Paperless Arrests (NT)

In the Northern Territory, the police have the power to arrest and detain a person in relation to an infringement notice offence under a system known as ‘paperless arrests’. The controversial system has been the subject of legal challenges; however, it remains law. This page outlines the police powers involved in carrying out paperless arrests in the NT.

Legislation

The paperless arrest powers are contained in the Police Administration Act 1978.

Arrest for infringements

Under section 133AB of the Police Administration Act 1978, the police may arrest a person without a warrant if they believe on reasonable grounds that the person has committed, is committing, or is about to commit an offence that is an infringement notice offence.

The police may take the person into custody for up to four hours, or for longer if the person is intoxicated. Under section 133AC, the police may search the person and remove items from them for safekeeping.

The police may release the person unconditionally, release them with an infringement notice, release them on bail, or bring them before a court in relation to an offence.

Infringement notice offences

Infringement notice offences are matters such as drinking in a public place, using offensive language, having an open container of alcohol in a public place, and minor traffic offences.

Before the introduction of the paperless arrest system, infringement notice offences were not supposed to lead to arrests. They were dealt with in the same way as parking fines and speeding fines.

When the police believed a person was committing an infringement notice offence, they could either:

• issue the person with an infringement notice on the spot
• commence the ordinary process of laying a criminal charge

If the matter was dealt with by way of a criminal charge, the person would be arrested, charged, and given the opportunity to apply for bail. This meant that while the police had the power to arrest them in relation to an infringement notice offence, that arrest would occur under the usual arrest powers, with a formal criminal charge, and subject to oversight by the courts. 

There was no power to hold a person in custody without charge for a period just to ‘calm them down’ or to do so without charge.

History of paperless arrests

In 2014, Division 4AA was introduced into the Police Administration Act 1978.

The government stated that the purpose of the powers was to give police a tool to manage people who were aggressive, intoxicated, or disruptive in public. The new powers would allow them a way to detain someone quickly to prevent escalation of their offending without having to go through the full process of issuing a criminal charge. In other words, it gave the police the power to detain someone for a short period to allow them to cool down, sober up, and stop minor disorderly conduct.

The introduction of the paperless arrests caused widespread concern, with critics arguing that it effectively allowed detention without charge, that it was disproportionately impacting Indigenous people and that it involved serious human rights risks.

High Court challenge

In 2015, the High Court of Australia handed down a decision on the legality of the paperless arrest laws in the Northern Territory. 

In North Australian Aboriginal Justice Agency Ltd & Anor v Northern Territory of Australia [2015] HCA 41, NAAJA, the legal aid service for Indigenous people in the Northern Territory, together with an aboriginal man who had been detained by police for many hours in Katherine, challenged the constitutionality of the paperless arrest laws. 

The plaintiffs argued that the provision was invalid as it interfered with the separation of powers by in effect allowing the executive to exercise powers that were punitive in nature, and that this was beyond the legislative power of the Northern Territory government.

The plaintiffs further argued that the provisions were invalid as they undermined or interfered with the institutional integrity of the Northern Territory courts.

A majority of the High Court found that the provisions were valid, holding that the powers conferred on police were not penal or punitive in character and did not impair, undermine or detract from the institutional integrity of the courts. 

The court found that the powers had to be interpreted consistently with common law liberty principles and with section 137(1) of the Police Administration Act, which states that a person who is taken into custody must be brought before a court as soon as reasonably practicable. 

The court clarified that section 133AB does not override section 137(1), meaning that the police still have a duty to take a person before a court if the reason for their detention is no longer justified. For this reason, the High Court decision has been described as curtailing or narrowing the paperless arrest powers.

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