July 12, 2015
The Northern Territory’s controversial “paperless arrests”, which gives police unprecedented powers to arrest people for minor offences without a warrant, are being challenged in the High Court for bypassing a fair judicial process.
Police are currently able to detain a person for up to four hours for offences including drunkenness, swearing or even “failing to keep a front yard clean” and “playing a musical instrument as to annoy”. The arrest can be made if police believe the person has committed, was committing or was about to commit the offence. No warrant is given and the person may not have the right to apply for bail or contact a lawyer.
In a submission lodged with the High Court this week by the North Australian Aboriginal Justice Agency, it says the legislation is taking away people’s rights and allowing police to essentially punish people on suspicion of committing a crime.
“The new powers conferred on NT Police are unprecedented in Australia and in the common law world,” it says.
According to documents from a freedom of information request, there have been 731 arrests from January to March this year under the new law, of which 525 arrests were of Indigenous people. In May, Kwementyaye Langdon, a 63-year-old Indigenous man, died in police custody in May after being arrested for drinking in public. His death was blamed on the paperless arrests.
The Australian Labor Party, Australian Greens and the Australian Human Rights Commission have voiced their concern over the sweeping laws, saying they undermine people’s rights in a state that has the highest incarceration rates in the country.
But NT Attorney-General, John Elferink, defended the legislation, saying it was not reasonable to expect police officers to do “two and a half to three hours of paperwork” for minor offences that will “very likely lead to a guilty plea”.
“What a paperless arrest does is enable a truncated police procedure,” he told Fairfax Media. “Trial and determination of guilt or innocence is left entirely to a court or to the person who has received the notice,” he said.
“It is very unlikely that a police officer would lock someone up because they think they’re about to swear,” he said. “That’s just absurd. How can you tell if someone is about to swear?”
Mr Elferink, a former police officer, introduced the laws in October last year, saying he encouraged police to make use of their new arrest powers as often as possible.
“I want police to be able to clearly demonstrate to the people of the Northern Territory that they are in control of the streets,” he told Parliament.
When asked whether he was concerned about the disproportionate number of Indigenous people now being arrested under these laws, Mr Elferink replied: “I’m concerned that people are being incarcerated on a daily bassis irrespective of their race because when people are arrested it is indicative of issues in our community.”
But Labor’s Indigenous affairs spokesman Shayne Neumann disagreed, saying the laws had a “disproportionate impact on Aboriginal people.”
“Combating crime is an important priority for any government but we cannot abandon the longstanding checks and balances of the criminal justice system,” he said.
Greens spokeswoman on Indigenous affairs Rachel Siewert said the laws were left to the discretion of the police officers, which was setting a dangerous precedent.
“It’s hugely concerning,” she said. “We already have the appallingly high incarceration rate in the Northern Territory and in Western Australia … and we’re trying to address that and this does need a national response.”
President of the Human Rights Commission, Professor Gillian Triggs, told the audience at the Law Institute of Victoria that the paperless arrests “exacerbated” the disproportionate amount of Aboriginal and Torres Strait Islanders being held in detention.
She said such powers permitted detention for several hours without the person being brought to court for offences that “in many cases do not even attract the sanction of imprisonment”.
Professor of law George Williams said the law was “remarkable” given the long history of powers being misused by public officials in the Northern Territory.
“I’m deeply concerned by the law, it’s impact, and it is repeating some mistakes such as the mandatory detention scheme on the late 1990s,” said Professor Williams, from the University of NSW.
“It led to suicide in jail and a big impact on the Aboriginal community before it was used.”
Indigenous people comprise more than 85 per cent of the prison population in the Northern Territory despite making up only 30 per cent of the general population.
The case will go before the High Court in September.