Bara v Blackwell

[2022] NTCCA 17

CITATION:Bara v Blackwell [2022] NTCCA 17

PARTIES:BARA, Daryl

v

BLACKWELL, Owen

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:AP 3 of 2022 (21910017)

DELIVERED:  14 December 2022

HEARING DATE:  19 September 2022

JUDGMENT OF:  Kelly, Barr and Brownhill JJ

CATCHWORDS:

CRIME – Drug offences – Misuse of Drugs Act 1990 (NT) – Where s 5A supply less than commercial quantity of Schedule 2 drug carries maximum penalty of imprisonment for 5 years – Where s 5D supply less than commercial quantity of Schedule 2 drug in an indigenous community carries maximum penalty of imprisonment for 9 years – Appellant argued s 5D is contrary to s 10 Racial Discrimination Act 1975 (Cth) (‘RDA’) as there are disproportionate rates of charging for Aboriginal people charged with an offence against s 5D, they are more likely to receive greater sentences to imprisonment, and a presumption against bail than non-indigenous people charged with an offence against s 5A – Identified groups do not allow a real comparison to be made in relation to enjoyment of rights - Disproportionate number of Aboriginal people charged with an offence against s 5D is not ‘by reason of’ the impugned provisions - Aboriginal persons do not enjoy the right to liberty or the right to equal treatment to a more limited extent than non-indigenous persons by reason of s 5D of the MDA and r 2A of the MDRs within s 10 of the RDA - The impugned legislation is not inconsistent with s 10 of the RDA – Grounds of appeal are not made out.

CRIME – Drug offences – Misuse of Drugs Act 1990 (NT) – Whether s 5D and r 2A are special measures under s 8 RDA and Art 5 of the International Convention on the Elimination of all Forms of Racial Discrimination – A special measure requires there to be a legislative finding of a need to address unequal enjoyment of human rights or fundamental freedoms as between racial groups, that the finding was reasonably open, the sole purpose of the law is to secure the adequate advancement of the racial group, and the law must be reasonably capable of being appropriate and adapted to the sole purpose – There was a legislative finding that s 5D was required to combat the impacts of cannabis abuse in indigenous communities – That finding was reasonably open – No reasonably practicable alternative to s 5D has been put forward – S 5D was and still is required – S 5D and r 2A are a special measure under s 8 RDA – Appeal is dismissed.

Allesch v Maunz (2000) 203 CLR 172; Australian Communist Party v Commonwealth (1951) 83 CLR 1; Blackwell v Bara [2022] NTSC 17; Bugmy v The Queen (2013) 249 CLR 571; CDJ v VAJ (1998) 197 CLR 172; Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161; Cook v The Queen (2018) 41 NTLR 75; Duthie v Smith (1992) 83 NTR 21; Escoigne Properties Ltd v Inland Revenue Commissioners (UK) [1958] AC 549; George v Rockett (1990) 170 CLR 104; Gerhardy v Brown (1985) 159 CLR 70; Henwood v Balchin [2011] NTSC 84; Hua v Dennien [2012] NTSC 17; Ibbs v The Queen (1987) 163 CLR 447; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; Maloney v The Queen (2013) 252 CLR 168; Mamarika v Lee [2013] NTSC 10; Markarian v The Queen (2005) 228 CLR 357; McKainv RW Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1; Monis v The Queen (2013) 249 CLR 92; Munkara v Benscevich [2018] NTCA 4; Musgrave v Liyawanga [2004] NTSC 53; Nayidawawa v Moore (2007) 178 A Crim R 473; Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697; Prior v Mole (2017) 261 CLR 265; Purkess v Crittenden (1965) 114 CLR 164; Rioli v The Queen [2010] NTCCA 13; Schuelein v The Queen [2016] NTCCA 7; Suttie v The Queen [2013] NTSC 37; The Queen v Day (2004) 14 NTLR 218; The Queen v Geddes (1936) 36 SR (NSW) 554; The Queen v Grose (2014) 119 SASR 92; The Queen v JDT [2011] NTSC 39; The Queen v Miria [2009] NSWCCA 68; The Queen v Williams [2012] NTSC 47; The Queen v Wong (1999) 48 NSWLR 340; Theories Pty Ltd v Holt [2012] NTSC 9; Thomas v Mowbray (2007) 233 CLR 307; Walden v Hensler (1987) 163 CLR 561; Western Australia v Ward (2000) 213 CLR 1; Williams v Balchin [2012] NTSC 15; Witham v The Queen [2018] NTCCA 1; Work Health Authority v Outback Ballooning (2019) 266 CLR 428, referred to.

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ss 3, 4, 12, 12AAB, Sch 1

Alcohol Protection Orders Act (NT)

Bail Act 1982 (NT) ss 7A, 8, 16, 20, 23, 24, 27, 27A, 28

Constitution s 109

European Convention on Human Rights Art 6

Evidence (National Uniform Legislation) Act 2011 (NT) s 144

International Convention on the Elimination of all Forms of Racial Discrimination Arts 1, 5

International Covenant on Civil and Political Rights Art 14

Justice Legislation Amendment (Drug Offences) Act 2016 (NT)

Lands Acquisition Act (NT) s 46

Local Court (Criminal Procedure) Act 1928 (NT) ss 59, 60, 65 101, 113, 162

Misuse of Drugs Act 1990 (NT) ss 3, 5, 5A, 5D, 37, Sch 1, Sch 2

Misuse of Drugs Amendment Act 2008 (NT)

Misuse of Drugs Regulations 1990 (NT) r 2A

Northern Territory National Emergency Response Act 2007 (Cth) s 4

Northern Territory (Self-Government) Act 1978 (Cth) ss 6, 57

Police Administration Act 1978 (NT), ss 123, 124, 137

Racial Discrimination Act 1975 (Cth) ss 8, 10

Sentencing Act 1995 (NT) ss 5, 7, 49-64, 122

Supreme Court Act 1979 (NT) ss 51, 54, 55

Universal Declaration of Human Rights Arts 3, 10

REPRESENTATION:

Counsel:

Appellant:E Nekvapil with J Murphy

Respondent:  J Renwick SC with L Peattie

Solicitors:

Appellant:North Australian Aboriginal Justice Agency

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    A

Number of pages:  82

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Bara v Blackwell [2022] NTCCA 17

No. AP 3 of 2022 (21910017)

BETWEEN:

DARYL BARA

Appellant

AND:

OWEN BLACKWELL

Respondent

CORAM:    KELLY, BARR and BROWNHILL JJ

REASONS FOR JUDGMENT

(Delivered 14 December 2022)

THE COURT:

1. The appellant is charged on information for an indictable offence, namely that on 5 March 2019 he supplied less than a commercial quantity of cannabis to unnamed persons in Malkala community on Groote Eylandt, contrary to s 5D(1) of the Misuse of Drugs Act 1990 (NT) (‘MDA’). The maximum penalty for the offence is imprisonment for nine years.

2. On 18 September 2019, the charge came before the Local Court and the appellant pleaded not guilty.

3. On 3 January 2020, the Local Court stated a special case for consideration by the Supreme Court under s 162 of the Local Court (Criminal Procedure) Act 1928 (NT), and reserved two questions for the opinion of the Court. On 2 March 2022, Southwood J answered the questions on the stated case as follows:[1]

   (1) Is s 5D of the MDA invalid (in whole or in part) because it is inconsistent with s 10 of the Racial Discrimination Act 1975 (Cth) (‘RDA’)?

   No. Section 5D is valid. It is consistent with s 10(1) of the RDA.

   (2) If the answer to Question 1 is ‘Yes’, to what extent is s 5D of the MDA invalid?

   Unnecessary to answer.

4. The appellant appealed from the judgment of Southwood J on the following grounds:

   (a)His Honour erred in concluding that s 5D of the MDA was valid, and consistent with s 10(1) of the RDA, and that it was unnecessary to determine the extent to which s 5D is invalid.

   (b)His Honour should have concluded that s 5D of the MDA was invalid, by reason of inconsistency with s 10(1) of the RDA, at least to the extent that s 5D purports to apply to the conduct of the appellant on 5 March 2019 charged in count 1 of the information.

   Facts

5. For the purposes of the stated case, the parties agreed certain facts without prejudice to the appellant’s right to challenge them if the charge proceeds to trial. Those facts include the following:[2]

   (a)The appellant is a 66 year old Aboriginal man who has lived much of his life in Umbakumba community on Groote Eylandt.

   (b)As at March 2019, the appellant was living in Darwin, dividing his time between the ‘long grass’ and his sister’s house.

   (c)On 5 March 2019, the appellant was persuaded by his granddaughter (‘DD’) to take a backpack to Groote Eylandt.

   (d)The backpack contained seven packages containing a total of 300 grams of cannabis and small deal size bags.

   (e)The appellant was aware that the backpack contained cannabis.

   (f)The appellant was told to give the backpack to another family member who would be waiting at the airport, who would take the backpack to Malkala community on Groote Eylandt, where other family members live. The appellant was told that the backpack, and thus the cannabis, was intended for people in Malkala.

   (g)The appellant was told that his flight to Groote Eylandt would be paid for and he would receive $200.

   (h)The appellant travelled to the Darwin airport with DD and two other people.

   (i)When they arrived at the airport, the appellant was handed the backpack. He checked himself and the backpack onto the flight.

   (j)The appellant boarded the flight to Groote Eylandt.

   (k)When the flight arrived at Groote Eylandt, disembarking passengers and their baggage were screened by the Northern Territory Police Dog Operations Unit.

   (l)A dog screening the baggage responded to the backpack.

   (m)Another of the appellant’s granddaughters (‘MB’) told him in language not to tell the Police about the cannabis.

   (n)The appellant left the airport and sat in a car watching MB try to retrieve the backpack.

   (o)The appellant was arrested and the backpack was searched. The seven packages of cannabis were found.

   (p)The appellant was taken to the Police Station and participated in an electronic record of interview in which he made full admissions to transporting the cannabis and being paid $200. He identified two co-offenders.

   (q)Malkala is an indigenous community on Groote Eylandt within the meaning of s 3(1) of the MDA.

   (r)Cannabis is estimated to be worth between $100 and $150 for one gram 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 MDA and 300 grams is a traffickable quantity, being in excess of 50 grams.

6. The parties also agreed the following facts, identified as ‘Population statistics’:

   (a)According to 2016 Census data, the population of the Northern Territory is 228,833, of whom 25.5% are indigenous.

   (b)Malkala’s population is between 80 and 100 people, of whom 100% are indigenous.

   (c)‘Indigenous communities’ within the meaning of s 3(1) of the MDA are overwhelmingly populated by indigenous people. According to 2016 Census data, approximately 87% of the population of indigenous communities is indigenous.

7. The parties also agreed the following facts, headed ‘Charge statistics’:

   (a)The table below represents Local Court finalisation data for charges against s 5A (Sch 2 drugs only) and s 5D of the MDA in the whole of the Northern Territory for the years 2017 and 2018 combined.

Result	Charge	Indigenous	Non-Indigenous	Unknown	Percentage Indigenous
Sentenced	s 5A	36	34	1	50.7%
	s 5D	88	5	1	93.6%
Withdrawn or dismissed	s 5A	39	34	0	53.4%
	s 5D	108	2	0	98.2%
Committed to Supreme Court	s 5A	11	18	1	36.7%
	s 5D	5	3	0	62.5%
Total	s 5A	86	86	2	49.4%
	s 5D	201	10	1	94.9%

(b)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.

