NAAJA’s principal lawyer, Jonathon Hunyor, said that in the Northern Territory the protective custody powers are used approximately 10,000 times each year, with over 90 percent of the people locked up being Aboriginal.
“Locking drunk people up cannot simply become routine. Standards should be in place to ensure police turn their mind to other options. At its heart, this case is about how police should apply the long-standing principle that arrest and detention should be an action of last resort,” said Mr Hunyor.
The Police Administration Act allows police to lock someone up for protective custody if the person is intoxicated and they pose a risk to themselves or other people, even if the person has not committed a crime.
“It is critical that we don’t allow protective custody to be used as a way of removing Aboriginal people from public places. Our case is about making sure police use their protective custody powers in a fair and proper way, and that people are not being locked up unnecessarily,” said Mr Hunyor.
NAAJA is seeking leave to appeal a decision of the NT Court of Appeal, Mole v Prior, concerning an Aboriginal man who was detained for protective custody purposes on New Years Eve after drinking in public and making an obscene hand gesture at police. He is alleged to have committed a number of offences following being taken into protective custody.
The Human Rights Law Centre’s senior lawyer, Ruth Barson, is coordinating the legal team and said the laws clearly have a disproportionate impact on Aboriginal people and that it is important for the High Court to have an opportunity to consider whether the NT Court of Appeal was wrong in failing to set appropriate policing benchmarks.
“Locking someone up who has not committed a serious crime is a drastic step. Given how frequently these powers are used in the Northern Territory, we need ways to ensure they’re not being misused or overused, and that they are not being applied in a discriminatory way,” said Ms Barson.
The Royal Commission into Aboriginal Deaths in Custody made clear that to reduce the risk of Aboriginal people dying in custody, governments must reduce the rates at which Aboriginal people are locked up.
“Locking up drunk people in police cells should only ever be done as an absolute last resort. We need properly resourced alternatives to detention, like sobering up shelters, which are a far better and less risky option,” said Ms Barson.
NAAJA’s client is being represented by counsel from the Victorian Bar, Brian Walters QC and Emrys Nekvapil.