Blackwell v Bara

Case [2022] NTSC 17

CITATION:Blackwell v Bara [2022] NTSC 17

PARTIES:BLACKWELL, Owen

v

BARA, Daryl

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SPECIAL CASE stated from LOCAL COURT exercising Territory jurisdiction

FILE NO:21910017

DELIVERED:  2 March 2022

HEARING DATE:  3 April 2020

JUDGMENT OF:  Southwood J

CATCHWORDS:

HUMAN RIGHTS – Discrimination – Grounds – Racial discrimination – Constitutional law – Inconsistency of laws

Whether s 5D of the Misuse of Drugs Act is invalid (in whole or in part) because it is inconsistent with s 10 of the Racial Discrimination Act – Both Aboriginal and non-indigenous drug offenders subject to same sentencing regime for an offence against s 5D – Laws of bail and sentencing apply equally to both Aboriginal and non-indigenous offenders – Legislation does not impose any relevant limitation or prohibition on right to liberty – The right to equal treatment before the courts not properly equated to a right to equal protection of the law – The right to equal treatment before the courts is focused on equality in the administration and enforcement of laws by courts and tribunals – Legislation does not impose any relevant limitation or prohibition on equality of treatment – Section 5D of the Misuse of Drugs Act is valid.

Bail Act 1982 (NT) s 7A
Misuse of Drugs Act 1990 (NT) s 4B, s 5A, s 5D, s 37
Racial Discrimination Act 1975 (Cth) s 10

Al-Kateb v Godwin (2004) 219 CLR 562, Daniels v The Queen (2007) 20 NTLR 147, Duthie v Smith (1992) 83 NTR 21, Gerhardy v Brown (1985) 159 CLR 70, Ibbs v The Queen (1987) 163 CLR 447, Mabo v Queensland (No 1) (1988) 166 CLR 186, Maloney v The Queen (2013) 252 CLR 168, Markarian v The Queen (2005) 228 CLR 357, Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54, Munkara v Bencsevich [2018] NTCA 4, Nunnggargalu v Millar (unreported, 11 January 2013, NTSC, Barr J), R v Day (2004) 14 NTLR 218, R v Geddes (1936) 36 SR (NSW) 554, R v Williams [2012] NTSC 47, Suttie v The Queen [2013] NTSC 37, Williams v Balchin [2012] NTSC 15, Williams v The Queen (1986) 161 CLR 278, Work Health Authority v Outback Ballooning (2019) 266 CLR 428, referred to.

REPRESENTATION:

Counsel:

Informant:T Moses

Defendant:P Coleridge

Solicitors:

Informant:Solicitor for the Northern Territory

Defendant:North Australian Aboriginal Justice Agency

Judgment category classification:    B

Judgment ID Number:  Sou2202

Number of pages:  69

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

Blackwell v Bara [2022] NTSC 17

No. 21910017

BETWEEN:

OWEN BLACKWELL

Informant

AND:

DARYL BARA

Defendant

CORAM:    SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 2 March 2022)

  1. The defendant stands charged on an information for an indictable offence. Relevantly, count 1 on the information charges that contrary to s 5D(1) of the Misuse of Drugs Act 1990 (NT) on 5 March 2019 the defendant…

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AGLC
Blackwell v Bara [2022] NTSC 17
Case
[2022] NTSC 17
Decision Date

CaseChat Overview and Summary

In the case of Blackwell v Bara, Daryl Bara, an Aboriginal man, was charged with trafficking cannabis in an indigenous community under section 5D of the Misuse of Drugs Act 1990 (NT). The defendant challenged the validity of section 5D on the ground that it contravened section 10 of the Racial Discrimination Act 1975 (Cth). Bara argued that the sentencing regime for offences under section 5D disproportionately affected Aboriginal people, given that indigenous communities are predominantly populated by Aboriginal people, thereby amounting to racial discrimination. The court had to determine whether section 5D of the Misuse of Drugs Act was inconsistent with section 10 of the Racial Discrimination Act and, if so, whether it was invalid in whole or in part.

