Munkara v Bencsevich and Others

• Jurisdiction: Northern Territory
• Judge: Kelly J,Blokland J,Barr J
• Judgment Date: 05 June 2018
• Neutral Citation: [2018] NTCA 4
• Docket Number: FILE NO: AP 3 of 2015 (21437457)
• Court: Court of Appeal
• Date: 05 June 2018

Between:

Dennis Munkara

Appellant

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

[2018] NTCA 4

Judgment of:

Kelly, Blokland & Barr JJ

FILE NO: AP 3 of 2015 (21437457)

COURT OF APPEAL OF THE NORTHERN TERRITORY

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

ADMINISTRATIVE LAW — judicial review — appeal against dismissal of application seeking orders invalidating ss 6, 9(2)(c) and 11(2) of the Alcohol Protection Orders Act (NT) (“ APOA”) and declarations quashing three alcohol protection orders against appellant

APPEAL — procedural fairness — leave required to argue proposed ground 4(o) in Further Amended Notice of Appeal — proposed ground 4(o) argued exercise of power to issue or authorise alcohol protection orders conditioned on observing procedural fairness which was not observed — ground not agitated in Court below — addition of ground would cause real prejudice to respondents — application to add proposed ground 4(o) dismissed

ADMINISTRATIVE LAW — statutory interpretation — respondents did not misconstrue statutory power as mandatory rather than discretionary — factors bound to be taken into account inferred by subject matter, purpose and scope of Act — respondents not bound to consider particular factors in unusually bare statutory context — APOA sets low threshold for offending attracting Act's operation — respondents considered all jurisdictional preconditions in exercising discretion to issue alcohol protection orders — respondents not bound to consider proportionality to offence or personal circumstances — appellant's alcoholism and principle of “least restrictive means” not factors bound to be considered — Alcohol Protection Orders Act (NT) s 6

ADMINISTRATIVE LAW — judicial review — manifest unreasonableness — Parliament intends powers to be exercised reasonably — held by majority alcohol protection orders not manifestly unreasonable — Alcohol Protection Orders Act (NT) s 6

RACIAL DISCRIMINATION — prohibition by s 10 of Racial Discrimination Act 1975 (Cth) (“ RDA”) of Territory laws denying or limiting persons of particular race rights enjoyed by persons of another race — s 6 of APOA not inconsistent with s 10 of Racial Discrimination Act — practical operation of s 6 of APOA not that Indigenous Territorians denied or limited rights enjoyed by persons of other races — impact of APOA on Indigenous Territorians not direct outcome of APOA but of committing qualifying offence — rights to property and access to public places not diminished by APOA — Maloney v The Queen (2013) 252 CLR 168 distinguished — disproportionate number of alcohol protection orders against Indigenous persons does not denote differential enjoyment of human rights — neither criminal offending nor alcohol consumption a function of race — consequences for behaviour not a limitation on freedom — Racial Discrimination Act 1975 (Cth) s 10, Alcohol Protection Orders Act (NT) s 6

RACIAL DISCRIMINATION — prohibition by s 10 of RDA of Territory laws denying or limiting persons of a particular race rights enjoyed by persons of another race — ss 9(2)(c) and 11(2) of APOA not inconsistent with s 10 of RDA — practical operation of ss 9(2)(c) and 11(2) of APOA not that Indigenous Territorians denied or limited rights enjoyed by persons of other races — extremely constrained timeframes for reconsideration and review do not create differential enjoyment of right of access to justice — trial judge accepted effect of English-language difficulties and complexity of procedural formalities disproportionately affects Indigenous persons — such difficulties due to personal characteristics and not dictated by race, colour, or national or ethnic origin — Sahak v Minister for Immigration and Multicultural Affairs (2002) 123 FCR 541 followed — s 10 of RDA not about discriminatory effect of law as to racial characteristics but about effects of law on relative enjoyment of a right by persons of different races — notice of review procedure not precondition for validity — parliamentary intention — Racial Discrimination Act 1975 (Cth) s 10, Alcohol Protection Orders Act (NT) ss 9(2)(c) and 11(2)

CONSTITUTIONAL LAW — “ Kable” doctrine — whether operation of APOA interferes with judicial process undermining institutional integrity of state Court with federal jurisdiction — whether APOA punitive and contrary to rule of law — Northern Territory not bound by separation of powers — powers exercisable not punitive in nature and analogous to Bail Act (NT) and Domestic and Family Violence Act (NT) police powers — powers must be exercised reasonably — effectiveness of approach a matter for Parliament — Judiciary Act 1903 (Cth) s 78B, Alcohol Protection Orders Act (NT) s 6

