Hennessy, Nancy; Mark, Steve --- "Alcohol-Free Zones in New South Wales" [1991] AboriginalLawB 41; (1991) 1(51) Aboriginal Law Bulletin 16

Alcohol-Free Zones in New South Wales

by Steve Mark and Nancy Hennessy

The Local Government (Street Drinking) Amendment Act 1990 (the Act), which allows councils to declare "alcohol-free zones", has been in operation in New South Wales since March this year. While councils and hoteliers generally support the legislation, it has created controversy within community groups, particularly within the Aboriginal community.

Much of the controversy has stemmed from misconceptions about the legislation. Many people think that it is intended to reduce public consumption of alcohol and make streets attractive for tourists. These are not the aims of the legislation. Rather, it is designed to address irresponsible behaviour which arises from drinking in public. The Summary Offences Act 1988 (NS W) makes it an offence for a person to behave in an offensive manner or use offensive language in or near, or within view or hearing of, a public place or school. By preventing people from drinking in certain public areas, the Act aims to reduce the number of these kinds of offences.

The idea of alcohol-free zones or "dry areas" was first raised in NSW by local councils. Pressure to introduce the legislation increased as a result of a failed attempt by the Bourke Shire Council in 1990 to prosecute an Aboriginal person for street drinking under s.249(k) of the Local Government Act 1919. An ordinance made pursuant to that section purported to ban the consumption of alcohol in public streets. The court found that the ordinance was beyond the power given by the legislation and was therefore invalid. The Act was passed shortly afterwards.

Scope of the Act

The Act allows councils to declare alcohol-free zones which comply with guidelines issued by the Department of Local Government. Police must initially warn offenders drinking in the alcohol-free zone and, if the drinking persists they may confiscate the alcohol and fine the transgressor $20. No-one can be gaoled for drinking in an alcohol free zone.

A council can act on an application received from a representative of a community group, a police officer or a person who lives or works in the area. It cannot make the application itself. On receiving an application (sometimes many are received in relation to the same or similar areas) a council must decide whether it wishes to support it. If it does, it must publish that intention and invite representations. After this community consultation process has taken place, a council must inform the Anti-Discrimination Board (ADB), the local police and affected liquor licensees, that it intends to declare the designated area 'alcohol-free'. These groups are entitled to make submissions about whether they think the area should be declared "dry".

The ADB has received 24 submissions from councils for dry areas during the period from March to July, 1991. Wayne Cook, an Aboriginal Conciliation Officer at the Board, usually contacts Aboriginal people in the affected areas to find out whether they have been consulted and what their reaction to the proposal is. The Board usually writes to the council with any objections it might have and points out any breaches of the guidelines.

Dry areas in the Northern Territory

This is not the first time this type of legislation has been enacted in Australia. In 1983 an amendment to the Summary Offences Act in the Northern Territory was passed. That law prohibits the consumption of alcohol on unoccupied private land or in a public place within 2kms of any licensed liquor outlet. However, there are several exceptions. For example, certain picnic and barbecue areas popular with non-Aboriginal people were specifically exempted from these laws. Police can confiscate alcohol from anyone drinking within the 2km limit. The legislation which has overwhelming support from the white community, is seen by many Aboriginal people as an attempt to control Aboriginal drinking in towns with large Aboriginal populations. The Board is concerned that problems which have arisen with the N.T. legislation may be repeated in NSW.

Critics of the N.T. legislation argue that although it was supposedly designed to address the problem of excessive drinking in public places, its real purpose was to remove Aboriginal drinkers who were regarded as an embarrassment to those who were trying to promote tourism. Many councils in NSW give this as a reason for declaring alcohol-free zones. It is not a legitimate reason. The NSW guidelines provide that:

"It is not appropriate to consider an alcohol-free zone for reasons that are unrelated to their responsible behaviour of drinkers eg. the purely innocent congregation of any group of drinkers, general conduciveness to business or tourist activities or the personal beliefs of particular citizens."

Moving the problem around the corner

Not surprisingly, prohibited drinking in certain areas means that Aboriginal people will move to other areas to drink. The places available are restricted because;

• often Aboriginal people do not have access to private property near liquor outlets because they live out of town;
• some Aboriginal people do not meet the standard of dress required to enter public bars, because of poverty and cultural norms about dress;
• many Aboriginal people are "barred" from hotels and refused admission to clubs.

