Indigenous Peoples & Alcohol

Background

This page summarises the departmental and administrative arrangements that operated and were utilised in Western Australia (WA) to regulate and control the lives of Indigenous people in this State, with particular reference to the measures which targeted  access to and use of alcohol by the Indigenous population and management of the consequences of problematic use of alcohol. 

A short description of national developments in policies is also included, to provide a more complete understanding of the interplay of both the Commonwealth and state-level approaches and administrative arrangements.

The adoption of rigorous controls in relation to the Indigenous inhabitants of the State occurred soon after the Swan River Colony was established in 1829. These remained in place after the British Parliament granted the status of a self-governing colony in 1890 and continued after federation on 1 January 1901, when WA became a state and it joined the Commonwealth of Australian States.

State context – overview of regulatory history

The close regulation of many aspects of the lives of Indigenous people occurred through the statutory position of the Chief Protector of Aborigines, an arrangement which operated in WA from 1898 to 1936. This approach, which was also followed at various times in other Australian states, had been preceded by the establishment in 1886 of the Aborigines Protection Board, which appointed Local Protectors throughout the State. 

In addition to the controls exercised by the Chief Protector, a range of other arrangements were utilised for a number of purposes, which spanned access to and use of alcohol. This included proclaiming areas under ‘native welfare’ legislation where Indigenous persons were not permitted to live or have limited access to. A total of 35 proclamations were issued, involving parts of the Perth metropolitan area, as well as regional towns and remote communities and areas between 1906 and 1950.

The penalties for breaching these proclamations of prohibited areas was severe. For example, Section 70 of the Native Administration Act 1905-1936 provided that –

Penalties
(a) for a first offence, a fine not exceeding twenty pounds or imprisonment for any period not exceeding three months, or both;
(b) for a second offence, a fine not exceeding fifty pounds or imprisonment not exceeding six months, or both.
(c) for a third or subsequent offence, a fine not exceeding one hundred pounds or imprisonment for twelve months, or both.

There were also alcohol-specific provisions concerning access to alcohol in the Aborigines Act 1905, which continued in subsequent legislative revisions in the Aborigines Act Amendment Act 1911, the Aborigines Act Amendment Act 1936 and the Native Administration Act Amendment Act 1940.

Other alcohol-specific provisions and prohibition were contained in liquor licensing laws, which extended from the colonial era, in the Wines, Beer and Spirit Act 1872 and which were replicated in the Licensing Act 1911 and the Liquor Act 1970, until the latter act was repealed by the Liquor Licensing Act 1988.

Section 130 of the Liquor Act 1970 provided that –

A person who, whether the holder of a licence or not, sells, supplies or gives liquor, either alone or mixed with any other liquid, to any native to whom this section applies, for the native or for  any other person, or solicits or receives from any such native an order for the supply or delivery of liquor, commits an offence. Penalty – Two hundred dollars, or imprisonment for six months, or both.

An example of the extensive powers utilised to control access to and use of alcohol by Indigenous people existed in Section 150 of the Licensing Act 1911. Section 150 was used through proclamation, to determine geographical areas in WA where access to alcohol by Indigenous people was expressly prohibited. This arrangement continued in the Liquor Act 1970 until it was repealed by a later amendment.

In a proclamation of June 1964 all of the State, except for the South West Division, was declared under Section 150, where the use of alcohol by Indigenous people was prohibited.

A proclamation was issued on October 1966 which amended the 1964 order, to continue prohibition over a somewhat smaller portion of the State.

The 1966 proclamation was cancelled in June 1971, as an delayed response to 1967 Referendum some four years earlier.

There were also other methods that were used to control access to alcohol, such as a provision in Native Administration Act 1936, which required licensees to exclude a ‘native’ from licensed premises, a provision which was continued in the Native Welfare Act 1954.

The use of ‘certificates of citizenship’ was also used to prohibit the use of alcohol by an Indigenous person if deemed to not be a fit and proper person under the Natives (Citizenship Rights) Act 1944 after they had been granted a certificate. This arrangement continued until its repeal in December 1971. The conditional nature of this citizenship being a form of was a potentially powerful mechanism for control.

