The Northern Territory’s harsh police protective custody powers will come under scrutiny after the High Court agreed to hear a legal challenge brought by the North Australian Aboriginal Justice Agency (NAAJA) on behalf of Mr Anthony Prior.  

Mr Prior, an Aboriginal man, 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 an officer reasonably believes the person is drunk in a public place and is likely to commit an offence or intimidate, alarm or cause substantial annoyance 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 ensuring these powers are used fairly and appropriately,” 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’.

“Over 90% of the men and women locked up under these laws are Aboriginal. This case highlights the risk that people are being locked up because of stereotypes or profiling,” said Mr Woodroffe.

The Human Rights Law Centre’s Director of Legal Advocacy, Ruth Barson, who is coordinating the legal team, said that the powers are used around 10,000 times each year and that Northern Territory should be doing everything it can to avoid unnecessarily locking people up.

“The Northern Territory’s lock-up rates are staggeringly high. No other Australian state or territory has protective custody laws that allow police to lock-up a drunk person on the mere belief that they might commit a future offence,” said Ms Barson.

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

“Properly resourced alternatives to detention are a far better and safer option. Problem drinking is best tackled through the health system, not the criminal justice system. Unnecessarily locking people up isn’t the answer,” said Ms Barson.

The case will be heard by the High Court in Canberra on 6 December 2016 at 10:15am. It is an appeal from the Northern Territory Court of Appeal.

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