Let Alone to Listen: The Impact of Northern Territory Liquor Laws on Aboriginal Justice Outcomes

Abstract

This article tracks the development of liquor laws in the Northern Territory, considering their impacts on Aboriginal justice outcomes and possible areas for reform. Noting the putative trade-off between health and justice outcomes, it examines the Northern Territory National Emergency Response Act 2007 (Cth), the Stronger Futures in the Northern Territory Act 2012 (Cth) and the 2022–23 Liquor Act 2019 (NT) amendments. Under the most recent Liquor Act amendments, the sale, possession and consumption of alcohol remain restricted in prescribed areas, which must determine the future of their liquor laws by 28 February 2027. This article proposes that greater investment is required to support Aboriginal leadership throughout this decision-making process. Indeed, a central proposition of this article is that the failure to adequately consult Aboriginal communities has been a shared feature of all three laws, and a fundamental barrier to improving Aboriginal justice. Reflecting on the interaction between Aboriginal and non-Aboriginal legal systems, this article identifies issues in the current policies that risk replicating the shortcomings of previous laws, thereby failing to empower Aboriginal leadership or improve Aboriginal justice services.

I Introduction

Few policy debates in the Northern Territory animate the power struggle between paternalistic governments and Indigenous self-determination like liquor laws. Despite decades of evidence demonstrating the correlation between Indigenous self-determination and positive community outcomes, previous laws like the Stronger Futures in the Northern Territory Act ¹ indicate that government paternalism has historically overshadowed Indigenous-led solutions.² The Stronger Futures Act and its legislative package,³ which commenced in July 2012,⁴ reinforced controls on, among other things, land ownership⁵; income management⁶; and alcohol control and consumption⁷ — intervention measures established in the preceding 2007 Emergency Response.⁸ While purportedly designed to improve social conditions in Aboriginal communities,⁹ the laws were widely condemned as paternalistic, counterproductive and contrary to international law standards surrounding the rights of Indigenous peoples.¹⁰ On 16 July 2022, the alcohol-related provisions in the Stronger Futures Act ceased to be in force.¹¹ In its place, the NT Government adopted an opt-in policy, providing alcohol-protected areas¹² with the choice to extend their alcohol restrictions.¹³ The change in alcohol restrictions — in theory — offered the possibility of moving away from reductive historical stereotypes that portrayed Aboriginal people as ‘largely incapable of governing their own lives’.¹⁴ However, much like the Stronger Futures Act itself, the new regulations did not receive universal support. Priscilla Atkins (Eastern Arrernte), the then-CEO of the North Australian Aboriginal Justice Agency (NAAJA), viewed the change as ‘utterly irresponsible’ and ‘a recipe for disaster’.¹⁵ Paul McCue, the then-President of the NT Police Association, stated that the laws would go ‘completely against’ the government’s stated goal of reducing alcohol-related harm.¹⁶ Perceiving an alcohol-driven ‘crime wave’ rolling through the NT, the opt-in policy was ultimately reversed in February 2023 in favour of a temporary return to the previous restrictions.¹⁷ Now, alcohol-protected areas must opt-out of these restrictions by obtaining the Director of Liquor Licensing’s approval of their community alcohol plans.¹⁸

This article does not intend to trivialise the issues of alcohol-related harm in the Northern Territory. The NT has the highest rates of alcohol-fuelled violence and crime in Australia,¹⁹ and many statistics underscore this reality.²⁰ Although Indigenous Australians are more likely to abstain from alcohol than non-Indigenous Australians,²¹ the Australia-wide rate of the former’s alcohol-related injury hospitalisations is 9.5 times higher than the latter’s.²² Jacinta Nampijinpa Price (Warlpiri) and Malarndirri McCarthy (Yanyuwa Garrawa), speaking from different sides of the Senate, have both shared stories of the scars left by alcohol abuse on their families and communities.²³ Various federal government policies, legislated from different sides of Parliament, have sought to reduce these harms through regulatory attempts to restrict the demand and supply of alcohol. However, liquor laws in the NT have traditionally been viewed as ‘reactionary’,²⁴ ‘punitive’²⁵ and inimical to the internationally recognised right of Indigenous peoples to self-determination.²⁶ Thus, a central tension in liquor laws is the apparent trade-off between improving health and justice outcomes.²⁷

Acknowledging this trade-off, this article argues that the sunsetting of the Stronger Futures Act provides an invaluable opportunity for settler and Aboriginal legal systems to begin meaningful cooperation aimed at improving justice outcomes. Such cooperation must confront the ongoing effects of colonialism and unsuccessful policymaking, which has generated considerable distrust towards the settler legal system.²⁸ The author acknowledges that, as a non-Indigenous scholar, they are not positioned to represent the views of any Indigenous legal system. Therefore, this article is guided by the Northern Territory Aboriginal Justice Agreement’s (‘NT AJA’) three Aboriginal justice outcomes²⁹:

1. 1. Reducing offending and imprisonment of Aboriginal Territorians³⁰;

2. 2. Engaging and supporting Aboriginal leadership³¹; and

3. 3. Improving justice responses and services for Aboriginal Territorians.³²

These outcomes were distilled from a three-year consultation process across the NT, which acknowledged the historic failure of government policies to ‘build on the strength and expertise of Aboriginal communities’.³³ During this process, the Aboriginal Justice Unit conducted over 160 consultations in 120 NT communities, receiving over 1,000 comments from Aboriginal Territorians.³⁴ Then-Attorney-General of the Northern Territory, Selena Uibo (Nunggubuyu), described it as ‘one of the most extensive processes undertaken by an NT Government Agency’.³⁵ The NT AJA’s guiding principles explicitly recognise the need for ‘respectful and collaborative relationships built on the foundations of mutual understanding and trust’.³⁶ This cooperation between government agencies and Aboriginal leaders is viewed as ‘essential’ in improving justice outcomes such as reduced imprisonment rates.³⁷ Owing to the NT AJA’s comprehensiveness in consulting Aboriginal voices, along with the author’s non-Indigenous positioning,³⁸ this definition of Aboriginal justice is adopted for this article’s analytical framework.

