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Supreme Court of the Northern Territory |
Last Updated: 9 March 2022
CITATION: Blackwell v Bara [2022] NTSC 17
PARTIES: BLACKWELL, Owen
v
BARA, Daryl
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SPECIAL CASE stated from LOCAL COURT exercising Territory jurisdiction
FILE NO: 21910017
DELIVERED: 2 March 2022
HEARING DATE: 3 April 2020
JUDGMENT OF: Southwood J
CATCHWORDS:
HUMAN RIGHTS – Discrimination – Grounds – Racial discrimination – Constitutional law – Inconsistency of laws
Whether s 5D of the Misuse of Drugs Act is invalid (in whole or in part) because it is inconsistent with s 10 of the Racial Discrimination Act – Both Aboriginal and non-indigenous drug offenders subject to same sentencing regime for an offence against s 5D – Laws of bail and sentencing apply equally to both Aboriginal and non-indigenous offenders – Legislation does not impose any relevant limitation or prohibition on right to liberty – The right to equal treatment before the courts not properly equated to a right to equal protection of the law – The right to equal treatment before the courts is focused on equality in the administration and enforcement of laws by courts and tribunals – Legislation does not impose any relevant limitation or prohibition on equality of treatment – Section 5D of the Misuse of Drugs Act is valid.
Bail Act 1982 (NT) s 7A
Misuse of Drugs Act 1990 
(NT) s 4B , s 5A , s 5D ,
s 37
Racial Discrimination Act 1975 (Cth) s 10
Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562, Daniels v The Queen [2007] NTCCA 9; (2007) 20 NTLR 147, Duthie v Smith [1992] NTSC 38; (1992) 83 NTR 21, Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70, Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447, Mabo v Queensland (No 1) (1988) 166 CLR 186, Maloney v The Queen (2013) 252 CLR 168, Markarian v The Queen (2005) 228 CLR 357, Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 126 FCR 54, Munkara v Bencsevich [2018] NTCA 4, Nunnggargalu v Millar (unreported, 11 January 2013, NTSC, Barr J), R v Day [2004] NTCCA 2; (2004) 14 NTLR 218, R v Geddes [1936] NSWStRp 35; (1936) 36 SR (NSW) 554, R v Williams [2012] NTSC 47, Suttie v The Queen [2013] NTSC 37, Williams v Balchin [2012] NTSC 15, Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278, Work Health Authority v Outback Ballooning [2019] HCA 2; (2019) 266 CLR 428, referred to.
REPRESENTATION:
Counsel:
Informant: T Moses
Defendant: P Coleridge
Solicitors:
Informant: Solicitor for the Northern Territory
Defendant: North Australian Aboriginal Justice Agency
Judgment category classification: B
Judgment ID Number: Sou2202
Number of pages: 69
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Blackwell v Bara [2022] NTSC 17
BETWEEN:
OWEN BLACKWELL
Informant
AND:
DARYL BARA
Defendant
CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 2 March 2022)
s 5D(1) of
the Misuse of Drugs Act 1990 (NT) on 5 March 2019 the defendant
supplied less than a commercial quantity of cannabis to unnamed persons in
Malkala indigenous
community on Groote Eylandt. The maximum penalty for this
offence is imprisonment for nine years.Questions of law reserved
1. Is s 5D of the Misuse
of Drugs Act 1990 (NT) invalid (in whole or in part) because it is
inconsistent with s 10 of the Racial Discrimination Act 1975
(Cth)?
2. If the answer to Question 1 is “Yes”, to what extent is
s 5D of the Misuse of Drugs Act 1990 invalid?
Answers
1. No. Section 5D is
valid. It is consistent with s 10(1) of the Racial Discrimination Act
1975.
2. Unnecessary to answer.
The agreed facts
Alleged facts in relation to the offending
1. The following facts are agreed to reflect the facts that the informant will seek to prove at hearing. [...]
(a) The defendant in this matter is Daryl BARA, a sixty-six year old Aboriginal man who has lived much of his life in Umbakumba Community on Groote Eylandt.
(b) As at March 2019, the defendant was living in Darwin dividing his time between the "long grass" and his sister Linda Bara's house at Victoria Drive in Gray.
(c) On the morning of Tuesday, 5 March 2019 the defendant was approached by his granddaughter Darlene Durilla at Victoria Drive, Gray and persuaded to take a grey backpack to Groote Eylandt.
(d) The backpack contained seven packages containing a combined total of 300 grams of cannabis and small deal size bags.
(e) The defendant was aware that the backpack contained cannabis.
(f) The defendant was told by Ms Durilla to give the backpack to another one of the defendant’s and Ms Durilla's family members — Renelle Durilla — who would be waiting at the Groote Eylandt airport to take the backpack to Malkala Community on Groote Eylandt, where further members of the defendant's extended family reside. The defendant was told that the backpack, and thus the cannabis, was intended for persons in Malkala.
(g) The defendant was told by Ms Durilla that his flight to Groote Eylandt would be paid for and that he would receive $200 for taking the backpack.
(h) The defendant travelled from Palmerston to Darwin [Airport] in a mini bus taxi with Naleeta Mamarika, Linda Bara and Darlene Durilla.
(i) On arrival at Darwin Airport, Naleeta Mamarika gave the defendant the backpack. He then went to the Airnorth Desk and checked himself and the backpack onto the flight.
(j) At 09:45am the defendant boarded the Airnorth Service TL 404 to Groote Eylandt.
(k) At 11:25am the defendant's flight arrived at Groote Eylandt where disembarking passengers were being screened by members of the Alyangula Dog Operations Unit.
(l) Narcotic Detector Dog "Bear" was deployed to screen the baggage and provided a conditioned response to the grey backpack checked in by the defendant.
(m) Macreena Bara, the defendant's granddaughter, spoke to the defendant and told him in her language that he should not tell the Police about the cannabis.
(n) The defendant left the airport and sat in the rear driver's side seat of a white Toyota Landcruiser parked in the airport carpark where he watched Macreena Bara attempt to retrieve the grey backpack.
(o) At this time, the defendant was arrested by Senior Constable Matthew Woldseth and a Section 120C search was carried out on the bag by Senior Constable First Class George Hillen, recovering the seven packages of cannabis.
(p) The defendant was conveyed to Alyangula Police Station and later participated in an electronic record of interview, in which he made full and frank admissions. These included admissions to transporting cannabis and being paid $200 [for] that transportation. He [also] identified two co-offenders.
(q) Malkala is an indigenous community on Groote Eylandt [...] within the meaning of
(r) Cannabis is currently estimated by Northern Territory Police to be worth between $100 and $150 for one gram of cannabis on Groote Eylandt. 300 grams of cannabis could be sold for between $30,000 and $45,000 if sold individually.
(s) Cannabis is a dangerous drug listed in Schedule 2 of the Misuse of Drugs Act 1990 (NT), and 300 grams is a traffickable quantity, being in excess of 50 grams [and less than 500 grams].
Population statistics
2. According to 2016 Census data, the population of the whole of the Northern Territory is 228,833, of whom 25.5% are indigenous.
3. According to a police estimate, Malkala's population is between 80 and 100 people, of whom 100% are indigenous.
4. "Indigenous communities" within the meaning of s 3(1) of the
Misuse of Drugs Act 1990 (NT) are overwhelmingly populated by indigenous
people. According to 2016 Census data, approximately 87% of the population of
indigenous
communities is indigenous.
Charge statistics
5. The table below represents Local Court finalization data for charges
against s 5A (Sch 2 drugs only) and s 5D of the Misuse of Drugs Act
in the whole of the Northern Territory for the years 2017 and 2018
combined.
|
Result
|
Charge
|
Indigenous
|
Non-
Indigenous
|
Unknown
|
Percentage Indigenous
|
|
Sentenced
|
36
|
34
|
1
|
50.7%
|
|
|
88
|
5
|
1
|
93.6%
|
||
|
Withdrawn or
Dismissed
|
39
|
34
|
0
|
53.4%
|
|
|
108
|
2
|
0
|
98.2%
|
||
|
Committed to Supreme Court
|
11
|
18
|
1
|
36.7%
|
|
|
5
|
3
|
0
|
62.5%
|
||
|
Total
|
86
|
86
|
2
|
49.4%
|
|
|
201
|
10
|
1
|
94.9%
|
6. Of persons sentenced for offences against s 5A (Sch 2 drugs only),
approximately 68.5% were sentenced to terms of imprisonment. Of persons
sentenced for offences against s 5D , approximately 78.5% were sentenced to
terms of imprisonment.
