Anna Rienstra

BY ANNA RIENSTRA

In 2014 police in the Northern Territory (‘NT’) were given new powers to detain people arrested for a minor offence for up to four hours, or longer if intoxicated, under Div 4AA of Pt VII of the Police Administration Act 1978 (NT) (‘PA Act’). On Wednesday, the High Court will hand down its decision in North Australian Aboriginal Justice Agency v Northern Territory (‘NAAJA v NT’), a challenge to these ‘paperless arrests’.

The challenge has been brought by the North Australia Aboriginal Justice Agency (‘NAAJA’), the Aboriginal legal service for the Top End in the NT, because of the disproportionate impact of the new powers on Indigenous people. The second plaintiff, Ms Bowden, is an Aboriginal woman who was arrested and detained under the PA Act for almost 12 hours. At the hearing in September 2015, the plaintiffs argued that detention following arrest under the PA Act infringes the separation of powers doctrine that they say applies to laws of the NT Legislative Assembly. Alternatively, they said that such detention offends the Kable principle by undermining the integrity of the NT courts.

This post addresses why the ‘paperless arrest’ provisions are controversial and examines competing constructions of the provisions, before considering the detail of the separation of powers and Kable arguments.

The ‘paperless arrest’ and why it is controversial

The ‘paperless arrest’ was introduced into the PA Act by the Police Administration Amendment Act 2014 (NT) to allow a person who has committed a minor offence to be detained and released with an infringement notice ‘as opposed to requiring that the person be charged and have those charges heard by a court’. In Parliament the NT Attorney-General described the release of a person with an infringement notice as a tool for promoting ‘further flexibility and efficiency’ in policing work, by avoiding the need for police to prepare the necessary paperwork for a court to consider the charges. Alternatively, following detention, police may release a person unconditionally, release a person on bail or bring a person before a court. The NT Attorney-General characterised the system of ‘paperless arrests’ as a ‘form of catch and release’. He said that the system would operate to ‘de-escalate social order situations or potential situations of public disorder before they escalate into major incidents’.

Since their introduction, the disproportionate application and effect of the arrest and detention powers on Indigenous people in the NT has been alarming. The ‘paperless arrest’ was used over 700 times in the first quarter of 2015, and two thirds to three quarters of those detained during this period were Indigenous. One Indigenous person has died in police custody while detained under the provisions. The NT Coroner has criticised the ‘paperless arrest’ system as ‘manifestly unfair’ in targeting Indigenous people, calling for its repeal.

Competing constructions

The plaintiffs say that these new powers are ‘unprecedented in Australia and in the common law world’. The plaintiffs argue that, on its proper construction, the ‘paperless arrest’ allows police detention of a person without judicial oversight or involvement. Previously, police in the NT could detain a person only for the purpose of bringing the person before a court as soon as practicable or to question the person for a reasonable period. As the ‘paperless arrest’ is without a warrant, there is no judicial involvement in the arrest preceding the detention. Questioning during detention is optional rather than the purpose for which the person is detained.

On the plaintiffs’ construction, the new powers sit uneasily with fundamental criminal law principles. The notion of detention, not for the purpose of investigation but rather as a ‘form of catch and release’, is problematic as it reflects a preventive approach to criminal justice. Detention is a harsh consequence given the non-serious nature of the offences caught by the new powers. The new powers permit detention even if the offence itself could never attract a penalty of imprisonment.

The defendant interpreted s 133AB, which confers the power of detention, as operating subject to s 137 of the PA Act, which requires police to bring a detained person before a court.

With the NT government standing by its legislation, NAAJA went to the High Court with two objections to the constitutional validity of the new powers, both grounded in Chapter III of the Constitution.

The separation of powers argument

The plaintiffs argued that the ‘paperless arrest’ provisions are in breach of Chapter III of the Constitution because they confer judicial power on the NT police. In Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (‘Chu Kheng Lim’) in 1992 Brennan, Deane and Dawson JJ said that, exceptions aside, detention is punitive and can only be imposed by a court as a consequence of a finding of criminal guilt. The plaintiffs contended that the new powers are punitive and thus an exercise of judicial power because they fail to disclose a legitimate non-punitive purpose. According to the plaintiffs, the purpose of Div 4AA is to allow a person arrested for a minor offence to be detained for a ‘superadded period’. This, they contended, is punitive.

In Chu Kheng Lim, Brennan, Deane and Dawson JJ also suggested that laws will be invalid if they require and authorise detention that goes beyond ‘what is reasonably capable of being seen as necessary’ for the identified non-punitive purpose. In NAAJA v NT, the plaintiffs argued that even if Div 4AA could be regarded as pursuing some public order purpose, the new powers are not reasonably capable of being seen as necessary for that purpose. They contended that pre-existing arrest powers in the PA Act are broad and the detention under Div 4AA is not limited by a public order purpose. While the statement of Brennan, Deane and Dawson JJ in Chu Kheng Lim has been questioned in subsequent cases, notably, in Al-Kateb v Godwin and Re Woolley; Ex parte Applicants M276/2003, a requirement of proportionality between the law and the non-punitive purpose recently seemed to find favour with the High Court in Plaintiff S4/2014 v Minister for Immigration and Border Protection.