In Alice Springs these factors meant that many Aboriginal people either continued drinking in public places or moved to one of the "town camps". Although most of the river campers were from bush communities (mostly dry) they had relatives in at least one of the town camps. The migration of river drinkers to the town camps resulted in crowding, violence, house damage, tenant displacement, social disruption, widespread stress and an increased incidence of children drinking. The legislation did not curb public drunkenness.[1]

Through contact with local councils, the Board is trying to ensure that planning and consultation takes place with Aboriginal people and that, if appropriate, Aboriginal people have alternative places to drink.

Deterioration in Police/Aboriginal relations

In the first year of operation of the NT law, the arrest rate for Aboriginal people was four times higher than the previous year. This occurred despite the fact that the legislation did not give the police the power to arrest anyone for drinking within the 2km. There is no doubt that under the NSW legislation, the fact that police have the power to confiscate alcohol and impose a fine will increase the amount of contact police have with Aboriginal people. Police presence provides the opportunity for arrest on other grounds, such as offensive language or behaviour.

The Board is engaged in education programs with police to heighten awareness of racial issues.

Declaring the whole town dry

The NT legislation prohibits the consumption of alcohol within a 2km radius of a liquor outlet. The effect is to make large areas of towns, if not the whole town, dry. The NSW legislation attempts to restrict alcohol free zones to much smaller areas. The guidelines state that:

"Generally an alcohol-free zone should be as small as is possible and must only extend to areas which can be supported by (relevant) reasons...

Roads declared as alcohol-free zones will primarily be those adjacent to outlets supplying alcohol where drinkers congregate. In the absence of such an outlet a zoning should be considered only in exceptional circumstances."

The Board's experience has been that many councils attempt to declare the whole central business district of country towns alcohol-free. Similarly city councils have had applications for alcohol free zones in respect of the majority of a suburb. The Board has made several submissions to councils stressing that the guidelines do not permit this unless there are exceptional circumstances.

Indirect discrimination against Aboriginal people

The guidelines provide that:

"Certain proposed zones may have a particular impact on an identifiable Aboriginal or ethnic group. In such circumstances a council is to extend its written advice to any known organisation representing that group, or which is able to speak on behalf of that group, within its area, including advice of the right to respond."

When making submissions about proposed alcohol-free zones, one of the Board's concerns is to ensure that there is no real or perceived discrimination against Aboriginal people. Indirect discrimination can occur where the declaration of a zone has a greater impact on Aboriginal people than on other racial groups. In these cases, councils must be convinced that the declaration is reasonable despite this disproportionate impact. The fact that the declaration is authorised by legislation cannot be used as an excuse for acting in a discriminatory way.

With the limited resources it has available, the ADB has attempted to educate councils, hoteliers, Aboriginal people and the community about the issues involved in this legislation. Fact sheets for councils, hoteliers and Aboriginal people have been produced to tell these groups what their rights and obligations are. However, despite these efforts the Board is concerned that many local government councillors are dismissive of Aboriginal interests in the administration of the legislation.

Kings Cross - A case study

Over 50 individual applications have been received by the South Sydney Council for alcohol free zones. If all these applications resulted in an alcohol free zone being declared, it would have covered virtually the entire police patrol area from Wooloomooloo to Rushcutters Bay; from Potts Point to Surry Hills. This would have amounted to a serious breach of the guidelines.

The police at Kings Cross called a series of meetings to address these issues. Local hoteliers,, business people, residents and representatives from South Sydney Council and the ADB attended. These meetings revealed that there is a great deal of misunderstanding about the legislation and its aims. After lengthy constructive debate the group decided to declare a small area of Kings Cross alcohol free and to assess the impact of this declaration after a trial period. The Board is hopeful that this kind of community consultation and planning will provide a model for other councils considering the declaration of alcohol-free zones.

The Anti-Discrimination Board's Impressions

In assessing and commenting on the applications received, the Board has been concerned that many fail to comply with the guidelines established by the NSW Department of Local Government. These guidelines are binding. Non-compliance would make the declared zone invalid. There are two significant breaches of the guidelines which are frequently occurring. The first is that the proposed areas are not primarily those adjacent to liquor outlets, but much larger areas. The second is that there is not adequate consultation with Aboriginal people. This may be due to ignorance and misconceptions on the part of councils. It is the Board's aim to educate councils and dispel their misconceptions so that the legislation is not used in a way which has a disproportionate impact on Aboriginal people.

[1] Divakaran-Brown, C. et. al. "Legislation is not the solution, what is the problem: Aboriginals speak out against dry areas", Combined Aboriginal Health Services Conference, Adelaide, 1986.