Munkara v Bencsevich and Ors

[2015] NTSC 78

Munkara v Bencsevich & Ors [2015] NTSC 78

PARTIES:MUNKARA, Dennis

v

BENCSEVICH, Nicholas Alexander

and:

STREETER, Ben

and:

MARTIN, Winston

and:

WHITTINGTON, Robert

and:

ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:77 of 2014 (21437457)

DELIVERED:  4 December 2015

PRONOUNCED:  25 February 2015

HEARING DATES:  23, 24 and 25 February 2015

JUDGMENT OF:  SOUTHWOOD J

CATCHWORDS:

ADMINISTRATIVE LAW – Judicial review – jurisdictional error – unreasonableness – applicant issued with alcohol protection orders – issuing police officers considered express mandatory statutory requirements only – whether issue of orders disproportionate and unreasonable – Alcohol Protection Orders Act 2013 (NT) s 6

RACIAL DISCRIMINATION – Alcohol protections orders - Territory law allowing police officers to issue orders restricting consumption and possession of alcohol and entry onto certain licensed premises – significantly more alcohol protection orders made against Indigenous people than non-Indigenous people in the Northern Territory – prohibition by Commonwealth law of Territory law denying persons of a particular race rights enjoyed by persons of another race – the practical operation and effect of s 6 of the Alcohol Protection Orders Act 2013 – Statutory rights of reconsideration and review – whether, by reason of the Territory law, Indigenous people in the Northern Territory enjoy rights to a more limited extent than non-Indigenous people – Racial Discrimination Act 1975 (Cth) s 10 – Alcohol Protection Orders Act 2013 (NT) s 6, s 9(2)(c) and s 11(2)

Alcohol Mandatory Treatment Act 2013 (NT)
Alcohol Protection Orders Act 2013 (NT)
Bail Act 1982 (NT)
Criminal Code (NT)
Liquor Act 1978 (NT)
Racial Discrimination Act 1975 (Cth)

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, applied

Sahak v Minister for Immigration and Multicultural Affairs (2002) 123 FCR 514, followed

Maloney v The Queen (2013) 252 CLR 168, distinguished

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, considered

Attorney-General of the Northern Territory and Anor v Emmerson and Anor (2014) 253 CLR 393; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; Gerhardy v Brown (1985) 159 CLR 70; Mabo v Queensland (No. 1) (1988) 166 CLR 186; Minister for Aboriginal affairs v Peko-Wallsend Ltd (1985) 162 CLR 24; Potter v Minehan (1908) 7 CLR 277; Western Australia v Commonwealth (Native Title Act case) (1995) 183 CLR 373, cited

REPRESENTATION:

Counsel:

Plaintiff:A Wyvill SC and C Lenehan

Defendant:J Renwick SC and S Brownhill SC

Solicitors:

Plaintiff:Northern Australian Aboriginal Justice Agency

Defendant:Solicitor for the Northern Territory

Judgment category classification:    B

Judgment ID Number:  Sou1508

Number of pages:  46

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

Munkara v Bencsevich & Ors [2015] NTSC 78

No. 77 of 2014 (21437457)

BETWEEN:

DENNIS MUNKARA

Applicant

AND:

NICHOLAS ALEXANDER BENCSEVICH

First Respondent

AND:

BEN STREETER
  Second Respondent

AND:

WINSTON MARTIN
  Third Respondent

AND:

ROBERT WHITTINGTON
  Fourth Respondent

AND:

ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY
    Intervener

CORAM:    SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 4 December 2015)

Introduction

1. On 8, 12 and 19 July 2014 the applicant was served with alcohol protection orders under s 6 of the Alcohol Protection Orders Act 2013 (NT). He has breached those orders on numerous occasions and prosecutions are pending against him in the Court of Summary Jurisdiction for those breaches.

2. By way of a further amended originating motion the applicant applied for the following orders from the Court.

   1.A declaration that:

   (a)the practical operation and effect of s 6 and further s 9(2) and s 11(2) of the Alcohol Protection Orders Act 2013 is such that Indigenous persons in the Territory do not enjoy, or enjoy to a more limited extent, rights enjoyed by persons of another race, colour or national or ethnic origin, namely the right to freedom of movement, to access public places, to privacy, and to equal treatment before tribunals and all other organs administering justice; and

   (b)as a result s 6 and further s 9(2)(c) and s 11(2) of the Act are of no effect by reason of s 10 of the Racial Discrimination Act 1975 (Cth).

   2.Orders in the nature of certiorari setting aside alcohol protection orders 142300, 142329 and 142411.

   3.Alternatively, declarations declaring invalid alcohol protection orders 142300, 142329 and 142411. 

3. The application was heard on 23, 24 and 25 February 2015. On 25 February 2015 I dismissed the application and said I would publish my reasons later. Following are my reasons for decision.

   The Alcohol Protection Orders Act

4. The Alcohol Protection Orders Act 2013 (NT) (the Act) was passed by the Legislative Assembly of the Northern Territory on 28 November 2013 and commenced operation on 20 December 2013.

5. In the Second Reading Speech the Minister stated, among other things, the following.

   [T]he Alcohol Protection Orders Bill 2013 is another step in the government’s continuing commitment to reduce crime and antisocial behaviour associated with alcohol abuse in the Northern Territory. Alcohol is a major factor in many cases of criminal behaviour in the Northern Territory, and this bill will add a strong new measure by providing police with the necessary powers to address criminal behaviour involving alcohol and deter family violence incidents involving offenders affected by alcohol.

   The bill represents another tool in the fight against alcohol-related crime and violence. It also complements other pioneering changes the Northern Territory government has introduced in tackling alcohol abuse and crime, such as the Alcohol Mandatory Treatment Act and the Sentencing Amendments (Mandatory Minimum Sentences) Act. While some tools exist to tackle alcohol related crime, they are mostly focused on antisocial behaviour and public order offending.

   The bill proposes new powers which provide police with a law enforcement tool to monitor offenders associated with alcohol-related crime and provides for offences to deter future offending on an individual level. Approximately 60 percent of Northern Territory Police Force responses to offences against the person are alcohol-related or domestic violence related. Approximately 70 percent of domestic violence breaches responded to are alcohol-related.

   The bill provides for a series of alcohol protection orders issued to an adult charged with an alcohol-related offence. The bill will operate through voluntary and non-voluntary orders issued by a police officer of the rank of sergeant or above, to an adult. The orders can last for 3, 6 or 12 months and will prohibit that adult from consuming or possessing alcohol or entering licensed premises except for employment.

   A breach of these conditions or a failure to comply with a valid direction given by a police officer will be an offence. A person guilty of breaching an order may be subject to penalties and, for those under a non-voluntary alcohol protection order the penalty may be imprisonment.

   ….

   The deterrent effect of the bill comes into effect through the powers it gives police to monitor and enforce orders, and the ability to charge adults who contravene the order with an offence. ….

   ….

   A person on bail may be subject to similar conditions in an alcohol protection order. However, an order will be able to be issued once a person is charged, and the conditions and powers of police provided for under the proposed bill can be enforced from that point.

   Because of the strong stance, the bill takes aim against people abusing alcohol and then committing criminal behaviour, it also provides clear and accessible avenues of review regarding the issuing of an order. ….

   ….

   It is clear that more action must be taken in the Territory to ensure we reduce crime and address the factors that lead to criminal and antisocial behaviour. Alcohol is clearly one of those factors. Gaps that exist in other schemes which are already operating have been specifically targeted by this bill through a concerted focus on the mix of criminal behaviour and alcohol on an individual level.

