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2010-2011-2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
STRONGER FUTURES IN THE NORTHERN TERRITORY BILL 2012
REVISED EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Families, Community Services and Indigenous Affairs,
Minister for Disability Reform, the Hon Jenny Macklin MP)
STRONGER FUTURES IN THE NORTHERN TERRITORY BILL 2012
OUTLINE
The Stronger Futures in the Northern Territory Bill 2012 is a Bill for an Act to
build stronger futures for Aboriginal people in the Northern Territory. Its object
is to support Aboriginal people in the Northern Territory to live strong,
independent lives, where communities, families and children are safe and
healthy.
The Bill comprises three measures aimed at building stronger futures for
Aboriginal people in the Northern Territory. These are the tackling alcohol
abuse measure, the land reform measure and the food security measure.
The Government considers that these are special measures within the
meaning of section 8(1) of the Racial Discrimination Act 1975 (Racial
Discrimination Act). The Bill is being enacted to address specific Aboriginal
disadvantage and help Aboriginal people to enjoy their human rights equally
with others in the Australian community. The object clauses relating to each
of these measures reflect that intention. The Bill is intended to operate, and
to be construed, consistently with the Racial Discrimination Act.
The measures in the Bill have been developed taking into account the views
of the Aboriginal people expressed during the extensive consultation process
following the release of the Stronger Futures in the Northern Territory
Discussion Paper in June 2011. The results of these consultations were
published in the Stronger Futures in the Northern Territory Report on
Consultations in October 2011.
All measures in the Bill will be the subject of an independent review of the first
seven years of operation. The review must include an assessment of the
effectiveness of the special measures. The report of that review must be
completed eight years after the measures commence and must be tabled in
Parliament. All measures will sunset after 10 years of operation.
Tackling alcohol abuse measure
The object of the tackling alcohol abuse measure is to enable special
measures to be taken to reduce alcohol-related harm to Aboriginal people in
the Northern Territory. The continued harm caused by alcohol abuse was a
consistent theme that arose from the 2011 Stronger Futures in the Northern
Territory consultations, especially the harm to communities, families and
children. The consultation feedback noted that the harm caused by alcohol
included accidents, deaths and health problems in communities. There were
also discussions about the alcohol restrictions in place in communities. Many
Aboriginal people in communities indicated that they wanted to maintain their
`dry' status.
1
Existing alcohol protections will be preserved in `alcohol protected areas' with
additional provisions that enable the geographic areas covered by these
protections to be changed over time and for local solutions to be developed.
This Bill includes new provisions for the Commonwealth Minister for
Indigenous Affairs to approve alcohol management plans. This allows for
communities to play an active role in continuing to reduce alcohol-related
harm, and to tailor a solution specific to the community's needs.
The Bill provides that any signs relating to alcohol restrictions must be
respectful to Aboriginal people.
The Bill provides for an independent review to be carried out by the relevant
Northern Territory Minister and Commonwealth Minister for Indigenous Affairs
in relation to various laws of each jurisdiction, to assess the effectiveness of
those laws in reducing alcohol-related harm amongst Aboriginal people in the
Northern Territory. The review is to report within three years of
commencement of the relevant provisions. The Bill also provides that, where
the Commonwealth Minister for Indigenous Affairs has reasonable grounds to
believe that particular licensed premises are linked to substantial alcohol-
related harm to Aboriginal people, the Commonwealth Minister for Indigenous
Affairs will be able to request the Northern Territory Government to appoint an
assessor under the Northern Territory's Liquor Act to examine those
premises.
Land reform measure
The land reform measure enables the Commonwealth to make amendments
to Northern Territory legislation relating to community living areas and town
camps to facilitate voluntary long term leasing, including for the granting of
individual rights or interests and the promotion of economic development.
This will enable opportunities for private home ownership in town camps and
more flexible long term leasing including for business activity in community
living areas.
The measure gives effect to the Commonwealth's commitment to provide a
platform for secure tenure which then can enable economic development and
home ownership opportunities in Aboriginal communities. The approach is
consistent with the Commonwealth's commitment to voluntary lease
arrangements on Aboriginal land.
Food security measure
The object of this measure is to enable special measures to be taken for the
purpose of promoting food security for Aboriginal communities in the Northern
Territory. In particular, this measure is intended to enhance the contribution
currently made by the community stores licensing system to continue to
improve access to fresh, healthy food.
2
The Bill recognises that community stores differ greatly and that the regulation
of the store should be tailored to its individual circumstances. Community
stores licensing will only apply to stores that are an important source of food,
drink or grocery items for an Aboriginal community. Community stores
licensing will not apply in areas that are major centres of the Northern
Territory where there is adequate competition and choice in the supply of
food, drink and grocery items.
Existing licences will be transitioned. Communities will be consulted before a
decision is made as to whether any further stores should be required to hold a
licence. A new penalty regime will operate, under which penalties may be
imposed on community stores if they are required to hold a licence but fail to
do so, or where a store breaches a condition of its licence.
FINANCIAL IMPACT STATEMENT
The financial impact of this Bill is $86.5 million over ten years from
1 July 2012, comprising $45.6 million to implement the Tackling Alcohol
Abuse measure and $40.9 million for implementing the food security measure.
REGULATION IMPACT STATEMENT
The regulation impact statement appears at the end of this explanatory
memorandum.
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STRONGER FUTURES IN THE NORTHERN TERRITORY BILL 2012
NOTES ON CLAUSES
Abbreviations used in this explanatory memorandum
� CATSI Act means the Corporations (Aboriginal and Torres Strait
Islander) Act 2006.
� Commonwealth Minister for Indigenous Affairs means the
Commonwealth Minister for Families, Housing, Community Services
and Indigenous Affairs.
� Crown Lands Act means the Crown Lands Act as in force in the
Northern Territory.
� Liquor Act means the Liquor Act as in force in the Northern Territory.
� Liquor Regulations means the Liquor Regulations as in force in the
Northern Territory.
� NTER means the Northern Territory Emergency Response.
� NTNER Act means the Northern Territory National Emergency
Response Act 2007.
� Racial Discrimination Act means the Racial Discrimination Act 1975.
� Secretary means the Secretary of the Department of Families,
Housing, Community Services and Indigenous Affairs.
� Special Purposes Lease Act means the Special Purposes Lease Act
as in force in the Northern Territory.
� Stronger Futures Consultation Report means the Stronger Futures
in the Northern Territory Report on Consultations of October 2011.
1
Part 1 - Preliminary
Division 1 - Introduction
Clause 1 sets out how the Act is to be cited, that is, as the Stronger Futures
in the Northern Territory Act 2012.
Clause 2 provides a table that sets out the commencement dates of the
various provisions in the Act. Clauses 3 to 120 of the Act will commence on
Proclamation. Commencement on Proclamation will allow rules to be made
under the new legislation to stipulate essential application matters, such as
the areas in which the new measures will apply. If no earlier Proclamation is
made, then clauses 3 to 120 will commence six months and one day after
Royal Assent.
Clause 3 provides a guide to the Act.
Clause 4 outlines that the object of this Act is to support Aboriginal people in
the Northern Territory to live strong, independent lives, where communities,
families and children are safe and healthy.
Division 2 - The Dictionary
Clause 5 defines certain terms that are used in the Act. In this explanatory
memorandum, the defined terms will be addressed in the context in which
they appear.
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Part 2 - Tackling alcohol abuse
Summary
The proposed tackling alcohol abuse measure preserves area-based alcohol
restrictions currently in place under the NTNER Act. The Bill provides for the
Commonwealth Minister for Indigenous Affairs to approve alcohol
management plans and for communities to develop these plans with a focus
on the needs of their individual community. The Bill also provides for the
appointment of Northern Territory licensing assessors to report on any
premises where alcohol can be sold or consumed and that may be causing
substantial alcohol-related harm. In addition, the Bill provides for an
independent review of the relevant laws relating to alcohol regulation to be
started within two years of commencement of the Bill.
Background
The Stronger Futures Consultation Report noted that there is general support
for alcohol restrictions in communities. People living in dry communities
generally want their communities to remain dry. Suggestions relating to the
improvement of the alcohol restrictions included more effective regulation of
licensees whose operations were impacting on levels of alcohol-related harm
in communities, and providing permits that allow people to consume alcohol in
private venues or to transport alcohol through communities. There were also
suggestions for methods to reduce the supply of alcohol, including: total bans
on alcohol sales, including takeaway; limiting the amount of alcohol that could
be sold to people from particular communities; and closing down irresponsible
outlets.
The tackling alcohol abuse measure proposes various initiatives to tackle
alcohol-related harm to Aboriginal people. These initiatives include: a review
of the relevant Commonwealth and Northern Territory alcohol and licensing
laws, in relation to alcohol regulation aimed at reducing alcohol-related harm
to Aboriginal people; enabling the Commonwealth Minister for Indigenous
Affairs to request that Northern Territory licensing assessors assess premises
that sell, or allow for the consumption of alcohol, where there is concern that
they are contributing to alcohol-related harm to Aboriginal people; retaining
current alcohol restrictions in Aboriginal communities including offences
arising from those restrictions; and a strengthening of alcohol management
plans to help bring about local solutions for Aboriginal communities that are
focused on harm minimisation.
The Government considers that the tackling alcohol abuse measure is a
special measure under the Racial Discrimination Act. The stated object of the
measure is to enable special measures to be taken to reduce alcohol-related
harm to Aboriginal people in the Northern Territory. The Government
considers that this measure will assist in addressing the social, economic and
health issues that affect Aboriginal people in relation to alcohol-related harm.
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Part 2 - Tackling alcohol abuse
Explanation of the changes
Division 1 - Introduction
Clause 6 sets out the guide to Part 2 of the Bill (that is, the alcohol
provisions).
Clause 7 sets out the object of Part 2, which is to provide special measures
that help to reduce alcohol-related harm to Aboriginal people in the Northern
Territory.
Division 2 - Modification of the NT Liquor Act and NT Liquor
Regulations in relation to alcohol protected areas
Clause 8 inserts a new Division 1AA of Part VIII into the Liquor Act, which
creates offences in relation to liquor within alcohol protected areas. It has
stronger penalties of 100 penalty units or six months' imprisonment for
offences involving bringing into, possessing, consuming, supplying or
transporting less than 1,350 millilitres. Offences involving more than
1,350 millilitres continue to be punishable by a maximum of 680 penalty units
or 18 months' imprisonment. The intention is that having alcohol within an
alcohol protected area is to be treated as a significant offence.
It should be noted that there is an alternative process available under the
Liquor Regulations for the issue of penalty infringement notices for minor
offences. This process is available under this legislation by virtue of clause 9.
Further, there is the option to refer an offender to the Substance Misuse
Assessment and Referral for Treatment Court. This clause provides that the
Liquor Act has effect as if Division 1AA of Part VIII, set out in this clause, were
inserted into the Liquor Act. Division 1AA of Part VIII operates as follows.
Subsection 75A(1) sets out a number of definitions that are used in
this Division.
Subsection 75A(2) provides that Part IIAA of the Criminal Code as in
force in the Northern Territory applies to an offence contained in this
Division. This means that the offences contained in this Division must
be done by a person with a certain level of mental intent or
recklessness before a person can be convicted.
Subsection 75A(3) provides that anything done in the normal course
of a postal service will not create an offence under this Division. The
provision will enable postal services to be maintained in alcohol
protected areas without the potential for people providing those
services to be prosecuted under the provisions of this clause.
However, this only applies in relation to anything done in the normal
course of the provision of a postal service. It will only apply to official
postal services and not to any carriage of goods outside an official
postal service.
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Part 2 - Tackling alcohol abuse
Subsection 75B(1) provides that a person commits an offence in an
alcohol protected area if the person brings in liquor, has liquor in his or
her possession or control, or consumes liquor in the alcohol protected
area.
The maximum penalty for an offence is 100 penalty units or
imprisonment for six months.
Subsection 75B(2) provides a defence to a prosecution for an offence
under subsection 75B(1). If the defendant was engaged in recreational
boating or commercial fishing activities on waters in an alcohol
protected area, then the defence will apply, subject to
subsection 75B(3). It is recognised that alcohol protected areas will
include land covered by water, for example, rivers and estuaries. In
many instances, Aboriginal land (and, therefore, the alcohol protected
area) is defined as going to the low water mark. Therefore the area
between the low water mark and the high water mark (that is, inter-tidal
waters) would be alcohol protected areas in such circumstances.
It is intended that this defence will only be available where the boat
carrying the alcohol enters the alcohol protected area from an area
outside that alcohol protected area. The boat must be a kind of vessel
used in navigation by water (see subsection 75A(1)). The boat must be
on water. It is intended that recreational or commercial use of boats
not be restricted by the alcohol ban, but nor should boats be permitted
to become part of schemes to circumvent the alcohol ban. Alcohol
cannot be brought over an alcohol protected area to supply a boat.
This defence does not allow drinking on land such as from river banks
or beaches.
Subsection 75B(3) provides that the defence allowed in
subsection 75B(2) will not be available where the prosecution can show
that the alleged conduct occurred in an area covered by a declaration
made under subsection 75D(1).
Subsection 75B(4) provides that it is a defence to a prosecution for an
offence under subsection 75B(1) (bringing liquor into, possessing or
controlling liquor in, or consuming liquor within, an area) if certain
criteria are met. Under paragraph (a), the defendant must be engaged
in recreational activities. Paragraph (b) requires the recreational
activities to have been organised by a person in the tourist business.
Paragraph (c) requires that, if the area is a National Park or Northern
Territory Park, the recreational activities are consistent with any
management plan or similar document created for that park.
Paragraph (d) requires that, if alcohol is consumed, the defendant must
have been behaving in a responsible manner.
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Part 2 - Tackling alcohol abuse
Subsection 75B(5) provides a defence to a prosecution under
subsection 75B(1) for a person who is bringing alcohol into an alcohol
protected area for the purposes of other people engaging in conduct
under which those other people could claim a defence under
subsection 75B(4).
Subsection 75B(6) provides that the defence allowed in
subsection 75B(4) or (5) will not be available where the prosecution
can show that the alleged conduct occurred in an area not covered by
a declaration made under subsection 75D(2).
Subsection 75B(7) provides that it is a defence to a prosecution for an
offence under subsection 75B(1) (bringing liquor into, possessing or
controlling liquor in, or consuming liquor within, an area) if the conduct
only occurred due to the person having to render assistance in an
emergency to preserve life, prevent injury or to protect property.
Subsection 75C(1) provides that a person commits an offence in a
alcohol protected area if the person:
� supplies liquor to a third person;
� transports liquor intending to supply any of it, or believing that
another person intends to supply any of it, to a third person; or
� possesses liquor intending to supply any of it to a third person,
and the third person is in an alcohol protected area.
The maximum penalty for an offence is 100 penalty units or six months
imprisonment.
Subsection 75C(2) provides a defence to a prosecution for an offence
under subsection 75C(1). It is the same defence as contained in
subsection 75B(2) for offences committed under subsection 75B(1),
that is, the defence of recreational boating or commercial fishing
activities.
Subsection 75C(3) provides that the defence allowed in
subsection 75C(2) will not be available where the prosecution can
show that the alleged conduct occurred in an area covered by a
declaration made under subsection 75D(1).
Subsection 75C(4) provides a defence if the defendant and the person
supplied, or to be supplied, were engaged in recreational activities in a
National Park or a Northern Territory park. The recreational activities
must be organised by someone in the tourist business. If the area is a
park and if a management plan or similar document for the park exists,
the recreational activities must be consistent with that.
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Part 2 - Tackling alcohol abuse
Subsection 75C(5) provides a defence to a prosecution under
subsection 75C(1) for a person who is bringing alcohol into an alcohol
protected area for the purposes of other people engaging in conduct
under which those other people could claim a defence under
subsection 75C(4).
Subsection 75C(6) provides that the defence allowed in
subsection 75C(4) or (5) will not be available where the prosecution
can show that the alleged conduct occurred in an area not covered by
a declaration made under subsection 75D(2).
Subsection 75C(7) provides that, where a person commits an offence
in the same terms as in subsection 75C(1) but the amount of alcohol
involved exceeds 1,350 millilitres, the penalty is 680 penalty units or
imprisonment for 18 months. The serious penalties in relation to larger
scale offences aim to reduce the flow of liquor into Aboriginal
communities and target those profiting from unlawful transportation of
the sale of liquor in Aboriginal communities.
Subsection 75C(8) provides that a person who can prove that he or
she did not have an intention or belief that the alcohol was to be
supplied to another person as provided in paragraph 75C(7)(b) will not
be subject to the higher range of penalties.
Subsection 75C(9) provides that it is a defence to a prosecution for an
offence under subsection 75C(1) if the conduct only occurred due to
the person having to render assistance in an emergency to preserve
life, prevent injury or to protect property.
Subsection 75D(1) provides that a ministerial declaration may be
made which precludes the use of the recreational boating defence if
necessary. Where concerns arise that the alcohol bans are being
subverted by use of the recreational boating defence in particular
areas, the subclause enables the removal of the defence in those
particular areas.
Subsection 75D(2) provides that the Commonwealth Minister for
Indigenous Affairs may declare that a specified area of land or waters
in an alcohol protected area is an area to which a defence under
subsection 75B(4), 75B(5), 75C(4) or 75C(5) is available. The intention
is that people undertaking organised tourist activities in an alcohol
protected area would be able to avail themselves of the defences in
those subsections if the area is covered by a ministerial declaration.
Subsection 75D(3) provides that a ministerial declaration under
subsection 75D(1) or (2) is a legislative instrument for the purposes of
the Legislative Instruments Act.
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Part 2 - Tackling alcohol abuse
Section 75E provides that, while an area is declared under
subsection 75D(1) the Northern Territory Licensing Commission may, if
it is practicable to do so, put up notices where a customary access
route enters the area, stating that a defence under subsections 75B(2)
and 75C(2) is not available in relation to the area. Additionally, the
Commission may advertise in a newspaper circulated in a relevant area
that a defence under subsection 75B(2) or 75C(2), that is, the defence
of recreational boating or commercial fishing, is not available in relation
to that area. This means that people will not be able to take alcohol
into the declared area while engaging in recreational boating or
commercial fishing.
Subsection 75F(1) provides that a person commits an offence if he or
she removes or damages a notice explaining an alcohol ban, that is, a
notice posted under subclause 14(3). The maximum penalty for an
offence against this provision is five penalty units.
Subsection 75F(2) provides a defence for actions which would
otherwise fall within subsection 75F(1) that were performed as part of a
person's duties.
Clause 8 should be read together with clauses 12 and 13, under which
existing provisions in the Liquor Act, for granting licences and permits to
access alcohol in alcohol protected areas, may continue to apply on the land
affected. Individual people within the alcohol protected areas may apply for a
permit under section 87 of the Liquor Act, as was allowed before these
measures were introduced.
The burden of proving defences, at least on the balance of probabilities,
provided for in new Division 1AA of Part VIII rests with the defendant. While
this seems to be contrary to usual principles, it is consistent with similar
provisions in the Liquor Act. It is not intended that it should be easier, or
harder, for a person to raise defences to the offences in new Division 1AA of
Part VIII than it is for similar offences already existing in the Liquor Act.
Clause 9 provides that the prohibitions and offences under the Liquor Act,
which are applicable to general restricted areas, will also apply in all alcohol
protected areas in the Northern Territory.
Subclause 9(2) provides that any amendment to a Northern Territory law, or
any action taken under such a law, is invalid to the extent that it prevents any
alcohol protected area from being considered to be a general restricted area
for the purposes of the Liquor Act.
Clause 10 relates to seizure of vehicles. It provides that the Liquor Act should
be read as containing new section 95A. Its purpose is to ensure that a
community is not disadvantaged by vehicle seizures resulting from the acts of
individuals who might bring alcohol into an alcohol protected area using an
asset intended for the benefit of a community. The types of vehicle covered
by this measure include night patrol vehicles and community buses.
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Part 2 - Tackling alcohol abuse
Section 95A provides that an Inspector of Licensed Premises
appointed under section 18 of the Liquor Act in deciding whether to
seize a vehicle, under section 95, must have regard to whether the
main use of the vehicle is for the benefit of a community as a whole
and the hardship that might be caused to the community by the seizure
of the vehicle.
Clause 11 provides that the Liquor Regulations have effect as if an offence
under new subsection 75F(1) (that is, defacing or damaging signs) was an
infringement offence for the purposes of those Regulations.
Part 3 of the Liquor Regulations provides a system of infringement notices.
Infringement notices may be issued by a police officer if the police officer
reasonably believes that an offence has been committed. The amount
payable for an infringement notice is $100. If a person issued with an
infringement notice does nothing in response to the notice, a range of
sanctions may be utilised, which include making a community work order.