(a) 140 Aboriginal people were charged and either sentenced or committed for drug offences contrary to
(b) 47 Aboriginal people were charged and either sentenced or committed for drug offences against
(c) 93 Aboriginal people were charged and either sentenced or committed for drug offences against
(d) 60 non-indigenous people were charged and either sentenced or committed for drug offences contrary to
(e) 52 non-indigenous people were charged and either sentenced or committed for drug offences against
(f) Eight non-indigenous people were charged and either sentenced or committed for drug offences against s 5D.
(g) More offenders were committed to the Supreme Court for an offence against
(h) As it is quite conceivable that some Aboriginal offenders who were dealt with in 2017 and 2018 committed more than one offence against
s 5D were Aboriginal people. Roughly equal numbers
of Aboriginal people and non-indigenous people were sentenced or committed for
an offence
against s 5A. In addition, while the differences in the rates of
imprisonment for offences against s 5A and s 5D respectively are not
insignificant, those imprisoned were by no means overwhelmingly offenders who
had committed an offence against
s 5D. The statistics provided do not show
the extent of any disparity between the terms of imprisonment imposed for
offences against s 5A and the terms of imprisonment imposed for offences
against s 5D respectively. s 5D. By way of example, the defendant and his
granddaughter, Darlene Durilla, did not live in an indigenous community at the
time of the
offending. They lived in Darwin. While they had connections to
Groote Eylandt, they did not live there at the time the alleged offence
was
committed. In addition, the defendant’s crime of drug supply was
essentially a preparatory act that was almost wholly committed
outside the
indigenous community of Groote Eylandt. His offending conduct was almost
complete when he disembarked from the aeroplane
with the backpack containing the
cannabis. The plan was that upon disembarkation the offender was to give the
backpack containing
the cannabis to Renelle Durilla who would be waiting at the
airport.The aggravating circumstance of supplying dangerous drugs in an indigenous community
Misuse of Drugs Act . In
return for his crime, the defendant received $200 and his airfare was paid.
Those who engaged the defendant as a drug courier
were organised offenders, but
he also fulfilled an important role. Dangerous drugs cannot be sold in
indigenous communities in the
Territory without couriers bringing the drugs into
those communities from elsewhere. ss 5A and 5D that the Local Court dealt with in
2017 and 2018, 101 of those offences involved the supply of dangerous drugs in
an indigenous community
contrary to s 5D. Depending on the manner of sale,
the sale of 300 grams of cannabis in Malkala community could have resulted in
the removal of $30,000
to $45,000 from an indigenous community of 80 to 100
people.Although the appellant was not in the position commonly referred to as a “principal”, nevertheless he played an important and essential role in the commercial distribution. He did so for profit. The circumstances in which the appellant came into possession of the cannabis in June 2006 are known only to the appellant, but in October 2006 the appellant did not merely wait in the community of Ngukurr to receive the cannabis. He obtained the cannabis in Darwin for the purposes of conveying the cannabis to the community of Ngukurr and selling it within that community.
As we have mentioned, the appellant grew up in the community of Ngukurr. Within that community, he committed the offences for which he was sentenced on 8 June 2005. Notwithstanding the lesson of being caught and the extension of leniency through the suspension of the sentences imposed in June 2005, after 12 months the appellant reoffended in the same community and the gravity of his offending escalated. That escalation continued in October 2006 notwithstanding that the appellant had been arrested in June 2006 and granted bail.
It is a significantly aggravating feature of the appellant’s criminal conduct that he was engaged in the drug trade within an Aboriginal community. In reality, the appellant chose targets for his criminal conduct that were particularly vulnerable, namely, members of the Aboriginal community in which he grew up. The Ngukurr community is a small Aboriginal community comprised of less than 2,000 people. In June 2006, having sold sufficient cannabis within that community to amass proceeds in the order of $11,700, the appellant was left in possession of 560 small plastic clip seal bags containing a total weight of 597.6 grams. If the 1.232 kilograms of cannabis in the possession of the appellant in October 2006 were similarly divided into plastic clip seal bags, approximately 1,100 such bags would have been involved and available for sale within that small community.
The criminal courts of the Northern Territory are all too familiar with the devastating effects of cannabis within Aboriginal communities across the Territory. It is not correct to view such offending as victimless. There are countless victims. They are the users of cannabis within Aboriginal communities and others in those communities who are adversely affected by the devastating impact upon the users. In particular, the children of heavy users suffer dreadfully.
Over many years, sentencing judges in this Court have repeatedly emphasised the gravity of the criminal conduct involved in the distribution of cannabis within Aboriginal communities. Offenders have been on notice that significant terms of imprisonment will be imposed for such offending. [...]
[...]
The use of cannabis in remote Aboriginal communities is part of a widespread problem arising out of substance abuse of many kinds in those communities. The substance most commonly used is alcohol, but cannabis and other drugs have a significant impact.
The recently published report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse included a finding (at 161) that:
... alcohol and other drugs are having a massive negative impact on the social fabric of Aboriginal communities and contribute greatly to family and cultural break down. [...]
The report went on to note that extreme alcohol abuse has become normal in Aboriginal communities in the Northern Territory and the devastating effects of such abuse are rapidly increasing. Similar observations apply to the use of cannabis. As with alcohol, it seems the use and abuse of cannabis has become a way of life for many Aboriginal people. The effect is to contribute significantly to the severe dysfunction found in many communities and within families in those communities. The negative effects of the consumption of cannabis not only impact upon the individuals immediately concerned, but upon the community as a whole.
Research referred to in the report identified a number of individual “community harms” linked to the abuse of cannabis. The identified harms reflect the experience of the Court. Those harms include increased suicide and self-harm, friction and disputes stemming from users seeking money for drug use, young people making demands for money to purchase cannabis and threatening violence or self-harm if money is withheld and a negative impact on participation by users in work, school, sports, culture and other aspects of community life. Cannabis use has led to mental health problems and to the compounding of harms associated with excessive drinking, kava consumption and inhalant abuse.
The price paid for cannabis (substantially greater in remote communities than in Darwin) means there is a reduced amount of money available to purchase food and other necessities. The report identified child neglect as a recurring issue in households where one or more of the occupants divert money for cannabis use or other addictions. It is readily apparent that substantial amounts of money are being taken from communities by way of payment for cannabis, resulting in money that would otherwise be spent for the benefit of members of the community being lost to the community. [...]
It is clear that users of cannabis, non-users of cannabis and the children of users of cannabis are all victims of the illegal trade. The abuse of cannabis continues to cause tremendous damage within Aboriginal communities. It leads to misery and dysfunction within those communities.
Courts in the Northern Territory have for some time been expressing increasing concern as to the consequences of offending of this kind. Research conducted by the Northern Territory Department of Health and Community Services supports the view that cannabis is in widespread use in remote communities and the use is increasing. A snapshot of cannabis use undertaken in April 2002 by the Department revealed an increase in use and identified cannabis use in males as young as 10. Use of cannabis in the Arnhem region of the Northern Territory, where this matter arose, was described as increasing at an “alarming rate”.
It is plain that the problem must be addressed by the wider community and by diverse strategies. It is not a problem which will be resolved within the criminal justice system alone. Insofar as the courts of the Northern Territory are concerned, it is apparent that the sentences that have been imposed in the past have failed to provide an adequate deterrent and have failed to stem the flow of cannabis into such communities. Commercial drug offending within Aboriginal communities has remained far too prevalent. As we have said, it is time for penalties to be increased in order to reflect the need for greater general deterrence. Those who engage in drug offending related to Aboriginal communities, particularly commercial drug activities, are on notice that in future longer terms of imprisonment will be imposed.[2]
The
legislative history of s 5D of the Misuse of Drugs Act
s 5(2)(a)(iv) of the Misuse of Drugs Act
and introduced a precursor offence that was in almost identical terms to
s 5D. Subsection
5(2)(a)(iv) stated:where the dangerous drug is a dangerous drug specified in Schedule 2 and subparagraph (iii) does not apply - $10,000 or imprisonment for 5 years, or if the drug is supplied to a person in an indigenous community, 9 years.
(1) An indigenous community is:(a) a prescribed area; or
(b) an area prescribed by regulation.