   This bill will complement other existing schemes like the mandatory treatment scheme and powers which already exist under the Police Administration Act and the Liquor Act. The Alcohol Protection Order Bill 2013 represents the next step in a progressive and planned government intervention on alcohol abuse and serious criminal offending.

6. The object of the Alcohol Protection Orders Act 2013 is to provide police with necessary powers to address and deter criminal behaviour involving alcohol on an individual level by making, monitoring and enforcing alcohol protection orders. The purpose of an alcohol protection order is not simply to stop an adult from drinking for the period of the order but to try and break the adult’s drinking pattern. Hence the increase in the length of the period that second and later alcohol protection orders are in force.

7. The Act empowers a police officer above the rank of sergeant[1] to issue an alcohol protection order to an adult who has been arrested, summonsed or served with a notice to appear in court for a ‘qualifying offence’ if the officer believes the adult was affected by alcohol when the adult did the thing that caused the arrest of the adult or the service of the summons or the giving of the notice to appear to the adult.[2] A qualifying offence is any offence punishable by a maximum sentence of imprisonment for six months or more, and includes the offence of breaching an alcohol protection order.[3]

8. The effect of an alcohol protection order is that the adult who is subject to the order is prohibited from possessing and consuming alcohol for the period of the order and, subject to specified exceptions (living or working in licensed premises), is prohibited from entering or being in licensed premises.[4] The definition of licenced premises is taken from s 4 of the Liquor Act 1978 (NT) and means any premises in respect of which a licensee is licensed. In the Northern Territory, licenced premises include licensed shops, sporting and entertaining centres and facilities, and airports.

9. An alcohol protection order is similar to a grant of bail with a condition that an adult shall not purchase, possess or consume alcohol while on bail. Under s 37B (1) of the Bail Act it is an offence for a person to breach a condition of their bail. The maximum penalty for the offence is a fine of 200 penalty units or imprisonment for two years.

10. The duration of an alcohol protection order depends upon when and how many times a previous alcohol protection order has been issued to a person. The first alcohol protection order issued to an adult is in force for a period of three months on and from the date it was issued unless supplanted by a second alcohol protection order.[5] A second alcohol protection order is in force for six months on and from the date it is issued.[6] A later alcohol protection order is in force for a period of 12 months from the date on which it is issued or from the date when the previous alcohol protection order ceases to be in force whichever is the later.[7] 

11. An alcohol protection order ceases to be in force if the adult to whom it was issued is no longer considered to have committed the qualifying offence.[8] This will occur if the adult is found not guilty of the qualifying offence at trial, the charges are withdrawn or dismissed, or the adult is not made liable to punishment in respect of the qualifying offence.[9]

12. Breaching a non-voluntary alcohol protection order issued by an officer is an offence punishable by a maximum penalty of imprisonment for three months or a fine of 25 penalty units.[10] Second and later alcohol protection orders can also be triggered by breaching an alcohol protection order. It is a defence to a prosecution for an offence against s 23(1), breaching an alcohol protection order, if the adult establishes a reasonable excuse.[11]

13. A person can seek reconsideration of the decision to issue an alcohol protection order. An application to a senior police officer, being an officer of or above the rank of Superintendent, can be made within three days of the date on which the alcohol protection order was issued.[12] The application for reconsideration must be made in writing and must set out the reasons why the person believes the decision to issue the alcohol protection order should not have been made.[13] The senior officer may reconsider the original decision in any way the senior officer considers appropriate.[14] The senior officer may decide to revoke or affirm the decision to issue the alcohol protection order.[15] The senior officer must do so within three days after the application for review is lodged.

14. If the senior officer confirms the decision to issue the alcohol protection order, an adult can apply to the Local Court for de novo review of the merits of that decision.[16] The application must be made within seven days of the adult receiving notice of the senior officer’s decision confirming the alcohol protection order.[17] The Local Court may confirm or set aside the senior officer’s decision.[18] If the senior officer’s decision is set aside, the alcohol protection order immediately ceases to be in force.[19]

15. The Act provides police officers with powers to enforce alcohol protection orders. A police officer, who reasonably believes that an adult subject to an alcohol protection order has recently consumed alcohol, may direct the adult to submit to a breath test.[20] If the adult fails to provide a sufficient sample of breath the officer may arrest the adult without warrant for failing to comply with that direction and detain the adult for the purpose of carrying out a breath analysis.[21] Failure to comply with that direction is an offence attracting the same penalties as a breach of an alcohol protection order.[22] It is also a ‘qualifying offence’.[23]

16. Further, a police officer, who reasonably believes that an adult subject to an alcohol protection order may be in possession of alcohol, may without warrant search the adult[24] and seize any container in the possession of the adult that the police officer reasonably believes contains alcohol.[25]

17. Between 18 December and 19 July 2014, 2,221 alcohol protection orders were issued by the police. Of these 1,921 orders or 86 percent of the orders were issued to Indigenous people.

18. During the same period there were 418 second alcohol protection orders made by the police. Of these 392 or 94 percent were issued to Indigenous people.

    Background to the alcohol protection orders served on the applicant

19. The applicant is an Aboriginal man from Garden Island in the Tiwi Islands. He was born on 19 February 1969. He is 47 years of age. He lives in the long grass and occasionally stays at the Air Raid Hostel and the Red Shield Accommodation in Mitchell Street. He visits St Vincent’s at Stuart Park and the Food Truck on the Esplanade for meals. He only weighs 49.9 kilograms. He receives $700.00 Disability Pension per fortnight. He has a 20 year history of alcohol consumption. He drinks most days to the point of intoxication. He has cerebella ataxia and is at risk of developing further chronic health issues associated with alcohol. He has a poor memory. He shows no insight in wanting to address his current lifestyle. As at 20 August 2013, he had 31 admissions to the Darwin Watch House for protective custody. On his last three admissions for protective custody before 20 August 2013, he had blood alcohol levels ranging from 0.169 to 0.332.

20. On 23 August 2013 the Alcohol Mandatory Treatment Tribunal made an order requiring the applicant to attend mandatory treatment and be income managed. The reasons given for making the order were:

    (a)You are an adult.

    (b)You are misusing alcohol. You have stated that you started drinking when you were 20 and have continued to do so on a regular basis. You have been taken into protective custody 31 times and on the last three occasions your recorded blood alcohol was indicative of consumption well above safe levels. You have stated that you drink every day and enjoy drinking parties.

    (c)As a result of your alcohol misuse you have lost the capacity to make appropriate decisions about your alcohol use and personal welfare. In addition to your high number of protective custody incidents you show no insight into the long term risk associated with regular alcohol misuse.

    (d)Your alcohol misuse is a risk to your health, safety or welfare and that of others. It has been assessed that you have cerebella ataxia and although you state that you eat regularly you are extremely underweight. It is recorded that you have sustained injuries to your head as a result of falling while intoxicated and you were stabbed last month [emphasis added].

    (e)You would benefit from a mandatory treatment order. An opportunity to be provided education and support around addressing your alcohol misuse and also addressing your health needs will be beneficial.

    (f)At this point in time there are no less restrictive interventions reasonably available for dealing with the risk mentioned in (d). The community based alcohol outreach program operated by Catholic Care in Tiwi is not an authorised community treatment provider under the Act.

