Federal Register of Legislation - Australian Government

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Rules/Other as made
This instrument prescribes requirements applying to alcohol management plans.
Administered by: Prime Minister and Cabinet
Made 25 Feb 2013
Registered 25 Feb 2013
Tabled HR 12 Mar 2013
Tabled Senate 27 Feb 2013

EXPLANATORY STATEMENT

 

Issued by the Authority of the Minister for Families, Community Services and Indigenous Affairs

 

Stronger Futures in the Northern Territory Act 2012

 

Stronger Futures in the Northern Territory (Alcohol Management Plans) Rule 2013

 

Section 119 of the Stronger Futures in the Northern Territory Act 2012 (the Act) provides that the Minister for Families, Community Services and Indigenous Affairs (the Minister) may, by legislative instrument, make rules prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.

 

The Act consists of the tackling alcohol abuse, land reform and food security measures. These measures have been designed as special measures, consistent with the Racial Discrimination Act 1975 (RDA). Part 2 of the Act contains the tackling alcohol abuse measure; its object being to enable special measures to be taken to reduce alcohol-related harm to Aboriginal people in the Northern Territory (NT). Division 6 of Part 2 of the Act provides for the Minister to approve, vary, or refuse to approve Alcohol Management Plans (AMPs).

 

Subsection 17(3) provides that the Minister must not approve an AMP under subsection 17(1) unless satisfied that the plan meets the requirements (if any) applying to AMPs prescribed by the rules.

 

Background

 

In 2011 the Commonwealth Government released the Stronger Futures in the Northern Territory discussion paper and held meetings in over 100 communities and town camps to discuss with Aboriginal people new approaches and ideas for the future.  Aboriginal people told the Government that they were concerned about the devastating effects alcohol abuse is having on families and wanted more done to tackle alcohol abuse.

 

Alcohol abuse is a major contributing factor to the high levels of Aboriginal disadvantage, including low life expectancy, poor health, poor education and poor employment outcomes. The Northern Territory has some of the highest levels of alcohol attributable deaths and hospitalisations in Australia. There is extensive research establishing links between alcohol abuse and violence including family violence and child maltreatment. In a home affected by alcohol abuse, children can be at greater risk of harm, abuse and neglect.  Alcohol consumption may present a risk to healthy pregnancy and delivery which are essential for a child’s later development. Recent reports have shown that some rural and remote communities have a high prevalence of Foetal Alcohol Spectrum Disorder, which has lifelong affects for the child and long term affects for their families and communities.

 

To help tackle alcohol abuse in the Northern Territory, the Act includes a range of measures including continued alcohol restrictions in remote communities, stronger penalties for alcohol offences, and provisions to help local communities to take steps to develop their own, robust


solutions to alcohol management in their locality.  The Act includes reforms that will strengthen AMPs. 

 

AMPs are plans, negotiated at a local community level, for the effective management of alcohol use among community members, and for the reduction of alcohol-related harm to individuals, families and communities in the Northern Territory.  The provisions of the Act relating to AMPs are in addition to any Northern Territory Liquor Act provisions.

 

The primary purpose of AMPs is to reduce harm arising in the community from misuse of alcohol, by means of locally-tailored whole of community plans that have broad acceptance within the community, are feasible to implement and, on the basis of assessment against certain indicators, are effective.

 

The Minister has the power to approve AMPs, based on whether the plans have met the minimum standards as set out in this legislative instrument. Once approved by the Minister, AMPs will be expected to show progress in these directions.  Where this does not occur, communities may be asked to review and revise their AMPs.

 

This legislative instrument prescribes the minimum standards required to be met by AMPs.  These standards form the framework for AMPs being developed by communities under the Act.

 

This legislative instrument provides that AMPs must meet five minimum standards aimed at reducing the harm that results from alcohol abuse in many Aboriginal communities, with a particular focus on the safety of community members, particularly women, children and families.

 

The five minimum standards are:

1. Consultation and engagement;

2. Managing the alcohol management plan;

3. Alcohol management plan strategies – supply, demand and harm reduction;

4. Monitoring, reporting and evaluation; and

5. Clear geographical boundaries.

 

Further explanation of each minimum standard is provided under ‘explanation of provisions’ below.

 

AMPs must be in a format that is easily understood by community members.  AMP strategies should specifically:

·         Focus on improving the health, well-being and safety of all community members;

·         Use national health benchmarks for assessing strategies and encourage these benchmarks as a target outcome for the community to move towards over time;

·         Be tailored to the local and cultural circumstances;

·         Include evidence based strategies;

·         Identify resources required and sources of funding to support implementation;

·         Where the community is in proximity to a liquor outlet, consider strategies involving local liquor supply and where possible engaging with the manager of the outlet; and

·         Encourage the modelling of responsible drinking practices in communities where drinking is allowed, and penalise irresponsible drinking behaviours, especially those that cause stress, violence or other hardship to other people, especially children.