In contrast, the defendant argued that on its construction of the statute, the purpose of the provisions was a non-punitive one: to allow an arrested person to be brought before a court. On this reading, the new powers fell within an exception contemplated in Chu Kheng Lim. It disputed the plaintiffs’ contention that the period of detention pursuant to the new powers was ‘superadded’, instead arguing that the period of four hours or the longer period due to intoxication would fall within the time specification that a person be brought before a court ‘as soon as practicable’ in s 137. The defendant then contended that the detention is reasonably capable of being seen as necessary for a non-punitive purpose, such as public order and investigative purposes.

The defendant’s construction of the ‘paperless arrest’ provisions as being for the purpose of bringing a person before a court, and their view that the period of detention is not ‘superadded’, are at odds with the NT Attorney-General’s statements to Parliament that the purpose of the ‘paperless arrest’ provisions was to provide an alternative to bringing an arrested person before a court. Further, the government’s construction is also problematic because, if accepted, the legislative amendments would have no work to do in light of the existing provisions.

Chapter III and the Territories power

To succeed in their separation of powers argument, the plaintiffs will need to establish that the limitations implied from the separation of federal judicial power in Chapter III applies to laws of the local NT legislative assembly. This raises difficult questions surrounding the relationship between Chapter III and the Territories power in s 122 of the Constitution.

Divergent views have been taken as to the position of the Territories in the Australian federation. There has been a shift away from the disparate power theory, according to which the Territories sit outside the compact between the Commonwealth and the States, and towards the integrationist theory, which treats Territories as part of the federal system. Yet, there is no express mention of the Territories in Chapter III of the Constitution and, as the plaintiffs highlight, the case law on Chapter III and s 122 has ‘not resulted in a coherent body of doctrine’. In this context, the issue is whether NT courts always exercise Commonwealth judicial power. Beyond the High Court and various federal courts, the judicial power of the Commonwealth is, according to s 71 of the Constitution, exercised by ‘such other courts’ as the Parliament invests with federal jurisdiction. Federal jurisdiction is defined by s 76 to include ‘any matter … arising under any laws made by the Parliament’.

As such, the plaintiffs contended that NT courts always exercise Commonwealth judicial power because all matters that NT courts adjudicate arise under Commonwealth law, whether the law itself is a Commonwealth statute (immediately) or a statute of the NT Legislative Assembly (mediately, through s 122). They argued that the Commonwealth’s conferral of lawmaking power on the NT Legislative Assembly by the Northern Territory (Self Government) Act 1978 (Cth) carries with it the separation of powers restraints that would apply to a Commonwealth law.

The defendant and the Commonwealth said that adjudication of NT laws by NT courts does not enliven federal jurisdiction because the NT Legislative Assembly exercises plenary power and is separate from the Commonwealth Parliament. In doing so, the defendant argued that the powers of the NT Legislative Assembly are not limited by the scope of the powers of the Commonwealth Parliament.

The Kable argument

As applied to date, the Kable principle prohibits legislation that impairs a State or Territory court’s institutional integrity. It prevents the conferral of functions on these courts that are incompatible with their exercise of federal judicial power. The High Court has also found legislation invalid where it usurps an essential characteristic of a court.

Drawing on the High Court’s discussion of State Supreme Courts in Kirk v Industrial Court of New South Wales (‘Kirk’), in NAAJA v NT the plaintiffs contended that supervisory jurisdiction is an essential characteristic of NT courts. They argued that Div 4AA impairs the institutional integrity of the NT courts through failing to provide for judicial supervision of detention in two ways. First, there is no real prospect of a detained person accessing a court during the period of detention. Second, even if a detained person could access a court, the court would be limited to reviewing the legislative criteria for detention and could not consider other factors that are ordinarily taken into account where a person is detained but not yet convicted of an offence.

The defendant argued that the extension of the Kable principle to the usurpation of an essential characteristic of a court was unwarranted and missed the significance of the concept of jurisdictional error in formulating the limit on legislative power in Kirk. The Commonwealth, as intervener, argued that Kirk turned on references to State Supreme Courts in the Constitution and that the plaintiffs did not explain how its reasoning could apply to a Territory court

Conclusion

As the plaintiffs highlight in the opening of their submissions, ‘[t]his case concerns the right to liberty in a classic context – detention of citizens by the Executive without the involvement of the judiciary’. The new ‘paperless arrest’ provisions are highly concerning from a rights perspective. Yet, the plaintiffs’ challenge to the ‘paperless arrest’ provisions takes the High Court into areas of considerable constitutional uncertainty and complexity. Importantly, it is unclear how the High Court will address the competing constructions of the legislation. The challenge highlights the fragility of Chapter III limitations as a protection from arbitrary detention and the imperative for a more robust legal framework for rights protection in Australia.

Anna Rienstra is an intern at the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

Suggested citation: Anna Rienstra, ‘The ‘paperless arrest’: Chapter III and police detention powers in the Northern Territory’ on AUSPUBLAW (9 November 2015) <https://auspublaw.org/2015/11/the-paperless-arrest/>