Individuals can contest an infringement notice by electing to have the matter
dealt with in a court.
Division 3 - Modification of the NT liquor licences and NT liquor permits
in force in alcohol protected areas
Clause 12 confers on the Commonwealth Minister for Indigenous Affairs the
authority to determine whether licences for premises within existing general
restricted areas (as defined in section 4 of the Liquor Act) should be allowed
to continue or should have their conditions modified.
Subclause 12(1) has effect if, immediately before the commencement of this
Part, a licence under the Liquor Act was in force within a particular alcohol
protected area.
Subclause 12(2) provides that, subject to this clause, the licence continues to
have effect on the terms on which it was issued. Nothing in this provision
prevents the NT Licensing Commission from cancelling a licence as it
otherwise is entitled to under the Liquor Act.
Subclause 12(3) provides that licence holders in alcohol protected areas
must not make sales of takeaway alcohol unless the purchaser holds a permit.
The permit must be valid for the alcohol protected area and allow for the
purchase of takeaway alcohol. Permits are issued under section 87 of the
Northern Territory Liquor Act.
Subclause 12(4) provides that the Commonwealth Minister for Indigenous
Affairs may give a notice to a licensee in an alcohol protected area (and to the
Commission) prohibiting the sale of alcohol for consumption on the premises
or away from the premises.
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Part 2 - Tackling alcohol abuse
Subclause 12(5) provides that the Commonwealth Minister for Indigenous
Affairs can determine conditions of a licence are varied as specified in a
notice in writing given to the licensee and the Northern Territory Licensing
Commission.
A note to each of subclauses 12(4) and (5) points out that the Minister must
follow the procedure set out in clause 13A before making a determination
under either of these subclauses.
Subclause 12(6) provides that, where the Commonwealth Minister for
Indigenous Affairs gives a notice under either subclause 12(4) or (5) then at
least 14 days notice must be given to the licence holder of the change to their
licence.
Subclause 12(7) provides that, if a determination is made under
subclause (4) or (5), the Liquor Act and the licence has effect accordingly.
Subclause 13(1) provides that a permit issued under section 87 of the Liquor
Act (that is, a permit enabling a person in a general exemption area which will
become a alcohol protected area under this Part to possess or consume
alcohol in that area), whether before or after the commencement of this Part,
is subject to this Bill.
Subclause 13(2) provides that, subject to this clause, the permit continues to
have effect on the terms on which it was issued. Nothing in this provision
prevents the Northern Territory Licensing Commission from cancelling a
permit as it otherwise is entitled to under the Liquor Act.
Subclause 13(3) provides that the Commonwealth Minister for Indigenous
Affairs may, by notice in writing given to the permit holder, determine that the
permit does not authorise a person to:
� bring liquor into;
� have liquor in his or her possession or under his or her control
within; or
� consume liquor within,
an alcohol protected area.
Subclauses 13(4) and (5) provides that the Commonwealth Minister for
Indigenous Affairs may, by notice in writing given to the permit holder,
determine that the conditions of the permit are varied in a way specified in the
notice from a time not earlier than 14 days after the notice is issued.
A note to each of subclauses 13(3) and (4) points out that the Minister must
follow the procedure set out in clause 13A before making a determination
under either of these subclauses.
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Part 2 - Tackling alcohol abuse
Subclause 13(6) provides that, if a determination is made under
subclause 13(3) or (4), the Liquor Act and the permit have effect accordingly.
The Northern Territory Licensing Commission has issued permits to people to
allow them and their guests to consume liquor within a general restricted area.
It is proposed that those permits be reviewed. If it is considered necessary in
order to give full effect to efforts to reduce consumption of liquor within alcohol
protected areas, it may be necessary to withdraw or vary the permit while the
area is an alcohol protected area. Clause 13 will enable the Commonwealth
Government to give effect to such measures.
Clause 13A sets out the procedure that must be followed by the Minister
before making a determination under new subsection 12(4), 12(5), 13(3)
or 13(4) to modify a liquor licence or permit. The procedure is that the
Minister must consult the Northern Territory Minister and Northern Territory
Licensing Commission by giving them a notice describing the proposed
modification and inviting written comments. Any written comments must be
given within the specified consultation period. In making the determination,
the Minister must have regard to any comments given in accordance with this
procedure.
Division 4 - Notices about alcohol offences in alcohol protected areas
Subclause 14(1) provides that the Northern Territory Licensing Commission
may determine that notices should be put up at:
� the place where a customary access route enters the area; and
� the customary departure locations for aircraft flying into the area,
informing the public that it is an offence to bring liquor into the area, be in
possession or control of liquor in the area, or consume, sell or otherwise
dispose of liquor within an area that is an alcohol protected area, and also
setting out any other information that the Commission considers appropriate.
Customary access route in this sense means usual or commonly used routes
including roads or tracks. In some cases it may be a river or other water way.
Subclause 14(2) provides that any notice put up in accordance with
subclause 14(1) must be respectful of Aboriginal people. To ensure that the
wording of the notice is respectful, the Commission must consult with people
living in the area under subclause 14(5).
Subclause 14(3) provides that the Commission must put up a notice at the
places mentioned in subclause 14(1) if a determination is in force under that
subclause.
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Part 2 - Tackling alcohol abuse
Subclause 14(4) provides that, where the Commission has made a
determination under subclause 14(1) in relation to an alcohol protected area,
the Commission may cause a notice to be published in a newspaper,
circulated in the district where that alcohol protected area is situated, which
sets out that it is an offence bring liquor into, to be in possession or control of
liquor, or to consume or sell liquor within a described area. The notice may
also specify any other information that the Commission considers appropriate.
Subclause 14(5) provides that, before making a determination under
subclause 14(1), the Commission must consult people living in the area in
regard to the making of the determination or in relation to the wording of the
notice.
Subclause 14(6) provides a number of factors that the Commission must
have regard to before making a determination under subclause 14(1).
Subclause 14(7) provides that the Commission may revoke a determination
that it has made under subclause 14(1).
Clause 14 has similarities to section 85 of the Liquor Act. The effect of
clause 14 is to place a similar obligation on the Northern Territory Licensing
Commission in respect of alcohol protected areas as currently applies for
general restricted areas. The purpose of posting the notices is to ensure that
people entering an alcohol protected area are aware of the offences in
relation to liquor that apply within the alcohol protected area and the penalties
that apply to an offence.
Division 5 - Assessments of licensed premises
Subclause 15(1) provides that the Commonwealth Minister for Indigenous
Affairs is able to make a request under subclause 15(2) in respect of particular
licensed premises (that is, to request than the Northern Territory Minister
appoint an assessor under the Liquor Act) where the Commonwealth Minister
for Indigenous Affairs believes that the sale of liquor is related to alcohol-
related harm to Aboriginal people and the Commonwealth Minister for
Indigenous Affairs has given the Northern Territory Minister 28 days notice of
the Commonwealth Minister for Indigenous Affairs' intention to make such a
request in relation to the premises in question.
Subclause 15(2) provides that the Commonwealth Minister for Indigenous
Affairs may request the Northern Territory Minister to appoint an assessor
under the Liquor Act to conduct an assessment of specific licensed premises
in a specified period and with the terms of reference specified by the
Commonwealth Minister for Indigenous Affairs.
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Part 2 - Tackling alcohol abuse
Subclause 15(3) provides that, if the Northern Territory Minister receives a
request made by the Commonwealth Minister for Indigenous Affairs under
subclause 15(2), then the Northern Territory Minister must appoint an
assessor to report, in the terms and in the time specified by the
Commonwealth Minister, on the licensed premises in question. The assessor
must then report as requested and the Northern Territory Minister must give
the Commonwealth Minister a copy of the report as soon as practicable after
the Northern Territory Minister receives the report.
Subclause 15(4) provides that subclause 15(3) does not apply if the Northern
Territory Minister declines the request on grounds stipulated under
subclause 15(5) and complies with the requirements in subclause 15(6).
Subclause 15(5) allows the Northern Territory Minister to decline a request
they believe that compliance with the request would place an undue financial
burden on the Northern Territory or would otherwise be inappropriate.
Subclause 15(6) states that, if the Northern Territory Minister does decline a
request made under subclause 15(5), then, within 28 days of receiving the
request, the Northern Territory Minister must give the Commonwealth Minister
for Indigenous Affairs a statement, setting out the Northern Territory Minister's
decision and the reasons for it, and publish the statement on the Northern
Territory Minister's website.
Subclause 15(7) provides that, if the Commonwealth Minister for Indigenous
Affairs receives a statement from the Northern Territory Minister in
accordance with subclause 15(6), then the Commonwealth Minister for
Indigenous Affairs may publish this statement on their website.
Division 6 - Alcohol management plans
Clause 16 provides for the application process for the approval of an alcohol
management plan. The rationale for Ministerial approval of plans as a whole
derives from the fact that the previous arrangements resulted in only those
proposals in an alcohol management plan which would require a
Determination were brought to the attention of the Commonwealth Minister for
Indigenous Affairs. In deciding whether to approve an alcohol management
plan, the Commonwealth Minister for Indigenous Affairs must now review and
consider all elements of an alcohol management plan, such as rehabilitation,
service provision and education, not merely proposals that would require the
Commonwealth Minister for Indigenous Affairs to lift restrictions if the plan
were approved. The revised approach is designed to ensure that the
Commonwealth Minister for Indigenous Affairs and communities can be
assured that alcohol management plans are directed at minimising alcohol
related harm.
Subclause 16(1) provides that a person may apply for approval of an alcohol
management plan if they lodge a written application in accordance with
clause 16.
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Part 2 - Tackling alcohol abuse
Subclause 16(2) provides that the application for approval of an alcohol
management plan must be in the form prescribed by the rules (if any has been
prescribed), be accompanied by the alcohol management plan and include
any information or be accompanied by any other documents as are prescribed
by the rules.
Subclause 16(3) provides that the alcohol management plan that
accompanies an application must be in the form and include any information
prescribed by the rules.
Subclause 16(4) provides that an application made under paragraph 16(1)(a)
is lodged, for the purposes of this provision, if it is delivered to a person
performing duties at a place prescribed by the rules, or in a manner and to a
place prescribed by the rules. Alternatively, the application can be delivered
to a person approved for this purpose by the Secretary.
Subclause 17(1) provides that the Commonwealth Minister for Indigenous
Affairs must determine whether or not to approve an alcohol management
plan where an application has been made under subclause 16(1).
The Commonwealth Minister for Indigenous Affairs cannot approve an alcohol
management plan where the plan does not meet the requirements of for an
alcohol management plan that are prescribed by the rules (subclause 17(3)).
One of the purposes of the rules is to enable the Commonwealth Minister for
Indigenous Affairs to establish minimum standards or criteria for alcohol
management plans.
In deciding whether or not to approve an alcohol management plan,
subclause 17(2) provides that the Commonwealth Minister for Indigenous
Affairs must have regard to the object of this Part, together with any matter
prescribed by the rules and any other matters the Commonwealth Minister for
Indigenous Affairs considers relevant.
Subclauses 17(4) and (5) provide that, while not limiting the power of refusal,
the Commonwealth Minister for Indigenous Affairs can refuse approval of an
alcohol management plan, in particular, if the Commonwealth Minister for
Indigenous Affairs does not receive sufficient documents, material or
assistance to be able to make an informed decision.
Subclauses 17(6) and (7) provide that the Commonwealth Minister for
Indigenous Affairs is not required to make a determination to approve an
alcohol management plan where the Commonwealth Minister for Indigenous
Affairs is satisfied that people living in the area have not been sufficiently
consulted about the plan or a majority of those people do not support the plan
and the Commonwealth Minister for Indigenous Affairs gives written notice of
such to the applicant, including the reasons for making the decision.
However, this provision does not restrict their ability to approve a plan,
notwithstanding the absence of either or both of these factors.
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Part 2 - Tackling alcohol abuse
Subclause 18(1) provides that, if the Commonwealth Minister for Indigenous
Affairs proposes to refuse to approve an application for an alcohol
management plan, then the Commonwealth Minister for Indigenous Affairs
must give the applicant written notice to this effect.
Subclause 18(2) provides that a notice given by the Commonwealth Minister
for Indigenous Affairs under subclause 18(1) must specify the reasons why
approval may be refused, invite the applicant to make written submissions in
relation to issues set out in the notice, and specify the manner and time period
in which any submission must be lodged.
Subclause 18(3) provides that, for the purposes of subclause 18(2), any
submission period must be at least 10 business days after the day on which
the notice is given.
Subclause 18(4) provides that the Commonwealth Minister for Indigenous
Affairs cannot refuse approval of an application for an alcohol management
plan unless written notice has been given to the applicant and the
Commonwealth Minister for Indigenous Affairs has considered any
submission received during the relevant submission period.
Clause 19 provides that the period during which an approval of an alcohol
management plan is in force starts on the day specified in the approval or, if
no specification is made, the day the approval was granted and continues until
either the day specified in the approval, until the approval is revoked, or the
day this Act ceases to have effect, whichever is the later.
Clause 20 provides that the Commonwealth Minister for Indigenous Affairs
must give written notice to the applicant in relation to whether or not approval
of the alcohol management plan has been given. Where approval has been
refused, the Commonwealth Minister for Indigenous Affairs must specify the
reasons for that refusal.
Clause 21 provides that, where an alcohol management plan has been
approved, it cannot be varied unless there is approval of that variation under
subclause 23(1).
Subclause 22(1) provides that a person can apply for approval of a variation
to an approved alcohol management plan by either making an application in a
manner approved by the Secretary or by lodging a written application in
accordance with subclauses 22(2) and (3).
Subclause 22(2) provides that an application for variation of an approved
alcohol management plan must be in the form, include any information and be
accompanied by any documents as prescribed by the rules.
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Part 2 - Tackling alcohol abuse
Subclause 22(3) provides that an application made under subclause 22(1) is
lodged, for the purposes of this provision, if it is delivered to a person
performing duties at a place prescribed by the rules, or in a manner and to a
place prescribed by the rules. Alternatively, the application can be delivered
to a person approved for this purpose by the Secretary.
Subclause 23(1) provides that the Commonwealth Minister for Indigenous
Affairs may approve an application to vary an approved alcohol management
plan where an application has been made under subclause 22(1), by giving
written notice to the applicant.
In deciding whether or not to approve a variation to an approved alcohol
management plan, subclause 23(2) provides that the Commonwealth
Minister for Indigenous Affairs must have regard to the object of this Part
together with any matter prescribed by the Rules and any other matters the
Commonwealth Minister for Indigenous Affairs considers relevant.
Subclause 23(3) allows the Commonwealth Minister for Indigenous Affairs to
refuse to approve a variation of an alcohol management plan where the
applicant does not provide sufficient documents, material or assistance to
allow the Commonwealth Minister for Indigenous Affairs to make an informed
decision, without limiting the grounds on which the Commonwealth Minister
for Indigenous Affairs may refuse to vary an alcohol management plan
(subclause 23(4)).
Subclauses 23(5) and (6) provide that, if the Commonwealth Minister for
Indigenous Affairs does make a determination under subclause 23(1), then
written notice of that decision must be given to the applicant, including
reasons for refusal, where a decision has been made to refuse the application
for variation.
Subclause 23(7) provides that a determination made under subclause 23(1)
only takes effect on the day a notice is given under subclause 23(5), or on a
later date as specified in that notice.
Clause 24(1) allows the Commonwealth Minister for Indigenous Affairs to
revoke the approval of an alcohol management plan where the
Commonwealth Minister for Indigenous Affairs is satisfied that the plan has
not been complied with, the plan was varied without approval, or the plan is
ineffective in achieving the object of this Part.
Subclause 24(2) provides that, if the Commonwealth Minister for Indigenous
Affairs revokes an approval of an alcohol management plan, then a written
notice to this effect must be given to the nominated person; that is, the person
that the Commonwealth Minister for Indigenous Affairs considers is the most
appropriate person to notify.
Subclause 24(3) provides that the revocation of the approval of an alcohol
management plan takes effect on the day specified in the notice of revocation
or at the date the notice is given, whichever is the later.
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Part 2 - Tackling alcohol abuse
Subclause 25(1) provides that, if the Commonwealth Minister for Indigenous
Affairs proposes to refuse to approve the variation of an alcohol management
plan then the Commonwealth Minister for Indigenous Affairs must give the
applicant written notice to this effect.
Subclause 25(2) provides that, if the Commonwealth Minister for Indigenous
Affairs proposes to revoke an approved alcohol management plan, then the
Commonwealth Minister for Indigenous Affairs must give the nominated
person notice to this effect.
Subclause 25(3) provides that a notice given by the Commonwealth Minister
for Indigenous Affairs under either subclause 25(1) or (2) must specify the
reasons for the proposed revocation or why approval of the variation may be
refused. Additionally, the Commonwealth Minister for Indigenous Affairs must
invite written submissions in relation to issues set out in the notice, and
specify the manner and time period in which any submission must be lodged.
Subclause 25(4) provides that, for the purposes of subparagraph 25(3)(c)(i),
any submission period must be at least 10 business days after the day on
which the notice is given.
Subclause 25(5) provides that the Commonwealth Minister for Indigenous
Affairs cannot revoke or refuse approval of an application for variation of an
alcohol management plan unless written notice has been given either to the
nominated person or to the applicant, respectively, and the Commonwealth
Minister for Indigenous Affairs has considered any submission received during
the relevant submission period.
Clause 26 provides that, if the Commonwealth Minister for Indigenous Affairs
has approved an application for an alcohol management plan under
subclause 17(1), then the area covered by that plan will be known as a
community managed alcohol area.
Division 7 - Alcohol protected areas
Subclause 27(1) allows the Commonwealth Minister for Indigenous Affairs to
prescribe, in the rules, that certain areas in the Northern Territory are alcohol
protected areas for the purposes of this Part (that is, those areas are subject
to alcohol restrictions).
Subclause 27(2) provides that the Commonwealth Minister for Indigenous
Affairs can revoke a rule made for the purposes of subclause 27(1).
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Part 2 - Tackling alcohol abuse
Subclause 27(3) provides that, if the Commonwealth Minister for Indigenous
Affairs has approved an alcohol management plan under subclause 17(1) and
a rule has been made under subclause 27(1) in relation to all or part of the
area covered by the alcohol management plan, then the Commonwealth
Minister for Indigenous Affairs must consider whether or not to make a rule
under subclause 27(2), revoking a rule under subclause 27(1) in relation to
that area. That is, when an alcohol management plan has been approved by
the Commonwealth Minister for Indigenous Affairs, the Commonwealth
Minister for Indigenous Affairs must consider whether alcohol restrictions still
need to apply in respect of part or all of the area covered by the alcohol
management plan.
Subclause 27(4) provides that rules may be made for the purposes of
subclause 27(1) on the Commonwealth Minister for Indigenous Affairs' own
initiative, after approval of an alcohol management plan in relation to that area
or at the request of a person who is ordinarily a resident in the area in
question.
Subclause 27(5) provides that rules that may be made for the purposes of
subclause 27(2) may be made by the Commonwealth Minister for Indigenous
Affairs on his or her own initiative, after revocation of an alcohol management
plan in relation to that area, or at the request of a person who is ordinarily a
resident in the area in question.
Subclause 27(6) provides that, before the Commonwealth Minister for
Indigenous Affairs makes a rule under either subclause 27(1) or (2), the
Commonwealth Minister for Indigenous Affairs must ensure that information
about the proposal to make the rule, together with a short explanation of the
consequences if such a rule is made, have been made available in the area in
question. Additionally, the Commonwealth Minister for Indigenous Affairs
must also ensure that the people in the affected area have been given a
reasonable opportunity to make submissions to the Commonwealth Minister
for Indigenous Affairs about the proposal to make the rule, the consequences
if the rule is made and their circumstances, concerns and views in relation to
the making of the rule.
Subclause 27(7) provides that the requirement in subclause 27(6) (that is,
community consultation) does not apply in respect of a rule made on the basis
of the approval of an alcohol management plan. This is because there should
have already been sufficient community consultation prior to an alcohol
management plan being approved.
Subclause 27(8) provides that a failure by the Commonwealth Minister for
Indigenous Affairs to comply with subclause 27(6) does not affect the validity
of a rule made under either subclause 27(1) or (2).
Subclause 27(9) sets out a number of matters the Commonwealth Minister
for Indigenous Affairs must have regard to before making a rule under either
subclause 27(1) or (2).
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Part 2 - Tackling alcohol abuse
Subclause 27(10) provides that, if the Commonwealth Minister for Indigenous
Affairs makes a rule that means that an area that was an alcohol protected
area is no longer such, then this Part continues to apply to any actions, or
omissions, done in relation to that area when it was an alcohol protected area.