It is intended that the Australian Government and Northern Territory Government will work with Aboriginal communities to develop and implement AMPs.  AMP implementation guidelines and supporting documents including engagement tools and a practitioner’s guide will also be developed in consultation with stakeholders to guide both communities and government officials in the development and implementation of AMPs. 

 

The standards have been informed by discussions between the Commonwealth and the Northern Territory Government as well as broader discussions with a range of key national and Northern Territory stakeholders and targeted consultations in Indigenous communities across the Northern Territory.

The minimum standards are not an attempt at a one-size-fits-all template.  Some communities may wish to incorporate objectives and activities that are in addition to the minimum standards in this instrument into their AMPs.

The Act does not impose any conditions that need to be satisfied before the power to make the rule may be exercised.

The rule is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Commencement

The rule commences on the day after it is registered.


Consultation

The Department of Families, Housing, Community Services and Indigenous Affairs recently held public consultations on the draft AMP minimum standards between 8 November and 14 December 2012.

 

Comments were sought from key national and Northern Territory stakeholders and also conducted targeted consultations through FaHCSIA’s Government Engagement Coordinators (GECs) and Indigenous Engagement Officers (IEOs) in Aboriginal communities and town camps across the Northern Territory.  This included seeking feedback from community leaders, women’s groups and key community stakeholders such as police, health workers, safe house workers and community alcohol reference groups. GECs identified the key stakeholders with a direct interest in alcohol management planning, such as alcohol reference groups, health services, social clubs and local representative groups.  There was also emphasis on the representation of vulnerable group representatives, such as women’s refuge and domestic violence workers, disability and aged care services and women’s centres.  A total of over 80 communities and town camps throughout the Northern Territory were consulted on the draft minimum standards. 

 

Key stakeholders were also invited to consultation meetings held in the following Northern Territory regional centres in November 2012:

 

-       Alice Springs, 20 November

-       Tennant Creek, 21 November

-       Nhulunbuy, 23 November

-       Darwin, 27 November

-       Katherine, 29 November

 

FaHCSIA’s GECs and IEOs also sought feedback on the draft minimum standards in communities in alcohol protected areas. 

 

Comments received through the consultation process were broadly supportive of the minimum standards and indicated that the content of the minimum standards was comprehensive and appropriate.  The feedback clearly showed that the standards need to remain flexible enough to accommodate differences in community situations and needs, as well as allowing for differences in the scope of AMPs and approaches to implementation among communities.

 

Explanation of provisions

 

Part 1—Preliminary

 

Rule 1 sets out the name of the rule, being the Stronger Futures in the Northern Territory (Alcohol Management Plans) Rule 2013.

 

Rule 2 provides that the rule commences on the day after it is registered.

 

Rule 3 provides for the authority under which the rule is made.

 

Rule 4 provides the requirements that are prescribed for alcohol management plans, being that an alcohol management plan must meet each of the minimum standards set out in Schedule 1.

 

Schedule 1—Minimum standards

 

Schedule 1 sets out the minimum standards. They are:

1  Consultation and engagement

(1)     An alcohol management plan must be developed in partnership and agreement between government and community representatives by way of a comprehensive and continued community consultation and engagement.

 

(2)     An alcohol management plan must be developed ensuring the views of vulnerable groups, community members and interest groups are heard, and recognise the need for targeted and diverse approaches particularly to ensure that women and children are heard. 

 

(3)     An alcohol management plan must have been developed, where possible, with representation from:

(a)   women;

(b)   children;

(c)   men;

(d)   youth;

(e)   the elderly;

(f)    clan groups;

(g)   traditional owners; and

(h)   all residents including non-drinkers and drinkers. 

 

(4)     An alcohol management plan must have been developed, where possible, with regard to the views and potential contributions of:

(a)   local government;

(b)   health and education authorities;

(c)   relevant law enforcement and criminal justice agencies;

(d)   alcohol and other drug services;

(e)   representatives from local liquor outlets and licensees; and

(f)    businesses.

 

(5)     An alcohol management plan must have been developed with the involvement, where possible, of local and regional organisations and service providers (particularly health services).