This article proceeds in three sections. First, it explores how the federal government’s two laws preceding the current situation, the NTNER and the Stronger Futures Act, failed to improve Aboriginal justice outcomes. Identifying these flaws is necessary to acknowledging how the settler legal system has hitherto marginalised Indigenous legal systems. Next, it considers how an understanding of interlegality, the pluralist phenomenon of intersecting legal systems,³⁹ serves as a useful lens for examining the history of interventionist alcohol policies. In Section IV, this article examines the current liquor laws, arguing that they may serve to perpetuate the failings of the NTNER and the Stronger Futures Act. Thus, it identifies gaps in the current policies that hamper the support of Aboriginal leadership and justice outcomes in the long term. Ultimately, addressing these gaps will support a stronger legal pluralism that promotes Aboriginal self-determination. Improving Indigenous self-determination at sub-national levels is especially important in the wake of the unsuccessful Voice referendum, which greatly set back the possibility of the right’s constitutional recognition.⁴⁰

II Previous Liquor Laws: 2007–22

This section highlights the key failings of previous liquor laws in the NT. It argues that these laws echoed the historical discourse of ‘benevolent colonialists acting primarily for the benefit of Aboriginal peoples’, without regard to their capacity for self-determination or situational needs.⁴¹ Indeed, a consistent flaw across the NTNER and its continuation via the Stronger Futures Act has been the failure to work meaningfully with Aboriginal communities. This paternalism has prevented relationships of trust between the Australian government and Aboriginal communities, limiting the popular support that the laws received.⁴² More importantly, a failure to work meaningfully with Aboriginal communities can be understood as a failure to engage and support Aboriginal leadership: an Aboriginal justice outcome that the NT AJA perceives as having flow-on effects for improved justice responses and reduced offending and imprisonment rates.⁴³ Any law reform in this field must address the importance of not only hearing, but listening to, Aboriginal leadership.

A 2007: The NTNER

The Ampe Akelyernemane Meke Mekarle: ‘Little Children are Sacred’ ⁴⁴ report is generally viewed as the NTNER’s catalyst.⁴⁵ Published in June 2007, the report examined the extent, nature and factors leading to child sexual abuse in Aboriginal communities, depicting the communities as ‘in the throes of addiction and dysfunction’.⁴⁶ The excessive consumption of alcohol and abuse of other substances were identified as factors fuelling a breakdown of Aboriginal culture and sexual violence.⁴⁷ A failure to overcome substance abuse and its related harms, the report argued, would likely lead to the disappearance of Aboriginal people and their cultures ‘within a generation or so’.⁴⁸ To address substance abuse, the report explicitly recommended a multi-faceted and collaborative approach to identify culturally effective strategies.⁴⁹ This approach recognised the underlying issues driving the excessive consumption of alcohol, including poverty, unemployment, and overcrowded and inadequate housing.⁵⁰ Within 2 months of the report’s publication, the federal government passed the NTNER’s legislative package, consisting of three substantive Acts and two appropriation Acts,⁵¹ pursuant to section 122 of the Commonwealth Constitution. The NTNER provided that certain areas of land in the NT were ‘prescribed areas’⁵² and made it an offence to bring liquor into, possess liquor within or consume liquor within those areas.⁵³ In practice, Aboriginal Territorians ‘predominantly or solely’ lived in those prescribed areas.⁵⁴ Geography had been used as a proxy for race to target the Aboriginal possession and consumption of alcohol.⁵⁵ This part describes two failings of the NTNER in respect of Aboriginal justice outcomes: the suspension of the Racial Discrimination Act ⁵⁶ and its normative force; and the failure to consult Aboriginal communities.

I Suspension of the RDA in Relation to the NTNER

The NTNER’s provisions, and acts taken pursuant to those provisions, were unilaterally deemed ‘special measures’ by the Australian government.⁵⁷ Section 8(1) of the RDA provides that actions amounting to ‘special measures’ do not constitute racial discrimination and are therefore lawful.⁵⁸ These measures are generally understood as those aimed at securing ‘effective equality’,⁵⁹ such as affirmative action⁶⁰: a form of positive discrimination that ameliorates structural inequalities of opportunity and outcome.⁶¹ To further limit opportunities to challenge the NTNER’s lawfulness, the Commonwealth excluded the Act from the operation of Part II of the RDA.⁶² Therefore, the NTNER was insulated from legal challenges, regardless of whether its provisions amounted to special measures. The Commonwealth’s decision was significant and involved the weighing up of several conflicting rights, as noted by the Parliamentary Joint Committee on Human Rights.⁶³ On one hand was a health imperative: reducing alcohol-related harms championed the right to health; the rights of the child, including protection from all forms of physical or mental violence⁶⁴; and the right to security from bodily harm.⁶⁵ On the other hand was a justice imperative: the NTNER justified these ends by restricting the right to a private life⁶⁶ and the right to self-determination in Aboriginal communities.⁶⁷ For such a complex decision, the parliamentary consideration was grossly inadequate: just 13 minutes were allotted to debate the proposed suspension in the House of Representatives.⁶⁸ The suspension of the RDA, accordingly, was perceived as an acknowledgement of the NTNER’s discriminatory nature.⁶⁹ Indeed, the United Nations Human Rights Council, representing various Aboriginal peoples living in the NTNER’s prescribed areas, viewed the measures as neither proportionate to the legitimate objective of reducing child sexual abuse, nor having received the consent of the affected parties.⁷⁰ It is therefore likely that, had the RDA not been suspended in relation to the NTNER, the NTNER’s legality would have been challenged on the grounds that its provisions were not ‘special measures’. The inadequately informed measures, misled by a failure to consult Aboriginal voices and engage in rigorous debate, further fractured the relationships of trust between Aboriginal communities and the federal government.⁷¹

