FRENCH CJ, KIEFEL, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ
NORTH AUSTRALIAN ABORIGINAL JUSTICE AGENCY LIMITED & ANOR PLAINTIFFS
AND
NORTHERN TERRITORY OF AUSTRALIA DEFENDANT
North Australian Aboriginal Justice Agency Limited v Northern Territory
[2015] HCA 41
11 November 2015
M45/2015
ORDER
The questions asked by the parties in the special case dated 10 June 2015 and referred for consideration by the Full Court be answered as follows:
Question 1
Is Division 4AA of Pt VII of the Police Administration Act (NT) (or any part thereof) invalid on the ground that:
(a)it purports to confer on the executive of the Northern Territory a power to detain which is penal or punitive in character:
a.which, if it had been passed by the Commonwealth Parliament, would be beyond the powers of that Parliament under section 122 of the Constitution, which powers are limited by the separation of powers enshrined in the Constitution; and
b.which is therefore beyond the powers of the Legislative Assembly of the Northern Territory under the Northern Territory (Self-Government) Act 1978 (Cth), which powers are subject to the same limits; and/or
(b)it purports to confer on the executive (rather than the courts) of the Northern Territory a power of detention which is penal or punitive in character, thereby undermining or interfering with the institutional integrity of the courts of the Northern Territory in a manner contrary to the Constitution?
Answer
(a) Division 4AA of Pt VII of the Police Administration Act (NT) does not confer on the executive of the Northern Territory a power to detain which is penal or punitive in character; it is otherwise unnecessary to answer this question.
(b) No.
Question 2
Who should pay the costs of the Special Case?
Answer
The plaintiffs.
Question 3
What (if any) order should be made to dispose of the proceeding or for the conduct of the balance (if any) of the proceeding?
Answer
The proceeding should be remitted to a single Justice of this Court for further directions.
Representation
M K Moshinsky QC with K E Foley and C J Tran for the plaintiffs (instructed by Ashurst Australia)
M P Grant QC, Solicitor-General for the Northern Territory with S L Brownhill for the defendant (instructed by Solicitor for the Northern Territory)
Interveners
J T Gleeson SC, Solicitor-General of the Commonwealth with J S Stellios for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
M G Sexton SC, Solicitor-General for the State of New South Wales with B K Baker for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor (NSW))
G R Donaldson SC, Solicitor-General for the State of Western Australia with J D Berson for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))
P J Dunning QC, Solicitor-General of the State of Queensland for the Attorney-General of the State of Queensland, intervening (instructed by Crown Solicitor (Qld))
M G Evans QC with D F O'Leary…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41
Case
[2015] HCA 41
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the constitutional validity of Division 4AA of Part VII of the *Police Administration Act* (NT) in a special case brought by the North Australian Aboriginal Justice Agency Ltd and others against the Northern Territory. Division 4AA permits Northern Territory police officers to detain a person arrested without a warrant for up to four hours, or longer if intoxicated, in relation to an "infringement notice offence." The plaintiffs, who provide legal services to Aboriginal and Torres Strait Islander people, noted that these individuals constituted the vast majority of those detained under the provision in the initial period of its operation.
The central legal issues before the Court were whether Division 4AA was invalid on two grounds. Firstly, it was argued that the power to detain conferred on the Northern Territory executive was penal or punitive in character, and therefore beyond the legislative power of the Northern Territory Legislative Assembly, as it would have been beyond the power of the Commonwealth Parliament under section 122 of the Constitution due to the separation of judicial power. Secondly, the Court was asked to consider whether this penal or punitive power of detention, conferred on the executive rather than the courts, undermined or interfered with the institutional integrity of the Northern Territory courts, contrary to the principle established in *Kable v Director of Public Prosecutions (NSW)*.
The Court reasoned that the detention authorised by Division 4AA was not penal or punitive in character. It distinguished the power from those that are punitive, noting that the purpose of the detention was investigative and regulatory, aimed at facilitating the process of issuing an infringement notice rather than imposing punishment. Consequently, the Court found that the power did not offend the principle of legality or the separation of judicial power as it would apply to Commonwealth legislation under section 122 of the Constitution. Furthermore, because the detention was not found to be penal or punitive, it did not impair, undermine, or detract from the institutional integrity of the Northern Territory courts, and therefore did not contravene the *Kable* principle.
