High Court Holds Hearing Into Constitutionality Of NT Paperless Arrest Laws

Monday 28 September 2015 @ 11.11 a.m. | Crime | Legal Research

The High Court will have to decide whether the Northern Territory’s new paperless arrest laws are constitutionally valid, after it held hearings earlier this month into the case brought by the North Australian Aboriginal Justice Agency (NAAJA).

Arguments of Plaintiff

NAAJA have argued that the new Division 4AA of Part VII of the Police Administration Act (NT) is invalid as it breaches the separation of powers in Chapter III of the Constitution and undermines the integrity of the Court system.  However, the Northern Territory Government argues that the Ch III interpretation of the doctrine of separation of powers does not apply to the territories power in section 122 and that the provisions do not interfere with the role of the courts.  TimeBase has previously written on the paperless arrest laws and the coroner’s inquiry into the death of Mr Kumanjayi Langdon, who died in custody after being arrested under the new powers.

Interveners

The case also attracted a number of submissions from parties seeking to intervene, including the Commonwealth, New South Wales, South Australia, Western Australia, Queensland and the Australian Capital Territoy and the Australian Human Rights Commission.

NAAJA’s written submission set out the key issues in the case as follows:

(a)   First, does the separation of powers enshrined in Ch III of the Commonwealth Constitution limit the legislative power of the Parliament under s 122 of the Constitution? If so, does it limit the legislative power of the Legislative Assembly of the Northern Territory (the NT) because the stream cannot rise higher than its source? And if so, do the impugned provisions contravene the separation between judicial and executive powers?

(b)  Secondly, do the impugned provisions (by effectively removing from judicial oversight the involuntary detention of a citizen) undermine the institutional integrity of the courts of the NT contrary to the principle in Kable v Director of Public Prosecutions (NSW)?

In their submissions, they outline a number of arguments, including that detention is an overstep of power by the executive:

“Because detention under Div 4AA lacks any non-punitive purpose, and because it cannot be regarded as being reasonably capable of being considered necessary for any such purpose, the detention which that Division authorises can only be an incident or result of a judicial order or warrant. Division 4AA purports to allow this detention at the instance of the Executive without judicial order or wanant. It is therefore invalid for conferring judicial power on the Executive rather than on a court as required by s 71 of the Constitution.”

In his submissions, NT Solicitor-General Michael Grant argued that the separation of powers does not apply to territories and noted that existing tribunals demonstrate this:

“The legislative power of the Parliament conferred by s 122 is a plenary power to make laws for the government of any territory, 34 and a plenary power is conferred on the Northern Territory legislature by s 6 of the SGA [the Northern Territory (Self-Government) Act 1978]. The principle says nothing about the operation of s 122 in the context of Ch Ill.

The power of the Legislative Assembly to establish courts, including the Supreme Court, and to confer power on them lies entirely in its general grant of legislative authority, which is "relevantly unconfined". The Northern Territory has established a number of courts and tribunals which exercise both judicial and non-judicial functions.  It has done so on the basis of aview that the doctrine of separation of powers has no application in territories. To conclude that the doctrine of separation of powers operates in the Northern Territory will invalidate the decisions of those courts and tribunals.”

According to The Guardian Australia, a decision is “expected before the end of the year”.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

Sources:

Related Articles: