New Police Powers a Threat to Indigenous Australians

By Alexandra Lane | 03 Aug 15

Indigenous Australians continue to face heightened levels of discrimination and injustice. Despite calls from international human rights bodies to reform human rights abuses suffered by Indigenous Australians, entrenched attitudes of racism continue to pervade Australian culture and legislation.

A recent example of this is the amendment of the Police Administration Act 1978 by the Northern Territory Parliament in November 2014. This new law has afforded police within the Northern Territory the power to perform “paperless arrests”.

Under the regime police can detain an individual for up to four hours without placing charges, and intoxicated individuals may be held longer. The police may do this where they have grounds to suspect that the individual had committed, was committing, or was about to commit an offence. Of great concern is that this power can be exercised when the offences are minor.

These “minor offences” include:

  • undue noise
  • obscenity in a public place or licensed premises
  • failing to keep yards clean
  • permitting drunkenness in a place where refreshments are sold or consumed
  • possessing or consuming alcohol in a restricted area
  • contravention of a banning or exclusion notice – where a person attempts to enter or remain in an area they have been previously banned from
  • cultivation of less than two cannabis plants or possession of particular cannabis-based products.

Under these reforms, individuals may be denied legal advice and the opportunity to apply for bail for the period in which they are detained. Following the period of detention, police are not required to formally charge the individual. This means that police will have the power to punish mere suspects of minor offences.

Proponents argue that the underlying purpose of the reforms is to minimise the level of paperwork required to be completed by police, to remove “lawbreakers” from the streets and, ultimately, to allow police officers flexibility and the ability to return to patrolling faster.

Targeting Indigenous Australians

Northern Territory Attorney-General John Elferink stands by the “paperless arrest regime”. Elferink downplayed the adverse effects the new law may have and he attributed the disproportionate levels of Indigenous incarceration to their “lifestyles” and “passive welfare”.

In reality, this law will have a disproportionate affect on the Northern Territory’s Indigenous community. Reasons for this include the fact that Indigenous peoples are over-policed, discriminated against and are more visible in the public spaces targeted by the new law.

The reforms undermine the rights of Indigenous Australians and violate their right to be treated with humanity and dignity, to be treated equally before the law and to due process.

More Indigenous Australians will be incarcerated

Incarceration is hazardous, as those deprived of their liberty are vulnerable and at the mercy of those in power. A Larrakia elder died recently when he was placed into custody under these laws for suspicion of alcohol-related offences.

Empirical evidence highlights that Indigenous Australians come to the attention of the police and are incarcerated at significantly higher rates then their non-Indigenous counterparts. The Australian Human Rights Commission has found that Indigenous Australians are 17.3 times more likely to be arrested.

In addressing these issues, the Royal Commission into Aboriginal Deaths in Custody advocated that minor “lawbreakers” should be diverted away from the criminal justice system and that arrest should only be used as a last resort. By targeting minor offenders, these reforms blatantly disregard such recommendations.

Since the rates of Indigenous incarceration are set to worsen, the economic, social, health and safety risks of incarceration are likely to be borne predominantly by the Northern Territory’s Indigenous community. The reforms are also likely to place further strains on community-police relations.

Usurping the judiciary

Not only will these police powers unfairly burden an important segment of our population, the reforms have effectively usurped the role of the judiciary, as police are granted the power to decide the guilt of the accused and their punishment.

Arrest, trial and sentencing are separated at law to ensure an individual is afforded a fair trial. Conflating these removes impartiality and justice from the process and denies individuals their right to be presumed innocent until proven guilty.

Condemnation from the North Australian Aboriginal Justice Agency

An essential voice that needs to be heard in this debate belongs to those who the law will affect the most.

The North Australian Aboriginal Justice Agency (NAAJA) has been vocal on these issues and condemns the reforms.

NAAJA points out that police officers already have powers to arrest and detain people who actually commit offences.

It also asserts that in allowing incarceration for minor offences, the reform is inconsistent with the law-making process and the distinction between major and minor crimes. This is because Parliament has already identified that these offences require less serious sanctions and do not attract a term of imprisonment.

Finally, NAAJA emphasises that this new law may be subject to abuse as there are currently no policies or procedures allowing for effective oversight or monitoring of the application of these powers.

High Court challenge pending

The Human Rights Law Centre, NAAJA and law firm Ashurst have together launched a legal challenge in the High Court against this regime, with results pending. This legal challenge seeks to uphold a number of fundamental rights of democratic societies governed by the rule of law.

The reforms have the capacity to further undermine the rights of an already vulnerable community group. As a society we must question whether policy approaches and laws that indirectly target the community’s most disadvantaged groups are fair, just and necessary.

Alexandra Lane is a Law Student at Monash University. 

Feature image: Victor/Flickr