High Court decides separation of powers case

high-court-of-australia-in-canberra

The High Court today handed down its judgment on a case which tested “paperless arrest” laws, and the separation of powers itself, in the Northern Territory.

Relatively new arrest and detention powers in the territory added to the Police Administration Act (NT) gives a police officer the power to arrest and then detain a person for up to four hours without a warrant where the officer believes, on reasonable grounds, that the person has committed, was committing, or about to commit an ‘infringement notice offence‘. These offences range from the relatively minor, and somewhat peculiar offences, such as dumping a refrigerator or other container without first removing the door, to more serious public order laws prohibiting “riotous” behaviour.

It’s important to note that these powers had little oversight from the courts. Only after the four hours were up and someone was brought before the court was the judiciary involved. This formed an important plank of the plaintiff’s argument that the laws gave the executive a power to detain which was punitive or penal in character, and thus beyond the legislative power of the territorial government.

The court held that the four hour time limit is not penal, but administrative in character. However, the case does highlight whether such laws are appropriate. For instance, it’s unjustifiable to detain a person for four hours without recourse for dumping a refrigerator.

And while the power to arrest and detain for infringement notice offences already applies to 35 prescribed offences, the government can simply add more by passing new regulations. These laws deserve more scrutiny.


The High Court’s full judgment, and a summary of the case, can be found here.

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