The court held that section 5D was not inconsistent with section 10 of the Racial Discrimination Act. The court reasoned that the maximum penalty for an offence against section 5D was towards the bottom end of the range of maximum penalties under the Misuse of Drugs Act. Moreover, the court found that the maximum penalty for an offence against section 5D was almost double the maximum penalty for an offence against section 5A, which applied to the supply of less than a commercial quantity of Schedule 1 and Schedule 2 dangerous drugs generally. The court further held that both Aboriginal and non-indigenous drug offenders were subject to the same sentencing regime for an offence against section 5D. Therefore, the laws of bail and sentencing applied equally to both Aboriginal and non-indigenous offenders. The court concluded that section 5D did not impose any relevant limitation or prohibition on the right to liberty.

The court also held that the right to equal treatment before the courts was not properly equated to a right to equal protection of the law. The right to equal treatment before the courts was focused on equality in the administration and enforcement of laws by courts and tribunals. The court found that the legislation did not impose any relevant limitation or prohibition on equality of treatment. Therefore, section 5D of the Misuse of Drugs Act was valid.

The court did not make any orders.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the questions are answered:1. No. Section 5D is valid. It is consistent with s 10(1) of the Racial Discrimination Act 1975.2. Unnecessary to answer.The agreed facts The parties have agreed the following facts for the purpose of the stated case only. The facts set out under the heading “Alleged facts in relation to the offending” are admitted without prejudice to the defendant’s right to challenge them if the charge proceeds to trial.Alleged facts in relation to the offending1. The following facts are agreed to reflect the facts that the informant will seek to prove at hearing. [...](a)The defendant in this matter is Daryl BARA, a sixty-six year old Aboriginal man who has lived much of his life in Umbakumba Community on Groote Eylandt.(b)As at March 2019, the defendant was living in Darwin dividing his time between the "long grass" and his sister Linda Bara's house at Victoria Drive in Gray.(c)On the morning of Tuesday, 5 March 2019 the defendant was approached by his granddaughter Darlene Durilla at Victoria Drive, Gray and persuaded to take a grey backpack to Groote Eylandt.(d)The backpack contained seven packages containing a combined total of 300 grams of cannabis and small deal size bags.(e)The defendant was aware that the backpack contained cannabis.(f)The defendant was told by Ms Durilla to give the backpack to another one of the defendant’s and Ms Durilla's family members — Renelle Durilla — who would be waiting at the Groote Eylandt airport to take the backpack to Malkala Community on Groote Eylandt, where further members of the defendant's extended family reside. The defendant was told that the backpack, and thus the cannabis, was intended for persons in Malkala.(g)The defendant was told by Ms Durilla that his flight to Groote Eylandt would be paid for and that he would receive $200 for taking the backpack.(h)The defendant travelled from Palmerston to Darwin [Airport] in a mini bus taxi with Naleeta Mamarika, Linda Bara and Darlene Durilla.(i)On arrival at Darwin Airport, Naleeta Mamarika gave the defendant the backpack. He then went to the Airnorth Desk and checked himself and the backpack onto the flight.(j)At 09:45am the defendant boarded the Airnorth Service TL 404 to Groote Eylandt.(k)At 11:25am the defendant's flight arrived at Groote Eylandt where disembarking passengers were being screened by members of the Alyangula Dog Operations Unit.(l)Narcotic Detector Dog "Bear" was deployed to screen the baggage and provided a conditioned response to the grey backpack checked in by the defendant.(m)Macreena Bara, the defendant's granddaughter, spoke to the defendant and told him in her language that he should not tell the Police about the cannabis.(n)The defendant left the airport and sat in the rear driver's side seat of a white Toyota Landcruiser parked in the airport carpark where he watched Macreena Bara attempt to retrieve the grey backpack.(o)At this time, the defendant was arrested by Senior Constable Matthew Woldseth and a Section 120C search was carried out on the bag by Senior Constable First Class George Hillen, recovering the seven packages of cannabis.(p)The defendant was conveyed to Alyangula Police Station and later participated in an electronic record of interview, in which he made full and frank admissions. These included admissions to transporting cannabis and being paid $200 [for] that transportation. He [also] identified two co-offenders.(q)Malkala is an indigenous community on Groote Eylandt […] within the meaning of s 3(1) of the Misuse of Drugs Act 1990 (NT).