Munkara v Bencsevich & Ors [2018] NTCA 4

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

Munkara v Bencsevich & Ors [2018] NTCA 4 | Case summary | Zoe

[18]

[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 Discrimination Act 1975, or alternatively as inconsistent with the Kable[9] principle; and for orders setting aside the three alcohol protection orders on those grounds or on administrative law grounds. This is an appeal against the primary judge's refusal to make those declarations and orders. The appellant contends that the learned primary judge was wrong to reject each of the appellant's contentions. For ease of convenience I refer to these grounds of appeal as:

the Racial Discrimination Act ground;

the Kable ground; and

the administrative law grounds.

[10] The background to the proceeding and this appeal, the orders sought, the grounds of appeal and the operation of the Act are set out in more detail in the judgment of Blokland J.

[11] Leave was sought to add a new ground of appeal, namely that the respondents were obliged to observe procedural fairness in exercising the power under s 6 of the Act to issue an alcohol protection order and failed to do so. The application was opposed by the respondents. I agree that leave should not be granted. This is not a judicial review of the police officers' decisions; it is an appeal against the decision of the Supreme Court not to grant the declarations and orders sought and that was not one of the declarations or orders sought in the Supreme Court. I also agree with the remarks of Blokland J in relation to this application and why leave should be refused.

[20]

[12] On this ground, the appellant argued that s 6 of the Act (which authorises the making of alcohol protection orders) attracts the operation of s 10(1) of the Racial Discrimination Act 1975 and is therefore invalid. The basis for this was a contention that s 6 of the Act has a differential effect on the level of enjoyment of indigenous Territorians of the rights to own property (alcohol) and to have access to public places and services (licensed premises) because indigenous Territorians are more likely than non-indigenous Territorians to be intoxicated when committing a qualifying offence and so become eligible to be issued with an alcohol protection order.

[13] The appellant also challenged the validity of ss 9(2)(c) and 11(2) on the ground that they too attract s 10(1) of the Racial Discrimination Act. Section 9 provides that a person who has been issued with an alcohol protection order may apply for a reconsideration by a senior officer of the decision to issue the order. Section 9(2)(c) provides that such an application must be made within three days of the order being made. Section 11 provides that a person whose alcohol protection order has been confirmed by a senior officer may apply to the Local Court for a review of the merits of the senior officer's decision. Section 11(2) provides that any such application must be made within seven days of notice of that decision being given.

[14] The appellant contended that given the poorer English language literacy of indigenous Territorians compared with non-indigenous Territorians, the short time limits imposed by s 9(2)(c) and s 11(2), in conjunction with the other formalities required, would weigh disproportionately heavily on indigenous Territorians.

[15] I have had the benefit of reading the judgment of Blokland J and I respectfully agree with her Honour that the appeal on the Racial Discrimination Act ground should be dismissed for the reasons set out in that judgment. Neither s 6 nor s 9(2)(c) nor s 11(2) of the Act engage the operation of s 10(1) of the Racial Discrimination Act.

[16] A major plank of the appellant's argument that s 6 of the Act attracts the operation of s 10(1) was a contention that, "In the case of Territorians, for a complex of reasons, the consumption of alcohol is to a significant degree a function of race,"[10] a proposition which is both factually inaccurate and quite offensive for reasons which are elaborated on in the judgment of Blokland J.

[17] The appellant mounted a subsidiary argument to the effect that the alcohol protection orders were invalid based on the assumption that s 9 of the Act was invalid by reason of s 10(1) of the Racial Discrimination Act. Each of the three alcohol protection orders contained a statement to the effect that the appellant had a right to apply for a reconsideration of the decision to issue the order and that any such an application must be made within three days of the order being made. The appellant argued that if s 9(2)(c) was invalid there was no such time limit on applying for a reconsideration of the decision to make the order, and that the orders were invalid for wrongly stating that there was. In advancing this argument, the appellant relied largely on the principles in Project Blue Sky v ABA[11] ("Blue Sky").

[18] As s 9(2)(c) is not invalid, it is not strictly necessary to determine this issue. However, for the sake of completeness I will record my reasons for disagreeing with the proposition advanced by the appellant.

[19] In my view, Blue Sky has no application to this particular issue. That case was concerned with the effect of a statutory requirement governing the exercise of a power and, in particular, with the question of when the exercise of a power may be invalid as a result of non-compliance with such a statutory requirement governing its exercise.[12]

[20] In this case, there is no provision governing the exercise of the power other than s 6 which sets out the jurisdictional preconditions for its exercise.

[21] The only requirement as to form (which comes in the definition)[13] is that the order must be in writing. There is no requirement for an alcohol protection order to specify the time limit for applying for a reconsideration at all - or even a requirement that it must advise that such a right to apply for a reconsideration exists. This is in contrast to a notice about a senior officer's decision on an application for reconsideration which must contain certain information including "the period allowed for applying for a review of the senior officer's decision",[14] and how to apply for a review.[15]

[22] Section 5(1) simply provides that an alcohol protection order is an order issued in writing to an adult that prohibits the adult, during the period that it is in force, from doing any of the things listed in s 5(1)(a), (b) or (c). There is no other requirement as to content.

[23] There being no relevant statutory requirement, the most that can be said is that if s 9 had been found to be invalid, as a result, the alcohol protection orders would have contained a piece of misinformation. There is no principle of law that an order or other act which contains within it a mistaken piece of information is ipso facto invalid, or even prima facie to be considered invalid.

[24] In written submissions, the appellant contended that for an alcohol protection order to be valid, it must:

(a) be in writing;

(b) identify the nature of the prohibitions to which the individual is subject and the consequences of the contravention;

(c) specify the period during which the order remains in force; and

(d) specify the manner by which the individual to whom it is issued may seek review of the order under s 9.

[25] The requirements in (a), (b) and (c) are readily able to be inferred from the definition of "alcohol protection order" in s 5 of the Act as an order issued in writing to an adult that prohibits the adult, during the period that it is in force, from doing any of the things specified in paragraphs (a), (b) and (c).[16] There is nothing in the definition which would necessitate implying that, as a pre-condition of its validity, such an order must notify the recipient of the right to apply for a reconsideration of the decision and the time limits within which to apply. Nor is there anything else in the Act from which such a pre-condition to the validity of an order could be inferred. The fact that it might be a good idea, and in the interest of justice, to inform a recipient of an alcohol protection order of his rights (which is no doubt why the three orders in fact did so) does not translate into a statutory requirement that this be done, let alone a statutory pre-condition to the validity of the orders.

[21]

[26] The appellant argued that s 6 of the Act was contrary to the principle in Kable[17] and hence invalid.

[27] The appellant contended that s 6 was incompatible with the institutional integrity of Territory courts because it required the courts to participate in a legislative scheme which visits arbitrary punishment on an individual by executive action in breach of the principle that "an individual may be punished following an established breach of the law, but for nothing else".

