In a judgment cutting both ways, the High Court upheld the Northern Territory’s “paperless” arrest scheme but put an end to Attorney-General John Elferink’s “catch and release” vision for this controversial police power.

Enacted last year, the “paperless” arrest scheme was the territory government’s response to high rates of alcohol-fuelled crime. Police were granted wide discretion to detain drunk people for four hours, or until they were no longer intoxicated, in anticipation of their committing fineable offences.

Having been detained by police for 12 hours under the law, Miranda Bowden constitutionally challenged the scheme as a breach of civil liberty and for giving police a punitive power that belongs only to the courts. The High Court upheld the use of “paperless arrests” but said they could only be used in certain circumstances, and only as a last resort.

Human Rights Law Centre (HLRC) senior lawyer Ruth Barson sees the judgment as a partial victory, and she is pleased the High Court has limited the use of paperless arrests away from Elferink’s “catch and release” intentions, which would have turned the paperless arrest scheme into an essentially unfettered police power, exercised at will.

“[The High Court’s ruling] confines [paperless arrests] in such a way that you can only arrest essentially for legitimate reasons and as a last resort. And if you do detain someone, you must take them before a judicial officer so they can apply for bail or plead not guilty or run their case as soon as practicable,” Barson told Crikey.

Barson points to Kumanjayi Langdon, a 57-year-old man who was arrested for public drinking and died in a police watch house. She says the High Court’s stricter reading of the law now prohibits unnecessary detainment periods. “It’s no longer OK to just leave someone languishing in a police cell.”

North Australian Aboriginal Justice Agency (NAAJA) lawyer Jonathon Hunyor, acting as Bowden’s counsel, told Crikey he was pleased that the High Court had clearly laid out the limitations on the powers of the police but remained concerned about the reality behind the walls of the police station.

“How long are people being held for? What’s the reason they’re held? Is there a legitimate concern about public safety or are they just being held because police think they are about to get in trouble?”

Following the ruling, NAAJA expects the police will conduct paperless arrests as laid out by the High Court, and Hunyor is confident that in most cases they will.

“We’ve lost the case, but we’re pleased they’ve read the law in a much more restrictive way.”

Prior to enactment, Chief Minister Adam Giles saw paperless arrests as lifting the administrative burden for NT police to help the Country Liberals drive down alcohol-fuelled crime rates. He said in a media release:

“The main advantages of this system are that it gets troublemakers off the street quickly and allows Police to delay dealing with their paperwork until later in their shift, keeping them on the streets when they’re needed most.”

Paperless arrest powers formed part of the Giles government’s “Pillars of Justice” strategy, and serious assaults in the NT have dropped 24% since the first measures were introduced in 2013.

The law is strongly opposed by NAAJA and the HLRC for unjustly contributing to the disproportionate incarceration of the state’s indigenous population, who account for roughly 80% of the paperless arrests made so far.

The Northern Territory has the highest imprisonment rates in the country, and Barson says Aboriginal people constitute over 85% of the prison population.

“These laws represent bad policy, they go directly against the recommendations of the Royal Commission into Aboriginal Deaths in Custody and essentially they entrench the high rates at which Aboriginal people are detained rather than represent good policy and reduce those rates,” Barson said.

NAAJA and the HLRC are continuing to consider other legal avenues for their client and intend to monitor carefully whether police are obeying the High Court’s stricter guidelines.

“We hope that people will come to us if they feel unfairly treated or locked up without a good reason.”