(r)Cannabis is currently estimated by Northern Territory Police to be worth between $100 and $150 for one gram of cannabis on Groote Eylandt. 300 grams of cannabis could be sold for between $30,000 and $45,000 if sold individually.(s)Cannabis is a dangerous drug listed in Schedule 2 of the Misuse of Drugs Act 1990 (NT), and 300 grams is a traffickable quantity, being in excess of 50 grams [and less than 500 grams].Population statistics2. According to 2016 Census data, the population of the whole of the Northern Territory is 228,833, of whom 25.5% are indigenous.3. According to a police estimate, Malkala's population is between 80 and 100 people, of whom 100% are indigenous.4. "Indigenous communities" within the meaning of s 3(1) of the Misuse of Drugs Act 1990 (NT) are overwhelmingly populated by indigenous people. According to 2016 Census data, approximately 87% of the population of indigenous communities is indigenous.Charge statistics5. The table below represents Local Court finalization data for charges against s 5A (Sch 2 drugs only) and s 5D of the Misuse of Drugs Act in the whole of the Northern Territory for the years 2017 and 2018 combined.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In order to demonstrate that there is a conflict between s 5D of the Misuse of Drugs Act and s 10(1) of the Racial Discrimination Act it is necessary for a claimant to identify and establish the following.(a)The legislative provisions that are challenged.(b)The human rights and fundamental freedoms the enjoyment of which is said to be unfavourably impaired or limited.(c)The persons of a particular race whose enjoyment of human rights and fundamental freedoms is said to be unfavourably limited.(d)The other group of persons whom it is said are able to enjoy the relevant human rights and fundamental freedoms without limitation or in a less limited way.(e)How it is said those persons of the particular race enjoy to a more limited extent the identified human rights and fundamental freedoms.(f)The impugned statutory provisions caused the disparity in the enjoyment of the identified human rights and fundamental freedoms.The decision in Maloney v The Queen It is useful to consider the decision of the High Court in Maloney v The Queen (“Maloney”)[22] before considering the defendant’s submissions. In Maloney, the majority of the High Court held that Queensland legislation prohibiting an Aboriginal person from possessing alcohol other than the prescribed type and volume in a public area on Palm Island created a discriminatory limitation on the human right to own property contrary to s 10 of the Racial Discrimination Act. However, the High Court found in addition that the prohibition was a “special measure” under s 8 of the Racial Discrimination Act, and so operated as an exception. The case is difficult to analyse because each of the five High Court Judges published separate reasons for decision, and considered different issues were more important than others. Their Honours also dealt with a range of issues that were arguably not strictly necessary for them to decide, and arguably do not form part of the ratio decidendi. The factual and legislative background to the decision was as follows. In 2002, the Queensland Legislative Assembly passed the Indigenous Community Liquor Licences Act 2002 (Qld) in an attempt to reduce the harm that the consumption of alcohol was causing Aboriginal people in indigenous communities in Queensland. The Act introduced Part 6A (ss 173F-173J) of the Liquor Act 1992 (Qld) that provided for the declaration by regulation of an area as a “restricted area” (s 173G), and for the declaration by regulation of a prohibition on the possession of more than the specified volume of the prescribed type of alcohol in a public place in a restricted area (s 173H). The Explanatory Notes for the Bill for the Indigenous Community Liquor Licences Act 2002 (Qld) stated that Part 6A was part of a package of reforms to address the prevalence of alcohol abuse and violence in indigenous communities in Cape York and other parts of Queensland. As at 31 May 2008, the Liquor Act 1992 (Qld) and Liquor Regulation 2002 (Qld) (r 37A) declared each of the areas specified in eighteen schedules of the Liquor Regulation 2002 (Qld) to be a restricted area. Each of the areas was associated in some way with an indigenous community. Schedule 1R related to Palm Island. The residents of Palm Island are overwhelmingly Aboriginal people. Clause 1 of Schedule 1R of the Liquor Regulation 2002 (Qld) declared each of three areas (community area, foreshore and jetty) of Palm Island to be a restricted area. Clause 2 of Schedule 1R declared the prescribed volume and type of alcohol for each of those areas (other than the licensed premises known as the Palm Island Canteen) to be 11.25 litres of beer with a concentration of alcohol of less than 4 percent. The effect of these provisions was that no person in a public place in a restricted area on Palm Island could have any other type or greater volume of alcohol in their possession.[23]

