012 (Cth): Email from Marina Nehme to the Department of Social Services (Cth), October 2013, Further, review by the author of media releases issued by the Department of Social Services and the Department of the Prime Minister and Cabinet has not revealed any investigation or action taken in instances where community stores licence conditions have not been complied with. This is not unusual as the penalty regime is relatively new.
35 This has been confirmed through correspondence: Email, from Marina Nehme to the Department of the Prime Minister and Cabinet, 27 January 2014.
36 Australian Government, Stronger Futures in the Northern Territory, Policy Statement (November 2011) 9.
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59 Ayres and Braithwaite, above n 24, 35 6; Braithwaite, above n 40, 634.
60 Ayres and Braithwaite, above n 24, 36. Correspondence has confirmed that no revocation of licences occurred under the previous regime: Email from Marina Nehme to the Department of Social Services (Cth), October 2013
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68 This position will be discussed in more detail later on in this paper.
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90 Replacement Revised Explanatory Memorandum, Stronger Futures in the Northern Territory Bill 2012 (Cth) 73.
91 A restraining injunction may also be applied for any breach of the enforceable provisions under the Act.
92 Stronger Futures in the Northern Territory Act 2012 (Cth) s 98(1).
93 A performance injunction may also be applied for any breach of the enforceable provisions under the Act.
94 Stronger Futures in the Northern Territory Act 2012 (Cth) s 98(2).
95 Ibid s 99(1).
96 Ibid s 101.
97 However, the provision in s 101 is not unique. Similar provisions exist in other legislation: see, eg, Competition and Consumer Act 2010 (Cth) s 80(4).
98 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, 618 (Gummow J).
99 ICI Australia Operations Pty Ltd v TPC (1992) 38 FCR 248, 257.
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101 Replacement Revised Explanatory Memorandum, Stronger Futures in the Northern Territory Bill 2012 (Cth) 30.
102 Stronger Futures in the Northern Territory Act 2012 (Cth) s 41(5).
103 ALRC, Securing Compliance, above n 72, 1212.
104 Stronger Futures in the Northern Territory Act 2012 (Cth) s 59(1)(a).
105 Ibid s 59(1)(b).
106 Ibid s 59(1)(c).
107 Ibid s 65(1).
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120 This will be highlighted in Diagram 5, which is discussed at the end of Part III of this paper.
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127 Stronger Futures in the Northern Territory Act 2012 (Cth) s 97.
128 Braithwaite, To Punish or Persuade, above n 40, 118; the involvement of the community in the process of entering into an enforceable undertaking will be discussed later in this paper.
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