Section 7 of the Natives (Citizenship Rights) Act 1944 provided that –

Section 7: (1) Upon complaint of the Commissioner of Native Affairs or any other person, a magistrate may suspend or cancel a Certificate of Citizenship if he is satisfied that the holder-
(a) is not adopting the manner and habits of civilised life; or
(b) has been twice convicted of any offence under the Native Administration Act, 1905-1941, or of habitual drunkenness; or
c) has contracted leprosy, syphilis, granuloma or yaws.

(2) Upon suspension or cancellation of a Certificate of Citizenship the person concerned shall lose the full rights  of citizenship conferred by such Certificate and shall be deemed to be a native or aborigine for all the purposes of the Native Administration Act, 1905-1941, or any other Act.

There were also other arrangements, whilst did not refer to Indigenous persons, had a disproportionate onerous impact on Indigenous people. One such example was the Licensing Act Amendment Act (No. 2) 1951, which added for the first time a provision concerned with drinking in public places.

This provision came into effect in January 1952 and targeted Indigenous people found drinking in parks and reserves or other public places within townsites. This arrangement was amended and re-enacted in the Liquor Act 1970, to prohibit drinking alcohol in ‘unlicensed premises’, which included parks and reserves and other public places, an arrangement that remains in the Liquor Control Act 1988.

Section 119 of the Liquor Control Act 1988 provides that –

Section 119: (1) A person who consumes liquor in any place or on any premises, including any park or reserve, without the consent of the occupier, or of the person or authority having control, of that place or those premises commits an offence.
Penalty: $2,000.

Eras of Indigenous policy

A number of administrative approaches have been adopted by governments in WA to close control and manage the State’s Indigenous people. There have been a number of phases, referred to by terms such as protectionism, assimilation, self determination and self management over the period. 

Over the time from colonisation in 1829, Indigenous people in WA have been officially described at different times in legislation and departmental nomenclature as Aborigines, half-castes and natives. 

The close regulation of many aspects of the lives of Indigenous people was achieved through the statutory position of the Chief Protector of Aborigines from 1898 to 1936. This system, which resembled similar approaches in the other Australian states, was preceded by the establishment in 1886 of the Aborigines Protection Board, which appointed Local Protectors throughout the State. 

The Chief Protectors in WA were:

  • 1898 – 1907: Henry Prinsep
  • 1907 – 1915: Charles Gales
  • 1915 – 1936: AO (Auber) Neville

In 1936 the title of Chief Protector was changed to Commissioner of Native Affairs and subsequently renamed the Commissioner of Native Welfare in June 1955, before this title was abolished in June 1972. 

The Commissioners who administered this portfolio were:

  • 1936 – March 1940: AO (Auber) Neville
  • March 1940 – April 1947: FL (Sonny) Bray
  • August 1948 – February 1962: SG (Stan) Middleton
  • February 1962 – June 1972: FE (Frank) Gare

For most of WA’s history as a colony and as a State, the administrative structures related to Indigenous peoples often operated apart from mainstream services. This meant that for example, health, hospital, educational and welfare related services were at various times largely delivered by Indigenous-focussed organisations, which were separate from services accessed by the remainder of the community. 

This meant in effect a quasi-apartheid structure operated at different times in the State and resulted in differential levels of provision of local government and state level community services according to race rather than to need. 

This separate provision of key services was reinforced by specific discriminatory regulations which restricted movement, place of residence, employment conditions, the right to marry, access to alcohol and many other civil rights of the Indigenous population.

For instance, it was only in December 1963 that the Chief Protector’s legal power as the guardian of every Indigenous person was repealed by the Native Welfare Act 1963, a provision that had been codified by the Aborigines Act 1905.

In mid 1972 when the Department of Native Welfare (NWD) was abolished and its welfare functions were transferred to the Department of Community Welfare (DCW), this meant that for the first time in WA State welfare services were ‘mainstreamed’ for Indigenous people. At this time other responsibilities previously undertaken by the NWD, such as planning, assessment and heritage listing of Indigenous cultural materials and management of sacred sites were shifted to the Aboriginal Affairs Planning Authority (AAPA), which had been established by the Aboriginal Affairs Planning Authority Act 1972.