[28] I agree that this ground of appeal must be dismissed for the simple reason that it mischaracterises the operation of the Act. The appellant referred to the possibility (which was realised in the case of the appellant) that a person could become subject to an alcohol protection order on the basis of an allegation that he committed a qualifying offence while affected by alcohol and later be found not guilty or have the charge withdrawn. Under s 8, on that happening, the first alcohol protection order comes to an end.[18] However, in the meantime a second alcohol protection order could have been issued on the basis of an alleged breach of the first alcohol order, and the Act does not provide that on the dismissal of the original charge any subsequent order comes to an end. The effect of this, the appellant submitted, was that "the Act affects an individual's liberty notwithstanding that the raison d'etre of its imposition has entirely evaporated." This, the appellant contended, amounted to "the imposition on him, by executive action, of a regime for his punishment for conduct which is otherwise lawful".

[29] In fact s 6 of the Act has no such effect. This characterisation ignores the fact that the Act makes it an offence to breach an alcohol protection order while it is in force.[19] What gives rise to the imposition of the second alcohol protection order in those circumstances is not s 6 of the Act but the action of the individual in deliberately committing the offence of breaching an extant alcohol protection order. As the primary judge pointed out, this is analogous to legislative provisions concerning bail.

[35]

[38] The appellant contended that this amounted to a finding of fact that could not be controverted in this Court which proved that the first respondent did not take any other matters into consideration before making the decision.

[39] The respondent's primary position is that it is not open to the appellant to shift ground in this fashion on the appeal.

[40] We were informed by both counsel that the case below was conducted on the basis of an agreement between counsel that the decision to issue the first alcohol protection order appeared to have been based solely on the arresting officer's satisfaction that the applicant was affected by alcohol at the time he committed the crime of stealing, and that those were the words that had been agreed to.[31] That agreement was reached and hence that "finding" made in the context of the case that was being argued in the Court below.

[41] Counsel for the respondent contended that, if the alternative case being asserted by the appellant had been made in the court below, there would not have been an agreement that the decision to issue the first alcohol protection order appeared to be based solely on the arresting officer's satisfaction that the applicant was affected by alcohol at the time he committed the crime of stealing. It would have been open to the respondent to explore what matters each of the respondents had in fact taken into account both in relation to matters they saw and heard at the time, the enquiries they made, and what particular matters in the documents they had regard to.

[42] I do not agree that his Honour's remark in [27] is a finding of fact that cannot be controverted in this Court and which may be relied upon by the appellant to support a contention that the first respondents' did not take into account anything other than the matters in ss 6(a) and (b) when deciding to issue the first alcohol protection order. It is not in form a finding that these are the only things the respondents took into account. His Honour said only that that "appears to be" the case. This was agreed between the parties in the context of the case then being argued. The appellant was contending that the respondents were obliged to be satisfied of three other matters before they could issue an alcohol protection order. The respondents joined issue with that contention. The respondents' case was that even if these were the only matters taken into account before the issue of the first alcohol protection order, that order (and the ones that followed) were not void since the only mandatory pre-conditions to the exercise of the discretion were those set out in s 6(a) and (b). In this context, his Honour's statement in [27] was more akin to an assumption for the purpose of the argument than a finding of fact based on a consideration of the evidence.

[43] I agree that is it is not open to the appellant to raise this new ground on the appeal given the way the matter was conducted below. In particular, it is not open to the appellant to now assert that the words used by his Honour in [27] amounted to a finding of fact that the respondents had effectively ignored all of the material in the documents tendered in the court below, and everything they may have known about the appellant's background, criminal history and physical condition given the context in which those words were agreed upon.

[44] Further:

[37]

[45] Even if the appellant were permitted to raise this new ground on the appeal, in my view it could not succeed. The onus is on the appellant to prove that the respondents did not take into account matters they were obliged to take into account or took into account irrelevant matters or otherwise made a decision that no reasonable police officer could have made. Once it is accepted that the statement of his Honour in [27] did not amount to a finding that the first respondent had ignored all of the material in the documents tendered, then there is no evidence as to what the respondents took into account in reaching their respective decisions from which a conclusion could be reached that the officers failed to take any relevant consideration into account. The Act does not require an officer issuing an alcohol protection order to give reasons for his decision to do so.

[46] I will deal in any event, with the appellant's contention that the respondents were obliged to take certain matters into consideration. The appellant submitted that in addition to the matters in s 6 of the Act, the respondents were bound to consider, properly and realistically, the personal circumstances of the appellant including the appellant's alcoholism, his consequential inability to control his consumption of alcohol, the circumstances of the offending including its relative seriousness (or lack thereof) and whether the authorisation and issue of the alcohol protection orders was likely to further the statutory purpose of deterring criminal behaviour arising from alcohol abuse. The requirement to take these matters into account was said to arise from a consideration of the subject matter, scope and purpose of the statute in accordance with the principles set out by Mason J in Minister for Aboriginal Affairs v Peko Wallsend Ltd.[33]

[47] In Minister for Aboriginal Affairs v Peko Wallsend Ltd,[34] Mason J (with whom Gibbs CJ) distilled the following relevant principles from the decided authorities in relation to judicial review of administrative decisions on the ground of failing to take into account a relevant consideration or considerations. (Authorities and citations have been omitted.)

[45]

[51] The power to issue an order is enlivened when a person has been arrested, summonsed or served with a notice to appear in court in respect of an alleged qualifying offence and the officer believes that he was affected by alcohol at the time. "Qualifying offence" is not narrowly defined. It means any offence punishable by imprisonment for six months or more, or an offence of breaching an alcohol protection order. The Act gives no other guidance as to how the discretion is to be exercised. There is nothing in the Act to indicate a legislative intention that an officer would be bound to take into account all of the matters contended for by the appellant, as a precondition to the validity of a notice. Many of those matters will be unknown to a police officer making a decision, as will often be the case, at the scene of the alleged offence and would often require value judgments about the likely effectiveness of an alcohol protection order in the absence of sufficient information to make an informed assessment. As the trial judge commented[37] such notions "serve little purpose other than to impermissibly constrain the broad discretion granted by the Alcohol Protection Orders Act 2013 for the purpose of deterring alcohol-related crime".

[52] No doubt when exercising the discretion, in many cases officers took into account some or all of the matters referred to by the appellant as well as a range of other matters. However, consideration of the matters put forward by the appellant was not a prerequisite to the issue of a valid alcohol protection order. The Act conferred a broad discretion on police officers and, provided the statutory preconditions for its exercise have been met, the exercise of that discretion is not open to challenge in the courts unless the officer has taken into account a plainly irrelevant matter (for example the height, race or hair colour of a person who might be subject to an order) or unless the exercise of the discretion is so plainly unreasonable that no reasonable police officer could possibly consider it a proper exercise of the statutory power.

[63]

[65] A Judge of the Supreme Court dismissed an application seeking the following declarations and orders:

That the practical operation of ss 6, 9(2)(c) and 11(2) of the Alcohol Protection Orders Act (NT) (the Act) is such that Indigenous persons 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

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

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

Declarations declaring invalid the alcohol protection orders 142300, 142329 and 142411.