2 Managing the alcohol management plan

 

(1)     An alcohol management plan must include governance arrangements that clearly describe the roles and responsibilities of each of the agencies and participants in the alcohol management plan, especially those involving the need for resources. An alcohol management plan must include a balance of Aboriginal community members and their interests. This may include:

(a)   the community participants indicated in Item 1(3) of Minimum standard 1;

(b)   participants who are not based in the community, including senior police, managers and policy makers at senior levels in other government agencies; and

(c)   non-government organisations which provide relevant services in the particular community.

 

(2)     An alcohol management plan must include, where relevant:

·        resources, roles and responsibilities of stakeholders including police and other government agencies, and their views and advice, to enable compliance with the alcohol management plan;

·        roles and responsibilities of local health clinics and regional service providers in helping to prevent and manage alcohol problems in the community;

·        responsibilities of local liquor licensees with respect to the alcohol management plan; and

·        evidence that the stakeholders are aware of, and accept, the roles and responsibilities specified, and have allocated sufficient time, resources and personnel to perform their share of responsibilities in relation to implementation of the alcohol management plan.

 

Note: The development, implementation and management of an alcohol management plan are primarily the responsibility of the community; however, effective implementation requires shared responsibility with relevant agencies.

3 Alcohol management plan strategies – supply, demand and harm reduction

 

(1)     An alcohol management plan must identify community-based strategies to reduce harm to individuals, families and communities that results from alcohol abuse.  These may include one or more of the following types of strategies:

(a)    strategies for controlling alcohol supply;


Note: Strategies for controlling alcohol supply may include whole of community strategies to address grog running and home-made alcohol, restrictions on sale or supply from local liquor outlets including takeaway, restrictions on hours of sale for on-license drinking, restrictions on types and amounts of alcohol permitted to be sold to individuals and whole population for on-licence consumption within specific periods.

(b)   strategies for reducing demand for alcohol; or


Note: Strategies for reducing demand for alcohol may include resources and measures for intervention, detoxification, and treatment of dependent drinkers as well as early intervention strategies and proactive and preventative measures such as dry concerts, Blue Light discos, sport and other youth diversion activities, health promotion and education (for example, on Foetal Alcohol Spectrum Disorder and the effects of alcohol abuse on children).

 

(c)    strategies to reduce harm.

 

Note: Strategies to reduce harm may include community patrols, adequate responses to violence and unsafe driving, family support, women’s shelters, and more support for people with alcohol abuse issues (for example, support groups and sobering-up facilities, and improved access to regional services and facilities).

4 Monitoring, reporting and evaluation

(1)     An alcohol management plan must include measurable outcomes and benchmarks to inform evaluation.

(2)     An alcohol management plan must describe how the ongoing progress and effectiveness of the identified strategies will be monitored and reported to the government and community residents in a manner that is understandable to community residents indicated in Item 1(3) of Minimum standard 1. 

(3)     An alcohol management plan must outline a process for ongoing review and amendment of the alcohol management plan.

(4)     An alcohol management plan must include a mechanism to deal with complaints and disputes.


Note: Government has a key role in providing support for evaluation of alcohol management plans including assisting communities with benchmarks and access to data.

 

5 Clear geographical boundaries

 

(1)     An alcohol management plan must show clearly all relevant geographical boundaries.

 

(2)     An alcohol management plan must explain how and why the geographical boundaries have been chosen.

 

 



Statement of Compatibility

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

This rule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

The objective of the tackling alcohol abuse measure in the Act is to enable special measures to be taken to reduce alcohol-related harm to Aboriginal people in the NT. The measure includes provisions that provide a legislative basis for the Minister to approve, vary, or refuse to approve AMPs.

 

This instrument prescribes the minimum standards which are required to be met by AMPs. The minimum standards are part of a framework that advances human rights by balancing the need for alcohol restrictions that reduce alcohol-related harm with the ability to maximise local, tailored solutions to reduce alcohol-related harm that addresses the specific priorities of individual communities.

 

AMPs are negotiated among community members and with key stakeholders at a local, community level, for the effective management of alcohol use among community members, and for the reduction of alcohol-related harm to individuals, families and the community. Communities that choose to have an AMP will be supported by both the Australian and Northern Territory Governments. Approval of an AMP does not lift or change the application of alcohol restrictions in alcohol protected areas. AMPs assist Aboriginal communities to reduce the harm caused by alcohol.

 

Any requests to make changes to alcohol restrictions in a community will be carefully considered by the Minister in accordance with the Minister’s powers under the Act. The community would have to show a demonstrated reduction in alcohol-related harm, and that this would not be put at risk through the lifting of restrictions.