1. Southwood J found, on the basis of the information in the population statistics and the charge statistics, the following facts:[3]

   (a)140 Aboriginal[4] people were charged and either sentenced or committed for offences contrary to ss 5A and 5D.

   (b)47 Aboriginal people were charged and either sentenced or committed for offences against s 5A.

   (c)93 Aboriginal people were charged and either sentenced or committed for offences against s 5D.

   (d)60 non-indigenous people were charged and either sentenced or committed for offences contrary to ss 5A and 5D.

   (e)52 non-indigenous people were charged and either sentenced or committed for offences against s 5A.

   (f)8 non-indigenous people were charged and either sentenced or committed for offences against s 5D.

   (g)More offenders were committed to the Supreme Court for an offence against s 5A than for an offence against s 5D (30:8). Arguably, 22 more serious offences were committed against s 5A than against s 5D in 2017 and 2018.

   (h)For the years 2017 and 2018, the great preponderance of people sentenced or committed for an offence against s 5D were Aboriginal people.

   (i)Roughly equal numbers of Aboriginal people and non-indigenous people were sentenced or committed for an offence against s 5A.

   (j)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.

   (k)A fair estimate is that at least 29,000 Aboriginal people lived in indigenous communities (including town camps) in the Northern Territory in 2016.

   (l)The supply of cannabis in indigenous communities is a prevalent offence. Of the 200 offences committed against ss 5A and 5D, 101 of them involved the supply of dangerous drugs in an indigenous community contrary to s 5D.

2. Southwood J also found that the information before the Court (the population statistics and the charge statistics) did not include the following information:[5]

   (a)the dates when the drug offences referred to in the data were committed;

   (b)the precise number of Aboriginal offenders who committed the 93 drug offences against s 5D (for which the offenders were sentenced or committed);[6]

   (c)any disparity between the terms of imprisonment imposed for offences against s 5A and the terms of imprisonment imposed for offences against s 5D;

   (d)the number of Aboriginal offenders who were actually living in indigenous communities at the time they committed the offences against s 5D; and

   (e)any adverse impact of the presumption against bail on the liberty of Aboriginal people charged with an offence against s 5D, whether compared to non-indigenous people charged with an offence contrary to s 5A, or at all.

3. Southwood J also found the following facts relating to the appellant’s offending.[7]

   (a)The appellant and DD did not live in an indigenous community at the time of the offending.

   (b)The appellant and DD had connections to Groote Eylandt, but did not live there at the time the offence was committed.

   (c)The appellant’s crime was essentially a preparatory act that was almost wholly committed outside the indigenous community of Groote Eylandt. His offending was almost complete when he disembarked from the plane with the backpack containing the cannabis.

   (d)Those who engaged the appellant as a drug courier were organised offenders, but he also fulfilled an important role. Dangerous drugs cannot be sold in indigenous communities in the Northern Territory without couriers bringing the drugs into those communities from elsewhere.

   (e)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.

4. There is no appeal from any of the factual findings made by Southwood J.

   Appeal by way of rehearing – Error must be shown

5. This is an appeal brought pursuant to s 51 of the Supreme Court Act 1979 (NT). Given the powers of the Court of Appeal,[8] such appeals are by way of rehearing.[9] On an appeal by way of rehearing, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.[10]

   Section 10 of the RDA

6. Section 10 of the RDA provides as follows.

   Rights to equality before the law

   (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.

7. In Western Australia v Ward,[11] the High Court made the following points about s 10 of the RDA.

8. First, s 10(1) is directed to the enjoyment of rights by some but not others or to a more limited extent by others, that is, to where there is an unequal enjoyment of rights that are or should be conferred irrespective of (relevantly) race. ‘Enjoyment’ of rights directs attention to more than what might be thought to be the purpose of the law in question. It is therefore wrong to confine the relevant operation of the RDA to laws whose purpose can be identified as discriminatory.

9. Secondly, s 10(1) operates by force of federal law to extend the enjoyment of rights enjoyed under another federal law or a Territory or State law.

10. Thirdly, there are two kinds of case in which different considerations arise. If racial discrimination arises because a relevant State law merely omits to make enjoyment of the right universal, by failing to confer it on persons of a particular race, then s 10 operates to confer that right on persons of that particular race. In this situation, the section proceeds on the footing that the right which it confers is complementary to the right created by the State law, and the provisions of the State law remain unaffected (valid). This may be contrasted with the case where a State law imposes a discriminatory burden or prohibition. When racial discrimination proceeds from a prohibition in a State law directed to persons of a particular race, forbidding them from enjoying a human right or fundamental freedom enjoyed by persons of another race, by virtue of that State law, s 10 confers a right on the persons prohibited by the State law to enjoy the right or freedom enjoyed by persons of that other race. This necessarily results in inconsistency between s 10 and the prohibition contained in the State law. The same is true of a State law that deprives persons of a particular race of a right or freedom previously enjoyed by all regardless of race.

11. Fourthly, s 10(1) does not require that the impugned law, in terms, makes a distinction based on race. It is directed at the practical operation and effect of the impugned law and is not concerned merely with matters of form but with matters of substance.

12. Fifthly, some care is required in identifying and making the comparison between the respective ‘rights’ involved. The rights upon which s 10 operates are defined in s 10(2) to include a right of a kind referred to in Art 5 of the International Convention on the Elimination of all Forms of Racial Discrimination (‘ICERD’).

13. Sixthly, particular considerations are presented where it is by reason of a law of the Territory that persons of a particular race do not enjoy a right that is enjoyed by persons of another race. Where the Territory law falls into the second kind of case identified above (where the effect of the law is to forbid the enjoyment by persons of a particular race of a human right or fundamental freedom enjoyed by persons of another race), s 10 and the Territory law do not operate concurrently. The conflict between the laws is not resolved by reference to s 109 of the Constitution. It is resolved by reference to ss 6 and 57 of the Northern Territory (Self-Government) Act 1978 (Cth), such that the Legislative Assembly of the Northern Territory does not have power to make a law which alters or repeals a federal law in force in the Territory immediately before 1 July 1978. The result is that s 10 of the RDA requires the disregarding of prohibitions of the second kind of case identified above.

1. As held by the High Court in Work Health Authority v Outback Ballooning,[12] the subordinate status of a Territory law has the result that where it is inconsistent with a Commonwealth law the Commonwealth law will prevail.

2. Justice Southwood set out[13] the matters which it is necessary to identify and establish in order to show an inconsistency between s 5D of the MDA and s 10 of the RDA. This reflects the approach articulated by Hayne J (Crennan J agreeing) in Maloney v The Queen,[14] and which was also taken, generally speaking, by the other members of the Court.[15] The matters are:

   (a)the legislative provisions that are challenged;

   (b)the human right(s) or fundamental freedom(s) the enjoyment of which is said to be unfavourably impaired or limited;

   (c)the group of persons of a particular race whose enjoyment of those human right(s) or fundamental freedom(s) is said to be unfavourably impaired or limited;

   (d)the group of persons of another race whom it is said are able to enjoy the identified human right(s) or fundamental freedom(s) without limitation or in a less limited way;

   (e)how it is said that the group of persons of the particular race enjoy to a more limited extent the identified human right(s) or fundamental freedom(s);

   (f)how the impugned legislative provisions caused the disparity in the enjoyment of the identified human right(s) or fundamental freedom(s).

3. The appellant did not take issue with this approach.

   The impugned provisions

4. The impugned provisions are s 5D of the MDA and r 2A of the Misuse of Drugs Regulations 1990 (NT) (‘MDRs’).

5. Section 5D of the MDA is in the following terms:

   Supply of dangerous drugs in indigenous communities – less than commercial quantity

   (1)     A person commits an offence if:

   (a)the person intentionally supplies[16], or takes part in the supply of, a substance or thing to another person; and

   (b)the substance or thing is a dangerous drug[17] and the person is reckless in relation to that circumstance; and

   (c)less than a commercial quantity[18] of the dangerous drug is supplied; and

   (d)the dangerous drug is a Schedule 2 drug[19]; 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).

6. The term ‘indigenous community’ is defined to mean an area prescribed by regulation (s 3(1)). Regulation 2A of the MDRs prescribes the same areas as are prescribed under s 4 of the Northern Territory National Emergency Response Act 2007 (Cth) (‘NTNERA’) immediately before its repeal. Under the NTNERA, prescribed areas include:

   (a)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) (‘ALRA’); paragraph (a) covers land held by an Aboriginal Land Trust for an estate in fee simple;

   (b)roads, rivers, streams, estuaries and other areas that are expressly excluded under Schedule 1 of the ALRA, or are excluded from grants because of s 12(3) or (3A) of the ALRA (Schedule 1 lists areas of land for which Land Trusts have been established pursuant to s 4 of the ALRA. Section 12(3) and (3A) require deeds of grant of Aboriginal land to exclude any road over which the public had a right of way);

   (c)land granted to an association under s 46(1A) of the Lands Acquisition Act (NT). That provision permits the grant of land as an Aboriginal community living area;

   (d)each area known as a town camp declared by the Commonwealth Minister under s 4(3) to be a prescribed area; and

   (e)each area declared by the Commonwealth Minister under s 4(4) to be a prescribed area.

7. Relevant to the case against the appellant, the Anindilyakwa Land Trust was established by s 4(2A) of the ALRA over the area described in Schedule 6, which includes Groote Eylandt. The Land Trust was granted an estate in fee simple over that area under s 12AAB of the ALRA. It follows that Groote Eylandt is an ‘indigenous community’ within s 5D of the MDA and all residents of Groote Eylandt are members of an ‘indigenous community’.[20]

8. An indication of the prescribed areas the subject of the NTNERA and, hence, the ‘indigenous communities’ the subject of the MDA and the MDRs is contained in Schedule 1 to the NTNERA, which lists 47 areas of Aboriginal land, 16 community living areas, 2 miscellaneous areas and 33 town camps, with 5 in Darwin, 2 in Katherine, 9 in Tennant Creek and 17 in Alice Springs. There are a total of 98 indigenous communities listed.

9. For reasons which appear below, s 5A of the MDA is important in the resolution of this appeal. Section 5A of the MDA creates an offence in essentially the same terms as s 5D, save that it does not contain the element of supply in an indigenous community. It has a maximum penalty of five years imprisonment.

   Identified human rights and fundamental freedoms

10. Section 10(2) of the RDA provides that a reference in s 10(1) to a right includes a reference to a right of a kind referred to in Art 5 of the ICERD. Article 5 records the undertaking of States Parties to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the rights set out in Art 5.

11. The appellant identified two rights: the right to liberty and the right to equal treatment before tribunals and organs administering justice in Art 5(a) of the ICERD.

    The right to liberty

12. The right to liberty is not listed in Art 5. However, on the basis of the use of the word ‘includes’ in s 10(2) of the RDA, the recognition of the right to liberty in Art 3 of the Universal Declaration of Human Rights (‘UDHR’), and the recognition of the right to liberty as the most basic and important of all human rights and freedoms, Southwood J accepted that the right to liberty falls within s 10(1) of the RDA.[21]

13. Southwood J characterised the right to liberty as a qualified, not an absolute, right.[22] His Honour held that the right to liberty has the following elements.[23]

    (a)Laws that provide for the deprivation of liberty must not be arbitrary.

    (b)They must be capable of being known in advance and reasonably predictable.

    (c)A person must not be deprived of their liberty without sufficient cause and due process.

    (d)A person must not be subjected to arbitrary arrest or detention.