[64] This is an appeal against the orders dismissing the application. The appellant also gave notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth), claiming the Act impermissibly vested legislative or judicial functions to police officers, or was contrary to the principle in Kable v Director of Public Prosecutions (NSW).[46]

[65] Some background is required to understand how the appellant came to be the subject of three alcohol protection orders issued between 7 and 19 July 2014. The trial judge set out the appellant's history and the chronology of relevant events in detail.[47] The Court has also had the benefit of a document setting out largely uncontested matters entitled 'Appellant's statement of facts found or agreed.'[48]

[66] In brief, the appellant is an Aboriginal man from the Tiwi Islands.[49] He has a long and chronic history of alcohol-related problems and associated serious health issues. The appellant is clearly an alcoholic. He has cerebella ataxia and was found to be at risk of developing further chronic health issues associated with alcohol.[50] Between 1998 and 2012 the appellant was convicted of 16 offences that were committed in or near Darwin. The last property offence he committed was in 2001. He was last convicted of assault in August 2012. For that offending he was sentenced to imprisonment for three months. The sentence concluded on 4 August 2012.[51] In the 12 months before the issue of the first alcohol protection order, the appellant's offending was in the nature of minor nuisance offending.[52]

[67] As at 20 August 2013, the appellant had 31 admissions into protective custody. During the last three of those protective custody admissions, he had blood alcohol readings ranging from 0.169 to 0.332.[53]

[68] On 23 August 2013 the Alcohol Mandatory Treatment Tribunal made orders requiring him to attend mandatory treatment for alcoholism and to be income-managed.[54] Between 23 August 2013 and 20 September 2013 the appellant received treatment for alcohol misuse at the Darwin Alcohol Assessment Treatment Service in compliance with those orders. He successfully completed that treatment programme.[55]

[69] After completing the treatment programme, the appellant returned to the Tiwi Islands. He subsequently returned to Darwin and started drinking again. Between 20 September 2013 and 3 January 2014 11 police presentations were recorded against him associated with the misuse of alcohol.[56] On 10 January 2014 the appellant was again ordered to submit to a three month mandatory period of alcohol treatment at the Darwin Alcohol Assessment Treatment Service under the Alcohol Mandatory Treatment Act (NT). During the course of that treatment period, he absconded six times.

[70] On 7 July 2014 the appellant was arrested and charged with allegedly stealing food and orange juice from a store. The total value of the items stolen was $4.20. At the time of his arrest by the first respondent the appellant showed signs of intoxication.[57] The offence of stealing carries a maximum term of imprisonment for seven years[58] and thus is a "qualifying offence" under s 3 of the Act. The charge was withdrawn on 21 October 2014. However, in the intervening period the appellant became subject to a total of three alcohol protection orders.

[71] Later on the evening of 7 July 2014 after the appellant's arrest for the stealing offence, a police officer applied for an alcohol protection order. The first alcohol protection order (no. 142300) was issued by the first respondent on 7 July 2014 at 11:30pm and the appellant was served with it on 8 July 2014 at 2:51am.[59]

[72] On 11 July 2014 police officers saw the appellant drinking in a park in Darwin. They observed that he was intoxicated. A breath test was administered that returned a reading of 0.258 BrAC. As a result, the appellant was arrested. A further breath test was administered, returning a reading of 0.248 BrAC in 210 litres of blood. The appellant was charged with breaching the first alcohol protection order, which was an offence under s 23 of the Act.[60]

[73] On 12 July 2014, the second respondent authorised the issue of the second alcohol protection order for a period of six months. The second alcohol protection order (no. 142329) was issued by the third respondent and served on the appellant on 12 July 2014 at 7:45am. The "qualifying offence" was an offence under s 23 of the Act. It charged a breach of the first alcohol protection order by consuming alcohol. The first alcohol protection order ceased to have effect when the appellant was served with the second alcohol protection order.[61]

[74] On 18 July 2014, as a result of appearing to be highly intoxicated, the appellant was placed in protective custody and taken to the Darwin Watch House. Police observed the appellant staggering when he attempted to walk and formed the view that he was unable to care for himself.[62] At the conclusion of this episode of protective custody he was charged with breaching the second alcohol protection order.[63]

[75] On 19 July 2014, police again observed the appellant to be intoxicated. He was arrested, a breath test was administered and a reading of 0.303 BrAC was returned. He was charged with breaching the second alcohol protection order. A police officer applied for an alcohol protection order (no. 142411). The order was authorised and served on the appellant by the fourth respondent later on the same date.[64]

[76] 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 third alcohol protection order was in force for a period of 12 months from 10 January 2015. As mentioned above, the original offence of stealing that activated the process of issuing the first alcohol protection order was withdrawn on 21 October 2014.

[77] At the time of the hearing in the Supreme Court, it was accepted the appellant had been arrested and charged with breaching the second alcohol protection order 17 times and the third alcohol protection order three times.

[78] Further background facts and circumstances will be discussed in the context of particular grounds of appeal.

[64]

[79] The Act commenced operation on 20 December 2013. It does not contain an objects or purposes clause, however, its purpose can be gleaned substantially from its principal provisions together with the Attorney-General's Second Reading Speech. The Second Reading Speech was set out by the trial judge in his reasons.[65]

[80] The Act provides legislative measures aimed at reducing alcohol-related offending. The primary measure designed to facilitate this purpose is the grant of power to police to issue alcohol protection orders to persons who commit offences while affected by alcohol. The Act provides for both voluntary and non-voluntary orders to be made. The orders may be of three, six or 12 months duration depending on the length specified by the applicable section in the particular circumstances. An alcohol protection order prohibits the person who is the subject of the order from consuming or possessing alcohol or entering licensed premises. The penalty for contravention of a non-voluntary alcohol protection order is 25 penalty units or imprisonment for three months.[66] Non-compliance with an order constitutes a strict liability offence. A maximum penalty of three months imprisonment also applies to an offence of contravening a direction given under s 18(1) of the Act, including a direction to submit to breath tests when directed. "Reasonable excuse" is a defence to a charge under s 23 of the Act.[67] The Act also makes it an offence for another person to knowingly supply alcohol to a person who is subject to an alcohol protection order.[68]

[81] The Minister's Second Reading Speech[69] draws attention to the role the Act was designed to have in complementing other schemes that attempt to tackle alcohol abuse, such as the Alcohol Mandatory Treatment Act (NT), and the provision of powers to police that complement existing schemes within the Police Administration Act (NT) and the Liquor Act (NT).