Division 8 - Independent review of Commonwealth and Northern
Territory laws relating to alcohol
Subclauses 28(1) and (2) provide that, two years after the commencement of
this Act, the Commonwealth Minister for Indigenous Affairs and the Northern
Territory Minister must cause an independent review to occur of a number of
different Commonwealth and Northern Territory laws, to assess their
effectiveness in reducing alcohol-related harm to Aboriginal people living in
the Northern Territory. The review will also report on whether any of the laws
listed should be amended or repealed to achieve this goal (including whether
the law is no longer needed) as well as any other matters specified by the
Commonwealth Minister for Indigenous Affairs and the Northern Territory
Minister.
Subclauses 28(3), (4), (5) and (6) provide that the review must be completed
and a report of the review prepared within three years of commencement of
this Act and that the Commonwealth Minister for Indigenous Affairs and
Northern Territory Minister will cause a copy of the report to be tabled in the
Commonwealth Parliament and Northern Territory Legislative Assembly,
respectively, within 15 days of those Ministers having received it.
Division 9 - Other matters
Clause 29 provides that, where the Commonwealth Minister for Indigenous
Affairs requests information relevant to the operation of this Part, the NT
Licensing Commission or the Director must take all reasonable steps to
provide that information. Clause 29 allows the Commonwealth Minister for
Indigenous Affairs to ask for information at any time.
Subclause 30(1) provides that the Liquor Act and the Liquor Regulations
have effect subject to the modifications in this Part in relation to an alcohol
protected area. This means that the Northern Territory legislation will still
have effect and will need to be read with this Bill to identify which provisions
are modified, for example, in relation to alcohol protected areas.
Subclause 30(2) provides that the Liquor Act and the Liquor Regulations
modified by this Part have effect as laws of the Northern Territory. In effect,
the Liquor Act and the Liquor Regulations are to be read as amended
accordingly.
Clause 31 provides that certain decisions made by the Commonwealth
Minister for Indigenous Affairs in relation to the administration of alcohol
management plans are subject to review by the Administrative Appeals
Tribunal.
19
Part 3 - Land reform
Summary
The land reform measure gives the Commonwealth power to make
regulations to amend Northern Territory legislation relating to community living
areas and town camps to facilitate voluntary dealings in land, including the
granting of individual rights or interests and promotion of economic
development.
Background
Part 3 of this Bill gives effect to the Government's commitment to provide a
platform for secure tenure, including economic development and home
ownership opportunities in Aboriginal communities.
During the Stronger Futures in the Northern Territory consultations, housing
discussions considered home ownership, including how to encourage greater
private home ownership. Similarly, during economic development and
employment discussions, questions were centred on improving business and
employment opportunities in Northern Territory remote communities. The
consultations reported that specific barriers to economic development should
be overcome including continued land reform.
Long term leasing of Aboriginal land under the Aboriginal Land Rights
(Northern Territory) Act 1976 can facilitate these goals. However, Northern
Territory legislation that provides for other forms of Aboriginal land -
community living areas and town camps - contains various restrictions and
procedural barriers that inhibit long term leasing.
The Bill allows the Commonwealth Government to make regulations that will
remove restrictions and barriers from Northern Territory legislation. The
regulation making powers contained in this Part do not limit the ability of the
Northern Territory Government to progress its own reforms in relation to these
matters. If Northern Territory reforms are implemented in a manner which
meets the Government's commitment to more flexible land tenure
arrangements, Commonwealth regulation will not be necessary.
The Government considers the land reform measure to be a special measure
for the purposes of the Racial Discrimination Act. The measure affords
Aboriginal people opportunities for home ownership and economic
development; conferring improved property rights and allowing similar
opportunities that other Australians already experience.
20
Part 3 - Land reform
Explanation of the changes
Division 1 - Introduction
This Division inserts a guide to the structure of Part 3 and an object provision.
The object of Part 3 is to enable special measures to be taken in relation to
town camps and community living areas to facilitate the granting of individual
rights or interests and promote economic development.
Division 2 - Town camps
Town camps are areas of land covered by leases in perpetuity granted to
Indigenous Housing Associations or Corporations under the Northern
Territory's Special Purposes Leases Act or the Crown Lands Act.
Currently this Northern Territory legislation contains restrictions on the
subdivision of leases in town camps and the permitted use or purpose of any
leases granted over land that is part of a town camp.
This Part specifically provides for a Commonwealth regulation-making power
that will enable the modification of Northern Territory legislation in relation to
land covered by leases granted under the Special Purposes Leases Act or the
Crown Lands Act.
Clause 34 is a regulation-making power that allows Northern Territory laws to
be modified to the extent that the law applies to a town camp. The regulation-
making power allows for the overcoming of restrictions and impediments
relating to dealings, planning and infrastructure on town camp land for the
benefit of Aboriginal people.
Future models for home ownership and economic development in town
camps, developed in consultation with the relevant stakeholders, are able to
be implemented.
Any regulation made under this measure is taken to have modified the
relevant Northern Territory law and that modified law is to apply as if a law of
the Northern Territory had made those modifications. This does not prevent
the Northern Territory from concurrently using its legislative powers in relation
to the same matters in town camps.
In addition, because a regulation has the effect of modifying relevant Northern
Territory law, any rights, titles and interests in property created by these
regulations existing at the time of sunset will not be adversely affected when
the measure sunsets (see clause 118). That is, any repeal of the regulations
upon sunset of this Part will not affect the amendments made to relevant
Northern Territory Act(s), or to the operation of those Acts as amended. This
is to ensure that any proprietary interests and rights in town camps that
directly rely on the relevant Acts, as amended, are not affected by the sunset
of Part 3. The relevant Act(s) would still be capable of amendment after the
sunset of Part 3, but only by the Northern Territory.
21
Part 3 - Land reform
This measure does not prevent the Northern Territory from introducing
legislation that removes barriers and restrictions to dealings in land in town
camps. If Northern Territory reforms are implemented in a manner that meets
the Commonwealth commitment to more flexible land tenure arrangements,
Commonwealth regulation will not be required.
Subclauses 34(4) and 34(5) provide a related power to treat existing leases
granted under the Northern Territory Special Purposes Leases Act as though
these were leases granted under the Northern Territory Crown Lands Act and,
therefore, subject to the provisions of the Northern Territory Crown Lands Act.
This would remove certain barriers to home ownership and economic
development; although the Northern Territory Crown Lands Act does impose
some restrictions on dealings with land, those restrictions are less onerous
than the restrictions imposed by the Northern Territory Special Purposes
Leases Act.
Subclauses 34(6) and 34(7) provide for the direct modification of the
purposes of existing leases to remove current limitations.
The requirement to consult relevant parties, as provided under
subclause 34(8), is designed to ensure efficiency and transparency in the
making of the regulations.
Subclause 34(1) provides that the regulations may modify any law of the
Northern Territory in relation to matters specified in paragraphs 34(1)(a) to (e)
to the extent that the law applies to a town camp.
Paragraph 34(1)(a) provides that the regulations may modify any law of the
Northern Territory relating to the use of land. Existing leases are subject to
statutory or instrument-specific permitted use restrictions which are not
compatible with activity that meets the objects of Part 3.
Paragraph 34(1)(b) provides that the regulations may modify any law of the
Northern Territory relating to dealings in land. The purpose of
paragraph 34(1)(b) is to enable activity in town camps that is consistent with
the objects of Part 3. Dealings in land are defined in Division 2, clause 5 of
the Bill. The leases are predominately subject to statutory restrictions or
procedural requirements that may prohibit certain dealings in the land, for
example, mortgages and other security type transactions and subdivision,
which are often necessary to enable activity that meets the objects of Part 3.
Paragraph 34(1)(c) provides that the regulations may modify any law of the
Northern Territory relating to planning. The purpose of paragraph 34(1)(c) is
to enable activity in town camps that is consistent with the objects of Part 3.
Paragraph 34(1)(d) provides that the regulations may modify any law of the
Northern Territory relating to infrastructure. The purpose of
paragraph 34(1)(d) is to enable activity in town camps that is consistent with
the objects of Part 3 in town camps.
22
Part 3 - Land reform
Paragraph 34(1)(e) provides that the regulations may modify any law of the
Northern Territory relating to any matter prescribed by the regulations. The
purpose of paragraph 34(1)(e) is to enable activity in town camps that is
consistent with the objects of Part 3. Paragraph 34(1)(e) would only be used
if, in any given situation, it is deemed that paragraphs 34(1)(a) to (d) would not
adequately facilitate the ability to carry out that activity.
Subclause 34(2) defines the term town camp which is given a meaning that
is consistent with section 20CA of the Aboriginal Land Rights (Northern
Territory) Act 1976. Land which meets this definition at the commencement of
the Act continues to be a town camp for the purposes of this section.
Subclause 34(3) provides that, if regulations made in relation to matters
specified in subclause 34(1) modify a law of the Northern Territory then, as
provided under paragraph 34(3)(a), upon commencement of those
regulations, the relevant Northern Territory law is taken to be modified
accordingly. Further, as provided under paragraph 34(3)(b), the modified law
is taken to apply as if a law of the Northern Territory made those
modifications.
The effect of paragraph 34(3)(b) is to ensure that any modification of Northern
Territory law will not be affected following the sunset of Part 4 and any
consequential repeal of regulations made by subclause 34(1). This ensures
that, at the time of sunset, rights, titles and interests existing in the town
camps are not adversely affected by force of that sunset. Finally,
paragraph 34(3)(c) ensures that the Northern Territory has the concurrent
power to make laws relating to these matters which it will continue to have
after the sunset of this provision.
Subclause 34(4) provides that the regulations may modify the Northern
Territory Crown Lands Act or the Northern Territory Special Purposes Leases
Act, or both Acts, to provide that a lease granted under the Special Purposes
Leases Act is taken to have been granted under the Crown Lands Act.
Subclause 34(5) provides that, if regulations made in relation to
subclause 34(4) modify the Northern Territory Crown Lands Act or the
Northern Territory Special Purposes Leases Act, then, as provided under
paragraph 34(5)(a), upon commencement of those regulations, the relevant
Northern Territory law is taken to be modified accordingly. Further, as
provided under paragraph 34(5)(b), the modified law is taken to apply as if a
law of the Northern Territory made those modifications.
23
Part 3 - Land reform
The effect of paragraph 34(5)(b) is to ensure that any modification of Northern
Territory law will not be affected following the sunset of Part 4 and any
consequent repeal of regulations made by subclause 34(4). This ensures
that, at the time of sunset, rights, titles and interests existing in the town
camps are not adversely affected by force of that sunset. Finally,
paragraph 34(5)(c) ensures that the Northern Territory has the concurrent
power to make laws relating to these matters and which it will continue to
have after the sunset of this provision.
Subclause 34(6) provides that the regulations may modify a lease granted
under the Special Purposes Leases Act or the Crown Lands Act by modifying
the purpose for which the land that is the subject of the lease may be used.
Subclause 34(7) provides that, if the regulations under subclause 34(6)
modify a lease then, as provided under paragraph 34(7)(a), upon
commencement of those regulations, the lease is taken to be modified
accordingly. Further, as provided under paragraph 34(7)(b), the modified
lease is taken to apply as if a law of the Northern Territory made those
modifications. Paragraph 34(5)(c) ensures that the Northern Territory has the
concurrent power to modify further the leases under Northern Territory law,
which it will continue to have after the sunset of this provision.
Subclause 34(8) provides that, before making regulations in relation to a town
camp, the Commonwealth Minister for Indigenous Affairs must consult with
the Government of the Northern Territory, the relevant lessee and any other
person the Commonwealth Minister for Indigenous Affairs considers
appropriate to consult.
Subclause 34(9) provides that a failure to consult as required under
subclause 34(8) will not affect the validity of the regulations.
Division 3 - Community living areas
A community living area is generally a small portion of land excised from a
pastoral lease and granted as conditional freehold to an Aboriginal community
or family for residential purposes where Aboriginal people did not benefit from
land granted under the Aboriginal Land Rights (Northern Territory) Act 1976.
Community living areas have been created, granted or include areas
converted into community living areas via a variety of mechanisms in Northern
Territory legislation. There are restrictions on dealings in land, including
leasing, that prevent commercial leasing and leasing for public infrastructure
and services such as police stations.
This Part specifically provides for a regulation-making power that will enable
the modification of Northern Territory legislation in relation to community living
area land.
Clause 35 is a regulation-making power that allows the regulations to be
modified to the extent that the law applies to a community living area.
24
Part 3 - Land reform
These changes would be effected by specific amendments made to Northern
Territory legislation to overcome the restrictions and impediments, including
consequential issues relating to dealings, planning and infrastructure for the
benefit of Aboriginal people.
Any regulation made under subclause 35(1) is, under subclause 35(3),
taken to have modified the relevant Northern Territory law and that the
modified law is to apply as if a law of the Northern Territory had made those
modifications. This does not prevent the Northern Territory from concurrently
using its legislative powers in relation to these matters in community living
areas.
In addition, because a regulation has the effect of modifying the relevant
Northern Territory law, any rights, titles and interests in property existing at the
time of sunset will not be adversely affected where the measure sunsets (see
clause 118). That is, any repeal of the regulations upon sunset of this Part will
not affect the amendments made to the relevant Northern Territory Act(s), or
to operation of those Acts as amended. This is to ensure that any proprietary
interests and rights in community living areas that directly rely on the relevant
Acts as amended are not affected by the sunset of this Part. The relevant
Act(s) would still be capable of amendment after sunset of Part 3 but only by
the Northern Territory.
This measure does not prevent the Northern Territory from introducing
legislation that removes barriers and restrictions to dealings in land including
leasing in community living areas. If Northern Territory reforms are
implemented in a manner that meets the Commonwealth commitment to more
flexible land tenure arrangements, Commonwealth regulation will not be
required.
Further, this measure does not prevent the Northern Territory from being able
to introduce legislation that removes the barriers to home ownership
opportunities and economic development in community living areas. Should
Northern Territory reforms be implemented in a manner which meets the
Commonwealth commitment to more flexible land tenure arrangements,
Commonwealth regulation will no longer be necessary.
The requirement to consult relevant parties as provided under
subclause 35(4) is designed to ensure efficiency and transparency in the
making of the regulations. In addition to consultation with the owner of the
land that is the community living area (on request), the Land Council in whose
area the community living area is located and the Northern Territory
Government, it is also intended that other parties including, for example, the
Northern Territory Cattlemen's Association, would also be consulted.
It is intended that a public notification will be made to enable owners of
community living areas to request to be consulted.
25
Part 3 - Land reform
Subclause 35(1) provides that the regulations may modify any law of the
Northern Territory in relation to matters specified in paragraphs 35(1)(a) to (e)
to the extent that the law applies to a community living area.
Paragraph 35(1)(a) provides that the regulations may modify any law of the
Northern Territory relating to the use of land. The purpose of
paragraph 35(1)(a) is to enable activity that is consistent with the objects of
Part 3 in community living areas. Existing community living areas are subject
to statutory restrictions relating to the use of the land which are not compatible
with activity that meets the objects of Part 3.
Paragraph 35(1)(b) provides that the regulations may modify any law of the
Northern Territory relating to dealings in land. The purpose of
paragraph 35(1)(b) is to enable activity in community living areas that is
consistent with the objects of Part 3. Dealings in land are defined in
Division 2, clause 5 of the Bill. Community living areas are subject to statutory
restrictions or procedural requirements that may prohibit certain dealings in
the land, for example, leases, mortgages and other securities which are often
necessary to enable activity that meets the objects of Part 3.
Paragraph 35(1)(c) provides that the regulations may modify any law of the
Northern Territory relating to planning. The purpose of paragraph 35(1)(c) is
to enable activity in community living areas that is consistent with the objects
of Part 3.
Paragraph 35(1)(d) provides that the regulations may modify any law of the
Northern Territory relating to infrastructure. The purpose of
paragraph 35(1)(d) is to enable activity in community living areas that is
consistent with the objects of Part 3.
Paragraph 35(1)(e) provides that the regulations may modify any law of the
Northern Territory relating to any matter prescribed by the regulations. The
purpose of paragraph 35(1)(e) is to enable activity in community living areas
that is consistent with the objects of Part 3. Paragraph 35(1)(e) would only be
used if, in any given situation, it is deemed that paragraphs 35(1)(a) to (d)
would not adequately facilitate the ability to carry out that activity.
Subclause 35(2) provides that the term community living area means an
area granted or created as an Aboriginal community living area by or under a
law of the Northern Territory.
An example of a community living area is land which is granted under
subsection 46(1A) of the Lands Acquisition Act of the Northern Territory.
26
Part 3 - Land reform
Subclause 35(3) provides that, if regulations made in relation to matters
specified in subclause 35(1) modify a law of the Northern Territory then, as
provided under paragraph 35(3)(a), upon commencement of those
regulations, the relevant Northern Territory law is taken to be modified
accordingly. Further, as provided under paragraph 35(3)(b), the modified law
is taken to apply as if a law of the Northern Territory made those
modifications.
The effect of paragraph 35(3)(b) is to ensure that any modification of
Northern Territory law will not be affected following the sunset of Part 3 and
any consequential repeal of regulations made by subclause 35(1). This
ensures that, at the time of sunset, rights, titles and interests existing in
community living areas are not adversely affected by force of that sunset.
Finally, paragraph 35(3)(c) ensures that the Northern Territory has the
concurrent power to make laws relating to these matters which it will continue
to have after the sunset of this provision.
Subclause 35(4) provides that a regulation cannot be made in relation to a
community living area without prior consultation with: the Northern Territory
Government; the owners of the land that is the community living area (on
request from the relevant owners); the Land Council in whose area the
community living area is located; and any other person the Commonwealth
Minister for Indigenous Affairs considers appropriate to consult, including, for
example, the Northern Territory Cattlemen's Association.
It is intended that a public notification will be made to enable owners of
community living areas to request to be consulted.
Subclause 35(5) provides that a failure to consult as required under
subclause 35(4) will not affect the validity of the regulations.
27
Part 4 - Food security
Summary
This Part provides for a community store licensing scheme to operate for a
10-year period to address food security issues for Aboriginal communities in
the Northern Territory.
Background
Access to fresh and or healthy food in Aboriginal communities remains a
significant problem, including because of the remoteness of towns and the
distance from main distribution centres and major towns.
The Stronger Futures in the Northern Territory consultations on the food
security measure focused on: the licensing arrangements and how they could
be improved; how to ensure good quality food is available and affordable for
communities; and combining business and retail expertise with community
ownership. The consultations and the 2011 report on the independent
evaluation of the community stores licensing program indicated that licensing
has been associated with significant improvements in stores, availability of
more healthy food, but also pointed to areas where the scheme could be
strengthened, including addressing problems of non-compliant traders and
greater community understanding of store business.
The measure will continue the community stores licensing scheme but with
changes to make requirements more consistent with standard regulatory
practice and, without impacting on food security outcomes, reduce
unnecessary burdens on business. The licensing scheme will apply to those
parts of the Northern Territory that the Commonwealth Minister for Indigenous
Affairs has not prescribed in the rules as being exempted. It is intended that
areas excluded from food security areas will be places such as Alice Springs
or Darwin, where the level of competition and choice in retail outlets make it
unlikely that licensing would be required to ensure ongoing access to a
reasonable range of food or groceries.
The Secretary will be able to require a store in the food security area to hold a
community store licence, provided that the store meets the requirement of
being an `important source of food, drink or grocery items for an Aboriginal
community'. In determining whether a community store is required to be
licensed, the Secretary must have regard to, among other things, the object of
this measure, which is promoting food security for Aboriginal communities in
the Northern Territory. Community consultation will continue to be an
important aspect of the operation of the scheme.
28
Part 4 - Food security
The Government considers that the food security measure is a special
measure for the purposes of the Racial Discrimination Act. The Government
is of the view that this measure improves the health and wellbeing of
Aboriginal people in the Northern Territory. It advances the enjoyment by
Aboriginal people of human rights, such as the right to an adequate standard
of living, including adequate food, and the right to the highest attainable
standard of physical and mental health. The licensing of community stores
helps to achieve this outcome, resulting in an improved supply of food, drink
and grocery items for Aboriginal people living outside of major centres.
Explanation of the changes
Division 1 - Guide to this Part
Clause 36 provides a guide to explain what the Part is about.
Clause 37 provides for the object of the Part, being to enable special
measures to be taken for the purpose of promoting food security for Aboriginal
communities in the NT. Food security is defined to mean a reasonable
ongoing level of access to a range of food, drink and grocery items that is
reasonably priced, safe and of sufficient quantity and quality to meet
nutritional and related household needs.
In particular, the object provides that the Part is intended to enhance the
contribution made by community stores in the NT to achieving food security
for Aboriginal communities.