(2) However, a regulation may declare a prescribed area is not an indigenous community.
(3) In this section:
prescribed area, see section 4 of the Northern Territory National Emergency Response Act 2007 (Cth).
The purpose of the Bill is to increase the maximum penalty for supplying Schedule 2 drugs in indigenous communities. In September 2007, as part of the Commonwealth intervention in the Northern Territory, alcohol was banned in prescribed areas, which include most remote Aboriginal communities and town camps. The Commonwealth Minister for Indigenous Affairs, the Hon. Jenny Macklin MP, recently visited the Northern Territory. She was told by community members that the use of cannabis had increased since the intervention. The Chief Minister and bush MLAs have heard similar reports. A recently published observational study conducted by researchers from the Menzies School of Health Research noted an increase in cannabis use, an in the problems associated with its use, since the commencement of the alcohol restrictions in remote communities under the intervention.
[...] This Bill represents a commitment that Government is serious about tackling the devastating impact that alcohol and drugs are having on families in indigenous communities. Although this Bill targets a range of dangerous drugs, it is well known amongst health workers and the police that cannabis in particular has been seen to be linked to harm in the community.
The price paid by a remote community for cannabis abuse is substantially greater than in a major centre like Darwin. In communities where cannabis use is prevalent, there is less money available for the purchase of food and other necessities. The use of cannabis in these communities can be linked to other harm such as people fighting with their families to get money for drugs, people fighting when they cannot get access to drugs, and neglected children. The Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse Report, “Little Children are Sacred”, found that cannabis was a significant issue for participants at nearly every community meeting the Board of Inquiry held.
Participants identified that cannabis had a negative effect on community and family life and, in particular, on the care and protection of children. The negative effects of cannabis within indigenous communities was a significant contributing factor in Government’s decision to make the penalty for the offence of supplying drugs to those communities more serious. [...]
Some consideration was given as to how best to define what constitutes an indigenous community. Ultimately, it was decided the easiest way to do this was to rely on the parameters set by the Commonwealth Government in the Northern Territory National Emergency Response Act. These parameters were set to restrict the possession of alcohol in the same community; this Bill now seeks to target the supply of drugs. However, while the Commonwealth Act sets up appropriate parameters for most indigenous communities, it does not provide for all of them.
As a result, it will be necessary to allow Government to make regulations to ensure communities not already covered by the Commonwealth legislation can be included in this amendment. As members would be aware, the Commonwealth legislation has a sunset clause, and will expire in 2012. After that time, the prescribed areas as defined in the Commonwealth Act may not have any further application in the Northern Territory.
[...]
Consideration has been given to the potential impact the Racial
Discrimination Act may have on this Bill. Is Government unfairly targeting
our indigenous population by increasing penalties for drug laws (sic) only
in
their communities? No, Madam Speaker, dangerous drugs as defined under the
Misuse of Drugs Act are prohibited everywhere. What this Bill does is
increase the penalty for supply in particular areas. It does not matter who is
doing the supplying, they will
all face the same penalty. While some persons
who are apprehended will be local indigenous people, police quite regularly
apprehend systematic and organised
drug suppliers who travel directly into the
communities from southern states and elsewhere in the Northern Territory in
order to
facilitate illicit drug supply. These people will also fall under the
new provision if they are found with a trafficable quantity
of drugs. If they
are found supplying commercial quantities, then the different provision of the
Act applies and the penalty is heavier
again.
The Supreme Court has also recently indicated that it will view all future supplies into indigenous communities as a particularly serious element of aggravation in this type of offending. Clearly, this comment, as well as these amendments, is not intended to unfairly target local residents of our indigenous communities. However, in the light of the recent reports, research, and community consultations regarding the negative impact that drugs are having on our indigenous communities, this Bill seeks to work in conjunction with all other initiatives such as the Commonwealth Intervention, as well as this Government’s Closing the Gap initiatives. This Bill offers significant deterrents to those who threaten the safety and harmony of indigenous communities.[4]
Misuse of Drugs Act 1990 in 2008 on the basis that those provisions were
inconsistent with the Racial Discrimination Act 1975. Misuse of Drugs Act was further amended. Of relevance, the Misuse
of Drugs Amendment Act 2013 made the following amendments to the parent
Act.(a) It omitted the words “to a person” in s 5(2)(a)(iv) of the parent Act to overcome the decisions of the Supreme Court in Nunnggargalu v Millar[5] and Williams v Balchin.[6] Those decisions potentially had the effect of narrowing the meaning of “supply” in an indigenous community by requiring the Crown to prove actual supply of dangerous drugs to a person who was in an indigenous community. Contrary to the express legislative intention, the rulings in the two cases arguably meant that the provisions of
(b) It omitted the existing
In a prosecution for an offence against subsection (2), a statement in the complaint or information that the place at which the alleged supply occurred, or was to occur, was at the relevant time an indigenous community, is evidence of the matters stated.
(c) It inserted
an offence against
section 5 [drug supply] that was committed in an indigenous community.
Misuse of Drugs Act . The provisions of the amending Act
commenced on 18 July 2016. So far as is relevant to this proceeding, the
amending Act:(a) Omitted the definition of “indigenous community” in the Act and placed the definition in the Misuse of Drugs Regulations 1990.
(b) Expanded the definition of “supply” in
supply means:
(a) give, distribute, sell, administer, transport or supply, whether or not for fee, reward or consideration or in expectation of fee, reward or consideration; or
(b) offer to do an act mentioned in paragraph (a); or
(c) do, or offer to do, an act preparatory to, in furtherance of, or for the purpose of, an act mentioned in paragraph (a);
and includes barter and exchange.
(c) Repealed
(d) Repealed(i)
(ii)
(iii)
(iv)
(v) Section 5D that is the subject of this proceeding.
(e) Inserted a new(1) In this section:
aggravating circumstance means, subject to subsection (2):
[...]
(d) an offence against
s 37(1)(d) have no relevance to this proceeding because they
apply only to drug supply offences that have a maximum penalty of less than 7
years:
s 37(2)(b). However, the effect of s 37(1)(d) and s 37(2)(a)
and (b) mean that all people who are charged and convicted of any drug
supply offence to or in an indigenous community will be subject to the
presumptive
minimum mandatory sentencing provisions of s 37(2) and (3) of
the Misuse of Drugs Act . Part II ,
Division 1, Subdivision 1 of the Misuse of Drugs Act and their maximum
penalties is the level of seriousness of each offence. The seriousness of each
offence is based on the quantity
of the drug supplied, the type or category of
the dangerous drug supplied (Schedule 1 or Schedule 2), and the vulnerability of
and
potential harm caused to the end-users of the dangerous drug, including
children or members of an indigenous community. The maximum
penalties for the
various offences in Subdivision 1 range from a fine of 500 penalty units or
imprisonment for five years, to imprisonment
for nine years, to imprisonment for
14 years, to imprisonment for 25 years, to life imprisonment. The most serious
offences are the
supply of a Schedule 1 dangerous drug to a child, which attract
a maximum penalty of life imprisonment. The maximum penalty of imprisonment
for
nine years for an offence against s 5D is towards the bottom end of the
range of maximum penalties under the Act. However, it is almost double the
maximum penalty for an
offence against s 5A.The operation
of s 5D of the Misuse of Drugs Act
Section 5D
of the Misuse of Drugs Act , which was inserted into the Act as part of
the amendments made in 2016, states (emphasis added):(1) A person commits an offence if:(a) the person intentionally supplies, or takes part in the supply of, a substance or thing to another person; and
(b) the substance or thing is a dangerous drug and the person is reckless in relation to that circumstance; and
(c) less than a commercial quantity of the dangerous drug is supplied; and
(d) the dangerous drug is a Schedule 2 drug; and
(e) the dangerous drug is supplied in an indigenous community.
Maximum penalty: Imprisonment for 9 years.