21. Between 23 August 2013 and 20 September 2013 the applicant received treatment for alcohol misuse at the Darwin Alcohol Assessment Treatment Service under the Alcohol Mandatory Treatment Act 2013 (NT). He successfully completed the mandatory alcohol treatment without absconding. After he completed the treatment he then returned to the Tiwi Islands before returning to Darwin and again falling into a heavy drinking pattern. Four days after his release from Darwin Alcohol Assessment Treatment Service the applicant was found drinking alcohol in a restricted area. Between 20 September 2013 and 3 January 2014 there were 11 police presentations by the applicant for the misuse of alcohol.

22. On 10 January 2014 the applicant was ordered to submit to a three month period of mandatory alcohol treatment at Darwin Alcohol Assessment Treatment Service under the Alcohol Mandatory Treatment Act 2013 (NT). During the course of this treatment he absconded six times.

23. The applicant is banned from being admitted to the sobering up shelter.

24. Between 1998 and 2012 the applicant was convicted of 16 offences that he committed in or near Darwin including, two convictions for unlawful entry, five convictions for stealing, one conviction for receiving stolen property, three convictions for damage property and five convictions for aggravated assault. He also breached a suspended sentence on four occasions and breached bail on four occasions. His last conviction was for an assault that he committed on 13 April 2012. He was sentenced to three months imprisonment back dated to 5 May 2012, which terminated on 4 August 2012. He last committed a property offence on 5 June 2007.

25. At 7.50 pm on 7 July 2014 the applicant attended the Coles Supermarket in the Mitchell Centre in Darwin. He walked into the store and took a bread roll, silverside meat, and a 500 ml Paul’s orange juice with a total value of $4.20 before leaving the store without paying for the goods. He was seen by a security guard who approached him and asked if he wanted to pay for the goods. The applicant shook his head and said “No” before walking to a nearby bench where he began to eat the food. The security guard saw Sergeant Benscevich, who was nearby, and told him what had occurred. At 8.00 pm Sergeant Benscevich arrested the applicant for stealing the goods. The applicant showed signs of intoxication at the time he was arrested.

1. On the same day he was presented on information and charged with committing an offence contrary to s 210 of the Criminal Code (NT). The offence carries a maximum penalty of imprisonment for seven years. The charge was withdrawn on 21 October 2014.

2. Later on 7 July 2014, Constable Mole applied for an alcohol protection order and the first alcohol protection order (order no. 142300) was issued by Sergeant Benscevich. The decision to issue the first alcohol protection order appears to be based solely on the arresting officer’s, Sergeant Benscevich’s, satisfaction that the applicant was affected by alcohol at the time he committed the crime of stealing. The bail documents which were completed by Constable Mole contain a notation that the applicant “has no regard for the community and will continue to commit offences without any remorse or care” but no such notation appears on the documents which were created when the first alcohol protection order was issued. The first alcohol protection order was served on the applicant on 8 July 2014. 

3. On 11 July 2014, police saw the applicant drinking in Tamarind Park with a group of people. Senior Constable Joshua Robinson approached the applicant and saw that he was intoxicated. Constable Forsyth subjected the applicant to a breath test which produced a reading of 0.258% BrAC. The applicant was arrested for breaching s 6 of the Alcohol Protection Orders Act 2013. He was subjected to a further breath test and analysis which returned a reading of 0.248 grams of alcohol in 210 litres of breath. He was charged with breaching the first alcohol protection order and bail was considered. 

4. Later that day, Constable Forsyth applied for a second alcohol protection order to be issued to the applicant for a period of six months. The second alcohol protection order (order no. 142329) was issued by the second respondent, Acting Sergeant Ben Streeter, and served on the applicant by police officer Winston Martin, the third respondent, on 12 July 2014. The qualifying offence was breaching the first alcohol protection order by consuming alcohol. The first alcohol protection order ceased to have effect when the applicant was served with the second alcohol protection order. The decision to issue the second alcohol protection order appears to be based solely on Acting Sergeant Streeter’s satisfaction that the applicant was affected by alcohol at the time he committed the offence of breaching the first alcohol protection order.

5. On 18 July 2014 the applicant came to the attention of the police because of his high level of intoxication. He staggered when he attempted to walk and was unable to care for himself. He was placed in protective custody and taken to the Darwin Watch House. At the conclusion of his period of protective custody he was charged with breaching the second alcohol protection order.

6. On 19 July 2014 the applicant was on The Esplanade with a group of people. Constable Ashleigh Bellenger approached him and saw that he was intoxicated. He was arrested and taken to the Darwin Watch House where he was subject to a breath test which returned a positive result of 0.303 BrAC. He was then charged with breaching the second alcohol protection order and bail was considered.

7. Constable Harrop applied for a later alcohol protection order to issue to the applicant. The issue of the order (order no. 142411) was authorised by Acting Sergeant Ben Streeter and served on the applicant by the fourth respondent, Sergeant Robert Whittington, on 19 July 2014. 

8. The first alcohol protection order expired on 12 July 2014. The second alcohol protection order was in force between 12 July 2014 and 10 January 2015. The later alcohol protection order is in force for a period of 12 months from 10 January 2015.

9. Each of the three alcohol protection orders is signed by the police officer who served the order on the applicant and contains a description of that police officer as the “Officer serving and explaining the order”. It may be inferred that each of the police officers who served an alcohol protection order on the applicant explained the contents of the order to the applicant. If they did not do so, that failure may provide a reasonable excuse for the applicant contravening the alcohol protection order. 

10. The applicant has been arrested and charged with breaching the second alcohol protection order 17 times and for breaching the later alcohol protection order three times.

    The first contention of the applicant

11. The first contention of the applicant was that each of the three alcohol protection orders is void because the officers who made the orders acted beyond the scope of the power granted to them under s 6 of the Alcohol Protection Orders Act 2013. It was submitted that the issue of each alcohol protection order was a disproportionate and therefore unreasonable exercise of power. The applicant contends that it must have been evident to the officers who issued or authorised the issue of the alcohol protection orders that the orders would not further the purpose of the Act because the applicant was unlikely to commit a serious offence in the future and he was not going to comply with the orders. The outcome of the orders would be punitive not preventative.

12. This contention is based on the following propositions. The two express mandatory constraints contained in s 6(a) and (b) of the Alcohol Protection Orders Act 2013 are not the only applicable statutory constraints on the exercise of an officer’s discretion to issue an alcohol protection order. These constraints are merely anterior constraints beyond which there is an area of decisional freedom. This area of decisional freedom is not unbounded. It is subject to a number of implied constraints. The primary implied constraint is that the power must be exercised reasonably and therefore must be a proportionate response to the conduct that caused the arrest of the adult, or the service of the summons or the giving of the notice to appear to the adult. The order must be a proportionate response which recognises: (1) the risk, or likelihood, of the adult engaging in alcohol-related reoffending, (2) the extent of harm likely to occur if the adult reoffends; and (3) the consequences of the adult being made subject to an alcohol protection order. Finally, an alcohol protection order cannot be made for the sole purpose of punishing an offender. The orders are intended to be preventative not punitive.

13. It was submitted that before an officer can issue an alcohol protection order the officer must be satisfied that: (1) there is a risk of the adult committing a sufficiently serious alcohol-related crime during the period the alcohol protection order will be in force; (2) the alternatives to issuing an alcohol protection order are inadequate to deal with the risk of reoffending; and (3) the prospects of an alcohol protection order preventing the adult from drinking alcohol are sufficiently high.