The Bill aims to enhance the contribution of stores to food security in several
ways. It will support improved choices and quality for Aboriginal consumers.
Aboriginal community stores often have limited or no competition. Without the
benefit of competition or compensating regulation, the quality and range of
food, drink and grocery items available has often been poor and consumers
have not had access, in particular, to a sufficient range of healthy foods.
The Bill also supports the ongoing viability of community-owned stores.
Considerable management capacity is required in order to address the
various difficulties which arise in operating a store in a remote location.
Governance and financial transparency issues can be further threats to the
viability of the store and, therefore, the food security of Aboriginal
communities. The Bill provides the framework for program assistance to
stores in these areas and provides the necessary backing for Aboriginal
community members concerned to maintain the continued existence of the
store.
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Part 4 - Food security
Division 2 - Certain community stores must be licensed
Clause 38 provides for the sanction of a community store that is required to
have a licence but has not complied with that requirement.
Subclause 38(1) provides that an owner or manager of a community store
must not operate or allow the store to be operated in the food security area if
the person has been notified under subclause 43(1) that the owner is
required to hold a community store licence, and the notice is in force, and the
owner does not hold a community store licence for that store. The maximum
civil penalty for operating a store without a licence is 50 penalty units.
Penalties for breaches of the prohibition are to be applied on a daily basis
(see subclause 87(2)). That is, an owner or manager who operates a
community store without a licence, as prohibited by this provision, may be
subject to a maximum penalty of 50 penalty units for each day that they
continue to operate without a licence.
Fifty penalty units is considered an appropriate daily penalty because it should
adequately deter owners and managers from operating without a licence. The
daily penalty should also provide extra incentive to remain, or to become,
licensed so that the potential penalty does not continue to increase. The
quantum of penalty is higher than other civil penalties in Part 4, which have a
maximum penalty of 20 penalty units (see clauses 56 and 61), because
operating without a licence is a contravention of what is considered the most
serious civil penalty provision in the community stores licensing scheme. As
with other civil penalty provisions, while the Secretary may issue an
infringement notice for an amount of no more than one-fifth of the maximum
penalty, the store owner will have the option of having their case heard and
penalty decided by a court.
Subclause 38(2) clarifies that the food security area is the Northern Territory,
other than areas specifically excluded from being in the food security area
under clause 74.
Subclause 38(3) clarifies that the prohibition in subclause 38(1) does not
apply if an application for a community store licence has been made under
clause 44 during the application period referred to in paragraph 43(2)(b) and
the Secretary has not refused to grant the licence under subclause 45(1)
before the day. Subclause 38(4) also clarifies that the prohibition in
subclause 38(1) does not apply during the application period referred to in
paragraph 43(2)(b) unless the owner has been notified before or on that day
that the Secretary has refused to grant the licence. This requires the owner to
be notified of a refusal to grant the licence prior to the prohibition taking effect.
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Part 4 - Food security
Subclause 38(5) caters for the situation where an owner has a mixed
business, with some parts not being directly related to the food security goals
of this Part. It allows the Secretary to give the owner and manager of the
store a written notice, authorising the part of a business selling goods or
services (other than food, drink or grocery items) to be operated. If such a
notice is given, then subclause 38(1) does not apply on days that the notice is
in force. This provision allows, for example, the Secretary to give a notice
allowing a petrol station to continue selling petrol even if it is prohibited from
operating a community store because it has not obtained a licence when
required.
Subclause 38(5) gives the Secretary discretion to issue notices with the effect
that a particular store will not be prohibited from operating in a certain way
under subclause 38(1). This discretion is not reviewable in the Administrative
Appeals Tribunal. Review of an exception allowing a store to operate without
being prohibited under subclause 38(1) is considered unnecessary, as the
outcome would probably to be beneficial to the affected owner. Review for a
determination made under subclause 38(3) would still be available under the
Administrative Decisions (Judicial Review) Act 1977.
Clause 39 provides for the meaning of community store, owner and
manager. It should be noted that the fact that a store is defined as a
community store under this Part does not in itself mean that the store is
required to be licensed. The Secretary, under clause 41, still has to determine
that a community store is required to hold a licence.
Subclause 39(1) provides that a community store means a business that
consists wholly, or partly, of selling food, drink or grocery items at premises
that are located in the food security area. This is regardless of whether the
community store is mobile and also sells food, drink or grocery items in areas
that are not food security areas for the purposes of the Bill. Drink refers to
non-alcoholic drinks. Stores that sell only one or a combination of more than
one of these items (food, drink or grocery items) will fall within this definition of
a community store.
Subclause 39(2) provides that the owner of a community store is the person
who has overall ownership of the community store and is entitled to the profits
and liable for the debts of the community store (regardless of whether they
also own the premises).
Subclause 39(3) provides that the manager of a community store is the
person who is responsible for the day to day management of the community
store.
As there may be instances where both the owner and the manager of a
community store are the same person, paragraph 39(4)(a) confirms that both
the owner and the manager of a community store can be the same person.
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Part 4 - Food security
Paragraph 39(4)(b) confirms that more than one person can be the owner or
the manager of a community store. This is to take account of situations where
there may be co-owners of a community store, or more than one person who
owns the business, or where more than one person manages the business.
Subclauses 39(5), (6), (7) and (8) clarify that:
� an unincorporated association is taken to be the owner of the store if a
member or members have overall ownership of the store and are
entitled to profits and liable for debts;
� a partnership is taken to be the owner of the store if a partner or
partners have overall ownership of the store and are entitled to profits
and liable to debts;
� notices can be served on any member (for an unincorporated
partnership) or any partner (for a partnership);
� things done in relation to a store or obligations, requirements,
restrictions or rights conferred under Part 4 by a member or partner of
an unincorporated association or partnership are taken to be done,
imposed or conferred on the unincorporated association or partnership;
� a change in partners or members does not affect the continuity of the
unincorporated association or partnership; and
� the committee of management is the body that governs, manages or
conducts the affairs of the association.
Clause 40 provides that, if more than one person is the owner or manager of
a community store, then Part 4 of the Bill applies as follows:
� if a provision of Part 4 requires or permits a notice to be given to the
owner of the community store, the notice may be given to any of the
owners;
� if a provision of Part 4 requires or permits a notice to be given to the
manager of the community store, the notice may be given to any of the
managers;
� the obligations, requirements and restrictions imposed, and rights
conferred, under Part 4, upon the owner of the community store are
taken to be imposed or conferred upon each owner; and
� the obligations, requirements and restrictions imposed, and rights
conferred, under Part 4, upon the manager of the community store are
taken to be imposed or conferred upon each manager.
32
Part 4 - Food security
Division 3 - Determining whether a community store is required to be
licensed
Clause 41 sets out the way that the Secretary may determine whether or not
a community store licence is required.
Subclause 41(1) provides that the Secretary may, at any time, determine
whether the owner of a community store is required to hold a community store
licence.
A note to subclause 41(1) clarifies that, if the Secretary proposes to make a
determination under subclause 41(1) the procedure set out at clause 42 must
first be followed.
Subclause 41(2) requires the Secretary to consult the people being serviced
by the community store about whether or not a licence should be required,
before making a determination under subclause 41(1). Consultations are a
vital source of information in the area of food security, and are also important
because of the need for key decisions to take account of the concerns and
views of the relevant communities. Although decisions about the grant of
licences and conditions for licences are important, it was considered that the
question of whether or not a licence should be required in the first place is the
critical decision in the food security measure, and therefore consultation was
most desirable at this stage. Subclause 41(3) confirms that a failure to
consult under subclause 41(2) does not affect the validity of a determination
under subclause 41(1).
Subclause 41(4) requires the Secretary to have regard, in considering
whether the a store is required to be licensed, to the object of Part 4, any
assessment of the store under clause 67, the circumstances and views of
people who are being serviced by the store (to the extent that those
circumstances and views relate to the determination), and any other matter
the Secretary considers relevant.
Subclause 41(5) provides that the Secretary must not determine that the
owner is required to hold a community store licence unless the Secretary is
satisfied that the store is an important source of food, drink or grocery items
for an Aboriginal community.
Among other things, a store is not likely to be an important source of one or
more of these items if, for example, only a small number of people from the
community use the store to acquire these items, or do not use the store for the
purpose regularly.
Subclause 41(6) provides that the Secretary may revoke a determination
made under subclause 41(1).
Under clause 110, the Secretary's decision to make a determination as to
whether or not a community store licence is required is subject to review by
the Administrative Appeals Tribunal.
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Part 4 - Food security
Clause 42 sets out a notice procedure that allows for submissions to be made
that the Secretary must consider before determining that a licence is required
under clause 41. First, the Secretary must give written notice of the proposed
determination to the owner and manager of the store under subclause 42(1).
Subclause 42(2) provides that the notice must:
� specify the reasons for the proposed determination;
� invite written submissions, from the owner and manager of the store,
about the matters specified in the notice;
� specify that written submissions must be lodged during the submission
period (which is the period set out in the notice or such longer period
agreed by the Secretary); and
� specify the manner in which written submission are to be lodged.
This will allow the Secretary to receive and consider submissions about a
proposed determination. Subclause 42(3) requires the time allowed for
submissions to be made to be at least 10 business days after the day the
notice is given. The term business days is defined in clause 5 of the Bill to
be a day that is not a Saturday, Sunday or a public holiday in the Northern
Territory.
Subclause 42(4) clarifies that the Secretary must not determine that the
owner of a community store is required to hold a community store licence,
unless each person required to be given a notice has been given a notice and
the Secretary has considered all written submissions received during the time
allowed for submission.
The requirement to `give' a notice can be satisfied by delivering the notice to
the person personally or by leaving it at, or by sending it by pre paid post to,
the address of the place of residence or business of the person last known to
the person serving the document (in the case of a natural person). The
requirement to `give' a notice can also be satisfied by leaving it at, or sending
it by pre-paid post to, the head office, a registered office or a principal office of
the body corporate (in the case of a body corporate) (see clause 28A of the
Acts Interpretation Act 1901).
Clause 43 provides that the Secretary must give written notice of the following
determinations in relation to a community store to the owner and the manager
of the community store:
� a determination under subclause 41(1) that the owner is or is not
required to hold a community store licence; and
� a determination under subclause 41(6), revoking a determination that
an owner is or is not required to hold a community store licence.
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Part 4 - Food security
Under subclause 43(2), that notice must:
� specify the reasons for the determination;
� specify that the owner must apply for a community store licence during
the application period (which is the period set out in the notice or such
longer period agreed by the Secretary);
� provide information about how an application may be made; and
� advise that, if the owner has not applied for a community store licence,
or if an application is made but the Secretary refuses to grant the
licence, the store may be prohibited from operating under clause 38.
Subclause 43(3) requires that the time allowed for an application to be made
must be at least 20 business days after the day the notice is given. The term
business days is defined in clause 5 of the Bill to be a day that is not a
Saturday, Sunday or a public holiday in the Northern Territory.
Division 4 - Licensing of community stores
Subdivision A - Granting and refusing community store licences
Clause 44 provides the procedure by which an owner of a community store,
or their representative, may apply for a community store licence. The owner
must make an application in the manner approved by the Secretary, unless
rules have been prescribed in accordance with subclauses 44(2) and (3) as to
how an application should be made.
Subclauses 44(2) and (3) allow the rules to prescribe the following matters in
relation to a written application:
� the form of the application;
� the information required to be included in the application;
� the documents that should accompany the application; and
� how to lodge the application (including to whom it should be made and
where it should be delivered).
These application provisions allow maximum flexibility for the Secretary to
approve the manner of applications and the Commonwealth Minister for
Indigenous Affairs to prescribe ways of lodging applications. This will enable
the Secretary or the Commonwealth Minister for Indigenous Affairs to tailor
the way in which applications can be made to allow for seasonal and other
communication difficulties in remote areas of the Northern Territory.
35
Part 4 - Food security
Clause 45 sets out the way in which the Secretary determines whether to
grant or refuse a community store licence.
Subclause 45(1) clarifies that the Secretary must determine whether to grant
a licence to the owner of a community store, if an application has been made
under subclause 44(1).
A note to subclause 45(1) clarifies that, if the Secretary proposes to refuse a
community store licence under subclause 45(1), the procedure set out at
subclause 47 must first be followed.
Under subclause 45(2), in making a determination about whether to grant a
licence to the owner of a community store, the Secretary must have regard to:
� the object of Part 4 as set out at clause 37;
� the food security matters set out at clause 46;
� any assessment of the store carried out under clause 67;
� the nature and circumstances of the store (including its location and
size - see the definition of circumstances at clause 5) - for example,
a large community store servicing a large community could be
expected to carry a broader range of healthy food than a small store
with fewer customers; similarly, financial management issues may be
more important where a store is community-owned and losses will
impact on the broader community rather than an individual owner; and
� any other matter the Secretary considers relevant.
The Secretary may give a different weight to each criterion in considering it,
depending on the particular circumstances of the store.
Subclause 45(3) provides that the Secretary may refuse to grant a
community store licence to a person if:
� in the case of an owner or another person - if the person unreasonably
withholds consent under clause 71 for an authorised officer to enter the
premises of the community store, or if the person unreasonably refuses
to provide documents, material or assistance as required by clause 72;
or
� in any case where the owner does not give the Secretary sufficient
documents, material or assistance to enable the Secretary to make an
informed decision.
Subclause 45(4) clarifies that subclause 45(3) does not limit the grounds on
which the Secretary may refuse to grant a community store licence.
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Part 4 - Food security
Under clause 110, the decision to grant or refuse a community store licence
under clause 45 is subject to review by the Administrative Appeals Tribunal.
Clause 46 sets out the meaning of food security matters. These are
matters to which the Secretary must have regarded when determining
whether or not to grant a community store licence under clause 45, when
determining the conditions that should apply to a community store licence
under clause 52 and when varying a licence under clause 58. The food
security matters are aspects of store operations and policy which could have a
direct or indirect impact on food security. In all cases, the Secretary is
required to take into account the circumstances of the store (see definition of
circumstances at clause 5) when considering the food security matters.
The food security matters are, having regard to the nature and circumstances
of the store:
� whether the store will provide a satisfactory range of healthy and good
quality food, drink or grocery items - for example, as under current
arrangements, stores are required to provide a range of fresh
vegetables, fruit and lean meat that is appropriate for the size of the
store; where a community store specialises in a particular type of
product, such as a bakery or butcher's shop, the requirements for a
satisfactory range are intended to refer only to those within their
specialty; there would be no requirement to change the nature of the
business;
� whether the store will take reasonable steps to promote good nutrition
and healthy products; depending on the store's circumstances, this
may include allowing nutrition education sessions to take place on the
store premises (where the educator helps participants understand the
food value of different products on display in the store); it may also
include displaying healthy alternatives more prominently and pricing
mark-up policies that encourage, or at least do not penalise, healthy
choices;
� whether the store will satisfactorily address other aspects of the store's
operations which may impact on food security, including:
- the quality of retail management practices of the owner or
manager of the store;
- whether the financial practices of the owner and manager of the
store support the sustainable operation of the store;
- the character of the owner, manager, employees and other
people involved in the store, including whether any of those
people have a criminal history, including criminal records
requested to be checked under clause 104 and outcomes of any
previous involvement with stores or similar businesses;
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Part 4 - Food security
- the store's business structure, governance practices and
employment practices; and
- the environment of the store's premises, the infrastructure of the
store's premises and the equipment available at the store's
premises.
The intention of these criteria is to address those store operational issues that
may impact on food security. For example, deficiencies in financial
management or inventory control may reduce the capacity of the store to
stock regularly fresh and healthy food or may threaten the long-term viability
of the store. Effective governance practices and vetting processes for people
involved in store operations assist in preventing fraud. Appropriate pricing
information helps customers to budget effectively. Food security is improved
where the environment and equipment are adequate for safe food preparation
and storage, as well as customer and staff safety.
In considering the character of people involved in the store, it is not intended
that a criminal history would in itself preclude grant of a licence. Particular
consideration would be given to offences which may impact on the future
operations of the store and the willingness of patrons to visit the store. This
may include matters such as dishonesty, intimidation or offences against
children. In considering character, issues of competence and responsibility
for past failure of stores will also be relevant.
Clause 47 sets out the notice procedure for submissions that may be made
for consideration by the Secretary before he or she refuses a community store
licence under subclause 45(1). First, the Secretary must give written notice of
the proposed refusal to the owner and manager of the store under
subclause 47(2).
Under subclause 47(2), that notice must:
� specify the reasons for the proposed refusal;
� invite written submissions, from the owner and manager of the
community store, in relation to the matters specified in the notice;
� specify that written submissions must be lodged during the submission
period (which is the period set out in the notice or such longer period
agreed by the Secretary);
� provide information about the manner in which submissions are to be
lodged; and
� advise that, if a community store licence is refused, the store will be
prohibited from operating under clause 38.
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Part 4 - Food security
Subclause 47(3) requires the time allowed for submissions to be at least
10 business days after the day the notice is given. The term business days
is defined in clause 5 of the Bill to be a day that is not a Saturday, Sunday or a
public holiday in the Northern Territory.
Subclause 47(4) clarifies that the Secretary must not refuse to grant a
community store licence, unless each person required to be given a notice
has been given a notice and the Secretary has considered all written
submissions received during the time allowed for submissions.
Clause 48 clarifies that a community store licence may be expressed to relate
to a specified community store or specified community stores. This covers the
situation where one owner operates more than one community store, only
once licence required for all stores that the owner operates.
Clause 49 confirms that a community store licence is in force for the period
starting on the day specified in the licence (or the day the licence is granted, if
there is no day specified) and ending on the day the licence is revoked or the
day this new Act ceases to have effect, whichever occurs first.
That is, once a licence is granted it will not specify an end date and will
therefore not be time limited. Regular licence monitoring under clause 54 and
assessments under clause 67 will be used to identify whether any action
under Part 4 should be taken, but there will be no administrative requirement
to review and re-issue licences on a regular basis. This is intended to reduce
the administrative burden on stores.
Subclause 50(1) requires the Secretary to give written notice, and a copy of
the licence (including any conditions of the licence), of a determination under
subclause 45(1) to grant a community store licence.
Subclause 50(2) requires the Secretary to give written notice of a refusal to
grant a community store licence to the owner and manager of the store.
Subclause 50(3) clarifies that the notice must specify reasons for the refusal.
Subdivision B - Conditions of community store licences
All community store licences will be subject to a number of statutory
conditions set out in clause 51. These conditions are:
� the conditions (if any) imposed by the Secretary under subclause 52(1)
at the time of issuing the licence;
� the condition set out in subclause 54(1) (monitoring and audits);
� the conditions (if any) prescribed by the rules under subclause 55(1);
and
� the conditions (if any) imposed by the Secretary under subclause 58(1)
(variation of licence) after the licence is issued.
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Part 4 - Food security
Additional conditions may be imposed on holders of community store licences.
Subclause 52(1) provides that the Secretary may impose conditions that may
relate to, but are not limited to, the following:
� the food security matters set out at clause 46;
� auditing and reporting;
� documentation and record-keeping requirements;
� the income management regime under Part 3B of the Social Security
(Administration) Act 1999 (including, but not limited to, requirements
relating to funds);
� the provision of goods or services to customers on credit or at a
discounted rate;
� notifying a change of owner or manager (whether or not the change is
permanent or temporary);
� notifying a change in the composition or structure of the owner; and
� assistance and facilities to be provided for the purposes of making
assessments or monitoring compliance with the conditions of the
licence.
A note to subclause 52(1) clarifies that, if the Secretary proposes to impose a
condition on a community store licence under subclause 52(1), the procedure
in clause 47 must first be followed.
Subclause 52(2) provides that, when considering imposing an additional
condition, the Secretary must have regard to:
� the object of Part 4 (food security); and
� the food security matters set out at clause 46;
� any Secretary-initiated assessment of the store;
� the nature and circumstances of the store (including its location and
size - refer to the definition of circumstances at clause 5) - for
example, a large community store servicing a large community could
be expected to carry a broader range of healthy food than a small store
with less customers; similarly, financial management issues may be
more important where a store is community-owned and losses will
impact on the broader community rather than an individual owner; and
� any other matter the Secretary considers is relevant.
40
Part 4 - Food security
The Secretary may give a different weight to each criterion in considering it,
depending on the particular circumstances of the store.
Subclause 52(3) clarifies that the conditions that may be imposed are not
limited by the matters set out in subclause 52(1), the rules or Subdivision B
(Conditions of community store licences).
Under clause 110, a decision to impose conditions on a community store
licence is reviewable by the Administrative Appeals Tribunal.