 

Section 16 of the Act allows a person or entity to apply for approval of an AMP by lodging a written application. Subsection 17(1) of the Act provides that if an application has been made, the Minister must make a determination whether to approve the AMP. Subsection 17(3) provides that the Minister must not approve an AMP under subsection 17(1) unless satisfied that the AMP meets the requirements (if any) applying to AMPs that are prescribed by the rules. The minimum standards prescribed by this rule gives guidance to applicants on what matters must be covered by their AMP.

 

The rule prescribes five minimum standards that alcohol management plans must meet in order to be approved by the Minister.

 

The Minimum standards are:

 

1. Consultation and engagement;

2. Managing the alcohol management plan;

3. Alcohol management plan strategies – supply, demand and harm reduction;

4. Monitoring, reporting and evaluation; and

5. Clear geographical boundaries.

 

 

Human rights implications

 

The tackling alcohol abuse measure in the Act advances and engages the following rights:

¾    a right for the State not to engage in any act or practice of ‘racial discrimination’ against persons, groups of persons or institutions (article 2(1)(a) of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD));

¾    the right to security of person and protection by the State against violence or bodily harm (article 5(b) of the CERD);

¾    the right to enjoyment by everyone of the highest attainable standards of health (recognised in article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR));

¾    the rights of children, in particular, to high standards of health (recognised in article 24 of the Convention on the Rights of the Child (CROC)); and

¾    the rights of children to standards of living adequate for the child’s physical, mental, spiritual, moral and social development (recognised in article 27 of the CROC).

 

This rule, in particular, advances and engages the following rights

¾    the right to self-determination (articles 1 of the CERD and International Covenant on Civil and Political Rights (ICCPR)).

 

A right for the State not to engage in act or practice of ‘racial discrimination’ under the CERD and a right to equal protection and equality before the law under the ICCPR

 

The policy intention is that the tackling alcohol abuse measure is a ‘special measure’ within the meaning of article 1(4) of the CERD (and s 8(1) of the RDA).

 

CERD provides that special measures are deemed not to be discrimination. Special measures are designed to ‘secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms’.[1]

 

Special measures are deemed not to be discrimination under the CERD. The tackling alcohol abuse measure is designed as a special measure under article 1(4) of the CERD. According to article 1(4), the elements of a special measure are that it is:

1.      taken for the sole purpose of securing adequate advancement of a certain racial or ethnic group

2.      requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms

3.      not to be continued after the objectives have been achieved.

 

This measure is required because Aboriginal people in the NT are significantly disadvantaged by alcohol abuse and its effects.[2] In particular, women and children are significantly disadvantaged by the negative impact alcohol abuse has on a safe living environment. 

 

In addition, a relevant consideration for most decisions made under the measure, for example the decision to approve an AMP, will be the object of the Act – being to reduce alcohol-related harm to Aboriginal people in the NT (see element 2 of article 1(4) of the CERD above). The Government believes that many Aboriginal people in the NT are significantly disadvantaged in their enjoyment of basic human rights and fundamental freedoms because of the devastating impact alcohol has on Aboriginal communities (see element 3 of article 1(4) of the CERD above). The measure will not be continued after its objective has been achieved (see element 4 of article 1(4) of the CERD above). An independent review of Commonwealth and NT laws relating to alcohol will start 2 years after commencement, with a report prepared before the end of 3 years after commencement. This review will include the operation of the AMP provisions of the Act and related legislative instruments. A further review of the special measures in the Act (including the tackling alcohol abuse measure) is provided for after 3 years of operation. To ensure that the measures do not continue beyond their need, the Act will automatically sunset after 10 years of operation. 

 

The right to security of person and protection by the State against violence or bodily harm under the CERD

 

There is research and reports that show alcohol abuse is a major factor in community and family violence in remote NT Aboriginal communities.[3] The tackling alcohol abuse measure is designed to work alongside other alcohol-related laws to deal with the devastating effects alcohol has on Aboriginal communities in the NT. All key decisions made under the tackling alcohol abuse measure, including the Minister’s determination to approve an AMP, are required to take into account the object of the measure, being to reduce alcohol-related harm to Aboriginal people in the NT. This will include violence or bodily harm that is alcohol-related.

 

The right to enjoyment by everyone of the highest attainable standards of health under the ICESCR and the rights of children, in particular, to high standards of health and standards of living adequate for the child’s physical, mental, spiritual, moral and social development under the CROC

 

There is a well-documented link between high alcohol consumption and poor health.[4] Research evidence also indicates that alcohol consumption and consequent alcohol-attributable deaths and hospitalisations for both Aboriginal and non-Aboriginal people in the NT has occurred at levels far higher than elsewhere in Australia and that rates for Aboriginal people are higher than for non-Aboriginal people. In the consultations for the Stronger Futures legislation it was reported that parents were spending time drinking and gambling rather than looking after children. There is also evidence that alcohol abuse is a risk factor in child neglect in the NT.[5]

 

All key decisions made under the tackling alcohol abuse measure are required to take into account the object of the measure, being to reduce alcohol-related harm to Aboriginal people in the NT. This will include standards of health and living that are affected by alcohol-related harm.

