HIGH COURT OF AUSTRALIA
FRENCH CJ,
KIEFEL, BELL, GAGELER, KEANE, NETTLE AND GORDON JJNORTH AUSTRALIAN ABORIGINAL JUSTICE
AGENCY LIMITED & ANOR PLAINTIFFSAND
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 for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))
H Younan for the Attorney-General for the Australian Capital Territory, intervening (instructed by ACT Government Solicitor)
S E Pritchard SC with J E Davidson for the Australian Human Rights Commission, as amicus curiae (instructed by Australian Human Rights Commission)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
North Australian Aboriginal Justice Agency Limited v Northern Territory
Statutory interpretation – Div 4AA of Pt VII of Police Administration Act (NT) provides members of Northern Territory Police Force who arrest person without warrant in relation to infringement notice offence can detain person for up to four hours – Whether detention penal or punitive in character – Relevance of principle of legality – Relevance of principle in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1.
Constitutional law (Cth) – Separation of judicial power – Whether Legislative Assembly of Northern Territory subject to constitutional limitations which limit legislative power of Commonwealth Parliament – Interaction between s 122 and Ch III of Commonwealth Constitution.
Constitutional law (Cth) – Constitution – Ch III – Principle in Kable v Director of Public Prosecutions(NSW) (1996) 189 CLR 51 – Whether Div 4AA of Pt VII of Police Administration Act (NT) conferred powers on Northern Territory executive which impaired, undermined or detracted from institutional integrity of Northern Territory courts.
Words and phrases – "infringement notice offence", "institutional integrity", "Kable principle", "penal or punitive", "separation of judicial power", "supervisory jurisdiction".
Constitution, Ch III, s 122.
Bail Act (NT), ss 16, 33.
Fines and Penalties (Recovery) Act (NT), ss 9, 12B, 13, 21, 22.
Police Administration Act (NT), Pt VII, Div 4AA; ss 123, 137, 138.
Police Administration Regulations (NT), reg 19A.
FRENCH CJ, KIEFEL AND BELL JJ.
Introduction
The first plaintiff is a corporation which provides legal services to Aboriginal and Torres Strait Islander people in the Northern Territory. The second plaintiff is an Aboriginal person resident in the Territory who was arrested by an officer or officers of the Police Force of the Northern Territory ("the Police Force") in Katherine on 19 March 2015. She was taken into custody purportedly pursuant to s 133AB of the Police Administration Act (NT) ("the PA Act") which appears in Div 4AA of Pt VII of that Act.
Section 133AB of the PA Act empowers a member of the Police Force who has arrested a person without a warrant, on the basis of an offence for which an infringement notice can be issued, to hold that person in custody for a period of up to four hours, or longer if the person is intoxicated. The section provides for the person to be released unconditionally, released and issued with an infringement notice, released on bail or brought before a justice or court for the offence for which he or she was arrested or any other offence allegedly committed by the person.
The second plaintiff was held in custody for nearly twelve hours from 5.40pm on 19 March 2015 until her release at 5.20am on 20 March 2015. She was issued with an infringement notice bearing an issue date of 19 March 2015. It recorded two alleged offences. One was designated "use obscene/indecent behaviour" contrary to s 53(1)(a) of the Summary Offences Act (NT)[1]. The other was designated "bring liquor into restricted area" contrary to s 75(1) of the Liquor Act (NT)[2]. The infringement notice provided for the payment of fines of $144 and $50 respectively for the two offences and a levy of $40 with respect to each offence, making a total of $274.
[1]Section 53(1)(a) of the Summary Offences Act (NT) makes it an offence, among other things, for a person to use any profane, indecent or obscene language in a public place, or within the view or hearing of any person passing therein.
[2]Section 75(1) of the Liquor Act (NT) makes it an offence, among other things, for a person to bring liquor into a general restricted area. A general restricted area is a specified area of land declared to be a general restricted area under s 74(1)(a).
In an amended statement of claim filed in proceedings commenced in this Court on 31 March 2015 by the first plaintiff and joined in by the second plaintiff on 19 May 2015, the plaintiffs allege that Div 4AA of Pt VII of the PA Act is invalid. They contend that it purports to confer on the Executive of the Northern Territory a power to detain which is penal or punitive in character, which, if it had been passed by the Commonwealth Parliament, would be beyond the powers of that Parliament under s 122 of the Constitution, and which is therefore beyond the powers conferred on the Legislative Assembly of the Northern Territory by s 6[3] of the Northern Territory (Self-Government) Act 1978 (Cth).
[3]Section 6 provides: "Subject to this Act, the Legislative Assembly has power, with the assent of the Administrator or the Governor-General, as provided by this Act, to make laws for the peace, order and good government of the Territory."
Division 4AA is also said to confer on the Executive of the Northern Territory a power of detention which undermines or interferes with the institutional integrity of the courts of the Northern Territory in a manner contrary to the Constitution. The second plaintiff also alleges false imprisonment. Declaratory and other relief are sought.
A Special Case was referred to the Full Court in the proceedings by Nettle J on 3 June 2015[4]. It poses three questions. The first goes to the issues of validity, the second goes to the costs of the proceedings and the third asks what orders should be made in light of the answers to those questions.
[4][2015] HCATrans 135.
For the reasons that follow, the plaintiffs' challenge to the validity of Div 4AA fails and the questions in the Special Case should be answered accordingly.
The Special Case questions
The Special Case poses the following questions:
"Question 1:
Is Division 4AA of Part 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?
Question 2:
Who should pay the costs of the Special Case?
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?"
