This is a guest post by Darwin-based legal academic Ken Parish.

You can read my earlier piece on the NT’s so-called “paperless arrest laws” here.

Further to my post on Tuesday, the result in yesterday’s High Court decision in NAAJA v NT [2015] HCA 41 will not have made either side completely happy. The Court upheld the validity of the NT government’s “paperless arrest” law by a 6:1 majority i.e. the NT government won.

However, all Justices determined the matter essentially by application of statutory interpretation principles, and all but two (Gageler and Keane JJ) declined to determine the question of whether Territorial legislatures and executives were constrained by the separation of powers doctrine that restricts the Commonwealth, essentially because it was unnecessary to answer it. They interpreted the legislation as not having a punitive operation, and therefore it would not infringe separation of powers principles even if they applied.

Gageler and Keane JJ both did consider the question, and both concluded that separation of powers does not apply to Commonwealth territories. Both regarded Kruger v Commonwealth (The First Stolen Generations Case) as having already determined that question. Assuming that other Justices agree when an appropriate occasion arises to consider it, the separation of powers question could only be reconsidered/re-opened (on the Court’s own self-denying principles) if it not only regards the holding in Kruger to be plainly wrong but also:

  • that earlier decisions did not rest upon a principle carefully worked out in a significant number of cases;
  • differences between the reasons of the justices constituting the majority in one of the earlier decisions;
  • the earlier decisions had achieved no useful result but on the contrary had led to considerable inconvenience;
  • the earlier decisions had not been independently acted on in a manner which militated against reconsideration (e.g. people have arranged their affairs in reliance on the existing legal rules, and would suffer damage if they were changed, especially having regard to the effectively retro-active nature of judicial decisions).

On those principles it is highly unlikely that the separation of powers question will ever be re-opened, and both government and the legal profession can reasonably safely operate on the basis that it does not apply to Commonwealth territories.

The Northern Territory government would not be quite so happy with the Court’s conclusions on statutory interpretation arguments. The reason is most clearly spelled out in the judgment of Nettle and Gordon JJ. As Martin Clark summarises in an excellent case note on yesterday’s decision:

 Nettle and Gordon JJ construed the power in s 133AB(2) as a power that arises simultaneously with the duty to bring the person before a justice of the peace or court as soon as is practicable unless the person is granted bail or released, provided for in s 137(1): ‘up to four hours’ imposes an upper time limit on the exercise of the duty under s 137, and div 4AA specifically elaborates that general power and duty: at [214] (and see justifications for this reading at [215]–[229]). Consequently, any detention for longer than required to render it practicable to release the person unconditionally, with an infringement notice, or on bail, or take the person before a justice of the peace or a court would be unlawful: [231].

To a significant extent this will thwart what appears to have been one of the main purposes for introduction of the “paperless arrest” provisions. Attorney-General John Elferink explained that purpose in his Second Reading Speech on introduction of the challenged provisions:

“This system simply restores a simple idea that when a police officer arrests a person for a street offence, they have taken that person out of commission. They bring them to the watch house, drop them off at the watch house, write out the summary infringement notice – so it is not entirely paperless – which goes into the property bag of the person who is then placed in the cells for the next four hours. In four hours’ time, they come out, collect their property, collect their summary infringement notice, and if they wish to contest the allegations in the summary infringement notice, then there are processes for that to occur.”

All of the majority Justices based their reading on the interpretive principle that the main “paperless arrest” (detention) provision section 133AB of the Police Administration Act (NT) must be read subject to section 137(1) which requires that any person in lawful custody must be “be brought before a justice or a court of competent jurisdiction as soon as is practicable after being taken into custody, unless he or she is sooner granted bail under the Bail Act or is released from custody.”

It seems unlikely that this requirement to release, grant bail or bring before a magistrate “as soon as is practicable” would be satisfied if Police acted as the Attorney-General appears to have imagined they would i.e. to throw arrested suspects in the police station cells and then go back out on patrol, returning at the end of the shift just in time to release, charge or issue an infringement notice before the expiry of four hours.

In some respects you can understand where Attorney-General Elferink was coming from with the “paperless arrest” provisions. Police, especially in the Darwin and Alice Springs CBD areas, are incredibly overstretched. Crime rates in the NT are vastly higher than other parts of Australia. Several nights per week CBD areas turn into violent human zoos where drug and alcohol-fuelled violence is rife, although the violence involves at least as many young Caucasian males as Aboriginal people and yet the former seem to get arrested much less often. Nevertheless, police need every single unit on the streets to maintain some degree of control and ensure public safety.

The paperwork process surrounding arrest, charge and bail (or ongoing detention to be brought before a magistrate the next morning) is very time-consuming. Completion of those formalities typically takes police patrol members off the street for between one and two hours. In those circumstances it is easy to see why it was an attractive option to have an accelerated (almost) paperless process that allows them to get back on the street without delay and finish the paperwork (or release the suspect or just give them an infringement notice) at the end of a shift. On the majority reasoning in NAAJA v NT this is an option that will no longer be available.

Fortunately there is another and vastly preferable option. It is reasonable to assume that the great majority of people who have been taken into custody under s 133AB are heavily intoxicated (although that is not a legal prerequisite to arrest or detention under the section). For intoxicated people Division 4 of the Police Administration Act (protective apprehension and detention without arrest) has long been available.

The practical problem, at least in Darwin, is that the main sobering up shelter is in suburban Coconut Grove. Taking a person there is itself likely to take a police patrol off the road for up to an hour, and for a third-time detainee the new Alcohol Mandatory Treatment Act also imposes additional significant time-consuming processes.

The “paperless arrest” provisions appear to have been designed in a fairly slapdash manner to give police a method of bypassing the longstanding protective detention/sobering-up provisions and new mandatory treatment processes, in favour of just chucking drunks in the police cells for a few hours with little or no formality. Attorney-General Elferink himself referred to it as a “catch and release” policy, an unfortunate metaphorical reference to the regulations governing fishermen who catch under-sized barramundi!

In light of the decision in NAAJA v NT it is clearly time for the NT government to revisit its policies for dealing with intoxicated persons. It should abandon the ill-considered “paperless arrest” process and instead look at building new sobering-up shelters in or adjacent to CBD areas. That would allow vulnerable intoxicated people to be taken by police to a supportive, treatment-oriented facility instead of police cells, while still getting police units back out on patrol without delay.

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice.

He has been a legal academic for almost 15 years.

Before that he ran a legal practice in Darwin for 15 years and was a Labor Member of the NT Legislative Assembly for almost 4 years in the early 1990s.