Power of detention conferred on the executive of the Northern Territory is not penal or punitive in character

Australia High Court:  While dismissing an application for a declaration that Division 4AA of Pt VII of the Police Administration Act (NT) (or any part thereof) is invalid, the Court by majority held that Div 4AA is valid.

In the instant case, the second plaintiff, an Aboriginal person resident in the Northern Territory, was arrested by members of the Northern Territory Police Force in Katherine on 19-3-2015 and was detained pursuant to Div 4AA for a period of close to 12 hours.

The second plaintiff along with first plaintiff who provide legal services to Aboriginal and Torres Strait Islander persons in the Northern Territory sought a declaration that Div 4AA is invalid because it confers 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. The plaintiffs further contended that the said power is beyond the legislative power of the Northern Territory as it is subject to the doctrine of the separation of judicial power which limits the legislative power of the Commonwealth.

The Court read Section 133AB of the Act, which appears in Div 4AA and held that upon the proper construction of Div 4AA, the powers conferred on members of the Police Force are not penal or punitive in character and do not impair, undermine or detract from the institutional integrity of the Northern Territory courts. The proper construction of   Div 4AA states that the said power does not authorize members of the Police Force to detain a person for longer than is reasonably practicable for them to make a determination about which one of the options under Section 133AB(3) is to be exercised. The Court further ordered that the proceeding should be remitted to a single Justice for further directions. [North Australian Aboriginal Justice Agency Ltd. v. Northern Territory of Australia, [2015] HCA 41, decided on 11-11-2015]

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