High Court to hear challenge to Northern Territory’s punitive police lock-up powers

The Northern Territory’s broad police protective custody powers will be scrutinized tomorrow in the High Court in a challenge brought by the North Australian Aboriginal Justice Agency (NAAJA) and the Human Rights Law Centre on behalf of Aboriginal man, Anthony Prior. 

Mr Prior was apprehended under the Northern Territory’s protective custody laws after police found him drinking in public on New Years’ Eve in 2013.

The Northern Territory’s protective custody laws allow police to detain someone for up to 10 hours if a police officer reasonably believes the person is drunk in a public place and is likely to commit an offence, or may intimidate, alarm or cause substantial annoyance to others because they are drunk.

NAAJA’s Principal Lawyer, David Woodroffe, said that the powers are disproportionately used against Aboriginal people.

“The Northern Territory has some of the most punitive and over-used protective custody laws in Australia. This case is about setting limits to make sure that the powers are more fairly and appropriately used,” said Mr Woodroffe.

Police officers previously gave evidence that they did not know Mr Prior, but believed he was likely to commit a future offence based on an “educated assumption”. The Northern Territory Court of Appeal acknowledged that police had “acted to a certain degree on stereotyping” Mr Prior.

“These powers are used around 10,000 times each year and over 90% of the men and women locked up are Aboriginal. This case highlights the risk that people are being locked up because of racial stereotypes or profiling,” said Mr Woodroffe.

Adrianne Walters, Senior Lawyer at the Human Rights Law Centre, who are coordinating the legal team, said that the Northern Territory should be doing everything it can to avoid unnecessarily locking Aboriginal people up in police cells.

“No other Australian state or territory allows police to lock-up a drunk person just because they may substantially annoy someone, or might commit a future offence. Better safeguards are needed to ensure that people are only deprived of their liberty where it is necessary to protect them and others from harm,” said Ms Walters.

Twenty-five years ago the Royal Commission into Aboriginal Deaths in Custody made clear that locking someone up should only ever occur as a last resort and that police should be required to consider safer, more therapeutic options.

Ms Walters said that almost all other jurisdictions require police to consider alternatives to police cells, like taking someone to a sobering up shelter or into the care of a family member.

“Aboriginal people have died in protective custody. Properly resourced alternatives, like sobering up shelters, are a far better and safer option. Problem drinking is best tackled through the health system, not the criminal justice system,” said Ms Walters.

The case is being heard by the High Court in Canberra on Tuesday 6 December at 10:15am. It is an appeal from the Northern Territory Court of Appeal. A brief explanation of the case can be found here. The parties’ submissions in the case are available here.

Mr Prior is represented by NAAJA, barristers Brian Walters QC, Emrys Nekvapil and Fiona Batten, with the assistance of the Human Rights Law Centre and King & Wood Mallesons.

For media inquiries:

Adrianne Walters (HRLC): 0432 049 383

Hugh de Kretser (HRLC): 0403 965 340

Michelle Bennett (HRLC): 0419 100 519