High Court finds the exercise of Northern Territory’s punitive police lock-up powers lawful

In a split 4:1 decision today, the High Court upheld the use of broad protective custody powers of the Northern Territory to lock up an Aboriginal man, despite the police relying on stereotyping.

The North Australian Aboriginal Justice Agency’s (NAAJA) Principal Legal Officer, David Woodroffe, said that the powers are disproportionately used against Aboriginal people.

“The Northern Territory Government should be doing all it can to avoid the unnecessary locking up of Aboriginal people. Today we continue to see protective custody and paperless arrest laws being over-used, and more and more Aboriginal people are ending up in police cells,” said Mr Woodroffe.       

Under these laws police can detain someone for up to 10 hours if they reasonably believe the person is drunk in a public place and is likely to commit an offence, or may intimidate, alarm or cause substantial annoyance to others. The powers are used around 10,000 times each year and over 90% of those locked up are Aboriginal.

Following the ruling, Mr Woodroffe called on the Northern Territory to adopt an approach that is health-focused and not punitive.

“The Territory Government needs to move away from punitive approaches that harm our communities and better resource alternatives, like sobering up shelters and rehab programs. These are far safer and better options than police custody,” said Mr Woodroffe.

The case, run by NAAJA with the assistance of the Human Rights Law Centre, examined the use of the laws on New Years’ Eve in 2013 against an Aboriginal man, drinking in a public place in Darwin.

At the first hearing, police gave evidence they had relied in part on an “educated assumption” about what he might do next. The Northern Territory’s Court of Appeal acknowledged police had “acted to a certain degree on stereotyping”.

Director of Legal Advocacy at the Human Rights Law Centre, Adrianne Walters, said while a majority of the Court had found that the police acted lawfully in Mr Prior’s case, the fact remains that the police relied on stereotypes and assumptions.

“All the data shows that these laws are being overwhelmingly used against Aboriginal people. Twenty-six years ago the Royal Commission into Aboriginal Deaths in Custody made clear that locking someone up should only ever be a last resort and that police should be required to consider safer options,” said Ms Walters.

“These powers are excessively broad and must be reined in. No other state or territory allows police to lock up a drunk person to prevent the possibility that they might commit an offence or substantially annoy someone. The laws do nothing to address problem drinking and fly in the face of recommendations by the Royal Commission into Aboriginal Deaths in Custody,” added Ms Walters.

A brief explanation of the case can be found here. The parties’ submissions in the case are available here.

Mr Prior was represented by NAAJA, barristers Brian Walters QC, Emrys Nekvapil and Fiona Batten, with the assistance of the Human Rights Law Centre and King & Wood Mallesons.

For media inquiries:

Adrianne Walters, Director of Legal Advocacy at the Human Rights Law Centre: 0432 049 383

Michelle Bennett, Director of Communications, Human Rights Law Centre: 0419 100 519