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Alcohol and the law

10 Dec 2019 - 18:32 | Version 10 | RussellGoldflam

Contributed by SheetalBalakrishnan and RussellGoldflam and current to 1 May 2017

The law regulates the way that alcohol is provided and consumed in the NT.

This section contains only information that relates to the way alcohol can be sold and consumed, and police powers with respect to drunkenness. The Handbook contains other information about alcohol, as follows:

• alcohol and driving: see Traffic offences ;
• young people and alcohol: see Children's rights and responsibilities .

Liquor licences

The Liquor Commission (the Commission) and the Director of Liquor Licensing (the Director) regulate the sale of alcohol (see Contact Points ). Liquor is defined in the Liquor Act NT as a beverage that contains more than 1.15 per cent by volume of ethyl alcohol [LA s6].

An adult person or corporation within the meaning of the Corporations Act 2001 who wishes to sell alcohol has to apply to the Commission for a licence [LA s48].

Types of licences

The Commission or in some cases the Director or his delegate may issue a licence, in a form approved by the Director, to an applicant for the sale of liquor, or the sale and consumption of liquor in relation to premises specified in the licence and on the conditions specified in the licence [LA s24]. Applications for licences must be advertised in a newspaper nominated by the Director-General within 28 days of lodging such an application [LA s27]. In assessing applications, the Director-General considers, amongst other things, whether the applicant is a fit and proper person [LA s28].

Objections

Applications are subject to objections from specified members of the public who live or work in the neighbourhood, or who own or lease the land where the premises the subject of the application are or will be located [LA s47F(3)]. In addition, groups or organisations such police, health or fire and emergency services may object [LA s47F(3)].

Objections may only be made on the ground that the granting of the licence may or will adversely affect [LA s47F(2)]:

(a) the amenity of the neighbourhood; or
(b) health, education, public safety or social conditions in the community.

For example, an objection could be made if the area where the liquor is to be sold is already over-serviced with liquor outlets, or the sale of alcohol from the premises may have a negative effect on the immediate community.

Liquor licensing restrictions

In 1996 the Liquor Commission imposed the first targeted licensing restrictions in the NT, as part of a strategy to minimise alcohol-associated harm. The first restrictions were imposed in Tennant Creek, and most notably, prohibited the purchase of take-away liquor each Thursday. The restrictions were only introduced after lengthy community debate, court challenges and an independently evaluated trial. Although evaluations show that the restrictions have been associated with significant reductions in alcohol-related offences and hospital admissions, they remain controversial. Restrictions have now been extended across the NT.

Complaints

Anyone can make a complaint against a licensee on various grounds, including [LA s67(3)]:

• serving intoxicated persons;
• serving a minor; or
• breaching a condition of the licence.

Complaints must be made in writing (in the approved form), specify the ground for the complaint, be signed by the complainant and lodged with the Director-General [LA s68(2)]. The licensee is notified of the complaint and given an opportunity to respond [LA s68(4)]. The Director-General then investigates the complaint and must take appropriate action, including dismissing the complaint, giving the licensee a formal warning or infringement notice [LA s68(5)]. The Director-General may also take disciplinary action against the licensee, including varying, suspended or cancelling the license [LA s67(2) and s69(1)].

Restricted areas

Many community areas in the NT are restricted dry areas. When an area is declared dry, it is against the law to possess, control, consume, sell or dispose of alcohol in that area, or to bring alcohol into it [LA s75]. Approximately 100 restricted areas exist in the NT. Some of these cover remote communities, while others have been declared within the limits of larger towns. For example, there is no consumption of alcohol allowed in public areas in Katherine, Tennant Creek and Alice Springs.

There are two pieces of law concerned with the dry areas in the NT:

• Liquor Act; and
• Stronger Futures in the Northern Territory Act (Cth) (SFNT).

Under the Liquor Act

Under the Liquor Act, the Director-General may declare a specified area of land [LA s74(1)]:

• to be a general restricted area (prevent the bringing, possession, consuming or selling of liquor without a licence); or
• to be a public restricted area (prevent the consumption of liquor in public places without a permit).

An application for an area to be declared a restricted area must be in writing and lodged with the Director-General, and include [LA s76(1)]:

• a detailed description of the relevant area; and
• the reason why the declaration should be made.

It is also possible to apply for private premises to be declared a restricted area [LA s101B]. Such applications may be made by owners or occupiers of private premises, or other specified members of the public including a person residing or working in the neighbourhood [LA s101C(1)-(2)]. The application must be in writing, provide a description of the premises as well as the reasons for the application [LA s101C(4)].

Offences and penalties

A person who possesses, consumes, sells or brings alcohol into a restricted area may be guilty of an offence and liable to a maximum penalty of 100 penalty units or six months imprisonment [LA s75(1)]. In addition, any vehicle, vessel or aircraft used to commit the offence may be forfeited to the NT Government.