In addition, the NTNER and its exclusion from the RDA’s operation entrenched negative stereotypes concerning Aboriginal peoples. When announcing the NTNER, then-Indigenous Affairs Minister, Mal Brough, spoke of the goal of ‘stabilising’ and ‘normalising’ Aboriginal communities.⁷² This seemingly innocuous rhetoric communicated two points. First, that Aboriginal communities were unable to protect vulnerable women and children (a legitimate social objective) from the ‘crisis’ described in the Little Children Are Sacred Report.⁷³ Second, that the NTNER was justified in criminalising addiction and taking hold of decision-making power to protect Aboriginal peoples from themselves. Without looking to Aboriginal leadership for solutions, it was evident that health outcomes had largely displaced justice outcomes. In this way, Minister Brough alluded to the ‘deficit discourse’ underpinning the NTNER, where a ‘narrative of deficiency’ characterised Aboriginal Territorians.⁷⁴ This discourse has persisted over centuries, evidenced by paternalistic policies depicting Indigenous Australians as incapable of governing their own lives.⁷⁵ A host of Indigenous Elders and scholars have argued that this narrative has marginalised Indigenous people, communities and legal systems at large.⁷⁶ Indeed, the moral ‘crusade’⁷⁷ against the depicted spectre of Aboriginal culture was highlighted by the government’s insufficient consultation with communities prior to and during the NTNER’s operation, a failing explored below.

2 Failure to Consult

Both domestic and international law provide that ‘special measures’ should be designed with the prior consultation and active participation of affected communities.⁷⁸ Justice Brennan, as he was then, held that advancing the affected group’s wishes is ‘perhaps essential’ in demonstrating that an impugned law amounts to a ‘special measure’.⁷⁹ In that vein, the first recommendation of the Little Children Are Sacred Report urged the Commonwealth and NT governments to ‘commit to genuine consultation with Aboriginal people in designing initiatives for Aboriginal communities’.⁸⁰ This recommendation was unmistakably clear as to what genuine consultation should have looked like. The report suggested as a ‘matter of urgency’ that the government consult all affected Aboriginal communities to identify culturally effective strategies to be incorporated in individual community management plans aimed at reducing alcohol-related harm.⁸¹ Although the NTNER was formed in response to the report,⁸² there was ‘not a skerrick of consultation’⁸³ with the Aboriginal communities that were to be profoundly impacted by it.⁸⁴ In terms of Aboriginal justice outcomes, therefore, there was no attempt to engage or support Aboriginal leadership. This leadership, as the NT AJA notes, is crucial for developing justice services that are adapted to the NT’s geographic, cultural and social realities.⁸⁵

The consequent criticism led to a round of redesign consultations in 2009.⁸⁶ These meetings could never correct the failure to provide prior consultation. However, they represented an opportunity to give Aboriginal communities a role in reforming the laws that would affect them. An examination of the consultations’ substance rather than form indicates that the Labor Government did not empower the 73 communities affected by the NTNER. The ex post facto consultations failed because, among other things, they lacked Aboriginal input in their design and implementation; notice was not given; interpreters were not provided⁸⁷; and the NTNER measures were inadequately explained.⁸⁸ Opposition to these measures was underreported,⁸⁹ and Aboriginal communities were not given the opportunity to provide feedback on the proposals informed by the redesign consultations.⁹⁰ Without local input on the design of the consultation process, it was prefiguratively distorted into a mere ‘forum for comment’ on the government’s eight proposed changes to NTNER measures.⁹¹ Aboriginal decision-making and legal systems were again marginalised, furthering the ‘deep hurt’ and sense of betrayal that Aboriginal communities felt towards the Australian government.⁹²

In light of the above, the Australian government’s claims that the NTNER has operated for the good of Aboriginal people have been widely disputed.⁹³ While the NTNER contributed to a year-on-year fall in the annual supply of alcohol, the Australian Indigenous Doctors’ Association perceived a sense of ‘helplessness, hopelessness and worthlessness’ perpetuating throughout entire communities.⁹⁴ Central to this sense of despair was the lack of engagement with Aboriginal communities to explore local solutions tailored to their specific needs. This failure to recognise the strength of Aboriginal leadership, as argued in the following part, was largely ignored rather than responded to by the Stronger Futures Act.

B 2012: The Stronger Futures Act

The Stronger Futures Act was introduced in July 2012, one month ahead of the NTNER’s sunsetting.⁹⁵ In many ways, the Stronger Futures Act represented a more severe continuation of, rather than a departure from, the NTNER.⁹⁶ The ‘prescribed areas’ became ‘alcohol-protected areas’ (‘APAs’).⁹⁷ Under the Stronger Futures Act, however, breaches of alcohol-related offences became punishable to a considerably greater extent.⁹⁸ Bringing liquor into, possessing liquor within or consuming liquor within the NTNER’s prescribed areas carried a maximum penalty of 10 penalty units for a first offence⁹⁹ and 20 penalty units for subsequent offences.¹⁰⁰ Committing a substantively identical offence under section 8 of the Stronger Futures Act had a maximum penalty of 100 penalty units or six months’ imprisonment.¹⁰¹ Penalty units were given the same meaning in the Stronger Futures Act as in section 4AA of the Crimes Act.¹⁰² Therefore, at the time of the Stronger Future Act’s sunsetting, the maximum penalty for breaching section 8 was $21,000.¹⁰³ Although the imposition of the maximum penalty is rare, the change reflected the top-down ‘tough on crime’ stance taken towards Aboriginal Territorians in relation to alcohol-related offences.¹⁰⁴ With fine defaults threatening to exacerbate the Aboriginal overrepresentation in the criminal justice systems, the change posed a stark challenge to the justice goal of reducing Aboriginal offending and imprisonment rates.¹⁰⁵ This part argues that the Stronger Futures Act demonstrated a continued failure to improve Aboriginal justice outcomes. Again, the Australian government demonstrated an unwillingness to engage Aboriginal leadership, evidenced by the inadequate consultation process and failure to decentralise liquor laws.