14. The implied constraints were said to be based on the principle of legality and the principle that there is, as the High Court said in Minister for Immigration and Citizenship v Li,[26] a presumption of law that Parliament intends an exercise of power to be reasonable. The legal standard of unreasonableness is not limited to what is in effect an irrational, if not bizarre, decision and includes a disproportionate exercise of an administrative decision that exceeds what, on any view, is necessary for the purpose it serves.[27] The indicia of legal reasonableness are to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case. Where discretions are ill-defined (as commonly they are) it is necessary to look at the scope and purpose of the statute conferring the discretionary power and its real object. The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.[28]

15. The factors referred to at [37] and [38] were said to arise out of the statutory decision making context of the Alcohol Protection Orders Act 2013. The applicant submitted that the purpose of the Act was to stop adults who offend while affected by alcohol from consuming alcohol. The Act achieved this by targeting possession as well as consumption, preventing the offending adult from going onto licensed premises and by granting policing powers to ensure that the terms of the order are observed by the adult. The applicant then drew on the Second Reading Speech to establish the following propositions. The purpose of the Act was not to deal with antisocial behaviour and public order offending, which were adequately dealt with by existing legislation, but to deal with serious violent offending and domestic violence at an individual level. The Act does not deal with theft, but with violent offending. According to the applicant, the Second Reading Speech acknowledges the serious nature of remedies granted by the Act. It is contended that it may be inferred that the Act is only to apply to serious offences.

16. It was further submitted that the decision of each of the officers to make an alcohol protection order against the applicant was unreasonable because the consequences for the applicant were serious, and there was an insufficiently clear likelihood of the applicant committing a further serious offence and complying with the orders to justify the issue of the orders. In summary, there was an insufficiently clear prospect that the orders would have utility in achieving the objects of the Act.

17. There was no clear risk of the applicant committing a serious offence while affected by alcohol because the first qualifying offence committed by the applicant was a very low range property offence; he had not committed a violent offence or another serious offence since 2012; and his most recent offending before he committed the first qualifying offence was for escaping a mandatory alcohol rehabilitation program. All of his offending over the previous 12 months involved minor nuisance offending.

18. The applicant submitted there was no clear prospect of an alcohol protection order having any utility in the case of the applicant because the pattern of his offending over the 12 months before he committed the first qualifying offence showed him to be a person who had no control over, or chose not to control, his consumption of alcohol. The applicant’s recent offending, which involved six escapes from mandatory rehabilitation treatment for alcohol misuse, demonstrated that the applicant was not prepared to accept treatment that involved abstinence from alcohol.

19. As to the proposition that alcohol protection orders could not be used to punish the applicant, it was submitted that it is a long established fundamental principle of our legal and constitutional arrangements that punishment is quintessentially a function of the courts not the Executive. Absent irresistible clarity of expression, the provisions of a statute should not be construed so as to delegate the power of punishment to the Executive.[29]

20. The applicant submitted that if the issuing of an alcohol protection order to an adult had only one effect, and that was to punish the adult, the order would be void. If there is no reasonable possibility of an adult complying with an alcohol protection order, the preventative object of the Act cannot be obtained. The only effect of an order, in those circumstances, is to punish the adult which is a function of the courts not the Executive. In that event, the appropriate course for the officer considering whether to issue an alcohol protection order is to consider granting the adult bail or remanding the adult in custody.  

21. The applicant submitted that the principle of legality operated to constrain the grant of power, requiring officers to undertake two inquiries before issuing an APO. First, an officer must consider and reject as unsuitable any alternative less invasive options to the issue of an APO order. Second, the officer must consider the likely harm that would result to the community if the APO was not issued.

22. Counsel for the applicant submitted that the effect of each of the three alcohol protection orders served on the applicant was punitive because there was no reasonable prospect of the applicant complying with those orders. The sole impact of the orders was to create a whole range of continuing offences which rendered the applicant liable to imprisonment. Because there was no reasonable basis to assume that he would comply with the orders, the only thing to be achieved was that the applicant would be subject to repeated charges for breaching the alcohol protection orders. It was acknowledged by the police in the Folio L/30 – Considerations in Relation to Bail, that “the defendant has no regard for the community and will continue to commit offences without any remorse or care.”

    The first alcohol protection order

23. As to the first alcohol protection order, the applicant relied on the low level of the stealing offence he allegedly committed on 7 July 2014 and his criminal history, which showed he had not committed a sufficiently serious offence since 2012, to try and establish that it was unlikely that he would commit a serious offence in the future. The applicant relied on his history of living in the long grass, his chronic and severe alcoholism, his escapes from mandatory treatment, and the statement contained in Folio L/30 – Considerations in Relation to Bail, that “the defendant has no regard for the community and will continue to commit offences without any remorse or care” to try to establish that he was unlikely to comply with an alcohol protection order. Further, the applicant submitted that the statement made by the officer in Folio L/6 Application for an Alcohol Protection Order that: “I am satisfied on the information before me that this adult was affected by alcohol at the time of the commission of the qualifying offence. I issue/authorise the issue of an Alcohol Protection Order.” demonstrates that the officer who issued the order only gave consideration to the matters in s 6(a) and (b) of the Alcohol Protection Orders Act 2013 before he made the first alcohol protection order.

24. Consequently, it was said the decision to make the first alcohol protection order was unreasonable. It was a disproportionate decision which failed to take into account the relevant implied considerations referred to in paragraph 37 of the written Submissions of the Plaintiff.

    The second alcohol protection order

25. As to the issue of the second alcohol protection order, the applicant submitted that the pointlessness of this order is even more apparent than the pointlessness of the first alcohol protection order. The incident which gave rise to the order was benign. The applicant was simply drinking alcohol with others in Tamarind Park. The applicant stated he had been drinking to celebrate NAIDOC week. He was given a breath test which produced a reading of 0.248 BrAC.

26. The applicant submitted that the fact that he was apprehended peacefully while he was in a drunken state indicates that he was a very low risk of reoffending for anything except a breach of an alcohol protection order and it was manifest that he was not going to comply with the terms of an alcohol protection order.

    The later alcohol protection order

27. As to the later alcohol protection order, the applicant submitted that the incident which gave rise to this order was again benign. The applicant was with a group of Indigenous people on The Esplanade. They were surrounded by rubbish. The police spoke to the applicant. They saw he was intoxicated and when he stood up there was an empty bottle of whiskey under his feet. The applicant was arrested and taken to the Darwin Watch House where he was subjected to a breath test which returned a result of 0.303 BrAC. It was noted on the Considerations in Relation to Bail form that the applicant’s criminal history was not relevant to this matter and that, “This is his second breach of an APO within 8 days. He appears to have no regard for court or police imposed orders and is likely to continue to reoffend.”

28. The applicant submitted that by this stage it was even more clearly demonstrated that the risk of the applicant committing an offence, other than a breach of an alcohol protection order, was unlikely and the pointlessness of the alcohol protection orders was even more apparent.

    Consideration of the applicant’s first contention

29. When considering the first contention of the applicant, it is necessary to take note of two important principles. First, the considerations a decision maker is bound to consider in making a decision, the relevant considerations, are determined by construction of the statute conferring the discretion, and Parliament may expressly state the considerations that must be taken into account.[30] Second, “the legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is to be addressed is whether the statutory power has been abused.”[31]

30. The first contention of the applicant cannot be sustained because it is contrary to the true construction of the statute. The decision making context created by the Alcohol Protection Orders Act 2013 does not require an officer to be satisfied of the existence of the matters stated in paragraph 37 a. and b. of the written Submissions of the Plaintiff before exercising the power granted by s 6 of the Act. There is no textual basis for the implications contended for by the applicant; nor do they arise from the subject matter, scope or purpose of the statute. Parliament has expressly stated the mandatory considerations to be taken into account. Those considerations are contained in s 6(a) and (b) of the Act and set the standard of reasonableness to be applied. An adult must have been arrested, summonsed or issued with a notice to appear for an alleged qualifying offence and the officer must believe that the adult was affected by alcohol when the adult did the thing that caused the arrest or the service of the summons or notice of appearance. Beyond these two requirements, the Act confers a broad discretion on officers to issue alcohol protection orders for the purpose of deterring alcohol-related offending.