The plaintiffs' case
The plaintiffs' primary case depended on a number of propositions:
1.The limitation on the legislative power of the Commonwealth imposed by the doctrine of separation of judicial power from legislative and executive powers applies to the Commonwealth Parliament's power to make laws under s 122 of the Constitution for the government of any Territory.
2.That limitation on the legislative power of the Commonwealth under s 122 applies to the legislative power of a Territory legislature conferred by a law of the Commonwealth made under s 122.
3.Division 4AA exceeds the legislative power of the Northern Territory Legislative Assembly because it confers a judicial power on non-judicial officers to detain persons in custody for a punitive purpose.
Alternatively, the plaintiffs argued that Div 4AA effectively withholds from the courts of the Territory judicial supervision of the exercise of the detention power. The supervision of executive detention of a subject in custody was said to be a defining characteristic of the Territory courts. The impugned provisions created powers effectively beyond the reach of the courts and on that account were beyond the legislative power of the Territory based on the principles enunciated in Kable v Director of Public Prosecutions (NSW)[5] and subsequent decisions of this Court.
[5](1996) 189 CLR 51; [1996] HCA 24.
Before considering the constitutional validity of any statute, it is necessary to consider its construction and operation. Its construction will give effect to the ordinary meaning of its text in the wider statutory context and with reference to the purpose of the provision[6]. Further, the principle of legality favours a construction, if one be available, which avoids or minimises the statute's encroachment upon fundamental principles, rights and freedoms at common law[7]. That presumption, which is well established, has been called "a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted"[8]. It is a presumption whose longstanding rationale is that it is highly improbable that parliament would "overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness"[9]. Its object was set out in the joint judgment of Mason CJ, Brennan, Gaudron and McHugh JJ in Coco v The Queen[10]:
"curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights."
It is a principle of construction which is not to be put to one side as of "little assistance" where the purpose of the relevant statute involves an interference with the liberty of the subject. It is properly applied in such a case to the choice of that construction, if one be reasonably open, which involves the least interference with that liberty. As TRS Allan has written[11]:
"Liberty is not merely what remains when the meaning of statutes and the scope of executive powers have been settled authoritatively by the courts. The traditional civil and political liberties, like liberty of the person and freedom of speech, have independent and intrinsic weight: their importance justifies an interpretation of both common law and statute which serves to protect them from unwise and ill-considered interference or restriction."
[6]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46‒47 [47] per Hayne, Heydon, Crennan and Kiefel JJ; [2009] HCA 41.
[7]Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 259 [15] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; [2010] HCA 23; Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 591‒592 [43] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2011] HCA 10; Australian Crime Commission v Stoddart (2011) 244 CLR 554 at 622 [182] per Crennan, Kiefel and Bell JJ; [2011] HCA 47; Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117 at 135 [30] per French CJ, Crennan and Kiefel JJ; [2012] HCA 19.
[8]Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 at 329 [21] per Gleeson CJ; [2004] HCA 40. See also K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at 519‒520 [46]‒[47] per French CJ; [2009] HCA 4; Australian Crime Commission v Stoddart (2011) 244 CLR 554 at 622 [182] per Crennan, Kiefel and Bell JJ.
[9]Bropho v Western Australia (1990) 171 CLR 1 at 18 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ; [1990] HCA 24, quoting Potter v Minahan (1908) 7 CLR 277 at 304 per O'Connor J; [1908] HCA 63; Coco v The Queen (1994) 179 CLR 427 at 437 per Mason CJ, Brennan, Gaudron and McHugh JJ; [1994] HCA 15; Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 at 329 [21] per Gleeson CJ.
[10](1994) 179 CLR 427 at 437–438.
[11]Allan, "The Common Law as Constitution: Fundamental Rights and First Principles", in Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia, (1996) 146 at 148.
Part VII of the PA Act — police powers of arrest and apprehension
The PA Act established the Police Force, the "core functions" of which include "to uphold the law and maintain social order"[12], "to protect life and property"[13] and "to prevent, detect, investigate and prosecute offences"[14]. The Police Force consists of "a Commissioner and other members appointed and holding office under and in accordance with this Act."[15] The PA Act is concerned with, among other things, the Police Force and its administration, and the powers and duties of members of the Police Force.
[12]PA Act, s 5(2)(a).
[13]PA Act, s 5(2)(b).
[14]PA Act, s 5(2)(c).
[15]PA Act, s 6.
Part VII of the PA Act is entitled "Police powers". It includes Div 3 entitled "Arrest" and Div 4 entitled "Apprehension without arrest"[16]. Division 4AA of Pt VII is entitled "Taking person into custody for infringement notice offence". Division 4A relates to the power of a police officer to issue and serve a person with a notice to appear before the Court of Summary Jurisdiction. Division 6 deals with the bringing of detained persons before a justice of the peace or court and obtaining evidence after taking them into custody.
[16]Section 128 in Div 4 of Pt VII of the PA Act provides for apprehension of an intoxicated person and taking him or her into custody but, by operation of s 129, "only for so long as it reasonably appears ... that the person remains intoxicated." The apprehension is not an arrest.
Section 121, which appears in Div 3, provides for the issue of arrest warrants by justices of the peace upon information on oath, supported by an affidavit, showing reasonable grounds for believing that the person the subject of the proposed warrant has committed an offence[17]. The justice must be satisfied that there are reasonable grounds for issuing the warrant[18].
[17]PA Act, s 121(1) and (3).
[18]PA Act, s 121(3).
Section 123, which also appears in Div 3, provides for arrest without warrant. It is the section under which the second plaintiff was arrested. It provides:
"A member of the Police Force may, without warrant, arrest and take into custody any person where he believes on reasonable grounds that the person has committed, is committing or is about to commit an offence."