    (e)Anyone arrested or detained on a criminal charge must be brought promptly before a Judge or other officer authorised by law to exercise judicial power and must be entitled to trial within a reasonable time or to release subject to guarantees to appear at trial or at any other stage of the proceeding.

    (f)No one must be deprived of their liberty except on such grounds, and in accordance with such procedures, as are established by law.

    (g)A person may only be criminally punished following a finding of guilt at trial, or a plea of guilty.

    (h)A heavier penalty than that which was applicable at the time the offence was committed must not be imposed.

    (i)Any penalty must be proportional to the objective seriousness of the offence.

14. The appellant accepted that the right to liberty is qualified, and did not take issue with any of the elements identified (or not) by Southwood J. However, the appellant argued that his Honour erred in recognising the qualifications when considering whether the right to liberty is ‘engaged’ (by which was meant ‘relevantly affected for the purposes of s 10 of the RDA’). It was argued that qualifications could be taken into account when considering the issues of causation and whether the impugned law is a special measure within s 8 of the RDA, but to take account of them at the point of ‘engagement’ would mean that, even a law which discriminated in its terms by providing for different penalties for Aboriginal and non-Aboriginal people would be found not to fall within s 10 because it would not impact upon the elements of the qualified right to liberty. That submission ignores one of the principle elements of the right to liberty: that laws providing for deprivation of liberty must not be arbitrary. Such a law would clearly be arbitrary and contrary to s 10. The appellant argued that consideration of whether the law was arbitrary would face the difficulty identified by Hayne J in Maloney at [75], where his Honour observed that speaking of the right to own property as a freedom: the right to own or possess property without any (arbitrary, disproportionate or unwarranted) interference would inevitably shift debate to when and in what circumstances an interference with ownership of property is unacceptable, and there was not textual or other footing for an analysis of that kind to be undertaken in applying s 10 of the RDA.

15. It is worth noting that Hayne J also cautioned against expressing the human right or fundamental freedom at too great a level of abstraction. His Honour held that referring to the human right or fundamental freedom at its most abstract, particularly so as to suggest that the right is absolute, will often, perhaps usually, be unhelpful because it does not focus attention sufficiently upon how the impugned legislation intersects with the right.[24] His Honour added:

    …[T]his form of analysis tends to obscure the operation of s 10 in cases, like the present, where it is said that persons of one race enjoy a right ‘to a more limited extent’ than persons of another race. Consideration of that issue requires close attention to the legal and practical operation of the legislation to which it is alleged that s 10 applies in order to identify with some specificity what right is enjoyed by persons of one race and how that right is not enjoyed, or is enjoyed to a more limited extent, by persons of another.

16. For that reason, the following matters are important.

17. A person’s liberty is affected when their liberty is deprived and they would otherwise be entitled to it. To affect the right to liberty, a law must authorise taking a person into custody or extend a person’s time in custody.

18. A number of laws prescribe how a person’s liberty may be deprived by authorising taking a person into custody or extending a person’s time in custody. A person may be arrested without warrant where a member of the Police Force believes on reasonable grounds that the person has committed, is committing or is about to commit an offence.[25] A person taken into custody may be held for a reasonable period to be questioned and for investigations to be carried out to obtain evidence in relation to an offence a member of the Police Force believes on reasonable grounds involves the person.[26] A person may be charged on information if suspected to have committed an indictable offence within the Northern Territory.[27] Subject to the power to continue a person’s custody, the person must be brought before a court of competent jurisdiction as soon as practicable after being taken into custody unless sooner granted bail under the Bail Act 1982 (NT) or released.[28] Bail may be granted by a member of the Police Force or by the Local Court or the Supreme Court.[29]

19. There is a presumption against bail for offences against s 5D of the MDA, which applies regardless of who exercises the power to grant bail.[30] The Local Court may remand a person in custody pending the hearing of their charge in that Court,[31] or pending hearing of a preliminary examination prior to committal to the Supreme Court.[32] Where a person is found guilty of the charge, the Local Court has the power to sentence a person to a term of imprisonment.[33]

20. Essentially, it is the appellant’s case that, as a result of s 5D of the MDA, Aboriginal people enjoy the right to liberty to a more limited extent than non-indigenous people because it extends the time in custody of Aboriginal people beyond the time in custody of non-Aboriginal people charged with offences against s 5A.

21. As to the appellant’s argument that Southwood J erred because he expressed the right to liberty as a qualified right or a right made up of elements, his Honour expressly held that the fact that the right to liberty is a qualified right, or a composite of certain specific rights, does not mean that an interference with personal liberty, which is otherwise a valid interference, will be valid if it directly limits the right to personal liberty of the persons of one race to a greater extent than the rest of the population.[34] This recognises that a law which imposed different rights to liberty according to race would be invalid. Consequently, his Honour did not err in his approach to the right to liberty as argued by the appellant.

    The right to equal treatment before tribunals

22. After a review of Art 10 of the UDHR, Art 6 of the European Convention on Human Rights (‘ECHR’) and Art 14 of the International Covenant on Civil and Political Rights (‘ICCPR’), Southwood J held[35] that the right to equal treatment before tribunals in Art 5 of the ICERD requires equal access to and application of:

    (a) a public hearing within a reasonable time,[36] subject to certain qualifications directed to the preservation of countervailing rights;

    (b) the presumption of innocence;[37]

    (c) the adoption of fair procedures,[38] including the provision of particulars,[39] the presentation of a defence,[40] the right to call evidence,[41] the right to examine and cross-examine witnesses,[42] the use of an interpreter if necessary,[43] and the right of appeal;[44] and

    (d) the determination of the matter by an independent and impartial tribunal.[45]

23. Southwood J held that it is with regard to the requirements of the right to equal treatment before tribunals set out in paragraph [42] above, rather than the content of s 5D of the MDA, that the assertion of limitation on the right to equal treatment before tribunals must be considered.[46]

24. In Maloney, the appellant argued that she enjoyed the right to equal treatment before tribunals to a more limited extent than non-Aboriginal people because, in being charged with and convicted of an offence against a law which, in its practical operation and effect, was directed to persons of a particular race, she suffered unequal treatment. Each member of the High Court rejected this submission. French CJ held that that complaint was not one about equal treatment before the courts because the impugned legislation did not require any court to apply the law to the appellant in a manner different from the way in which the law was applied to non-Aboriginal persons.[47] Hayne J (with Crennan J agreeing) held that it was unnecessary to decide the issue, but observed that it may be doubted that by reason of the impugned provisions Aboriginal persons do not enjoy the same rights to equal treatment before the courts.[48] Kiefel J held that Art 5(a) refers to a right of a person to be treated by a tribunal as that body would treat any other person, concerns a guarantee of procedural equality and gives effect to the principle of equality in legal proceedings, which may be taken to extend to equality in the application of the law, so it was not apposite to what was in question in the case.[49] Bell J held that the right in Art 5(a) is akin to the right in Art 14 of the ICCPR, is a right to equality of access to courts and in the application of the law by them and does not extend to the substantive provisions of the law.[50] Gageler J held that it was not necessary to consider whether there was a diminution in relative enjoyment of the human right to equal protection of the law,[51] but observed that the right in Art 5(a) of the ICERD is like the right in Art 14 of the ICCPR and is focussed on the administration and enforcement of laws by courts and tribunals rather than on the content of laws more generally.[52] His Honour held that to inquire for the purposes of s 10 of the RDA into whether there is by reason of a law unequal enjoyment of a human right to equality before the law or equal protection of the law is to become ‘mired in unproductive circularity’.

25. The parties essentially differed on whether the presumption against bail in s 7A of the Bail Act (see paragraph [94] ff below) and the mandatory minimum sentence of 28 days imprisonment in s 37(2)(a) and (3) of the MDA (see paragraph [84] ff below) are ‘procedural’ rules which impact the right to equal treatment before tribunals or are ‘substantive’ aspects of the law, which do not. This is dealt with in paragraph [102] ff below.

    The persons of the particular race who enjoy the rights to a more limited extent and the other group of persons who enjoy the rights to a less limited extent

26. The appellant identified the two groups of persons by the following process. Starting with Aboriginal people and non-indigenous people, but recognising that s 5D of the MDA does not have general application and applies only to those charged with an offence involving the supply of less than a commercial quantity of a Schedule 2 drug, the relevant set of persons within which the necessary comparison is to be made is the set of persons charged with supply of less than a commercial quantity of a Schedule 2 drug. Then, because the preponderance of people charged under s 5D are Aboriginal, the relevant subsets of persons for the purposes of the comparison of enjoyment of rights is the persons charged under s 5D (being predominantly Aboriginal persons) and the remainder of the relevant set, which is all of the persons charged under s 5A.

27. This approach was said to follow the approach of the High Court in Maloney, where the relevant set of persons was the residents of Queensland, of whom the residents of Palm Island were a subset and the class to whom the impugned legislation operated. The enjoyment of human rights and fundamental freedoms of the residents of Palm Island, who were preponderantly indigenous, was compared to the enjoyment of those rights of the remainder of the residents of Queensland, who were preponderantly non-indigenous.[53]

28. The difficulty with the appellant’s argument is that almost half (49.4 percent) of the persons charged with an offence against s 5A were Aboriginal. The appellant’s division of persons charged with the offence of supplying less than a commercial quantity of a Schedule 2 drug into those charged under s 5D and those charged under s 5A does not enable a real comparison between the rights enjoyed by Aboriginal people on the one hand and the rights enjoyed by non-Aboriginal people on the other. In order for the comparison of enjoyment of rights to be meaningful, the class of persons against whom the enjoyment of rights of Aboriginal people (or, at least, predominantly Aboriginal people) is to be compared must be, at least, a class consisting of predominantly non-indigenous people. That is simply not the case here.

29. Further, the appellant’s identification of the two groups of people in that way draws a distinction between people who commit two different classes of offending, one of which is more serious than the other. If one accepts that the effect of the prosecutorial discretion is that people who supply Schedule 2 drugs in indigenous communities will be charged under s 5D and not s 5A, then the people in the s 5A group have not committed an equivalent offence, but an offence without the aggravating circumstance of supplying Schedule 2 drugs to a vulnerable community (see paragraphs [77] to [78] below). Contrary to the appellant’s submissions, the comparison posited by the appellant is not one of comparing ‘like with like’. The conduct the subject of the offending captured by s 5D is different to the conduct the subject of the offending captured by s 5A. To be wholly alike, the classes would have to be persons charged with offences against s 5D and persons charged with offences against s 5A who supplied drugs in an indigenous community. That is not the way the appellant’s case was put.

1. For the sake of the arguments, the remainder of the appellant’s case is approached on the basis of the comparison he sought to make, that is, on the basis we have just rejected that a comparison may validly be made between the predominantly Aboriginal people charged with an offence against s 5D and the (assumed but not substantiated) predominantly non-Indigenous people charged with an offence against s 5A.

   How the Aboriginal people charged with an offence against s 5D enjoy the rights to a more limited extent than people charged with an offence against s 5A and causation

2. Under this heading, we deal with both the way in which it is said that the two identified groups enjoy the rights to liberty and to equal treatment to different extents and the issue of causation, that is, whether the differences in the relative enjoyment (if any) are ‘by reason of’ the impugned provisions.