Search and seizure

Inspectors appointed under the LA and police officers have extensive powers of search and seizure where they are satisfied there are reasonable grounds for suspecting an offence has been, is being, or is likely to be committed [LAs95]. Inspectors can enter any premises, vehicles, aircraft, vessel or place without a warrant and search them, anyone who is found in them, anyone who is about to enter them or anyone who has recently left. In addition, the inspector can seize any vehicle, vessel, aircraft or receptacle containing liquor (i.e. bottle, can or flask), or any other thing if it is reasonably suspected of being evidence of an offence or related to any offence.

Although a vehicle being used to bring liquor into a restricted area may be seized by police, it is not an offence to transport liquor through a restricted area for the sole purpose of transporting it to a place outside the restricted area [LA s86]. Problems can arise when the owner or joint owner of the vehicle, vessel or aircraft was not involved in the offence, but it has been seized. The owner can apply to the Commissioner of Police for its release within 60 days after the seizure, however the Commissioner must be satisfied the owner did not know about the offence [LA s97]. There may also be difficulties releasing the seized item if charges have been laid in relation to that offence.

Under the Stronger Futures in the Northern Territory Act

The SFNT amends the LA, and introduces the concept of 'alcohol protected areas'.

A person who brings, possesses or consumes alcohol in an alcohol protected area may be guilty of an offence and liable to a maximum penalty of 100 penalty units or six months imprisonment [SFNT s8]. A person who supplies liquor in an alcohol protected area (including transporting or possessing liquor to supply) may be guilty of an offence and liable to a maximum penalty of 100 penalty units or six months imprisonment (a higher penalty may be imposed where the amount of ethyl alcohol supplied exceeds 1,350mL) [SFNT s8].

If the police have charged someone with an offence of bringing, possessing, consuming or supplying alcohol in a dry area, it is important to check the legislation the offence is charged under (i.e. whether it is under the LA or the SFNT).

Drinking in public places

In the NT it is against the law to drink alcohol in a public place or on unoccupied private land that is within two kilometres of licensed premises [LA s101U]. Licensed premises include those licensed to sell take-away liquor, such as a supermarket, or liquor for consumption on premises, such as a pub. This law is commonly called the 'two kilometre rule'. A person will not be committing an offence if:

• they are an adult and have the express permission of the owner or lawful occupier [LA s101U(3)]; or
• the public place is the subject of an exemption certificate (granted by the Director-General) [LA s101ZE].

If police reasonably believe an offence is being committed, the officer may search the person and seize any container the officer believes contains alcohol [LA s101Y]. The officer may give a contravention notice to a person the officer believes on reasonable grounds has committed an offence [LA s101Z(1)].

It is also an offence for a person who is drinking within the two kilometre rule to cause a nuisance to other people [LAs101V].

It should be noted that dry towns and restricted areas have in some areas overtaken the two kilometre rule and make it illegal to consume alcohol in the prescribed area. For example, it is illegal to consume alcohol within the prescribed townships of Katherine and Alice Springs and it is likely other towns will follow. It is crucial that all signage is observed and complied with within the NT to avoid breaking the law. If you are not sure whether there are any restrictions in place in an area you should contact the Director-General (see Contact points).

Methylated spirits

It has not been unknown in the NT for methylated spirits to be sold as a beverage. This is a dangerous and illegal practice. It is an offence to drink or supply a methylated spirit [Medicines, Poisons and Therapeutic Goods Act s107 and s108].

As methylated spirits are readily available to the public, due to their hazardous nature, caution is required in their handling, storage and use. As such a business owner is required to store methylated spirits in a part of the premises that is not accessible by the public [Medicines, Poisons and Therapeutic Goods Regulations r27].

If someone believes a shop is selling methylated spirits for drinking it should be reported to the Medicines & Poisons Control (see Contact points).

Public drunkenness and police powers

While public drunkenness is not an offence in the NT, police have the power to take into custody any person who is in a public place or trespassing on private property if they believe that person to be seriously affected by alcohol or drugs and the person is unable to care for themselves, may cause harm to themselves or another or is likely to commit an offence [Police Administration Act (PAA) s128(1)]. This is not a power of arrest, although once apprehended, the person may be searched by police [PAA s128(3)].

People apprehended in Darwin, Katherine and Alice Springs are, if possible, taken to sobering up shelters rather than to conventional police cells. These shelters provide a secure place to sleep and may provide food and clothing or clothes washing facilities. These shelters do not have the right to hold someone against their will. Shelters will not take people who are acting aggressively, and if someone they have taken in becomes aggressive, staff will call the police and have them removed. A person who has been apprehended can at any time ask police to take them before a justice to request release from custody [PAA s133]. Police have to comply with such a request whenever it is reasonably practicable to do so. If the person in custody does not object, police can release them into the care of another person [PAA s131].

Police have a duty of care when it comes to drunk people they have in custody. Their duty of care is spelt out in the Police General Orders. This duty has been the subject of many coronial inquests, and was considered in length in the Royal Commission into Aboriginal Deaths In Custody. If a person is taken into protective custody showing any signs of physical problems, the police, in accordance with their duty of care, must ensure they receive adequate medical attention. The police have responsibility to ensure the safety of people while in their custody.