It involves the exercise of two powers — arrest and taking into custody. The combination of those powers has a long history in the Northern Territory[19].
[19]Before the PA Act, s 27(1)(e) in Pt IV of the Police and Police Offences Ordinance 1923 (NT) provided that a police officer "without any warrant other than this Ordinance ... may apprehend ... any person whom he has just cause to suspect of having committed, or being about to commit, any felony, misdemeanour or offence". Part IV was repealed by the Summary Offences Act 1978 (NT), which commenced operation on the same date as the PA Act in 1979. In its original form, s 123(1) of the PA Act authorised arrest without warrant. Section 123(2) provided that a police officer could detain a person to ensure the person's appearance before a court; to prevent a continuation or repetition of the offence; or to prevent loss or destruction of evidence relating to the offence. Section 123(2) was repealed (by the Police Administration Amendment Act (No 2) 1992 (NT)) because the objectives of s 123(2) were achieved by s 137(2): see Northern Territory, Legislative Assembly, Parliamentary Debates (Hansard), 4 March 1992 at 4268.
Division 4AA — custody for an infringement notice offence
Division 4AA applies to a subset of the cases in which a person has been arrested without warrant under s 123. They are cases in which the person has been arrested in relation to the commission or apprehended commission of an infringement notice offence. The operative provision of Div 4AA, s 133AB, confers a power upon an officer to take a person arrested in relation to an infringement notice offence into custody and to hold him or her for up to four hours, or longer if he or she is intoxicated. That power is enlivened at the point of arrest under s 123. It is not necessary for the operation of s 133AB to treat the reference to taking a person into custody in that provision as creating a power distinct from that under s 123. The distinct power created by s 133AB is to hold the person arrested and taken into custody with the option of release with an infringement notice. Section 133AB provides:
"(1)This section applies if:
(a)a member of the Police Force has arrested a person without a warrant under section 123; and
(b)the person was arrested because the member believed on reasonable grounds that the person had committed, was committing or was about to commit, an offence that is an infringement notice offence.
(2)The member may take the person into custody and:
(a)hold the person for a period up to 4 hours; or
(b)if the person is intoxicated — hold the person for a period longer than 4 hours until the member believes on reasonable grounds that the person is no longer intoxicated.
(3)The member, or any other member, on the expiry of the period mentioned in subsection (2), may:
(a)release the person unconditionally; or
(b)release the person and issue the person with an infringement notice in relation to the infringement notice offence; or
(c)release the person on bail; or
(d)under section 137, bring the person before a justice or court for the infringement notice offence or another offence allegedly committed by the person.
(4)For deciding how to deal with the person under subsection (3), the member, or another member, may question the person about the infringement notice offence, or any other offence in relation to which the person is of interest to police."
The term "infringement notice offence" is defined in s 133AA as "an offence under another Act for which an infringement notice may be served and which is prescribed for this Division by regulation." The term "infringement notice" is not defined in the PA Act. Its meaning appears from s 9 of the Fines and Penalties (Recovery) Act (NT):
"An infringement notice is a notice issued under a law of the Territory to the effect that the person to whom it is directed has committed a specified offence and that the person may expiate the offence by paying the penalty specified in the notice in the manner and within the time specified."
Infringement notice offences are prescribed by reg 19A of the Police Administration Regulations (NT). They cover a wide class of offences, most of which are relatively minor. A substantial number of them do not carry any custodial penalty[20]. There are some, however, which provide for a monetary penalty and/or a custodial term to be imposed[21]. A number of the offences prescribed could, according to the circumstances, involve elements of disorderly conduct. However, they also include the offence of failing to keep a clean yard so as to create a nuisance by an offensive smell or otherwise[22] and failing to comply with liquor licence conditions[23].
[20]There are 25 offences in that category according to a table contained in the Special Case.
[21]For example, offensive conduct under s 47 of the Summary Offences Act (NT) and obscenity under s 53(1)(a) of the Summary Offences Act (NT).
[22]Summary Offences Act (NT), s 78.
[23]Liquor Act (NT), s 31A(5).
Section 133AC requires that a member of the Police Force establish the identity of a person taken into custody under s 133AB, by taking and recording the person's name and further information relevant to identification including photographs, fingerprints and other biometric identifiers[24]. The person may also be searched and money, valuables or items that are likely or could be used to cause harm to the person or another person removed from the person for safekeeping[25]. Such force as is "reasonably necessary" to exercise a power under s 133AC may be used[26].
[24]PA Act, s 133AC(1).
[25]PA Act, s 133AC(2).
[26]PA Act, s 133AC(7).
The infringement notice process
The effect of an infringement notice is set out in the Fines and Penalties (Recovery) Act. If the penalty specified in the notice is paid within the period specified or within the further time allowed by an enforcement agency under s 12B, the alleged offence is expiated and no further proceedings can be taken in relation to it unless the notice is withdrawn in accordance with the law under which the notice was issued[27]. A person may elect, under s 21 of the Act, to be dealt with by a court. In that event, proceedings in respect of the alleged offence may be taken as if an infringement notice had not been issued[28]. Regulation 6 of the Summary Offences Regulations (NT) makes similar provision for infringement notice offences under the Summary Offences Act.
Court, bail or release — ss 123 and 137
[27]Fines and Penalties (Recovery) Act (NT), s 13. Section 14 provides that if the penalty is not paid within the period specified or allowed, enforcement action may be taken under the Act unless the notice is withdrawn.