Clause 53 sets out the notice procedure for submissions that may be made
for consideration by the Secretary before he or she imposes a condition on a
community store licence under subclause 52(1). First, the Secretary must
give written notice of the proposed refusal to the owner and manager of the
store under subclause 53(1).
Under subclause 53(2), that notice must:
� specify the proposed condition and the reasons for the proposed
condition;
� invite written submissions, from the owner and manager of the
community store, about the proposed condition;
� specify that written submissions must be lodged during the submission
period (which is the period set out in the notice or such longer period
agreed by the Secretary); and
� provide information about the manner in which submissions are to be
lodged.
Subclause 53(3) requires the time allowed for submissions to be at least
10 business days after the day the notice is given. The term business days
is defined in clause 5 of the Bill to be a day that is not a Saturday, Sunday or a
public holiday in the Northern Territory.
Subclause 53(4) clarifies that the Secretary must not impose a condition on a
community store licence unless each person required to be given a notice has
been given a notice and the Secretary has considered all written submissions
received during the time allowed for submission.
A condition is also imposed on all holders of community stores with respect to
monitoring and audits. Subclause 54(1) provides that it is a condition of a
community store licence that the holder of the licence must do all of the
following:
� allow an authorised officer to enter the premises of the store or stores
to which the licence relates for the purposes of auditing or monitoring
compliance with the conditions of the licence;
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Part 4 - Food security
� allow an authorised officer to inspect things at the premises; and
� if requested, give an authorised officer documents relevant to auditing
and monitoring compliance.
Subclause 54(2) clarifies that paragraph 54(1)(c) regarding giving documents
to an authorised officer, does not apply if giving the documents might tend to
incriminate the person or expose the person to a penalty. This intends to
clarify that paragraph 54(1)(c) does not abrogate the privilege against self-
incrimination.
Clause 55 allows the Commonwealth Minister for Indigenous Affairs to
determine conditions to which all community stores licences are subject by
prescribing those conditions in the rules - subclause 55(1) refers. (The rules
may be made by the Commonwealth Minister for Indigenous Affairs under
Part 5.) Subclause 55(2) requires the Commonwealth Minister for Indigenous
Affairs to have regard to the objects of Part 4 and any other matter the
Commonwealth Minister for Indigenous Affairs considers relevant when
determining conditions.
Clause 56 provides that the owner or the manager of a community store must
not breach a condition of a community store licence that is in force in relation
to the store. Penalties for non-compliance with this requirement are to be
applied on a daily basis (see subclause 87(2)). 20 penalty units is considered
an appropriate daily penalty because it should adequately deter owners and
managers from breaching licence conditions. A daily penalty is necessary as,
otherwise, owners could continue in breach indefinitely on payment of a single
fine, and it should also provide extra incentive to remedy breaches quickly.
Subdivision C - Variation and revocation of community store licences
Clause 57 sets out the way a person may make an application for a variation
of a community store licence.
The owner of a community store, or a person acting on the owner's behalf,
may apply for a variation of a community store licence under clause 57. The
owner must make an application in the manner approved by the Secretary,
unless rules have been prescribed in accordance with subclauses 57(2)
and (3) as to how an application should be made.
Subclauses 57(2) and (3) allow the rules to prescribe the following matters in
relation to a written application:
� the form of the application;
� the information required to be included in the application;
� the documents that should accompany the application; and
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Part 4 - Food security
� how to lodge the application (including to whom it should be made and
where it should be delivered).
These application provisions allow maximum flexibility for the Secretary to
approve the manner of applications and the Commonwealth Minister for
Indigenous Affairs to prescribe ways of lodging applications. This will enable
the Secretary or the Commonwealth Minister for Indigenous Affairs to tailor
the way in which applications can be made to allow for seasonal and other
communication difficulties in remote areas of the Northern Territory.
Clause 58 confers on the Secretary the power to vary a community store
licence.
The Secretary will have discretion under subclause 58(1) to vary a
community store licence at any time on the Secretary's own initiative or if an
application for a variation of the licence has been made under
subclause 57(1).
A note to subclause 58(1) clarifies that, if the Secretary proposes to vary or
refuse to vary a community store licence under subclause 58(1), the
procedure set out at subclause 60 must first be followed.
Subclause 58(2) provides that the Secretary may impose licence conditions
or revoke or vary licence conditions that were imposed under subclause 52(1).
When considering using the powers of variation, subclause 58(3) provides
that the Secretary must have regard of all of the following:
� the object of Part 4 (food security);
� the food security matters as set out at clause 46;
� any Secretary-initiated assessment of the store;
� the nature and circumstances of the store (including its location and
size - see the definition of circumstances at clause 5) - for example,
a large community store servicing a large community could be
expected to carry a broader range of healthy food than a small store
with less customers; similarly, financial management issues may be
more important where a store is community-owned and losses will
impact on the broader community rather than an individual owner; and
� any other matter the Secretary considers relevant.
The Secretary may give a different weight to each criterion in considering it,
depending on the particular circumstances of the store. Subclause 58(4)
clarifies that a variation takes effect on the day on which the notice is given or
on a later day specified in the notice.
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Part 4 - Food security
Subclause 58(5) provides that the variation takes effect on the date the notice
is given or on a later date specified in the notice. A variation to extend the
period of effect of a licence cannot be backdated to prior to the day on which
the notice is given.
Subclause 58(6) gives the Secretary discretion to refuse to vary a licence if a
person unreasonably withholds consent for an authorised officer to enter the
premises of the community store under clause 71; or unreasonably refuses to
provide documents, material or assistance as required by clause 72. The
Secretary may also refuse to vary a licence if the holder of the licence does
not give the Secretary sufficient information to make an informed decision.
Subclause 58(6) does not limit the grounds on which the Secretary may
refuse to vary a community store licence: subclause 58(7).
Subclause 58(8) requires the Secretary to give written notice to the owner
and manager of the store where the Secretary refuses to vary a licence in
accordance with an application made under subclause 57(1).
Clause 59 allows the Secretary to revoke a community store licence.
Subclause 59(1) provides that the Secretary may revoke the licence if the
Secretary is satisfied that:
� a condition of the licence has been breached;
� the owner, the manager or a person involved in the store has
committed an offence against this Bill or has contravened a civil penalty
provision; or
� the licence was obtained improperly - for example, if the licence was
obtained by falsifying documents, corrupt means or by making
misleading representations.
The first note to subclause 59(1) clarifies that, if the Secretary proposes to
revoke a licence under subclause 58(1), the procedure set out at
subclause 60 must first be followed.
The second note to subclause 59(1) clarifies that a licence can also be
revoked under subclause 65(1) when a store owner has not registered under
the CATSI Act when required to.
Subclause 59(2) provides that, if the Secretary revokes a community store
licence under subclause 59(1), the Secretary must give written notice of the
revocation to the owner and manager of the store.
Subclause 59(3) provides that the revocation takes effect on the day the
notice is given or on a later date specified in the notice.
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Part 4 - Food security
Under clause 110, a decision to revoke a community store licence under
clause 59 and a decision to vary a community store licence under clause 58 is
reviewable by the Administrative Appeals Tribunal.
Clause 60 provides the procedure that must be followed before revoking,
varying or refusing to vary a community store licence. These procedures
provide the owner and the manager of the community store with an
opportunity to make written submissions on the proposed revocation, variation
or refusal before the decision can be made.
Subclause 60(1) requires the Secretary to notify the owner and the manager
of the community store if:
� the Secretary proposes to vary a community store licence under
paragraph 58(1)(a);
� an application under subclause 57(1) has been made for a community
store licence to be varied and the Secretary proposes to refuse to vary
the licence in accordance with the application; or
� the Secretary proposes to revoke a community store licence under
subclause 59(1).
Under subclause 60(2), that notice must:
� specify the reasons for the proposed variation, refusal or revocation;
� invite written submissions, from the owner and manager of the
community store, to the matters specified in the notice;
� specify that written submissions must be lodged during the submission
period (which is the period set out in the notice or such longer period
agreed by the Secretary);
� provide information about the manner in which submissions are to be
lodged; and
� in the case of a proposed revocation, advise that, if a community store
licence is revoked, the store will be prohibited from operating under
clause 38.
Subclause 60(3) requires the time allowed for submissions to be at least
10 business days after the day the notice is given. Although it is possible for
the Secretary to allow longer than the 10 business day time period for
applications to be made, this ensures that the period must be a minimum of
10 days. The term business days is defined in clause 5 of the Bill to be a
day that is not a Saturday, Sunday or a public holiday in the Northern
Territory.
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Part 4 - Food security
Subclause 60(4) provides that the Secretary must not vary or refuse to vary a
community store licence under subclause 58(1), or revoke a licence under
subclause 59(1), unless the people required to be given a notice under
subclause 60(1) have been given such a notice and the Secretary has
considered all submissions made during the period given.
Division 5 - Requirement to register under the
Corporations (Aboriginal and Torres Strait Islander) Act 2006
The requirements under this Division apply where the owner of the community
store is licensed.
Division 5 assists in improving the governance and capacity of Northern
Territory community store owners. Governance and financial practice
difficulties have been a recurring problem in relation to community stores with
impacts on food security. The CATSI Act provides an incorporation
framework, which, unlike others, is specifically tailored to the particular risks
and requirements of the Aboriginal corporate sector. The Act recognises the
particular importance to Aboriginal communities of maintaining essential
services operated by Aboriginal corporations which are located in remote or
very remote areas. Community store owners that are incorporated under the
CATSI Act will be covered by the special provisions that apply to an `essential
service' under the CATSI Act.
Store corporations registered under the CATSI Act do not pay fees and
receive a wider range of support than is available under other legislation.
Incorporation under the CATSI Act also provides benefits for the community
served by the store, including powers for early intervention to remedy
problems relating to the provision of an essential service, such as community
stores, which are not available under other legislation. These powers enable
the Registrar of Indigenous Corporations to provide early proactive regulatory
assistance when a corporation experiences governance or financial
difficulties. Unlike a receivership, voluntary administration or liquidation, the
special administration process under the CATSI Act is not driven by creditors
and its prime focus is on the best interests of the members and the
corporation and to protect public funding and ensure the maintenance of
essential services, such as remote stores.
The aim of the special administration process is to restore good operational
order to the corporation, improve governance and the financial position of the
corporation and build the capacity of the members and future directors to run
the corporation effectively. It therefore provides safeguards to assist the
owner of a community store to continue in business and receive the support
they need to secure the ongoing operation of the community store.
Clause 61 provides for a penalty when certain people do not register under
the CATSI Act when required. Subclause 61(1) provides that the owner of a
community store is liable to a civil penalty if:
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Part 4 - Food security
� a determination has been made that the owner is required to become
registered under the CATSI Act;
� the notice is in force and the owner has been notified; and
� the owner is not registered under the CATSI Act.
The maximum civil penalty for non-compliance with the requirement to register
under clause 61 is 20 penalty units. Penalties for breaches of the prohibition
are to be applied on a daily basis (see subclause 87(2)). That is, an owner
who does not register under the CATSI Act when required to do so may be
subject to a maximum penalty of 20 penalty units per day that they are not
registered.
A daily penalty of twenty penalty units is considered an appropriate penalty
because it should adequately deter owners from refusing to register under the
CATSI Act. A daily penalty is necessary as, otherwise, owners could continue
in breach indefinitely on payment of a single fine, and it should also provide
extra incentive to remedy breaches quickly.
Clause 65 also allows the Secretary to revoke a community store licence if a
store owner does not comply with a requirement to register under the
CATSI Act.
Subclause 61(2) clarifies that subclause 61(1) does not apply if the owner
makes an application during the registration period and a determination has
not yet been made about whether to register the owner.
Subclause 61(3) provides that subclause 61(1) does not apply on a day in the
registration period referred to in subclause 64(2)(b) unless the owner has
been notified that registration under the CATSI Act has been refused.
Subclause 62(1) permits the Secretary to determine in writing that the owner
of a community store is required to become registered under the CATSI Act.
A note to subclause 62(1) clarifies that, if the Secretary proposes to
determine under subclause 62(1) that the owner is required to become
registered under the CATSI Act, the procedure in clause 63 must first be
followed.
Subclause 62(2) requires the Secretary to have regard to the objects of
Part 4 and any other matter the Secretary considers relevant when making a
determination under subclause 62(1).
Subclause 62(3) prohibits the Secretary from making such a determination
unless a community store licence is held for the store.
Subclause 62(4) clarifies that the Secretary may revoke a determination
made under subclause 62(1).
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Part 4 - Food security
Subclause 63 deals with the procedure before determining that registration
under the CATSI Act is required.
Under subclause 63(1), if the Secretary proposes to determine under
subclause 62(1) that the owner of a community store is required to become
registered under the CATSI Act, the Secretary must first give written notice of
the proposed determination to the owner of the store.
Under subclause 63(2), the notice must invite written submissions from the
owner of the store in relation to the requirement for the owner to become
registered under the CATSI Act. The notice must also:
� specify that written submissions must be lodged during the submission
period (which is the period set out in the notice or such longer period
agreed by the Secretary); and
� specify the manner in which written submissions are to be lodged.
Subclause 63(3) requires that, for the purpose of subparagraph 63(2)(b)(i),
the submission period must be at least 10 business days after the day on
which the notice is given.
Subclause 63(4) clarifies that the Secretary must not require the owner of a
community store to become registered under the CATSI Act unless the owner
has been given a notice under subclause 62(1) and the Secretary has
considered all written submissions received during the time allowed for
submission.
The process of inviting responses under this provision offers an owner or a
manager the opportunity to provide information which may satisfy the
Secretary that, despite reasonable steps being taken, it was not reasonably
practicable in the circumstances for the owner to become registered, or to put
in an application to become registered, under the CATSI Act. If the Secretary
is satisfied it was not reasonably practicable in the circumstances for the
owner to become registered, or apply to become registered, under the
CATSI Act by the period specified in the notice, or a later day agreed to by the
Secretary, then the Secretary must not revoke the licence in accordance with
subclause 65(4).
For example, an association that could not meet the Indigeneity requirement
for CATSI Act registration would not be expected to change its membership in
order to become registered.
Under clause 110, a decision to require a store to become registered under
the CATSI Act is reviewable in the Administrative Appeals Tribunal.
Clause 64 sets out the procedure for notifying an owner that the Secretary
has determined that registration under the CATSI Act is required.
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Part 4 - Food security
Subclause 64(1) provides that the Secretary must give written notice of the
determination that an owner is or is not required to be registered under the
CATSI Act (or a determination revoking a determination requiring registration)
to the owner of the store.
Subclause 64(2) provides that, if the Secretary determines that an owner is
required to be registered under the CATSI Act, the notice must:
� specify the reasons for the determination;
� specify that the owner must apply for registration under the CATSI Act
during the registration period (which is the period set out in the notice
or such longer period agreed by the Secretary);
� advise that the owner may be subject to a civil penalty under clause 61
if an application for registration is not made by the owner or registration
under the CATSI Act is refused; and
� advise that, if the owner does not become registered, the Secretary
may revoke the licence under subclause 65(1) and if the licence is
revoked, the store will be prohibited from operating under clause 38
after the revocation takes effect.
Subclause 64(3) requires that the time allowed for an application for
registration to be made must be at least 20 business days after the day the
notice is given. The term business days is defined in clause 5 of the Bill to
be a day that is not a Saturday, Sunday or a public holiday in the Northern
Territory.
Clause 65 deals with the circumstances in which the Secretary may revoke
the licence of a community store if the community store owner has been given
a notice under clause 64 requiring the owner to become registered under the
CATSI Act by a specified day. The owner may also be liable to a civil penalty
for not complying with a requirement to register under the CATSI Act under
clause 61.
If the Secretary has given an owner of a community store a written notice
under subclause 64(1), and the owner has not become registered under the
CATSI Act by the end of the registration period, then the Secretary may
revoke the community store licence under subclause 65(1).
A note to subclause 65(1) clarifies that, if the Secretary proposes to revoke a
community store licence under subclause 65(1) then the procedure set out at
65A must first be followed.
Under subclause 65(2), the Secretary must not revoke a licence under
subclause 65(1), unless the Secretary is satisfied that it was not reasonably
practicable in the circumstances for the owner to become registered under the
CATSI Act during the registration period referred to in paragraph 64(2)(b) for
applying for registration, having regard to the following:
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Part 4 - Food security
� any submissions received from the owner in the submission period
referred to in paragraph 66(2)(c) for making submissions;
� any views expressed by the Registrar (within the meaning of the CATSI
Act); and
� any other matter the Secretary considers is relevant.
Under subclause 65(3), if the Secretary revokes a licence under
subclause 65(1), the Secretary must give written notice of the revocation to
the owner and manager of the store. It is important to notify both the owner
and manager about revocations because they may both be subject to a
penalty under clause 38 if they operate without a licence when a licence is
required.
Subclause 65(4) provides that the revocation of a community store licence
will take effect on the day on which the notice is given, or on a later day
specified in the notice.
Under clause 110, decisions by the Secretary under clause 65 to revoke a
community store licence are reviewable by the Administrative Appeals
Tribunal.
Clause 66 sets out the procedure to be undertaken before revoking a licence.
Under subclause 66(1), if the Secretary proposes to make a determination to
revoke a licence under subclause 65(1), the Secretary must first give written
notice of the proposed determination to the owner and manager of the store.
It is important to notify both the owner and manager about revocations
because they may both be subject to a penalty under clause 38 if they
operate without a licence when a licence is required.
Under subclause 66(2), the notice must invite written submissions from the
owner of the store in relation the matters specified in the notice. The notice
must also:
� specify the reasons for the proposed revocation;
� specify that written submissions must be lodged during the submission
period (which is the period set out in the notice or such longer period
agreed by the Secretary);
� specify the manner in which written submissions are to be lodged; and
� advise that, if a licence is revoked, subclause 38(1) will prohibit the
store from being operated.
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Part 4 - Food security
Subclause 66(3) requires that, for the purpose of subparagraph 66(2)(c)(i),
the submission period must be at least 10 business days after the day on
which the notice is given.
Subclause 66(4) clarifies that the Secretary must not make a determination to
revoke a licence unless the people required to be given a notice have been
given a notice under subclause 66(1) and the Secretary has considered all
written submissions received during the time allowed for submission.
Division 6 - Assessments of community stores in relation to licensing
Division 6 deals with assessments of community stores.
Subclause 67(1) provides that the Secretary, on the Secretary's own
initiative, may require an authorised officer to assess a community store.
Such an assessment must be conducted for one or more of the following
purposes:
� determining whether a community store licence is required to be held in
relation to a community store;
� determining whether to grant a community store licence in relation to a
community store;
� determining whether impose, vary or revoke conditions on a community
store licence;
� determining whether to revoke a community store licence in relation to
a community store; and
� monitoring compliance with Part 4 (food security).
Subclause 67(2) requires that, in requiring an authorised officer to assess a
community store under subclause 67(1), the Secretary must have regard to
the object of Part 4 (food security) and any other matter the Secretary
considers is relevant.
Subclause 67(3) provides that, in assessing a community store, an
authorised officer may consult with such persons as the authorised officer
considers appropriate.
Subclause 67(4) provides that the Secretary may require an authorised
officer to assess a community store whether or not an application under
clause 44(1) (application for a community store licence) has been made in
relation to the community store.
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Part 4 - Food security
Decisions made under clause 67 are not reviewable decisions. This is
because the decision to require an authorised officer to assess a store, for
whatever purpose, is usually a procedural step towards, for example, a
licensing decision. Key licensing decisions that are specific to individual
stores have been made reviewable by the Administrative Appeals Tribunal
(see clauses 41, 45, 52, 59, 58, 110 and 65). Review for a determination
made under clause 67 would still be available under the Administrative
Decisions (Judicial Review) Act 1977.
Clause 68 applies if an assessment of a community store is to be, or is being,
conducted.
Subclause 68(2) requires that the Secretary, or the authorised officer
responsible for conducting the assessment, must give a written notice to the
owner and the manager of the community store that specifies all of the
following:
� that the assessment is to be, or is being, conducted;
� the name of the authorised officer or officers who are conducting, or will
conduct, the assessment;
� the purposes of the assessment.
Subclause 68(3) requires that, if entry to the community store, or access to
material or documents, is required for the purposes of the assessment, written
notice of the requirement must be given (whether in the notice under
subclause 68(2) or in another notice) at least 10 business days before the day
the entry or access is required, unless a shorter period is agreed with the
owner or manager. The term business days is defined in clause 5 of the Bill
to be a day that is not a Saturday, Sunday or a public holiday in the Northern
Territory.
To avoid doubt, clause 68 does not require a store to be visited or entered for
the purposes of conducting an assessment: subclause 68(4).