Administrative arrangements

  • 1829 – 1885: British Colonial Secretary
  • 1886 – March 1898: Aborigines Protection Board (established by statute)
  • April 1898 – December 1908: Aborigines Department
  • January 1909 – December 1919: Department of Aborigines & Fisheries (merger of two departments due to economic conditions)
  • January 1920 – December 1925:
  • Department of North West: Control above 25 degrees latitude south
  • Department of Fisheries: Control below 25 degrees latitude south
  • January 1926 – December 1935: Aborigines Department
  • January 1936 – December 1954: Department of Native Affairs
  • January 1955 – June 1972: Department of Native Welfare
  • June 1972 – October 1994: Aboriginal Affairs Planning Authority
  • November 1994 – June 2001: Aboriginal Affairs Department
  • July 2001 – June 2013 Department of Indigenous Affairs
  • July 2013 – present: Department of Aboriginal Affairs

Note: Some functions of the DAA related to heritage and land use were transferred to the Department of Planning, Lands and Heritage in July 2017.

Welfare services

  • 1908 – January 1917: Public Charities and State Children’s Department
  • January 1917 – December 1927: State Children’s Department
  • December 1927 – June 1972: Child Welfare Department
  • July 1972 – December 1984: Department of Community Welfare (assumed welfare functions of Native Welfare Department and replaced Child Welfare Department)
  • January 1985 – October 1992: Department for Community Services
  • October 1992 – June 1995: Department for Community Development
  • July 1995 – June 2001: Department for Family and Children’s Services
  • July 2001 – June 2007: Department for Community Development
  • July 2007 – June 2013: Department for Child Protection
  • July 2007 – June 2017: Department for Communities
  • July 2013 – June 2017: Department for Child Protection and Family Support
  • July 2017 > present: Department of Communities 

Note: The Department of Communities absorbed the Department for Child Protection and Family Support, Department of Housing and the Disability Services Commission, plus some units from the Department of Local Government and Communities and Department of Aboriginal Affairs in July 2017.

Royal Commissions

  • Royal Commission Into the Treatment of Aboriginal Native Prisoners (1884)
    Chaired by John Forrest
  • Royal Commission Into the Penal System of the Colony (1899) 
    Chaired by Adam Jameson
  • Royal Commission on the Condition of the Natives (1905) 
    Chaired by Walter E Roth 
  • Royal Commission into the Treatment of Aborigines by the Canning Exploration Party  (1908)
    Chaired by JM Finnerty, G Taylor and CF Gale 
    Note: The report of the Royal Commission was apparently not tabled in Parliament. 
    Transcripts were published by Hesperian Press in 2010 with a collection of other materials edited by Bianchi P et al, Canning Stock Route Royal Commission
  • Royal Commission Into the Killing of Aborigines in East Kimberley (1927) 
    Chaired by George Wood
  • Royal Commission Into the Condition and Treatment of Aborigines (1935) 
    Chaired by Henry Moseley
  • Royal Commission into Allegations of Assaults or Brutality to Prisoners in Fremantle Prison and Discrimination against Aboriginal or part-Aboriginal Prisoners (1973)
    Report
    Chaired by Robert Jones
  • Royal Commission Into the Well Being of Persons of Aboriginal Descent in Western Australia (1974) 
    Chaired by LC Furnell
  • Laverton Royal Commission (1976)  
    Chaired by GD Clarkson
  • Royal Commission Into Aboriginal Deaths in Custody (1991)
    Regional report of inquiry into underlying issues in Western Australia
    Conducted by Pat Dodson

Click here to go the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) website, which has digitised copies of some of these important historical reports.

Parliamentary committees

  • Select Committee Relative to Aboriginal Natives (1871) 
  • Select Committee to Promote Efficiency of Charitable Institutions Bill (1874) 
  • Select Committee on the Aboriginal Native Offenders Bill (1883)
  • Select Committee on the Treatment and Condition of Aboriginal Natives (1885) 
  • Select Committee on the Aborigines Protection Bill (1886)
  • Survey of native affairs (1948)
    Chaired by FEA Bateman
  • Select Committee Into Native Welfare Conditions in the Laverton-Warburton Range Area (1956) 
    Chaired by W Grayden MLA 
  • Special Committee on Native Matters (1958) 
    Chaired by FE Gare
  • Select Committee on Native Title Rights (1997) 
    Chaired by Tom Stephens MLC
  • Select Committee on Reserves (Reserve 43131) Bill 2003 (2004) 
    Chaired by Peter Foss MLC
  • Community Development and Justice Standing Committee (2013)
    In safe custody: Inquiry into custodial arrangements in police lock-ups
    Chaired by Margaret Quirk

