By ERWIN CHLANDA
The Territory’s new alcohol minimum floor price seems safe from breaching the Australian Constitution, which requires that trade between the states “shall be absolutely free,” because it applies to both local and interstate sellers in mail order or internet purchases.
Emeritus Professor Michael Coper (pictured), from the Australian National University’s College of Law, says the price restriction does not breach section 92 of the Constitution though it might have done prior to Cole v Whitfield in 1988 because it simply put an economic burden on interstate trade.
“The only laws that will now breach s 92 are laws that discriminate against interstate trade so as to give local trade a protectionist advantage.
“On its face, the minimum floor price does not appear to do that,” says Prof Coper, stressing that he is not giving legal advice, “just my first impressions from relatively limited information”.
But he says there are some further points that might be made: “In some cases, the law in question [the NT floor price legislation] may appear to be non-discriminatory on its face but nevertheless be discriminatory in the way that it applies to the particular facts of the situation.
“A good example is the Castlemaine Tooheys case from South Australia in around 1990 – there were different bottle deposit regimes for refillable and non-refillable bottles, which appeared non-discriminatory on its face, but gave SA an advantage because the outsiders sold predominantly the bottles with the higher deposit regime.”
“The way in which you might make this kind of argument here is that the impact of the floor price on interstate wine sellers might confer an advantage, not on the local wine sellers but on the local sellers of a competing product, namely, beer.
“This is a question of fact that would have to be investigated and is difficult to answer in the abstract (for example, would the wine floor price particularly advantage local beer sellers as compared with interstate beer sellers?).
“However, in any challenge this would an argument worth running.
“There is, however, the further point that, even if the floor price does in some way confer a local economic advantage, the [new NT] law might yet be justified as a genuine health measure and any local economic advantage thus be regarded as incidental.
“Again, whether the floor price is a genuine health measure is a question of fact, though there seems little doubt about this given the enquiry and the general background.
“Whether it is an effective health measure is a different issue that the courts would be reluctant to buy into.”
The Alice Springs News Online put several questions to a spokeswoman for the NT Department of the Attorney-General and Justice who said interstate liquor retailers are entitled to be granted a NT licence if they advise the NT Liquor Commission they intend to sell liquor into the Territory and provide a copy of their interstate liquor licence: “As at October 3 this has seen 48 companies sign up to distribute alcohol into the Territory and that list continues to grow,” she says.
Question: What would happen to holders of interstate liquor licences who sell into the Territory without holding a Territory licence – something that has been standard practice for years?
The spokeswoman also says: “All the application requirements for NT alcohol licensees do not apply to interstate retailers and they are exempt from the BDR scanning requirements. However, minimum pricing requirements apply to interstate sellers of alcohol as part of the conditions of their interstate retailer’s NT licence.
“There is a condition on every interstate retailer’s NT licence that the licensee must ensure that no liquor sale or offer is made or liquor sold below the minimum sale price within the Territory or to a purchaser who is in the Territory.”
Question: How would the NT Government proceed against an interstate company which is in breach?
Department: If an interstate licensee sells liquor to a person who then takes the liquor into the Territory no offence has been committed.
Question: Is that irrespective of the floor price not having been applied to the purchase?
Department: The minimum floor price conditions only relate to offers and sales of alcohol within the Territory or for delivery to a purchaser in the Territory.
Question: Would a purchaser be committing an offence by bringing to the Territory alcohol to which the floor price has not been applied?
Meanwhile Attorney General and Minister for Justice, Natasha Fyles, says evidence presented in Trevor Riley’s alcohol review shows a floor price in the NT is very effective at tackling alcohol related antisocial behaviour and crime.
“A minimum floor price on alcohol was trialed in 1995 and found to be very effective in reducing alcohol related violence and crime,” she says.
“In 2006, a voluntary floor price of $1.10 was trailed and found a 12% drop in overall alcohol related crime and halted the alarming rate of increasing assaults suffered by Aboriginal women. Not all licencees took part in this voluntary arrangement.
“The floor price is just one of the 219 recommendations from the Riley Review, designed to tackle alcohol related violence and crime stemming from alcohol abuse.”
By ERWIN CHLANDA