[82] The trial judge expressly found the object of the Act was to provide police with the necessary powers to address and deter criminal behaviour involving alcohol by making, monitoring and enforcing alcohol protection orders. In terms of the impact on individuals who may be subject to an alcohol protection order, his Honour said:[70]

[67]

[84] The Further Amended Notice of Appeal[72] alleges the Supreme Court was in error in finding that ss 6, 9(2)(c) and s 11(2) of the Act were not inconsistent with s 10 of the Racial Discrimination Act 1975 (Cth). More particularly, it was claimed the learned trial judge erred in his conclusion that the impact of the Act on Indigenous persons was not a direct outcome of the legislation itself.[73] Further, it was contended the trial judge was in error by failing to conclude the practical operation of ss 6, 9(2)(c) and 11(2) of the Act was that Indigenous persons in the Northern Territory did not enjoy or enjoyed to a more limited extent, rights enjoyed by persons of other races.[74]

[85] More particularly, the appellant claimed error occurred because the trial judge relied on the Federal Court decision of Sahak v Minister for Immigration and Multicultural Affairs[75] to the effect that a lack of proficiency in English is a personal characteristic and not due to circumstances dictated by race, colour, nationality or ethnicity. The appellant submitted this Court should find Sahak stands contrary to subsequent High Court decisions such as Western Australia v Ward[76] and Maloney v the Queen[77] that deal with racial discrimination.

[86] The appellant claimed the Supreme Court was in error by finding all three alcohol protection orders were valid.[78] More particularly, the appellant claimed the Court misconstrued the objects of the Act,[79] the nature and construction of ss 6(a) and (b) of the Act,[80] the character of an alcohol protection order, and the relevant factors and considerations that were required to be taken into account when an alcohol protection order was issued and served.[81]

[87] Ground 4 of the Further Amended Notice of Appeal included two additional grounds of appeal that require leave to proceed. Proposed ground 4(n) claims that a misstatement on the face of the alcohol protection orders concerning the period of time during which a reconsideration may be sought under s 9 of the Act, rendered the alcohol protection orders invalid. This ground assumes s 9 is found to be inoperative. There was no objection taken to the addition of this ground by counsel for the respondents or the intervener. Leave was granted at the hearing to include ground 4(n).

[88] The application to grant leave to amend ground 4 by the addition of subparagraph (o) was opposed by counsel for the respondents and the intervener. At the hearing of the appeal, the Court advised counsel we would give our decision on the question of leave to amend in due course. In my opinion the application to amend by the addition of proposed ground 4(o) should be dismissed.

[89] Proposed ground 4(o) claims the exercise of the power granted under s 6 of the Act which permitted a police officer to issue or authorise an alcohol protection order was conditioned on the requirement to observe procedural fairness. Further, proposed ground 4(o) claims that procedural fairness was not followed in this instance. The substance of this ground was not agitated before the Court below. Arguments relevant to the question of the extent of the application of procedural fairness formed no part of the reasoning of the trial judge. The part of the case below based on administrative law grounds was limited to a consideration of manifest unreasonableness and whether further mandatory matters applied to police exercising powers under the Act beyond the requirements set out in ss 6(a) and (b) of the Act.

[90] This ground cannot be argued on appeal without causing real prejudice to the respondents. The questions raised by the proposed ground are questions of mixed fact and law. To deal with the proposed ground fairly and thoroughly would require evidence to be given that is likely to go beyond what is contained in the statutory declarations and other documents that were before the Supreme Court. Given the nature of the case below, it is unsurprising the case was based on statutory declarations, reports and associated documents. It is apparent both parties prepared and presented their respective cases accordingly.

[91] Even if a conclusion were to be reached that particular aspects of the rules of natural justice applied, determining the content of the rules in this unusual statutory context would require evidence to be given of police practice and capacity when dealing with persons who may potentially be subject to an order under the Act. The question of the content of the rules of procedural fairness in this context was not in the contemplation of the parties at the time of the hearing before the Supreme Court. It would be unfair to expect potential witnesses to deal with issues relevant to procedural fairness in this Court for the first time or to be remitted to the trial judge. Although it is acknowledged this proposed ground potentially goes to important issues in the administration of justice, the question of the extent and content of procedural fairness was not genuinely raised at the outset. Consequently, the application to amend the ground of appeal by the addition of ground 4(o) is dismissed.

[72]

[97] The appellant contends that, although the statute may be racially neutral, its operational effect or its "legal and practical operation" is to disadvantage Territory Aboriginal people and cause them to enjoy certain rights to a more limited extent than the persons of other races in the Northern Territory. The appellant relies on Maloney v The Queen.[88] Maloney involved the operation of a Queensland licensing law and regulation which made it unlawful for any person on Palm Island to possess alcohol in a public place in an amount in excess of the prescribed amount. The impugned provisions of the statutory scheme had the effect that Indigenous people of the Palm Island community could not enjoy a right of ownership of property,[89] namely alcohol, to the same extent as non-Indigenous people outside that community. The provisions had discriminatory effects on the right to own property.

[98] The appellant contends that an alcohol protection order in the Northern Territory similarly affects the right of Indigenous people to own property (alcohol) as well as the right of access to licensed premises such as hotels, restaurants, cafes and even licensed supermarkets,[90] and consequently that, by reason of s 6(b) of the Alcohol Protection Orders Act, the enjoyment of Aboriginal people of their right to property and access to services is less than that of persons of other races in the Northern Territory.

[99] This argument is not accepted. The primary judge was correct in holding that any adverse effect suffered by Aboriginal persons as a result of the imposition of an alcohol protection order is not as a result of the law itself but as a result of the person committing a qualifying offence whilst affected by alcohol. The situation is clearly distinguishable from the circumstances considered in Maloney because in that case, the Queensland legislative and regulatory scheme was directed at the largely Aboriginal population of one community, Palm Island, the residents of which were almost all Indigenous persons. They suffered disadvantage without any wrongdoing or qualifying conduct on their part. Under the Act the subject of this appeal, the law does not have effect unless and until a person commits a qualifying offence and a police officer reasonably believes that a person was affected by alcohol at the time of offending. Criminal offending in circumstances where the offender is affected by alcohol triggers the operation of the Act.

[100] In submissions in this Court, counsel for the appellant said that the appellant did not suggest there was any discrimination in the administration of the Act.[91] He referred to what he contended was "the 'causal relationship' between the operation of the s 6 prohibition of possessing and drinking alcohol and persons of the Aboriginal race"[92] suggesting that such a "causal relationship" was "a notorious fact" and suggested that the Court take judicial notice of "the affectation by alcohol as a racebased or related problem in the Northern Territory" contending that the High Court had done so in Bugmy v The Queen.[93]

[101] Counsel also asserted that "affectation by alcohol and race are very interrelated concepts when it comes to Aboriginal people in the Northern Territory".[94]

[102] That contention is rejected. It adds nothing to the bare statement of the statistics, i.e. that Aboriginal people form about 27 percent of the population and have received over 90 percent of the alcohol protection orders. It could also be said that "serious domestic violence and race are interrelated concepts when it comes to Aboriginal people in the Northern Territory" because the statistics are much the same. Put that way, the concept is simplistic and offensive. The appellant's submission ignores the reality of deprivation and disadvantage that are the real matters referred to by the High Court in Bugmy and are well acknowledged to be important factors associated with criminal behaviour and alcohol and substance abuse. Further, it ignores the fact that most Aboriginal people do not abuse alcohol and that many non-Aboriginal people do.