Ratio Decidendi

Legal Principle Established

The paramount distinguishing factor between the various offences in Part II, Division 1, Subdivision 1 of the Misuse of Drugs Act and their maximum penalties is the level of seriousness of each offence. The seriousness of each offence is based on the quantity of the drug supplied, the type or category of the dangerous drug supplied (Schedule 1 or Schedule 2), and the vulnerability of and potential harm caused to the end-users of the dangerous drug, including children or members of an indigenous community. The maximum penalties for the various offences in Subdivision 1 range from a fine of 500 penalty units or imprisonment for five years, to imprisonment for nine years, to imprisonment for 14 years, to imprisonment for 25 years, to life imprisonment. The most serious offences are the supply of a Schedule 1 dangerous drug to a child, which attract a maximum penalty of life imprisonment. The maximum penalty of imprisonment for nine years for an offence against s 5D is towards the bottom end of the range of maximum penalties under the Act. However, it is almost double the maximum penalty for an offence against s 5A.The operation of s 5D of the Misuse of Drugs Act Section 5D of the Misuse of Drugs Act, which was inserted into the Act as part of the amendments made in 2016, states (emphasis added):(1) A person commits an offence if:(a)the person intentionally supplies, or takes part in the supply of, a substance or thing to another person; and(b)the substance or thing is a dangerous drug and the person is reckless in relation to that circumstance; and(c)less than a commercial quantity of the dangerous drug is supplied; and(d)the dangerous drug is a Schedule 2 drug; and(e)the dangerous drug is supplied in an indigenous community.Maximum penalty: Imprisonment for 9 years.(2) Absolute liability applies to subsection (1)(c), (d) and (e). Section 5D makes it an offence to supply less than a commercial quantity (500 grams) of Schedule 2 dangerous drugs to or in an indigenous community. The section applies to the supply of less than a commercial quantity of Schedule 2 dangerous drugs only. There is no standalone provision for the supply of less than a commercial quantity of Schedule 1 dangerous drugs to or in an indigenous community. Section 5A applies to the supply of less than a commercial quantity of Schedule 1 and Schedule 2 dangerous drugs generally. The distinguishing criterion between s 5D and the prohibition on the supply of less than a commercial quantity of Schedule 2 drugs in s 5A is whether the supply is to or in an indigenous community. A person who commits an offence against s 5D could alternatively be charged with an offence against s 5A, although it is unlikely that the prosecutorial discretion would be exercised in that manner. The extended definition of “supply” contained in s 3(1) means that, in addition to its ordinary denotation, supply includes transport, offering to do an act of supply, and doing or offering to do an act preparatory to, in furtherance of, or for the purpose of supply. This means that s 5D applies not only at the end-point of street level supply in an indigenous community, but covers a person who is engaged at any point in the supply chain for dangerous drugs. The section prohibits all persons, of any ethnicity and descent, whether they reside in an indigenous community or not (and, in fact, whether they reside in the Northern Territory or not), from engaging in acts that fall within the extended definition of “supply” of less than a commercial quantity of a Schedule 2 dangerous drug in an indigenous community. This includes interstate suppliers, couriers, local street dealers, people offering to commit an act of supply, people committing an act preparatory to, or in furtherance of, or for the purpose of, the supply of Schedule 2 dangerous drugs.