The Northern Territory government is digging in over its controversial paperless arrest laws, in the face of calls from the coroner to ditch them after the death of an Aboriginal man in custody who had been arrested for drinking alcohol in a park.
Critics have claimed the law is in direct contravention of recommendations from the 1991 royal commission into Aboriginal deaths in custody.
Kumanjayi Langdon, a 59-year-old Walpiri man from Yuendemu, was arrested in May and taken to the Darwin police watch house. He was detained under laws introduced by the current CLP government that allow police to arrest and hold people for up to four hours without charge or legal representation, over suspected minor summary offences.
Hours later Langdon died of heart failure, alone in the concrete cell, and a coronial inquiry last week ruled he should have been a free man.
“Kumanjayi Langdon, a sick middle-aged Aboriginal man, was treated like a criminal and incarcerated like a criminal; he died in a police cell which was built to house criminals,” wrote the coroner, Greg Cavanagh.
“He died in his sleep with strangers in this cold and concrete cell. He died of natural causes and was always likely to die suddenly due to chronic and serious heart disease, but he was entitled to die in peace, in the comfort of family and friends. In my view, he was entitled to die as a free man.”
Langdon was arrested after police saw him drinking from a plastic bottle in a Darwin park, an offence under the Liquor Act which ordinarily carries a $74 fine.
“He was not causing any disruption before or during his arrest, and at all times was polite and cooperative,” wrote Cavanagh, later adding there was nothing to indicate Langdon might cause “social disorder” which police would need to “de-escalate” under the law according to the attorney general, John Elferink.
“Nevertheless, s.123 [section 123 of the act] affords police the power to arrest without warrant someone they reasonably believe has committed, is committing or is about to commit an offence.”
While the arrest was lawful, whether it was “unreasonable and disproportionate is a separate question,” said Cavanagh. The coroner listed several other options police had before the “last resort” of arrest, as police general orders dictate it should be.
In his findings Cavanagh strongly criticised the law, describing it as “retrogressive” and unjustifiable preventative detention, and accused it of creating a system that allowed a large population to drink freely in pubs on a footpath but called for Indigenous people who are drinking just one street away to be locked up, “even if they are enjoying peaceful, quiet time with family and friends.”
“That deprivation of liberty and the differential treatment it results in is unacceptable.”
He recommended the law be repealed.
However, Elferink has remained unmoved by the coroner’s findings. Speaking to Guardian Australia, the attorney general, who is also the minister for justice and health, among other portfolios, defended preventative detention and said people needed to “stop making excuses” for those who “engage in self-destructive behaviour year in and year out”.
Elferink said Langdon went on a “taxpayer-funded binge” after being sent to Darwin for medical care. He was then picked up and put in the Darwin watch house, dying within hours.
“Why is that necessarily the police’s or anybody’s else’s fault other than Mr Langdon’s,” he said.
In line with the findings of the royal commission, Cavanagh said the increased number of Indigenous people in custody would likely lead to a proportionate increase in custodial deaths.
Elferink dismissed the connection, and said that left the argument that police should “take nobody into custody”.
“OK, nobody dies in custody, but the question I have in response then is: is it better that they die in a gutter?”
NT federal Labor senator Nova Peris told Guardian Australia Elferink’s language was “sickening”. She said she supported the coroner’s “clear and carefully considered” findings, including the recommendation for an independent expert inquiry into alcohol misuse.
“Typically the CLP always reverts to threatening, punitive action rather than working on real solutions,” said Peris.
“The royal commission into Aboriginal deaths in custody recommended avoiding imprisonment wherever possible. The CLP’s paperless arrests are in complete contradiction of that, and have now resulted in the death in custody of a sick and elderly man.”
Jonathon Hunyor, principal legal officer at the North Australian Aboriginal Justice Agency (Naaja), said Langdon should never have been arrested, and no one had answered the “obvious question” raised by the coroner of why he was being treated as a criminal.
“This bloke had done nothing to suggest he was going to commit any offence against anyone. When police saw him they thought he was drinking alcohol from a bottle but did nothing to draw himself to the attention of police. When they spoke to him he was cooperative.
“There were options apart from arrest available to police which they should have exercised and Cavanagh explicitly said he didn’t blame the individual officer for that because that was the environment he was policing in … created from the top by the attorney [general].”
Cavanagh found the care and supervision of Langdon was adequate, but there were enormous pressures on police and nurses as a result of the paperless arrest scheme and a police operation which encourages the arrest of – mostly Indigenous – public drinkers.
Statistics on paperless arrests are limited, largely due to the “paperless” nature of them, but evidence before the inquiry estimated 95% of people detained in Northern Territory police cells for alcohol offences are Indigenous.
Both Elferink and the police commissioner, Reece Kershaw, deny that Indigenous people are targeted by the laws.
Kershaw also supplied data showing arrest rates dropped by 4.8% on the previous year after the introduction of paperless arrests. There were also 14.3% ferwer protective custody incidents across NT watch houses.
However, Hunyor said the whole-of-NT figures can’t be linked to paperless arrests and it was the stationing of police outside bottle shops on temporary beat locations (TBLs) in other regional centres which have had the real impact on police and hospital admissions.
He said the coroner’s findings “show us how these things actually work in practice and on the ground – how unfair they can be, are being, for individuals like Kumanjayi Langdon. This is what justice looks like to Aboriginal people in the NT.”
A case challenging the constitutionality of paperless arrest laws is currently before the high court.