Other inquiries & research

There have been numerous inquiries involving a range of issues with proposals and agendas for reform contained in publicly available reports, such as this selective list –

  • Laverton Joint Study Group (1975)
    Report
    Chaired by Terry Syddall
  • Recommendations relating to the Aboriginal Communities Act and dry area legislation in Western Australia (1986)
    Community justice systems and alcohol control
    Chaired by JB Hedges
  • Special Cabinet Committee on Aboriginal/Police and Community Relations (1986)
    A study of perceptions
    by Lynne Roberts et al
  • Equal Opportunity Commission (1990)
    Essential service delivery to Aboriginal communities in Western Australia: Discrimination in government policies and practices
  • Wilkie, M (1991)
    Aboriginal justice programs in Western Australia
  • Task Force on Aboriginal Social Justice (1994)
    Report
    Chaired by Mike Daube
  • Report of Chief Executive Working Party on Essential Services (1995)
    Chaired by Kim Hames MLA
  • Aboriginal Legal Service of WA (1995)
    Telling our story: Report on the removal of Aboriginal children from their families in Western Australia
  • Aboriginal Affairs Legislative Review Reference Group (1996)
    The provision of services to Aboriginal people in Western Australia: The issues, an action plan and proposed legislation – Discussion paper
    Chaired by Les McCarrey
  • Western Australian Ombudsman (2000)
    Report of an investigation into deaths in prisons
  • Inquiry into response by government agencies to complaints of family violence and child abuse in Aboriginal communities (2002)
    Putting the picture together
    Chaired by Sue Gordon
  • Local Government Advisory Board (2008)
    Report of the inquiry into local government service delivery to Indigenous communities
    Chaired by Helen Dullard
  • Coroner’s investigation into 22 Aboriginal deaths (2008)
    Conducted by Alistair Hope (State Coroner)
  • Coroner’s investigation into 13 Aboriginal deaths (2017)
    Conducted by Rosa Foglianni (State Coroner)

National context

Background

In relation to the period since 1900 it is also helpful to be aware of the history of contested interactions between the State, which sought to maintain an unfettered use of a panoply of extensive powers and controls, and the Commonwealth, which increasingly sought to exercise involvement in Indigenous matters in WA and other Australian jurisdictions.

Responsibility for Indigenous people was retained by each of the States after Federation in 1901 as there was not an explicit power in the Commonwealth Constitution for the Federal government to legislate to supplant the exclusive jurisdiction that the States had exercised. Note: The Federal government had only direct responsibility for Indigenous people in the Northern Territory (NT).

This means, because of long standing reluctance by the States to relinquish control, there continues to be a mix of both state and national policies across a number of areas concerning Indigenous people, such as access to alcohol and drug treatment, health, education, policing and welfare. 

Commonwealth – State forums

One means resorted to establish cooperative arrangements was through complex and cumbersome administrative cross jurisdictional mechanism to achieve consistency in approach and priority throughout Australia. This approach evolved from a series of national forums, which first occurred in the mid 1930s.

The first joint Commonwealth and State forum which attempted to develop a consistent national approach to Indigenous affairs was held in Canberra on 21 – 23 April 1937. Although there was reluctance by some of the States and the NT towards developing national policies to supplant their own parochial approaches, the second national joint forum was held in 1948, followed by further meetings –

  • Conference of Commonwealth and State Aboriginal Authorities (in Canberra on 21 – 23 April 1937)
  • Conference of Commonwealth and State Aboriginal Authorities (in Canberra on 3 February 1948)
  • Native Welfare Conference 1951 (in Canberra on 3-4 September 1951)
  • Native Welfare Conference 1961 (in Canberra on 26-27 January 1961)
  • Aboriginal Welfare Conference of Commonwealth & State Authorities 1963 (in Darwin on 11-12 July 1963)
  • Aboriginal Welfare Conference of Commonwealth & State Authorities 1964 (in Canberra on 5 May 1964)
  • Aboriginal Welfare Conference of Commonwealth & State Authorities 1965 (in Adelaide on 21-22 July 1965
  • Aboriginal Welfare Conference of Commonwealth & State Authorities 1966 (at Thursday Island on 7-14 October 1966)
  • Aboriginal Welfare Conference of Commonwealth & State Authorities 1967 (in Perth on 21 July 1967)
  • Aboriginal Welfare Conference of Commonwealth & State Authorities 1968 (in Melbourne on 12 July 1968)

There was a growing appreciation that the Federal Parliament needed to become more involved in shaping a national approach to improve the circumstances of Indigenous people, because of the deficiencies of separate State based approaches. A proposal for a national approach was outlined in a speech on 8 June 1950 given in the House of Representatives by Paul Hasluck, who in 1951 was appointed Minister for Territories in the Menzies Government.

