In this case, the High Court of Australia upheld the validity of laws granting police in the Northern Territory new powers of post-arrest detention for infringement offences (known as 'paperless arrests' powers). The North Australian Aboriginal Justice Agency (NAAJA) and the plaintiff challenged the constitutional validity of the laws and argued that: - the detention power was punitive in nature and contravened the separation of powers under Ch III of the Constitution (which they argued applied in the NT) - alternatively, it undermined the institutional integrity of the NT courts contrary to the principle in Kable v DPP (which invalidates state and territory legislation that requires courts to act in a way inconsistent with their Federal jurisdiction). 

In a 6:1 decision, the Court held that the legislation was valid. In a joint judgment, French CJ, Kiefel and Bell JJ affirmed the principle of legality, which favours an interpretation minimising the impact on fundamental rights and freedoms, including the right to liberty. Whilst finding the legislation was valid because it did not breach the separation of powers doctrine, their honours noted the limits on the detention power, including that legislation which removes the court's ability to supervise detention may be constitutionally impermissive. 

Gageler J dissented and found that the legislation was invalid on Kable grounds. He concluded that the legislation authorised punitive detention; the period of detention was not reasonably necessary to achieve any proper law enforcement purpose and was left open to the discretion of police. Therefore, it was a punitive power, under which police acted not as accuser but as judge.

Sunday, November 1, 2015