02 December 2015

Sweeping Powers

The High Court in Northern Territory Aboriginal Justice Agency Ltd and Anor v Northern Territory of Australia [2015] HCA 41 has dismissed an application for a declaration that Police Administration Act (NT) Pt VII Div 4AA is invalid.

Div 4AA features 'drying out' provisions, criticised by some observers as an inappropriate mechanism for social sweeping.

Section 133AB(2) provides that a member of the Northern Territory Police Force may take a person into custody and detain that person for a period of up to four hours or, if the person is intoxicated, until the member reasonably believes that the person is no longer intoxicated.

Section 133AB(3) provides that at the expiry of the relevant period in sub-s (2), the member may release the person unconditionally, with an infringement notice or on bail, or may bring the person before a justice of the peace or court.

Section 133AB(1) in Div 4AA, provides that the section applies if the member has arrested a person without a warrant in accordance with s 123 because the member believed on reasonable grounds that the person had committed, was committing or was about to commit an infringement notice offence.

In the current judgment the second plaintiff, an Indigenous person resident in the Northern Territory, was arrested by members of the NT Police Force on 19 March 2015 and was detained under Div 4AA for almost 12 hours. She was issued with an infringement notice recording two alleged offences. One was designated "use obscene/indecent behaviour" contrary to s 53(1)(a) of the Summary Offences Act (NT). The other was designated "bring liquor into restricted area" contrary to s 75(1) of the Liquor Act (NT)[2]. The infringement notice provided for payment of fines of $144 and $50 respectively and a levy of $40 with respect to each offence, ie an aggregate $274.

The Northern Territory Aboriginal Justice Agency, which provides legal services to Indigenous people, commenced proceedings in the original jurisdiction of the High Court, joined by the second plaintiff.

The plaintiffs sought a declaration that Div 4AA is invalid. Their contention was that Div 4AA is invalid because it confers penal or punitive powers on the Northern Territory Executive, beyond the legislative power of the NT because that power is subject to the same doctrine of the separation of judicial power which limits the legislative power of the Commonwealth.

The plaintiffs also contended that Div 4AA is invalid because it confers powers on the NT Executive which interfere with or undermine the institutional integrity of the Northern Territory courts.

The High Court, by majority, held that Div 4AA is valid.

A majority of the Court held that, upon the proper construction of Div 4AA, the powers conferred on members of the NT Police Force are not penal or punitive in character. The powers  do not impair, undermine or detract from the institutional integrity of the Northern Territory courts. Div 4AA, properly construed, does not authorise members of the Police Force to detain a person for longer than is reasonably practicable for the member to make a determination about which one of the options under s 133AB(3) is to be exercised.

The Court ordered that the matter be referred to a single Justice for further directions.