(2) Absolute liability applies to subsection (1)(c), (d) and (e).
s 5D of the Misuse of Drugs Act that the
transaction or act that constitutes the offence must take place in an indigenous
community. Nor is it a requirement that
the offender must reside in an
indigenous community. As in this case, a significant number of Aboriginal drug
offenders who do not
reside in indigenous communities nevertheless commit acts
preparatory to the supply of dangerous drugs in indigenous communities
while
outside those communities. The geographical reach of s 5D extends well
beyond the boundaries of indigenous communities. s 3 of the Misuse of
Drugs Act to mean “an area prescribed by regulation”. For that
purpose, r 2A of the Misuse of Drugs Regulations 1990 prescribes the
same areas as prescribed under s 4 of the Northern Territory National
Emergency Response Act 2007 (Cth) (“the Intervention Act”)
immediately before its repeal.[7]
Under the Intervention Act, “prescribed areas” included an area
covered by paragraph (a) of the definition of “Aboriginal
land” in
s 3(1) of the Aboriginal Land Rights (Northern Territory) Act 1976
(Cth). Paragraph (a) of that definition covers “land held by a Land
Trust for an estate in fee
simple”.[8] s 5D(1)(e) of the Misuse
of Drugs Act describes a geographical location whose residents are
considered by the legislature (and the courts) as particularly vulnerable to
this type of drug offending; and whose residents are to receive the benefit of
the extra protection provided by the nine year maximum
penalty for an offence
against s 5D. The imposition of higher sentences for offenders based on the
aggravated impact of their offending on a particular community is an
established
sentencing principle. The particular harm done to a community and the prevalence
of an offence are mandatory considerations
under s 5(2)(da) and (g) of the
Sentencing Act 1995 (NT). Prior to the enactment of the Misuse of
Drugs Amendment Act 2008, and the subsequent enactment of s 5D in 2016,
there was already an established body of sentencing law that held that higher
sentences
should be imposed on offenders who commit drug supply offences with
the aggravating circumstance that they involved drug supply in
an indigenous
community. The sentencing principles developed because of the greater harm drug
offences cause in indigenous communities,
and those sentencing principles were
subsequently given express and specific legislative recognition. (a) The other mandatory considerations specified in s 5(2) of the Sentencing Act including: (i) importantly, the level of seriousness of the offence; (ii) the extent to which the offender was to blame; (iii) any harm done to a community as a result of the offence; and (iv) the prevalence of the offence.
(b) While the maximum penalty for an offence is both a reflection on the level of communal abhorrence and a directive to sentencing judges on how to weigh the gravity of this kind of offending, sentencing courts must also consider the circumstances of the particular case.
(c) The range of seriousness of the various acts or transactions that fall under the relevant prohibition, from the very minor to the most serious. In cases involving minor offending, sentencing courts place less weight upon the maximum penalty. This is particularly so given that the range of conduct potentially caught by
(d) It is wrong to assume that the maximum penalty is of more than general assistance in determining the actual sentence for an offence that is nowhere near the upper end of the range of seriousness for the offence. There are too many other relevant factors, including the circumstances of the instant offence and matters personal to the offender.
(e) Where the maximum penalty is increased, it is expected that median sentences will also increase. However, it is very rare for sentences imposed by the courts to increase in the same proportion as the increase in the maximum penalty specified by the legislature. For example, a doubling of the maximum penalty for an offence by the legislature will not result in a doubling of the length of sentences of imprisonment imposed by the courts.
(f) The relevance of the maximum penalty is not to be confused with the relevance of the current sentencing practice to which the Court must also have regard. Recourse to that practice provides guidance as to the applicable range of sentences.
(g) The maximum penalty is not a fixed benchmark or starting point for the exercise of the sentencing discretion. It provides both the public and sentencing courts with a guide to the seriousness with which the community should view the gravity of the particular offence. In Markarian v The Queen the plurality of the High Court stated (emphasis added):
It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hume J here to look first to the maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case.[9]
(h) The maximum penalty reflects the outer limit of criminal liability and is reserved for the worst category of case.[10]
(i) The maximum penalty will rarely be a significant driver of the ultimate sentencing disposition.[11]
s 5D in 2017 and
2018 did not receive a sentence of imprisonment.The incidental legislative provisions relied on by the defendant
s 5D of the
Misuse of Drugs Act , in conjunction with other provisions, indirectly
introduces two incidental consequences. First, under s 7A(1)(c) and
(2) of the Bail Act 1982 (NT) there is a presumption against the grant of
bail to a person charged with an offence against s 5D of the Misuse of
Drugs 1990. Bail must not be granted unless the person satisfies an
authorised member or court that bail should be granted. Second, as
already described above, the offender is subject to the presumptive minimum
mandatory sentencing provisions of s 37(2) and (3)
of the Act, as is the
case for all drug supply offences committed in an indigenous community. s 37(2) and (3) of the
Misuse of Drugs Act operate exclusively by reference to the maximum
penalty of imprisonment for nine years stipulated by s 5D of the Misuse
of Drugs Act . The presumption against bail applies to a number of offences
under the Misuse of Drugs Act , the Criminal Code 1983 (NT) and
various other Acts. The provisions of s 37(2) and (3) of the Misuse of
Drugs Act apply to all drug offences that have a maximum penalty of “7
years imprisonment or more” and to drug offences that have
a maximum
penalty of “less than 7 years imprisonment but the offence is accompanied
by an aggravating circumstance” specified
by s 37(1) , which includes
drug supply in an indigenous community. Both statutory provisions are laws of
general application that apply according
to their terms. (1) This section applies to the following offences:
[...]
(c) an offence against the Misuse of Drugs Act 1990 punishable by a
term of imprisonment for more than 7 years.
[...]
(2) Bail must not be granted to a person accused of an offence to which this section applies unless the person satisfies an authorised member or court that bail should be granted.
Misuse of Drugs Act ,
including two offences that carried a maximum penalty of imprisonment for 14
years. This meant that the presumption against bail
applied to the applicant.
Hiley J applied R v Williams. His Honour stated:As previously noted, s 7A(2) of the Bail Act requires the Applicant to satisfy the Court that bail should not be refused.
Section 7A(2A) provides that s 7A(2) does not apply to a person who “is assessed to be suitable to participate in a program of rehabilitation that is prescribed by the Regulations”.
Although the Bail Assessment Report suggests that the Applicant is suitable to participate in a program of rehabilitation [for the purpose of s 7A(2A)], for example at Banyan House, the Regulations do not include this as an appropriate program of rehabilitation for the purposes of s 7A(2A). Indeed, the Regulations do not specify any suitable program of rehabilitation for such purposes. (I mention that because this indicates that Parliament did contemplate that a person might be released on bail even where charged with serious offences of the kind set out in s 7A(1), where he or she is assessed as being suitable to participate in a program such as that proposed for the Applicant in this case.)
Needless to say, the onus of proof referred to in s 7A(2) still remains on the Applicant.
Notwithstanding the opinion of Reeves J in R v Wilson [2011] NTSC 15 to the effect that this subsection imposes a “heavy burden” on an applicant, I prefer to follow the construction of Kelly J in R v Williams [2012] NTSC 47 at [5]:
It seems to me that the plain words of s 7A do nothing more than cast an onus on the applicant to satisfy the court that bail ought not to be refused, and in considering whether or not the applicant for bail has satisfied the onus, the court must (as in all other applications) take into consideration the matters set out in s 24 of the Act, and no others. If the applicant does not satisfy the onus, then bail should be refused.
This is consistent with the approach of other Judges of this Court, including Mildren J in several unreported matters, and Blokland J in R v JDT [2011] NTSC 39. [...]
It is necessary therefore to consider the criteria set out in s 24, and to determine whether or not the Applicant has satisfied the Court that bail ought not be refused, having regard to those criteria.[14]
(a) The probability of whether or not the person will appear in court in respect of the offence for which bail is being considered. This assessment involves a consideration of the strength of evidence against the person and the severity of the probable penalty.
(b) The interests of the person.
(c) The risk that the person would interfere with evidence, witnesses or jurors.
(d) The risk that the person would commit another offence or breach his conditions of bail.
(e) The risk to the safety or welfare of the victim and anyone else, if any, that would result from granting the person bail.
Misuse of Drugs Act compared to non-indigenous people charged with an
offence contrary to s 5A of the Act, or at all. Subsections
37(2) and (3) of the Misuse of Drugs Act state (emphasis
added):(2) In sentencing a person for an offence against this Act the court shall, in the case of an offence for which the maximum penalty provided by this Act (with or without a fine) is:(a) 7 years imprisonment or more; or
(b) less than 7 years imprisonment but the offence is accompanied by an aggravating circumstance,
impose a sentence requiring the person to serve a term of actual imprisonment unless, having regard to the particular circumstances of the offence or the offender (including the age of the offender where the offender has not attained the age of 21 years) it is of the opinion that such a penalty should not be imposed.
