Earlier this week, Michael Brull wrote a simple guide to understanding the Northern Territory government’s controversial paperless arrest laws. In part 2, he analyses the High Court judgement which backed the NT.

As I am (hopefully) writing for a lay audience, I will try to simplify the judgment so that it is accessible, leave out much of the legal complexities, and try to briefly set out the nature of the law, the judgments, and the issues I have with them.

I hope that this is not the last word on the subject, and hope this stimulates critical debate from legal scholars on this judgment.

 

The plaintiffs

The first plaintiff was the North Australian Aboriginal Justice Agency (NAAJA), which hoped to strike down the laws as unconstitutional. The second plaintiff was an Aboriginal woman who was arrested for “obscene/indecent behaviour”, and bringing liquor into a restricted area.

The way that law works is that legislatures (parliaments and senates) pass legislation, and the meaning of that legislation is then refined by various courts, which explain with more precision what particular parts of the legislation actually mean.

In many instances if the courts strike down legislation, the (state, territory or federal) government can then change the law and overcome the court’s challenge. In this instance, by arguing that the scheme was unconstitutional, NAAJA and the assisting lawyers raised the prospect that the scheme would effectively be killed. This is because the federal Constitution is very difficult to change, and there is no legal appeal from the High Court.

 

Precedents

This section may not be of interest to all readers, but aims to set out briefly and simply some of the legal context leading to this case.

Back in the 1990s, the High Court very mildly ventured into protecting some rights that the Constitution was actually silent on. For example, it issued judgments finding that there was an implied freedom of political communication.

More famously, it effectively created the concept of native title in Australian law in Mabo 2.

Back in the 1950s, an even more conservative court claimed that the Constitution provided for a separation of powers, even though this wasn’t expressly provided for. In doing so, it implied certain protections for basic rights, which were expanded on in later cases.

Put simply, this provided that only Courts created by the Constitution could use federal judicial power, and they can’t be given non-judicial powers. This was expanded in the 1996 case Kable, which provided that state courts which exercise Commonwealth judicial power can’t be given functions incompatible with those powers.

Put more simply, to give an example, the High Court couldn’t act like police, and the police couldn’t act like the High Court. They had to do their own jobs, and couldn’t do the jobs of the other. This is the separation of powers doctrine.

This was then narrowly confined in other cases, like Fardon in 2004. Part of this was simply a reflection of the changed composition of the Court – slightly more liberal after long years of Labor (Hawke and Keating) in government, followed by particularly dark years with Howard in power.

Another important case in the background is Chu Kheng Lim. Broadly, it held that it’s beyond legislative power to “invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt.”

Or in simpler language, the executive – the police, and other arms of the state – can’t just lock people up, even if the detention isn’t supposed to be about punishment and guilt.

Justices Brennan, Dean and Dawson explained that “involuntary detention of a citizen in custody by the State is penal or punitive in character”, and such punishment can only be given to courts.

However, as in much of law, the devil is in the details, and the High Court made various exceptions to this law, which were duly expanded when more right-wing Justices formed a majority on the court.

Perhaps the worst and most shameful instance of this occurred in 2004, in a case that should be more notorious than it is: Al-Kateb.

In Al-Kateb, a slim majority of four Justices to three upheld the detention of a stateless Palestinian asylum seeker named Ahmed Ali Al-Kateb. His claims for asylum were rejected, and his attempts to return to Kuwait and Palestine were also rejected.

There were thus no prospects of him being released, barring revolutionary change in Israel or Kuwait.

The High Court nevertheless endorsed his detention: it was not “punitive”, but merely administrative. He was being held until he could be removed.

As Justice Hayne explained, just because there were no prospects of Al-Kateb being removed from Australia, “does not mean that it will never occur”.

Thus the High Court carved out one important exception to the principle of not locking up people unless they’ve been found guilty of something by the courts.

 

The Judgments

In my view, the majority judgments can be regarded as the two joint judgments of Justices Kiefel, Bell, and Chief Justice French, and the judgment of Nettle and Gordon. I will briefly set these out, before turning to the dissent of Justice Gageler.

