Guarding against law and order excess

This piece was first published in edition 41(3) of The Alternative Law Journal

Last year, Kumanjayi Langdon, a proud and respected 59-year-old Warlpiri man from a large family, died in police custody in Darwin.

His crime? Police suspected he was drinking in a local park. He wasn’t causing any disruption and was polite and cooperative at all times.

Despite the drinking offence carrying a maximum penalty of a $74 fine, he was handcuffed in public and put in the cage on the back of the police van. Police issued him with an infringement notice but still detained him, searching him and placing him in a concrete cell in the watch house with strangers. He died around three hours later of heart failure.

The Coroner who investigated his death strongly criticised the legislation that allowed his treatment — the Northern Territory’s so-called paperless arrest laws.

The Coroner emphasised that Kumanjayi Langdon, who had serious health concerns, was entitled to die in peace, as a free man in the company of family and friends. Instead, he was treated like a criminal and died in a cell. The Coroner recommended the repeal of the paperless arrest legislation as it ‘perpetuates and entrenches Indigenous disadvantage’.

Why am I writing about his death now?

First, because we must remember the human cost of systemic racial discrimination in our criminal justice system. (The Coroner remarked that a street away from where Kumanjayi Langdon was arrested for quietly drinking, are a host of bars and pubs where non-Indigenous people consume large amounts of alcohol and where dress codes prevent Aboriginal drinkers from entering.)

Secondly, because the paperless arrest laws are a case study highlighting the challenges in addressing harsh law and order politics. A case study with lessons to heed as the new Royal Commission investigates abuse in the Territory’s youth jails.

The now-ousted Country Liberal Government introduced the paperless arrest laws in late 2014. The laws purportedly allow police to lock up a person for up to four hours if an officer reasonably believes they have committed or are about to commit, a string of minor offences including making undue noise, swearing in public or failing to keep their front yard clean.

Introducing the laws in Parliament, then Attorney-General John Elferink said they were a form of ‘catch and release’ to address social disorder that meant police would no longer be ‘arrest averse’ and could take people ‘out of circulation’ for four hours.

He specifically said police could arrest people, write out an infringement notice, put it in their property bag, hold them for four hours and then release them. Police policies were amended accordingly.

In their first three months, the new laws were used more than 700 times. Over 80 per cent of the people arrested were Indigenous.

With a pro bono team, on behalf of the North Australian Aboriginal Justice Agency and an Aboriginal woman arrested under the laws, Miranda Bowden, we challenged the laws in the High Court.

Incredibly, the Northern Territory Government argued that the laws didn’t mean what its Attorney-General said they did when he introduced them.

Instead, to try and prop up their constitutional validity, the government argued that the laws were introduced for an extremely narrow purpose — clarifying that an infringement notice can be issued where a person is released after an arrest — despite the fact that Territory police were readily locking people up on the basis that the laws did much more than that.

And so proceeded a strange exercise where the Court ultimately rejected our case, with an order to pay legal costs, by accepting the government’s argument that the laws meant something radically different from the purpose for which it introduced them. A loss, but still a win of sorts because on paper at least, the decision significantly reined in the laws’ operation.

The Court had ample opportunity, relying on existing law, to declare the laws invalid (as the lone dissenting judge, Justice Gageler, did). The Court could have set a precedent that made future governments across Australia far more wary of introducing harsh law enforcement policies.

Instead, the Court delivered a technical, conservative and deeply impractical decision, divorced from the reality on the ground of police officers being encouraged by their government to go forth and lock people up for trivial offences.

The Court noted the possibility of false imprisonment claims if arrest powers were misused. Based on the Court’s decision, they routinely have been — whenever police unnecessarily arrested people for trivial offences or when they issued people with an infringement notice on reception at the watch house and still detained them merely for a ‘catch and release’ purpose.

This is small comfort for those affected - likely more than 2000 people arrested by the time the High Court made its decision, plus the tragic death in custody.

The Court put the onus on an over-policed, highly disadvantaged minority to complain about mistreatment to under-funded, over-worked Aboriginal legal services which are expected to enforce its technical decision. Compounding the issue is the fact that legal action against police in the Territory must be started within two months of the alleged wrongdoing (it’s three years elsewhere). Finding justice in these circumstances is incredibly difficult.

Sadly, the Court’s conservatism when considering the law and order excesses of Australian governments is nothing new. Whether it’s mandatory sentencing, Queensland’s extraordinary anti-bikie laws or the indefinite detention of people seeking asylum, the Court has opted for narrow, deferential approaches.

Part of the problem is the context for the Court’s decisions. With threadbare constitutional human rights protections, no statutory human rights charters outside of Victoria and the ACT, and common law protections that can be easily set aside by willing Parliaments, there’s often little to protect against legislative overreach.

As the new Royal Commission dissects the rotten culture and multiple failures that led to the shocking abuse in the Territory’s youth jails, we need to look broadly and examine the role of the courts and the lack of human rights protections.

The incoming Territory Labor Government has promised to repeal the paperless arrest laws — a welcome commitment. An even better one would be to enact a strong Northern Territory Human Rights Charter to help prevent against future abuse.

Hugh de Kretser is the Executive Director of the Human Rights Law Centre.