: Paperless arrest powers: High Court challenge

Paperless arrest powers: High Court challenge

Sue Erickson
Northern Territory

On 17 December 2014 the Northern Territory Government commenced the Police Administration Amendment Act 2014, which gives police officers powers to take a person into custody if the police officer believes the person had committed, was committing or was about to commit, specified offences, which include offences such as obscenity, making noise after midnight, disorderly conduct or low-level drug possession. These types of offences are generally dealt with by way of an infringement notice.

The person may be held in custody for up to 4 hours, and longer if the person is intoxicated. While the person is in custody, the police officer may search the person, remove items from the person (which are then required to be returned at the end of the period of time held in custody if possession of the items are not unlawful). A police officer may use reasonable force in exercising these powers. The police officer is not necessarily required to charge the person after releasing the person in custody. The Attorney-General referred to this procedure as a ‘paperless arrest’.

The Attorney-General indicated that these powers would provide flexibility and efficiency in police work, allowing police officers to save time by not having to complete paperwork that is usually required in arresting a person and therefore police officers can return to the beat sooner. The Attorney-General also considers that the detention period may prevent an alleged offender from committing more serious crimes as the detention period takes the person ‘out of circulation’.

The amendments are part of an overall reform of the justice system in the Northern Territory, known as the Pillars of Justice, which is a key policy framework for the Country Liberals government.

These powers were criticised by the North Australian Aboriginal Justice Agency (‘NAAJA’) on the passage of the Bill last year, which they believe will disproportionately affect Aboriginal people. Notably, there is no opportunity to apply for bail while a person is in custody and the person may never actually be charged with an offence or issued with an infringement notice for an offence. Also, the Criminal Lawyers Association of the Northern Territory considers that there is potential for the police powers to be abused by police officers.

NAAJA has since filed proceedings in the High Court challenging the validity of the legislation that grants police these powers. The Human Rights Law Centre is assisting NAAJA with the challenge. The challenge will be brought on two grounds: that the period of detention is in breach of the rule that only a court can detain a person, and that the legislation undermines or interferes with the integrity of the judicial system.

SUE ERICKSON is an Assistant Parliamentary Counsel in the Office of the Parliamentary Counsel, Northern Territory Government.

(2015) 40(2) AltLJ 140
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