3. In Maloney, Gageler J observed that the words ‘by reason of’ in s 10(1) of the RDA require a direct relationship between the practical operation of the impugned law and the differential enjoyment of human rights, and that differential enjoyment of human rights that is ‘the direct result’ of the practical operation of a law fulfils a condition for the operation of s 10.[54]

   Operation – charges for offences against s 5D and s 5A, MDA

4. The first pillar in the appellant’s argument rested on the fact that charges for offences against s 5D in 2017 and 2018 were brought overwhelmingly against Aboriginal people. In 2017 and 2018, 211 charges for offences against ss 5A and 5D of the MDA were brought in the Local Court, with 94.9 percent of the charges for offences against s 5D brought against Aboriginal people, whilst only 25.5 percent of the Northern Territory population was Aboriginal.

5. In Maloney, Queensland had argued that, to be inconsistent with s 10(1) of the RDA, the criteria of operation in the impugned legislation must be a racial criterion, and the impugned legislation in that case operated on a geographical area, not race.[55] The Commonwealth argued that s 10(1) of the RDA did not capture laws the purpose of which is a legitimate non-discriminatory purpose.[56]

6. French CJ held that the impugned legislation was directed at an indigenous community and effected an operational discrimination notwithstanding its race-neutral language.[57] Hayne J (Crennan J agreeing) held that s 10 is not confined to laws the purpose of which can be described as discriminatory or to laws which expressly use race as a criterion of operation.[58] His Honour held that, even though the impugned legislation takes geographical place as the criterion for its operation, the effect of it is on the rights of those who live on Palm Island, who are overwhelmingly Aboriginal people.[59] Kiefel J held that it is incorrect to confine the operation of s 10 to laws the purpose of which can be identified as a discriminatory purpose.[60] Bell J held that the purpose and practical operation and effect of the impugned legislation were to target the Aboriginal community of Palm Island and limit the right of its members to possess alcohol.[61] Her Honour referred to the Commonwealth’s example of a planning law requiring buildings in a coastal locality to meet specifications suitable for withstanding extreme weather events, where the overwhelming majority of building owners affected by the law are persons of a particular race.[62] Her Honour observed that it may be that the hypothesised planning law would not engage s 10(1) because, construed in its context, any limitation on the enjoyment of the right of the building owners would have no connection to race.[63] Her Honour held the question was not raised in the appeal because the impugned legislation unarguably targeted Aboriginal persons.[64] In addition to the observations about the causal nexus and the direct relationship referred to in paragraph [52] above, Gageler J held that the impugned legislation was geographically targeted to affect only a single community government area, the population of which was overwhelmingly Aboriginal, and its practical impact on that population was neither accidental nor incidental.[65] His Honour held that the impugned legislation was tailored specifically to address conditions and behaviours perceived to exist within the indigenous community on Palm Island and geography was used as a proxy for race.

7. The appellant argued that, in a similar way, s 5D of the MDA operates in respect of the supply of Schedule 2 drugs in ‘indigenous communities’ (which are overwhelmingly populated by Aboriginal people) and geography, read with the extended definition of ‘supply’ in the MDA, is used as a proxy for race. Hence, it was argued, the statistic that 94.9 percent of the people charged with an offence against s 5D were Aboriginal is neither accidental nor incidental, but the direct effect of the operation of s 5D.

8. A clear point of distinction between s 5D of the MDA and the impugned legislation in Maloney is that s 5D does not make unlawful conduct which is otherwise lawful (whether in an indigenous community or elsewhere), whereas the impugned legislation in Maloney prohibited the otherwise lawful possession of alcohol on Palm Island.[66] In Maloney, the impact upon the human right or fundamental freedom to own property was directly caused by the impugned legislation. Here, there is no impact upon a human right or fundamental freedom of any person (Aboriginal or non-Aboriginal) unless and until a person engages in the criminal act of supplying a Schedule 2 drug, or (in relation to the presumption against bail) is reasonably suspected of doing so. The most direct cause of any impact upon human rights or fundamental freedoms effected by s 5D is the person’s criminal conduct or a reasonable suspicion that they have engaged in otherwise criminal conduct: matters which are not related to race.[67]

9. In Munkara v Benscevich,[68] this Court dismissed an appeal against a decision of the Supreme Court that various provisions of the Alcohol Protection Orders Act (NT) were not inconsistent with s 10 of the RDA. Those provisions prohibited the possession and consumption of alcohol, and entry upon licensed premises, by persons who were subject to an alcohol protection order. An alcohol protection order could be issued by a police officer to a person who committed a qualifying offence whilst affected by alcohol. It was argued that the people to whom alcohol protection orders had been issued were overwhelmingly Aboriginal people (86 percent), which was explained by the ‘facts’ that Aboriginal people were more likely to be charged in respect of a qualifying offence, and more likely to be affected by alcohol at the time of that offending, than non-Aboriginal people. Blokland J (Kelly and Barr JJ 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 while affected by alcohol.[69]

10. The appellant argued that the only way Munkara could be seen to be consistent with the decision of the High Court in Maloney was for it to be understood as an instance where the disproportionate effect of the impugned provisions as between Aboriginal and non-Aboriginal people evidenced by the proportion of Aboriginal people subject to alcohol protection orders was accidental or incidental.

11. The Court in Munkara itself distinguished Maloney on the basis set out in paragraph [57] above.[70] Maloney did not address the issue of whether a law’s disproportionate operation in respect of Aboriginal people can be said to be ‘by reason of’ the operation and effect of the law within s 10 of the RDA when the law only operates in respect of people who commit, or are reasonably suspected of committing, otherwise criminal conduct. That issue was not raised by the appeal. That is a firm basis upon which to distinguish Maloney from both the case in Munkara and the present case. It follows that we do not accept that the reasoning in Munkara was inconsistent with the reasoning in Maloney and wrongly decided as a consequence.

12. The appellant argued that the express reference to indigenous communities in s 5D is a criterion based on race, so it cannot be said that the disproportionate operation of s 5D is accidental or incidental. The appellant also argued that the presence of that criterion based on race comprised a basis upon which to distinguish the present case from Munkara, where there was no such criterion.

13. The appellant’s first argument assumes that, if the impugned legislation contains a criterion based on race, it cannot be accepted that its disproportionate operation is accidental or incidental and must be concluded that the disproportionate operation is ‘by reason of’ the impugned legislation. Whether that should be accepted as a matter of principle may be doubted, given that, as Gageler J observed in Maloney,[71] causation in fact is a question of degree. Hence, his Honour’s view that the differential enjoyment of human rights that is the direct result of the practical operation of a law fulfils a condition for the existence of discrimination within the meaning of the ICERD.

14. As to whether the reference in s 5D to ‘indigenous communities’ is a criterion based on race, an obvious link between s 5D and the higher rate of Aboriginal people charged under it is the element (absent from s 5A) that the supply is in an indigenous community, given that 87% of the population of indigenous communities is Aboriginal. It is a reasonable inference that many persons who commit, or are reasonably suspected of committing, an offence against s 5D either live in indigenous communities or have associations or connections with people who live in those communities which facilitate or permit the supply of drugs into those communities. The number of Aboriginal persons charged with an offence against s 5D who lived in indigenous communities is unknown. The degree of association or connection between Aboriginal persons charged with an offence against s 5D and Aboriginal persons who lived in indigenous communities is also unknown. The present case itself is an example of some degree of separation between the appellant and persons who lived on Groote Eylandt. The appellant lived in Darwin. His granddaughter, DD, who persuaded him to take the cannabis to Groote Eylandt, lived in Darwin. The plan was for him to give the cannabis to another granddaughter, RD, who would be waiting at the airport on Groote Eylandt (her place of residence is unknown), and who would take the cannabis to Malkala community where other members of the appellant’s extended family live. As his Honour observed, the appellant’s offending was a preparatory act almost wholly committed outside an indigenous community and was almost complete when he disembarked from the plane with the cannabis.[72]

15. Southwood J recognised this link, but his Honour also explained the preponderance of Aboriginal persons being charged and convicted of offences against s 5D in 2017 and 2018 by the pyramid-shaped hierarchy of those engaged in the unlawful supply of dangerous drugs and the greater visibility of lower level drug offending.[73] As to the latter, his Honour observed that it is the experience of the courts that the majority of Aboriginal persons tend to engage in more visible lower level offending and are more likely to be observed and caught, which is borne out by the agreed facts, which show that only about five percent of Aboriginal persons were committed to the Supreme Court for an offence against s 5D, whereas more than 50 percent of non-indigenous offenders were committed to the Supreme Court for an offence against s 5D, indicating that the offences committed by the non-indigenous offenders were of a more serious, or higher level, nature.[74]

16. The lack of evidence as to the degree of proximity between Aboriginal people charged with an offence against s 5D and Aboriginal people living in indigenous communities, and the other factors mentioned in paragraph [64] above, make it difficult to draw conclusions about the strength of the causal nexus between the number of Aboriginal people charged with an offence against s 5D and the reference in s 5D to indigenous communities.

17. In any event, we do not accept that the practical operation and effect of s 5D turns on a criterion based on race. As Southwood J held, mere connection to an indigenous community is insufficient to give rise to any liability under s 5D because the necessary condition is the supply, or reasonable suspicion of supply, of dangerous drugs.[75] In this respect, the observations of this Court in Munkara apply equally in this case.[76] Aboriginal people make up approximately 30 percent of the Northern Territory population, yet make up more than 80 percent of the prison population, but it does not follow that, by reason of the Criminal Code, Aboriginal people enjoy human rights or fundamental freedoms to a more limited extent than non-Aboriginal people. The reason is because the Criminal Code merely prescribes consequences for a person’s actions. The same may be said about s 5D of the MDA, including because the consequences flow from committing the offence of supplying drugs or (in the case of the presumption against bail) being reasonably suspected of having done so.[77]

18. It follows that we do not accept that Munkara can be distinguished on the basis of the reference in s 5D to ‘indigenous communities’. Nor do we accept that the disproportionate number of Aboriginal people charged with an offence against s 5D, when compared with the number of Aboriginal people in the Northern Territory, is ‘by reason of’ s 5D of the MDA.

    Differences in effect as between s 5D and s 5A, MDA

19. Even accepting the link referred to in paragraph [63] above, the inquiry does not end there, because s 5D does not criminalise conduct that would otherwise be lawful. Any person committing an offence against s 5D would commit an offence against s 5A. The mere fact that s 5D operates in respect of the supply of drugs in indigenous communities such that overwhelmingly more Aboriginal people are charged under it than under s 5A suggests that s 5D operates in respect of conduct more likely to be engaged in by Aboriginal people.

20. That is not the end of the matter. As the second pillar of the appellant’s argument acknowledged, it remains necessary to consider whether there are differences in the practical effect of ss 5D and 5A and, if so, whether those differences have the result that the right to liberty and/or the right to equal treatment of Aboriginal people is enjoyed to a more limited extent than non-Aboriginal people.

21. When considering the differences asserted by the appellant, we will consider the impact of each of the asserted differences on the right to liberty. We will then consider the impact of the asserted differences on the right to equal treatment.

    Differences in effect as between s 5D and s 5A, MDA – Right to liberty

22. The appellant argued that more persons charged with offences under s 5D (who are overwhelmingly Aboriginal) are imprisoned pending trial and are sentenced to terms of imprisonment or to imprisonment for longer durations than those charged with equivalent conduct under s 5A. The argument was founded upon the propositions that, by comparison with persons charged with an offence against s 5A of the MDA, persons charged with an offence against s 5D of the MDA face: (i) a greater maximum penalty; (ii) a presumption against bail; and (iii) a mandatory minimum sentence of imprisonment for 28 days.