1 A Repeated Failure to Consult

At first glance, the Stronger Futures consultations indicated a new approach to lawmaking in the NT: one that engaged Aboriginal communities. Manderson notes that over a six-week period in mid-2011:

[T]he federal government released its Stronger Futures Discussion Paper and rapidly organised a large number of consultations across the NT: 378 ‘open-door’ meetings between individuals and officials, 101 ‘whole of community’ meetings, five public meetings in towns and cities, and several additional meetings between government members, stakeholders, and experts.¹⁰⁶

While this appears to be a significant improvement from the NTNER’s lack of consultations, it is unlikely that the Stronger Futures consultations met the standards identified in the United Nations Declaration on the Rights of Indigenous Peoples.¹⁰⁷ Australia was one of the four states that voted against UNDRIP in 2007, objecting to the proposed right to self-determination.¹⁰⁸ Although Australia formally announced its support of UNDRIP in 2009, the Commonwealth Parliament has not enacted enabling legislation to date. Nevertheless, UNDRIP is recognised as reflecting evolving human rights standards regarding Indigenous peoples,¹⁰⁹ despite not creating additional legal obligations itself.¹¹⁰ Specifically, UNDRIP provides that states should obtain the ‘free, prior and informed consent’ of Indigenous peoples before implementing laws that may affect them.¹¹¹ Partridge maintains that ‘prior’ consent requires states to allow sufficient time for Indigenous peoples to engage in their own decision-making processes.¹¹² Moreover, ‘informed’ consent requires Indigenous peoples to be provided with information that is objective, accurate and reflective of all positions on the relevant issue.¹¹³ This process, in many cases, cannot be rushed. It is often necessary for materials to be translated into Indigenous languages¹¹⁴ and for communities to deliberate over the full range of potential risks and benefits before legislative action can be taken.

Given the Stronger Futures Act would establish far-reaching measures affecting Aboriginal communities for 10 years,¹¹⁵ the six-week consultation process was unsatisfactory.¹¹⁶ Rather, it was evident that the federal government had not listened to the criticisms of the 2009 NTNER consultations. Many of the same flaws arose: insufficient information was provided for ‘informed’ consultations¹¹⁷; the Stronger Futures Discussion Paper was not translated into Aboriginal languages¹¹⁸; and consultations began just a few days after the discussion paper’s release.¹¹⁹ In addition, there were concerns that the consultations were conducted with no intention of changing the government’s desired approach.¹²⁰ Aboriginal communities believed that, in an act of bad faith, the government had presented them with predetermined policy documents that later became the Stronger Futures legislative package.¹²¹ To that end, the consultation process was perceived as merely a ‘paper trail’¹²² enabling (the illusion of) local input to justify increasingly severe top-down policies.¹²³ Again, the formulation of laws affecting Aboriginal communities appeared to ignore both local expertise and international law standards.¹²⁴

2 Moving Away from Blanket Restrictions?

Despite inadequate consultation, the Stronger Futures Act contained several potentially redeeming features. In particular, the Act included provisions¹²⁵ for ‘alcohol management plans’ (‘AMPs’) that would purportedly allow communities to determine measures for reducing alcohol-related harms that accounted for their specific needs.¹²⁶ The stated aim suggested a movement away from unilaterally imposed ‘solutions’ towards collaborative approaches with Aboriginal communities.¹²⁷ But a closer examination at the law’s formulation and implementation told another story. AMPs had to meet five minimum standards,¹²⁸ covering matters like the responsibilities of the police; measurable outcomes and benchmarks; and dispute-resolution mechanisms.¹²⁹ Professor d’Abbs writes:

All of these components … are supposed to be meaningful not only to bureaucrats and ministerial officers, but also to residents of the community itself. Whatever the original intentions behind the adoption of AMPs as a policy instrument, they have become vehicles for a degree of administrative oversight and management that threatens to stifle, rather than nurture, genuine community engagement. Too often, the result is disillusionment and yet more disempowerment.¹³⁰

To further the sense of disempowerment, the Stronger Futures Act stipulated the federal Minister for Indigenous Affairs’ approval for AMPs.¹³¹ Once approved, an AMP could be revoked at the Minister’s behest¹³² and could not be varied without Ministerial approval.¹³³ In deciding whether to approve an AMP’s variation, the Minister had broad powers to consider any matter they considered relevant.¹³⁴ For these reasons, AMPs were rarely successful. Five years after the Stronger Futures Act came into force, seven AMP proposals had been rejected, and only one — the Titjikala community — had been approved.¹³⁵ Again, concerns were raised about whether the government truly intended to support Aboriginal leadership. Inadequate resources and support structures were cited as reasons why Aboriginal communities could not properly formulate their AMPs.¹³⁶ Due to the repeated failure to adequately consult with Aboriginal communities, communities began to lose confidence in the promise of regained control and attendance at meetings, convened to deliberate over AMPs, ebbed.¹³⁷

