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Issue #1714      December 9, 2015

Arrest laws upheld

The High Court has upheld the Northern Territory’s controversial paperless arrest laws. The laws allow police to arrest and hold for four hours, or longer if intoxicated, a person they see or suspect of committing a minor crime, such as making a public disturbance or swearing.

Those crimes don’t carry a jail term and people can’t access bail or a lawyer while detained. The North Australian Aboriginal Justice Agency (NAAJA) and the Human Rights Law Centre in Darwin challenged the laws, saying they gave police unprecedented and unnecessary powers which have been used disproportionately against Aboriginal people.

But the High Court found by majority that the laws were valid.

“The powers it confers on members of the police force are not penal or punitive in character and do not impair, undermine or detract from the institutional integrity of the Northern Territory courts,” a summation of the ruling found.

NAAJA principal legal officer Jonathon Hunyor said they were disappointed that the court hadn’t ruled the laws invalid, but pleased that their operation will be significantly narrowed. “The High Court’s decision reins in an otherwise bad law,” he said. “The NT government tried to introduce a law to give police very broad powers to lock people up for minor offences. The High Court has made it clear that the operation of the law is very different in practice.

“Locking people up for minor offending is not the answer. Arrest and detention should only ever be used as a last resort.”

In their first eight months of operation, the paperless arrest laws have been used more than 2,000 times. The laws disproportionately impact on Aboriginal people, with approximately 80 percent of people detained being Aboriginal.

In investigating the tragic death of Kumanjayi Langdon, who died in June after being detained under the laws for drinking in a public park, independent NT Coroner Greg Cavanagh made the extraordinary call for the laws to be repealed, saying they were likely to lead to an increase in Aboriginal deaths in custody.

“A fundamental lesson of the Royal Commission into Aboriginal Deaths in Custody was that we should not be locking up Aboriginal people for trivial offences,” Hunyor said. “The NT government needs to learn that lesson at last and get serious about reducing the risks of more Aboriginal people dying in custody.”

Amnesty International’s Indigenous Rights campaigner Julian Cleary said the NT government should “do the right thing” and repeal the laws. “If the NT is unwilling to adequately address the Coroner’s recommendations, then it’s incumbent on the federal government to take responsibility,” he said.

An on line petition by Amnesty International calling for NT Attorney General John Elferink to repeal the laws has attracted more than 12,000 signatures.

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