[28]Fines and Penalties (Recovery) Act (NT), s 22(1).
Before considering the operation of Div 4AA, it is necessary to set out the relevant obligations imposed upon a police officer arresting a person without warrant under s 123 and taking the person into custody under that section. The taking of a person into custody under s 123 immediately engages the obligation imposed by s 137(1), which appears in Div 6, and provides:
"Without limiting the operation of section 123, but subject to subsections (2) and (3) of this section, a person taken into lawful custody under this or any other Act shall (subject to that Act where taken into custody under another Act) be brought before a justice or a court of competent jurisdiction as soon as is practicable after being taken into custody, unless he or she is sooner granted bail under the Bail Act or is released from custody."
The effect of s 137(1) of the PA Act is that a person arrested and taken into custody under s 123 must "as soon as is practicable":
(1) be released; or
(2) be granted bail[29]; or
(3) be brought before a justice or a court[30].
The period of custody limited by the requirement to bring the person before a justice of the peace or a court "as soon as is practicable after being taken into custody" may be extended, pursuant to s 137(2) and (3), to "a reasonable period" for questioning or to enable further investigations in relation to offences attracting a term of imprisonment. The factors relevant to determining a reasonable period of custody for those purposes are set out in s 138. They are practical matters including the time taken for various arrangements to be made for investigators to attend[31], available witnesses to be interviewed[32], legal advisors to be contacted[33], and forensic investigations to be completed[34].
[29]Release on bail may be effected by an authorised police officer pursuant to s 16 of the Bail Act (NT). Under s 33, a refusal is reviewable by a magistrate or justice as is a failure to determine whether or not to grant bail within four hours after the person is charged.
[30]The legislative history discloses that, before the PA Act, s 34 of the Police and Police Offences Ordinance 1923 (NT) provided that any person apprehended without a warrant was to be secured until he or she was granted bail or could be brought before a justice to be dealt with according to law. Section 136 of the PA Act required a police officer to bring a person arrested and charged for an offence before a justice or to take steps to initiate the bail application process. Section 136 was repealed by the Police Administration Amendment Act 1982 (NT) to coincide with the commencement of the Bail Act 1982 (NT), which provided a comparable provision in s 16. Section 137(1) and (2) were introduced by the Police Administration Amendment Act 1988 (NT) in response to this Court's decision in Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88. Cognate amendments were also made to s 16 of the Bail Act by the Bail Amendment Act 1988 (NT): see Northern Territory, Legislative Assembly, Parliamentary Debates (Hansard), 16 September 1987 at 1228‒1230.
[31]PA Act, s 138(a).
[32]PA Act, s 138(c).
[33]PA Act, s 138(h).
[34]PA Act, s 138(k).
The statutory requirement to bring a person arrested before a justice of the peace or a court, as soon as is practicable, has its origins in the common law. The common law does not authorise the arrest of a person or holding an arrested person in custody for the purpose of questioning or further investigation of an offence[35]. A person can be deprived of personal liberty only to the extent and for the time which the law prescribes[36]. It is an obvious application of the principle of legality that clear words are required if a statute is to authorise holding an arrested person in custody for a purpose other than for the purpose of charging that person and bringing him or her before a justice of the peace or court as soon as is practicable if he or she is not earlier released on bail or unconditionally. In Williams v The Queen, Wilson and Dawson JJ construing the words "as soon as is practicable" in s 34A(1) of the Justices Act 1959 (Tas) said[37]:
"Those words must be given a construction which, so far as is possible, is in accordance with the common law ... The common law requires an arrested person to be taken before a justice as soon as is reasonably possible and the words 'as soon as is practicable' should be taken to mean the same thing."
[35]Williams v The Queen (1986) 161 CLR 278 at 292‒294 per Mason and Brennan JJ, 305‒306 per Wilson and Dawson JJ.
[36](1986) 161 CLR 278 at 292 per Mason and Brennan JJ.
[37](1986) 161 CLR 278 at 313.
Absent s 137, the common law would have imposed the like requirement that a person arrested under s 123 be taken before a justice of the peace as soon as practicable after arrest. At common law delay, even if for some purpose such as questioning or to dispel or confirm the suspicion which was the basis of the arrest, would defeat the true purpose of arrest[38]. Custody after arrest is an executive measure not an exercise of judicial power. As Wilson and Dawson JJ also observed in Williams[39]:
"The point at which an arrested person is brought before a justice upon a charge is the point at which the machinery of the law leading to trial is put into operation. It is the point from which the judicial process commences and purely ministerial functions cease."
The common law was modified by s 137(2) and (3) to enable post-arrest custody to be extended to "a reasonable period" for the purpose of questioning the person arrested or for further investigations in relation to offences attracting custodial penalties[40]. Similar modifications have been made in all Australian jurisdictions[41]. That modification reflected recommendations made by the Australian Law Reform Commission ("the Commission") in its interim report entitled Criminal Investigation published in 1975.
[38](1986) 161 CLR 278 at 306 per Wilson and Dawson JJ.
[39](1986) 161 CLR 278 at 306.
[40]Section 137(3) was introduced by the Police Administration Amendment Act (No 2) 1992 (NT). The Second Reading Speech outlined the amendment in that Act resulted from, among other things, the Police Powers Review Committee's "consideration of ... the investigative detention power" under s 137(2): see Northern Territory, Legislative Assembly, Parliamentary Debates (Hansard), 4 March 1992 at 4268.
