Bara v Blackwell
[2023] HCATrans 104
[2023] HCATrans 104
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Darwin No D1 of 2023
B e t w e e n -
DARYL BARA
Applicant
and
OWEN BLACKWELL
Respondent
Application for special leave to appeal
KIEFEL CJ
GORDON J
GLEESON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA AND BY VIDEO CONNECTION
ON FRIDAY, 11 AUGUST 2023, AT 11.30 AM
Copyright in the High Court of Australia
KIEFEL CJ: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.
MR E.M. NEKVAPIL, SC appears with MR J.R. MURPHY and MR P.D. COLERIDGE for the applicant. (instructed by North Australian Aboriginal Justice Agency)
MR L.A. BABB, SC appears with MR J.G. RENWICK, SC and MR L.S. PEATTIE for the respondent. (instructed by Director of Public Prosecutions (NT))
KIEFEL CJ: Yes, Mr Nekvapil.
MR NEKVAPIL: Yes. Can the Court see and hear me clearly?
KIEFEL CJ: Yes, I can.
MR NEKVAPIL: Thank you, your Honour.
KIEFEL CJ: Other members of the Court?
GORDON J: Yes, I can.
MR NEKVAPIL: Yes, thank you. Could we start at application book page 105, which is paragraph [25] in the judgment below. The court there set out the terms of section 5D of the Misuse of Drugs Act. The critical differences between section 5D and section 5A were two. First, paragraph (e), which your Honours see there, was and additional element – present for section 5D but not section 5A:
supplied in an indigenous community.
And the second, on the very next line, was a:
Maximum penalty: Imprisonment for 9 years.
Compared with five years for 5A. The higher penalty introduced three different consequences for sentencing and bail, which are summarised in paragraph 9 of the special leave application – but I do not need to take your Honours there. They are, in summary, effect on sentencing, which the Court of Appeal commence at paragraph [72] of the judgment; mandatory imprisonment at [84] and a presumption against bail at paragraph [94].
The other major difference is one of operation or effect. Your Honours will find this at paragraph [7](a) of the judgment, which is at page 96 of the application book. This was a table prepared by agreement between the parties for the purpose of the special case. Your Honours see on the bottom two rows that of the persons charged with section 5D, about 95 per cent were indigenous, whereas of the persons charged with the more general offence, without the element – section 5A – about 50 per cent charged were indigenous.
Special leave is sought for an appeal raising important questions about sections 10 and 8 of the Racial Discrimination Act, and the applicant says that by reason of section 5D, persons of the – using it in the sense in the RDA – indigenous race enjoy the right to liberty or to equal treatment before the Tribunals or both to a more limited extent than persons of other races.
GLEESON J: Mr Nekvapil, on my reading of the Court of Appeal’s judgment, they appear to accept that section 5D overwhelming applies to Aboriginal people, but they were not prepared to find that it overwhelmingly applied to Aboriginal people because of their indigeneity. Is that a fair reading of the judgment?
MR NEKVAPIL: It is a fair reading of a line of reasoning which is exactly the line of reasoning that gives rise to special leave question 2. Your Honours would have seen this. This starts with Munkara v Bencsevich, which was an earlier decision of the Court of Appeal in 2018. At paragraph [58] of the judgment, which your Honours will find at application book page – well, if you start at page 122, paragraph [57], your Honours see:
A clear point of distinction between s 5D . . . and the . . . legislation in Maloney –
Then, skipping down a few lines:
there is no impact upon a human right . . . unless and until a person engages in the criminal act . . . or . . . is reasonably suspected of doing so.
Then, over the page:
that they have engaged in otherwise criminal conduct: matters which are not related to race.
Then, they come in the next paragraph to Munkara, and your Honours can see in the last four lines a summary of the reasoning in that judgment at paragraph [99]. Justice Blokland, with the others agreeing, upheld the Supreme Court’s decision that:
any adverse effect suffered by Aboriginal people as a result of an alcohol protection order was not a result of the law itself, but a result of the person committing a qualifying offence –
That reasoning, we say, is now the subject of a myriad of diverse views amongst intermediate appellate courts. Their Honours at paragraph [60], over on the next page, said that this was – about four lines from the bottom:
a firm basis upon which to distinguish Maloney from both the case in Munkara and the present case.
GLEESON J: Mr Nekvapil, another way of describing what the Court of Appeal accepted was that section 5D appears to criminalise conduct that is, in fact, committed virtually entirely by indigenous people. Is that enough to demonstrate the operation of section 10(1) in all the circumstances, or do you accept that you need more facts than that?