It should be noted that, in addition to assessments as described in these
subclauses, the Bill, in clause 54, provides for monitoring visits once stores
have been licensed. These visits are subject to the same provisions
governing access to premises but do not require notice to be given. In
keeping with other regulatory schemes, it is intended that these visits will
focus on visual inspections, do not require significant effort from owners or
managers and will be used when advance notice is counter-productive for
effective compliance. For example, a store required to provide continuous
access to a range of healthy food, may put in stock temporarily only when an
inspection date is known.
Clause 69 provides that the Secretary may, in writing, appoint an
appropriately qualified person who is either:
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Part 4 - Food security
� an Australian Public Service employee in the Department; or
� any other person engaged by the Department, under contract or other
wise, to exercise powers, or perform duties or functions, under Part 4
(food security),
to be an authorised officer for the purposes of the exercise of the powers
conferred on authorised officers by this Part.
Clause 70 empowers the Secretary to issue identity cards to an authorised
officer in the form approved by the Secretary. The identity card must contain
a recent photograph of the authorised officer.
Subclause 71(1) empowers an authorised officer to enter the premises of the
community store for the purposes of assessing a community store under
clause 67. That is, an assessment can be made for the purposes of deciding
whether or not a community store licence is required, deciding whether to
grant or refuse a licence, deciding whether to grant, revoke, vary or impose
conditions upon a community store licence, deciding whether to revoke a
community store licence, or monitoring compliance with Part 4 (food security).
Before an authorised officer can enter the premises of a community store for
the purposes of assessing it, the occupier of the premises (or another person
who apparently represents the occupier) must have consented to the entry
and the officer has shown his or her identity card if required by the occupier:
subclause 71(2).
The note to subclause 71(2) reminds the reader that, if consent is
unreasonably withheld, the Secretary may refuse to grant a licence: see
subclause 45(3).
The occupier of the premises or another person who apparently represents
the occupier can withdraw their consent to entry at any time. If this occurs
then subclause 71(3) provides that the authorised officer must leave the
premises if the occupier, or another person who apparently represents the
occupier, asks the authorised officer to do so.
Clause 72 empowers authorised officers to obtain access to records and
assistance and, as subclause 72(1) provides, the clause applies if an
authorised officer is assessing a community store under clause 67.
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Part 4 - Food security
Subclause 72(2) provides that the owner of the community store, the
manager of the store, or another person who apparently represents the
occupier, must, if requested, give to an authorised officer, or any other person
assisting the authorised officer, such documents as are reasonably necessary
for the authorised officer to make the assessment. A criminal offence
attracting a penalty of 60 penalty units applies for non-compliance with this
requirement. This penalty is commensurate with the penalty applicable to a
provision in the A New Tax System (Family Assistance) (Administration)
Act 1999 and applicable to occupiers of child care services that has a similar
purpose (clause 219L).
A note to subclause 72(2) clarifies that, if the owner or another person
unreasonably refuses to provide documents under subclause 72(2), the
Secretary may refuse to grant a community store licence: see
subclause 45(3).
Subclause 72(3) clarifies that subclause 72(2) does not apply if giving the
documents might tend to incriminate the person or expose the person to a
penalty.
A note to subclause 72(3) clarifies that a defendant bears the evidential
burden in relation to the matters in subclause 72(3), and refers the reader to
subsection 13.3 of the Criminal Code Act 1995.
In addition, the occupier of premises of the community store, or another
person who apparently represents the occupier, must provide the authorised
officer, or any other person assisting the authorised officer, with such
assistance and facilities as are necessary and reasonable for making the
assessment (subclause 72(4)). This might include, for example, assistance
to locate certain documents at the community store premises. A criminal
offence attracting a penalty of 10 penalty units applies for non-compliance
with this requirement. The penalty of 10 penalty units is at the lower end of
the scale.
A note to subclause 72(4) clarifies that, if the owner or another person
unreasonably refuses to provide assistance or facilities under
subclause 72(4), the Secretary may refuse to grant a community store licence:
see subclause 45(3).
Subclause 72(5) clarifies that the offences contained in subclauses 72(2)
and (4) are offences of strict liability. The note to this subclause directs the
reader to clause 6.1 of the Criminal Code Act 1995 for a definition of strict
liability. These offences are strict liability offences because:
� the prosecution would have great difficulty in proving fault (especially
knowledge or intention);
� the offences in question are minor;
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Part 4 - Food security
� the requirements that must be complied with are administrative in
nature;
� the elements of these offences are factual;
� the offence does not involve dishonesty or any other serious imputation
affecting the person's reputation; and
� compliance with the requirement to provide access to information and
reasonable assistance and facilities is essential to the assessment
process which supports the licence decision making process.
In addition to the above powers, the Secretary under clause 73 has the power
to request information from persons relating to the assessment of a
community store. This power is important as some documentation may be
retained with advisers and other persons and not on the premises of the
community store.
Subclause 73(1) clarifies that the clause only applies to a person if the
Secretary considers that information (called compellable information) relating
to an assessment of a community store under clause 67 is in the person's
possession, custody or control (whether held electronically or in any other
form) and the information is reasonably necessary for the purposes of the
assessment.
If the Secretary has reason to believe that such information is in the person's
possession, custody or control, subclause 73(2) provides that the Secretary
may, in writing, require the person to give specified compellable information to
the Secretary within a specified period of time; and in a specified form or
manner.
Subclause 73(3) provides that the person receiving a notice under
subclause 73(2) must not fail to comply with this requirement. A criminal
offence attracting a penalty of 10 penalty units applies for non-compliance.
Subclause 73(3) is subject to two defences.
The first defence to subclause 73(3) in subclause 73(4) provides that
subclause 73(3) does not apply to the extent that the person has a reasonable
excuse. However, a person does not have a reasonable excuse merely
because the information in question is of a commercial nature; or subject to an
obligation of confidentiality arising from a commercial relationship; or
commercially sensitive.
The second defence applicable to in subclause 73(5) and clarifies that
subclause 73(3) does not apply in relation to compellable information if giving
the information might tend to incriminate the person or expose the person to a
penalty.
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A note to subclauses 73(4) and (5) clarifies that a defendant bears the
evidential burden in relation to the matters in subclause 72(3) and refers the
reader to subsection 13.3 of the Criminal Code Act 1995.
Subclause 73(6) clarifies that this clause has effect despite any law of the
Commonwealth, a State or a Territory prohibiting disclosure of the information.
Division 7 - Areas that are not in the food security area
Clause 74 deals with areas that are not in the food security area. The Bill
provides that the food security area is the whole of the NT (see
subclause91B(2)) and this clause allows the Commonwealth Minister for
Indigenous Affairs to prescribe in the rules areas that are not in the food
security area. This power is intended to be used to exclude populated areas
with a number of food outlets. For example, more densely populated areas
such as Darwin and Alice Springs are not intended to be covered by the
scheme because the level of competition and choice in retail outlets make it
unlikely that licensing would be required to ensure ongoing access to a
reasonable range of food, drink and grocery items.
Subclause 74(1) allows the rules to prescribe that an area in the Northern
Territory is not in the food security area. These rules may be revoked:
subclause 74(2).
Subclause 74(3) provides that the Commonwealth Minister for Indigenous
Affairs may make a rule for the purposes of subclause 74(1) or (2) on the
Commonwealth Minister for Indigenous Affairs' own initiative or following a
request made by or on behalf of a person who is ordinarily resident in the area
to which the rule relates.
Subclause 74(4) provides that, in making a rule for the purposes of
subclause 74(1) or (2) the Commonwealth Minister for Indigenous Affairs must
have regard to:
� the object of Part 4;
� the wellbeing of people living in the area; and
� any other matter the Commonwealth Minister for Indigenous Affairs
considers relevant.
Subclause 74(5) clarifies that, if the Commonwealth Minister for Indigenous
Affairs makes a rule for the purposes subclause 74(1), then Part 4 continues
to apply in relation to that area after the rule takes effect, in relation to things
done or not done before the rule takes effect. This puts beyond doubt the
application of things that apply under Part 4 in the food security area, even
before an area is prescribed not to be in the food security area.
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Division 8 - Enforcement relating to food security
Division 8 concerns the enforcement provisions in relation to the community
stores licensing scheme, including penalties for failing to meet requirements
under the scheme. A common criticism that arose during the evaluation of the
current scheme was that the only remedy available where a store was
consistently non-compliant with licensing requirements was to revoke the
licence. This would then create a food security problem for the community
and made enforcement difficult.
Where a store breaches licensing requirements, the normal initial response
will be to seek resolution without recourse to enforcement actions under
Division 8, which may include issuing warning notices. Where such a process
fails to achieve compliance or is not appropriate for other reasons, the Bill
allows four different types of enforcement action: civil penalties; infringement
notices; enforceable undertakings; and injunctions. The options of
enforceable undertakings and seeking court injunctions will give store owners
the chance to address breaches of the licence conditions without exposure to
fines.
It should be noted that administrative decisions, such as whether to grant a
licence, what conditions to impose on a licence and whether a corporation
should register under the CATSI Act, are subject to review by the
Administrative Appeals Tribunal. In a situation where a store owner disputes
an infringement notice, where the Secretary has considered there has been a
breach of an enforceable undertaking or that an injunction has not been
followed, the case and its outcome (including the amount of any penalty within
the maximum provided in the legislation) will be determined by the relevant
court.
Subdivision A - Civil penalties
Civil penalty orders are available for civil penalty provisions in Part 4, which
relate to:
� clause 38 - operating a community store without a licence (50 penalty
units);
� clause 56 - breach of condition of community store licence
(20 penalty units); and
� clause 61 - not registering under the CATSI Act (20 penalty units).
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Civil penalty orders are considered an appropriate sanction for dealing with
contraventions of the food security clauses set out above because breaches
of licence conditions that create an immediate threat to personal or community
safety already attract criminal penalties under other legislation. While failing
to cooperate with improvements in food security has important consequences,
it is considered that the impact of breaches would not be such as to require
the possibility of a criminal conviction and civil, rather than criminal, penalties
are sufficient.
Subclause 75(1) provides that the Secretary may apply to a relevant court for
an order that a person, who is alleged to have contravened a civil penalty
provision, pay the Commonwealth a pecuniary penalty.
Subclause 75(2) clarifies that a civil penalty provision is a subsection or
section not divided into subsections of this Part if the words `civil penalty' and
one or more amounts in penalty units are set out at the foot of the section or
subsection.
Subclause 75(3) provides that the Secretary must make an application under
subclause 75(1) within six years of the alleged contravention.
If a relevant court is satisfied that the person has contravened the civil penalty
provision, subclause 75(4) provides that the court may order the person to
pay to the Commonwealth such pecuniary penalty for the contravention as the
court determines to be appropriate.
Subclause 75(5) clarifies that an order under subclause 75(4) is a civil
penalty order.
Subclause 75(6) provides that a pecuniary penalty must not be more than the
pecuniary penalty specified for the civil penalty provision. Section 4B(3) of the
Crimes Act 1914, which imposes a `corporate multiplier' of five times the
maximum criminal penalty for bodies corporate. In relation to civil penalties
for Part 4 (food security), imposing a higher penalty for a body corporate is not
considered appropriate. This is because most community stores are non-
profit community-owned entities and would not necessarily have a significantly
higher capacity to pay a fine than an individual.
Subclause 75(7) clarifies that the court must take into account all relevant
matters, including:
� the nature and extent of the contravention;
� the nature and extent of any loss or damage suffered because of the
contravention;
� the circumstances in which the contravention took place; and
� whether the person has previously been found by a court to have
engaged in any similar conduct.
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Clause 76 deals with the civil enforcement of a penalty.
Subclause 76(1) clarifies that a pecuniary penalty is a debt payable to the
Commonwealth, and subclause 76(2) provides that the Commonwealth may
enforce a civil penalty order as if it were an order made in civil proceedings
against the person to recover a debt due by the person. The debt arising from
the order is taken to be a judgment debt.
Clause 77 relates to conduct contravening more than one civil penalty
provision.
Subclause 77(1) provides that, if conduct constitutes a contravention of two
or more civil penalty provisions, proceedings may be instituted under this Part
against a person in relation to the contravention of any one or more of those
provisions.
Subclause 77(2) clarifies that the person is not liable to more than one
pecuniary penalty under Part 8 in relation to the same conduct.
Clause 78 deals with multiple contraventions of civil penalty provisions.
Subclause 78(1) provides that a relevant court may make a single civil
penalty order against a person for multiple contraventions of a civil penalty
provision if proceedings for the contraventions are founded on the same facts,
or if the contraventions form, or are part of, a series of contraventions of the
same or similar character.
Subclause 78(2) provides that the penalty must not exceed the sum of the
maximum penalties that could be ordered if a separate penalty were ordered
for each of the contraventions.
Clause 79 provides that a relevant court may direct that two or more
proceedings for civil penalty orders are to be heard together.
Clause 80 provides that a relevant court must apply the rules of evidence and
procedure for civil matters when hearing proceedings for a civil penalty order.
Clause 81 clarifies that a contravention of a civil penalty provision is not an
offence.
Clause 82 provides that a relevant court may not make a civil penalty order
against a person for a contravention of a civil penalty provision if the person
has been convicted of an offence constituted by conduct that is the same, or
substantially the same, as the conduct constituting the contravention.
Clause 83 deals with criminal proceedings occurring during civil proceedings.
Subclause 83(1) provides that proceedings for a civil penalty order against a
person for a contravention of a civil penalty provision are stayed if:
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� criminal proceedings are commenced or have already been
commenced against the person for an offence; and
� the offence is constituted by conduct that is the same, or substantially
the same, as the conduct alleged to constitute the contravention.
Subclause 83(2) provides that the proceedings for the order may be resumed
if the person is not convicted of the offence. Otherwise, the proceedings are
dismissed and costs must not be awarded in relation to the civil proceedings.
Clause 84 provides that criminal proceedings may be commenced against a
person for conduct that is the same, or substantially the same, as conduct that
would constitute a contravention of a civil penalty provision regardless of
whether a civil penalty order has been made against the person in relation to
the contravention.
Clause 85 deals with the non-admissibility of evidence given in civil
proceedings.
Subclause 85(1) provides that evidence of information given, or evidence of
production of documents by an individual, is not admissible in criminal
proceedings against the individual if:
� the individual previously gave the evidence or produced the documents
in proceedings for a civil penalty order against the individual for an
alleged contravention of a civil penalty provision (whether or not the
order was made; and
� the conduct alleged to constitute the offence is the same, or
substantially the same, as the conduct alleged to constitute the
contravention.
Subclause 85(2) clarifies that subclause 85(1) does not apply to criminal
proceedings in relation to the falsity of the evidence given by the individual in
the proceedings for the civil penalty order.
Clause 86 deals with ancillary contravention of civil penalty provisions.
Subclause 86(1) provides that a person must not:
� attempt to contravene a civil penalty provision;
� aid, abet, counsel or procure a contravention of a civil penalty
provision;
� induce (by threats, promises or otherwise) a contravention of a civil
penalty provision;
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� be in any way directly or indirectly, knowingly concerned in, or party to,
a contravention of a civil penalty provision; or
� conspire with others to effect a contravention of a civil penalty
provision.
Subclause 86(2) clarifies that a person who contravenes subclause 86(1) in
relation to a civil penalty provision is taken to have contravened the provision.
Clause 87 sets out how to deal with continuing contravention of civil penalty
provisions.
Subclause 87(1) provides that, if an act or thing is required under a civil
penalty provision to be done within a particular period or before a particular
time, then the obligation to do that act or thing continues until the act or thing
is done (even if the period has expired or the time has passed).
Subclause 87(2) provides that a person who contravenes a civil penalty
provision that requires an act or thing to be done within a particular period or
before a particular time, commits a separate contravention of that provision in
respect of each day during which the contravention occurs (including the day
the relevant civil penalty order is made or any later day).
This means that the maximum penalty will continue to grow, the longer that a
person remains in contravention of the civil penalty provision. This is
specifically to provide a disincentive to continue to contravene civil penalty
provisions. If the maximum penalty were the same regardless of the length of
the breach, some stores would effectively be able to `buy' exemption from
ongoing licensing requirements by a single payment of civil penalty. This is
consistent with other legislation generally applying to other requirements of
stores.
Clause 88 deals with the defence of mistake of fact.
Subclause 88(1) provides that a person is not liable to have a civil penalty
order made against the person for a contravention of a civil penalty provision
if:
� at or before the time of the conduct constituting the contravention, the
person considered whether or not the facts existed and was under a
mistaken but reasonable belief about those facts; and
� has those facts existed, the conduct would not have constituted a
contravention of the civil penalty provision.
Subclause 88(2) provides that, for the purposes of subclause 88(1), a person
may be regarded as having considered whether or not facts existed if:
� the person had considered, on a previous occasion, whether those
facts existed in the circumstances surrounding that occasion; and
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� the person honestly and reasonably believed that the circumstances
surrounding the present occasion were the same, or substantially the
same, as those surrounding the previous occasion.
Subclause 88(3) clarifies that a person who wishes to rely on the defence of
mistake of fact in proceedings for a civil penalty order bears an evidentiary
burden in relation to that matter.
Clause 89 deals with the state of mind of a person in relation to civil penalty
provisions.
Subclause 89(1) provides that, in proceedings for a civil penalty order against
a person for a contravention of a civil penalty provision (other than
subclause 86(1)), it is not necessary to prove:
� the person's intention;
� the persons' knowledge;
� the person's recklessness;
� the person's negligence; or
� any other state of mind of the person.
Subclause 89(2) clarifies that subclause 89(1) does not affect the operation
of clause 88 about the defence of mistake of fact.
Subdivision B - Infringement notices
Infringement notices are considered an appropriate sanction for civil and
criminal provisions under the Part 4 because they provide the opportunity for
stores to settle an issue without requiring attendance at court and to reduce
the potential amount of the penalty to be paid under the civil and criminal
provisions. An infringement notice allows a person to pay a smaller fine equal
to one-fifth of the maximum amount a court could impose under the relevant
provision, without admitting liability, to avoid civil penalty proceedings.
Alternatively, the person can dispute the infringement notice and have their
case heard and the penalty determined by the court.
Clause 90 deals with when an infringement notice can be given.
Subclause 90(1) provides that, if the Secretary has reasonable grounds to
believe that a person has contravened an enforceable provision, the Secretary
may give to the person an infringement notice for the alleged contravention.
Enforceable provision is defined at clause 5 to be a civil penalty provision or
a provision of Part 4 that creates an offence.
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Subclause 90(2) provides that the infringement notice must be given within
12 months after the day the contravention is alleged to have taken place.
Subclause 90(3) provides that a single infringement notice must relate only to
a single contravention of a single civil penalty provision unless
subclause 90(4) applies.
Subclause 90(4) provides that the Secretary may give a person a single
infringement notice relating to multiple contraventions of a single provision if:
� the provision requires the person to do a thing within a particular period
or before a particular time;
� the person fails or refuses to do that thing within that period or before
that time;
� the failure or refusal occurs on more than one day; and
� each contravention is constituted by the failure or refusal on one of
those days.
A note to subclause 90(4) directs the reader to subsection 4K(2) of the Crimes
Act 1914 in relation to continuing offences and clause 87 for continuing
contraventions of civil penalty provisions.
Clause 91 deals with matters to be included in an infringement notice.
Subclause 91(1) provides that an infringement notice must:
� be identified by a unique number;
� state the day it is given;
� state the name of the person to whom the notice is given;
� state the name of the person who gave the notice;
� give brief details of the alleged contravention, including:
- the provision that was allegedly contravened;
- the maximum penalty a court could impose for the
contravention; and
- the time (if known) and day of, and the place of, the alleged
contravention; and
� state the amount that is payable under the notice;
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� given an explanation of how payment of the amount is to be made;
� state that, if the person to whom the notice is given pays the amount
within 28 days after the day the notice is given, then (unless the notice
is withdrawn):
- if the provision is an offence provision and does not also
constitute a civil penalty provision - the person will not be liable
to be prosecuted in a court for the alleged contravention (this
ensures that a person who pays an amount under an
infringement notice for an alleged contravention of an offence
provision is not liable to be prosecuted for that offence following
making the payment); or
- if the provision is an offence provision that can also constitute a
civil penalty provision - the person is not liable to be prosecuted
in a court, and proceedings seeking a civil penalty order will not
be brought, in relation to the alleged contravention (this ensures
that a person who pays an amount under an infringement notice
for an alleged contravention of an offence provision, that can
also constitute a civil penalty, is not liable to be prosecuted for
the offence or subject to proceedings for that civil penalty
following making the payment); or
- if the provision is a civil penalty provision - proceedings seeking
a civil penalty order will not be brought in relation to the alleged
contravention (this ensures that a person who pays an amount
under an infringement notice for an alleged contravention of a
civil penalty provision is not liable to be subject to proceedings
for that civil penalty following making the payment); and
� state that payment of the amount is not an admission of guilt or liability;
� state that the person may apply to the relevant Secretary to have the
period in which to pay the amount extended;
� state that the person may choose not to pay the amount and, if the
person does so:
- if the provision is an offence provision and does not also
constitute a civil penalty provision - the person may be
prosecuted in a court for the alleged contravention; or
- if the provision is an offence provision and can also constitute a
civil penalty provision - the person may be prosecuted in a
court, or proceedings seeking a civil penalty order may be
bought, kin relation to the alleged contravention; or
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- if the provision is a civil penalty provision - proceedings seeking
a civil penalty order may be brought in relation to the alleged
contravention; and
� set out how the notice can be withdrawn;
� state that, if the notice is withdrawn:
- if the provision is an offence provision and does not also
constitute a civil penalty provision - the person may be
prosecuted in a court for the alleged contravention; or
- if the provision is an offence provision and can also constitute a
civil penalty provision - the person may be prosecuted in a
court, or proceedings seeking a civil penalty order may be
brought, in relation to the alleged contravention; or
- if the provision is a civil penalty provision - proceedings seeking
a civil penalty order may be brought in relation to the alleged
contravention; and
� state that the person may make written representations to the
Secretary seeking the withdrawal of the notice.