    Greater maximum penalty

23. The maximum penalties for offences against s 5D is imprisonment for nine years and for offences against s 5A is imprisonment for five years.

24. Southwood J accepted that sentencing courts must have regard to the maximum penalty prescribed by s 5D pursuant to s 5(2)(a) of the Sentencing Act 1995 (NT).[78] His Honour also set out a number of principles which govern the weight a sentencing court must give the maximum penalty in any particular case, as follows.[79]

    (a)Other mandatory sentencing considerations in s 5(2) of the Sentencing Act are: (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 is both a reflection of the level of community abhorrence and a directive on how to weigh the gravity of the offence, sentencing courts must consider the circumstances of the particular case.

    (c)The seriousness of the acts or transactions that fall under the relevant provision range from the very minor to the most serious. In cases involving minor offending, sentencing courts place less weight upon the maximum penalty. The range of conduct potentially caught by s 5D is very wide. It ranges from a family member giving a joint of cannabis to another family member in an indigenous community to members of an organised criminal syndicate engaging in a series of discrete supply transactions of a pound of cannabis (450 grams) at a time in an indigenous community for commercial gain.

    (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 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 rare for sentences to increase in the same proportion as the increase in the maximum penalty.

    (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 which provides guidance as to the applicable range of sentences.

    (g)The maximum penalty is not a fixed benchmark or starting point. It provides a guide (a yardstick) to the seriousness with which the community should view the gravity of the particular offence.[80]

    (h)The maximum penalty reflects the outer limit of criminal liability and is reserved for the worst category of case.[81]

    (i)The maximum penalty will rarely be a significant driver of the ultimate sentencing disposition.[82]

25. The appellant did not take issue with Southwood J’s expression of the above principles.

26. The appellant argued that the last principle set out above acknowledged that the maximum penalty is a driver of the sentence, and thus, other things being equal, the law anticipates that a person sentenced for an offence against s 5D will receive a more severe penalty than a person sentenced for an offence against s 5A.

27. That conclusion does not follow from the acknowledgement. It ignores the other principles set out above which govern the weight the maximum penalty is given in a particular case. The maximum penalty may have very little weight in a particular case. If it is rarely a significant driver of the sentencing disposition it must, in the vast bulk of cases, result in insignificant differences between sentences for offences against s 5D and sentences for offences against s 5A.

28. In any event, it was the sentencing practice of Northern Territory courts before the introduction of the precursor to s 5D[83] to consider the supply of cannabis to people in Aboriginal communities to be an aggravating factor when sentencing offenders for offences involving the supply of dangerous drugs. In Daniels v The Queen,[84] the Court of Criminal Appeal held as follows:

    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 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. …

    …

    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.

    …

    … 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.

1. The Court emphasised that the use of cannabis in remote Aboriginal communities is part of a widespread problem arising out of substance abuse and contributes significantly to the severe dysfunction found in many communities and within families in those communities. Identified community harms included mental health problems, 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 and self-harm if refused, and a negative impact on participation by users in work, school, sports, culture and other aspects of community life. In addition, the Court noted that the purchase of cannabis at greatly inflated prices means there is a reduced amount of money to purchase food and other necessities, contributing to child neglect, and a loss to the community of the benefit of money that would otherwise be spent within it.

2. All other things being equal, a person sentenced for an offence against s 5A who supplied less than a commercial quantity of cannabis in an indigenous community, would, in the vast bulk of cases where the maximum penalty is not a significant driver, most likely receive a very similar penalty to a person sentenced for an offence against s 5D.

3. The appellant asked rhetorically: If that were so, what would be the point of increasing the maximum penalty? An answer is found in the extracts from the Second Reading Speech to the 2008 Bill that amended the MDA to increase the maximum penalty for supply to a person in an indigenous community set out by Southwood J,[85] as follows:

   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.

4. Furthermore, in 2017 and 2018, of the 211 charges of offending against s 5D, only 8 were committed to the Supreme Court, while 93 were sentenced by the Local Court. The Local Court’s sentencing jurisdiction for indictable offences heard summarily is limited to a maximum of five years imprisonment.[86] This confirms that the vast bulk of cases were those where the maximum penalty was not a significant driver.

5. Given the matters referred to in paragraphs [76] to [81] above, we do not accept that, by virtue of the different maximum penalties, to any significant degree, an Aboriginal person sentenced for an offence against s 5D of the MDA would receive a greater sentence to imprisonment than a non-indigenous person sentenced for an offence against s 5A.

6. Consequently, we do not accept that, by reason of the greater maximum penalty applicable to s 5D, Aboriginal persons charged with an offence against s 5D enjoy the right to liberty to a more limited extent than non-Aboriginal persons charged with an offence against s 5A.

   Minimum mandatory sentence to imprisonment

7. Section 37(2)(a) of the MDA provides that, in sentencing a person for an offence against the MDA, for which the maximum penalty is seven years or more, the Court must 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, it is of the opinion that such a penalty should not be imposed. The period of actual imprisonment must not be less than 28 days (s 37(3)). Because of the nine year maximum penalty for offences against s 5D, s 37(2)(a) operates in respect of those offences.

8. The principles applicable to the application of s 37(2) and (3) were summarised by Southwood J as follows:[87]

   (a)The effect of the provisions is to do no more than 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.

   (b)The approach required is to look at a sentence of actual imprisonment unless the circumstances of the offence or 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, a 28 day minimum sentence of actual imprisonment must follow.

   (c)A sentencing court may of its own motion find that particular circumstances exist upon a consideration of the facts.

   (d)‘Particular’ does not equate with ‘exceptional’. Rather, the circumstances must be sufficiently noteworthy or out of the ordinary, relative to the conduct constituting the offence, or of the offender, to warrant a non-custodial sentence, but they need not be so noteworthy or out of the ordinary as to convey that only in rare cases will the circumstances fall within that class.

   (e)Sentencing courts may consider the cumulative effect of all relevant circumstances. It is not necessary to consider each discrete circumstance in isolation.

9. The appellant did not take issue with Southwood J’s expression of the above principles.

10. The appellant’s argued distinction between s 5A and s 5D ignores the operation of s 37(2)(b) of the MDA. That provision applies the same mandatory minimum term of 28 days imprisonment, subject to exceptional circumstances, to offences for which the maximum penalty is less than seven years imprisonment (i.e., to s 5A) if the offence is accompanied by an aggravating circumstance. ‘Aggravating circumstance’ is defined to include an offence against Part II, Div 1, Subdiv 1 (i.e. including s 5A) committed in an indigenous community (s 37(1)(d)).

11. Consequently, we do not accept that, by virtue of the different maximum penalties and the minimum mandatory sentence regime, an Aboriginal person sentenced for an offence against s 5D of the MDA would, to any significant degree, receive a sentence of imprisonment while a non-Aboriginal person sentenced for the same offence against s 5A would not.

12. Consequently, we do not accept that, by reason of the greater maximum penalty applicable to s 5D and the minimum mandatory sentence regime, Aboriginal persons charged with an offence against s 5D enjoy the right to liberty to a more limited extent than non-Aboriginal persons charged with an offence against s 5A.

    Different imprisonment rates in 2017 and 2018

13. In 2017 and 2018, a total of 163 offenders were sentenced for offences against ss 5A and 5D, with 70 offenders sentenced for offences against s 5A and 93 offenders sentenced for offences against 5D. Sentences of imprisonment were imposed for 68.5% of offenders offending against s 5A and for 78.5% of offenders offending against s 5D. This is a difference of only 10% in a relatively small population size. To illustrate the insignificance of the difference:

    (a)If seven more of the offenders offending against s 5A had received sentences of imprisonment, there would be no difference.

    (b)If nine fewer of the offenders offending against s 5D had not received sentences of imprisonment, there would be virtually no difference (0.3%).

    (c)If four more of the offenders offending against s 5A had received sentences of imprisonment and four fewer of the offenders offending against s 5D had received sentences of imprisonment, there would be virtually no difference (0.1%).

14. The insignificant difference of 10% in the imprisonment rates is readily explainable by disparities in the seriousness of the offending and/or the subjective circumstances of the offender.

15. Consequently, we do not accept that the higher rate of imprisonment for offenders committing offences against s 5D demonstrates or supports the appellant’s argument that, by virtue of the greater maximum penalty and the mandatory minimum sentence regime, more persons charged with offences under s 5D are sentenced to terms of imprisonment or for longer durations than those charged under s 5A.

16. Consequently, we do not accept that, by reason of the greater maximum penalty applicable to s 5D and the minimum mandatory sentence regime, Aboriginal persons charged with an offence against s 5D enjoy the right to liberty to a more limited extent than non-Aboriginal persons charged with an offence against s 5A.

    Presumption against bail

17. Section 7A of the Bail Act provides that bail must not be granted to a person accused of certain offences unless the person satisfies an authorised member or a court that bail should be granted (s 7A(2)). The relevant offences include offences against the MDA punishable by a term of imprisonment for seven years or more (s 7A(1)(c)). Offences against s 5D of the MDA therefore fall within s 7A of the Bail Act: offences against s 5A do not.

18. Section 8 of the Bail Act provides (relevantly) that a person accused of an offence which does not fall within s 7A is entitled to be granted bail unless an authorised member or a court is satisfied refusing bail is justified (s 8(2)(a)). Neither ss 7A or 8 apply to youths (ss 7A(2B), 8(5)). Different presumptions operate in relation to youths (ss 7B, 8A).

19. In determining whether to grant bail, an authorised member or a court must take into consideration only the matters listed in s 24 (s 24(1)). Those matters are: (a) the probability of whether or not the person will appear in court in respect of the offence for which bail is being considered, including: (i) the strength of evidence against the person; and (ii) the severity of the proposed 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 the conditions of bail; and (e) the risk to the safety or welfare of the victim and anyone else, if any, that would result from granting bail. Additional considerations are to be taken into account in relation to youths (s 24A). The authorised member or the court may take into account any evidence or information which they consider credible or trustworthy in the circumstances, including hearsay evidence (s 24(2)). The burden created by s 7A(2) may be satisfied by the imposition of appropriate bail conditions (s 28). The conditions are set out in ss 27 and 27A.

20. The effect of s 7A is to cast an onus on the applicant to satisfy the authorised member or court that bail should not be refused.[88] The applicant bears the legal (or persuasive) and evidential onus of showing that bail should be granted.[89]

21. As Southwood J recognised, there is no evidence before this Court as to whether the presumption against bail has had an adverse impact on the liberty of Aboriginal people charged with an offence against s 5D. The appellant submitted that the presumption against bail has a significant procedural effect – it puts an accused ‘on the back foot’ in securing their liberty prior to trial. The appellant submitted that it can be, and should have been, inferred from that that the presumption against bail has had an adverse impact on the liberty of Aboriginal people charged with an offence against s 5D, because the law assumes that a provision is effective.

22. It is one thing to assume that s 7A is effective in placing an onus on the applicant to satisfy the authorised member or the court that bail should not be refused. It is another to assume (and draw an inference to find the fact) that, by virtue of that onus, the liberty of Aboriginal people charged with an offence against s 5D is being adversely impacted because they are being refused bail in significantly greater numbers than non-indigenous people charged with an offence against s 5A. Given the finding of Southwood J (see paragraph [8](g) above) that, of the 38 offences committed against ss 5A and 5D in 2017 and 2018, 22 more serious offences were committed against s 5A than against s 5D, that assumption (and inference) should not, in the absence of any evidence about it, be made.

