The High Court of Australia has upheld the validity of the Northern Territory’s “paperless arrest” laws, after a constitutional challenge by the North Australian Aboriginal Justice Agency.
The Agency had argued that the paperless arrest laws, contained within amendments to the Police Administration Act, violated the principle of the separation of powers and infringed upon the role of the courts.
The 2014 amendments to the Act allow persons to be arrested for summary offences and held in custody for up to four hours without significant paperwork or charge.
The provisions also apply if police merely suspect that a person will commit a summary offence.
Summary offences are offences that would normally be addressed by an infringement notice and a fine. These include, for example, failing to keep a yard clean, playing a musical instrument so as to annoy or the singing of “any obscene song or ballad”.
A majority of the High Court ruled on 11 November 2015 that the paperless arrest laws were valid and did not undermine the constitutional integrity of the court system.
One of the key arguments made by the Agency was that the ability to hold a person without charge interfered with the court system’s role in supervising detention and arrest.
This argument was rejected. In the Court’s view, a limited period of detention under the statute did not challenge the authority of the judicial system.
The Act did not however permit police to hold persons for longer than is necessary.
The concept of paperless arrests forms part of our Pillars of Justice law reform policy framework. The policy is to permit police officers to detain individuals for up to four hours in relation to public order-type offences and where an infringement notice may be issued. The types of offences to be captured by this post-arrest option are offences attracting an infringement notice under the Summary Offences Regulations, the Liquor Regulations and the Misuse of Drugs Act. – Minister’s Second Reading Speech to the Police Administration Amendment Bill 2014
Opponents of the paperless arrest law say that it means that people are detained for reasons of administrative convenience and without regard to due process considerations. They say that the powers are a disproportionate response for minor offences.
The Northern Territory Government however cites the benefits to police of being able to proactively detain people engaging in antisocial behaviour. The rules also allow police to defer certain paperwork tasks and return to patrol duty more or less immediately after an arrest is made.
The case is North Australian Aboriginal Justice Agency Limited & Anor v Northern Territory of Australia  HCA 41.