Paperless arrests have come under criticism and calls for their scrapping have intensified after a Northern Territory coroner declared them ‘manifestly unfair’ and likely to cause more Aboriginal deaths in custody.
The state coroner also made the recommendation that the laws be repealed during his investigation into the death in custody of Kumanjayi Langdon a 59-year-old man from Yuendumu in Central Australia who died of heart failure while in the Darwin Police watch house in May 2015. Mr Langdon was detained pursuant to a paperless arrest on suspicion of drinking alcohol. He died from heart failure three hours after being taken into custody.
Paperless arrests were introduced by the Northern Territory government in December 2014 and enable police to detain people for several hours without arresting them, charging them or filling out any paperwork. The powers are set out in Section 133AB of the Police Administration Act (NT) and allow the police to detain people for up to four hours or longer if the person is suspected of committing a minor offence such as offensive behaviour in public or offences under the liquor regulations. The person detained does not have the right to seek legal advice while in custody.
Coroner Cavanagh stated in his findings that the laws were manifestly unfair as they disproportionately targeted Indigenous people and in his opinion ‘perpetuates and entrenches aboriginal disadvantage’.
The laws are subject to a High Court challenge, which relates to the constitutionality of the powers. The plaintiffs, the North Australian Aboriginal Justice Agency Ltd are challenging the powers as both contravening the separation of judicial and executive powers enshrined in Chapter III of the Australian Constitution and also undermining the institutional integrity of the courts enshrined in the principles laid out in Kable v DPP  HCA 24.
The Northern Territory Attorney-General, John Elferink has refused calls to repeal the law stating ‘the matter, of course is up for adjudication in the High Court’. He has defended the laws as only reducing paperwork for police and not changing ‘the experience for offenders’.
STEVEN CASTAN is a WA-based barrister, and nationally accredited mediator.