MR NEKVAPIL: We would say that that is enough, in this context. There are the other questions about liberty, and equal treatment, and so on, but if one takes the rejection in Maloney of the Solicitor‑General for Queensland’s argument there – which was, in effect, not all people on Palm Island are Aboriginal, not all people in the rest of Queensland are non‑Aboriginal – if one applies that to criminal law’s effect on liberty and equal treatment, then one gets to the result that section 5D, overwhelmingly limiting the enjoyment of persons of a particular race, would be a candidate for section 10.
There is a divergence of views as to whether that is the correct approach with criminal laws, which includes Justice Basten’s critique in Hamzy, which is set out in our reply paragraph 11, at application book 336 – where his Honour said that Munkara:
appears to place a fence around criminal laws of general application –
Justice Blokland, who wrote the leading judgment in Munkara, then agreed with Justice Basten’s criticism in a decision in R v Amital, and then, more recently, we have given your Honours the judgment of the Full Court in Fisher v Commonwealth. Do your Honours have a copy of Fisher v Commonwealth [2023] FCAFC 106? At paragraph 81, their Honours expressed:
reservations as to whether . . . Munkara is consistent with statements in Maloney –
and then, over the page, proposed a test with an exemption, that:
A law of general application imposing penal consequences . . . would not normally be said to result in a lesser enjoyment . . . unless the behaviour was singled out for punishment as an attack on members of a particular race.
What we say is that were a criterion of that kind adopted, Munkara would be in a different category – it being generally applicable – to Bara, which does have this indigenous community element, so that Bara has an express criterion on the face of the provision, which is then supported by the statistical evidence, which was not a feature in either Munkara or Maloney.
KIEFEL CJ: Before you get to these questions, though, for the purposes of section 10(1) of the Racial Discrimination Act, you need a proper comparator. It is put against you that a difficulty here is that under section 5A, more than 50 per cent of persons charged and sentenced under that provision are Aboriginal persons. So, your comparator with 5D, assuming that it is not as neutral in relation to indigenous people as it appears to be in its operation and effect, the comparison is problematic.
MR NEKVAPIL: Yes, thank you, your Honour. What we say to that and what we said to that below is that section 5A gives you, in effect, the background proportion. That will obviously vary, depending on, in this instance, the indigenous population as a proportion of the overall population of the Territory. Now, as the court below sets out at paragraph [66], the indigenous population of the Territory is 30 per cent. Then, one might expect to find a certain background population for section 5A which is what is charged for the offence of supply without the indigenous community element.
So, the numerical proportion, in our submission, cannot make a difference to the analysis because, properly analysed, it falls in exactly the same category as Maloney, where what one did was to compare the set of persons living on Palm Island to the set of persons living elsewhere in Queensland to see that a much higher or overwhelming proportion of the subset was present by reference to the background set of all persons.
KIEFEL CJ: What do you say the comparison is here?
MR NEKVAPIL: How we say that it should be approached here is that the set is all persons charged with supply less than a commercial quantity of a Schedule 2 drug, that is the entire combined set of section 5A and 5D. The subset, which is identified by the indigenous community criterion and charged under section 5D, is then much higher than the remainder or general set, which is the persons charged under section 5A, so that you have ‑ ‑ ‑
GORDON J: The problem with that, Mr Nekvapil, is what is identified by the Court of Appeal, and that is statistically you do not have a class of predominantly non‑indigenous people against which to have the comparison.
MR NEKVAPIL: Your Honour, what we say is that it cannot be a numerical analysis, because otherwise if you have a population with a higher overall background proportion of persons of a particular race, then a law of precisely the kind in Maloney, which applies to an area or group with a much higher proportion could never trigger section 10, only by reason of the overall background population. So, what we say is the critical comparison is the 50 per cent for 5A compared to the 95 per cent for 5D, which is really a massive difference, statistically speaking – I am sorry, was your Honour the Chief Justice ‑ ‑ ‑
KIEFEL CJ: I am sorry, yes. It is 50.9 per cent, I think, that ‑ ‑ ‑
MR NEKVAPIL: I think it is 49.4 per cent for 5A and 94.9 per cent for 5D. So, one could test it by saying, well, a non‑indigenous person is 10 times more likely to be charged under 5A than 5D. It really is a massive difference if you treat 5A as indicating the control of background proportion.
GLEESON J: Is not another way of comparing it to say that you have people whose offending may occur throughout the whole of the Northern Territory and then you have a subset who are Aboriginal offenders who may offend in an indigenous community, but the reality is that non‑indigenous offenders are unlikely to be supplying cannabis in an indigenous community for reasons of remoteness, language, culture, association and residence?
