On the 7th of August 2007 the then Federal Minister for Indigenous Affairs, Mal Brough, introduced the Northern Territory National Emergency Response Bill 2007 (the NTNER legislation) in response to what he and Prime Minister John Howard described as a “national emergency” in Northern Territory Aboriginal communities that required the exercise of extraordinary powers.

Chief amongst those powers was the control over access to grog.

Brough told the House of Representatives that:

“The authors of the Little Children are Sacred report described alcohol abuse as the ‘gravest and fastest growing threat to the safety of Aboriginal children‘.

…

To dry up the lethal rivers of grog, this bill will enable the government to introduce a general ban on people having, selling, transporting and drinking alcohol in prescribed areas. At the same time, our measures apply tougher penalties on people who are benefiting from supplying or selling grog to these communities.”

The primary anti-grog measure introduced by Brough was contained in section 12 of the NTNER Act – which replaced the previous regime in section 75 of the NT’s Liquor Act of offenses and penalties relating to “restricted areas” with a regime relating to “prescribed areas“.

Brough’s “prescribed areas” expanded the area subject to the alcohol bans by several orders of magnitude to include all Aboriginal freehold land in the NT – about 42% of the Territory landmass.

And, as I explained in Crikey back in 2007 in relation to another contentious part of the NTNER legislation, the Devil would always be in the detail.

And Vince Kelly, now President of the Police Federation of Australia and in 2007, as he remains, also President of the NT Police Association, told the SBS program Living Black just prior to the introduction of Brough’s “tough on grog-runners” legislation:

VO: But only days away from the ban coming into effect, Northern Territory Police may not be ready to tackle this latest Government plan.

VINCE KELLY: I do envisage difficulties with prosecutions because of the way legislation is drafted. There has been limited training or no training provided to the NT Police on the practical implications of the legislative changes that are coming about because of federal legislation. So all these difficulties will flow through, ultimately, to prosecution.

In March this year the NT News reported that one particularly useless part of the NTNER legislation would be scrapped:

Under a rule introduced by the previous federal government, anyone who spends more than $100 on takeaway alcohol must have their ID recorded and say where they plan to drink it. NT Licensing Minister Kon Vatskalis yesterday said the law was “a waste of time, a waste of paper and a waste of ink”. He said he had discussed it with Federal Indigenous Affairs Minister Jenny Macklin and he expected the laws to be removed “soon”. “The Minister agreed with me that it was not the brightest idea of the intervention,” he said. The scheme was said to be an attempt to stop grog-runners but it doesn’t stop anyone buying booze – or taking it to alcohol-free communities.

Almost two years after the introduction of the NTNER scheme current Indigenous Affairs Minister Jenny Macklin was asked about the effectiveness of the NTNER legislation in stopping the “rivers of grog”.

As Macklin told journalists at a press conference in Melbourne on the 5th of August 2009:

“…certainly all the evidence shows that that particular measure has not been effective. That said, I just want to reiterate how critical it is that we have strong alcohol controls on the supply of alcohol…one of the things that we have to do to control and reduce that violence is to see stronger alcohol controls.”

And, as the Fairfax Press reported last Friday, the rivers of grog are apparently flowing faster and wider than before:

“In the communities targeted by the intervention…there was a 34 per cent increase in alcohol-related crime, the report, titled Closing the Gap in the Northern Territory, said.

The last spike could be due to the criminalisation of alcohol possession in some remote communities. The Minister for Indigenous Affairs, Jenny Macklin, attributes the increases to higher police numbers.”

“An increased police presence in remote Northern Territory communities, particularly in places that previously had limited or no police, has resulted in more reporting in a number of offences, including violence, alcohol and child abuse,” a spokeswoman said.

For some time The Northern Myth has been aware that several NT Magistrates have been less than pleased that their sentencing options with regard to grog-running – particularly for serious and repeat offenders – have been seriously compromised by the supposedly tougher regime instituted by Brough and maintained by Macklin.

The Northern Myth also understands that many police – particularly those in remote areas that have to deal with grog-runners face-to-face on a daily basis – are particularly pissed off at this situation – they know that if they get a repeat offender “bang to rights” that they will only face a fine at most when the matter is dealt with by the Courts..

Before September 2007 a prison sentence was available as a sentencing option for a Magistrate dealing with a person convicted of a basic “restricted area” offence under the Liquor Act – an option increasingly attractive in respect of repeat or particularly serious offenders.

Since then, under the “prescribed area” provisions of the NTNER-modified Liquor Act, the maximum penalty available is a fine.

A prison sentence can now only be imposed for an aggravated version of the basic offence that relates to “transporting” more than 1,350 millilitres of pure alcohol with the intention to supply.

The pre-existing regime under the NT Liquor Act, at section 124A, always allowed (and still does) for Police officers to state or “aver” that seized grog was alcohol.

But there is no equivalent averment provision in the NTNER Act in respect of the 1,350 millilitres of pure alcohol situation.