Thus, Aboriginal justice outcomes were further neglected: Aboriginal leadership, which could guide the development of more specialised policies, had scarcely been engaged, let alone listened to. Reflecting on the paternalistic perpetuation of legal and bureaucratic control over Aboriginal communities,¹³⁸ the Stronger Futures Act failed to improve Aboriginal justice outcomes and ‘build stronger futures’¹³⁹ for Aboriginal Territorians. The identified shortcomings of the consultative processes indicate that the federal government policies were in reality top-down: they did not truly engage and support Aboriginal leadership. Offending and imprisonment rates, which the NT AJA identifies as key Aboriginal justice metrics, had not improved either. By 2017, Aboriginal incarceration in the NT had increased, hospitalisation rates had risen and unemployment was at an all-time high.¹⁴⁰ In addition, the laws had a range of unintended consequences. Drinking occurred in unsafe areas outside of communities like highways, where drinkers were away from family members and risked being hit by vehicles.¹⁴¹ Community members relocated to urban areas to access alcohol.¹⁴² Further, there were fears that drinkers would substitute alcohol for illicit drugs.¹⁴³ It is doubtful when looking back on the Stronger Futures Act that the means — which were problematic themselves — achieved either the stated ends or improvements in Aboriginal justice outcomes. The legislative package was evidence of a ‘punitive justice model lacking cultural flexibility’¹⁴⁴ and failing to address the root causes of drinking problems.¹⁴⁵ Moreover, the government’s failure to empower Aboriginal communities — both in consultations and through AMPs — furthered what Manderson describes as a ‘crisis of faith’.¹⁴⁶ The disillusionment felt by Aboriginal communities furthered the pessimistic prospects of Indigenous laws and self-determination gaining greater recognition, an issue explored in the following section.

III Realising Interlegality

The previous section argued that the NTNER and Stronger Futures Act failed to improve Aboriginal justice outcomes due to a persistent failure to understand and respect the wishes of Aboriginal Territorians.¹⁴⁷ This section draws on the jurisprudential theory of interlegality to provide a framework for examining the consequences of this disempowerment.

A Understanding Interlegality

De Sousa Santos theorises that, at any given time, social objects are subject to various levels — or scales — of law.¹⁴⁸ Our social actions are regulated by local, national and world legalities, which create different ‘legal objects’ from the same subject.¹⁴⁹ A Ngarrindjeri Elder, for example, may have different legal rights and obligations in relation to ruwe, a Ngarrindjeri understanding of land, compared to the Western appropriation of Native Title.¹⁵⁰ Importantly, these legal systems exist in overlapping and often conflicting relationships, even if they do not acknowledge the existence of each other.¹⁵¹ This ‘interaction and intersection’ is known as interlegality.¹⁵² For the purposes of this article, the value of interlegality as a concept is that it legitimises the existence of legal systems that have historically been ignored. The literature on interlegality in the Australian context is nascent; however, academics elsewhere have studied the dialectic between Indigenous legal systems and state law.¹⁵³ In the Norwegian context, Svensson notes:

[E]stablished legal systems of the nation-state are continuously changed by means of the transfer and adoption of legal perceptions of an indigenous people, at the same time as customary activities of the latter are reshaped according to instituted regulations concerning, for instance, their traditional land use patterns, and other customs.¹⁵⁴

A meaningful understanding of interlegality entails the acknowledgement that a singular legal system does not work for a diverse population.¹⁵⁵ Therefore, promoting the Indigenous right to self-determination — and the flourishing of Indigenous legal systems — is congruent with this pluralistic recognition of interlegality. What does this look like in practice? Often, different legal systems are integrated into a single hierarchy of law, which is referred to as ‘weak’ legal pluralism.¹⁵⁶ To some extent, this integration is necessary to protect the law’s capacity to enforce rights and obligations. Otherwise, conflicting rights in different legal systems would be irreconcilable. It would be a mistake, however, to assume that all instances of weak pluralism are equally weak. Granting subordinate legal systems more autonomy — or, better yet, engaging and supporting these systems — heightens their legitimacy. This could be thought of as a ‘stronger’ weak pluralism. As the next part explores, stronger forms of weak pluralism can support the improvement of Aboriginal justice outcomes.

B Embracing Interlegality

Federal government policies that have centralised decision-making for Aboriginal communities have been recognised as eroding the family and social bonds between Aboriginal peoples.¹⁵⁷ Where decision-making power has been conferred on Aboriginal peoples, it has generally occurred within non-Aboriginal models situated within the settler legal system. This was the case with the Aboriginal and Torres Strait Islander Commission (‘ATSIC’), which was established in 1990 to enable Aboriginal and Torres Strait Islander peoples to have greater control over matters affecting them. ATSIC’s legislative functions, broadly speaking, were threefold: advising governments; advocating on behalf of Indigenous people; and funding and monitoring programmes.¹⁵⁸ However, ATSIC encountered many challenges, including a limited control of its budget; being subject to constant amendment; and suffering attacks on its legitimacy, rendering it an ‘inherently unstable organisation’.¹⁵⁹ While ATSIC was ultimately abolished in 2005, Tanganekald Professor Irene Watson argues that it was ‘doomed and set up to fail’ because it did not properly support Indigenous voices.¹⁶⁰ This phenomenon can be thought of as a weak ‘weak pluralism’,¹⁶¹ where the forced assimilation of Indigenous leadership into the settler legal system deters the struggle for greater recognition of Indigenous legal systems.¹⁶² Weaker forms of pluralism are unsuited for supporting Aboriginal leadership. As observed by Simon Thomas in the Ecuadorian context, formally recognising pluralism animates an ongoing process of contestation and negotiation between local Indigenous authorities and national judiciaries.¹⁶³ In some cases, this contestation can choke rather than champion the legal empowerment of Indigenous authorities. This outcome is largely influenced by the settler system’s delimitation of an Indigenous legal system’s jurisdiction. Members of the ‘Progressive No’ campaign such as Senator Lidia Thorpe (Gunnai, Gunditjmara and Djab Wurrung) and Leah House (Ngambri) adopted this reasoning in opposing the Voice referendum in favour of stronger measures promoting self-determination.¹⁶⁴