MR NEKVAPIL: We would accept that that is the explanation for the disproportion, but what we would say is that this is a suitable vehicle for testing how the reasoning in Maloney – which is, in vastly oversimplified summary, that a law which does not apply exclusively to the persons of one race can offend section 10 – would apply in a different context where there is a criterion which appears to relate to race, and there is a statistical disproportion. The sorts of questions we are discussing, we say, are interesting questions which should be the subject of consideration by this Court, given the public importance and potential significance they have, in a case which does not raise the in favorem proposition of a criminal law of general application, where you do not have a section 5A, section 5D, you only have the background population compared to the representation in the charged offence.
KIEFEL CJ: The other matter of comparison that is raised against you is that 5A and 5D are quite different offences. Section 5D has the element that you identified in subsection (1)(e), which involves a supply in an indigenous community. One might call that an aggravating factor, but it is obviously a factor which takes 5D out of the area as 5A is expressed. Section 5D involves the supply to a community which might be understood to be vulnerable.
MR NEKVAPIL: We say to that, with Justice Basten, that that is appropriate for analysis as part of the special measure analysis because, in terms of section 10, once you accept Maloney’s premise that a law can apply where it is non‑exclusive, you always, in a sense, have to remove a criterion, because otherwise it is always going to be different.
The law in Maloney was different because it applied only to one geographical location, and so you have to – once you accept that section 10 can apply to practical operation and effect – be prepared to remove the potentially offending criterion or component of the law, otherwise you can always say this law is different. What we say is that the indigenous community criterion is the one that produces the disparity, and therefore you cannot at the same time say for section 10 that you are talking about different things.
We have set out the difference in intermediate appellate authority on that point. I do want to just address briefly, if I can, the special measures question. What we say on that very briefly is that Maloney contained a diversity of views about the meaning and application of Article 1(4) and it would be, with respect, appropriate to revisit that after 10 years of experience, given the significance of that test for parliaments around Australia. We say that in circumstances where the Court of Appeal showed that there is already a large disparity in the enjoyment of the liberty right by indigenous persons in the Territory, a claimed special measure adopting as its mechanism an increased carceral set of consequences would require greater scrutiny.
We say also in terms of special leave questions 8 and 9 that this case is very different from Maloney, especially in this one important respect: in Maloney, there was both the primary legislation which identified the need in some communities, and the specific finding of the Executive in respect of each community – relevantly, in respect of Palm Island – whereas, here, the evidence – which your Honours do not have other than as summarised in the judgment, but would have on appeal – involved careful studies in two remote communities, a broader inquiry involving meetings with 37 communities and then an extrapolation from those to 98 or more communities of diversity, both urban to remote, cultural linguistic diversity, which we challenged as involving an unexpressed premise, and that was
then bolstered or supported by the Court of Appeal by reference to a notorious fact.
GLEESON J: What did that material say about Groote Island?
MR NEKVAPIL: The two studies were in East Arnhem Land but not Groote Island, but what we would say and where your Honour’s question might be going, is that there could not here be a question of severance because the criterion adopted by the Parliament was the in terra Act definition in its entirety, and it would be an important political question whether the same approach would be taken in respect of only individual communities, and how. So, what we say is – or what we would argue on the appeal is that one could not then look for evidence to support Groote Island only.
I think that means my time is up.
KIEFEL CJ: Yes, thank you. Yes, Mr Babb.
MR BABB: Your Honours, relief should be refused. Supply of an illegal drug is an offence throughout the Northern Territory. Such supply in an Aboriginal community has long been treated as an aggravating factor when sentencing, and the enactment of section 5D meant that that factum became a new element in a more serious offence, so as to protect such communities.
That protective legislative purpose, clearly expressed in the parliamentary debates, evidently makes it a special measure protected from invalidity by section 8 of the Racial Discrimination Act. But there is also really no arguable case . . . . . invalidity of section 5D under section 10, especially in this case, as the facts, found or agreed, cannot support that argument, especially as to the right to liberty. The argument that the right to equal treatment protects procedural as well as substantive rights has no support in the case law, nor does it arise on the facts here.
As the parties agreed below, section 10’s language – that is, “by reason of” – requires causation. It must be direct, and here it is not even arguably so.
GORDON J: Mr Babb, can I ask you about the two rights to which you refer? The right of equal treatment before Tribunals, you say, was not engaged, as I understand it, because the Court of Appeal formed the view that the impugned provisions affected the substantive law and not procedural rights. Is that right?
MR BABB: Yes, your Honour.