(3) Where a court imposes a sentence requiring the serving of a period of actual imprisonment for an offence against this Act, it shall not impose a sentence of less than actual imprisonment for 28 days.
s 37(1)(d) , (2) and (3) of the Misuse of Drugs Act
1990 that the minimum mandatory sentencing provisions apply equally to an
offence committed against s 5A of the Act, if the offence is
committed in
an indigenous community.[15] s 37(2) and (3) of the Misuse of Drugs Act 1990 , the Court must
impose a minimum sentence of actual imprisonment for 28 days, unless the Court
is of the opinion that such a penalty
should not be imposed due to the
particular circumstances of the offence or the offender (including the age of
the offender where the offender
has not attained the age of 21 years). s 37(2) of the Misuse of Drugs Act . In Duthie v Smith,
Mildren J held that the legislature intended no more restriction upon the
sentencing discretion than to reverse the normal sentencing
approach that a
sentencing court must first consider and reject non-custodial dispositions
before the Court imposes a sentence of
imprisonment. In other words,
s 37(2) of the Misuse of Drugs Act specifies a presumptive
penalty only. Mildren J stated (emphasis added):It seems to me
that the approach called for by the legislature is to look at a sentence of
actual imprisonment unless the circumstances of the offence or of the
offender warrant otherwise. This places an onus on the accused to establish
that either of those circumstances exist, and if that onus is not discharged
[then
under s 37(3) of the Misuse of Drugs Act 1990 ] a 28 day minimum
sentence of actual imprisonment must
follow.[18]
In the end I consider that
the preferable interpretation to be given to s 37(2) is, as Angel J
concluded in Maynard v O’Brien, that the circumstances must be
“sufficiently noteworthy or out of the ordinary, relative to
the prescribed conduct constituting the offence, or of the offender, to warrant
a non-custodial
sentence”, but like Kearney J, I do not consider that the
circumstances need to be so noteworthy or out of the ordinary as
to convey the
meaning that only in rare cases will there be found circumstances that fall
within that class. Indeed, it is apparent
that Angel J himself could not have
intended that consequence given that he found that the fact that the appellant
in that case was
of exemplary character, a first offender, and intended to use
the cannabis for his own use, amounted to “particular circumstances”
warranting the imposition of a non-custodial
sentence.[19]
Section 10 of the Racial Discrimination Act
(1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.
(2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.
(a) If a Territory law creates a right which is not universal because it is not conferred (to the same extent) on persons of a particular race, then s 10(1) supplies persons of that race a complimentary right so that the right becomes universal.
(b) If a Territory law prohibits or limits persons of a particular race from enjoying human rights or fundamental freedoms to the same extent as persons of another race, then s 10(1) confers the rights which the Territory law removes or limits.
s 5D of the Misuse of Drugs Act is
inoperative for inconsistency with s 10(1) of the Racial Discrimination
Act in accordance with the second manner of application of s 10(1)
described in Gerhardy v Brown. That is, the defendant contends that,
“by reason of” the practical operation of s 5D, Aboriginal
people on Groote Eylandt
enjoy certain human rights and fundamental freedoms to
a more limited extent than non-indigenous people who reside elsewhere. s 5D of the Misuse of Drugs
Act and s 10(1) of the Racial Discrimination Act it is necessary
for a claimant to identify and establish the following.(a) The legislative provisions that are challenged.
(b) The human rights and fundamental freedoms the enjoyment of which is said to be unfavourably impaired or limited.
(c) The persons of a particular race whose enjoyment of human rights and fundamental freedoms is said to be unfavourably limited.
(d) The other group of persons whom it is said are able to enjoy the relevant human rights and fundamental freedoms without limitation or in a less limited way.
(e) How it is said those persons of the particular race enjoy to a more limited extent the identified human rights and fundamental freedoms.
(f) The impugned statutory provisions caused the disparity in the enjoyment of the identified human rights and fundamental freedoms.
The decision in Maloney v The Queen
(a) The provisions of the Liquor Act 1992 (Qld) and Liquor Regulation 2002 (Qld) limited the property rights of all people on Palm Island from the commencement of the legislation by expressly limiting the type and volume of alcohol that could be possessed in public places in restricted areas on Palm Island.
(b) Schedule 1R of the Liquor Regulation was geographically targeted to affect only a single community government area, the population of which was overwhelmingly Aboriginal. Its practical or operational impact on that population was neither accidental nor incidental.
(c) The direct operation and effect of the Liquor Act 1992 (Qld) and Liquor Regulation 2002 (Qld) was to substantially limit the extent to which the overwhelmingly Aboriginal residents of Palm Island could acquire, possess and consume alcohol compared to the extent to which non-indigenous people in their communities could acquire, possess and consume alcohol.[24] Non-indigenous people in non-indigenous communities were not subject to the same limitation of the right to engage in an otherwise lawful activity.
(d) The mere residence of Aboriginal people on Palm Island resulted in a limitation or restriction on their human rights. Different laws applied to different people in different places according to their race.
(e) Accordingly, there was a direct causal relationship between the practical operation of the Liquor Act 1992 (Qld) as amended and the associated Regulation, and the limited enjoyment of an identifiable human right by Aboriginal people.
The direct cause of that differential enjoyment of human rights by Aboriginal persons living on Palm Island ... was the existence in force on that date of Sch 1R of the Liquor Regulation. The Schedule was geographically targeted to affect only a single community government area, the population of which is overwhelmingly Aboriginal. Its practical impact on that population was neither accidental nor incidental. The Liquor Regulation was brought into existence in an attempt to prevent harm arising from alcohol-related conditions and behaviours perceived generally to exist within indigenous communities but not perceived generally to exist elsewhere in Queensland. Schedule R1 was inserted and tailored specifically to address conditions and behaviours [of indigenous persons] perceived to exist within the indigenous community of Palm Island. Geography was used as a proxy for race.[25]
s 5D of the Misuse of Drugs Act simply imposes a
greater maximum penalty for supplying less than a commercial quantity of
Schedule 2 dangerous drugs in an indigenous
community. The legislation does not
impose a limitation on the right to engage in an otherwise lawful activity by
any Aboriginal
people on Groote Eylandt. Unlike the provisions of the Liquor
Act 1992 (Qld) and the Liquor Regulation 2002 (Qld), s 5D has no
application unless a person commits such an offence against s 5D and is
charged with doing so. The section applies
to both Aboriginal and non-indigenous
people who commit the offence, and the offence may be committed by engaging in
acts of supply
committed outside an indigenous community. s 5D of the
Misuse of Drugs Act and s 10 of the Racial Discrimination
Act.The legislative provisions that are challenged
s 5D of the Misuse of Drugs
Act , together with the operation of the incidental bail and sentencing
provisions identified by the defendant, have been described at
some length
above.The human rights and fundamental freedoms the enjoyment of which is said to be unfavourably impaired or limited
s 5D of the Misuse of
Drugs Act , in combination with the other statutory provisions identified, is
to reduce the enjoyment of the rights of Aboriginal people in
“indigenous
communities”[27] to:
(a) liberty; and
(b) equal treatment before the tribunals and other organs administering criminal justice in the criminal justice system (hereafter “equal treatment before the courts”),
to an extent less than the enjoyment of those rights by non-indigenous people living elsewhere in the Territory.
The words of s 10(1) are wide; they refer to laws by reason of which persons of (inter alia) one race do not enjoy “a right” that is enjoyed by persons of another race. By s 10(2), a reference to a right includes, but is not expressly limited to, a reference to a right of a kind referred to in Art. 5 of the Convention. Although the validity of s 10(1) was not argued before us, there can be no doubt that its provisions will be valid only if they conform to, and carry into effect, the provisions of the Convention. Under Art. 5, State Parties to the Convention undertake to prohibit and eliminate racial discrimination “in all its forms”. If s 10(1) and (2) have the effect of prohibiting and eliminating racial discrimination they will be valid notwithstanding that they comprehend rights other than those specifically mentioned in Art. 5.[28]
Although s 10(2) includes rights of a kind referred to in Art. 5, it is not confined to the rights actually mentioned in that Article. What then are the other rights, if any, to which s 10(1) relates? The answer is the human rights and fundamental freedoms with which the Convention is concerned, the rights enumerated in Art. 5 being particular instances of those rights and freedoms, without necessarily constituting a comprehensive statement of them.[29]
Section 10 relates to the enjoyment of a right, not the doing of an act. The “right” referred to in s 10(1) is not, or is not necessarily, a legal right. Sub-section (2) directs attention to rights “of a kind referred to in Article 5 of the Convention”, each of which may be a “right” for the purposes of s 10(1). [...]