In response to the announcement of what would become the Stronger Futures Act, Yolŋu Elder Djiniyini Gondarra called for a ‘diplomatic and respectful dialogue, negotiation and relationship’ to characterise future negotiations between settler governments and Aboriginal communities.¹⁶⁵ Crucially, Gondarra noted that this required an acknowledgement of, and proper consultation with, the traditional lawmakers in the affected communities. Supporting these traditional lawmakers, who are ‘seen as the true leaders by their communities … charged with maintaining ceremony, language, law and order’,¹⁶⁶ recognises the continued existence of Aboriginal legal systems despite their historical neglect.¹⁶⁷ Indeed, there are cogent reasons to do so. Studies suggest that Aboriginal leaders are more likely to comprehend local needs, deliver initiatives in a culturally competent manner and improve community participation in those initiatives.¹⁶⁸ This evinces a connection between interlegality and Aboriginal justice outcomes — enabling Aboriginal legal systems to function more autonomously requires Aboriginal leadership to be engaged and supported, which in turn may improve justice responses and services for Aboriginal Territorians. It is unlikely that this has occurred to date. And while the aftershocks of the unsuccessful Voice referendum may not have been fully felt yet, the result highlighted a ‘shameful’ opposition to promoting Indigenous self-determination.¹⁶⁹ As Maddison maintains, Aboriginal self-determination of alcohol restrictions has not ‘failed’ to generate positive outcomes.¹⁷⁰ Rather, ‘real autonomy, real self-determination, has never been tried in Australia’.¹⁷¹ Even where Indigenous communities had formulated AMPs pursuant to the Stronger Futures Act, the approval and implementation process went astray in a bureaucratic labyrinth. The Intervention Rollback Action Group, pointing to coordination errors between the NT and federal governments, viewed the AMP process as a waste of time, effort and money.¹⁷² In some cases, the approval process took as long as 2 years, weakening the community mobilisation that had supported the AMPs.¹⁷³ The Tangentyere Council identified politics and the electoral cycle as two barriers to developing sustainable approaches that meaningfully engaged with Aboriginal perspectives and addressed alcohol-related harm.¹⁷⁴ The administrative responsibility for developing AMPs shifted between various government departments with inconsistent understandings of what these responsibilities entailed. Throughout this process, there were changes in leadership at the federal and territory levels. Amidst this flux, the Tangentyere Council reported that ‘the only constant has been the lack of AMPs in the Northern Territory’.¹⁷⁵ Thus, Aboriginal self-determination was stifled within the settler system’s procedures and its various revisions. Limited autonomy, prescribed by the settler legal system to assert its primacy, hampered the development of justice responses and services for Aboriginal Territorians. The following section considers what real autonomy and self-determination could look like in the context of the NT’s liquor laws.

IV 2022–3: Where to from Here?

Since the sunsetting of the Stronger Futures Act on 16 July 2022, alcohol policies have been subject to multiple changes. The NT Parliament passed the Associations and Liquor Amendment Act in May 2022,¹⁷⁶ which contained a range of interim measures to replace the Stronger Futures Act on 16 July 2022.¹⁷⁷ These measures affected the communities previously known as APAs under the Stronger Futures Act,¹⁷⁸ while existing alcohol restrictions remained in communities classified by the NT government as ‘general restricted areas’ (‘GRAs’).¹⁷⁹ Chansey Paech (Eastern Arrernte, Gurindji), the NT Attorney-General, stated that the changes would ‘clean up the mess’ of previous federal government policies.¹⁸⁰ They did not. A report by the Office of the Central Australia Regional Controller recommended urgent amendments to the Liquor Act to reduce alcohol-related harm and bolster community-led alcohol policies.¹⁸¹ Consequently, another amendment to the Liquor Act followed in February 2023, establishing the current policies that are set to expire in 2027.¹⁸² This section examines these amendments chronologically, referring to them as the 2022 Amendment and 2023 Amendment, respectively. It argues that the similarities between the Stronger Futures Act and the 2022 Amendment foreseeably posed challenges to embracing interlegality and thereby improving Aboriginal justice outcomes. Then, it concludes by considering whether and to what extent the 2023 Amendment is an improvement on this position.

A The 2022 Amendment

Under the 2022 Amendment, communities that were not GRAs were given the option between 16 July 2022 and 31 January 2023 to opt-in to remaining dry, becoming ‘interim APAs’ for up to 2 years.¹⁸³ The NT government intended to consult communities during this interim period about their long-term alcohol aspirations.¹⁸⁴ Much like the federal government’s implementation of the Stronger Futures Act, the NT government was criticised for its failure to undertake adequate consultations prior to the 2022 Amendment.¹⁸⁵ In addition to the (twice-ignored) issues explored in Section II, this decision had the potential to limit improvements in Aboriginal justice outcomes in two ways.

First, there was an expected increase in Aboriginal offending (Outcome 1), coupled with an absence of culturally sensitive justice responses (Outcome 3). In communities that neither opted-in to becoming interim APAs nor were GRAs, it was no longer an offence to possess or consume alcohol.¹⁸⁶ Meanwhile, bringing liquor into, possessing liquor within, consuming liquor within or selling liquor within interim APAs remained an offence.¹⁸⁷ The maximum penalty was double that of the Stronger Futures Act: 200 penalty units or 12 months’ imprisonment.¹⁸⁸ In anticipation of a foreseeable rise in alcohol-related issues, the NT government vaguely promised ‘extra support’ to communities that did not opt-in.¹⁸⁹ Without clear indication of what this support would actually look like, there were legitimate concerns that the main ‘justice’ response would be additional policing services. Deploying more officers could lead to more arrests for low-level offences, along with more police violence and protests,¹⁹⁰ all of which risked increasing rates of Aboriginal offending and imprisonment.¹⁹¹ While the OCARC Report did not find a ‘substantial sustained increase in alcohol-related harm’ in the five months following the sunsetting of the Stronger Futures Act, it reported an increase in such harm from November 2022 onward.¹⁹² This included a rise in alcohol-related assaults, record-high levels of property offences in Alice Springs, as well as concerns that the severity of harm being inflicted on Aboriginal women in domestic violence incidents and alcohol consumption rates were both increasing.¹⁹³

