The attorney general of the Northern Territory, John Elferink, has conceded paperless arrest laws were misused when police detained 59-year-old Kwementyaye Langdon, who later died in custody.
But he remained steadfast in his defence of the controversial laws, claiming vindication after a high court challenge brought by justice agencies was dismissed on Wednesday.
Langdon, a senior Walpriri man, died in a Darwin watch house in May after he was arrested by police who saw him drinking from a plastic bottle in a public park. He was issued a $74 infringement notice and taken into custody under the paperless arrest laws. Langdon died about three hours later of a massive heart attack, and coroner Greg Cavanagh found that while the detention did not cause his death, Langdon was entitled to die as a free man, not alone in a cell.
In Wednesday’s decision the high court justices said the arrest power “was prescribed for the purpose of enabling police officers to decide how to deal with persons taken into custody.”
It followed then that Langdon should not have been detained after being issued with an infringement notice, the lawyers who brought the high court case said.
In an interview with Guardian Australia, Elferink conceded that under the law “once the infringement notice is issued to a person then they are on their way”.
“The process was always intended to be that the infringement notice was delivered at the end of the process and I’m sure that police will change that very minor detail appropriately,” Elferink said.
A majority of the high court dismissed arguments by the North Australian Aboriginal Justice Agency (Naaja) and the Human Rights Law Centre (HRLC) that the laws, which allow police to detain a person for up to four hours – or longer if intoxicated – on suspicion of minor summary offences, were punitive and penal, and unconstitutional.
While disappointed with the result, Naaja and HRLC lawyers said the court’s decision reined in aspects of the law, and set limits on its application.
Amnesty International echoed the sentiments, and all groups again called for the law to be repealed.
But Elferink disputed the groups’ claims, saying the high court’s decision imposed no further conditions on the police power.
“A police officer doesn’t use their power of arrest in the first instance,” he said.
“If they have the capacity to deal with the matter by way of a summons or caution or some other vehicle to deal with some person who is misbehaving then they are still obliged to follow all of those processes.”
He said the paperless arrest laws had been interpreted inaccurately by critics.He said both that the scheme provided “an extension of [the police’s] normal powers of arrest” and “adds nothing to their powers of arrest at all”.
In debating the bill in parliament last year, Elferink described the laws as a “form of catch and release” which takes a person who is suspected of committing a street offence “out of commission”.
“This means the police will no longer become arrest-averse. It will actually say to the police that if these clowns are playing up, arrest them, take them into custody, get them out of circulation.”
Writing for Guardian Australia on Thursday, Ruth Barson, senior lawyer for HRLC, and Jonathon Hunyor, principal legal officer at Naaja, said the NT government saw the laws as an “an easy and efficient way to ‘clean up the streets’.”
“This is despite the Royal Commission into Aboriginal Deaths in Custody finding, more than 20 years ago, that one of the ways we can stop people dying in custody is to stop detaining them for trivial offences; that people should never be deprived of their liberty unnecessarily.”
The royal commission’s findings were also noted by Cavanagh. Following the high court decision rights groups and federal senator Nova Peris expressed fears there would be more deaths in custody.
About 80% of the almost 2,000 arrests under the scheme so far have been of Indigenous people.
Elferink said Indigenous people made up a large proportion of the NT population, were overrepresented in the justice and health systems, and had negative education indicators.
“This [legislation] is not targeted at Aboriginal people,” he said. “I will always argue and maintain that Aboriginal people are the victims as well. That’s something that’s consistently overlooked when people talk about Aboriginal people in the custodial and criminal justice system.”
Cavanagh labelled the law regressive and recommended its repeal.
The indigenous rights campaigner at Amnesty International Australia, Julian Cleary, on Thursday endorsed Cavanagh’s call.
“The high Ccourt’s decision serves to clarify the operation of these laws. It remains our view that these laws are manifestly unjust and open to abuse,” Cleary said in a statement.
“The NT government should do the right thing and repeal these laws. If the NT is unwilling to adequately address the coroner’s recommendations then it’s incumbent on the federal government to take responsibility,” he said.
