Munkara v Bencsevich & Ors

[2018] NTCA 4

NT Court of Appeal

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Interrogate

Catchwords

1. Racial Discrimination
2. › Racial Discrimination Act 1975 (Cth), s 10(1)
3. › Territory law alleged to deny or limit rights of persons of particular race
4. › Whether practical operation of alcohol protection order provisions caused differential enjoyment of rights
5. › Whether criminal offending while affected by alcohol is a function of race
6. › Whether disproportionate impact on Indigenous persons engages s 10(1)
7. › Racial Discrimination Act 1975 (Cth), s 10(1)
8. › Alcohol Protection Orders Act (NT), ss 6, 9(2)(c), 11(2)
1. Racial Discrimination
2. › Racial Discrimination Act 1975 (Cth), s 10(1)
3. › Reconsideration and review time limits
4. › Whether short time limits for reconsideration and review disproportionately affect Indigenous persons
5. › Whether English language difficulties constitute racial characteristic for purposes of s 10(1)
6. › Racial Discrimination Act 1975 (Cth), s 10(1)
7. › Alcohol Protection Orders Act (NT), ss 9(2)(c), 11(2)
1. Administrative Law
2. › Judicial review
3. › Relevant considerations
4. › Whether police officers bound to consider personal circumstances beyond statutory preconditions when issuing alcohol protection orders
5. › Factors bound to be taken into account inferred from subject matter, scope and purpose of Act
6. › Alcohol Protection Orders Act (NT), s 6
1. Administrative Law
2. › Judicial review
3. › Unreasonableness
4. › Whether exercise of discretion to issue alcohol protection orders was manifestly unreasonable
5. › Statutory implication of reasonableness
6. › Disproportionate exercise of administrative discretion
7. › Alcohol Protection Orders Act (NT), s 6

Quick Take

Practitioners challenging facially neutral laws as racially discriminatory under s 10(1) of the Racial Discrimination Act must demonstrate that the law's operation directly limits rights by reference to race, not merely that the law has disproportionate statistical impact on persons of a particular race who engage in qualifying conduct.