The second failing of the 2022 Amendment in respect of Aboriginal justice outcomes was that the little Aboriginal leadership that had been engaged did not appear to be supported. The NT government’s consultations with communities appear to have been limited to a period between December 2021 and January 2022: a period — as the NT government noted — where COVID-19 restrictions hamstrung consultations in remote areas.¹⁹⁴ Without adequate prior consultation, the 2022 Amendment foisted the aftermath of the Stronger Futures Act on Aboriginal communities. Aboriginal opinions were divided over whether this was appropriate.¹⁹⁵ Jaru woman and health worker, Marianne Skeen, welcomed the possibility of her community choosing whether to remain dry.¹⁹⁶ Contrastingly, East Arnhem Regional Council CEO, Dale Keehne, said more consultation was required.¹⁹⁷ Keehne’s view is supported by the troubled legacy of NT alcohol regulations that have failed to properly consider local input. The Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs viewed the NT and Commonwealth government policies following the Stronger Futures Act as insufficiently informed or prepared.¹⁹⁸ The opt-in feature of the 2022 Amendment reflected this. The nudge towards allowing alcohol back into communities,¹⁹⁹ rather than requiring an opting-out of remaining dry, suggested that insufficient consultation was undertaken with stakeholders like women’s groups²⁰⁰ and youth groups.²⁰¹ The Central Australian Aboriginal Congress, who report to have not been consulted, later stated that an opt-out system would have ‘provided a stronger transitionary arrangement’ that would enable consultation and community-led solutions.²⁰²

By 31 January 2023, over 700 consultations with affected communities had taken place, with 13 former APAs opting to become interim APAs.²⁰³ But it was clear that the 2022 Amendment had neither improved Aboriginal health nor justice outcomes.²⁰⁴ Like the NTNER and Stronger Futures Act, there was inadequate Aboriginal input in the design and implementation of these laws. This demonstrated, in the Northern Land Council’s view, that ‘[r]emoving restrictions without appropriate consultation is as bad as imposing restrictions without any consultation’.²⁰⁵ New solutions were proposed: the NT government re-amended the Liquor Act — reversing some of the changes under the 2022 Amendment — and the Commonwealth government pledged $250 million towards a plan for ‘A Better, Safer Future for Central Australia’. The following part considers these changes and whether they are likely to improve Aboriginal justice outcomes.

B The 2023 Amendment

Following the OCARC Report, amendments were made to the Liquor Act that came into force on 16 February 2023.²⁰⁶ Most importantly, the changes made under the 2022 Amendment were replaced by an opt-out model. All communities that were formerly APAs under the Stronger Futures Act became ‘interim APAs’, where the possession, sale and consumption of alcohol were again prohibited.²⁰⁷ From 16 February 2023 until 28 February 2027,²⁰⁸ communities can stop being interim APAs by applying to have their interim APA status revoked by the Director of Liquor Licensing or by applying to become a GRA by the Liquor Commission. In the case of the former, this requires a community alcohol plan that must meet the Liquor Act’s requirements, including the Director of Liquor Licensing’s approval and the support of at least 60 per cent of adult members in the community.²⁰⁹ Meanwhile, becoming a GRA requires the successful approval of an application under section 174 of the Liquor Act. GRA status — which means either a total alcohol ban or, upon attaining a liquor permit, allowing alcohol under certain conditions — is intended to remain in place after the 2023 Amendment expires in 2027.²¹⁰

Primarily, the above changes limit the supply of alcohol in interim APAs. The OCARC Report anticipated that this would ‘undoubtedly reduce alcohol related offending and harm, at least in the immediate term’.²¹¹ Supply-side restrictions were the dominant feature of liquor laws under the NTNER and Stronger Futures Act, with the federal government providing ‘little investment in harm reduction or demand’.²¹² As this article has argued, it is doubtful that either of these laws improved Aboriginal health outcomes, let alone justice outcomes. But the 2023 Amendment is also supplemented by a $250 million commitment by the federal government to improve, among other things: community safety and cohesion; health services; and on country learning. This spending package does not include the $48.8 million that the federal government pledged in January 2023, which will increase investment in domestic violence services and other justice initiatives.²¹³ The following part evaluates the likely affect that these policies will have on Aboriginal justice and health outcomes.

I Improving the 2023 Amendment

If several key issues are addressed, these changes have the potential to improve both health and justice outcomes. The potential to improve these outcomes relies on the provision of two key resources: money and time. Whether this potential is realised depends on how effectively these resources are used. Unlike the previously discussed liquor laws, the new funding looks beyond supply-side restrictions to a significant extent, committing up to $100 million for housing services and $19 million for Aboriginal health infrastructure projects.²¹⁴ The $250 million investment package also includes $10 million for justice reinvestment initiatives, designed to enable Aboriginal communities to identify best practices to ‘reduce contact with the criminal justice system’ (Outcome 1) and empower communities to determine policies that affect their lives (Outcomes 2-3).²¹⁵ Such funding is crucial. The OCARC Report identified supply-side measures as a necessary but insufficient condition for addressing the underlying causes of poor health and justice outcomes.²¹⁶ Donna Ah Chee, a Bundjalung woman and CEO of the Central Australian Aboriginal Congress, similarly emphasises the importance of a multi-dimensional approach to liquor laws. Acknowledging the need for alcohol restrictions, Ah Chee stresses that they must be coupled with funding to address the structural causes of alcohol abuse, and Aboriginal community-controlled input in negotiations concerning the allocation of this funding.²¹⁷