GORDON J: And in relation to the equal right of liberty, is it because of what is set out at – I think it is paragraph [113], that there was no factual basis to draw a conclusion that notwithstanding the consequences identified by Mr Nekvapil about penalty and bail, it was not shown – there was no evidence to support the view that when you compared someone charged under 5D with 5A, that they had received a greater term of imprisonment, received a sentence of imprisonment when you would not otherwise have received one, or been refused bail. Is that the way it is put?
MR BABB: Yes, quite so, your Honour. That is because the statistics necessarily required to be relied upon do not make good the asserted discrimination.
GORDON J: What I do not understand about that is why that, of itself, raises a question about the justification for section 5D. It makes it seem as though it has – it may not have some operation but, surely, a maximum sentence is taken into account in the sentencing process, and is that not enough to demonstrate that there is a material difference between 5A and 5D, in the way that it affects an offender?
MR BABB: It is always taken into account, your Honour. With respect, the analysis by the Court of Appeal accepts that and does look to the practical impact in circumstances where the majority of cases are dealt with in the Local Court, which has a sentencing jurisdictional limit of five years, and where the real outcome just is not shown by the statistics that were available to the court.
Your Honours, the claim that there is a divergence of views in the intermediate appellate courts is not made out on close analysis, in my submission. Starting with the case of Fisher that you have been taken to, it is unhelpful to the applicant’s case and points against special leave being granted, for a number of reasons. Firstly, the decision concerned the enjoyment of a statutory right – that was said to be enjoyed differently by people of different races. The court said in Fisher that that was distinguished from all prior cases which concerns laws restricting pre‑existing rights, and the court went on to say that, for that reason, Munkara and Bara had little, if anything, to say about the causal requirements of section 10.
Secondly, the correctness of Munkara and Bara did not fall to be decided, and the Full Court came to the view that none of the previous cases were directly on point and no question arose as to whether they should be followed.
Thirdly, the limited extent of the Full Court’s discussion in Munkara confirmed the correctness of the main point in that decision, which was that unlike the law in Maloney, the Alcohol Protection Act did not deprive anyone of the right to possess alcohol or enter restricted premises. Instead, its effect was to place consequences on people’s behaviour; namely, in the first instance, committing qualifying offences while affected by alcohol, and the Full Court said that this point was sound. In the very paragraph that my learned friend took you to, the court said, in any event, what Justice Blokland described as the main point appears to us, with respect, to be sound. The Full Court did consider Bara extensively at paragraphs[ 87] to [91] without expressing any negative view about Bara.
Your Honours, the decision in Fisher was only dealing with section 10 and did not deal with section 8, which the respondent in this matter says is a complete answer to any proposed appeal. Further, it was agreed by the parties in Fisher that there was a gap in life expectancy between Aboriginal and non-Aboriginal people that was a function of race, and there is no agreement here. The respondent says that the disparity is not a function of race. Given the extended definition of “supply”, and the facially neutral terms of the provision, the respondent has always denied that proposition.
Fisher works against the applicant because the Full Court was critical of Justice Basten’s reformulation of Munkara in Hamzy, which was relied on by the applicant. Turning to Hamzy, Justice Basten said no more, and in obiter, than that the reasoning but not the result in Munkara was not “self‑evidently correct”, and that a better rationale for the result would have been that the law in Munkara was protective of the same communities in which the offences largely occurred, and thus was protective of Aboriginal victims of offending.
Now, that alternative basis resonates with the analysis of the Court of Appeal in this case in relation to special measures. And, in any event, the view of Justice Basten was not endorsed by the other members of the court, who did not acknowledge it – or expressly preferred not to comment on it, in the case of the Chief Justice. The view was not even the result of Justice Basten’s minority judgment. It did not determine his judgment.
The case that my learned friend has said, where Justice Blokland considered the comments may be fair but doubted the result was different – of Amital – were obiter comments in a footnote, without any elaboration in an appeal concerning a traffic prosecution. So, there is not a divergence of views requiring settlement by this Court in my respectful submission.
Your Honours, this case is not an appropriate vehicle for special leave, and there are a number of reasons for that. The findings below that the statistics relied on were not sufficient, is one. Secondly, there were four independent bases for the judgment below, some of which are themselves sustained by independent reasoning, and not all of which are attacked by the applicant. And, most of the nine special leave questions concern matters of principle which either were agreed below or which proceeded from the mischaracterisation of the Court of Appeal’s reasoning.