[103] The main point, however, is the one made by the trial judge, namely that the Act does not "create an offence of possessing or using alcohol" as asserted by counsel for the appellant.[95] Nor does it deprive anyone (Aboriginal or non-Aboriginal) of the right to possess alcohol or enter licensed premises (unlike the legislation in question in Maloney which did limit the right of people in Palm Island to possess alcohol to a degree greater than other residents of Queensland). What the Act does is to place consequences on people's behaviour, namely in the first instance committing a qualifying offence while affected by alcohol, and in the case of subsequent orders, failing to comply with the conditions of an alcohol protection order, which is something which the Act makes an offence. In this it is exactly analogous to the offences created by the Criminal Code (NT).

[104] Aboriginal people make up about 30 percent of the population of the Northern Territory yet make up more than 80 percent of the prison population. To take a further example, an Aboriginal person is statistically many times more likely than a non-Aboriginal person to be imprisoned for the offence of causing serious harm contrary to s 181 of the Criminal Code. Yet it could not be sensibly argued that by reason of s 181 of the Criminal Code Aboriginal persons enjoy the right to personal freedom to a more limited extent than persons of another race. The reason is obvious. Section 181 does not limit the right to freedom - it merely prescribes consequences for a person's actions - as did the Alcohol Protection Orders Act.

[105] It is also necessary to consider the further arguments in relation to the Racial Discrimination Act 1975 (Cth). The appellant argues that the reconsideration and review procedures under the Act significantly disadvantage Aboriginal persons such that their access to tribunals and other organs administering justice (the right to which is protected by Article 5(a)) is limited, resulting in differential enjoyment of access to justice organs.

[106] Section 9 of the Act provides a person to whom an alcohol protection order has been issued may apply for reconsideration of the decision. Section 9(2) provides that the application must be in writing, must state the reason why the decision to issue the alcohol protection order should not have been made, and must be lodged at a police station not later than three days after the date on which the order was issued.

[107] A senior officer[96] must reconsider the decision to issue the alcohol protection order and give a notice in writing about their decision to the person the subject of the order or their representative.[97] The senior officer may reconsider the original decision in any way he or she thinks appropriate.[98]

[108] If the senior officer's decision is to revoke the alcohol protection order, it immediately ceases to be in force.[99] The Act provides that the notice of the senior officer's decision must include the following information:

whether the decision is to confirm the issue of the order or to revoke it;

that an application may be made to the Local Court for a review of the merits of the senior officer's decision;

the period allowed for applying for a review of the senior officer's decision; and

how to apply for the review.[100]

[109] Further, the senior officer must record the reasons for the decision but may inform the person orally of reasons.

[110] Section 11 provides for a merits review of the senior officer's decision in the Local Court. The application must be made within seven days of notification of the senior officer's decision.[101] The Local Court must review the merits of the senior officer's decision. The Court is not bound by any matters considered by the senior officer in making the decision and may admit evidence that was not considered by the senior officer or refuse to admit evidence that was considered by the senior officer in making the decision.[102]

[111] The appellant's contention is that the operation and effect of the provisions summarised limit the extent of the enjoyment of the right to equal treatment, amounting to differential enjoyment of access to justice organs. This was said to arise from a combination of factors relevant to the social circumstances of Aboriginal persons in the Northern Territory, including the limited capacity or inability of a large number of Aboriginal persons to use or understand both spoken and written English, the complexity of the language used in the procedures under the Act, the requirement for the review to be in writing, and the short time frames provided for reconsideration and review. The relevant social circumstances that may lead to disadvantage were acknowledged and accepted by the trial judge.[103] The trial judge acknowledged it was the experience of the Supreme Court that a greater number of Indigenous than non-Indigenous people in the Northern Territory have significant difficulties with the English language.[104]

[112] His Honour did not expressly refer to the further evidence of general statistics illustrating differential education outcomes of Aboriginal persons. However it is clear his Honour accepted Aboriginal persons suffered relevant social disadvantage.[105] The appellant also tendered statistical material in the Supreme Court suggesting an absence of evidence that any of the Indigenous adults who had been the subject of the 1921 alcohol protection orders issued up to 19 July 2014 had taken any step under ss 9 or 11 of the Act to have decisions reconsidered or reviewed.[108] The exception was said to be a "handful of individuals" assisted by the Aboriginal Legal Services.[109]

[113] I agree with the trial judge's observations to the effect that many Aboriginal people in the Northern Territory experience difficulties with the English language. English may not be a person's first language, they may speak a form of non-standard English such as Aboriginal English, or be a partial English speaker. Further, I agree with his Honour's observation that some non-Indigenous people, particularly those who do not speak English, have English as a second language, are not well educated, or have a disability, may experience similar difficulties and need assistance.[110]

[114] It is the case that the time limitations set by the Act are extremely constrained: three days for reconsideration by an authorised police officer followed by seven days to apply to the Local Court from the decision of the officer. However, the difficulty that may be experienced by Aboriginal persons or some non-Aboriginal persons who possess language or other communication barriers in attempting to comply with the reconsideration and review provisions does not mean the provisions are contrary to s 10(1) of the Racial Discrimination Act.

[115] In Sahak v Minister for Immigration and Multicultural Affairs[111] the Federal Court by majority rejected the approach that has been urged upon this Court by the appellant. The applicant in Sahak was an Afghan national who did not speak or read English. While in immigration detention he lodged an application for a protection visa that was refused by the Minister for Immigration and Multicultural Affairs. The Refugee Review Tribunal affirmed the Minister's decision. He applied to the Federal Court for a review of the Tribunal's decision but as a result of circumstances that were beyond his control, which arose because of his inability to speak and read English and his need to rely on other persons to complete his application, his application was lodged outside of the 28-day period stipulated by the relevant Act. At first instance the Federal Court dismissed the application on the ground that it had been lodged with the Court out of time and the Court had no jurisdiction to extend time. On appeal, it was argued that by force of s 10 of the Racial Discrimination Act, the 28-day time limit did not operate against him.

[116] The majority (Goldberg and Hely JJ) rejected the appellant's argument, noting the impugned provision on its face did not discriminate in the relevant sense, but accepted that s 10 of the Racial Discrimination Act may be enlivened if in fact there is discrimination by reason of the operation of a particular law, even though that law on its face, applies equally to all individuals.[112] Their Honours accepted that s 10 covers discrimination which occurs indirectly as a result of the operation of the law on a right of a person of a particular race, colour or national or ethnic origin. Similar considerations apply to the examination of the reconsideration and review provisions of the Alcohol Protection Orders Act.