Subclause 91(2) provides that, for the purposes of the amount payable under
the notice and required to be in the notice under paragraph 91(1)(f), the
amount must be equal to one-fifth of the maximum penalty that the court could
impose on the person for that contravention.
Clause 92 deals with extensions of time to pay an infringement notice
amount. This allows a person to seek additional time if they are not able to
pay the amount within the original 28 day notice period. Extension can also
occur more than once.
Subclause 92(1) allows a person to apply to the Secretary for an extension of
the period to pay as stated in an infringement notice and required by
paragraph 91(1)(h).
Subclause 92(2) provides that, if the application is made before the end of
that period, the Secretary may, in writing, extend that period. The Secretary is
able to do this before or after the end of the period.
Subclause 92(3) provides that, if the period is extended, a reference in
Division 3 or in a notice or other instrument under Division 3 to the period to
pay as stated in an infringement notice and required by paragraph 91(1)(h) is
taken to be a reference to the extended period.
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Subclause 92(4) provides that, if the Secretary does not extend the period, a
reference in Division 3 or a notice or other instrument under Division 3 to the
period to pay as stated in an infringement notice and required by
paragraph 91(1)(h) is taken to be a reference to the period that ends on the
later of the following days:
� the day that is the last day of the period referred to in
paragraph 91(1)(h); or
� the day that is seven days after the day the person was given notice of
the Secretary's decision not to extend.
Subclause 92(5) clarifies that the Secretary may extend the period more than
once under subclause 91(2).
Clause 93 deals with withdrawal of an infringement notice. It allows people to
apply for withdrawal by making submissions and ensures that the Secretary
must take into account those submissions.
Subclause 93(1) provides that a person to whom an infringement notice has
been given may make written representations to the Secretary seeking
withdrawal of the notice.
Subclause 93(2) provides that the Secretary may withdraw an infringement
notice given to a person (whether or not the person has made written
representations seeking the withdrawal).
Subclause 93(3) provides that, when deciding whether or not to withdraw an
infringement notice, the Secretary:
� must take into account any written representations seeking the
withdrawal that were given by the person to the authorised officer; and
� may take into account the following:
- whether a court has previously imposed a penalty on the person
for a contravention of an enforceable provision (enforceable
provision is defined at clause 5 to be a civil penalty provision or
a provision of Part 4 that creates an offence);
- the circumstances of the alleged contravention;
- whether the person has paid an amount, stated in an earlier
infringement notice, for a contravention of an enforceable
provision if the contravention is constituted by conduct that is the
same, or substantially the same, as the conduct alleged to
constitute the contravention in the relevant infringement notice;
- any other matter the Secretary considers relevant.
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The Secretary may give a different weight to each criterion in considering it,
depending on the particular circumstances of the contravention.
Subclause 93(4) provides that notice of the withdrawal of the infringement
notice must be given to the person and must state:
� the person's name and address;
� the day the infringement notice was given;
� the identifying number of the infringement notice;
� that the infringement notice is withdrawn; and
� that:
- if the provision is an offence provision and does not also
constitute a civil penalty provision - the person may be
prosecuted in a court for the alleged contravention; or
- if the provision is an offence provision and can also constitute a
civil penalty provision - the person may be prosecuted in a
court, or proceedings seeking a civil penalty order may be
brought, in relation to the alleged contravention; or
- if the provision is a civil penalty provision - proceedings seeking
a civil penalty order may be brought in relation to the alleged
contravention.
Subclause 93(5) provides that, if the Secretary withdraws the infringement
notice and the person has already paid the amount stated in the notice, the
Commonwealth must refund to the person an amount equal to the amount
paid.
Clause 94 deals with the effect of paying an infringement notice amount. It
provides that a person cannot be prosecuted nor can civil penalty proceedings
be brought against that person for the civil penalty to which the infringement
notice relates.
Subclause 94(1) provides that, if the person to whom an infringement notice
for an alleged contravention of an enforceable provision is given pays the
amount stated in the notice before the end of the period referred to in
paragraph 91(1)(h):
� any liability of the person for the alleged contravention is discharged;
� either:
- if the provision is an offence provision - the person may not be
prosecuted in a court for the alleged contravention; or
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- if the provision is a civil penalty provision - civil penalty
proceedings seeking a civil penalty order may not be brought
against the person in relation to the alleged contravention; and
� the person is not regarded as having admitted guilt or liability for the
alleged contravention; and
� if the provision is an offence provision - the person is not regarded as
having been convicted of the alleged offence.
Subclause 94(2) clarifies that subclause 94(1) does not apply if the notice
has been withdrawn.
Clause 95 deals with the effect of Division 8.
Subclause 95(1) provides that Division 8 does not:
� require an infringement notice to be given to a person for an alleged
contravention of an enforceable provision (enforceable provision is
defined at clause 5 to be a civil penalty provision or a provision of
Part 4 that creates an offence); or
� affect the liability of a person for an alleged contravention of an
enforceable provision if:
- the person does not comply with an infringement notice given to
the person for the contravention; or
- an infringement notice is not given to the person for the
contravention; or
- an infringement notice is given to the person for the
contravention and is subsequently withdrawn; or
� prevent the giving of two or more infringement notices to a person for
an alleged contravention of an enforceable provision; or
� limit the court's discretion to determine the amount of a penalty to be
imposed on a person who is found to have contravened an enforceable
provision (`enforceable provision' is defined at clause 5 to be a civil
penalty provision or a provision of Part 4 that creates an offence).
Subdivision C - Enforceable undertakings
Enforceable undertakings are a type of administrative sanction that allows the
Secretary and a person to agree to that person's undertaking to comply with
an enforceable provision. Enforceable provision is defined at clause 5 to be
a civil penalty provision or a provision of Part 4 that creates an offence.
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An undertaking to comply with an enforceable provision may be to take or
refrain from taking specified action to comply, or to take specified action
directed towards ensuring compliance or avoiding contravention. The
Secretary will be able to take a person who has given an enforceable
undertaking to a court to enforce the undertaking, if necessary. The relevant
court will be able to make a number of different orders depending on the
circumstances.
Enforceable undertakings are a valuable enforcement tool as they are
non-adversarial and allow for a conversation between the person and the
Secretary with a view to complying with the Bill. They also promote a culture
of compliance within regulatory regimes and encourage correction of
contraventions rather than penalties. Rather than issuing an infringement
notice or instigating civil penalty proceedings, a consensual agreement as to
an enforceable undertaking may be an appropriate policy outcome where the
Secretary is aware that an enforceable provision is or may be breached, but
where the person is able to assure the Secretary that certain steps can be
taken to remedy the breach or potential breach. Use of an enforceable
undertaking does not affect the Secretary's other powers in relation to
infringement notices, civil penalty proceedings and injunctions. That is, other
powers are not precluded from being used if an enforceable undertaking has
been agreed to.
In the context of food security, enforceable undertakings will allow the
Secretary to work with a community store to remedy breaches or potential
breaches for the purposes of achieving an appropriate level of food security
for an Aboriginal community. Although other regulatory powers will be
available to the Secretary, recourse to those other powers are intended to be
unnecessary should an enforceable undertaking be agreed to and complied
with.
When considering whether to use enforceable undertakings in relation to
Part 4, the Secretary may have regard to the surrounding circumstances of
the breach (including potential breaches) in question, including:
� whether the breach was inadvertent;
� whether person/s involved in the breach have been co-operative,
including providing information where relevant;
� whether an enforceable undertaking will achieve an effective outcome
for those who have been adversely affected by the breach; and
� whether the person is likely to comply with the enforceable undertaking.
The Secretary may not use enforceable undertakings where other powers are
considered more appropriate.
Clause 96 deals with the acceptance of enforceable undertakings.
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Subclause 96(1) provides that the Secretary may accept any of the following
undertakings:
� a written undertaking given by a person that the person will, in order to
comply with an enforceable provision, take specified action;
� a written undertaking given by a person that the person will, in order to
comply with an enforceable provision, refrain from taking specified
action; or
� a written undertaking given by a person that the person will take
specified action directed towards ensuring that the person does not
contravene an enforceable provision, or is unlikely to contravene such
a provision, in the future.
Subclause 96(2) provides that the undertaking must be expressed to be an
undertaking under clause 96. This ensures that there will be no confusion as
to whether an enforceable undertaking has been made, and also that written
agreements not specifically stated to be enforceable undertakings made
under clause 96 cannot be considered an enforceable undertaking.
Subclause 96(3) provides that the person may withdraw or vary the
undertaking at any time with the written consent of the Secretary.
Subclause 96(4) provides that the consent of the Secretary is not a legislative
instrument. This provision is included to assist readers, as the written consent
of the Secretary is not a legislative instrument within the meaning of section 5
of the Legislative Instruments Act 2003.
Subclause 96(5) provides that the Secretary may, by written notice given to
the person, cancel the undertaking.
Clause 97 deals with enforcement of undertakings. It allows the Secretary to
apply to a relevant court for certain orders to enforce the undertaking.
Subclause 97(1) provides that, if:
� a person has been given an undertaking under clause 96;
� the undertaking has not been withdrawn or cancelled; and
� and authorised officer considers that the person has breached the
undertaking,
the Secretary may apply to a relevant court for an order under
subclause 97(2).
Subclause 97(2) provides that, if the relevant court is satisfied that the person
has breached the undertaking, the court may make any or all of the following
orders:
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� an order directing the person to comply with the undertaking;
� an order directing the person to pay to the Commonwealth an amount
up to the amount of any financial benefit that the person has obtained
directly or indirectly and that is reasonably attributable to the breach;
� any order that the court considers appropriate directing the person to
compensate any other person who has suffered loss or damage as a
result of the breach;
� any other order that the court considers appropriate.
Subdivision D - Injunctions
Injunctions are court orders that require restraint from conduct or performance
of certain things. In relation to community stores, they are intended to be
used in situations where the conduct or the refusal to do certain things carries
unacceptable risks of harm either to the store or its customers.
Clause 98 deals with the grant of injunctions.
Subclause 98(1) provides that, if a person has engaged, is engaging or
proposes to engage, in conduct in contravention of an enforceable provision,
a relevant court may, on application by an authorised officer, grant an
injunction:
� restraining the person from engaging in the conduct; and
� if, in the court's opinion, it is desirable to do so - requiring the person to
do a thing.
Subclause 98(2) provides that, if:
� a person has refused or failed, or is refusing or failing, or is proposing
to refuse or fail, to do a thing; and
� the refusal or failure was, is or would be a contravention of a provision
enforceable under Part 8,
the court may, on application by an authorised officer, grant an injunction
requiring the person to do that thing.
Clause 99 deals with the grant of interim injunctions. These are injunctions
that can be obtained urgently, without being able to require an applicant for an
injunction to give an undertaking as to damages, prior to the grant of an
injunction under clause 98.
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Part 4 - Food security
Subclause 99(1) provides that, before deciding an application under
clause 98, a relevant court may grant an interim injunction restraining a
person from engaging in conduct or requiring a person to do a thing.
Subclause 99(2) provides that the court must not require an applicant for an
injunction under clause 98 to give an undertaking as to damages as a
condition of granting an interim injunction.
Clause 100 clarifies that a relevant court may discharge or vary an injunction
granted by the court under Division 5.
Clause 101 deals with certain limits on granting restraining or performance
injunctions that do not apply.
Subclause 101(1) provides that the power of a relevant court under Division 5
to grant an injunction restraining a person from engaging in conduct may be
exercised:
� whether or not it appears to the court that the person intends to engage
again, or to continue to engage, in conduct of that kind;
� whether or not the person has previously engaged in conduct of that
kind; and
� whether or not there is an imminent danger of substantial damage to
any other person if the person engages in conduct of that kind.
Subclause 101(2) provides that the power of a relevant court under Division 5
to grant an injunction requiring a person to do a thing may be exercised:
� whether or not it appears to the court that the person intends to refuse
or fail again, or to continue to refuse or fail, to do that thing;
� whether or not the person has previously refused or failed to do that
thing; and
� whether or not there is an imminent danger of substantial damage to
any other person if the person refuses or fails to do that thing.
Clause 102 provides clarifies that the powers conferred on a relevant court
under Division 5 are in addition to, and not instead of, any other powers of the
court, whether conferred by the Bill or otherwise.
Subdivision E - Civil jurisdiction of courts
Clause 103 deals with the civil jurisdiction of courts.
Subclause 103(1) clarifies that jurisdiction is conferred on a court referred to
in an item in the table below in relation to civil matters arising under the Bill,
subject to the limits on the court's jurisdiction (if any) specified in the item:
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Part 4 - Food security
Civil jurisdiction of courts
Item Court on which civil Limits of jurisdiction
jurisdiction is conferred
1 The Federal Court of Australia No specified limits.
2 The Federal Magistrates Court No specified limits.
3 A superior court, or lower The court's general
court, of the Northern jurisdictional limits, including
Territory limits as to locality and
subject matter.
Subclause 103(2) clarifies that jurisdiction is conferred on the courts of the
Northern Territory only to the extent that the Constitution permits.
Subclause 103(3) clarifies that section 15C of the Acts Interpretation
Act 1901, regarding the jurisdiction of courts, does not apply to civil
proceedings under the Bill.
Division 9 - Other matters
Division 9 deals with:
� information about criminal history;
� legal professional privilege;
� application of Northern Territory laws to community stores;
� interaction with other Commonwealth laws;
� Administrative Appeals Tribunal review; and
� powers to request information from and disclose information to public
officials.
Subclause 104(1) empowers the Secretary, by written notice given to an
individual who is the owner, the manager or an employee of a community
store or another person involved in a community store, to request the
individual to give to the Secretary any written consent that the Secretary
requires to enable criminal records to be checked for the purposes of Part 4
(food security). To establish that a person is of good character, it can be
important to look at information about a person's criminal history, outside of
spent convictions for matters which may impact on the running of the store or
the willingness of people to patronise the store. For example, a person with a
history of fraud or dishonesty, intimidation, or offences against children may
be considered to not be of good character and may be unsuitable to be
involved in the community store.
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Part 4 - Food security
Subclause 104(2) clarifies that Part 4 (food security) does not affect the
operation of Part VIIC of the Crimes Act 1914 (which includes provisions that,
in certain circumstances, relieve persons from the requirement to disclose
spent convictions and require persons aware of such convictions to disregard
them).
Clauses 105 and 106 authorise disclosure of information, including personal
information, to the Secretary or by the Secretary to certain government
agencies or representatives.
The Privacy Act 1988 prohibits the disclosure by government officers of
personal information except in particular circumstances. One of the
circumstances where disclosure of personal information is permitted is when
that disclosure is authorised by law. Subclause 105(1) empowers the
Secretary, by written notice, to request a Department, agency or authority of
the Commonwealth, a State or a Territory, or a person who holds an office or
appointment under a law of the Commonwealth, a State or a Territory, to give
the Secretary information specified in the request that the Secretary considers
is reasonably necessary for the purposes of Part 4.
These clauses are necessary as authorised officers will not usually be
qualified or authorised to assess compliance with other legislative
requirements specific to areas such as food handling, occupational health and
safety and compliance with tobacco and other licensing requirements,
although the level of compliance can be relevant to the grant of a licence or
conditions placed upon the licence. The provision will allow the Secretary to
obtain up-to-date information on compliance with other legislation, and it will
also enable the Secretary to monitor responses where other agencies have
been requested to address particular store issues that are within their
responsibility.
Subclause 105(2) clarifies that the disclosure of personal information in
response to a request under this clause is taken to be a disclosure that is
authorised by law for the purposes of the Privacy Act 1988.
Clause 106 sets out when disclosure of information, including personal
information, by the Secretary is permitted. The primary purpose of this clause
is to put beyond doubt the capacity to exchange relevant information with
other agencies responsible for particular aspects of store operations such as
food handling, occupational health and safety and tobacco and other licensing
arrangements. Authorised officers are not empowered to act on behalf of
these agencies although problems can be relevant to the licensing process.
Where they observe potential problems related to other Commonwealth and
Territory laws this clause allows referral to the relevant agencies to enable
investigation of the issue and appropriate follow-up actions including training
and support.
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Part 4 - Food security
Subclause 106(1) provides that clause 106 applies if the Secretary is
satisfied that disclosure of information obtained by the Secretary as a result of
the performance of functions or the exercise of powers under Part 4 is
reasonably necessary for:
� the enforcement of a law of the Commonwealth, a State or a Territory
that creates an offence or imposes a pecuniary penalty; or
� the protection of public health or safety.
Subclause 106(2) provides that the Secretary may disclose, or authorise the
disclosure of, the information to:
� a Department, agency or authority of the Commonwealth, a State or a
Territory; or
� a person who holds an office or appointment under a law of the
Commonwealth, a State or a Territory; or
� the Australian Federal Police; or
� a police force or police service of a State or Territory.
The effect of this provision is that, when the Secretary discloses information in
accordance with the provision, then the disclosure of the information (and,
subsequently, the recording or use of the information for the purpose for which
the information is requested) will be authorised for the purposes of the Privacy
Act 1988. A record will be kept of all disclosures made under clause 106,
consistent with best practice record keeping and Information Privacy Principle
11.3 under the Privacy Act 1988.
Clause 107 clarifies that Part 4 does not affect the law relating to legal
professional privilege.
With respect to the application of Northern Territory laws to community stores,
clause 108 clarifies that, to the extent that a Northern Territory law is capable
of operating concurrently with Part 4 (food security), this Part does not affect
the application of the law to a community store or to the owner or manager of
a community store. This means Northern Territory legislation such as the
Food Act still applies.
Clause 109 clarifies the interaction of Part 4 (food security) with the
Competition and Consumer Act 2010. This provision has been included
because, in licensing a community store, there are a number of broad areas
where the Competition and Consumer Act 2010 could potentially limit the
Commonwealth's ability to improve the quality of the service provided by
particular stores. The exception provisions of the Competition and Consumer
Act 2010 are invoked in this Bill by this clause.
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Part 4 - Food security
Subclause 109(1) clarifies that Part 4 (food security) has effect despite the
Competition and Consumer Act 2010.
Subclause 109(2) is made for the purposes of subclause 51(1) of the
Competition and Consumer Act 2010 and clarifies the following things that are
to be regarded as specified in this clause and specifically authorised by this
clause:
a) giving an authorisation under subclause 38(5);
b) determining under subclause 41(1) whether the owner of a community
store is required to hold a community store licence;
c) making an application for a community store licence under
clause 44(1);
d) determining under subclause 45(1) whether to grant a community store
licence;
e) determining under subclause 52(1) to impose a condition of a
community store licence;
f) making an application to vary a community store licence under
subclause 57(1);
g) determining under subclause 58(1) whether to vary a community store
licence (including varying or refusing to vary the conditions of the
licence);
h) determining under subclause 59(1) to revoke a community store
licence;
i) determining under subclause 62(1) that the owner of a community store
is required to become registered under the CATSI Act;
j) determining under subclause 65(1) to revoke a community store
licence;
k) requiring an authorised officer to assess a community store under
clause 67;
l) determining under subclause 74(1) that an area in the Northern
Territory is not in the food security area;
m) taking any action in connection with an action referred to in any of the
above paragraphs; and
n) taking any action (including an action taken by the Commonwealth, a
Commonwealth authority, the holder of a community store licence or a
person acting in accordance with a community store licence), being an
action that is:
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Part 4 - Food security
(i) required by a community store licence; or
(ii) authorised by a community store licence; or
(iii) in connection with an action referred to in subparagraph (i)
or (ii).