The consequence of this is that if Police seize enough grog to trigger an aggravated offence and charge accordingly they will have to chemically analyse each item if the defendant opts to go to hearing.

The Northern Myth understands that the NT Police Forensic Lab in Darwin is not geared up to conduct such testing, and would have to send the seized alcohol interstate for testing.

The practical result of this snafu is that the vast majority of charges – including those that would clearly be classed as aggravated “grog-running” offences – are now processed by the Courts as basic “prescribed area” offences, and the only sentencing option is a fine.

Three weeks ago Marie Nudjulu stood before Court at the troubled community of Wadeye charged with a number of “prescribed area” offences.

The Northern Myth has seen the Court Transcript of Proceedings against Ms Nudjulu.

The Prosecutor read the following facts – admitted by Ms Nudjulu’s Defence counsel – into the public record:

Your Honour, the facts are that approximately 5:55 am on Thursday, 10 September 2009, Marie Nudjulu, the defendant, was the rear passenger in a green Holden Vectra sedan, registration: 536 888, driving to Wadeye from Darwin.

The defendant was travelling with Sebastian Cumpuda(?) and Terrence Parmbuck both rear passengers and Matthew Cumpuda driving. At that the defendant’s vehicle was stopped by police in the vicinity of Woodyculdiya Outstation turn off from Port Keats Road. The search of the vehicle apprehended nine bottles of spirits and 29 unopened 375 ml of cans of Victoria Beer on the floor at the defendant’s feet.

When asked who owned the unopened 29 cans of 375 ml of beer the defendant replied, ‘The VB is mine, I bought it for myself’, the two unopened 700 ml bottles of Bundaberg rum were located at the feet of the defendant were claimed by the co-offender Terrence Parmbuck. The remaining bottle of spirits was claimed by the co-defendant Sebastian Cumpuda.

The vehicle was seized and conveyed to Daly River Police Station. Both the defendant and co-offender, Parmbuck, were conveyed to the residence of Wadeye in a marked police vehicle. The defendant was advised she will receive a summons in relation to the matter.

At the time of the offences the whole of the Daly River land trust area is a prescribed area under the Liquor Act as amended by the Northern Territory National Emergency Response Act. The defendant was not the holder of a liquor permit in order to provide a lawful excuse for the liquor in question.

According to the transcript Ms Nudjulu had previous convictions for possession of alcohol contrary to the Liquor Act – and was currently subject to a suspended sentence. This meant that, in ordinary circumstances under the previous regime, she would be a prime candidate for a custodial sentence.

But, as Stipendiary Magistrate Melanie Little told the Court:

“Her Honour: Well she…I mean this just demonstrates how this legislation is not completely – look at this lady’s record, it’s inevitable she would have gone to gaol for this offence, absolutely inevitable, $2200 maximum penalty now. I wonder – I don’t understand Canberra, it just totally bewilders me.

…

Her Honour: Look at the record, look at it. How many, look, one, two – this is now her fourth bring liquor and she was on a suspended sentence. I wonder – it just – it seems to have accelerated and the message is out, isn’t it, there’s absolutely no deterrence anymore.”

And in sentencing Ms Nudjulu, Magistrate Little made her views on the practical effects of the NTER Act modifications to the NT Liquor Act clear as possible:

Her Honour: Ms Nudjulu, on 10 September you were in a car at 6 o’clock and the police stopped the car and there was other people there and quite a lot of alcohol was found. You said that 29 of those cans were beer, 29 375 ml cans of beer were yours, and you pleaded to guilty to bringing liquor into the community. The liquor and the vehicle was seized. You had no permit to have alcohol here. You said you bought it for yourself and you were in the – what’s called a prescribed area.

We used to call them restricted areas and the penalties were very significant, Ms Nudjulu, and as I mentioned had they been – under the old penalties and old regime you would be looking at a period of imprisonment today. The maximum penalty today is $2200 and I take that into account.

I take into account that you were told to keep out of trouble. This offence is not punishable by imprisonment so it’s not a breaching offence. I take into account that this now the fourth bring liquor, plus you’ve got other offences on your record. So it’s clear to me that you’re not taking any notice whatsoever of the rules, Ms Nudjulu.

I accept you have been trouble for some time since I put you on that suspended sentence, and I take that into account. You pleaded guilty the very first time in court so I take that into account as well. It’s not a small amount of alcohol, having said that it’s certainly not at the – completely at the upper end, but I take that maximum penalty to – to mean that – well I know that it covers all offences, control liquor, possess liquor, bring liquor, and I regard bringing liquor is at the upper end of the types of offences that are covered by the maximum penalty.

You’re convicted and fined $400, $40 levy, 28 days to pay. You’ll get a piece of paper explaining how to pay that money and – and how to get more to pay if you need that extra time. (emphasis added)

Canberra – weak as piss on grog and grog runners in the NT.