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 ; Attorney-General (NSW) v Quinn (1990) 170 CLR 1; Attorney-General (NT) v Emmerson (2014) 253 CLR 393; Gerhardy v Brown (1985) 159 CLR 70; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Kruger v The Commonwealth (1997) 190 CLR 1; Kuczborski v Queensland (2014) 254 CLR 51; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; Munkara v Bencsevich & Ors [2015] NTSC 78; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; O'Reilly v Commissioners of the State Bank of Victoria (1983) 153 CLR 1; Pollentine v Bleijie (2014) 88 ALJR 796; Project Blue Sky v ABA (1998) 194 CLR 355; Rowe v Australian United Steam Navigation Company Ltd (1909) 9 CLR 1; South Australia v Totani (2010) 242 CLR 1; Western Australia v Ward (2002) 213 CLR 1, referred to

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

Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332 ; Western Australia v Ward (2002) 213 CLR 1; Sahak v Minister for Immigration and Multicultural Affairs (2002) 123 FCR 514, followed

Alcohol Mandatory Treatment Act (NT) s 33

Alcohol Protection Orders Act (NT) ss 3, 5, 5(1), 6, 6(a), 6(b), 7, 7(1)(a), 7(1)(b), 7(1)(c), 7(1)(c)(ii), 7(2), 7(3), 8, 9, 9(2)(c), 10(4)(c), 10(4)(d), 11, 11(2), 18(1), 23, 23(1)(b), 23(4), 24

Bail Act (NT) s 37B(1)

Criminal Code (NT) s 210

Domestic and Family Violence Act (NT)

Judiciary Act 1903 (Cth), s 78B

Liquor Act (NT)

Police Administration Act (NT)

Racial Discrimination Act 1975 (Cth) s 10(1)

Graham Nicholson, ‘Lectures on Northern Territory Public Law’, Law Society Northern Territory, 2016

REPRESENTATION:

Counsel:

Appellant: R Merkel QC, A Hoel & O Ciolek

Respondents: J Renwick SC, S Brownhill SC & R Withana

REASONS FOR JUDGMENT

(Delivered 5 June 2018)

Kelly J

Introduction

1 The appellant is an Aboriginal man from the Tiwi Islands. In 2013 he was 47 years old. He was an alcoholic mostly living in the long grass in and around Darwin, getting his meals from St Vincent's at Stuart Park and the Food Truck on the Esplanade. He had been drinking for 20 years and most days he drank till he was drunk. His brain and memory had been affected, his voice was slurred, and he walked unsteadily with the wide based shuffling gait attributable to brain damage from long term alcohol abuse.

2 As at 20 August 2013, he had had 31 admissions to the Darwin Watch House for protective custody. In 2013 and 2014 he was twice ordered to attend mandatory treatment for alcohol misuse. The first time he completed the program. The second time he absconded six times. He has a lengthy criminal history for offences of dishonesty, property damage and assault and it can be inferred that most, if not all of them, were committed while under the influence of alcohol.

3 In July 2014 the appellant was issued with three successive alcohol protection orders under the Alcohol Protection Orders Act 2013 (NT) (“the Act”). An alcohol protection order is an order that prohibits the person named from possessing or consuming alcohol or, with certain exceptions, from being on licensed premises. 1 Such an order can be issued by certain

police officers if a person has been charged with a “qualifying offence” 2 and the officer believes that the person was affected by alcohol at the time. 3

4 The first alcohol protection order was issued after the appellant had been arrested and charged with the theft of some food worth $4.20 from Coles Supermarket 4 while intoxicated. Under the Act a first alcohol protection order is in force for three months. 5

5 The second alcohol protection order was issued when he was arrested while intoxicated and charged with breaching the first alcohol protection order. (Under the Act, a first alcohol protection order ceases to be in force on the issue of a second alcohol protection order 6 and the second alcohol protection order is in force for six months.) 7

6 The third alcohol protection order (referred to in the Act as a “later” alcohol protection order) was issued when he was arrested while intoxicated and charged with breaching the second alcohol protection order. It took effect on the expiry of the second alcohol protection order. (Under the Act a later alcohol protection order after the second does not put an end to any subsisting alcohol protection order and it persists for 12 months.) 8

7 The original stealing charge was withdrawn on 21 October 2014.

8 The applicant was arrested and charged with breaching the second alcohol protection order 17 times and for breaching the later alcohol protection order three times.

9 The appellant applied to the Supreme Court for declarations that certain provisions of the Act are invalid by reason of s 10(1) of the Racial...