Reining in the NT's paperless arrest laws a must

Kumanjayi Langdon’s funeral will be held next week at Yuendemu in the Northern Territory. He was a much loved and respected Warlpiri elder. He died in May, alone in a Darwin police cell, after being locked up under the Northern Territory’s controversial “paperless arrest” laws. His crime was drinking in a public place, an offence that carries a $74 fine.

At the conclusion of the coronial inquest into why Kumanjayi Langdon died in police custody, the Coroner concluded that he died of natural causes but was “entitled to die as a free man”.

The high court on Wednesday issued its judgement in a case challenging the validity of the paperless arrest laws. The case was bought by the North Australian Aboriginal Justice Agency, with the support of a pro bono legal team – including the Human Rights Law Centre, lawyers from Ashurst and barristers from the Victorian Bar.

While the high court did not strike down the laws, it did significantly rein them in.

The paperless arrest laws, introduced in December last year, give police the power to lock someone up for four hours – or longer if they are intoxicated – for minor, “on-the-spot” fine type offences. The offences covered by the laws include swearing in a public place, failing to keep your front yard clean, and making too much noise.

When the NT attorney general introduced these laws, he described them as “a form of catch and release” – likening the work of NT police to sport fishing. He said police will no longer be “arrest averse” as the laws will send the message that “if these clowns are playing up, arrest them, take them into custody, get them out of circulation”.

Few safeguards were intended to apply. Indeed, one of the principal reasons given for the regime was to reduce police paperwork by bypassing the courts altogether.

While it’s disappointing that the high court didn’t rule the laws invalid, it did rule that the new police powers are subject to the normal limits that apply to police arrest and detention powers, contrary to the attorney general’s purpose.

These include limits on the purpose of arresting people for minor offences and requiring that a detained person must be taken before a judicial officer as soon as is practicable – an important safeguard against arbitrary detention.

The decision is a clear reminder of the central importance of the human right to liberty.

Being detained, even for a short time, necessarily involves serious incursions on this fundamental right and is an inherently degrading and risky process. You are hand-cuffed and searched. You have your personal property removed and stored in a plastic bag. You are fingerprinted and put in a concrete cell either alone, or with strangers. And, critically, all power over your health, safety and well-being is given to another person.

This is why both Australian and human rights law say that the removal of liberty should only ever occur as a last resort, where absolutely necessary, and subject to meaningful safeguards.

Wednesday’s decision, and the reading down of the paperless arrests laws, is particularly significant for Aboriginal people in the Northern Territory. From the outset, Aboriginal people have felt the brunt of the laws. At the time of the coronial inquest into the death of Kumanjayi Langdon, eight months after the laws were introduced, Northern Territory police had detained close to 2,000 people – almost 80% of them Aboriginal.

This inequality is not incidental or unsurprising. The Northern Territory has been disproportionately locking up Aboriginal people since it was given self-government. Its imprisonment rate is currently three times the national average and growing.

The Northern Territory Government saw these laws as an easy and efficient way to “clean up the streets”. This is despite the Royal Commission into Aboriginal Deaths in Custody finding, more than 20 years ago, that one of the ways we can stop people dying in custody is to stop detaining them for trivial offences; that people should never be deprived of their liberty unnecessarily.

Clearly, we refuse to learn this lesson. The Northern Territory is perhaps the worst offender, but is not alone in seeing punitive “lock em up” approaches as a way to tackle difficult social issues. It is a lazy approach to policy that dispenses with rigour and evidence, but it appears tough. And the liberty of Aboriginal people is the first casualty.

While Kumanjayi Langdon will never see justice, the decision of the high court is a reminder of the fundamental importance of liberty and the need to carefully guard it from the overreach of government.

Jonathon Hunyor is the Principal Legal Officer at North Australian Aboriginal Justice Agency and Ruth Barson is a senior lawyer at the Human Rights Law Centre

This article was first published by the Guardian Australia.