[...]
The rights referred to in Art. 5 are human rights for which, as the preamble to the Convention testifies, “universal respect... and observance” are encouraged. Human rights are calculated to preserve and advance “the dignity and equality inherent in all human beings”. The preamble states that the Convention was agreed to in furtherance of the purposes of the United Nations “to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion”.
Section 10 of the Racial Discrimination Act is enacted to implement Art. 5 of the Convention and the right to which s 10 refers is, like the rights mentioned in Art. 5, a human right – not necessarily a legal right enforceable under the municipal law. [...][30]
Human rights within the scope of s 10 of the RDA, not being limited to those listed in Art 5 of the Convention, may be accepted to encompass the full gamut of the civil, political, economic and social rights recognised in the Universal Declaration and in the ICESCR and the ICCPR.[31]
The right to personal liberty is, as Fullagar J described it, “the most elementary and important right of all common law rights: Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147 at 152. Personal liberty was held by Blackstone to be an absolute right vested in the individual by the immutable laws of nature and had never been abridged by the Laws of England “without sufficient cause”: Commentaries on the Laws of England (Oxford, 1765) Bk 1, pp 120-121, 130-131.[32]
In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights and freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language... [33]
Everyone has the right to life, liberty and security of person.
Article 9
No one shall be subjected to arbitrary arrest, detention or exile.
Article 11
1. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
2. No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
[...]
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a Judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of judgement.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
In construing Art 9(1) it should first be noted that the right not to be subjected to arbitrary detention is, textually, in addition to the right not to be deprived of liberty except on such grounds and in accordance with such procedure as are established by law. Prof Manfred Nowak, in his authoritative commentary on the ICCPR, The UN Covenant on Civil and Political Rights: CCPR Commentary... notes this additional limitation and observes that is not enough for the deprivation of liberty to be provided for by law; the law itself must not be arbitrary.
The history of the second sentence of Art 9 supports the conclusion pointed to by the text and supports, as well, a broad view of what constitutes arbitrary detention for the purposes of Art 9. Professor Nowak reviews the travaux preparatories at 172 [29] and observes that the prohibition of arbitrariness was adopted as an alternative to an exhaustive listing of all the permissible cases of deprivation of liberty. It was based on an Australian proposal that was seen as highly controversial, and although some delegates were of the view that the word arbitrary (“arbitraries”) meant nothing more than unlawful, the majority stressed that its meaning went beyond this and contained elements of injustice, unpredictability, unreasonableness and unproportionality (sic).
Having considered the history of Art 9 Professor Nowak concludes that “the prohibition of arbitrariness is to be interpreted broadly” and that “[c]ases of deprivation of liberty provided for by law must not be manifestly unproportional (sic), unjust or unpredictable”.[34]
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.
5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.
6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
s 5D of the Misuse of Drugs Act
generally, that the assertion of some discriminatory prohibition or
limitation on the right to equality before the law must be
considered.The persons of a particular race whose enjoyment of human rights and fundamental freedoms is said to be unfavourably limited, and the other group said to be able to enjoy the relevant rights and freedoms without limitation or in a less limited way
s 5D of the
Misuse of Drugs Act . Aboriginal people in indigenous communities are
thereby subject to a harsher sentencing regime for supplying less than a
commercial
quantity of a Schedule 2 dangerous drug in indigenous communities
than non-indigenous people are for the supply of a Schedule 2 dangerous
drug in
their communities contrary to s 5A of the Misuse of Drugs Act . s 5D by engaging in acts that fall
within the extended definition of supply in an indigenous community.
Fourth, s 5D only applies to Aboriginal people in indigenous
communities who commit such an offence. Section 5D has no operational effect at
all until someone commits the specified offence. Misuse of Drugs Act , or will commit such an offence in the future. Unlike
the Queensland legislation in Maloney, the alleged “reduction in
rights” in the Territory is contingent on the commission of the specified
drug offence, not
a declaration by the legislature that expressly restricts the
otherwise lawful rights of Aboriginal people. Even then, the application
of
s 5D is subject to the application of the wide range of sentencing
principles and other legislative provisions, described earlier in these
Reasons
for Decision, that may result in a sentencing disposition similar to a
sentencing disposition imposed for an offence against
s 5A for like
offending. s 5D were subject to a more severe sentencing regime than
non-indigenous offenders who committed an offence against s 5A in a
non-indigenous community. Different laws applied to the same criminal conduct
depending upon the place of the offence and the
race of the person who committed
the offence. Consequently, the rights to liberty and to equal treatment before
the courts of Aboriginal
drug offenders who committed a s 5D offence in an
indigenous community were more limited than the rights of non-indigenous drug
offenders who committed a drug offence
against s 5A in a non-indigenous
community. s 5D only apply to Schedule 2 dangerous drugs
supplied within the geographical bounds of an indigenous community.
Second, as Aboriginal people are overwhelmingly the residents of
indigenous communities, they are overwhelmingly the persons prosecuted
under
s 5D of the Misuse of Drugs Act . Third, a harsher sentencing
regime applies to Aboriginal offenders in indigenous communities who commit a
like offence to s 5A in their communities. Fourth, Aboriginal drug
offenders’ rights to liberty and to equal treatment before the courts are
therefore more limited than the
rights of non-indigenous drug offenders, because
a charge against s 5D exposes them to a harsher sentencing regime than
non-indigenous offenders charged with the corresponding offence against
s 5A. It was submitted that such differential treatment was a consequence
of using geography as an indicium or proxy for race and is in
direct conflict
with s 10 of the Racial Discrimination Act. s 5D of the Misuse of Drugs Act are not equivalent
offences. The legislature has determined that an offence against s 5D is a
more serious offence. Sections 5A and 5D do not apply to different groups of
people in different geographic areas. Both sections are of general application.
Both Aboriginal
and non-indigenous people commit offences against s 5A and
s 5D of the Misuse of Drugs Act . In addition, Aboriginal people who
do not live in indigenous communities commit offences against s 5D. s 5A is subject to the same sentencing regime as a
non-indigenous person who commits that offence. A non-indigenous person who
commits
an offence against s 5D is subject to the same sentencing regime as
an Aboriginal person who commits that offence. An Aboriginal person who commits
an offence
against s 5A is subject to a different sentencing regime to an
Aboriginal person who commits an offence against s 5D. moda1990184 /s5d.html" class="autolink_findacts">s 5D in 2017 and 2018 does not mean that more severe
sentencing laws apply to Aboriginal drug offenders than non-indigenous drug
offenders.
Nor does it mean that Aboriginal drug offenders are racially
targeted. Nor does the preponderance of charges against Aboriginal drug
offenders under s 5D mean that the increased criminal penalty of
imprisonment for nine years is unfavourably directed at Aboriginal people in
indigenous
communities. s 5D of the Misuse of Drugs Act
cannot be said to unfavourably limit the rights and freedoms of Aboriginal
people in indigenous communities, as a group of persons
of a particular race,
when compared to people resident outside indigenous communities, as the other
group of persons whom it is said
are able to enjoy the relevant rights and
freedoms without limitation or in a less limited way. How it is
said those persons of the particular race enjoy to a more limited extent the
identified human rights and fundamental freedoms,
and whether s 5D of the
Misuse of Drugs Act caused a disparity in the enjoyment of those rights
and freedoms
s 5D of the Misuse of
Drugs Act causes the identified rights and freedoms to be enjoyed to a more
limited extent gives rise to similar considerations.The right to liberty
(a) the point of bail consideration;[37] and
(b) the point of sentence.
