High Court upholds but curtails Northern Territory’s paperless arrest laws

The High Court has today found the Northern Territory’s ‘paperless arrest’ laws valid, but imposed significant limitations on their operation.

The North Australian Aboriginal Justice Agency’s Principal Legal Officer, Jonathon Hunyor, said the judgment was a reminder of the strict limitations that apply to laws that limit liberty and urged the Northern Territory Government to reconsider using arrest and detention as a solution to serious social problems.

“While we’re disappointed that the court didn’t rule that the laws were invalid, we’re pleased that their operation will be significantly narrowed,” said Mr Hunyor.

“The High Court’s decision reins in an otherwise bad law. The Northern Territory Government tried to introduce a law to give police very broad powers to lock people up for minor offences. The High Court has made it clear that the operation of the law is very different in practice.”

The paperless arrest laws were introduced in December 2014. The laws allow police to lock someone up if they suspect someone has committed, or is about to commit, an ‘infringement notice offence’, which includes minor offences such as making undue noise and failing to keep a front yard clean. When debating the laws in Parliament, the NT Attorney-General described them as a “form of catch and release” to take people “out of circulation.”

“The Northern Territory Government needs to find smarter and more effective ways of addressing social problems. Locking people up for minor offending is not the answer. Arrest and detention should only ever be used as a last resort,” said Mr Hunyor.

In their first eight months of operation, the paperless arrest laws have been used over 2000 times. The laws disproportionately impact Aboriginal people, with approximately 80% of people detained being Aboriginal.

In May this year, a senior Warlpiri man, Kumanjayi Langdon, died in police custody, three hours after being detained under the paperless arrest laws. His funeral will be held next week at his community of Yuendumu.

“We pay our respects to the family of Kumanjayi Langdon and honour his memory. While the laws that saw him locked up are still on the books, we hope this decision will see them used in a much more limited way,” said Mr Hunyor.

“A fundamental lesson of the Royal Commission into Aboriginal Deaths in Custody was that we should not be locking up Aboriginal people for trivial offences. The Northern Territory Government needs to learn that lesson at last and get serious about reducing the risks of more Aboriginal people dying in custody,” said Mr Hunyor.

The Human Rights Law Centre was part of the legal team running the case. The HRLC’s senior lawyer, Ruth Barson, said that the outcome was the second best option.

“The outcome once again highlights the need for governments to rethink their approach to policing, particularly of Indigenous people. The Northern Territory Government tried to introduce a law that gave police a broad discretion to lock people up for minor offences. This case has ensured that important safeguards are in place.”

Ms Barson said that prior to the introduction of the paperless arrest laws, Northern Territory police had sufficient powers to deal with social issues.

The North Australian Aboriginal Justice Agency and Ms Miranda Bowden bought the case. They were represented on a pro bono basis by the Human Rights Law Centre, lawyers from Ashurst and barristers from the Victorian Bar.

Detailed background to the case can be found here.