Clause 110 allows for review of certain determinations made by the Secretary
under Part 4. The following determinations can be reviewed by the
Administrative Appeals Tribunal:
� a determination under subclause 41(1) that a community store licence
is required in relation to a community store;
� a determination under subclause 45(1) to refuse to grant a community
store licence;
� a determination under subclause 52(1) to impose conditions on a
community store licence;
� a determination under subclause 58(1) to refuse to vary a community
store licence;
� a determination under subclause 59(1) to revoke a community store
licence;
� a determination under subclause 62(1) that an owner of a community
store is required to be registered under the CATSI Act; and
� a determination under subclause 65(1) to revoke a community store
licence.
77
Part 5 - Other matters
Summary
Part 5 concerns the miscellaneous provisions of the Bill, including the
independent review and sunset of the measures.
Division 1 - Introduction
Clause 111 provides a guide to Part 5 of the Bill.
Division 2 - Miscellaneous
Clause 112 provides an express power of delegation so that the
Commonwealth Minister for Indigenous Affairs and the Secretary are able to
delegate the functions or powers they have under the Act. This may be
appropriate for functions or powers that are of an administrative nature that
can be delegated to the Secretary or a Senior Executive Service employee.
Subclause 112(1) allows for the Commonwealth Minister for Indigenous
Affairs, in writing, to delegate his or her functions or powers to the Secretary
of the Department or a Senior Executive Service employee or acting Senior
Executive Service employee under this Act.
Subclause 112(2) allows the Secretary, in writing, to delegate his or her
functions or powers to a Senior Executive Service employee or an acting
Senior Executive Service employee under this Act.
Clause 113 concerns references in Commonwealth or Northern Territory laws
regarding the Act.
Subclause 113(1) provides that a reference in a law of the Commonwealth, or
a law of the Northern Territory, to a law of the Northern Territory includes a
reference to a law of the Northern Territory as modified by this Act or
regulations made under this Act.
Subclause 113(2) is a similar provision to subclause 113(1), except that it
refers to references to an offence against a law of the Northern Territory.
Subclause 113(3) provides that references in a law of the Commonwealth, or
a law of the Northern Territory, to a law of the Commonwealth does not
include a reference to a law of the Northern Territory as modified by this Act or
regulations under this Act.
Subclause 113(4) provides that a reference in a law of the Northern Territory
to a particular law of the Northern Territory includes a reference to that law as
modified by this Act or regulations made under this Act.
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Part 5 - Other matters
Clause 114 provides that, where this Act or regulations made under this Act
modify a Northern Territory Act or Northern Territory regulation, the
Interpretation Act of the Northern Territory and any other Northern Territory
Act of general application apply to this Act and regulations made under this
Act.
Clause 115 provides that section 49 of the Northern Territory
(Self-Government) Act 1978 does not apply in relation to this Act.
Clause 116 provides that compensation is payable when there is an
acquisition of property, due to the operation of the Act, as set out in
paragraph 51(xxxi) of the Australian Constitution.
Subclause 116(1) sets out that subsection 50(2) of the Northern Territory
(Self-Government) Act 1978 and section 128A of the Liquor Act do not apply
in relation to any acquisition of property referred to in those provisions due to
the operation of this Act.
Subclause 116(2) provides that, if there is an acquisition of property to which
paragraph 51(xxxi) of the Constitution applies, and the acquisition was
otherwise than on just terms, the Commonwealth is liable to pay a reasonable
amount of compensation to the person whose property was acquired.
Subclause 116(3) provides that, where an amount of compensation is not
agreed upon by the Commonwealth and the person whose property has been
acquired, that person has recourse to commence proceedings in a court of
competent jurisdiction for the recovery of a reasonable amount of
compensation as that court determines.
Subclause 116(4) notes that acquisition of property and just terms have
the same meaning as provided for in paragraph 51(xxxi) of the Australian
Constitution.
Clause 117 legislates for a review of the Act after it has been in force for
some time.
Subclause 117(1) provides that the Commonwealth Minister for Indigenous
Affairs must facilitate an independent review of the first seven years of
operation of the Act.
Subclause 117(2) provides that the review must assess the effectiveness of
the special measures in the Act and consider any other matter specified by
the Commonwealth Minister for Indigenous Affairs.
Subclause 117(3) provides that the review must be completed, and a report
must be prepared, before the end of eight years after commencement.
Subclause 117(4) provides that the persons undertaking the review must give
the report of the review to the Commonwealth Minister for Indigenous Affairs.
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Part 5 - Other matters
Subclause 117(5) provides that the Commonwealth Minister for Indigenous
Affairs must cause a copy of the report to be tabled in each House of the
Parliament within 15 sitting days of receiving it.
Subclause 118(1) provides for a sunset provision, where the Act will cease to
have effect 10 years after commencement. Subclause 118(2) states that the
regulations may prescribe matters of a transitional nature arising out of this
Act ceasing to have effect in accordance with subclause 118(1).
Clause 119 allows the Commonwealth Minister for Indigenous Affairs to
make, by legislative instrument, rules required or permitted by this Act or rules
that are necessary or convenient to be prescribed for carrying out or giving
effect to the Act.
Clause 120 provides that the Governor-General may make regulations on
various matters relating to the Act. This includes those required or permitted
by the Act or necessary or convenient to be prescribed for carrying out or
giving effect to the Act.
80
Stronger Futures in the Northern Territory Bill - Alcohol Proposals
Regulation Impact Statement / Post Implementation Review
Department of Families, Housing,
Community Services and Indigenous Affairs
November 2011
1
Contents
1. Background
2. The nature of the problem
3. Evidence on the magnitude of the problem
4. Current strategies in place aimed at minimising alcohol related harm
5. Objectives
6. Options
7. Assessment of impacts
8. Small business impacts
9. Consultation statement
10. Strategy to implement and review the proposals
11. Conclusion
12. References
2
1. Background
In June 2011 the Government issued the Stronger Futures in the Northern
Territory Discussion Paper which sought views on options for reducing alcohol
consumption and alcohol related harm. These options included retaining the
alcohol restrictions established under the Northern National Emergency
Response Act 2007 (NTNER Act). The current Northern Territory Emergency
Response (NTER) alcohol restrictions in prescribed areas in remote parts of
the Northern Territory (NT) are due to sunset in August 2012.
2. The nature of the problem
The World Health Organisation (WHO) identifies the harmful use of alcohol as
a global problem which impacts on both individual and social development.
Alcohol related harm extends far beyond the physical and psychological
health of the drinker and its impact reaches deep into society. Alcohol is
associated with many serious social and developmental issues, including
violence, child neglect and abuse, and absenteeism in the workplace. Alcohol
is the world's third largest risk factor for disease burden; it is the leading risk
factor in the Western Pacific and the Americas and the second largest in
Europe. It is a leading factor for disease burden in Australia including in the
NT.
What is harmful drinking?
The impact of alcohol consumption on disease and injury is largely
determined by two separate but related dimensions of drinking:
� the total volume of alcohol consumed, and
� the pattern of drinking.
A broad range of alcohol consumption patterns, from occasional hazardous
drinking to daily heavy drinking, creates significant public health and safety
problems in nearly all countries. One of the key characteristics of the
hazardous pattern of drinking is the presence of heavy drinking occasions,
defined by the WHO as consumption of 60 or more grams of pure alcohol per
drinking occasion.
Social environment plays a significant role in both the volume of alcohol
consumed and the patterns of drinking engaged in by different groups across
populations. In the NT, an important and relevant feature is the high level of
drinking across the Territory. In 2007, it was estimated that 88.7 per cent of
non-Indigenous adults in the NT had consumed alcohol in the previous 12
months, compared to 84.6 per cent of the rest of Australians. As in other
places, there are local drinking patterns and different groups engage in
different volumes and patterns of drinking. A 2006 estimate of drinking
patterns showed that 55 per cent of urban Territorians over 18 years drank
regularly. Of these 77.7 per cent did not drink on more than one or two days
in a week. On days when they did drink the level of consumption was more
3
than five standard drinks. Overall, the proportion of NT non-Indigenous
alcohol drinkers is greater than the national average in all age groups.
Among adults in the NT who consumed alcohol, 30 per cent reported drinking
alcohol at a risky or high risk level. Men in the age group 45 years and above
(40 per cent) and women in the age group 35-44 (39 per cent) were more
likely to consume alcohol at risky or high risk levels than other groups.
Alcohol prevalence among Indigenous people in the NT living in remote and
non-remote areas differs significantly. Remote area Indigenous residents (45
per cent) were less likely to consume alcohol than non-remote residents (66
per cent). Of those who consumed alcohol, the level of risk differed by gender.
In remote areas, Indigenous women were more likely (22.8%) to consume
alcohol at risky levels than Indigenous men (14.1%). In non-remote areas, the
consumption at risky levels is similar for Indigenous men and women (22.7%
and 21.2%, respectively). Conversely, more Indigenous men in remote areas
consumed alcohol (14.8%) at high risk levels than in non-remote areas
(10.4%), and Indigenous women in remote areas (7.6%) were less likely to
consume alcohol at high risk levels than in non-remote areas (8.9%).
This illustrates the different drinking levels by age and gender and suggests
that there are a wide range of patterns and responses that policy needs to
take into account to be effective.
Who is at risk from harmful use of alcohol?
The degree of risk for harmful use of alcohol varies with age, gender and
other characteristics of the consumer. In addition the level of exposure to
alcoholic beverages and the setting and context in which the drinking takes
place also play a role. For example, alcohol is the world's third largest risk
factor for disease burden. It is the leading risk factor for disease burden in the
Western Pacific. Alcohol consumption by an expectant mother may cause
foetal alcohol syndrome and pre-term birth complications, which are
detrimental to the health and development of the unborn child. These effects
continue through a child's life affecting education, employment and social
relationships.
4
The figure below shows the global risk factors by income with alcohol use
third from the top.
Figure: Global percentages of DALYs (1) attributed to 19 leading risk factors by income
group. Source: Global Health Risks (2009)
The long term risk associated with regular daily patterns of alcohol
consumption is defined by the total amount of alcohol typically consumed per
week. A 2007 survey showed 17.2 per cent of non-Indigenous NT adults
consumed alcohol in quantities that were considered risky or of high risk to
health in the long-term. These levels are considerably higher than the national
average of 10.6 per cent.
The short-term risk associated with given levels of drinking on a single day
assumes that overall drinking patterns remain within levels set for long term
risk. In the NT, 28.7 per cent of non-Indigenous adults were reported as
drinking at a risky or high risk level for harm in the short-term. This was
greater than the national average (20.4 per cent). Overall, one in three NT
non-Indigenous men (33 per cent) and almost one in four women (23.6
percent) are at risk of short-term alcohol related harm.
1
The disability-adjusted life year (DALY) extends the concept of potential years of
life lost due to premature death to include equivalent years of "healthy" life lost
by virtue of being in states of poor health or disability.
5
Guidance for policy
There is a substantial evidence-base that exists for policy makers on the
effectiveness and cost effectiveness of a range of strategies directed to
reducing alcohol related harm. These strategies include:
� regulating the marketing of alcoholic beverages (in particular to
younger people);
� regulating and restricting availability of alcohol;
� enacting appropriate drink-driving policies;
� raising awareness and support for policies;
� providing accessible and affordable treatment for people with alcohol-
use disorders; and
� implementing screening programmes and brief interventions for
hazardous and harmful use of alcohol.
In 2010, the World Health Assembly approved a resolution to endorse a global
strategy to reduce the harmful use of alcohol. The resolution urged countries
to strengthen national responses to public health problems caused by the
harmful use of alcohol.
The policy options and approaches identified by the World Health Assembly
for national action can be grouped into ten recommended target areas, which
are mutually supportive and complementary. These areas are:
� leadership, awareness and commitment;
� health services' response;
� community action;
� drink-driving policies and countermeasures;
� availability of alcohol;
� marketing of alcoholic beverages;
� pricing policies;
� reducing the negative consequences of drinking and alcohol
intoxication;
� reducing the public health impact of illicit alcohol and informally
produced alcohol; and
� monitoring and surveillance.
The Global Information System on Alcohol and Health (GISAH) has been
developed by the World Health Organisation (WHO) to present data on levels
and patterns of alcohol consumption, alcohol-attributable health and social
consequences and policy responses at all levels.
There are also a range of popular approaches as leading measures for
reducing alcohol related harm for which there is not a significant evidence
base. These approaches include school based education, public education,
warning labels, and advertising restrictions. These approaches are used to
change knowledge, attitudes and behaviours. The evidence indicates that
such measures may have some indirect impact, improve knowledge, and
raise public awareness if they are part of a wider context of community action
6
(Edwards et al. 1995, p. 208). There are also areas where research is
emerging or not yet being conducted.
Mass media campaigns have some effect in changing public opinion about
harmful alcohol consumption but there is little research that indicates that
campaigns have had a significant impact on behaviour.
Approaches to harmful drinking
There are many reasons why people drink alcohol. There are also many
reasons why drinking alcohol becomes addictive for some people. As
indicated above there is a growing body of evidence about the range of policy
interventions. However, success in achieving and sustaining substantial
reductions in alcohol related harm has been partial and difficult to achieve. In
the face of uncertainty and the limitations of the available research, policy-
makers internationally and nationally have adopted the "precautionary
principle" to guide approaches to alcohol harm reduction. The precautionary
principle involves acting to avoid serious or irreversible potential harm, even
where there may be limited scientific certainty as to the likelihood, magnitude
or causes of that harm. Approaches based on the precautionary principle are
concerned with the prevention of harmful risk, shifting the burden of proof to
those who promote a harmful activity, and offering broadly based policy
options directed to the public interest and the protection of the vulnerable.
The NTER alcohol restrictions which were applied in the prescribed areas
under the NTER legislation followed on a range of NT-wide and local alcohol
reforms over the past two decades. Many of the communities which fall within
the prescribed areas to which the NTER restrictions apply were "dry"
communities before the NTER began. The NTER restrictions, however,
applied to a number of communities that did not previously have restrictions
and to areas of land beyond the boundaries of the communities. More
information is provided on the NTER alcohol restrictions below.
7
3. Evidence on the magnitude of the problem
The social and economic costs of alcohol consumption in the NT are higher
than in other states and territories.
Harms
The NT has the highest rate of alcohol-attributable deaths and hospitalisations
in the country. Alcohol-attributable deaths occur in the NT at about 3.5 times
the rate they do nationally. It is estimated that there were 120 and 119
alcohol-attributable deaths in the NT in 2004-05 and 2005-06 respectively, at
corresponding age-standardised rates of 7.2 and 7.8 per 10,000 adult
population. Rates for non-Aboriginal people in the NT are about double the
national rate, while they were 9 to 10 times higher in Aboriginal people (Skov,
Chikritzhs, Li, Pircher and Whetton 2010).
The NT stands out for the high proportion of road deaths associated with
alcohol consumption with 55 per cent of road deaths associated with high risk
drinking (Northern Territory Department of Transport and Infrastructure 2004).
Sixty per cent of all assaults and 67 per cent of domestic violence incidents in
the NT are alcohol related. Across the NT in 2009 there were 54,000
incidents of people taken into police protective custody due to alcohol misuse
(NT Government 2010).
There were 2,319 and 2,544 alcohol-attributable hospitalisations in the NT in
2004-05 and 2005-06 respectively, at corresponding rates of 146.6 and 157.7
per 10,000 population (more than twice the national rate) (Skov et al. 2010).
While not NT specific, recent analysis by the Cancer Council shows an
association between cancer and long-term alcohol consumption. Overall,
researchers conducting the analysis attributed 5 per cent of cancers to longer-
term alcohol consumption.
There is extensive research establishing links between alcohol and drug
abuse and child maltreatment (Dawe, Harnett and Frye 2008). In recent
inquiries, substance abuse, particularly alcohol abuse, has been noted as a
principal factor contributing to child abuse and neglect (Aboriginal Child
Sexual Assault Taskforce 2006; Anderson & Wild 2007; Gordon et al. 2002;
Robertson 2000; Bath 2010).
Maternal alcohol consumption can lead to a debilitating condition known as
Foetal Alcohol Spectrum of Disorders (FASD). From 2003 to 2006,
approximately one in twelve non-Indigenous pregnant women and nearly one
in eight Indigenous pregnant women reported consuming alcohol at the time
of their first antenatal visit. By 36 weeks, the proportion of women consuming
alcohol had fallen in both populations, by approximately 40 per cent among
Indigenous women to between 8.0 and 8.7 per cent, and by approximately 60
per cent in non-Indigenous women to between 3.6 and 4.7 per cent. As the
incidence of FASD has been shown to be higher among Indigenous peoples
this may disproportionally affect the NT more than other jurisdictions (Tew
2010).
8
There are also substantial harms and costs due to alcohol beyond those
referred to above and which are less apparent and more difficult to quantify.
These are the psychological and emotional harms that arise within families,
particularly towards children, as a result of alcohol related family violence. It is
well known that children who grow up in such highly dysfunctional and violent
environments have lower educational and employment outcomes and higher
rates of involvement in crime both as juveniles and adults, all of which incurs
very real costs to society. The findings of the Little Children are Sacred
inquiry and the Growing them strong, together Report, by the NT Board
of Inquiry into child protection in the NT underline the detrimental impact of
alcohol on NT children, including Indigenous children.
Alcohol consumption levels
Rates of alcohol consumption are significantly higher in the NT than in the rest
of Australia, with 17 per cent of the adult population drinking at a risky or high
risk rate in terms of long term harm, and 18 per cent of the population
consuming alcohol at a rate which risks short term harm on at least one
occasion per month (based on 2001 National Health and Medical Research
Council guidelines).
Adults in the NT on average consumed 15.07 litres of pure alcohol in 2004-05,
53 per cent above the national average. Indigenous consumption in 2004-05
is estimated to have been 16.9 litres and non- Indigenous consumption, 14.5
litres. If the NT were a country then it would be amongst the countries with
the highest rates of per capita alcohol consumption in the world. Studies have
identified a correlation between high levels of alcohol consumption in
countries and shortened life expectancy outcomes.
While Aboriginal and Torres Strait Islanders are less likely to consume alcohol
than non-Indigenous people, those who do are more likely to drink at risky
levels.
Since 2002, total alcohol supply in the NT increased at a compound annual
rate of 2 per cent. From 2008 to 2009, supply increased by 1 per cent, while
the drinking age population increased by 3 per cent. On average since 2002,
beer has accounted for 50 per cent of total supply. Total beer supply has
increased by 12 per cent since 2006. Since 2002, the total supply of spirits
increased at a compound annual rate of 4 per cent and this rate remained
steady in 2008 and 2009. The supply of standard spirits has increased by 18
per cent since 2007. Since 2002, Darwin and Alice Springs have accounted
for around 60 per cent of the NT wholesale alcohol supply.
Costs
The Menzies School of Health Research published the Harms from and costs
of alcohol consumption in the Northern Territory report in 2009 (the Menzies
study). This appears to be the most recent evidence available on which to
estimate the costs of alcohol consumption in the NT. The objective of this
9
study was to develop a robust estimate of the value of harm occurring in the
NT due to the consumption of alcohol and to support the development of
effective future NT government public policies designed to reduce the harms
and costs due to alcohol consumption in the NT. This report attempts to
quantify the social and economic costs of alcohol harm in the NT. Estimated
costs information is outlined below:
� the total social cost of alcohol is estimated at $642 million in 2004-05,
with tangible costs of $406 million, and intangible costs of $236 million;
� this represents an estimated cost per adult of $4,197, substantially
higher than the national level of $943 per adult estimated by Collins
and Lapsley (2008);
� partially offsetting this is an estimated $71 million in additional taxation
revenue raised on NT alcohol sales (only $0.14 million of which flows
directly to the NT government);
� there were an estimated 95 net deaths caused by alcohol (120 deaths
caused and 25 deaths averted);
� alcohol attributable hospitalisations accounted for 4.6 per cent of the
NT total;
� crime caused by alcohol accounted for 41 per cent ($55.2 million) of
the cost of policing;
� the NT represents seven per cent of Collins and Lapsley's estimated
national alcohol-attributable policing costs of $747.1 million;
� the majority of alcohol-related policing costs were due to violent crime
(65 per cent), followed by drink driving (just under 20 per cent);
� just over fifty per cent of the tangible costs of alcohol falls on
households, with the NT government and businesses each bearing one
quarter of the costs;
� households bear all of the intangible costs of alcohol;
� ninety-three per cent of the costs are estimated to arise from drinking
by those consuming at risky or high risk levels; and
� it is estimated that $76 million of the tangible, and $32 million of the
intangible, costs of alcohol could be avoided through a feasible harm
reduction policy.
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