[117] The majority in Sahak found that even if it is accepted that not having English as a first language and not being literate in English is a relevant characteristic for the purpose of s 10 of the Racial Discrimination Act, it did not follow that the relevant provision operated to diminish the right to access the Federal Court.[113] Their Honours held that any difficulty such people may confront in completing and filing applications for review within the time limit prescribed is due to their personal characteristics and not due to a circumstance which is dictated by their race, colour, or national or ethnic origin.[114]

[118] The appellant here seeks to invoke reasoning broadly consistent with North J in Sahak. His Honour North J agreed with the conclusion of the majority, but for different reasons. He was disinclined to agree with the reasoning of the majority, as he considered that adopting the verbal formula "individual personal circumstances" avoided the real and practical difficulties which flowed from the operation of the limitation provision under consideration.[115] The appellant urged this Court to find that his Honour was not bound by Sahak and that in any event, the correctness of Sahak is to be doubted given the decisions of Western Australia v Ward[116] and Maloney v The Queen.[117] As already discussed, the circumstances in Maloney are readily distinguishable. Cases such as Ward and Maloney outline the proper approach to be taken to s 10 of the Racial Discrimination Act. Section 10 is not to be approached by identifying the discriminatory effect of the law as to racial characteristics but rather turns on the effect of a law on the relative enjoyment of a right by persons of different races.[118] The reasoning of the majority in Sahak is not contrary to the established authority concerning the application of s 10(1) of the Racial Discrimination Act.

[119] In any event this Court should not depart from decisions of intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation unless convinced the interpretation is "plainly wrong".[119] I am not so convinced.

[120] It is the very tight timeframes for any person who is the subject of an alcohol protection order which potentially creates a compliance problem. Time limitations and requirements for applications to be in writing are not uncommon in our legal system. The same arguments relied on by the appellant could apply to many forms of legal process.

[121] Although in my opinion the reconsideration and review provisions are not discriminatory in the relevant sense, it is appreciated the time limits may well be difficult to comply with, especially for persons who experience communication barriers or who are intoxicated at the time of being served with an alcohol protection. The setting of the reconsideration and review periods are a matter for the legislature and although there may be difficulties with compliance for all manner of reasons, the provisions are not inconsistent with s 10(1) of the Racial Discrimination Act.

[122] On behalf of the respondents it was argued that following the Full Court decision in Johnson v Northern Territory of Australia,[120] an application to extend time could be made in appropriate circumstances pursuant to s 44(1) of the Limitation Act (NT). Such an application to extend time would be of very limited utility. Section 44(1) of the Limitation Act is confined to "actions", both the institution of an action or taking a step in an action. The Limitation Act defines "actions" to include "any proceeding in a court of competent jurisdiction". As any review in the Local Court is dependent on the reconsideration taking place, if the reconsideration is out of time, there can be no relief via the Limitation Act. Section 44(1) would only have potential application where a person managed to comply with the three-day time limit for requesting the initial reconsideration, but for some reason failed to comply with the seven day time limit for instituting proceedings in the Local Court.

[123] It is concerning that the three-day time limit for reconsideration runs from the date of issue, rather than the date of service. The first alcohol protection order was issued on 7 July 2014 at 11:30pm but not served on the appellant until 2:57am on 8 July 2014.[121] Although only some three and a half hours after the issue of the alcohol protection order, in the context of such short time frames, delay of service exacerbates the problems associated with the reconsideration and review limitations. Nevertheless this is not a matter relevant to the discrimination grounds. It is a problem with the Act.

[124] The conclusion on s 9 of the Act makes it unnecessary to determine additional ground (4)(n) which is predicated upon s 9 being found to be invalid. I agree with the reasons and conclusion of her Honour Kelly J that this ground would, in any event, fail.[122]

[77]

[128] His Honour made a similar comment in respect of the decision to issue the second alcohol protection order.[124] It was submitted that this amounted to a finding by his Honour that the police officers had not taken other material or matters into account when issuing the alcohol protection orders. The difficulty with the appellant's administrative law case is the shift from the arguments below to those made in this Court. Before his Honour, the appellant argued ss 6(a) and (b) of the Act were not the only preconditions to the exercise of the discretion to issue an alcohol protection order. Further jurisdictional preconditions were said to apply. In this Court, the argument shifted from the suggested further preconditions to those factors being treated as relevant considerations. In this Court, his Honour's apparent acceptance of the position that the issue of the orders was based, or apparently based, solely on the s 6 criteria[125] was elevated to an incontrovertible finding of fact. Before his Honour the parties had agreed to conduct their case on the basis that the decision to issue an alcohol protection order appeared to have been based solely on the officer's satisfaction of the s 6 criteria.

[129] His Honour was not required to assess whether the officers issuing the orders had regard to any considerations beyond s 6 of the Act. For the reasons given by Kelly J,[126] I agree it would not be correct to permit a change to the appellant's case, potentially circumventing the rule that parties are bound by the course deliberately adopted at trial. Even considering the changed approach taken, given the terms of the Act and its objectives, the administrative law case based on the failure to take into account relevant considerations would fail. It cannot be maintained that within this unusual statutory context the police officers were bound to take particular considerations into account. They were free to do so, but they were not bound to do so.

[130] Section 6 provides that a police officer "may issue" an alcohol protection order if the criteria set out in s 6 are met. Section s 6 of the Act confers a discretionary power enlivened upon the jurisdictional requirements set out in s 6 being met, rather than imposing a duty on a police officer to issue an alcohol protection order whenever those conditions are satisfied. There is no indication in the Act that the words "may issue" in s 6 are used in anything other than a discretionary sense.[127] There is no evidence the respondents misconstrued the exercise of the power as one that required them to issue an alcohol protection order. That part of the administrative law case must fail.

[131] His Honour was not suggesting other factors could not be considered outside of those enumerated in s 6 of the Act. A fair reading of the reasons reveals that in the passage referred to above at [127], his Honour was referring to the jurisdictional preconditions to enliven the power to issue an alcohol protection order. His Honour acknowledged later in the reasons that the Act conferred a broad discretion on officers to issue alcohol protection orders "for the purpose of deterring alcohol-related offendi[128].128 His Honour also acknowledged that the "broad discretion" was consistent with the objects [129]the Act129 which were to "provide police with necessary powers to address and deter criminal behaviour involving alcohol on an individual by making, monitoring and enforcing alcohol protection orde[130].130

[132] In the case of each alcohol protection order, the point plainly made by his Honour was the jurisdictional preconditions which enlivened the discretionary power under s 6 had been met. As mentioned above, it was expressed in a particular way given the agreement between the parties.

[133] Although in my view a substantial part of the Appellant's administrative law case must fail given the way the case was run below, I will deal briefly with the argument based on failure to take into account relevant considerations. The appellant argued in this Court that in addition to the matters in s 6 of the Act, the valid exercise of the discretion required a police officer to consider properly and realistically, the personal circumstances of the appellant. This included the appellant's alcoholism and the consequential inability to control his consumption, the circumstances of the offending including its relative seriousness, and whether the authorisation and issue of the alcohol protection orders was in furtherance of the statutory purpose to deter criminal behaviour arising from alcohol abuse.