23. Consequently, notwithstanding the different onuses when seeking bail, we do not accept that, by virtue of the different maximum penalties and the bail regime, the liberty of an Aboriginal person charged with an offence against s 5D is, to any significantly greater extent, adversely impacted than the liberty of an Aboriginal person charged with an offence against s 5A.

24. Consequently, we do not accept that, by reason of the greater maximum penalty applicable to s 5D and the presumption against bail, Aboriginal persons charged with an offence against s 5D enjoy the right to liberty to a more limited extent than non-Aboriginal persons charged with an offence against s 5A.

    The right to equal treatment

25. The appellant argued that the presumption against bail in s 7A of the Bail Act and the mandatory minimum sentence of 28 days imprisonment in s 37(2)(a) and (3) of the MDA are different procedural rules to those applicable to offences against s 5A, so their effect is that Aboriginal people charged with offences against s 5D enjoy the right to equal treatment to a more limited extent than non-Aboriginal people charged with an offence against s 5A. The respondent argued that those provisions are substantive, not procedural.

26. As regards the mandatory minimum sentence, as set out in paragraph [87] above, by s 37(2)(b) of the MDA, a person charged with an offence against s 5A who supplied the drugs in an indigenous community will face the same mandatory minimum sentence. Hence, there is no relevant difference between persons charged under s 5D and persons who commit the same offence charged under s 5A on that basis.

27. As set out in paragraph [97] above, the presumption against bail means that the applicant for bail bears the legal (or persuasive) and evidential onus of showing that bail should be granted. The rules relating to the burden of proof are largely rules of substantive law, especially those allocating the burden of proof.[90] Sections 7A and 8 of the Bail Act are laws which allocate the burden of proof. Like the intimate connection between the burden of proof and the criminal law,[91] there is an intimate connection between the presumptions against or in favour of bail in ss 7A and 8 of the Bail Act and the existence, extent or enforceability of the right[92] of an accused person to liberty (‘bail’ being the authorisation to be at liberty instead of in custody[93]). The presumption against bail in s 7A is not procedural, it is a matter of substantive law.

28. The same conclusion applies to the mandatory minimum sentence provisions in s 37(2) and (3) of the MDA. The penalty prescribed for an offence is self-evidently a matter of substantive law, not procedure. Contrary to the appellant’s submission, that s 37(2) and (3) reverse the normal sentencing approach that a court must first consider and reject non-custodial dispositions before imposing a custodial sentence demonstrates no more than an impact upon the principles which inform the operation of the substantive law. Further, that s 37(2) and (3) place an onus on the accused to establish that exceptional circumstances exist demonstrates, for the reasons set out in paragraph [104] above, that they involve matters of substantive law, not procedure.

29. These conclusions are confirmed by reference to the elements of the right to equal treatment set out in paragraph [42] above. Neither s 7A of the Bail Act, nor s 37(2) and (3) of the MDA, impact upon any of those elements.

30. It is of assistance to consider the provision found to fall within Art 5(a) of the ICERD in The Queen v Grose.[94] Section 9C of the Criminal Law (Sentencing) Act 1988 (SA) provided that, before sentencing an Aboriginal defendant, the court may, with the defendant’s consent, and with the assistance of an Aboriginal Justice Officer: (a) convene a sentencing conference; and (b) take into consideration views expressed at the conference. The provision prescribed who must, and who may, appear at a sentencing conference, including an Aboriginal elder, and a person qualified to provide cultural advice relevant to sentencing the defendant. It provided that an Aboriginal Justice Officer was a person employed to assist the court in sentencing Aboriginal persons by providing advice on Aboriginal society and culture. The Full Court of the Supreme Court of South Australia held that s 9C conferred a right to have a sentencing court adopt a different process in the conduct of the inquiry necessary to determining sentence, including by modifying the persons from whom evidence or material may be received and at whose instigation that may occur. It held that s 9C fell within the scope of Art 5(a) as it is a procedural provision relating to treatment by a criminal court. Section 9C was directed to governing or regulating the mode or conduct of court proceedings, so was procedural, not substantive.[95] The decision in Grose confirms the conclusions above that s 7A of the Bail Act and s 37(2) and (3) of the MDA are substantive, not procedural.

31. For the above reasons, we do not accept that the effect of s 5D of the MDA is that the right to equal treatment of Aboriginal people charged with an offence against s 5D is enjoyed to a more limited extent than non-Aboriginal people charged with an offence against s 5A.

    Conclusions – Inconsistency with s 10 of the RDA

32. In summary, we have drawn the following conclusions.

33. The appellant’s identification of the relevant groups of people as Aboriginal people charged with an offence against s 5D and non-indigenous people charged with an offence against s 5A does not enable a real comparison between the rights enjoyed by predominantly Aboriginal people and the rights enjoyed by predominantly non-indigenous people.

34. The disproportionate number of Aboriginal people charged with an offence against s 5D is not ‘by reason of’ the impugned provisions. Rather, the most direct cause of any impact upon human rights or fundamental freedoms (if any) is the person’s criminal conduct or a reasonable suspicion that they have engaged in criminal conduct, which are not matters related to race.

35. All other things being equal, a person sentenced for an offence against s 5A, who supplied the drugs in an indigenous community, would most likely receive a very similar penalty to a person sentenced for an offence against s 5D.

36. Aboriginal persons charged with an offence against s 5D do not, to any significant degree, enjoy the right to liberty to a more limited extent than non-Aboriginal persons charged with an offence against s 5A, by virtue of the different maximum penalties, the mandatory minimum sentence regime or the presumption against bail because it is not established that: (i) the former would receive a greater sentence to imprisonment than the latter; (ii) the former would receive a sentence to imprisonment while the latter would not; and (iii) the liberty of the former when seeking bail is adversely impacted to a greater extent than the liberty of the latter. Further, the higher rate of imprisonment for the former does not demonstrate or support the proposition that more of the former are sentenced to terms of imprisonment or for longer durations than the latter.

37. The mandatory sentence regime and the presumption against bail are substantive, not procedural, matters. Section 5D does not have the effect that the right to equal treatment of Aboriginal people charged with an offence against s 5D is enjoyed to a more limited extent than non-Aboriginal people charged with an offence against s 5A.

38. It follows that Aboriginal persons do not enjoy the right to liberty and the right to equal treatment to a more limited extent than non-indigenous persons by reason of s 5D of the MDA and r 2A of the MDRs within s 10 of the RDA. The impugned legislation is not inconsistent with s 10 of the RDA. Southwood J did not err in his conclusions and the grounds of appeal are not made out.

    Special measure

39. Southwood J did not consider whether s 5D of the MDA is a special measure within s 8(1) of the RDA. By a notice of contention, the respondent contends that his Honour’s decision that s 5D is not inconsistent with s 10 of the RDA is supported on the additional ground that it is a special measure within s 8(1) of the RDA. Given the conclusions above, it is not strictly necessary to consider this issue. Nevertheless, we will address it lest those conclusions be found to be wrong.

1. In our view, the legislative finding set out in paragraph [127] above, including its application to all indigenous communities (i.e., all communities the subject of the alcohol restrictions imposed under the NTNERA) was reasonably open on the basis of the studies, the Report and the notorious fact referred to above.

2. The appellant made numerous submissions to the effect that findings of the Report and the Court’s observations in Daniels (set out in paragraph [77] above) were inadequate to render the legislative finding reasonably open because they were not founded upon materials that established, and/or could not be read as establishing, that cannabis misuse was more harmful in indigenous communities than non-indigenous communities, essentially because the materials or the findings or observations applied only to (some) remote indigenous communities and not all indigenous communities.

3. Even if it were accepted that the materials referred to in the 2008 Second Reading Speech did not establish that all indigenous communities were suffering substantial social harms as a consequence of cannabis use at that time, they clearly established that many indigenous communities were, which gave rise to the reasonable inference that all indigenous communities were at risk of suffering substantial social harms as a consequence of cannabis use and in need of protection from that risk. The prevalence of some, if not all, of the risk factors to social harm caused by cannabis use in all indigenous communities and their consequent vulnerability to social harm from cannabis use supported that reasonable inference. That risk made reasonably open the legislative finding of a need to protect Aboriginal people in all indigenous communities from the deleterious effects of cannabis.

4. The appellant argued that the adoption of the prescribed areas under the NTNERA as ‘indigenous communities’ was done for legislative convenience (relying on the use of the word ‘easiest’ in the 2008 Second Reading Speech), and not because of a requirement for the protection of Aboriginal people to ensure their equal enjoyment or exercise of human rights. That submission ignores the object of the NTNERA: to improve the well-being of certain communities in the Northern Territory (that is, the prescribed areas) (s 5); and the legislative fact underpinning its passage, which included that Aboriginal people in the prescribed areas were suffering the deleterious effects of alcohol abuse, unemployment, poverty, poor health and poor housing.[121] As set out in paragraph [127] above, the clear import of the 2008 Second Reading Speech was the intention to address the supply of drugs into the same communities affected by the deleterious effects just referred to, particularly alcohol abuse. With that intention, the adoption of the definition of prescribed areas in the NTNERA was a drafting convenience consistent with the wish to protect Aboriginal people to ensure their equal enjoyment or exercise of human rights.

5. As for the submission about the absence from the 2008 Second Reading Speech of articulation of ‘the major premise’ that the observations in the materials about the deleterious effects of cannabis in some indigenous communities applied to all indigenous communities, the appellant did not explain why, as a matter of law, that was necessary for a conclusion that the legislative finding was reasonably open. Given that the legislative finding may be discerned from the impugned law itself,[122] and that the court can inform itself as best it can on material it finds sufficiently convincing,[123] there is no warrant to treat the 2008 Second Reading Speech as some form of reasons for decision which may be assessed as to adequacy to explain the decision and found to be inadequate. In any event, as set out above, each of the studies, the Report, the 2008 Second Reading Speech and the impugned legislation express the need for the protection from social harm caused by cannabis use to all indigenous communities.

6. The 2008 Second Reading Speech also referred to the observations of the Court in Daniels about the supply of drugs into indigenous communities as an element of aggravation in sentencing. The appellant argued that the Court’s observations in Daniels (set out in paragraph [77] above) were not based on materials which could reasonably ground a finding that supply of cannabis to all indigenous communities causes harm to a greater extent than the supply of cannabis to non-indigenous communities.

7. In those observations, the Court highlighted certain features of Aboriginal communities, including that they have relatively small populations; there is widespread substance abuse of many kinds, most commonly alcohol; and that substance abuse is having a ‘massive negative impact on the social fabric of Aboriginal communities and contribute[s] greatly to family and cultural breakdown’[124] and severe dysfunction, making those communities ‘vulnerable’ to community harms linked to the abuse of cannabis. The Court’s observations in this regard were not confined to ‘remote’ Aboriginal communities.

8. We consider that to be because it is a notorious fact that the features referred to by the Court are not confined to remote Aboriginal communities, but exist in regional and urban Aboriginal communities as well. So much is confirmed by the Court’s references to its own familiarity and experience over many years.[125]

9. The appellant argued that the Court cannot be taken to hold that the supply of cannabis in Aboriginal communities is always more harmful than the supply of cannabis in non-Aboriginal communities because that would ‘involve assumptions about aboriginality eschewed by the High Court in Bugmy v The Queen.’[126] In Bugmy, the appellant put forward two propositions which were rejected by the High Court. They were: (1) sentencing courts should take into account the unique circumstances of all Aboriginal offenders as relevant to the moral culpability of an individual Aboriginal offender; and (2) courts should take into account the high rate of incarceration of Aboriginal Australians when sentencing an Aboriginal offender.[127] The High Court held that both propositions were antithetical to individualised justice, because recognition that Aboriginal Australians as a group are subject to social and economic disadvantage says nothing about a particular Aboriginal offender.[128] To accept that supply of cannabis to indigenous communities causes greater social harm than supply of cannabis to non-indigenous communities because the former are more vulnerable to the social harms caused by cannabis use than the latter does not make ‘assumptions about Aboriginality’; it simply recognises the social context and risk factors referred to above which are present in the former to a greater degree than the latter. In any event, the requirement for individualised justice is one which applies to court proceedings: different considerations apply when assessing whether a legislative finding was reasonably open to the legislature when enacting what is said to be a special measure within the meaning of s 8 of the RDA.