[41]Crimes Act 1914 (Cth), ss 23C‒23DA; Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 114‒121; Police Powers and Responsibilities Act 2000 (Q), ss 403‒411; Summary Offences Act 1953 (SA), s 78; Criminal Law (Detention and Interrogation) Act 1995 (Tas), s 4; Crimes Act 1958 (Vic), ss 464A‒464B; Criminal Investigation Act 2006 (WA), ss 140‒142; Crimes Act 1900 (ACT), s 212.
The Commission's report in relation to post-arrest custody included a recommendation that its permissible duration be precisely specified in legislation with a statutory maximum of four hours. It was proposed that the limit be capable of extension up to another eight hours following application to a magistrate with further extensions obtainable from a Federal, Territory or State Supreme Court Judge[42]. The Commission also recommended that the four hour period be regarded as the maximum rather than the norm. The primary statutory requirement should be to take a person before a justice or a magistrate, to make a police bail decision or to release him or her "as soon as reasonably practicable" after the custody began[43].
Sections 133AB and 137
[42]Australia, Law Reform Commission, Criminal Investigation, Report No 2, Interim, (1975) at 147 [328].
[43]Australia, Law Reform Commission, Criminal Investigation, Report No 2, Interim, (1975) at 147‒148 [329].
The plaintiffs and the Northern Territory differed about the interaction between s 133AB and s 137. The Northern Territory maintained that s 137 applied to persons arrested under s 123 and taken into custody under s 133AB. It characterised s 137 as imposing an overarching requirement — to bring a person before a justice or a court unless otherwise bailed or released — and characterised that requirement as one which constrained and defined the purpose of the detention. That submission was reinforced by a reference to s 106 of the Criminal Code (NT) which creates an offence of delaying the bringing of a person arrested before the courts.
The plaintiffs submitted that the Northern Territory's construction should be rejected as it would require the Court to disregard the clear words and statutory purpose of Div 4AA. Moreover, s 137 is expressed to be subject to the provisions of any other Act for taking a person into custody. They pointed to the specific requirement in s 133AB(3)(d) to bring a person before a justice or court under s 137 as an option available to a member of the Police Force at the expiry of the period of detention.
The debate between the plaintiffs and the Northern Territory on this question was a rather arid one. Even if s 137(1) did not apply, the common law obligations, which operate in the absence of clear words to the contrary, would require the police officer taking a person into custody under s 133AB to bring that person before a justice of the peace or a court as soon as practicable. That obligation would not be engaged if the person were released unconditionally or on bail or released and issued with an infringement notice. As a matter of textual analysis of s 133AB, the obligation imposed by the common law and given a statutory form by s 137(1) was not modified by the four hour time limit. That time limit does no more than impose a cap on what is a reasonably practicable time to make a determination about which one of the options under s 133AB(3) is to be exercised. The time limit also constrains the exercise of the questioning power under s 133AB(4) which displaces the questioning power applicable under s 137(2) read with s 138 in the case of taking a person into custody otherwise than pursuant to Div 4AA. So understood the construction of Div 4AA accords with the approach adopted by the Commission that the four hour period which it recommended should be regarded as a maximum rather than the norm.
Against that background it is necessary to consider the purpose of Div 4AA in order to determine the character of the custody which it authorises.
Division 4AA — purpose
Division 4AA was introduced into the PA Act by the Police Administration Amendment Act 2014 (NT). Its function, as described by the Attorney-General and Minister for Justice of the Northern Territory in the Second Reading Speech for the Bill, was[44]:
"to provide members of the Northern Territory Police Force with an alternative post-arrest option, where a person who has committed certain prescribed offences may be held by police for up to four hours and can then be released with an infringement notice, as opposed to requiring that the person be charged and have those charges be heard by a court."
The Attorney-General and Minister for Justice referred to the concept as "paperless arrest". Its purpose was to provide further flexibility and efficiency in policing work. It would enable police officers to return to their patrol in a more timely fashion, as opposed to being detained for long periods providing necessary paperwork for a court to consider the charges. Just how it would have that effect was not spelt out. On its face there was nothing in the PA Act before the enactment of Div 4AA to prevent a person arrested and taken into custody under s 123 from being released unconditionally, an option contemplated by s 137(1), and issued with an infringement notice pursuant to the Fines and Penalties (Recovery) Act. Nevertheless, the Solicitor-General for the Northern Territory submitted that, prior to the amendment, it was unclear whether a person arrested and detained under s 123 could be released and issued with an infringement notice rather than being charged and brought before a court. That concern may illuminate the use of the term "paperless arrest" in the Second Reading Speech.
[44]Northern Territory, Legislative Assembly, Parliamentary Debates — Police Administration Amendment Bill (Serial 98) — presentation and second reading motion (Hansard), 12th Assembly, Parliamentary Record No 15, 22 October 2014.
The Attorney-General and Minister for Justice in his Second Reading Speech also made reference to a social control objective, which he described as[45]:
"An additional benefit to the community is intended by the use of such an option to de-escalate social disorder situations or potential situations of public disorder before they escalate into major incidents."
[45]Northern Territory, Legislative Assembly, Parliamentary Debates — Police Administration Amendment Bill (Serial 98) — presentation and second reading motion (Hansard), 12th Assembly, Parliamentary Record No 15, 22 October 2014.
The Northern Territory submitted in this Court that the purpose of custody following arrest was unchanged by Div 4AA. It was to ensure that persons accused of offending are dealt with by the courts, albeit if an infringement notice was issued such a person had the option of expiating the offence by payment of a fine. The period of custody provided for by s 133AB(2) was prescribed for the purpose of enabling police officers to decide how to deal with persons taken into custody under s 133AB. To that end, s 133AB(4) conferred a power to question the person arrested about the offence for which he or she was arrested or any other offence in relation to which the person was of interest to the police.