[134] The appellant submitted that the requirement for the issuing officer to take these matters into account arose from a consideration of the subject matter, scope and purpose of the statute in accordance with the principles set out by Mason J in Minister for Aboriginal Affairs v Peko Wallsend Ltd.[131] It was held in Peko Wallsend the failure to take into account relevant considerations can only be made out if a decision-maker fails to take into account a consideration which he or she is bound to take into account. What factors a decision-maker is bound to consider is determined by construction of the statute conferring the discretion. Where a statute expressly states the considerations to be taken into account, it will often be necessary for the Court to decide whether those factors are exhaustive or merely inclusive. The factors that a decision-maker must consider but are not expressly stated are to be determined by the implications from the subject matter, scope and purpose of the Act. In reviewing a decision it is not the function of a Court to substitute its own decision for that of the administrator.[132] A Court will not find a decision-maker is bound to take a particular matter into account unless an implication that the decision-maker is bound to do so is found in the subject matter, scope and purpose of the Act.[133]

[135] We were referred to the approach taken in immigration detention cases that have held that Ministers could not exercise specific statutory powers without considering legal or practical consequences for certain detainees, even when the relevant Act made no mention of those considerations.[134] Further, in Moana v Minister for Immigration and Border Protection[135] the Federal Court was concerned with the power to deport a foreign prisoner of "bad character". It was held the Minister was bound to consider the risks to the Australian community of permitting the prisoner to stay, although the Act did not include that factor. The legislative context differs markedly here, such that those decisions are of extremely limited assistance. This Act operates in a different context, namely police officers making quick decisions in a particular environment, most likely a police station when dealing with intoxicated people.

[136] The Act's purpose and objectives as outlined in the Minister's Second Reading Speech[136] give primacy to deterring alcohol-related crime, principally violent crime including domestic violence. However, the Act expressly determines that a qualifying offence must either be an offence against s 23 of the Act or an offence punishable by imprisonment for a minimum of six months.[137] The Act is not confined to offences of violence, however within its framework, and consistent with the existence of a broad discretion to issue an order, while police officers are free to give some consideration to the factors suggested by the appellant, it cannot be said in the context of this Act they are bound to do so.

[137] As the Act sets a low bar for the type of offending that may attract the issue of an alcohol protection order, the argument that an officer is bound to consider proportionality in terms of the significance of the offending and the relevant personal circumstances cannot be sustained. Neither can it be sustained that a police officer should consider that alcohol protection orders are only to be reserved for cases of violence or significant repeat offending. The Second Reading Speech emphasises alcohol-related violence, especially domestic violence, however the Act clearly covers all categories of offending provided the offence is a "qualifying offence".

[138] The appellant argued that alcohol dependency or being an alcoholic is a relevant consideration that a police officer is bound to consider. There is no reason to draw such an implication from the Act. Alcoholics who commit offences when under the influence of alcohol are readily within the Act's contemplation. Alcoholism or alcohol dependence may well be a factor weighing in favour of issuing an order if the person is committing offences when affected by alcohol, notwithstanding the person cannot control their consumption. Even though it may be the case that without taking further preventive steps, an alcohol protection order may be ineffective in respect of an alcoholic, the Act clearly contemplates such a state of affairs. As the trial judge observed, an alcohol protection order is simply one of a number of measures that may be utilised to assist the person or protect the community.

[139] In terms of the argument that the least restrictive means should be considered by police officers in the exercise of the discretion, in the face of the express provisions and the subject matter of the Act, it is difficult to see how such an implication could be drawn. The principle of the use of the least restrictive means is a principle expressly provided in legislation relevant to the use of restraints, in areas such as involuntary mental health treatment and related legislation.[138] The principle is not readily compatible with the subject matter and scope of the Act, nor is it expressly stated.

[140] It is not suggested, nor could it be, that formal reasons are required when a police officer decides to issue an alcohol protection order. The material available to police officers before any of the decisions to issue the orders were made may be ascertained by reference to the bail considerations and associated material referred to on appeal.[139]

[141] Even if the respondents were bound to have regard to the considerations suggested, it has not been demonstrated those factors were not taken into account. In relation to the first alcohol protection order, the first respondent had a full description of the theft that was alleged at the material time, as well as a description of the arrest of the appellant, and the answers given by the appellant to a questionnaire primarily directed to the consumption of alcohol and some brief medical details. The officer's observations of the appellant relevant to his level of intoxication were recorded. That material together with the bail consideration material contained significant details about the appellant's history including his family background, community ties and previous offending. In relation to the section "Protection of the Community", the bail consideration states "[t]he defendant has no regard for the community and will continue to commit offences without any remorse or care".[140] Virtually the same information was available in relation to the issue of the second and third alcohol protection orders, but with variations concerning the breaches of the orders.

[142] In terms of considering whether the decision to issue any of the three orders was so unreasonable that no reasonable person could have arrived at it, the Court was referred inter alia to French CJ's comments in Minister for Immigration and Citizenship v Li and Anor[141] where his Honour said:

[91]

[153] It is also appreciated that legal unreasonableness is not an avenue for the Court to substitute its own view of the impugned decision, or to embark upon a merits review. Beyond the matters to be established in s 6 of the Act, officers determining whether to issue an alcohol protection order have significant decisional freedom, however, the power to issue orders must be reasonable and not excessive, having regard to the objects and purpose of the statute.

[154] Based on the material available to the officer making the decision to issue the first alcohol protection order, it may readily be concluded the issue of the order was not unreasonable. Although the theft was a low-level theft, within the context of the Act, it must be borne in mind the offence of stealing has a maximum penalty of imprisonment for seven years. The category of offending was well over the jurisdictional minimum, despite being a low-level example of offending of that kind. With the additional undisputed observations of the appellant's significant intoxication, his living circumstances, his history of primarily low-level offending and his own attitude to offending, it cannot be concluded it was unreasonable to issue the first alcohol protection order when the statutory context is properly understood.

[155] The second alcohol protection order was issued five days after the first. The appellant was found intoxicated. He told police he had attended NAIDOC celebrations. The qualifying offence was a breach of the first order by drinking alcohol. Police officers had access to very similar material as was available to them when issuing the first alcohol protection order.[159] A database was checked revealing the appellant was on an alcohol protection order.[160] Given the objects and purpose of the Act, the consequences to the appellant of a somewhat longer alcohol protection order, it was not unreasonable in the relevant sense to issue the second alcohol protection order. The qualifying offence appeared to the officer to be made out. The breath test showed a high-level reading. Within the context of the Act, the breach may be regarded as serious given the high level of intoxication evidenced by the reading. The first alcohol protection order had been in place for only a matter of days.

[156] Bearing in mind the purpose of the Act is to deter or prevent alcohol-related offending and given the appellant had, on the available information, only recently committed the theft while significantly intoxicated, it was not unreasonable for the issuing officer to consider a longer order to be appropriate. By operation of the Act, the appellant was to be subject to a six-month alcohol protection order rather than a three month order that ceased at the time of the issue of the second order.[161] The available information concerning personal circumstances at that time does not, in my view, lead to a conclusion that in the particular statutory context, the decision was unreasonable.[162]

[157] The third, or "the later"[163] alcohol protection order was issued on 19 July 2014. The qualifying offence was a breach of the second alcohol protection order. This was the second breach charged against that order as the appellant had been charged the day before (on 18 July 2014) for another breach of the same order. He was not issued with an alcohol protection order on that occasion. This may serve to illustrate that the issue of an order was not considered mandatory in the face of the commission of a new qualifying offence.