10. For the above reasons, the legislative finding that the indigenous communities the subject of the NTNERA ‘intervention’ were already severely adversely impacted by the consumption of alcohol and vulnerable to a continuation or an exacerbation of social harms by the consumption of Schedule 2 drugs, particularly cannabis, the use of which had increased in at least some of those communities since the ‘intervention’, was reasonably open.

    Sole purpose of the law to secure the adequate advancement of Aboriginal people in indigenous communities to ensure equal enjoyment of the relevant rights

11. The appellant argued that the purpose of the law was not to secure the adequate advancement of Aboriginal people to ensure equal enjoyment (as distinct from superior enjoyment) of the relevant rights, because of the absence of foundation for a legislative finding that harm, or risk of harm, from cannabis misuse was operative in all indigenous communities to a greater extent than non-indigenous communities. The argument appeared to be that, without that foundation, the operation of s 5D on those indigenous communities that did not actually need protection from the social harms associated with cannabis misuse would ensure greater and therefore unequal (i.e., superior) enjoyment of the rights as between Aboriginal people in those communities and non-indigenous people in other communities.

12. We have rejected the argument that the legislative finding was not reasonably open in relation to all indigenous communities, thereby rejecting the premise in this argument.

13. We therefore conclude that the sole purpose of s 5D of the MDA was to secure the adequate advancement of Aboriginal people in all indigenous communities to ensure equal enjoyment of the rights to security of person and protection against violence or bodily harm, and perhaps also the right to public health.

    Reasonably necessary

14. As mentioned above, French CJ expressed this requirement as whether the law was ‘reasonably capable of being appropriate and adapted to [its] sole purpose’. Crennan, Kiefel and Gageler JJ expressed this requirement as a test of reasonable necessity, which looks to whether there are reasonably practicable alternative measures available which are less restrictive in their effect than the measures in question.[129] Although his Honour did not express the test as one of ‘reasonable necessity’, Hayne J also considered that the test is whether the same goal could be achieved to the same extent by an alternative that would restrict rights and freedoms of the relevant group to a lesser extent.[130]

15. The appellant argued that s 5D of the MDA is not reasonably necessary because a reasonably possible alternative measure to the same end would be a scheme which was targeted to specific communities in respect of which there was evidence of a differentially significant harm caused by the conduct already prohibited by s 5A. The evidence identified was the kind of evidence obtained by the studies in respect of the Arnhem Land communities referred to above.

16. To only act in respect of any particular community once the legislature had ‘evidence’ of harm (or risk of harm specific to that community) caused by cannabis use in that community is not a reasonably possible alternative measure where: (a) the legislative finding was that all indigenous communities were suffering or at risk of suffering the differentially significant harm because they all had some or all of the risk factors for cannabis misuse and harm identified in the studies and referred to above; (b) evidence about cannabis use in a particular community and social harm suffered as a consequence takes time and, it may be inferred, considerable resources to gather; and (c) addressing harm once it has eventuated is not equally as effective as addressing the risk of harm before it eventuates. As Kiefel J observed in Maloney (at [183]):

    The existence of any possible alternative is not sufficient to show that the measure chosen was not reasonably necessary according to the test. An alternative measure needs to be equally as effective, before a court can conclude that the measure is a disproportionate response.

    Moreover, in Monis v The Queen, Crennan and Bell JJ and I said that the alternative means must be obvious and compelling, having regard to the role of the courts in undertaking proportionality analysis. [citations omitted]

17. The appellant also argued that s 5D is not reasonably necessary because: (a) there is no basis to conclude that a ‘marginal increase’ in the maximum penalty would have a deterrent effect; (b) even if it could, ‘deterrence has little purchase where prolonged and widespread social disadvantage has produced communities so demoralised or alienated that it is unreasonable to expect the conduct of individuals within those communities to be controlled by rational calculation of the consequences of misconduct’.

18. This submission does not posit any reasonably practicable alternative means by which the sole purpose of s 5D may be equally effected. It is of no assistance in determining whether s 5D is reasonably necessary. In any event, that penalties act as a deterrent is a structural assumption of the criminal justice system and one of the chief purposes of the criminal law[131] which should not, as the appellant argued (without reference to authority), be put to one side because the overarching issue in this case is inconsistency with the RDA. As Deane J observed in Gerhardy v Brown (at 149):[132]

    Beyond [being reasonably necessary], the Court is not concerned to determine whether the provisions are the appropriate ones to achieve, or whether they will in fact achieve, the particular purpose.

19. The appellant argued that the impugned legislation is not reasonably necessary because it has effectively been in place since 2008 with no evidence as to its effect towards achieving its purpose, bringing into effect the provisos to Art 1(4) of the ICERD. They provide that a measure is not a special measure if it leads to the maintenance of separate rights for different racial groups and that a special measure is not continued after the objectives for which it was taken have been achieved.

20. In Gerhardy v Brown, Brennan J held (at 140) that:[133]

    What the provisos are concerned to avoid, however, is the maintenance of separate rights after the objectives have been achieved and the continuation of special measures after that time. The provisos are satisfied if, when that time arrives, separate rights are repealed and special measures are discontinued. As it is impossible to determine in advance when the objectives of a special measure will be achieved, the better construction of the provisos is that they contemplate that a State Party will keep its special measure under review, and that the measure will lose the character of a special measure at the time when its objectives have been achieved. But the provisos do not require the time for the operation of the special measure to be defined before the objectives of the special measure have been achieved.

21. Despite the length of time between 2008 (when the increased maximum penalty was imposed) and 2019 (when the appellant is alleged to have committed the offence), we consider the notorious facts referred to in paragraphs [134] and [145] above applied with as much force in 2019 as they did in 2008, meaning the disproportionate vulnerability of indigenous communities to social harms from cannabis misuse persisted across that period, and the objectives of s 5D of the MDA had not, by 2019, been achieved.

    Conclusions – Special measure within s 8 of the RDA

22. In summary, we have drawn the following conclusions.

23. There was a legislative finding that the indigenous communities the subject of the NTNERA ‘intervention’ were already severely adversely impacted by the consumption of alcohol and vulnerable to a continuation or an exacerbation of social harms by the consumption of Schedule 2 drugs, particularly cannabis, the use of which had increased in at least some of those communities since the ‘intervention’. That legislative finding was reasonably open.

24. The sole purpose of s 5D of the MDA was to secure the adequate advancement of Aboriginal people in all indigenous communities to ensure equal enjoyment of the rights to security of person and protection against violence or bodily harm, and perhaps also the right to public health.

25. The only alternative put by the appellant to s 5D of the MDA was not a reasonably practicable alternative measure. The objectives of s 5D had not, by 2019, been achieved. Consequently, s 5D of the MDA is reasonably necessary to achieving its sole purpose of securing the adequate advancement of Aboriginal people to ensure their equal enjoyment of the relevant rights.

26. It follows that s 5D of the MDA and r 2A of the MDRs are a special measure within s 8 of the RDA.

    Orders

27. The appeal is dismissed.

28. We will hear the parties as to costs.

    ___________________

[1]Blackwell v Bara [2022] NTSC 17 (‘Reasons’) at [4].

[2]Reasons at [5]. What follows is a summary of those agreed facts.

[3]Reasons at [7]-[8], [12].

[4]The terms ‘indigenous’ and ‘Aboriginal’ are used interchangeably in these reasons.

[5]Reasons at [6]-[9], [40].

[6]This conclusion was drawn on the basis that it is quite conceivable that some Aboriginal offenders who were dealt with in 2017 and 2018 committed more than one offence against s 5D: Reasons at [7(h)].

[7]Reasons at [9], [11], [12].

[8]Supreme Court Act 1979 (NT), ss 54, 55.

[9]See Allesch v Maunz (2000) 203 CLR 172 at [20]-[22] per Gaudron, McHugh, Gummow and Hayne JJ. The provisions of the Family Law Act 1975 (Cth) there under consideration are indistinguishable from ss 51, 54 and 55 of the Supreme Court Act 1979 (NT). See also Western Australia v Ward (2000) 213 CLR 1 at [70]-[71] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. Again, ss 22, 27 and 28 of the Federal Court of Australia Act 1976 (Cth) there under consideration are indistinguishable from ss 51, 54 and 55 of the Supreme Court Act 1979 (NT).

[10]Allesch v Maunz at [23], citing CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ.

[11](2002) 213 CLR 1 at [105]-[133] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.

[12]Work Health Authority v Outback Ballooning (2019) 266 CLR 428 at [30] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ, at [58] per Gageler J, at [104] per Edelman J.

[13]Reasons at [52].

[14]Maloney v The Queen (2013) 252 CLR 168 (‘Maloney’) at [62] per Hayne J, Crennan J agreeing at [112].

[15]Maloney at [26], [36]-[41] per French J, [145], [147]-[148] per Kiefel J, [198], [200], [202], [205], [224] per Bell J, [329]-[331], [335]-[338] per Gageler J.

[16]‘Supply’ is defined to mean: (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 (s 3(1)).

[17]‘Dangerous drug’ is defined to mean a Schedule 1 drug or a Schedule 2 drug (s 3(1)).

[18]‘Commercial quantity’ is defined by reference to the quantities specified in relation to each kind of dangerous drug listed in Schedules 1 and 2 (s 3(1)).

[19]‘Schedule 2 drug’ is defined to mean a substance or thing specified in Schedule 2, which includes cannabis plant material (s 3(1)).

[20]Reasons at footnote 8.

[21]Reasons at [68]-[75].

[22]Reasons at [76]-[82].

[23]Reasons at [101].

[24]Maloney at [76] per Hayne J.

[25]Police Administration Act 1978 (NT), s 123. There is also the power to arrest pursuant to a warrant issued by a Supreme Court Judge, Local Court Judge or justice of the peace: s 124, Police Administration Act.

[26]Police Administration Act, s 137(2), (3), (4).

[27]Local Court (Criminal Procedure) Act 1928 (NT), s 101(a).

[28]Police Administration Act, s 137(1).

[29]Bail Act, ss 16, 20, 23.

[30]Bail Act, s 7A(1)(c).

[31]Local Court (Criminal Procedure) Act, ss 59, 60, 65(3).

[32]Local Court (Criminal Procedure) Act, s 113.

[33]Sentencing Act 1995 (NT), ss 7(g), (h), (j), (k), 49-64.

[34]Reasons at [82].

[35]Reasons at [87].

[36]Expressed in Art 10 of the UDHR, Art 6(1) of the ECHR and Art 14(1) and (3)(c) of the ICCPR.

[37]Expressed in Art 6(2) of the ECHR and Art 14(2) of the ICCPR.

[38]Expressed in Art 6(1) of the ECHR and Art 14(1) of the ICCPR.