s 5D of the Misuse of Drugs Act face a presumption
against bail and are exposed to more severe penalties than non-indigenous drug
offenders who reside elsewhere
and commit an offence against s 5A of the
Misuse of Drugs Act. This is said to occur by virtue of both the
increased maximum penalty of nine years imprisonment and the presumptive minimum
mandatory
sentence of 28 days actual imprisonment for an offence against
s 5D , which do not attach to offences against s 5A. Counsel submits
that if all things are equal, sentencing courts must impose higher penalties on
Aboriginal people who commit an offence
against s 5D than on non-indigenous
persons who commit an equivalent offence against s 5A. In addition, the
presumptive mandatory minimum sentence of 28 days imprisonment for s 5D
means that more persons connected with indigenous communities will face a period
of actual imprisonment compared to persons who are
unconnected to indigenous
communities and commit an offence against moda1990184 /s5a.html" class="autolink_findacts">s 5A. s 5A or
s 5D of the Misuse of Drugs Act are entitled to all of the rights
described in the preceding paragraph. Neither the greater maximum penalty of
nine years imprisonment
attached to s 5D , nor the presumptive minimum
mandatory penalty attached to s 5D , nor the presumption against bail
deprives a person charged with an offence against s 5D of any of those
rights. s 5A of the Misuse of
Drugs Act 1990 on the one hand, and the sentencing regime applicable to an
offence against s 5D on the other hand. Those submissions fail to
acknowledge the fact that the two offences are discrete offences of general and
equal
application. An Aboriginal person who resides in an indigenous community
may commit an offence against s 5A by supplying drugs to a person in Darwin
or the same Aboriginal person may commit an offence against s 5D by
supplying drugs in an indigenous community. Accordingly, Aboriginal offenders
are subject to different sentencing regimes depending
on whether they have
offended against s 5A or s 5D. s 5A or
s 5D and are subject to different sentencing regimes accordingly. However,
both Aboriginal drug offenders and non-indigenous drug offenders
are subject to
the same sentencing regime and the same minimum and maximum penalties if they
commit an offence against s 5D. It is likewise, if they both commit an
offence against s 5A. In respect of both offences, the laws of bail and
sentencing apply equally to both Aboriginal and non-indigenous offenders. Misuse of Drugs Act has no impact upon an Aboriginal
person’s right to liberty unless he or she commits an offence contrary to
s 5D and is duly charged and subject to the due process of the law. The
provisions of s 5D are certain and taken to be known in advance. The
consequences of being charged and convicted of such an offence are predictable.
There is no suggestion that the defendant was detained arbitrarily or is to be
dealt with under an arbitrary law. The defendant has
a right of appeal if the
sentencing court imposes a disproportionate sentence on her. Misuse of Drugs Act nevertheless limits the enjoyment of the right to
liberty by Aboriginal people who commit an offence against that provision. The
defendant submits that the limitation of that right turns upon a connection of
the offender to an “indigenous community”,
a connection that must
primarily attach to Aboriginal people as a matter of logic. The defendant
contends that in this case “criminal
offending” is not the
legislative discrimen on which the limited enjoyment of rights turns. Rather,
under s 5D of the Misuse of Drugs Act , presence in an
indigenous community serves as a proxy for race. Thus, the defendant says, the
higher maximum penalty, and the corresponding
limitation on the enjoyment of the
right to liberty by offenders, is a function of race. s 5D and suppliers based
in Darwin who supply in Darwin contrary to s 5A. On that analysis, it is
said to be demonstrably incorrect to assert that both groups face the same
prohibition, and are exposed to
the same penalties.It is important to recognise that, even though the impugned provisions take geographical place as the criterion for their operation, they deal with the rights of persons. When it is said, correctly, that the impugned provisions apply equally according only to whether a person is in a restricted area on Palm Island, it remains of the very first importance to the application of the RDA to recognise that the effect of the impugned provisions is on the rights of those who live on Palm Island (and any other person who is visiting Palm Island). Those who live on Palm Island are overwhelmingly Aboriginal persons. The extent to which the residents of Palm Island enjoy the right to own property differs from the extent to which persons resident elsewhere in Queensland enjoy that right, and argument in this court proceeded on the implicit footing that those who are resident elsewhere are predominantly non-Aboriginal persons.[38]
Misuse of Drugs Act
imposes no prohibition or restriction on otherwise lawful conduct or
activity; and the prohibition on supply activity is not directed
to persons who
live in indigenous communities or who are necessarily visiting indigenous
communities. Geography is not used as a
proxy for race as it was in the
Queensland legislation under consideration in Maloney. Second, as
stated above, the agreed facts do not show the number of Aboriginal drug
offenders who were actually living in indigenous communities
at the time they
committed these offences against s 5D ; and there is no information before
the Court that suggests the mandatory sentencing provisions or the presumption
against bail have
had an adverse impact on the liberty of Aboriginal people
charged with an offence against s 5D of the Misuse of Drugs Act
compared to non-indigenous people charged with an offence contrary to s 5A
of the Act. Third, as stated above, almost 50 percent of offenders who
committed an offence against s 5A of the Misuse of Drugs Act in 2017
and 2018 were Aboriginal offenders. The offence those offenders committed is a
different offence to that of supplying less
than a commercial quantity of
Schedule 2 dangerous drugs in an indigenous community. They were sentenced
according to the legislative
provisions applicable to s 5A , not those
applicable to s 5D. Fourth, even if it is accepted that s 5D of
the Misuse of Drugs Act has a disproportionate operation in relation to
Aboriginal offenders in some relevant sense, for the reasons already given that
operation
is not one which imposes a limitation on the enjoyment of the right to
liberty as properly characterised. The determination of the
minimum and maximum
penalties is not arbitrary, an Aboriginal person’s liberty cannot be lost
without due process, and the
difference in incarceration rates is not manifestly
disproportionate. Section 5D
of the Misuse of Drugs Act does not directly affect anyone’s
rights. Section 5D creates an aggravated criminal offence for the supply of a
particular type and quantity of dangerous drugs in an indigenous community.
The
purpose of the section is to try to protect Aboriginal people who reside in
deprived and disadvantaged indigenous communities
from the ravages of the
illicit drug trade that are well known to the courts. The words
“indigenous community” in s 5D identify the protected persons,
not the persons whose rights are affected. The purpose of s 5D is to deter
all people (not just Aboriginal people residing in indigenous
communities) from engaging in the supply of less than a commercial quantity
of
Schedule 2 dangerous drugs in indigenous communities. Section 5D has no
operational effect until a person commits an offence contrary to that section.
The offence is committed by both Aboriginal
and non-indigenous people. s 5D. An Aboriginal person who lives in an indigenous
community and supplies dangerous drugs in a non-indigenous community cannot be
subjected
to the application of s 5D. The necessary connection is the
supply of dangerous drugs in an indigenous community. The fact that Aboriginal
people may appear
disproportionately in the sentencing statistics for a criminal
offence does not, in and of itself, compel the conclusion that in
its legal and
practical operation the law discriminates against Aboriginal people based on
race. s 5D in 2017 and 2018 is not a function
of their race; it is a function of the number of Aboriginal offenders who
deliberately chose to
commit an offence against s 5D. It is the experience
of the courts that the majority of Aboriginal offenders tend to engage in more
visible, lower level offending
and are more likely to be observed and caught.
That experience is borne out by the agreed facts, which show that only about
5 percent
of Aboriginal offenders were committed to the Supreme Court for
an offence against s 5D, whereas more than 50 percent of non-indigenous
offenders are committed to the Supreme Court for an offence against s 5D.
The right to equal treatment before the courts
(a) In bail proceedings, Aboriginal persons in indigenous communities who are charged with an offence against
(b) In sentencing proceedings, Aboriginal persons in indigenous communities charged with an offence against s 5D face a presumptive mandatory minimum sentence of 28 days actual imprisonment under
(c) By prescribing a higher maximum penalty of 9 years imprisonment under
s 5D who are applying for bail. In fact, the onus of
proof in bail applications is reversed for all people charged with an offence
against
moda1990184 /s5d.html" class="autolink_findacts">s 5D. The reversal of the onus of proof has the consequence that the
courts treat Aboriginal people charged with an offence against s 5D less
favourably than non-indigenous people charged with an offence against s 5A.
The presumption against bail, which operates prior to a finding of guilt,
creates a substantial procedural disadvantage that limits
the rights of
Aboriginal people in indigenous communities charged with an offence against
s 5D to equal treatment before the courts. Misuse of Drugs Act is a procedural or adjectival provision. The
defendant says that the effect of s 37(2) and (3) of the Act is that the
law of sentencing
is not equally applied to Aboriginal drug offenders in
indigenous communities who are found guilty of an offence against s 5D.
