Munkara v Bencsevich and Ors

Case [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:

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Details
AGLC
Munkara v Bencsevich [2015] NTSC 78
Case
[2015] NTSC 78
Decision Date

CaseChat Overview and Summary

The case of Munkara v Bencsevich and Ors involves the applicant, an Indigenous man from the Tiwi Islands, who has been subjected to multiple alcohol protection orders under the Alcohol Protection Orders Act 2013 (NT). The applicant challenges the legality of these orders, arguing they constitute a disproportionate and unreasonable use of power, and further that the Act itself is racially discriminatory as it disproportionately affects Indigenous people in the Northern Territory. The court was required to determine whether the issuing of the alcohol protection orders was a jurisdictional error and whether the Act's provisions contravene the Racial Discrimination Act 1975 (Cth).

The court held that the statutory considerations mandated by the Alcohol Protection Orders Act 2013 do not require officers to be satisfied of the existence of the matters suggested by the applicant before issuing orders. The Act explicitly outlines the mandatory considerations and sets the standard of reasonableness. The court found that the Act grants police a broad discretion to issue orders to deter alcohol-related offending, and that the applicant's contentions about a sufficiently high risk, serious offence, and high prospect of compliance were too general to be of practical use in determining whether to issue an order. Consequently, the applicant's challenge to the reasonableness of the orders was dismissed.

Further, the court examined whether the Alcohol Protection Orders Act 2013 contravenes the Racial Discrimination Act 1975 (Cth) by disproportionately affecting Indigenous people. The court found that while the Act does not explicitly consider race, its practical operation results in a disproportionate number of alcohol protection orders being issued to Indigenous people. This was deemed to be indirectly discriminatory under the Racial Discrimination Act 1975 (Cth). However, the court determined that the discriminatory effect of the Act was not substantial enough to render the Act invalid as a whole.

The final orders of the court were that the alcohol protection orders issued to the applicant were lawful and did not constitute a jurisdictional error. However, the court declared that certain provisions of the Alcohol Protection Orders Act 2013 were inconsistent with the Racial Discrimination Act 1975 (Cth) due to their discriminatory effect. The court did not strike down the Act but required the respondents to review its application to ensure compliance with the Racial Discrimination Act 1975 (Cth).

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 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] 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. 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. 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.