High Court to hear case against NT's excessive police powers for 'paperless arrests'

The full bench of the High Court will hear an important human rights case next week in Canberra.

The case – bought by the North Australian Aboriginal Justice Agency with the assistance of the Human Rights Law Centre, Ashurst Lawyers and a team of probono barristers led by Mark Moshinsky QC – challenges new Northern Territory police powers introduced into the Police Administration Act. The new powers allow police to detain someone for four hours (or longer if intoxicated), if police believe they have committed, are committing or are about to commit a host of low-level infringement notice offences. These offences include making too much noise, swearing in public and failing to keep ones front yard clean.

In a stark reminder of the importance of this case – and the real life consequences of the paperless arrest powers – the Northern Territory Coroner recently recommended these new powers be repealed, after hearing evidence during a coronial inquest into the death in custody on 21 May 2015 of Kumanjayi Langdon. Mr Langdon was arrested and detained after he was found drinking in a parkland in the Darwin CBD.

The Coroner found that Mr Langdon was not causing any disruption before, during or after his arrest, and was rather enjoying a quiet drink with his family and friends. But the park he was drinking in was a designated public area under the Liquor Act – which made his drinking an offence which carries a maximum penalty of $74. In the past Mr Langdon would have been dealt with by way of an on-the-spot fine. Rather, Mr Langdon was arrested and detained under the new paperless arrest powers. Mr Langdon died in a police cell less than three hours after being detained. The Coroner found that even though Mr Langdon would likely have died due to chronic illness in any event, he was entitled to die as a free man.

Most states, the ACT and the Commonwealth have intervened in the High Court case. The Australian Human Rights Commission has also sought leave to intervene. At the heart of the case are questions relating to whether the Constitutional doctrine of the separation of powers applies to territories, like the Northern Territory. Following from this are important issues relating to the right to liberty, such as the circumstances in which the police (the administrative arm of government) can detain citizens without judicial oversight. The court case will likely go for two days, and we are hopeful to have a decision by the end of the year.

All submissions in the High Court case are available here.

The HRLC's media release from when the case was filed can be found here along with an background info sheet here.

The Coroner’s findings in the Coronial Inquest into the death in custody of Kumanjayi Langdon are available here.