‘Paperless Arrest’ police powers of detention validated but constrained

North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41 (11 November 2015)

The High Court of Australia has upheld the validity of laws granting police in the Northern Territory new powers of post-arrest detention for infringement notice offences.  However, it adopted an interpretation of the legislation which confines their exercise.

Facts

In December 2014 the Northern Territory (NT) police were granted new powers, known as "paperless arrest", under s 133AB of the Police Administration Act (NT) (Act).  The section states that police may detain an arrested person for up to four hours (or longer if intoxicated) if they suspect that the person has committed, or is about to commit, an infringement notice offence.  Such offences are largely minor in nature and include swearing in public, failing to keep a clean front yard, and alcohol-related and disorderly conduct offences.  Section 133AB states that "on the expiry" of the period of four hours (or longer if intoxicated) the police may: release the person unconditionally; release the person and issue an infringement notice; release the person on bail; or bring the person before a court.

Unless the third or fourth options are chosen, the detention involves no judicial oversight, and offers no real opportunity for a person to challenge their detention.  Police have exercised these powers more than a thousand times since their introduction.  A disproportionately high number of people detained under the new laws are Indigenous and at least one person has died while detained under the regime.

The North Australian Aboriginal Justice Agency and an individual plaintiff challenged the constitutional validity of the legislation.  They argued that:

• The detention power conferred by s 133AB was punitive in nature, and therefore contravened the separation of powers enshrined in Ch III of the Constitution (which the plaintiffs contended applied to the NT).
• Alternatively, it undermined the institutional integrity of the NT courts contrary to the principle in Kable v DPP [1996] 189 CLR 51, which invalidates state and territory legislation requiring their courts to act in a way inconsistent with them being invested with Federal jurisdiction.

Decision

In a 6:1 decision, the Court held that the legislation was valid.  In a joint judgment, French CJ, Kiefel and Bell JJ affirmed the principle of legality, which favours an interpretation minimising encroachment on fundamental rights and freedoms.  Their Honours re-emphasised its significance in cases which relate to the liberty of the person.

Accordingly, their Honours construed s 133AB as subject to the statutory requirement that arrested persons must generally be brought before a court as soon as reasonably practicable.  Therefore, s 133AB did not authorise every person to be detained for the full period.  The period merely imposed a cap on what was a reasonably practicable time for police to make a determination about how to deal with the person.

The power must also be exercised for proper law enforcement purposes under the Act, and police cannot continue to detain a person other than for those purposes.  In other words, s 133AB did not confer an unfettered discretion upon police to hold a person for up to four hours regardless of the circumstances.

On that construction, their Honours considered that the legislation did not authorise punitive detention by the executive.  However, their Honours noted that, had the maximum period of detention been significantly longer, it may not have been justified by legitimate law enforcement purposes.

This meant that s 133AB did not breach the separation of powers doctrine (if it applied in the NT – this was left open).

Similarly, because s 133AB should be read consistently with the existing law governing post-arrest detention, the plurality considered that it did not impair the institutional integrity of the NT courts by removing their practical ability to supervise detention.  Importantly, however, the plurality left open the possibility that legislation which did remove that ability could be constitutionally impermissible.

Nettle and Gordon JJ took a similar approach to the construction of the legislation and the constitutional arguments.

Keane J did not deal with the construction issue and rejected both the separation of powers and Kable arguments. 

Gageler J, in dissent, would have held the legislation invalid on Kable grounds.  His Honour noted that the Court should not strain to interpret legislation as constitutionally valid if that meant departing from ordinary principles of statutory construction or the plain meaning of the legislative text.  In his Honour's view, the text and legislative history made clear that s 133AB conferred a power of detention on police for the specified periods without any purposive limitation.  As stated by the Attorney-General during parliamentary debates on the amendments, it was "a form of catch and release."

His Honour concluded that the Act authorised punitive detention.  The period of detention was not reasonably necessary to achieve any orthodox law enforcement purpose and was left to the discretion of police.  As such, it was a punitive power, under which police acted not as accuser but as judge.

Gageler J considered that it was inconsistent with the institutional integrity of the NT courts that they would be obliged, in any proceedings following from the detention, to recognise this punitive executive detention.

Comment

While the Court upheld s 133AB, the majority confined its operation having regard to the principle of legality.  That may reduce the impact of the "paperless arrest" power and is a reminder of the power of the principle in Australian law.  However, Gageler J's dissent (which reasoned that the majority's construction was divorced from the text of the legislation) highlights the risk that, if the principle gives rise to a strained statutory construction, it could produce results which are difficult to apply in practice and for the public to understand.

Gageler J's dissent also highlighted the potential significance of the Kable doctrine (which applies to all the states and territories) for the protection of human rights.  Because they adopted a different statutory construction, the majority judges (apart from Keane J) did not consider in any detail the circumstances in which involving the court in recognising punitive detention by the executive would breach the Kable principle.  The Court may pick up this thread in future cases.

Josephine Langbien is a lawyer at Ashurst.

Note: The Human Rights Law Centre acted in this case with the kind assistance of Ashurst and barristers from the Victorian bar. You can read our media release about the decision here.