31. The object of the Alcohol Protection Orders Act 2013 is to deter adults who fall into the category specified in s 6 of the Act from committing further alcohol-related offences by subjecting them to alcohol protection orders which an officer has determined to issue, and which command the adult not to consume alcohol or enter premises where alcohol is sold, on pain of a maximum penalty of three months’ imprisonment for breaching the order. Parliament considers that alcohol is such a significant criminogenic factor that it has also given police the power to make, monitor and enforce alcohol protection orders.

32. Further, the notions of a sufficiently high risk, sufficiently serious offence, and sufficiently high prospect of compliance contended by the applicant are so general as to be indeterminate and of little or no assistance in determining whether or not to make an alcohol protection order. They serve little purpose other than to impermissibly constrain the broad discretion granted by the Alcohol Protection OrdersAct 2013 for the purpose of deterring alcohol-related crime at or above the level specified in the Act.

33. The Alcohol Protection OrdersAct 2013 expressly specifies the level of offence that must be committed by an adult before an alcohol protection order can be made. An offence must be an offence which is punishable by imprisonment for six months or more, or conduct which contravenes an alcohol protection order or a direction given by a police officer under s 18(1) of the Act. An offence against s 23 of the Act has a maximum penalty of only three months’ imprisonment. Section 6 of the Act makes it clear that a qualifying offence includes an offence which may be prosecuted pursuant to a summons or a notice to appear. Offences which are prosecuted by way of summons or notice to appear tend to be relatively low level offences, not serious violent offences.

1. Further, the fact that an officer may deal with alcohol-related crime in a number of ways is not a basis for restricting the discretion given to an officer under s 6 of the Alcohol Protection Orders Act 2013. The Act simply provides officers with another tool to deal with alcohol-related crime. It is for the officer to determine the best course of action. In this case, numerous incidents of protective custody and mandatory alcohol treatment have not stopped the applicant from committing alcohol-related criminal offences, including the offence of stealing. The alternatives of bail or remand suggested by the applicant are unlikely to be less onerous for an adult than being subjected to an alcohol protection order. It is not uncommon in cases involving alcohol-related crime for conditions of bail to include a condition that the adult does not consume alcohol while on bail. A breach of bail is punishable by imprisonment of up to two years. Remand is considered to be a greater hardship than serving a sentence of imprisonment. The police have authority to confiscate alcohol that is being consumed in a restricted area under the Liquor Act and to search adults who are taken into protective custody under the Police Administration Act before they are processed and placed in a cell. It is arguable that the police had little option other than to make the alcohol protection orders.

2. As to the consideration referred to in paragraph 37 b. of the written Submissions of the Plaintiff, the Alcohol Protection Orders Act 2013 contemplates that some adults will not comply with alcohol protection orders. Adults who commit alcohol-related criminal offences often have a demonstrated propensity to break the law. Non-compliance with alcohol protection orders is to be dealt with by monitoring and enforcement. A breach of the conditions of an alcohol protection order or a failure to comply with the directions of a police officer is an offence punishable by up to three months imprisonment. The deterrent effect of the Act comes into effect through the powers it gives to police to monitor and enforce orders and charge adults who are non-compliant. Parliament considers the consumption alcohol to be such a significant cause of criminal behaviour in the Northern Territory that the legislature has taken a strong stance against adults who commit criminal offences while affected by alcohol. It cannot be right that because an adult decides they are not going to comply with a provision of the criminal law the law becomes inapplicable to that adult. The proposition that persistent offending is a reason to stop administering the criminal law is very novel. It is only necessary to state the proposition to reject it.

3. The three alcohol protection orders in this case met the standard of reasonableness set by the Alcohol Protection Orders Act 2013. The power granted by s 6 of the Act was exercised by each of the officers in good faith for the purpose for which the power was granted. The fact that the orders have not stopped the applicant from consuming alcohol or that there was a real risk that the applicant may not comply with the alcohol protection orders does not make the decisions to make the orders unreasonable. Nor does the fact that the offender deliberately committed breaches of the alcohol protection orders make the orders disproportionate. There are no incomprehensible errors in the orders which were made nor do the orders themselves bespeak error. Nor is there any basis to conclude that the decisions to issue the orders were obviously disproportionate. The statutory power granted by s 6 of the Act was not abused. There was an evident and intelligible justification for making each of the orders.

4. Further, the applicant has not established that there was an insufficiently high risk, or low risk, of him reoffending by committing a sufficiently serious alcohol-related crime; and he does have some capacity to stop consuming alcohol for periods of time while under supervision.

5. The applicant has a demonstrable propensity to break the law and commit offences when affected by alcohol. He has a criminal history that is nine pages long, commences in 1988 and contains a number of convictions for serious offences, including five convictions for assault. Given the length of time that the applicant has had a problem with the misuse of alcohol, it is highly likely that he was affected by alcohol when he committed most of his offences. The static features in the applicant’s offending profile, his lack of insight into the dangers of alcohol consumption and lack of preparedness to change the dynamic features in his offending result in the applicant being at least a moderate risk of reoffending. This conclusion is supported by the applicant’s numerous breaches of the alcohol protection orders.

6. Contrary to the assertions of the applicant, the fact that the only offences he committed between 8 and 19 July 2014 were breaches of his alcohol protection orders does not demonstrate that there was no risk of him reoffending by committing offences other than breaches of his alcohol protection order. That period is too short to establish such a conclusion. Nor does the fact that the only offences committed by the applicant since he committed the assault on 13 April 2012 were breaches of the Alcohol Mandatory Treatment Act 2013, the stealing on 7 July 2014, which was ultimately withdrawn, and breaches of alcohol protection orders, establish that there is no such risk. While the offence of stealing for which the applicant was arrested on 7 July 2014 is very much towards the lower end of the range of such offences, the maximum penalty for an offence contrary to s 210 of the Criminal Code is imprisonment for seven years, such offences are prevalent, and the costs of such offending places a significant burden on shop owners. There have been significant gaps in the applicant’s offending in the past and he has reoffended by committing serious offences. In August 2013 and January 2014, the Alcohol Mandatory Treatment Tribunal was satisfied that the applicant’s misuse of alcohol was a risk to his health, safety or welfare and that of others.

7. Even if a consequentialist view is taken, the applicant’s assertion that the prospects of an alcohol protection order stopping him from consuming alcohol were not sufficiently high misses the point and disregards how the Alcohol Protection Orders Act 2013 is structured. While it is true that the alcohol protection orders of themselves have not stopped the applicant consuming alcohol to date, the applicant is still to be dealt with for the offences he has allegedly committed by breaching the alcohol protection orders. Once the applicant has been dealt with by the Court of Summary Jurisdiction for any proven breaches of his alcohol protection orders, the Act contemplates his attitude may well change or the community will otherwise be protected from alcohol-related crime. The applicant has a demonstrated capacity to stop consuming alcohol for periods of time. He did so successfully for one month during treatment when he was subject to the first mandatory treatment order made against him. He did so again for a number of short periods during treatment while he was subject to the second mandatory treatment order made against him. It is also to be accepted that punishing the applicant for breaches of his alcohol protection orders will have a general deterrent effect that will discourage others who are subject to alcohol protection orders from breaching their orders.