The plaintiffs characterised the custodial period authorised by s 133AB as a "superadded four hour period of detention". All the other options of dealing with a person taken into custody under s 123 remained in place[46]. The only purpose served by the "superadded four hour period of detention" was to postpone a dispositive decision. Where an infringement notice issued at the end of that period the effect of the detention was little short of double punishment. The plaintiffs' submissions, however, relied upon the premise that s 133AB authorised any person taken into custody for an infringement notice offence to be detained for four hours. Section 133AB properly construed, by reference to its purpose, does not have that effect.
[46]Those options were release; grant of bail; issuing a notice to appear and/or infringement notice; or bringing the person before a justice or court under s 137.
The construction of s 133AB
Section 133AB confers a discretionary power exercisable, when a person has been arrested without warrant under s 123, if, and only if, the arrest relates to an infringement notice offence committed, being committed, or about to be committed. Arrest relating to an infringement notice offence does not mean that the person taken into custody can be held for up to four hours at the unfettered discretion of a police officer. As a general proposition there is no such thing as an unfettered statutory power. As Kirby and Callinan JJ said: "No Parliament of Australia could confer absolute power on anyone."[47] Every statutory power, however widely expressed, is confined by the subject matter, scope and purpose of the statute[48]. An official who lawfully takes a person into custody cannot continue to hold that person in custody other than for a purpose authorised by the statute conferring the power.
[47]Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 504 [70]; [2002] HCA 22. See also R v Secretary of State for the Environment, Transport and the Regions, Ex parte Spath Holme Ltd [2001] 2 AC 349 at 381 per Lord Bingham, 396 per Lord Nicholls, 404 per Lord Hope, 412 per Lord Hutton; R (GC) v Commissioner of Police of the Metropolis [2011] 1 WLR 1230 at 1260 [107] per Lord Rodger; [2011] 3 All ER 859 at 891.
[48]Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 496 per Latham CJ, 505 per Dixon J; [1947] HCA 21; R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49; [1979] HCA 62; FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 368 per Mason J; [1982] HCA 26; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J; [1986] HCA 40; O'Sullivan v Farrer (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ; [1989] HCA 61; Oshlack v Richmond River Council (1998) 193 CLR 72 at 81 [22], 84 [31] per Gaudron and Gummow JJ; [1998] HCA 11.
The Northern Territory submitted that the circumstances in which Div 4AA operates are confined to those in which arrest is appropriate, having regard to the need to:
(a)ensure the person is available to be dealt with in respect of an offence if considered appropriate;
(b)preserve public order;
(c)prevent the completion, continuation or repetition of the offence or the commission of another offence;
(d)prevent the concealment, loss or destruction of evidence relating to the offence;
(e)prevent the harassment of, or interference with, persons in the vicinity;
(f)prevent the fabrication of evidence in respect of the offence; and/or
(g)preserve the safety or welfare of the public or the person detained.
Those constraints were relied upon to support the contention that detention for the purposes of Div 4AA for a period of up to four hours, or until a person ceased to be intoxicated, was not detention for a penal or punitive purpose. It may be accepted that Div 4AA is confined by those purposes although the applicability of (d) and (f) in the context of infringement notice offences may be questionable.
Thus confined in its operation, Div 4AA does not disclose a punitive purpose. To keep a person in custody under Div 4AA in order to punish that person's conduct would be unlawful. An example which demonstrates the point is the arrest under s 123 of a person because an officer believed on reasonable grounds that the person was about to commit an infringement notice offence. Assuming the person not to be intoxicated and no question of any other offences attracting the application of the questioning power under s 133AB(4), it is difficult to see what lawful purpose would be served in detaining that person under Div 4AA for more than the very short time necessary to prevent him or her from committing the offence and to establish his or her identity as required by s 133AC. Assuming no other offence had been committed requiring questioning or investigation, there would be no question of charging or bail or bringing the person before a court. The only option would be unconditional release. No infringement notice could issue in such a case. That application of Div 4AA militates against any suggestion that it authorises an officer to keep a person in custody for four hours regardless of the circumstances.
The basis upon which detention may be considered as punitive was considered by this Court in Chu Kheng Lim v Minister for Immigration[49]. That consideration was linked to the question whether involuntary detention of any person arriving in Australia without a valid entry permit was punitive and involved the impermissible exercise of the judicial power of the Commonwealth by executive officers of the Immigration Department. In holding that it was not, Brennan, Deane and Dawson JJ acknowledged the general proposition that involuntary detention of a person in custody by the State is penal or punitive in character and exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt[50]. Their Honours, however, identified as the most important exception to that general proposition, the arrest and detention in custody of a person accused of a crime to ensure that he or she would be available to be dealt with by the courts. Their Honours said[51]:
"Such committal to custody awaiting trial is not seen by the law as punitive or as appertaining exclusively to judicial power."
[49](1992) 176 CLR 1; [1992] HCA 64.
[50](1992) 176 CLR 1 at 27.
[51](1992) 176 CLR 1 at 28.
The Northern Territory's submission and characterisation should be accepted but with a caveat. If the maximum period for which a person could be held in detention in respect of an infringement notice offence were significantly greater than that specified under s 133AB, then a question might arise as to whether such an extended detention could be justified under any circumstances by reference to purposes of the kind relied upon by the Northern Territory and whether, beyond a certain point, it could still be characterised as administrative rather than punitive. A law authorising the punitive detention by police officers of persons arrested would raise for consideration the plaintiffs' contention that the doctrine of separation of powers, which limits Commonwealth legislative power, applies in the Territory. That question was the subject of submissions to this Court on the premise that Div 4AA authorises punitive detention and thereby purports to confer judicial power on officers of the Police Force. The premise not being established, the question does not arise for determination in this case.