 

Chief Justice French, Justices Bell and Kiefel

The Justices explained that each party sought to advance an interpretation of the laws that would better serve their argument in constitutional terms, though they would not personally favour such an interpretation being accepted.

The NT government lawyers argued that the detention was limited by section 137 of the Act. It provided that (simplifying) “Without limiting the operation of section 123… a person taken into lawful custody under this or any other Act shall… be brought before a justice or a court… as soon as is practicable after being taken into custody”.

The government argued that those detained were to be brought before a justice or court as soon as practicable when ‘paperless-ly arrested’, whilst the plaintiff argued that police could arrest people and detain them for four hours: they only had to make a decision about what to do next at the end of this period.

The three Justices called this debate “arid”, and concluded that, in line with a long history of case law, legislation is generally to be interpreted in ways that are protective of freedom and rights, unless there is strong evidence that the law was created to extinguish those rights.

Thus, they held that the law should be interpreted so that those detained would be released or charged “as soon as is practicable after being taken into custody”.

The purpose of such arrests was crucial in determining whether they are to be permitted – as we have seen, punitive arrests by the executive have generally been found to be unconstitutional.

The three Justices held that the purpose of the paperless arrests scheme was to “provide further flexibility and efficiency in policing work. It would enable police officers to return to their patrol in a more timely fashion, as opposed to being detained for long periods providing necessary paperwork for a court to consider the charges”.

The plaintiff charged that this detention would be punitive, as people could be held for four hours, and then charged. The Justices held that “properly construed”, people couldn’t actually be held for four hours. The police theoretically are meant to rush to figuring out what to do with the people they’ve arrested for offences of the type described above.

The Justices concluded that this detention was “not detention for a punitive or penal purpose”, and thus, neatly evaded the issue of being unconstitutional. To keep a person in custody to punish them “would be unlawful”.

The Justices tried to explain how they envisioned the law properly being applied. They gave an example of an arrest where the police reasonably thought

that the person was about to commit an infringement notice offence…. it is difficult to see what lawful purpose would be served in detaining that person under [the scheme]for more than the very short time necessary to prevent him or her from committing the offence and to establish his or her identity as required by s 133AC. Assuming no other offence had been committed requiring questioning or investigation, there would be no question of charging or bail or bringing the person before a court. The only option would be unconditional release. No infringement notice could issue in such a case. That application of [the scheme]militates against any suggestion that it authorises an officer to keep a person in custody for four hours regardless of the circumstances. 

The three Justices went on to explain that if the “maximum period of detention” was “significantly greater” than four hours, then they might re-examine whether the detention was “administrative rather than punitive”. That question did not “arise in this case”, but the Justices seemingly warned that this scheme was as far as they would go in supporting the NT’s paperless arrest scheme.

The Justices went on to dismiss the Kable precedent, as the detention envisaged by the police isn’t punitive.

 

Justices Nettle and Gordon (Abbott’s appointments)

The judgment of the two Justices reached similar conclusions as the joint judgment just discussed, but includes an extraordinary faith in the police.

The Justices reject the construction of the plaintiff that the police would be allowed to lock people up for four hours and then decide what to do with detainees, rather than being obliged to release them as soon as possible. The Justices explained that this

would have the irrational and capricious consequence that a person arrested under s 123 on suspicion of committing, having committed or being about to commit a very serious offence – say, for example, homicide or rape – must be brought before a justice or court under s 137(1) as soon as practicable unless sooner granted bail or released, but a person arrested under s 123 for a relatively trivial infringement notice offence – say, for example, neglecting to keep the person’s yard clean – could be detained for longer than the time when it becomes practicable to grant the person bail, release the person unconditionally or with an infringement notice, or bring the person before a justice or court. An intention to produce such an irrational and capricious dichotomy is not lightly to be attributed to a legislature…

In particular, this is because of the interpretation principle explained above about the general duty to interpret in freedom-friendly ways when possible.

