Blackwell v Bara

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.