The High Court answered the questions posed in the special case accordingly. It held that Division 4AA of Part VII of the *Police Administration Act* (NT) does not confer on the executive of the Northern Territory a power to detain that is penal or punitive in character. As a result, the Court answered "No" to the question of whether the provision undermined the institutional integrity of the courts. The plaintiffs were ordered to pay the costs of the special case, and the proceeding was remitted to a single Justice for further directions.
Orders
Orders of the court
The questions asked by the parties in the special case dated 10 June 2015 and referred for consideration by the Full Court be answered as follows:
Question 1
Is Division 4AA of Pt VII of the Police Administration Act (NT) (or any part thereof) invalid on the ground that:
(a) it purports to confer on the executive of the Northern Territory a power to detain which is penal or punitive in character:
a. which, if it had been passed by the Commonwealth Parliament, would be beyond the powers of that Parliament under section 122 of the Constitution, which powers are limited by the separation of powers enshrined in the Constitution; and
b. which is therefore beyond the powers of the Legislative Assembly of the Northern Territory under the Northern Territory (Self-Government) Act 1978 (Cth), which powers are subject to the same limits; and/or
(b) it purports to confer on the executive (rather than the courts) of the Northern Territory a power of detention which is penal or punitive in character, thereby undermining or interfering with the institutional integrity of the courts of the Northern Territory in a manner contrary to the Constitution?
Answer
(a) Division 4AA of Pt VII of the Police Administration Act (NT) does not confer on the executive of the Northern Territory a power to detain which is penal or punitive in character; it is otherwise unnecessary to answer this question.
(b) No.
Question 2
Who should pay the costs of the Special Case?
Answer
The plaintiffs.
Question 3
What (if any) order should be made to dispose of the proceeding or for the conduct of the balance (if any) of the proceeding?
Answer
The proceeding should be remitted to a single Justice of this Court for further directions.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, KIEFEL AND BELL JJ
GAGELER J
It may be observed that in their submissions in support of the Northern Territory, the Solicitors-General for New South Wales and Queensland accepted the proposition that given their view of the Kable and Kirk[67] principles there would be nothing to prevent a State parliament from investing a police officer with investigative, prosecutorial and punitive functions. Whether such a thing could be done by a State parliament does not fall for determination here. If such a law were enacted in the Northern Territory the question might arise as to whether the conferring on a police officer of a combination of prosecutorial and judicial powers would offend against fundamental common law principles to such an extent that the grant of legislative power to the Northern Territory should not, in the absence of clear words, be construed as extending that far. Given the non-punitive character of the custody which is authorised by s 133AB that question does not arise.[67]Kirk v Industrial Court (NSW) (2010) 239 CLR 531.Conclusion For the preceding reasons, the questions in the Special Case should be answered as follows:Question 1:(a)Division 4AA of Pt VII of the Police Administration Act (NT) does not confer on the executive of the Northern Territory a power to detain which is penal or punitive in character; it is otherwise unnecessary to answer this question.(b) No.Question 2: The plaintiffs.Question 3: The proceeding should be remitted to a single Justice of this Court for further directions. Introduction This special case, in a proceeding in the original jurisdiction of the High Court, raises questions about the constitutional validity of Div 4AA of Pt VII of the Police Administration Act (NT), enacted by the Northern Territory Legislative Assembly in 2014[68]. The Division was explained in the course of its enactment as implementing the "concept of paperless arrests", the underlying policy being "to permit police officers to detain individuals for up to four hours in relation to public order-type offences"[69]. [68]Police Administration Amendment Act 2014 (NT).[69]Northern Territory, Legislative Assembly, Parliamentary Debates (Hansard), 22 October 2014. Division 4AA authorises a member of the Police Force of the Northern Territory to detain a person whom the member has arrested without warrant on the basis that the member believed that the person had committed, was committing or was about to commit a prescribed offence for which the person might be issued with an infringement notice requiring payment of a specified amount in order to expiate the offence. The authority given to the member is to detain the person, for up to four hours, or for longer if the person is intoxicated. The first plaintiff, North Australian Aboriginal Justice Agency Ltd, provides legal services to Aboriginal and Torres Strait Islander people in the Northern Territory. The special case contains agreed facts which demonstrate that the vast majority of those detained under Div 4AA in the first quarter of 2015 were Aboriginal or Torres Strait Islander people.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, KIEFEL AND BELL JJ,
GAGELER J