[158] With respect to the third alcohol protection order, the officer issuing the order had similar personal background material before him as the material relevant to the first and second alcohol protection orders. There is no reason to think it was not taken into account.[164] The breath test produced a high reading (0.303 BrAC). By operation of the Act,[165] the third alcohol protection order was to be in force for a further 12 months from the conclusion of the second alcohol protection order, a total of approximately 18 months.

[159] It is at this point in my view the exercise of the discretion to issue a further lengthy alcohol protection order at that particular time was unreasonable in the sense described by Li. The second alcohol protection order had been in place for one week only. Neither the original charge of stealing, nor the breach that was the qualifying offence for the second alcohol protection order had been dealt with by a Court. The appellant was on bail for at least some of those offences. He was required to answer those charges in Court. Although not necessary under the Act for a finding of guilt to be made to enable a third alcohol protection order to issue, at the time of the issue of the third alcohol protection order there were other processes in place to deal with the appellant's alcohol-related offending. Having committed another offence of breaching the second alcohol protection order, the appellant was charged with a further offence as might be expected. The issue of a further order at that time, given the history of offending, charging and the issuing of orders was unreasonable and excessive. This is especially in the light of the length of the third order. Police officers were not mandated to issue the third alcohol protection order. It was a matter of discretion. Given the recent history, the issue of a third order at that time was highly unlikely to meet the objectives of the Act. Even having regard to the pressured environment in which police officers make the decisions, common sense must have dictated there was nothing further to be gained in terms of the objectives of the Act from the third order being issued at that time. In any event, police retained the right to consider a further order in the future if there were further breaches or no other process assisted to reduce the appellant's alcohol consumption. In my view the decision to issue the third alcohol protection order, effectively grossly extending the length of the period, lacked reason and common sense.

[160] There was nothing to prevent the appellant from being dealt with in a Court for the offences that were breaches of the earlier orders. If adverse circumstances arose, officers could consider a third alcohol protection order in the light of any court outcomes. The opportunity would not be lost to issue a third order in the future. Some of the appellant's history indicated that if he was supervised in a rehabilitation facility,[166] he could cease drinking alcohol, however the terms of an alcohol protection order are not designed to facilitate supervision and rehabilitation of that kind.

[161] Although it must be presumed punishment for offences, including offences under the Act, serves general deterrence, there would not appear to be justification from the objects and purpose of the Act to imply that orders under the Act serve general deterrence as opposed to personal deterrence. Although the Second Reading Speech refers to the deterrent effect of monitoring and charging persons who are the subject of an alcohol protection order, there is no indication general deterrence is to be achieved or is a reason for the issue of an order.[167] The extension of the duration of the alcohol protection orders by operation of the Act is highly distinguishable from an order of a Court extending an operational period of a suspended sentence following a proven breach.[168] A Court is bound to exercise such a discretion to extend a period in accordance with existing sentencing principles.

[162] Simply because the police officer was the repository of a power to issue the order, and the jurisdictional conditions were enlivened, did not mean its issue was reasonable. The result in my view was patently unreasonable.

[163] While it the case as stated by his Honour that it is "novel" to suggest "persistent offending is a reason to stop administering the criminal law",[169] the unreasonableness does not attach to any decision to charge the appellant with offences, including offences of breaching the Act. It is not suggested that the charges were unreasonable. The third alcohol protection order was a further extension of potential liability beyond what was reasonable in all of the circumstances. The appellant remained at the time, subject to the terms of the second order and was yet to face court proceedings to deal with the original offence and the breaches of the first and second alcohol protection orders. In those particular circumstances the third alcohol protection order was unreasonable, and in my view, disproportionate as a response to the overall circumstances. Proceeding on my understanding of the authorities governing this question, it was an error not to quash the third alcohol protection order.

[164] As set out already, the original stealing charge was later withdrawn, however, given the withdrawal of the charge took place well after the third order was in place, that factor can form no part of the considerations here.[170]

[165] I would allow the appeal in part and quash the third alcohol protection order.

[94]

[169] Reliance was also placed on South Australia v Totani[177] noting comments to the effect that impairment of the institutional integrity of a Court can arise by reference to the position in which the Court is placed within an overall legislative scheme.

[170] The appellant submitted it is the operation of the Act that undermines the integrity of the Court. Further, the appellant contended that the way the appellant was dealt with illustrated why the operation of the Act should attract invalidity on the basis of the Kable doctrine.[178] It was submitted the Kable principle is engaged as the Act's operation entails the eventual emergence of a class of individuals, of which the appellant is a member:[179]

(a) For whom conduct that would otherwise be lawful is criminalised for the duration of any pending or second APOs;

(b) Membership of which class is necessarily selected by a member of the executive accusing an individual of a criminal offence;

(c) Whose membership persists, and may be renewed, notwithstanding that the accusation is:

(i) Negatived either by the executive or judicial branch; or

(ii) That the individual is for any other reason not liable to be prosecuted for the offence the subject of the accusation; and

(d) Whose membership is sustained on the basis only of an alleged breach of an APO.

[171] By operation of the Act, it was emphasised that the various effects on an individual the subject of an order persist, including the effect on liberty, notwithstanding the original charge is severed from the liability they may incur from the alcohol protection order.

[172] Significant discretionary power is vested in police officers with respect to the operation of the Act, however, as pointed out by the trial judge and during the course of oral submissions in this Court, such a circumstance may similarly be brought about by the operation of the Bail Act (NT). In this jurisdiction, bail may be set by police officers with conditions not dissimilar to those that are contained in alcohol protection orders. A breach of such a condition is a breach of bail. Breach of bail is an offence. A charge of breach of bail may be pursued even if the original offence is withdrawn. The appellant argued the operation of such a law is arbitrarily punitive and contrary to the rule of law. Although aspects of the Act are unusual and as has been indicated, in many cases its provisions may not successfully meet its objectives, the Act does not impair the institutional integrity of the Court as envisaged by Kable.

[173] The appellant argues the Act is punitive in its character or operation such as to render it, or parts of it, invalid. Although there are punitive consequences for the commission of offences created by the Act, overall, the Act should not be considered punitive. The Act and its operation are similar to the Bail Act (NT) and the Domestic and Family Violence Act (NT). Those Acts grant police wide powers to make orders that potentially have punitive consequences in the event of non-compliance. Those Acts have not been regarded or held as punitive in nature by virtue of the powers exercisable by police, even though breach of a police order may result in a criminal charge. That is not to suggest it is necessarily concluded the approach taken in the Act will be effective to meet its apparent objectives, however, the perceived or actual shortcomings are matters for the Legislative Assembly. Implicit in the characterisation of the Act as non-punitive is recognition of the principle that the discretionary powers granted will be exercised reasonably.[180]

[174] It is the case, as has been set out already, that the original charge was withdrawn on 21 October 2014. By virtue of s 8 of the Act, an alcohol protection order ceased to be in force upon withdrawal of the charge, however the first alcohol protection order had already ceased to be in force prior to that date by virtue of the operation of s 7(2) of the Act when the second alcohol protection order was issued. Shortly after, the third order was issued. Although I have found the issue of the third order to be invalid

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