The high court’s decision to uphold the Northern Territory’s controversial paperless arrest laws could result in more Indigenous deaths in custody, federal senator Nova Peris fears.
The NT politician’s concern was shared by legal and human rights bodies disappointed with the court’s decision on Wednesday to dismiss a challenge to the laws, which allow police to detain people for up to four hours without charge – longer if the person is intoxicated – over minor summary offences.
The North Australian Aboriginal Justice Agency (Naaja) challenged the law, with assistance from the Human Rights Law Centre (HRLC), on behalf of a woman who was held in custody for 12 hours. In its submission Naaja said the law was disproportionate and a breach of the constitutional separation of powers.
However on Wednesday, a majority of the high court bench rejected the assertions the scheme gave the NT executive powers that were “penal or punitive in character” and said the laws therefore “do not impair, undermine or detract from the institutional integrity of the Northern Territory courts”.
Justice Stephen Gageler issued a dissenting report, determining the detention was indeed punitive and the process sidelined courts while “arbitrary executive detention is played out”.
Peris also maintained the measures were punitive and she feared their continued use would result in more deaths in custody.
“While it’s important that we target alcohol-related crime, these laws disgracefully and discriminately target Aboriginal people and do nothing to combat the problem of alcohol abuse at its source,” she told Guardian Australia in a statement.
“The best way to tackle alcohol-related assaults is by targeting the problem of alcohol addiction, not by locking people up for hours at a time, which the NT coroner has said is putting unwanted strain on the system.”
The national Aboriginal and Torres Strait Islander Legal Service (Natsils) said it was disappointed with the decision and was concerned it would result in more deaths in custody.
In May of this year, 59-year-old Kwementyaye Langdon died after a heart attack while in custody in a Darwin police watch house. Police had seen Langdon with a plastic bottle and, suspecting he had been drinking in public, arrested him under the paperless arrest scheme.
Langdon had otherwise not been causing trouble, and in his findings the coroner, Greg Cavanagh, said Langdon was “entitled to die as a free man rather than in a cell for criminals, with strangers”.
Cavanagh said while the arrest was lawful under NT legislation, the paperless arrest scheme was “retrogressive” and unjustifiable preventative detention, and recommended it be repealed.
While the court had rejected the challenge by Naaja and the HRLC, it did so with caveats that “set important limitations” on the broad use originally intended by the NT government, Ruth Barson, senior lawyer with HRLC, told Guardian Australia.
“When the attorney general [John Elferink] introduced the laws he wanted to give police very broad powers, and described them as a form of catch and release,” said Barson.
“To that end these laws have been used over 2,000 times, and over 80% of those times the laws have been used against Aboriginal people.”
Barson said while the court’s decision was not the outcome the legal team was hoping for, it was still a good outcome.
“Essentially the high court has said these courts apply in the same way all other arrest laws apply in the NT and therefore have the same safeguards attached.”
Barson echoed statements by Cavanagh that the laws clearly go against findings of the royal commission into Aboriginal deaths in custody, which urged detention be a last resort.
“We would hope the NT government sees this as a turning point and pursues laws that see far fewer Aboriginal people locked up,” she said.
The principal legal officer for Naaja, Jonathon Hunyor, urged the NT government to reconsider its policy of using arrests and custody to address social problems.
“The high court’s decision reins in an otherwise bad law,” Hunyor said in a statement.
“The Northern Territory 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.”
Elferink, who is also the NT minister for justice, has been contacted for comment on the high court decision. In the past he has consistently defended the laws.
“An additional benefit to the community is intended by the use of such an option to de-escalate social disorder situations or potential situations of public disorder before they escalate into major incidents,” Elferink said in his second reading of the bill.
He lauded the lack of paperwork involved which allowed police to get on with their job instead of sitting at a computer “typing out long-winded arrest files, which effectively aren’t necessary”.
However, on Wednesday the high court said the NT government had failed to show how the laws would have that effect.