 

Minimum standard 1 provides that an AMP must be developed, where possible, with regard to the views and potential contributions of health and education authorities. Local and regional organisations and service providers, particularly health services, should also be involved. This will encourage the consideration of standards of health in the development of AMPs. Minimum standard 2 requires AMPs to include governance arrangements that clearly describe the roles and responsibilities of each of the agencies and participants in the AMP, which may include non-government organisations, such as health services, providing services in particular communities. Minimum standard 3 requires AMPs to identify community-based strategies for controlling alcohol supply, reducing demand for alcohol or reducing harm.

 

Overall, AMPs will encourage communities to consider and implement in their communities strategies to tackle alcohol and its effects, including the effects that alcohol has on their health.

 

The right to self-determination under the CERD and ICCPR

 

The minimum standards prescribed by this rule will require comprehensive and ongoing community consultation and engagement process in the development and implementation of Alcohol Management Plans, including using interpreters and community advocates.  This will ensure that everyone in a community has their say on the development of an Alcohol Management Plan, and that the plan is aimed at reducing alcohol supply, demand and harm and tailored to each community’s priorities for addressing alcohol-related harm. The Minister must not approve an AMP unless satisfied that the prescribed requirements in the rules have been met (see subsection 17(3)). The prescribed minimum standards, taken together, will encourage community groups to take ownership of the way that they manage alcohol in their community and therefore likely engage and advance the right to self-determination.

 

Concluding remarks

 

These rights are engaged and advanced by the tackling alcohol abuse measure and the requirements prescribed for AMPs by this rule.

 

Conclusion

 

This rule is compatible with human rights.

 



[1] (Committee on the Elimination of Racial Discrimination, General Recommendation No. 32: The Meaning and Scope of Special Measures in the International Convention on the Elimination of Racial Discrimination (August 2009), at para [11].

[2] See, for example, National Health and Medical Research Council, 2009. Alcohol Guidelines: reducing the health risks (available from http://www.nhmrc.gov.au/you-health/alcohol-guidelines); Race Discrimination Commissioner, 1995. Alcohol Report, Racial Discrimination Act 1975, Race Discrimination, Human Rights and the Distribution of Alcohol, Canberra; NT Government 2010. Growing them Strong, Together: Promoting the safety and wellbeing of the NT’s children, Summary Report of the Board of Inquiry into the Child Protection System in the NT, M. Bamblett, H. Bath and R. Roseby, NT Government, Darwin.

[3] See, for example, National Health and Medical Research Council, 2009. Alcohol Guidelines: reducing the health risks (available from http://www.nhmrc.gov.au/you-health/alcohol-guidelines); Race Discrimination Commissioner, 1995. Alcohol Report, Racial Discrimination Act 1975, Race Discrimination, Human Rights and the Distribution of Alcohol, Canberra; NT Government 2010. Growing them Strong, Together: Promoting the safety and wellbeing of the NT’s children, Summary Report of the Board of Inquiry into the Child Protection System in the NT, M. Bamblett, H. Bath and R. Roseby, NT Government, Darwin.

[4] See, for example, National Health and Medical Research Council, 2009. Alcohol Guidelines: reducing the health risks (available from http://www.nhmrc.gov.au/you-health/alcohol-guidelines); Race Discrimination Commissioner, 1995. Alcohol Report, Racial Discrimination Act 1975, Race Discrimination, Human Rights and the Distribution of Alcohol, Canberra; NT Government 2010. Growing them Strong, Together: Promoting the safety and wellbeing of the NT’s children, Summary Report of the Board of Inquiry into the Child Protection System in the NT, M. Bamblett, H. Bath and R. Roseby, NT Government, Darwin.

[5] See, for example, National Health and Medical Research Council, 2009. Alcohol Guidelines: reducing the health risks (available from http://www.nhmrc.gov.au/you-health/alcohol-guidelines); Race Discrimination Commissioner, 1995. Alcohol Report, Racial Discrimination Act 1975, Race Discrimination, Human Rights and the Distribution of Alcohol, Canberra; NT Government 2010. Growing them Strong, Together: Promoting the safety and wellbeing of the NT’s children, Summary Report of the Board of Inquiry into the Child Protection System in the NT, M. Bamblett, H. Bath and R. Roseby, NT Government, Darwin.