The Kable doctrine
The plaintiffs submitted that Div 4AA impaired the institutional integrity of the Northern Territory courts contrary to principles laid down in this Court by Kable and cases flowing from it. Those decisions have established propositions including the following:
1.A State legislature cannot confer upon a State court a function or power which substantially impairs its institutional integrity, and which is therefore incompatible with its role, under Ch III of the Constitution, as a repository of federal jurisdiction and as a part of the integrated Australian court system[52].
2.The term "institutional integrity" applied to a court refers to its possession of the defining or essential characteristics of a court including the reality and appearance of its independence and its impartiality[53].
3.It is also a defining characteristic of courts that they apply procedural fairness[54] and adhere as a general rule to the open court principle[55] and give reasons for their decisions[56].
4.A State legislature cannot, consistently with Ch III, enact a law which purports to abolish the Supreme Court of the State[57] or excludes any class of official decision, made under a law of the State, from judicial review for jurisdictional error by the Supreme Court of the State[58].
5.Nor can a State legislature validly enact a law which would effect an impermissible executive intrusion into the processes or decisions of a court[59].
6.A State legislature cannot authorise the executive to enlist a court to implement decisions of the executive in a manner incompatible with the court's institutional integrity[60] or which would confer on the court a function (judicial or otherwise) incompatible with the role of the court as a repository of federal jurisdiction[61].
7.A State legislature cannot enact a law conferring upon a judge of a State court a non-judicial function which is substantially incompatible with the functions of the court of which the judge is a member[62].
[52]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 96 per Toohey J, 103 per Gaudron J, 116‒119 per McHugh J, 127‒128 per Gummow J; Baker v The Queen (2004) 223 CLR 513 at 519 [5] per Gleeson CJ; [2004] HCA 45; Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 591 [15] per Gleeson CJ; [2004] HCA 46; Wainohu v New South Wales (2011) 243 CLR 181 at 208 [44] per French CJ and Kiefel J; [2011] HCA 24; Attorney-General (NT) v Emmerson (2014) 253 CLR 393 at 424 [40] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ; [2014] HCA 13; Kuczborski v Queensland (2014) 89 ALJR 59 at 87‒88 [139] per Crennan, Kiefel, Gageler and Keane JJ; 314 ALR 528 at 562‒563; [2014] HCA 46; Duncan v Independent Commission Against Corruption (2015) 89 ALJR 835 at 840 [16] per French CJ, Kiefel, Bell and Keane JJ; 324 ALR 1 at 6‒7; [2015] HCA 32.
[53]Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 76 [63]‒[64] per Gummow, Hayne and Crennan JJ; [2006] HCA 44; Wainohu v New South Wales (2011) 243 CLR 181 at 208 [44] per French CJ and Kiefel J.
[54]Leeth v The Commonwealth (1992) 174 CLR 455 at 469‒470 per Mason CJ, Dawson and McHugh JJ; [1992] HCA 29; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at 354‒355 [55] per French CJ, 379‒380 [141] per Heydon J; [2009] HCA 49; Wainohu v New South Wales (2011) 243 CLR 181 at 208 [44] per French CJ and Kiefel J; Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 71 [67] per French CJ, 105 [177], 110 [194] per Gageler J; [2013] HCA 7.
[55]Dickason v Dickason (1913) 17 CLR 50; [1913] HCA 77; Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs J; [1976] HCA 23; Wainohu v New South Wales (2011) 243 CLR 181 at 208‒209 [44] per French CJ and Kiefel J.
[56]Wainohu v New South Wales (2011) 243 CLR 181.
[57]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 103 per Gaudron J, 111 per McHugh J, 139 per Gummow J; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at 543‒544 [151]‒[153] per Gummow, Hayne, Heydon, Crennan and Kiefel JJ; Wainohu v New South Wales (2011) 243 CLR 181 at 210 [46] per French CJ and Kiefel J.
[58]Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1; Wainohu v New South Wales (2011) 243 CLR 181 at 210 [46] per French CJ and Kiefel J.
[59]International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; Wainohu v New South Wales (2011) 243 CLR 181 at 210 [46] per French CJ and Kiefel J.
[60]South Australia v Totani (2010) 242 CLR 1 at 52 [82] per French CJ, 67 [149] per Gummow J, 160 [436] per Crennan and Bell JJ, 173 [481] per Kiefel J; see also at 92‒93 [236] per Hayne J; [2010] HCA 39; Wainohu v New South Wales (2011) 243 CLR 181 at 210 [46] per French CJ and Kiefel J.
[61]Wainohu v New South Wales (2011) 243 CLR 181 at 210 [46] per French CJ and Kiefel J.
[62]Wainohu v New South Wales (2011) 243 CLR 181 at 210 [47] per French CJ and Kiefel J.
It has not been established, and the plaintiffs did not argue, that public confidence in the courts is a touchstone of invalidity. In Momcilovic v The Queen[63], Gummow J said that attention to matters of perception and public confidence as distinct and separate sufficient considerations is apt to mislead. There are statements in Kable indicating that the jurisdiction conferred on State courts must not damage public confidence in them[64], but it has been said on many occasions since Kable that public confidence is an indicator, but not the touchstone of invalidity; the touchstone of invalidity concerns institutional integrity[65]. That touchstone extends to maintaining the appearance as well as the realities of impartiality and independence of the courts from the executive. Those criteria may be seen as necessary to the maintenance of public confidence in the judicial system. That is not the same as saying that it is necessary or appropriate to use an imputed effect upon "public confidence" to infer that a law impairs the institutional integrity of a court.