It is clear that the 2023 Amendment’s measures and additional funding are intended to improve both health and justice outcomes. But whether they actually will is another question. Comprehensive consultations must be undertaken across the NT during the interim APA period, engaging Aboriginal communities in a manner that previous consultations have failed to do. Natasha Fyles, the former Chief Minister of the NT, has branded the 2023 Amendment as a change that ‘provides a pathway … [for] community voice[s] to be heard’.²¹⁸ In a similar vein, Linda Burney (Wiradjuri), the Minister for Indigenous Australians, hailed the federal government funding as delivering ‘circuit-breaker measures [that] will improve community safety on the ground in Alice Springs’.²¹⁹ For these claims to hold true, the NT government must smoothly facilitate the implementation of the new measures. Indeed, one issue that the transition away from the Stronger Futures Act faced was a coordination failure between — and within — the NT and federal governments.²²⁰ The Association of Alcohol and other Drug Agencies NT note that this failure had negative flow-on consequences, including a lack of structured engagement with key stakeholders; untimely and inaccessible information regarding the proposed changes; and a failure to prepare communities to enact localised solutions.²²¹ It is imperative that the NT government co-designs a strategy with local communities to engage and support Aboriginal leadership throughout and beyond the interim APA period. Unlike the previously discussed laws, subsequent liquor laws must obtain the free, prior and informed consent of these affected communities.

Another potential issue is whether the current amount or distribution of funding is appropriate. As mentioned above, there are over 300 interim APAs across the NT. The opt-out model under the 2023 Amendment relies on each interim APA to decide to remain dry or submit a community alcohol plan to permit the consumption, possession and sale of alcohol. This coheres with both Aboriginal justice outcomes and the PJCHR’s endorsement of transitioning away from ‘blanket restrictions to locally developed AMPs’.²²² In addition to supporting the development and implementation of community alcohol plans, improving Aboriginal justice outcomes requires adequate resourcing for each community to explore and facilitate community-led diversionary activities; cultural rehabilitation programming; and alternate custody and sentencing options.²²³ In the ongoing negotiation of intersecting legal systems in the NT, these measures represent a widening of the jurisdiction of Aboriginal authorities. However, the cost of designing and implementing these services across the hundreds of interim APAs may exceed the current allocation for justice reinvestment. Fortunately, a solution has been built into the $250 million package for Central Australia. With nearly $95 million in uncommitted funds, the federal government intends to direct this money to areas in need based on the input of remote communities and Alice Springs.²²⁴

The activities and options designed by Aboriginal communities, like the community alcohol plans, would currently source their authority from instruments within the settler legal system.²²⁵ On one hand, this could increase the recognition of interlegality within Australia, improving Aboriginal justice (Outcome 3) through the locally designed justice responses. However, the legislation of local laws poses an intrinsic threat to Aboriginal leadership (Outcome 2) by forcing communities to follow written, bureaucratic procedures of administering laws.²²⁶ Where these Aboriginal justice outcomes collide, it may be necessary to review the existent measures that may stifle Aboriginal leadership. One such measure is the discretionary power of the Director of Liquor Licensing to approve or reject community alcohol plans, which is reminiscent of the Ministerial override power under the Stronger Futures Act. As the delays in AMP approvals under the Stronger Futures Act demonstrated, a time limit on the review process can lubricate the bureaucratic process and prevent a dampening of community momentum and goodwill.²²⁷ Therefore, the 2023 Amendment must be supported by a genuine consultation process and significant investment into locally identified health and justice initiatives to avoid the failings of the previously discussed liquor laws in respect of Aboriginal justice outcomes.

V Conclusion

‘It’s complex’ is an ineffable refrain often heard in discussions about the NT’s alcohol policies.²²⁸ Indeed, it is complex. This article has identified the failings of the NTNER and the Stronger Futures Act in respect of the NT AJA’s three Aboriginal justice outcomes: (i) reducing the offending and imprisonment of Aboriginal Territorians; (ii) engaging and supporting Aboriginal leadership; and (iii) improving justice responses and services for Aboriginal Territorians. It then argued that the NT government’s new liquor laws will not improve these outcomes unless Aboriginal leadership is engaged and supported through the 2023–7 interim APA process. This must be emphasised because, at the time of writing, there is no clear plan to engage and support Aboriginal leadership in interim APAs. A renewed commitment to obtaining the free, prior and informed consent of Aboriginal Territorians is a necessary first step in rebuilding bonds of trust that have been frayed by insufficient previous consultations. And this leadership is necessary for formulating intercultural, interlegal justice services that are driven by Aboriginal communities and tailored to local needs. Section III described this as a stronger ‘weak pluralism’. The acknowledgement that consultations must be comprehensive and obtain the free, prior and informed consent of affected Aboriginal communities is regrettably far from novel. To internalise this acknowledgement, policymakers must understand the shortcomings of the consultative processes in the NTNER and Stronger Futures Act. This article’s contribution, accordingly, is to underscore the repeated issues of recent liquor laws in the NT, analysed through one contemporary understanding of Aboriginal justice outcomes. Starting this examination at the NTNER, this article has demonstrated that the need for comprehensive consultations has been recognised yet unrealised since the Little Children Are Sacred Report. These consultations are not an end in themselves. Rather, policymakers must listen to Aboriginal voices, enabling local expertise to influence and inform liquor laws. In acknowledging the federal government’s ‘insufficient and inadequate’²²⁹ earlier attempts to empower Aboriginal leadership, new policies can finally harness the strength of Aboriginal communities to improve both health and justice outcomes.