8. The making of the second and later alcohol protection orders involves a similar logic to extending the period of supervision specified in a suspended sentence of imprisonment of an adult for breaches of conditions of no consumption of alcohol or drugs. The view taken in those circumstances is that the adult needs further supervision to overcome a significant criminogenic risk in the adult’s offending behaviour. The purpose of the order is to facilitate the adult’s rehabilitation and to protect the community from alcohol-related crime.

9. The fact that each of the officers who issued the alcohol protection orders only took into account the provisions of s 6 of the Alcohol Protection Orders Act 2013 does not constitute an error in this case. They considered the mandatory factors they were required to consider and it is for the applicant to prove that the decisions were unreasonable. The applicant has not done so. The matters raised by the applicant are matters which may be considered in a merits review. The applicant could have reviewed the merits of the decisions to issue the alcohol protection orders under the review provisions created by the Act but did not do so. The applicant still has the defence of reasonable excuse under s 23(4) of the Act available to him when he is dealt with for the breaches of the alcohol protection orders.

10. The fact that people may disagree with the course chosen by Parliament or the effectiveness of the course chosen by Parliament, or that this Court, or other officers, may have considered the matters referred to in paragraph 37 of the written Submissions of the Plaintiff and not made the alcohol protection orders, does not make the decisions to make the orders unreasonable. The function of this Court is to construe the statute and determine whether any of the decisions to issue the alcohol protection orders involved legal or manifest unreasonableness. The orders did not do so.

11. As to the principle of legality, it simply has no application in the case. It is manifest from the provisions in s 6, s 18 and s 19 of the Alcohol Protection OrdersAct 2013 that Parliament not only directed its attention to the rights affected by the Act but determined that the rights affected should be curtailed in the circumstances clearly specified by the Act.

12. The applicant’s submission, which was based on senior counsel for the applicant’s submissions to the High Court in the Attorney-General of theNorthern Territory and Anor v Emmerson and Anor,[32] and was an extension of the applicant’s submission relying on the principle of legality, cannot be sustained either. While it is true that it is an important common law principle that the adjudging and punishment of criminal guilt is traditionally a judicial function which is not to be delegated to the Executive without the clearest of legislative provisions, the making of an alcohol protection order is not punitive in character but preventative or protective in character and does not involve an exercise of judicial power. The making of an alcohol protection order does not involve adjudging and punishing criminal guilt. Therefore, there has been no delegation to the Executive under the Alcohol Protection Orders Act 2013 which is inconsistent with that principle. Nor was it suggested by the applicant that the officers who made the alcohol protection orders did so with the intention or purpose of punishing the applicant. If they did so, that may be a reviewable abuse of power. The fact there was a real risk that the applicant may not have complied with the orders and the applicant has now breached the orders on numerous occasions, does not alter the character of the orders that were made in this case.

13. Further, while adjudicating and punishing criminal guilt is an exclusively judicial function at the Federal level, there is no separation of powers in the Northern Territory. Consequently, even if the power to make an alcohol protection order were to be characterised as punitive, s 6 of the Act would not be invalid by reason of the principle of legality or otherwise. As I have stated above, Parliament has clearly curtailed the rights involved once the relevant circumstances are established.

14. Finally, for the reasons stated above, the principle enunciated in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs[33] does not provide a basis for implying a constraint that an alcohol protection order can only be made if “less punitive” alternative mechanisms available to the police are inadequate to control the risk of the adult reoffending. Nor does it provide a basis of implying a constraint that an alcohol protection order cannot be made if there is a risk that the only outcome of the order will be that the adult will be punished for breaching the orders but will not be stopped from consuming alcohol.

    The second contention of the applicant – inconsistency with s 10 of the Racial Discrimination Act

15. The applicant’s second contention was mounted against the legislative scheme itself. It was submitted that s 6, s 9(2)(c) and s 11(2) of the Alcohol Protection Orders Act 2013 are ineffective by reason of s 10 of the Racial Discrimination Act 1975 (Cth).

16. Subsection 10(1) and (2) of the Racial Discrimination Act 1975 (Cth) state as follows.

    (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.

17. As explained by Mason J in Gerhardy v Brown,[34] the operation of s 10(1) of the Racial Discrimination Act 1975 (Cth) upon State and Territory law may be conveniently considered by reference to two broad classes of case. First, cases where a State or Territory law omits to make enjoyment of the right universal by failing to confer it on persons of a particular race or by conferring the right to a more limited extent on persons of a particular race. Second, cases where a State or Territory law prohibits or limits the enjoyment of a right by persons of a particular race. In the first class of case s 10 operates to confer the right on persons of the 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 or Territory law. In the second class of case there is an inconsistency between s 10 and the State or Territory law and s 10 operates to confer the right prohibited or limited by the State or Territory law. To that extent, the State or Territory law becomes ineffective.

18. Section 10 of the Racial Discrimination Act 1975 (Cth) is not confined to laws which expressly make a distinction based on race. The section is directed to the discriminatory operation and effect of the legislation that is subject to challenge.[35] In Mabo [No 1][36] his Honour Deane J explained the meaning and application of s 10 of the Racial Discrimination Act 1975 (Cth) in the following way.

    …As its opening words (‘if, by reason of …’) make clear, it is concerned with the operation and effect of the laws. In the context of the nature of the rights which it protects and of the provisions of the … Convention which it exists to implement, the section is to be construed as concerned not merely with matters of form but with matters of substance, that is to say, with the practical operation and effect of an impugned law.[37]

    Section 6 of the Alcohol Protection Orders Act 2013

19. The applicant submits that s 6 of the Alcohol Protection Orders Act 2013 falls within the second class of cases referred to in Gerhardy v Brown. Further, the applicant submits that s 6 of the Act needs to be considered in the following context. Twenty-seven percent of the Territory’s population of 211,944 is recorded as Indigenous. The misuse of alcohol is a major problem for a significant number of Indigenous people in the Northern Territory. It is one of the main causes of their disadvantage as a race. As a result of their disadvantage, Indigenous people are more likely to commit criminal offences while affected by alcohol than non-Indigenous people. Between the commencement of the Alcohol Protection Orders Act 2013 and 19 July 2014 there were 2,221 alcohol protection orders issued. Of these, 1,921 orders, or 86 percent of orders, were issued to Indigenous people. Over the same period there was approximately 418 second alcohol protection orders issued. Of these, at least 392, or 94 percent, of second alcohol protection orders, were issued to Indigenous people. From these facts, the applicant says that it may be concluded that alcohol protection orders overwhelmingly impact on Indigenous people in the Northern Territory and the Alcohol Protection Orders Act 2013 operates to burden the enjoyment of human rights by Indigenous people to a greater extent than non-Indigenous people. The greater likelihood of an Indigenous person in the Territory being issued with an alcohol protection order than a non-Indigenous person establishes the direct relationship between the practical operation of the law and the differential enjoyment of human rights. The relevant human rights are the rights to freedom of movement, to access to public places, to privacy and to equal treatment before the tribunals and all other organs administering justice.