Specifically, in relation to the second ground, your Honours, there is no substance in the assertion that the applicant was not on notice, in relation to the notorious fact that was relied upon. As a preliminary point, the issue is not material. The applicant suggests in reply that that fact was central to the Court of Appeal’s reasoning, and it was not. The Court of Appeal said at [138], appeal book 161, that:
the legislative finding . . . was reasonably open on the basis of –
three sources: academic studies, the Little Children Are Sacred Report, and the notorious fact established by longstanding judicial experience. These were judicial officers who – also sitters, trial judges at first instance – are not only dealing with supply matters, but . . . . . the other crimes that occur in these locations that, on mitigation, people are raising the impact of cannabis use as an explanation for their behaviour. Your Honours will find a very clear indication that the issue was raised at first instance, and it is in the respondent’s written submissions. That records Justice Brownhill putting the proposition squarely to the applicant. Justice Brownhill said:
what we say habitually in sentencing people for supply of cannabis in an Indigenous community is that it does enormous harm . . .
. . .
We articulate habitually a whole range of harms that are caused by cannabis in Indigenous communities. So are we wrong to do so?
The answer from my learned friend was:
Not at all, your Honour.
In the course of argument, the court also referred to taking judicial notice of the fact that the price of cannabis is double in Aboriginal communities. The reference was also made to this, and was squarely raised in the respondent’s written submissions, and they are there footnoted in our submissions.
Your Honours, unless I can assist you further, it is our submission that this is not an appropriate vehicle. Your Honours have engaged in a
discussion and fully understand our written submissions in relation to leave, and we submit that leave should be refused.
KIEFEL CJ: Yes, thank you, Mr Babb. Do you have anything by way of reply, Mr Nekvapil?
MR NEKVAPIL: Yes, your Honour, ones that I hope will be very brief. Firstly, one can get wrapped up in comparator analysis in a way that Justice Hayne pointed out is not supported by section 10. We would say that just focusing on the terms of section 10, section 5D, which plainly is almost entirely applying to the Indigenous community of the Northern Territory, on the face of section 10 raises a very serious question by reference to the fundamental right to liberty, and the right to equal treatment before the Tribunals. If one just looks at the core facts and the terms of section 10, we say there is a compelling case.
Next, as to looking at statistics to see whether the law is operating, we say that in our tradition liberty is only ever denied by law. So, if one increases maximum sentences, reverses onuses, et cetera, in the law, that of itself limits the enjoyment of the right to liberty because liberty is denied only by law. We say that although it is somewhat supported by the statistics, the very operation of the laws, unless it is said that they have no effect in the Territory – which could not really be said – itself is sufficient to limit enjoyment of that right.
Thirdly, and I think I have made this point, but I just try and reiterate it, in paragraph [60] of the judgment, at application book 124, the court below said that:
Maloney did not address the issue of whether a law’s disproportionate operation . . . can be said to be ‘by reason of’ . . . who commit, or are reasonably suspected of committing, otherwise criminal conduct . . . That is a firm basis upon which to distinguish Maloney from both the case in Munkara and the present case.
In paragraphs 81 and 95 of Fisher – albeit, we accept, in obiter dictum – the court provided a test with an exclusion of a law which has a particular application to a particular race which would distinguish Bara from Munkara if correct, we would say, on a proper understanding of Maloney. If the Court does not grant special leave, obviously Munkara and Bara will continue to be applied in the Territory without any such distinction.
The fourth point is that it was said that the statistics are not sufficient. We take issue with that in reply, noting that the statistics were produced including by cooperation with the Territory producing the
material that it said was sufficient for the case stated. We say that it is a valid random sample on which a robust statistical analysis can be made, remembering that in Maloney there was no such material.
Finally, your Honours, just on the deployment of the notorious fact, it is said that it was not material to the reasoning, but what we say it plainly was directly material to our third point on special measures, which concerned the proviso – which is that it has to remain required throughout the period; it is not enough at the start. At paragraph [158], at application book 170, the court provided as a reason for rejecting our argument based on the proviso that the notorious fact had meant that throughout the entire period from 2008 to 2019, there had remained a disparate situation in all indigenous communities as compared to all other communities, lasting 11 years, which, although section 5D had not yet remedied it, was still capable of being remedied by section 5D, and the sole answer to that argument was the notorious fact said to prevail throughout.
Just finally, your Honours, we do say that this case raises questions of public importance throughout this country, which have arisen several times now, and are appropriate for a resolution by this Court in terms of the application and effect of a national law.
KIEFEL CJ: Yes, thank you. The Court will adjourn to consider the course that it will take.
AT 12.11 PM SHORT ADJOURNMENT
UPON RESUMING AT 12.17 PM:
KIEFEL CJ: We consider that this is an inappropriate vehicle for the determination of the issue sought to be raised in connection with both sections 10 and 8 of the Racial Discrimination Act1975 (Cth). Special leave is refused.
The Court will now adjourn until 12.30 pm.
AT 12.17 PM THE MATTER WAS CONCLUDED