Bara v Blackwell

The appellant, an Aboriginal man, appealed a decision concerning charges under the *Misuse of Drugs Act 1990* (NT). The dispute centred on section 5D of the Act, which imposes a higher maximum penalty for supplying less than a commercial quantity of a Schedule 2 drug within an Indigenous community compared to section 5A, which applies elsewhere. The appellant argued that section 5D was inconsistent with section 10 of the *Racial Discrimination Act 1975* (Cth) due to disproportionate charging rates of Aboriginal people under section 5D, potentially harsher sentences, and a presumption against bail for such offences. The appeal was heard by Kelly, Barr, and Brownhill JJ of the Supreme Court of the Northern Territory.

The primary legal issue before the Court was whether section 5D of the *Misuse of Drugs Act 1990* (NT) was inconsistent with section 10(1) of the *Racial Discrimination Act 1975* (Cth). This required the Court to determine if Aboriginal people charged under section 5D enjoyed the right to liberty or the right to equal treatment to a more limited extent than non-Aboriginal people charged under section 5A, by reason of section 5D. A secondary issue, raised by the respondent by way of notice of contention, was whether section 5D constituted a "special measure" under section 8 of the *Racial Discrimination Act 1975* (Cth).

The Court reasoned that the comparison drawn by the appellant between Aboriginal people charged under section 5D and non-Aboriginal people charged under section 5A did not allow for a "real comparison" of the rights enjoyed. It found that the disproportionate number of Aboriginal people charged under section 5D was not "by reason of" the impugned provisions themselves, but rather a consequence of criminal conduct or suspicion thereof, which are not race-related. The Court concluded that, all other things being equal, penalties for offences under section 5A committed within an Indigenous community would likely be similar to those under section 5D. Furthermore, it was not established that Aboriginal persons charged under section 5D would, to a significant degree, receive greater sentences, receive a sentence when a non-Indigenous person would not, or face greater adverse impacts on liberty when seeking bail. Consequently, the Court held that section 5D did not have the effect of limiting the right to equal treatment or liberty for Aboriginal persons compared to non-Aboriginal persons, and therefore was not inconsistent with section 10 of the *Racial Discrimination Act 1975* (Cth).

The Court dismissed the appeal, finding that the grounds were not made out. While it was not strictly necessary to consider the "special measure" argument, the Court noted that if its conclusions regarding section 10 were found to be wrong, the respondent's contention that section 5D is a special measure would be addressed.