As will be seen, there was evidence that neutral-sounding words about improving “efficiency” weren’t the only reason for creation of the law. However, the fact that the laws have mostly been applied against Aboriginal people, or what the Minister actually said about his law are disregarded in this judgment. The Justices explain that

That statutory purpose of [the scheme]is found in its text. It is not to be displaced by what was said by the Attorney-General for the Northern Territory when the Bill for its enactment was introduced into the Legislative Assembly of the Northern Territory, or in the subsequent debates in the Legislative Assembly.… Primacy must be given to the statutory language over what has been said in the extrinsic materials.

Thus, the purpose of the law is not punitive, when one disregards the words of the NT Attorney-General, John Elferink.

The two Justices warned that “any detention of the person for longer than required to render it practicable so to release the person or take the person before a justice or court would be unlawful (even if it were within the four hour period specified in s 133AB(2)(a)) and so would be actionable at the suit of the person for damages for false imprisonment.” Which is supposedly a useful remedy, and may act as a deterrent against police arresting those wealthy enough to hire lawyers to chase up such imprisonment.

Presumably, with the exception of extreme cases, it would be difficult to prove that a police officer was not acting with appropriate haste.

The two Justices then consider the plaintiff’s submission that police might arrest and take people into custody for offences where the maximum penalty is “non-custodial and therefore for which arrest and taking into custody may not be necessary”. The Justices respond:

Those concerns are unwarranted. The powers of police to arrest a person and take him or her into custody are only to be exercised for the purposes for which the powers are granted and, therefore, only for a legitimate reason. Where, therefore, a police officer reasonably suspects that a person has committed, is committing or is about to commit an infringement notice offence of such a minor nature that it does not carry or is unlikely to be visited with a penalty of imprisonment, then, unless the offence is continuing or there is an ongoing risk to public safety or order, it is difficult to conceive of a legitimate reason for the police officer to arrest the person rather than issue an infringement notice “on the spot“. The exercise of police powers is also subject to well-established mechanisms of legal supervision. Actions in assault, trespass and false imprisonment lie in respect of unlawful arrest, and exemplary damages may be awarded. And, in the Northern Territory, a deliberate delay in bringing a person who has been arrested before a court is a crime punishable by imprisonment.

That is, the Justices concede that it is “difficult to conceive of a legitimate reason” for arresting people for the trivial offences that the legislation expressly provides for. The Justices nevertheless conclude that the purposes of the legislation are fine, and concerns that the legislation might be used consistently with its own provisions are “unwarranted”. Note that the judgment is completely unconcerned with how the law has been applied in practice when claiming that such concerns are “unwarranted”.

They also appear satisfied with retrospective remedies. That is, after people have been detained, they can hire a lawyer and try their luck in charging the police with false imprisonment.

How would such a case be proven? If police spend their time engaged in other tasks, who is to say that those other tasks didn’t make an earlier release impracticable? How could an officer’s excuses about causes of delays be analysed? Would it depend on other police testifying that Officer X had delayed more than necessary?

It seems the Justices are more content with a theoretical remedy – that would be more readily available to people from a certain socio-economic background – rather than examining its availability in practical terms.

 

Justice Gageler

As noted, Justice Gageler was the lone dissenter. I should acknowledge, in interests of fairness, that he was appointed by the Gillard government. Justice Gageler was the only Justice to acknowledge that the laws have primarily been applied to Aboriginal people. No other Justice saw any interest in that fact.

Justice Gageler was also particularly interested in the words of the person who made the laws, Attorney-General Elferink.

Whilst Justices Nettle and Gordon didn’t want to be distracted by such “extrinsic” material in determining the purpose of the law, Justice Gageler quoted Elferink who “spelt out the true and much broader purpose” of the law.

It gave police “a vehicle by which to remove [summary offenders], contain them and then release them”.

Elferink described it as “a form of catch and release”. Apparently comfortable with people being locked up for four hours, Elferink said:

This system simply restores a simple idea that when a police officer arrests a person for a street offence, they have taken that person out of commission. They bring them to the watch house, drop them off at the watch house, write out the summary infringement notice – so it is not entirely paperless – which goes into the property bag of the person who is then placed in the cells for the next four hours. In four hours’ time, they come out, collect their property, collect their summary infringement notice, and if they wish to contest the allegations in the summary infringement notice, then there are processes for that to occur.