[39]Expressed in Art 6(3)(a) of the ECHR and Art 14(3) of the ICCPR.

[40]Expressed in Art 6(3)(c) of the ECHR and Art 14(3)(d) of the ICCPR.

[41]Expressed in Art 6(3)(d) of the ECHR and Art 14(3)(e) of the ICCPR.

[42]Expressed in Art 6(3)(d) of the ECHR and Art 14(3)(e) of the ICCPR.

[43]Expressed in Art 6(3)(e) of the ECHR and Art 14(3)(f) of the ICCPR.

[44]Expressed in Art 14(5) of the ICCPR and Art 14(5) of the ICCPR.

[45]Expressed in Art 10 of the UDHR, Art 6(1) of the ECHR and Art 14(1) of the ICCPR.

[46]Reasons at [87].

[47]Maloney at [36].

[48]Maloney at [73].

[49]Maloney at [151], [159]-[160].

[50]Maloney at [215], citing Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (1993), p 466; United Nations Human Rights Committee, General Comment No 32 – Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc CCPR/C/GC/32 (2007), paras [8], [12], [13].

[51]Maloney at [361].

[52]Maloney at [336].

[53]Maloney at [38] per French CJ (indigenous persons who were the Palm Island community and non-indigenous people outside that community); at [84] per Hayne J (Crennan J agreeing) (those who live on Palm Island (and any other person visiting), who are overwhelmingly Aboriginal people, and persons resident elsewhere in Queensland who are predominantly non-Aboriginal people); at [140], [147], [159] per Kiefel J (residents of Palm Island, all but three percent of whom are Aboriginal persons, and non-Aboriginal people in Queensland and Australia); Bell J at [197], [202] (persons resident on Palm Island, the overwhelming majority of whom are Aboriginal persons, and persons elsewhere in Queensland, the vast majority of whom are non-Aboriginal); at [256], [360]-[361] per Gageler J (Aboriginal persons living on Palm Island, of whom over 90% were Aboriginal and non-indigenous persons living elsewhere in Queensland).

[54]Maloney at [338], [348], [362] per Gageler J.

[55]Maloney at 172.

[56]Maloney at 173.

[57]Maloney at [38].

[58]Maloney at [79].

[59]Maloney at [84].

[60]Maloney at [148].

[61]Maloney at [202].

[62]Maloney at [203].

[63]Maloney at [204].

[64]Maloney at [204].

[65]Maloney at [362].

[66]See Reasons at [63]. His Honour referred only to criminal conduct and did not refer to the reasonable suspicion of criminal conduct.

[67]A reasonable suspicion could not be one based on race. See Prior v Mole (2017) 261 CLR 265 at [16]-[17] per Kiefel and Bell JJ, [71] per Nettle J, [98], [113]-[114] per Gordon J; George v Rockett (1990) 170 CLR 104.

[68]Munkara v Benscevich [2018] NTCA 4 (‘Munkara’).

[69]Munkara at [99].

[70]Munkara at [99], [103].

[71]Maloney at [338].

[72]Reasons at [9].

[73]Reasons at [96].

[74]Reasons at [112].

[75]Reasons at [111].

[76]Munkara at [103]-[104].

[77]In Munkara, an alcohol protection order could be issued if the person had been arrested, summonsed or served with a notice to appear in court in respect of a qualifying offence and the officer believed they were affected by alcohol at the time of the act which caused them to be arrested, summonsed or served.

[78]Reasons at [32].

[79]Ibid.

[80]Citing Markarian v The Queen (2005) 228 CLR 357 at [31] per Gleeson CJ, Gummow, Hayne and Callinan JJ.

[81]Citing Ibbs v The Queen (1987) 163 CLR 447 at 451-452 per the Court.

[82]Citing The Queen v Geddes (1936) 36 SR (NSW) 554 at 555-556 per Jordan CJ, cited with approval in Markarian at [65] per McHugh J.

[83]On 23 July 2008, the MDA was amended by the Misuse of Drugs Amendment Act 2008, which introduced a maximum penalty of nine years imprisonment for the offence of supplying a Schedule 2 drug if the drug is supplied to a person in an indigenous community. See Reasons at [15]-[18].

[84]Daniels v The Queen (2007) 20 NTLR 147 at [22]-[26], [35]-[42] per Martin (BR) CJ and Riley J.

[85]Reasons at [19].

[86]Sentencing Act 1995 (NT), s 122(1).

[87]Reasons at [44]-[47], citing Duthie v Smith (1992) 83 NTR 21 at 28 per Mildren J, cited with approval in The Queen v Day (2004) 14 NTLR 218 at [25]-[32] per Martin (BR) CJ, at [51] per Mildren J (Thomas J agreeing with both).

[88]See The Queen v JDT [2011] NTSC 39 at [7] per Blokland J; The Queen v Williams [2012] NTSC 47 at [5] per Kelly J, cited with approval in Suttie v The Queen [2013] NTSC 37 at [33] per Hiley J.

[89]The Queen v Williams [2012] NTSC 47 at [7] per Kelly J. As the High Court acknowledged in Purkess v Crittenden (1965) 114 CLR 164 at 167-168 per Barwick CJ, Kitto and Taylor JJ, the expression ‘burden’ or ‘onus’ of proof has two distinct meanings: (1) the burden of proof as a matter of law and pleading – the burden of establishing a case; and (2) the burden of proof in the sense of introducing evidence.

[90]Cross on Evidence – Australian Edition, LexisNexis, looseleaf service, [7001]. See also Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 at [17]-[18] per Gummow J (Kirby J agreeing), at [120]-[126], [133]-[134] per Hayne J (Gleeson CJ and McHugh J agreeing).

[91]Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 at [17]-[18] per Gummow J (Kirby J agreeing), at [133]-[134] per Hayne J (Gleeson CJ and McHugh J agreeing).

[92]See John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at [99] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ holding that ‘matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure’.

[93]See the definition of ‘bail’ in s 3(1) of the Bail Act.

[94](2014) 119 SASR 92.

[95]See John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at [99] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ adopting the formulation put forward by Mason CJ in McKainv RW Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1 at 26-27.

[96]Maloney at [21].

[97]The members of the Court in Maloney expressed this criteria in different ways. This is considered further below.

[98]Maloney at [19] per French CJ.

[99]Maloney at [20] per French CJ, citing Gerhardy v Brown (1985) 159 CLR 70 at 149 per Deane J. See also at [182]-[183] per Kiefel J, at [245] per Bell J.

[100]Maloney at [21] per French CJ, at [248] per Bell J, at [352]-[353] per Gageler J.

[101]Maloney at [21] per French CJ, citing Gerhardy v Brown (1985) 159 CLR 70 at 88-89 per Gibbs CJ, at 105 per Mason J, at 141-142 per Brennan J. See also at [350]-[351] per Gageler J.

[102]To adopt the label used by Gageler J in Maloney at [352].

[103]Maloney at [353] per Gageler J, citing Thomas v Mowbray (2007) 233 CLR 307 at [526] per Callinan J, [613]-[639] per Heydon J.

[104]Maloney at [353] per Gageler J.

[105]Maloney at [21] per French CJ. See also s 144(1) of the Evidence (National Uniform Legislation) Act 2011 (NT), which deals with matters of common knowledge, i.e. knowledge that is not reasonably open to question and is common knowledge in the locality in which the proceeding is being held or generally.

[106]See Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 196 per Dixon J; Escoigne Properties Ltd v Inland Revenue Commissioners (UK) [1958] AC 549 at 566 per Lord Denning.

[107]Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697 at [98], [103] per Beazley ACJ (Preston CJ of LEC agreeing).

[108]Reasons at [15]-[22].

[109]Section 5(2)(a)(iv) of the MDA as amended by the Misuse of Drugs Amendment Act 2008 (NT).

[110]Section 4B of the MDA as inserted by the Misuse of Drugs Amendment Act 2008.

[111]Hansard, Legislative Assembly Northern Territory, 1 May 2008, Minister for Justice and Attorney-General.

[112]Section 5(2)(a)(iv) of the MDA as amended by the Misuse of Drugs Amendment Act 2014 (NT).

[113]As effected by the Justice Legislation Amendment (Drug Offences) Act 2016 (NT).

[114]Reasons at [24].

[115]Maloney at [138]-[139] per Crennan J, [178] per Kiefel J, at [249] per Bell J, at [371]-[372] per Gageler J. See also at [107] per Hayne J.

[116]AR Clough et al, “Emerging patterns of cannabis and other substance use in Aboriginal communities in Arnhem Land, Northern Territory: a study of two communities” (2004) 23 Drug and Alcohol Review 381-390.

[117]Ibid.

[118]Board of Inquiry Report, “Little Children Are Sacred”, pp 15, 44-45.

[119]Ibid, p 173.

[120]Recommendation 70 was that government develop and implement a multi-faceted approach to address the abuse of illicit substances in Aboriginal communities, particularly cannabis abuse, including prevention, intervention and enforcement strategies which recognise: (a) the geographic context of substance abuse, that is, urban and remote locations and the implications this has for effective prevention, intervention and enforcement; (b) population-based, youth-focused prevention and intervention strategies that integrate substance abuse, mental health, and other health and welfare concerns into. (Board of Inquiry Report, “Little Children Are Sacred”, p 174).

[121]Second Reading Speech to the Northern Territory National Emergency Response Bill 2007, Hansard, House of Representatives, Commonwealth Parliament, 7 August 2007, pp 10-16.

[122]Maloney at [21, first dot point] per French CJ.

[123]Maloney at [356] per Gageler J.

[124]The Court quoted this finding from the Report, p 161.

[125]See also Cook v The Queen (2018) 41 NTLR 75 at [29] per Grant CJ, Blokland J and Mildren AJ; Witham v The Queen [2018] NTCCA 1 at [33], [37]-[38] per Blokland and Hiley JJ (Kelly J agreeing); Schuelein v The Queen [2016] NTCCA 7 at [25] per Southwood and Hiley JJ, at [64] per Blokland J; Mamarika v Lee [2013] NTSC 10 at [19], [23], [30] per Barr J; Hua v Dennien [2012] NTSC 17 at [27]-[28] per Barr J; Williams v Balchin [2012] NTSC 15 at [17] per Blokland J; Theories Pty Ltd v Holt [2012] NTSC 9 at [14] per Kelly J; Rioli v The Queen [2010] NTCCA 13 at [17] per Southwood J (Blokland and Barr JJ agreeing); Henwood v Balchin [2011] NTSC 84 at [113]-[115] per Blokland J; Nayidawawa v Moore (2007) 178 A Crim R 473 at [9]-[10], [21]-[22] per Mildren J; Musgrave v Liyawanga [2004] NTSC 53 at [66] per Martin (BR) CJ.

[126]Bugmy v The Queen (2013) 249 CLR 571.

[127]Bugmy at [28] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ.

[128]Bugmy at [36], [41].

[129]Maloney at [130], [137] per Crennan J, [180], [182] per Kiefel J, [358], [374] per Gageler J.

[130]Maloney at [102], [104].

[131]The Queen v Wong (1999) 48 NSWLR 340 at [127] per Spigelman CJ (Mason P, Simpson, Sperling and Barr JJ agreeing); Walden v Hensler (1987) 163 CLR 561 at 569 per Brennan J; The Queen v Miria [2009] NSWCCA 68 at [12]-[14] per Grove J (Blanch and Latham JJ agreeing).

[132]Cited in Maloney at [20] per French CJ, at [245] per Bell J.

[133]See also at 113 per Wilson J and at 154 per Deane J.