20. This submission of the applicant cannot be sustained because s 6 the Alcohol Protection Orders Act 2013 does not have the practical operation and effect required by s 10(1) the Racial Discrimination Act 1975 (Cth). The Alcohol Protection Orders Act 2013 has no operation or effect unless an adult engages in conduct which amounts to a qualifying offence while affected by alcohol and is arrested, summonsed or served with a notice to appear in court. Neither criminal offending, nor the consumption of alcohol, is a function of race. The operation of the Act is neutral as to race. The Act applies to all adults, regardless of their race, who engage in conduct which constitutes a qualifying offence while they are affected by alcohol. The fact that, since the commencement of the Alcohol Protection Orders Act 2013, more Indigenous people have engaged in conduct which brings them under the Act does not mean the Alcohol Protection Orders Act 2013 has the discriminatory effect required by s 10(1) of the Racial Discrimination Act 1975 (Cth). The Act only affects the human rights of Indigenous people who have engaged in certain conduct in certain circumstances, none of which are a function of race. The Act affects the rights on non-Indigenous people equally in the same way. The human rights of all Adults are only affected by reason of their conduct not by reason of s 6 of the Alcohol Protection Orders Act 2013.

21. Section 6 of the Alcohol Protection Orders Act 2013 is consistent with rule of law principles. The provisions contained in the Act are general, equal and certain. Generality requires that the law be set out in advance in abstract terms not aimed at any particular individual. The law then applies to everyone whose conduct falls within the proscribed/prescribed conditions of application. Equality requires that the law applies to everyone without making arbitrary distinctions among people. Certainty requires that those who are subject to the law are able to predict reliably what legal rules will be found to govern their conduct and how those rules will be interpreted and applied. Predictability enables freedom of action.

22. Section 6 of the Alcohol Protection Orders Act 2013 operates in a similar manner to virtually all provisions of the criminal law in the Northern Territory. Unfortunately, for largely historical reasons which have resulted in considerable disadvantage for many, Indigenous people in the Northern Territory are more greatly affected by the workings of the criminal law than non-Indigenous people. The percentage of Indigenous people in prison mirrors the percentage of Indigenous adults who are subject to alcohol protection orders.

1. The legislation in this case is clearly distinguishable from the legislation considered by the High Court in Maloney v The Queen.[38] It is so for the following reasons. I have taken the summary set out below from the judgment of his Honour Gaegler J in Maloney v The Queen.[39]

2. The provisions of the Liquor Act (Qld) and the Liquor Regulation 2002 (Qld) which were considered by the High Court in Maloney v The Queen were introduced into that Act and Regulation by the Indigenous Communities Liquor Licences Act 2002 (Qld) and were part of the Queensland Government’s response to the Cape York Study Report prepared by the Hon Tony Fitzgerald. That report said of Indigenous communities in North Queensland: “Alcohol abuse and associated violence are so prevalent and damaging that they threaten the communities’ existence and obstruct their development.” The legislatively expressed purpose of the Indigenous Communities Liquor Licences Act 2002 (Qld) was to “prevent harm in community areas caused by alcohol abuse and misuse and associated violence” (s 3(1)). The “community areas” that were the focus of the 2002 Act were defined to encompass community areas within the jurisdiction of Aboriginal councils under the Aboriginal Communities Act (Qld) and community areas within the jurisdiction of Island councils under the similarly structured Community Services (Torres Strait) Act 1984 (Qld). Those communities became local government areas and community government areas under the Community Government Areas Act (Qld) as well as communities under the Aboriginal Communities Act (Qld).

3. The Liquor Act (Qld) contained provision for making regulations. Schedule 1R of the Liquor Regulation was headed “Palm Island”. It was inserted by Liquor Amendment Regulation (No 4) (Qld). Schedule 1R stated that “the community area of Palm Island Shire Council” was a restricted area, as was the foreshore of that community area and the Palm Island Jetty. It prescribed the quantity of alcohol for each of those areas to be 11.25 litres for beer with an alcohol concentration of less than four percent and zero for any other alcohol save only that for the Palm Island Canteen the prescribed quantity of beer with an alcohol content of less than four percent was to be any quantity. All but some three percent of the residents of Palm Island are Aboriginal persons.

4. Against the above background his Honour Gaegler J made the following statements in Maloney v The Queen about the practical operation and effect of the Queensland legislation.

   The simple fact was that, on 31 May 2008, Aboriginal persons living within the community government area of Palm Island were wholly prohibited from possessing alcohol in any public place within the community government area in which they lived unless they had applied in writing for a permit to do so and, having been granted that permit, possessed the alcohol only for a purpose authorised by the permit. Non-Indigenous persons living in local government areas elsewhere in Queensland ordinarily had unrestricted freedom to possess alcohol in public places within the local government areas in which they lived.

   The enjoyment by Aboriginal persons living on Palm Island of the human rights "to own property" (listed in Art 5(d)(v) of the Convention) and "of access to any place … intended for use by the general public" (listed in Art 5(f) of the Convention) was thereby more limited than the enjoyment of those same human rights by non-Indigenous persons living in local government areas elsewhere in Queensland. That disparity in the enjoyment of human rights was inconsistent with persons of those two races being afforded equal dignity and respect. It is not necessary to the analysis to consider whether Aboriginal persons living on Palm Island thereby also suffered a diminution in their relative enjoyment of the human right to equal protection of the law and it is unnecessary to the analysis to consider whether Aboriginal persons living on Palm Island were thereby subjected also to a diminution in their relative enjoyment of some other human right. Nor is it necessary to inquire whether the differential enjoyment of the identified human rights by Aboriginal persons living within the community government area of Palm Island was so extreme as to amount to an impairment or infringement of those human rights.

   The direct cause of that differential enjoyment of human rights by Aboriginal persons living on Palm Island on 31 May 2008 was the existence in force on that date of Sched 1R to the Liquor Regulation. The Schedule was geographically targeted to affect only a single community government area, the population of which was overwhelmingly Aboriginal. Its practical impact on that population was neither accidental nor incidental. The Liquor Regulation was brought into existence in an attempt to prevent harm arising from alcohol-related conditions and behaviours perceived generally to exist within indigenous communities but not perceived generally to exist elsewhere in Queensland. Schedule 1R was inserted and tailored specifically to address conditions and behaviours perceived to exist within the indigenous community on Palm Island. Geography was used as a proxy for race.

   It is not to the point that the small percentage of non-Aboriginal persons living within the community government area of Palm Island were subjected by Sched 1R to the same restriction and were therefore subjected to the same diminution in their enjoyment of human rights relative to non-Indigenous persons living in local government areas elsewhere in Queensland. Racial targeting is not negated by some persons of other races being caught in the net.

5. Similar comments were made by the other Judges[40] of the High Court in Maloney v The Queen about the direct effect of s168B of the Liquor Act (Qld) and Schedule 1R of the Liquor Regulation (Qld) on the human rights of the Aboriginal people on Palm Island. Section 6 of the Alcohol Protection Orders Act 2013 does not have the same practical and operational affect as the Queensland legislation. The impact of the Alcohol Protection Orders Act 2013 on the rights of Indigenous people in the Northern Territory is not a direct outcome of the legislation itself.

   Sections 9(2)(c) and 11(2) of the Alcohol Protection Order Act 2013

6. Subsection 9(1) of the Alcohol Protection Orders Act 2013 grants adults a right to apply to a senior officer for a reconsideration of an officer’s decision to make an alcohol protection order against an adult. Subsection 9(2) of the Act sets out the procedure for making an application for the reconsideration of a decision to make an alcohol protection order. The subsection states as follows.

   The application must:

   (a)be made in writing; and

   (b)state the reason why the adult believes that the decision to issue the alcohol protection order should not have been made; and

   (c)be lodged at the police station not later than 3 days after the date on which the order was issued.

7. Subsection 10(1) of the Alcohol Protection Orders Act 2013 provides that within three days after an application for reconsideration is lodged under s 9 of the Act, a senior officer must reconsider the decision of the officer to issue an alcohol protection order and give the adult a notice in writing about the senior officer’s decision. Subsection 10(4) of the Act sets out the particulars that the notice of the decision of the senior officer must contain.

