By Alicia Robson-Garth and Lily Neilson
In November 2015, the High Court rejected a challenge to the controversial paperless arrest powers in the Northern Territory. These powers, conferred by the Police Administration Act 1978 (NT) (“the Act”) allow police officers to detain a person without a warrant for up to four hours on reasonable grounds that an infringement notice offence is or about to be committed. The powers are found in s 133AB(2)(b), Div 4AA, Part VII of the Act, inserted into the legislation in 2014.
The case originated from the events that transpired on 19 March 2015, where the second plaintiff, Ms Bowen, an Aboriginal woman, was held in custody at a police station for approximately 12 hours. Pursuant to s 133AB(2)(b), the police were empowered to detain Ms Bowen for the use of obscene/indecent behaviour and taking liquor into a restricted area. Upon release, she was then issued with the infringement notices attached to these offences totalling $247. Prior to the inclusion of the section in 2014, Ms Bowen would have been issued an infringement notice immediately and without being taken into custody.
The first plaintiff, the North Australian Aboriginal Justice Agency (“NAAJA”), argued inter alia these powers were constitutionally invalid, violating the separation of powers. In allowing police to detain a person and then determine if they should be released unconditionally, with an infringement notice, on bail or presented to a court, they were effectively punishing that person. Whether a person is guilty and therefore eligible for punishment is a judicial power, not an executive one. NAAJA asserted that while this doctrine only applies to federal powers, by virtue of s 122 of the Constitution, the Northern Territory was exercising federal powers, and so the doctrine applied.
In the alternative, the plaintiff attempted to invoke the Kable principle. This principle states a legislature cannot confer upon a court a function or power which substantially impairs its institutional integrity and which is incompatible with the integrated Australian court system.
A six-to-one majority held in favour of the Northern Territory. Chief Justice French, and Justices Bell and Kiefel delivered a joint judgment, the conclusion of which was based on a constructionist argument. They drew on the Second Reading Speech of the Police Administration Amendment Bill 2014 (NT), where the Minister outlined the administrative nature of the paperless arrest powers. His main reasoning was that it would allow police officers to return to duty more swiftly. Once they had a reasonable suspicion that an infringement offence had been committed, was being committed or was about to be committed, they could detain the suspect and then return to duty. Meanwhile, the arrestee will be kept in custody until the relative paperwork has been filed at the station. He also suggested the legislation had an “added benefit” of social control. The power enabled police officers to “de-escalate” a situation they believe may turn into a “major incident”.
The judges rejected the plaintiff’s argument that law conferred a judicial power on police officers, as the person was only allowed to remain in custody for as long as it took for the administrative side of the arrest to be completed. The four-hour duration was a maximum, not a recommended amount of time. Whilst acknowledging that arbitrary detention is punitive in nature, they followed the exception set out in Chu Kheng Lim v Minister for Immigration, that where it is reasonably necessary to detain a person awaiting trial, the detention is not punitive, but administratively justified.
Nettle and Gordon JJ emphasised the statutory constructions of paperless arrest powers as the source of their validity and concluded the police did not exceed their powers. The concern in this judgment was to delineate the scope of the police powers.
Keane J highlighted the overall validity of these police powers by rejecting the proposition that the Northern Territory courts were exercising federal jurisdiction. He explains that the courts of the territories ‘are not creatures of the Commonwealth’ and their powers originate directly from the Legislative Assembly of the Northern Territory. Although Keane contended these police powers were lawful, the judge did indicate that a more compelling argument in a claim for damages would be on the basis that the power did not authorise the second plaintiff’s detention for the whole of the period of which she was in fact detained.
The single dissenting judge, Gageler J, delivered a scathing review of the powers given to police officers under Div 4AA of the Act. Whilst conceding that Div 4AA did not exceed the doctrine of the separation of powers, he did argue that the powers fundamentally threatened the institutional integrity of the courts. He argued that the statute conferred on members of the police force the unfettered discretion to hold a person for as long as they decided. This undermined the Kable principle, as it undermined the court’s role as an adjudicator:
[Courts of the Northern Territory] are made to stand in the wings during a period when arbitrary executive detention is being played out … They are then ushered onstage to act out the next scene. That role is antithetical to their status as institutions established for the administration of justice.
Gageler J reflected upon Lim that enunciated two exceptions that would label the detention as administrative. The first being is if the detention is necessary to achieve a purpose and that purpose is authorised by statute and the second being at the discretion of the courts. The powers conferred in Division 4AA do not fall into either category. The four hour duration is not required to fulfil any purpose of the Act and the discretion is left to a police officer not a judicial officer.
Since their induction, the paperless arrest powers of the Northern Territory have been highly criticised by the media and academics. Gageler J was the only judge to acknowledge the statistics that show the large majority of those being detained under Div 4AA are Indigenous Australians.
Critical race theorists, Delgado and Stefancic, propose that racism is most visible to people who are non-white. Clearly, the paperless arrest powers apply to all citizens, regardless of race. However, in practice, the number of Indigenous Australians affected by the law far exceeds the number of non-Indigenous Australians. Race, therefore, is an important factor to be considered in interpreting the law’s application.
On the insertion of the division in 2014, principal legal officer of the NAAJA, Jonathon Hunyer, issued a statement suggesting the law will disproportionately affect Indigenous Australians. The subgroup already occupies over 85 per cent of prison cells, despite constituting 30 per cent of the population. Hunyer’s fears have turned out to be substantiated. Fairfax media reported that of the 731 arrests made under the law approximately 70% of them were Aboriginal or Torres Strait Islanders. One man has also died whilst in custody over a minor alcohol-related offence. After being detained, police officers returned to his cell two hours later to find the well-respected man deceased as a result of a heart condition exacerbated by his drinking. A coronial inquest found that his death was preventable.
This information raises concerns for Aboriginal Australians living in the Northern Territory, especially considering that the vast majority of recommendations outlined in the Royal Commission into Aboriginal Deaths in Custody have been ignored.The controversy rests in the ability of the police to detain individuals for offences that would not normally attract detainment. This directly contradicts Recommendation 87A of the Royal Commission of Aboriginal Deaths in Custody which stated the power to arrest should be one of last resort. This scheme has proved to be yet another unsuccessful law and order response to issues that are more appropriately addressed by social, health and cultural programs.
 Richard Delgado and Jean Stefancis, Critical Race Theory: An Introduction (NYU Press, 2 ed, 2012) 7-8.