Local Aboriginal communities are becoming more involved in developing their own initiatives in this area. Some community councils have organised their own patrols, such as the Tangentyere Night Patrol in Alice Springs, that work to combat the antisocial effects of drunkenness.

Alcohol Mandatory Treatment

The Alcohol Mandatory Treatment Act (AMTA) commenced on 1 July 2013 to reduce alcohol-related anti-social behaviour. The AMTA sets up a scheme to enable the mandatory assessment, treatment and management of people who have alcohol misuse issues.

Adults who are taken into police protective custody three or more times in two months for being intoxicated in public will be referred to the alcohol mandatory treatment system [PAA s128A]. The person will be clinically assessed and an independent tribunal will decide the best treatment options for that person.

The tribunal may make a mandatory alcohol treatment order if a person satisfies the criteria, which includes the person is an adult misusing alcohol, as a result of the person's alcohol misuse the person has lost the capacity to make appropriate decisions about their personal welfare, the person's alcohol misuse is a risk to the health, safety or welfare of the person or others and the person would benefit from a mandatory treatment order [AMTA s10]. If the tribunal is satisfied that the criteria for mandatory treatment are met, there are three types of orders the tribunal can make:

1. Mandatory community treatment order: requires the person to participate in treatment from a specified community treatment provider and bans the person from possessing, consuming or purchasing alcohol. It may also contain other conditions, including requiring the person to undergo alcohol testing or ban the person from being at a specified place [AMTA s11];
2. Mandatory residential treatment order: authorises the detention of a person in a residential alcohol treatment facility, requires the person to undergo treatment in the facility and bans the person from possessing, consuming or purchasing alcohol [AMTA s12]; or
3. Income management order: if the tribunal makes a mandatory treatment order in relation to a person who is an eligible welfare payment recipient, it must also make an income management order in relation to the person [AMTA s.13].

After making a mandatory treatment order, the tribunal may vary or revoke the order [AMTA s.46]. The tribunal must not vary an order unless satisfied there are grounds for doing so taking into consideration the criteria for a mandatory treatment order [AMTA s46(3)].

A decision regarding a mandatory alcohol treatment order can be appealed to the Local Court, however, only on a question of law [AMTA s.51].

It is an offence for a person to intentionally supply alcohol to a person the supplier knows to be subject to a mandatory treatment order [AMTA s73].

Alcohol Protection Orders

The Alcohol Protection Order Act (APOA) commenced on 20 December 2013, giving police powers to issue an Alcohol Protection Order (APO) banning a person from consuming and possessing alcohol and entering licensed premises [APOA s5(1)]. Police can issue an APO to an adult charged with an offence punishable by six months imprisonment or more, and police believe that the person was affected by alcohol at the time the offence was committed [APOA s6]. The APO can be issued for 3, 6 or 12 months duration, depending on whether a person has previously been under an order [APOA s7].

Challenging the issue of an APO

A person subject to an APO can apply for a reconsideration of the decision to issue the APO. An application for reconsideration must be made in writing, state the reason for the application and be lodged at a police station [APOAs9]. The application must be lodged within 3 days of the date on which the APO was issued [APOA s9(2)(c)].

Enforcement of an APO

Police have broad powers to enforce an APO. A police officer who reasonably believes an adult subject to an APO:

• has recently consumed alcohol, may direct the person to submit to a breath test [APOA s18]; and
• may be in possession of alcohol, may search the adult and seize any container the officer believes contains alcohol [APOA s19].

Breach of an APO

It is an offence for a person subject to an APO to intentionally engage in conduct that contravenes the APO, or contravenes a direction given to the adult (to submit to breath testing) [APOA s23]. A person will not be guilty of this offence if they had a reasonable excuse [APOA s23(4)]. For example, the person needed to enter licensed premises for a legitimate and lawful reason.

It is also an offence for a person to intentionally supply alcohol to a person the supplier knows to be subject to an APO [APOA s24].

Warning

The following conduct by licensees or their employees is unlawful, and could result in prosecution or a complaint that a licence has been breached:

• selling liquor to an intoxicated person [LA s102];
• selling adulterated liquor [LA s103];
• failing to comply with license conditions (e.g. hours of trading) [LA s104];
• permitting indecent, violent, quarrelsome or riotous conduct to occur on licensed premises [LA s105];
• permitting children to enter or remain on licensed premises, or in prohibited areas on licensed premises [LAs106A and s106B];
• selling liquor to a child [LA s106C];
• failing to exclude or remove a non-resident who is intoxicated, violent, quarrelsome, disorderly or incapable of controlling their behaviour [LA s121];
• assaulting a person or committing any serious crime;
• discriminating against a person in the provision of goods, services, and facilities on the basis of (amongst other things) race, sex, sexuality, age, impairment, or political opinion, affiliation or activity; or
• selling liquor to a person without a valid Permit in a Restricted Area as declared by the Licensing Commission in accordance with Part VIII of the Liquor Act.

Note: where a licensee has reached agreement with a local Aboriginal community to restrict the supply of liquor to community members, conduct in accordance with such an agreement may accordingly be lawful as a 'special measure'.