At the 1961 Native Welfare Conference the Commonwealth and the States agreed on a national policy of assimilation –

All aborigines and part-aborigines are expected eventually to attain the same manner of living as other Australians and to live as members of a single Australian community enjoying the same rights and privileges, accepting the same responsibilities, observing the same customs and influenced by the same beliefs, hopes and loyalties as other Australians. 

Thus, any special measures taken for aborigines and part-aborigines are regarded as temporary measures not based on colour but intended to meet their need for special care and assistance to protect them from any ill effects of sudden change and to assist them to make the transition from one stage to another in such a way as will be favourable to their future social, economic and political advancement’. (page 1)

Click here to go the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) website, which has digitised copies of a number of these and other important historical reports.

Administrative structures

The approach over the three decades up to the late 1960s usually involved deliberations confined to departmental heads and relevant ministers, which meant that direct input by Indigenous peoples into national policy was marginalised and very limited.

It is worth remembering that the original 1901 Constitution contained two provisions explicitly relating to Indigenous people. 

The first provision is contained in the ‘race power’, in Section 51(xxvi), which provided that the Federal Parliament was only permitted to make laws with respect to ‘the people of any race, other than the aboriginal race in any State, for whom it was deemed necessary to make special laws’. 

This provision meant that Indigenous affairs remained within the jurisdiction of the States and therefore the Federal Parliament had little or no role to play in Indigenous affairs. 

The second provision was in Section 127 of the Constitution, which stated that ‘in reckoning the numbers of people of the Commonwealth, or of a State or part of the Commonwealth, aboriginal natives shall not be counted’.

The 1967 referendum, held in May 1967, removed section 127 and amended s. 51(xxvi), so that the Federal parliament was able to pass special laws relating to Indigenous peoples, and supported the rationale for the Federal government to become involved in the funding and provision of services and programs.

Following the 1967 Constitutional referendum the Federal government began to assume a greater though cautious and constrained role in policy-making and funding services to Indigenous people. The Gorton Liberal government established a Council for Aboriginal Affairs, constituted with a membership of three non-Indigenous men appointed by the Government. It also established an Office of Aboriginal Affairs within the Prime Minister’s Department and appointed a Minister in Charge of Aboriginal Affairs under the Prime Minister.

However, following the election of the Whitlam government in December 1972, the Federal government assumed a greater role in developing Indigenous policy. This marked the adoption of processes to directly involve Indigenous people in decision making and consultative processes, in contrast to the earlier approach. 

The Whitlam government established the Department of Aboriginal Affairs (DAA) in 1973, which had roles of both policy making and administering Indigenous policies. In November 1973 the National Aboriginal Consultative Committee (NACC) was established, constituted as a national elected body of Indigenous representatives. 

In May 1977 the Fraser government replaced the NACC with the National Aboriginal Conference (NAC), which continued to operate until it was disbanded by the Hawke Government in June 1985. After the passing of the Aboriginal and Torres Strait Islander Commission Act 1989, the Aboriginal and Torres Strait Islander Commission (ATSIC) commenced in March 1990, when it took over key functions previously undertaken by the DAA.

As a statutory body ATSIC was constituted through the creation of a large number of elected regional councils and a national board of Indigenous representatives. ATSIC was abolished in March 2005 following the repeal of the Act.

In August 1991 the Hawke Government established the Council for Aboriginal Reconciliation (CAR) under the provisions of the Council for Aboriginal Reconciliation Act 1991. This statutory body consisted of a body of 25 appointed members, 14 of whom were Indigenous people and the remaining were drawn from the wider community. The CAR had a legislated life of 10 years, up to 1 January 2001, the centenary of Australian federation.

In January 2001 Reconciliation Australia, a non-profit organisation, was established to continue the promotion and recognition of the importance of reconciliation.