7

Application for Declaration of a Restricted AreaDecision with Reasons

Applicant(s): Nyirranggulung Mardrulk Ngadberre Community Government Council

Heard Before: Dr Alan Clough

Date of Hearing: Barugna: 3rd February 2005
Beswick: 15th February 2005

Date of Decision: 5th of May 2005

Summary of Decision

The Licensing Commission was asked to revoke three existing restricted areas in the Maranboy district, namely those which presently surround the communities of Manyallaluk, Barunga and Beswick, and to declare one restricted area to encompass all of the existing ones.

Consistent with the objectives, substance and sentiment of the application, the Commission approached the matter by considering whether to revoke these areas and whether to declare a single encompassing restricted area but considering at the same time appropriate exemptions for liquor licences that would operate within a new restricted area. Consistent with this approach, the Commission also considered whether liquor permits to possess and consume liquor should be available to residents of a new restricted area and the minimum conditions to which a liquor permit should be subject.

The Commission’s decision is that:

  1. Pursuant to s.74(1), s.81(1)(b) and s.81(2)(b) of Part VIII – Restricted Areas of the Northern Territory Liquor Act, in force at the 1st of September 2004, (the Act), a parcel of land less than the relevant area the subject of the application but contiguous with and joining the Manyallaluk, Barunga and Beswick restricted areas, and described in the body of the decision and the Schedule, is declared a restricted area.
  2. This declaration shall be implemented by causing to be published a notice, pursuant to s.82 of the Act, to declare this area a restricted area. This declaration will take effect from the 1st of July 2005.
  3. No liquor permits are required for the possession and consumption of liquor in the new restricted area or in the Manyalluk restricted area. The possession and consumption of liquor within the Beswick restricted area and the possession and consumption of liquor other than beer in the Barunga restricted area will continue to be strictly in accordance with the conditions of a permit issued by the Licensing Commission, pursuant to Division 2 – Permits Part VIII – Restricted Areas of the Act, upon considering the advice of the Chairperson of the relevant Community Management Board and the NT Police which together will continue to provide to all residents of these communities opportunities to apply to the Commission for a liquor permit to possess and consume liquor in the restricted area in which they are resident.

Recommendations arising as a consequence of this decision.

  1. It is recommended that the Commission on its own motion, pursuant to s.27 of the Licensing Commission Act (2001) review this decision after six months from its date of effect. The Commission was informed that, during these six months, information will be compiled by the applicant, with assistance from Police and the respective Community Management Boards, to assess whether this determination of their application has achieved their stated objectives.

Alan Clough
5th of May 2005

Nyirranggulung Mardrulk Ngadberre Community Government Council

Nyirranggulung Mardrulk Ngadberre is a Community Government Council incorporated under the NT Local Government Act 2004 and is comprised of three Community Management Boards for the Manyallaluk, Barunga and Beswick (also known as Wugularr) communities. The constitution of the organisation describes its vision, objectives and structures. Its vision is to maintain observance and respect for traditional values and to join the responsibilities and structures of traditional authority with modern local government to achieve a high quality of life and a range of opportunities and choices for its people.[1]

The Nyirranggulung Mardrulk Ngadberre region is located approximately 50 kilometres east of Katherine and Mataranka. It borders on Kakadu National Park to the north, Nitmiluk National Park to the west, the Arnhem Land Aboriginal Land Trust to the north east, pastoral leases to the east, and the Upper Roper National Park to the south. The Stuart Highway skirts the region to the southwest. The Central Arnhem Road passes through Barunga and Beswick leading on to Nhulunbuy in eastern Arnhem Land. The population of the region’s communities is highly mobile and has apparently varied considerably over the years. The recorded population of the Barunga community has ranged from 350 to 586 since the 1980s. Manyallaluk ranged from 30 to 120 people and the Beswick community from 160 to 650. The total regional population has apparently fluctuated from just over 500 to around 1300 since the 1980s.[2] The population’s age and sex composition is similar to that of the rest of the Northern Territory. The Community Development Employment Program (CDEP) has been by far the largest employer in the region with around 40% of the 370 people aged ≥15 years. Just 10% of these age groups are employed other than in the CDEP scheme, 17% are unemployed and 33% are not in the labour force.

Thereare two licensed premises. The Barunga Progress Association Store (Liquor Licence No. 81100776) is licensed to sell beer only for removal and consumption away from the premises six days a week for an hour each day. The other at the Wuduluk Progress Association Store in Beswick (Liquor Licence No. 80900781) is also licensed to sell beer only for removal from the premises but for its consumption in its ‘beer garden’ only. It is licensed to trade six days a week for 14 hours each week in total. Sales of beer are restricted to a maximum of six cans per male and four cans per female each trading period.

Preamble

1.  On the 21st of August 1981, the Chairman of the then Liquor Commission caused to be published a notice in the NT Government Gazette declaring a restricted area around the Aboriginal community centred at Bamyili, now known as Barunga.[3] The declaration, effective from the 15th of April, 1981, meant that from this date

“liquor (excluding beer) may not be taken into or consumed within the area described in the Schedule without a permit. In other words, beer may be consumed in the area without restriction, but permits will be required for wines and spirits.”

2.  On the 1st of June 1983 by similar notice in the Gazette, the Chairman of the Liquor Commission declared a restricted area at Beswick Station Community being

“All that parcel of land at Beswick Northern Territory of Australia within a circle of 6.5 kilometres radius from the most northern north western corner of the Beswick Station Progress Association Store (latitude 14 degrees 33 minutes 23 seconds south latitude (sic) 133 degrees 6 minutes 40 seconds east) but excluding therefrom the Beswick Station Progress Association Store.” [4]

The determination, effective from the 1st of June 1983, meant that it became “… an offence for liquor to be taken into or consumed within the areas described above, without a permit.”

