Dennis Munkara v Nicholas Alexander Bencsevich

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Southwood J
• Judgment Date: 04 December 2015
• Neutral Citation: [2015] NTSC 78
• Docket Number: FILE NO: 77 of 2014 (21437457)
• Date: 04 December 2015

[2015] NTSC 78

SUPREME COURT OF THE NORTHERN TERRITORY

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

CORAM:

Southwood J

FILE 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

REPRESENTATION:

Counsel:

Plaintiff: A Wyvill SC and C Lenehan

Defendant: J Renwick SC and S Brownhill SC

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

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)

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)

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.

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