Elferink concluded that, “This means the police will no longer become arrest averse. It will actually say to the police that if these clowns are playing up, arrest them, take them into custody, get them out of circulation”. One might think this was pretty damning, and conclusive in determining the purpose of the law. The other six justices somehow decided that Elferink’s words weren’t even worth rebutting – the judgment by the three Justices studiously avoided these comments given in the Legislative Assembly debate on the Bill.

Justice Gageler held that the legislation provided for detention which “is not limited by reference to the time needed to effectuate any identified statutory purpose, and the duration of that detention within the four hour maximum is designedly left to the discretion of a member of the Police Force.”

Gageler argued that such detention “results from the member acting not as an accuser but as a judge. This is not an occasion to mince words. The form of executive detention authorised by [the legislative scheme]is punitive”.

Justice Gageler observed that after this four-hour detention, regardless of any subsequent prosecution, “the person will already have been punished through the executive detention that has occurred. No subsequent action by a court can change that historical fact.” Thus,

Courts of the Northern Territory are thereby made support players in a scheme the purpose of which is to facilitate punitive executive detention. They are made to stand in the wings during a period when arbitrary executive detention is being played out. They are then ushered onstage to act out the next scene. That role is antithetical to their status as institutions established for the administration of justice.

Justice Gageler thus became the only Justice to strike down the laws as unconstitutional.

 

Conclusion

Justice Gageler was also the only Justice to award costs to the Plaintiffs. Slamming the doors of justice on the plaintiffs, the High Court awarded costs to the government, perhaps determined to also slam the doors on many future plaintiffs daunted by the threat of such an enormous bill for public interest litigation.

Thus, a small non-profit organisation providing free legal service to Aboriginal people in the Northern Territory and an Aboriginal woman, who presumably fought the case with pro-bono representation and assistance from Ashurst Australia, have been saddled with what is most likely an enormous sum, adding injury to injury.

It appears that the High Court has now added another exception to the fundamental principle of not locking up people without trial. Readers can speculate as to why it is that it just so happens that asylum seekers and Aboriginal people have both been effectively excluded from the High Court’s protection of Australians from involuntary detention without trial.

Another exception the High Court has approved is so-called ‘control orders’, purportedly to prevent terrorist attacks, but not those targeted at bikies.

Readers can speculate what these exceptions might have in common, and what this pattern of exclusion might illustrate about the High Court’s protection of fundamental human rights.

In my view, there is little question that the High Court could have easily ruled the legislation unconstitutional. To protect it, five Justices had to find restraint in the legislation that probably wasn’t supposed to be there, and disregard the explicit words of the Attorney-General, who has previously distinguished himself by thumping a desk and shouting at a female Labour MP in the NT, before publicly musing about his desire to slap her.

Two Justices were able to find the law constitutional whilst claiming that if its provisions were used – that is, if people were arrested for the offences it provides people can be arrested for – that would very likely be illegitimate.

Three justices found the law might be punitive if people were detained for a significantly longer period of time, presumably because they know that such detention would never be directed at them.

The fact is, the law provides for people to be arrested and locked up for trivial offences. There is no need for such people to be detained, except that the government wants to get certain people – or certain types of people – off the streets.

It is understood that police will use this discretion in certain communities, and not others.

The NT government sought to streamline this process so that they can detain people more “efficiently”, getting their officers back out on the streets with less time spent on the paperwork that would provide for some police accountability.

Some Justices of the High Court have theoretically placed some limits on how paperless arrests can be conducted in the NT. Whilst some of those involved in the case have expressed some satisfaction at these limits, I suspect they will be of little help.

The remedies that some Justices discuss will be available on a case-by-case basis. They will not be available to most of the Aboriginal people from disadvantaged socio-economic backgrounds, who the laws are intended to target in the first place.

If the police do abuse their powers, it will be difficult to seek systemic change through the courts.

The effect of the court’s ruling, if not its intent, is to limit the operation of the laws on a class basis, excluding from its concern the poorest and most marginalised people in the NT, the very people the laws were seemingly designed to target.