The line between a person being at liberty and locked up in a police cell is drawn by the power of arrest. This power is set aside for serious offenders who present a risk to the public. They are arrested in accordance with procedural requirements, which include laying charges requiring a court appearance.
These limits on the power of arrest protect individuals against arbitrary detention in police cells. The Northern Territory government recently introduced laws that cross this line. The harsh consequences of these laws were felt last week when a 59-year-old Indigenous man detained under these powers died in the Darwin watch house.
The laws extended the capacity of police to detain people without filling out necessary paperwork or even laying charges. These powers have been labelled “paperless arrests”.
Section 133AB of the Police Administration Act (NT) allows the police to take into custody for up to four hours (or longer if the person is intoxicated) a person suspected of committing a minor offence, such as offensive behaviour, even if they are not charged with that offence. Where charges are laid, it need not result in a court appearance, as ordinarily required, but the issuing of an infringement notice. The person has no right to legal advice while in custody.
It was reported that the man who died in custody was accused of an alcohol-related offence. He was reportedly visiting Darwin from central Australia for medical treatment.
Rationale for extending the power to detain
NT Attorney-General John Elferink has justified these unprecedented powers on the basis that they uphold social order and provide flexibility in policing work. In his second reading speech for these laws, he explained that they are aimed at public order-type offences, such as summary offences and offences under the liquor regulations. While in custody, police can search a person and use reasonable force where required.
The extension of these powers is the culmination of the broadening of the scope and powers of policing, particularly targeted at Indigenous people, since 2006 when the Federal Police were deployed to NT Indigenous communities. The Northern Territory Emergency Response Act 2007 (Cth) in conjunction with Section 95 of the Liquor Act (NT) gave police more powers to enter Aboriginal land, search for liquor on Aboriginal land and seize and dispose of any “thing” – mostly vehicles – involved in the carriage or consumption of alcohol in prescribed (Indigenous) areas.
Powers to search without a warrant conferred under Division 4 of Part VII of the Police Administration Act (NT) applied specifically to prescribed Aboriginal communities.
The powers were intended to curb Indigenous offending, especially family violence. However, they have had the effect of increasing the policing of minor offences, such as traffic offences.
Increasing Indigenous deaths in custody
A key recommendation of the Royal Commission into Aboriginal Deaths in Custody in 1991 was that arrest should be “the sanction of last resort in dealing with offenders”. The commission’s recommendations sought to curb the disproportionate rate of Indigenous deaths in custody. Both imprisonment rates and Indigenous deaths in custody have continued to rise as the recommendations remain largely unimplemented.
In the Northern Territory, 85% per cent of the prison population is Indigenous despite constituting only 30% of the population. The introduction of paperless arrests is a direct affront to the royal commission’s recommendation.
Since the introduction of paperless arrests in mid-December 2014, these powers have been used for more than 700 lock-ups. 75% of those arrested have been Indigenous.
High Court challenge
The North Australian Aboriginal Justice Agency and Human Rights Law Centre launched a High Court challenge against the paperless arrest regime earlier this year. The grounds for the challenge are that the new detention law lacks judicial oversight and places too much power in the hands of police.
Notwithstanding their constitutional validity, these powers should be repealed on policy grounds. They unreasonably shift the scales of justice towards policing and away from human liberties. They also violate legal principles in relation to presumption of innocence, and do so in a way that particularly undermines the innocence and freedoms of Indigenous people.
The Northern Territory’s incarceration rate has increased more rapidly than any other jurisdiction in Australia over the last decade. It is no coincidence that this has occurred alongside the expansion of police powers. Paperless arrests are the tip of the iceberg, with the latest death in custody bringing into sharp relief the brutal effects of increasing police detention.
Thalia Anthony does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.
Authors: The Conversation