8. Subsection 11(1) of the Alcohol Protection Orders Act 2013 grants an adult whose alcohol protection order has been confirmed by a senior officer the right to apply to the Local Court for a review on the merits of the senior officer’s decision. Subsection 11(2) states that the application to the Local Court must be made within seven days of the adult’s receipt of notice of the decision of the senior officer.

9. The applicant submits that the practical operation and effect s 9(2)(c) and s 11(2) of the Alcohol Protection Orders Act 2013 is that Indigenous people enjoy the rights of reconsideration and review granted by s 9(1) and s 11(1) of the Act to a more limited extent than non-Indigenous people. Consequently, Indigenous people do not enjoy the right to equal treatment before the tribunals and all other organs administering criminal justice. The differential enjoyment of this important human right arises because of (1) the limited capacity or inability of a large number of Aboriginal people to use and understand both spoken and written English, (2) the conceptual complexity of the language used in the Act and in the written alcohol protection orders and notices, (3) the requirement to make a written application for reconsideration of the decision of an officer to make an alcohol protection order, and (4) the very short periods of time in which an adult has to exercise the rights of reconsideration and review granted by the Act (three days after the making of an alcohol protection order and seven days after the decision of a senior officer, respectively). The procedures under the Act for making an application for reconsideration of a decision to make an alcohol protection order and an application for review of the decision of a senior officer disadvantage or inhibit Indigenous people in exercising the right granted by s 9(1) and s 11(1) of the Act. Indigenous people frequently need the assistance of lawyers and interpreters to access such rights and insufficient time is granted by the Act for that to occur.

10. There is an issue in this proceeding about whether the evidence led by the applicant, including the evidence of Dr Diana Mary Eades, established the extent of the incapacity of Indigenous people to understand and use the English language contended for by the applicant. It is unnecessary to resolve the dispute for the reasons set out below.

11. It is the experience of this Court that a greater number of Indigenous people in the Northern Territory have significant difficulties with the English language than non-Indigenous people. However, it is also the experience of this court that some non-Indigenous people, particularly those people who do not speak English or have English as a second language and are not well educated, or have a disability have similar difficulties to Indigenous people with using and understanding the English language and also need assistance.

12. The plaintiff’s submission in this regard is similar to the plaintiff’s submission in Sahak v Minister for Immigration and Multicultural Affairs.[41] For reasons of comity[42] I am constrained to follow the decision of the Full Court of the Federal Court in that case. The plurality[43] in that case dismissed the plaintiff’s claim for the following reasons.

    But such discrimination or disadvantage as arose from the practical operation of s478 of the Act was not racial discrimination in terms of the Convention or s10 of the RDA. S478 of the Act does not deprive persons of one race of a right that is enjoyed by another race, nor does it provide for differential operation, depending upon the race, colour or national or ethnic original of the relevant applicant. For example, persons whose national origin is Afghani or Syrian are able to take advantage of the relevant right if their comprehension of the English language is sufficient, or if they have access to friends or professional interpreters so as to overcome the language barrier. There may be persons of another race whose first language is English, but who are inhibited in their enjoyment of the relevant right by reason of illiteracy or some physical infirmity or other impediment. Any differential effect which the application of s478 of the Act produces is not based on race, colour, descent or national or ethnic origin, but rather on the individual personal circumstances of each applicant.

    The appellants submitted that the expression "race, colour or national or ethnic origin" in s10 of the RDA should be construed as including characteristics that appertain to persons of that particular description and that the relevant comparison for the purposes of s10 was with persons of a race, colour or national or ethnic origin for whom English was a first or a literate language and who were held in immigration detention.

    We doubt whether s10 should be so construed, but even if it be accepted that it is a characteristic of persons of Afghani or Syrian national or ethnic origin that English is not their first language and they are not literate in English, it does not follow that, as a consequence, s478 operates to diminish their right of access to the Federal Court in a way in which an English-speaking applicant's right of access to the Federal Court is not diminished.

    The fact that an applicant who wishes to review the decision of a Tribunal requires the services of an interpreter in order to prepare and file an application for review does not mean that the right to apply for the review is lessened. Similarly, a person who speaks English but who does not understand how to complete the application due to circumstances, such as physical infirmity, a lack of literacy or a lack of education, does not have his or her right to apply for review lessened by the time limit in s478 compared to the right of a literate, educated, healthy, English-speaking applicant. Any difficulty such persons confront in completing and filing applications for review within the time limit prescribed by s478 is due to personal characteristics and not due to a circumstance which is dictated by their race, colour, or national or ethnic origin [emphasis added].

    Put shortly, there is no nexus or causal connection between the provisions of s478 and the manner in which the applicants enjoy their right of access to the Court pursuant to s476 as compared with the manner in which English speaking applicants enjoy their right of access to the Court. Section 478 in its terms and operation does not have a differential or discriminatory impact on English and non-English speaking applicants for review of a Tribunal decision under s476. It operates uniformly [emphasis added].

13. The same reasoning applies to the applicant’s argument in this case. Subsection 9(2) and s 11(2) of the Alcohol Protection Orders Act 2013 in their terms and operation do not have a differential or discriminatory impact on Indigenous and non-Indigenous applicants for reconsideration of an officers decision to make an alcohol protection order and for review of the decision of a senior officer. They too operate uniformly. Any difficulty Indigenous people confront in completing and filing applications for reconsideration and review within the time limit prescribed by s 9(2)(c) and 11(2) is due to personal characteristics and not due to a circumstance which is dictated by their race.

    ----------------------------

[1] s 3(1) Alcohol Protection Orders Act 2013.

[2] s 3(1) and s 6.

[3] s 3(1) and s 23.

[4] s 5.

[5] s 7(1)(a) and s 7(2).

[6] s 7(1)(b).

[7] s 7(1)(c) and 7(3).

[8] s 8(1).

[9] s 8(3).

[10] s 23.

[11] s 8(4).

[12] s 9.

[13] s 9(2).

[14] s 10(2).

[15] s 10(4)(a).

[16] s 11(1).

[17] s 11(2).

[18] s 13(1).

[19] s 13(3).

[20] s 18(1).

[21] s 18(2).

[22] s 23(2).

[23] s 3(1).

[24] s 19(1).

[25] s 19(2) and (4).

[26] (2013) 249 CLR 332 at [63] per Hayne, Kiefel and Bell JJ.

[27] Ibid at [30] per French CJ. 

[28] Ibid at [67] per Hayne, Kiefel and Bell JJ.

[29] Potter v Minehan (1908) 7 CLR 277, 304.

[30] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24 at 39 per Mason J.

[31] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [67] per Hayne, Kiefel and Bell JJ.

[32] (2014) 253 CLR 393, summarised at 429 – 430 by French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ.

[33] (1992) 176 CLR 1 at 27.

[34] (1985) 159 CLR 70 at 98.

[35] Western Australia v Commonwealth (Native Title Act case) (1995) 183 CLR 373 at 483-484.

[36] (1988) 166 CLR 186.

[37] Ibid at 230. 

[38] (2013) 252 CLR 168.

[39] (2013) 252 CLR 168 at [266], [267] and [274] to [276].

[40] French CJ at [38] and [46] and Hayne J at [84]. 

[41] (2002) 123 FCR 514.

[42] Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 151 – 152.

[43] Sahak v Minister for Immigration and Multicultural Affairs (2002) 123 FCR 514 at [45] – [49].