3.  On the 9th of December 1992, again by similar notice in the Gazette, the Chairman of the Liquor Commission declared a restricted area at the Eva Valley pastoral lease in which area is located the Aboriginal community of Manyallaluk.[5] This determination, effective from the 16th of December 1992 also meant that it became “… an offence for liquor to be taken into or consumed within the area…, without a permit.”

4.  On the 27th of April 2004, a letter was received by the Director of Licensing (the Director) on the letterhead of the Nyirranggulung Mardrulk Ngadberre Regional Council (NMNRC) signed by Mr Rod Walsh (CEO) advising that the NMNRC had discussed and agreed upon a new proposed liquor restricted area.[6] The new proposed liquor restricted area was delineated in a proposal submitted with the letter[7] which was endorsed by Sergeant Angelo De Nale (Officer in Charge, Maranboy Police Station).[8] This endorsement declared:

“The new proposal was a joint initiative brought about through direct consultation with Beswick, Barunga, Manyallaluk, their Regional Management Council (Nyirrungulung), the Jaowyn Association and the Maranboy Police.”

5.  With this diversity of interested parties and given the wide ranging goals of the proposed initiative,[9] it was not initially clear to the Commission who was to have principal carriage of the application and what were the reasons for desiring the area to be declared a restricted area and for the concomitant revocation of three existing restricted areas. So at its meeting of the 8/9th of June 2004, the Commission determined that the then Chairman, Mr Peter Allen, was delegated to determine whether a hearing would be conducted if further investigations by him clarified the identity of the applicant and clarified the formalities of the application as set out in s.76 of the Act.

6.  Mr Allen subsequently (26th of June 2004) advised Commission members that, in his view, the applicant was Sgt De Nale of the Maranboy Police Station and that a hearing would be conducted.[10] Processes required by s.77(2) and s.79 of the Act were then set in train and the Director advised licensees, relevant council officers and residents of the areas of the time and date of the hearing and that they may express an opinion regarding the application.

7.  At its meeting of the 10th/11th of August 2004, in its further consideration of the formalities of the application, the Commission requested a map showing the exact location of the existing restricted areas in relation to the area to be the subject of the new application. At this meeting the Commission also considered a ‘letter of support’ for the application faxed on the 11th of August 2004 from the NMNRC to the Director and signed by the Chairpersons and Community Managers of the Barunga and Wugularr (Beswick) Community Management Boards.[11] Then, on the 9th of September 2004, a letter dated the 31st of August 2004, signed by Mr Rod Walsh (CEO NMNRC) and titled: “Re: Notice of Application for Declaration of a Restricted Area” was received by the Director.[12] The Commission considered this letter at its meeting of the 14/15th of September 2004 and determined that the Chairman would confirm with both Police and the NMNRC which of them intended to be the formal applicant for the declaration of the restricted area. Mr Walsh attempted to clarify this for the Commission in his e-mail of the 27th of September 2004 which advised that “…this is a formal application on behalf of the Nyirranggulung Mardrulk Regional Council for a restricted liquor license.”[13] The Commission determined from this that the NMNRC wished to be regarded as the applicant.

8.  The applicant’s stated aim is to reduce the number of liquor-related incidents and resultant harm to which the residents of the communities of Manyallaluk, Beswick and Barunga are exposed. Its principal focus is on reducing the opportunities for harmful drinking and associated activities to take place at the three informal drinking areas which have grown up at the edge of each existing restricted area, referred to colloquially as the “signboard”. It is asserted that one of the consequences of uncontrolled drinking in these localities is that persons who become intoxicated whilst drinking there cause disruption and violence when they return to their home communities in the restricted areas. A subsidiary focus is on the challenges of enforcing the provisions of three restricted areas distributed over a large tract of country. There is particular concern about the difficulties of ensuring that liquor does not enter the restricted areas in contravention of these provisions.[14] A central strategy for the proposal is to have just one area that is restricted for liquor rather than the three currently-disjoint restricted areas. It is believed that this will restrict the number of possible entry points for liquor to the area which will facilitate more efficient and effective policing. It is also believed that this will encourage those who currently use the three informal drinking areas to drink in just one locality. It is proposed that such a locality will be provided with suitable services and facilities to minimise the harms and risks to which those who choose to drink there are exposed. The proposal envisages a six-month period during which the performance of the proposals pertaining to a new restricted area could be examined and assessed.[15]

9.  On the 14th of December 2004, pursuant to s.51(2A) of the Act, I was selected by the Chairman (s.51(2A)(b)) to constitute the Commission to hear and determine the application for a new restricted area to be declared. Simultaneously, pursuant to s.15(2) of the Licensing Commission Act as in force at the 29th of June 2001, I was selected by the Chairman to constitute the Commission to hear and determine the application for revocation of the currently restricted areas and to hear and determine matters pertaining to liquor permits in the restricted area(s).

10.  With respect to revoking a declaration of an area as a restricted area, my statutory power is delineated by s.84 of the Act which states:

“A declaration of an area of land to be a restricted area may be revoked by the Commission at its discretion”.

11.  With respect to declaring an area a restricted area, my power is delineated by s.74(1) of the Act which reads as follows:

Subject to this Act, the Commission may declare that a specified area of land shall be a restricted area.

12.  In deciding whether to grant an application for an area of land to be declared a restricted area, I am obliged by s.80 of the Act to