Subsections
37(2) and (3) create a presumption that an Aboriginal drug offender
who is guilty of an offence against s 5D should spend at least
28 days in
prison. All things equal, no such presumption applies to a non-indigenous drug
offender who has committed an offence against
s 5A in his community. s 5D of the Misuse of Drugs Act are subject to sentencing principles
that apply to serious offences. Those sentencing principles are different to the
sentencing
principles that apply to non-indigenous drug offenders who are
sentenced for drug offences against s 5A. The impugned provisions have the
effect that Aboriginal persons found guilty of offences against s 5D are
not treated equally before the courts because they are exposed to a more severe
sentencing regime than non-indigenous people
found guilty of an offence against
s 5A. The appellant’s reliance upon the equal treatment right was not well founded. The complaint, as the majority (Chesterman JA and Daubney J) of the Court of Appeal characterised it, was not that the Magistrates Court discriminated against her on the basis of race, but that the law pursuant to which she was prosecuted had a discriminatory operation. In this Court, the appellant did not argue that she had been treated in the courts of Queensland any differently in matters of procedure from the way in which a non-Aboriginal person would have been treated. She submitted, in effect, that the unequal treatment was constituted by her being charged and convicted for an offence against a law which, in its practical operation and effect, was directed to persons of a particular race. That complaint, however, was not one about equal treatment before the courts. As the respondent submitted, the Liquor Act and the Liquor Regulation did not require any court to apply the law to the appellant in a manner that was different from the way in which the laws applied to non-Aboriginal persons.[39]
It may be doubted that by reason of the impugned provisions Aboriginal persons (whether those who reside on Palm Island or some wider class) do not enjoy the same rights to equal treatment before the courts and the same rights of access to any place or services as persons of any other race. It is not necessary, however, to decide these issues. It is sufficient in this appeal to consider only the right to own property.[40]
The terms of Art 5(a) are apt to refer to a right of a person to be treated by a tribunal or other adjudicative body, which is dealing with a matter affecting that person, as that body would treat any other person. Article 5(a) concerns a guarantee of procedural equality and gives effect to the principle of equality in legal proceedings. Procedural equality, as the respondent submits, may be taken to extend to equality in the application of the law.[41]
The first right which Ms Maloney submits the liquor restrictions limit is the right to equal treatment before the tribunals and all other organs administering justice recognised by Art 5(a). Ms Maloney does not complain that she was treated differently from the way non-Aboriginal accused persons are treated before the courts in Queensland. Her contention is that the right to equality of treatment extends to the substantive provisions of the law. She complains that she has been convicted of an offence against a law that in its practical operation and effect is directed to Aboriginal persons. Those submissions should be rejected. The right in Art 5(a) is akin to the right declared in Art 14 of the ICCPR and is to be understood as a right to equality of access to courts and other adjudicative bodies and in the application of the law by them.[42]
Misuse of
Drugs Act , and s 7A of the Bail Act, with the administration and
enforcement of those provisions. There is nothing in those provisions which
would interfere in the relevant
sense with their administration and enforcement
by the courts.______________________
[1] Daniels v The Queen [2007] NTCCA 9; (2007) 20 NTLR 147.
[2] Daniels v The Queen [2007] NTCCA 9; (2007) 20 NTLR 147 at [22]- [26], [35]-[42].
[3] See, for example, Witham v The Queen [2018] NTCCA 1 at [33], [37]-[38]; Mamarika v Lee [2013] NTSC 10 at [19], [23]; Williams v Balchin [2012] NTSC 15 at [17]; Nayidawawa v Moore [2007] NTSC 63; (2007) 178 A Crim R 473 at [9]- [10], [21]-[22]; Musgrave v Liyawanga [2004] NTSC 53 at [66].
[4] Northern Territory, Parliamentary Debates, Legislative Assembly, 1 May 2008.
[5] Nunnggargalu v Millar (unreported, 11 January 2013, NTSC, Barr J).
[6] Williams v Balchin [2012] NTSC 15.
[7] Under the Misuse of Drugs
Act , the term “indigenous community” has always been defined by
reference to those areas covered by the Intervention Act;
initially under
s 4B of the Misuse of Drugs Act (as in force on 23 July 2008), and
from 10 October 2016, under s 3(1) of the Act and r 2A of the
Misuse of Drugs Regulations.
[8] Subsection 4(2A) of the
Aboriginal Land Rights (Northern Territory) Act establishes the
Anindilyakwa Land Trust over an area described in Sch 6 of that Act. The
boundaries of that area are described as
the areas of Groote Eylandt and
Bickerton Island and every other island within defined coordinates. Under
s 12AAB of the Aboriginal Land Rights (Northern Territory) Act, the
Anindilyakwa Land Trust was granted an estate in fee simple over the land area
of Groote Eylandt. Accordingly, all residents
of Groote Eylandt are members of
an “indigenous community” within the meaning of the Misuse of
Drugs Act , including residents of Malkala community, Angurugu community and
Umbakumba community where the accused is on bail.
[9] Markarian v The Queen (2005) 228 CLR 357 at [31] per Gleeson CJ, Gummow, Hayne and Callinan JJ.
[10] Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 at 451-452.
[11] R v Geddes [1936] NSWStRp 35; (1936) 36 SR (NSW) 554 at 555-556; approved in Markarian v The Queen (2005) 228 CLR 3357 at [65] per McHugh J.
[12] R v Williams [2012] NTSC 47.
[13] Suttie v The Queen [2013] NTSC 37.
[14] Suttie v The Queen [2013] NTSC 37 at [29]- [35].
[15] As already stated,
s 37(1)(d) of the Misuse of Drugs Act defines "aggravating
circumstance" to include "an offence against Part II , Division 1, Subdivision 1
that was committed in an indigenous community".
[16] R v Day [2004] NTCCA 2; (2004) 14 NTLR 218.
[17] Duthie v Smith [1992] NTSC 38; (1992) 83 NTR 21.
[18] Duthie v Smith [1992] NTSC 38; (1992) 83 NTR 21 at 28.
[19] Duthie v Smith [1992] NTSC 38; (1992) 83 NTR 21 at 30.
[20] Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 94 per Mason J.
[21] Work Health Authority v Outback Ballooning [2019] HCA 2; (2019) 266 CLR 428 at [30], [58] and [104].
[22] Maloney v The Queen (2013) 252 CLR 168.
[23] Subsection 168B(1) of the Liquor Act 1992 (Qld) made it an offence for a person to have in their possession, in a public place in a restricted area, more than the prescribed volume of the specified type of alcohol for the area, other than under the authority of a “restricted area permit”. Subsection 168B(1) provides the mechanism for enforcing the prohibition against possessing a proscribed amount of alcohol in a restricted area.
[24] It is not necessary to demonstrate that all members of a particular race enjoy a particular right to a more limited extent than members of another race – it is enough that some Indigenous persons experience a limited enjoyment of the right: Maloney v The Queen (2013) 252 CLR 168 at [66], [70], [79] and [80] per Hayne J.
[25] Maloney v The Queen (2013) 252 CLR 168 at [362].
[26] French CJ, Hayne, Bell and Gageler JJ.
[27] More specifically, those indigenous persons residing in Malkala indigenous community.
[28] Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 85-86.
[29] Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 101.
[30] Mabo v Queensland (No 1) (1988) 166 CLR 186 at 216-217.
[31] Maloney v The Queen (2013) 252 CLR 168 at [336].
[32] Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 at 292. See also South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1 at [423] per Crennan and Bell JJ; and Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2013) 251 CLR 322 at [180] per Kiefel and Keane JJ.
[33] Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at [19].
[34] Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 126 FCR 54 at [143]- [145] per Black CJ, Sundberg and Weinberg JJ.
[35] Maloney v The Queen (2013) 252 CLR 168 at [336].
[36] Munkara v Bencsevich [2018] NTCA 4.
[37] As described above, s
7A(1)(c) and (2) of the Bail Act creates a presumption against bail for
an offence against the Misuse of Drugs Act punishable by a term of
imprisonment for seven years or more. The presumption applies to offences
contrary to ss 5 , 5A (Schedule 1 drug), 5B, 5C, 5D, 6, 6C, 6D, 6E, 6F, 6G,
7, and 7C (Schedule 1 drug).
[38] Maloney v The Queen (2013) 252 CLR 168 at [84]; see also [78]-[83].
[39] Maloney v The Queen (2013) 252 CLR 168 at [36].
[40] Maloney v The Queen (2013) 252 CLR 168 at [73].
[41] Maloney v The Queen (2013) 252 CLR 168 at [151].
[42] Maloney v The Queen (2013) 252 CLR 168 at [215].
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