Guarding against 
law and order excess

Hugh de Kretser

Last year Kumanjayi Langdon, a proud and respected 59-year-old Warlpiri man, died in police custody in Darwin.

His crime? Police suspected he was drinking in a park. He wasn’t causing any disruption, and was polite and cooperative at all times.

Despite the offence carrying a maximum penalty of a $74 fine, he was handcuffed in public and put in the cage on the back of the police van. Police issued him with an infringement notice but still detained him, searching him and placing him in a concrete cell in the watch house with strangers. He died around three hours later of heart failure.

The Coroner who investigated his death strongly criticised the legislation that allowed his treatment — the Northern Territory’s so-called paperless arrest laws.

The Coroner emphasised that Kumanjayi Langdon was entitled to die in peace, as a free man. Instead, he was treated like a criminal and died in a cell. The Coroner recommended the repeal of the legislation as it ‘perpetuates and entrenches Indigenous disadvantage’.

Why am I writing about his death now?

First, because we must remember the human cost of systemic racial discrimination in our criminal justice system.

Secondly, because the paperless arrest laws are a case study highlighting the challenges in addressing harsh law and order politics. A case study with lessons to heed as the new Royal Commission investigates the Territory’s youth jails.

The now-ousted Country Liberal government introduced the paperless arrest laws in late 2014. The laws purportedly allow police to lock up a person for up to four hours if an officer reasonably believes they have committed a string of minor offences including making undue noise or swearing in public.

Introducing the laws in Parliament, then Attorney-General John Elferink said they were a form of ‘catch and release’ to address social disorder that meant police would no longer be ‘arrest averse’ and could take people ‘out of circulation’ for four hours.

In their first three months, the new laws were used more than 700 times. Over 80 per cent of the people arrested were Indigenous.

With a pro bono team, on behalf of the North Australian Aboriginal Justice Agency and an Aboriginal woman arrested under the laws, Miranda Bowden, we challenged the laws in the High Court.

Incredibly, the NT government argued that the laws didn’t mean what its Attorney-General said they did when he introduced them. Instead, to try and prop up their constitutional validity, the government argued that the laws were introduced for an extremely narrow purpose — to clarify that an infringement notice can be issued where a person is released after an arrest — despite the fact that police were readily locking people up on the basis that the laws did much more than that.

The Court ultimately rejected our case by accepting the government’s argument that the laws meant something radically different from the purpose for which it had introduced them. A loss, but still a win of sorts because on paper, the decision significantly reined in the laws’ operation.

The Court had ample opportunity, relying on existing law, to declare the laws invalid (as the lone dissenting judge, Justice Gageler, did). The Court could have set a precedent that made future governments across Australia far more wary of introducing harsh law enforcement policies.

Instead, the Court delivered a technical, conservative and deeply impractical decision, divorced from the reality on the ground of police officers being encouraged to go forth and lock people up for trivial offences.

The Court noted the possibility of false imprisonment claims if arrest powers were misused. Based on the Court’s decision, they routinely have been but this is small comfort for those affected — with over 2000 arrests by the time of the decision and the tragic death in custody.

The Court put the onus on an over-policed, disadvantaged minority to complain about mistreatment to under-funded Aboriginal legal services in circumstances where legal action against police in the Territory must be started within two months of the alleged wrongdoing (it’s three years elsewhere). Finding justice in these circumstances is incredibly difficult.

Sadly, the Court’s conservatism when considering the law and order excesses of Australian governments is nothing new. Part of the problem is the context for the Court’s decisions. With threadbare constitutional human rights protections and no statutory human rights charters outside of Victoria and the ACT, there’s often little to protect against legislative overreach.

As the new Royal Commission dissects the rotten culture and multiple failures that led to the abuse in the Territory’s youth jails, we need to examine the role of the courts and the lack of human rights protections.

The incoming Territory Labor government has promised to repeal the paperless arrest laws — a welcome commitment. A better one would be to enact a strong Northern Territory Human Rights Charter to help prevent future abuse.

HUGH de KRETSER is the Executive Director of the Human Rights Law Centre.

© 2016 Hugh de Kretser

(2016) 41(3) AltLJ 150
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law and order excess

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