[63](2011) 245 CLR 1 at 93 [175]; [2011] HCA 34.
[64]See (1996) 189 CLR 51 at 108 per Gaudron J, 118–119 per McHugh J, 133 per Gummow J.
[65]See, for example, Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 618 [102] per Gummow J; South Australia v Totani (2010) 242 CLR 1 at 82 [206] per Hayne J.
Courts of the Northern Territory may exercise the judicial power of the Commonwealth in the exercise of jurisdiction conferred upon them by laws made by the Commonwealth Parliament. It follows that Kable applies to the Supreme Court of the Territory and to Territory courts as Ch III courts[66]. However, the plaintiffs' contentions did not fall within any of the existing principles developed from that decision and its sequelae. The plaintiffs' complaint did not concern a function or power conferred upon courts of the Territory. Nor did it concern a function or power conferred upon judicial officers of the Territory. Rather they submitted that Div 4AA effects a kind of de facto preclusion of the traditional judicial supervisory function in relation to persons held in involuntary detention.
[66]Attorney-General (NT) v Emmerson (2014) 253 CLR 393 at 425 [42] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ and authorities cited therein.
The plaintiffs submitted:
(a)There is no real possibility of a person detained under Div 4AA approaching a court during the period of the detention.
(b)Even if a person detained under Div 4AA were able to make an application to a court, the court would be limited to reviewing the legislative criteria for the detention and thus could not take into account factors it would ordinarily consider when a person detained in custody and not convicted of any crime is brought before it.
Division 4AA was said to "eviscerate" the court's supervisory power in relation to detention. The plaintiffs' submissions anticipated an argument that a person detained unlawfully pursuant to Div 4AA could bring an action for false imprisonment. That was characterised as a "frail reed" for vindicating the liberty interests of citizens detained under Div 4AA.
The plaintiffs' submissions in relation to the application of the Kable doctrine were elusive. They seemed to proceed on the premise that Div 4AA did not impose any duty to bring a person arrested before a justice of the peace or a court as soon as practicable after arrest if the person was not earlier released unconditionally or on bail or with an infringement notice. But, for the reasons already given, the relationship between the custodial process and the judicial process under Div 4AA is not materially different from the relationship between the custodial process and the judicial process in relation to an arrest and taking into custody under s 123.
It might be possible to envisage a scheme in which power was conferred on the executive in such a way as effectively to deprive the courts of supervision of its exercise. Such a scheme might on established principles, or some extension thereof, be impermissible. But that is not this case. The plaintiffs' argument based on the Kable doctrine must fail.
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.
GAGELER J.
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.
The second plaintiff, Ms Bowden, is an Aboriginal person who is resident in the Northern Territory. She was arrested without warrant by a member or members of the Police Force at Katherine, following which she was detained under Div 4AA at the Katherine Police Station from approximately 5.40pm on 19 March 2015 until she was released at 5.20am on 20 March 2015. On release, she was issued with an infringement notice requiring her to pay a total amount of $274.00 in order to expiate offences specified in the notice as using obscene language and indecent behaviour[70] and bringing liquor into a restricted area[71].
[70]Section 53(1)(a) of the Summary Offences Act (NT).
[71]Section 75(1) of the Liquor Act (NT).
Both plaintiffs seek against the Northern Territory of Australia, as defendant, a declaration to the effect that Div 4AA is invalid. The second plaintiff also claims damages for wrongful imprisonment. The defendant takes no issue as to the standing of either plaintiff. The pleadings have closed, but the facts relevant to the wrongful imprisonment claim have not been found and are not fully agreed.
The special case raises questions which are agreed by the parties to arise from the relief sought by the plaintiffs. The two substantive questions ask whether Div 4AA is invalid either because it infringes the doctrine of separation of powers enshrined in Ch III of the Constitution or because it impairs the institutional integrity of courts capable of being invested with the judicial power of the Commonwealth.
Underlying both questions is an anterior question as to whether the detention authorised by Div 4AA is penal or punitive in character. Informing the answer to that question of characterisation is a threshold question of construction to which it will be necessary immediately to turn after setting out the critical provisions of Div 4AA and locating Div 4AA within its broader legislative context.
Legislation
Within Div 4AA of Pt VII of the Police Administration Act, the critical operative provision is s 133AB, the first sub-section of which provides:
"(1) This section applies if:
(a)a member of the Police Force has arrested a person without a warrant under section 123; and
(b)the person was arrested because the member believed on reasonable grounds that the person had committed, was committing or was about to commit, an offence that is an infringement notice offence."
There are thus two conditions for the application of the section.
The first condition is that a member of the Police Force has arrested a person without a warrant under s 123. Section 123 provides:
"A member of the Police Force may, without warrant, arrest and take into custody any person where he believes on reasonable grounds that the person has committed, is committing or is about to commit an offence."
The second condition is that the person was arrested because the member believed on reasonable grounds that the person had committed, was committing or was about to commit an offence that is an "infringement notice offence". That expression is defined for the purpose of Div 4AA to mean an offence under another Northern Territory Act "for which an infringement notice may be served and which is prescribed for [Div 4AA] by regulation"[72].
[72]Section 133AA.
The definition is framed to pick up provisions of other Northern Territory legislation allowing for the service of infringement notices. An infringement notice is a notice to the effect that the person to whom the notice is directed has committed a specified offence and that the person may expiate the offence by paying the penalty specified in the notice. The person served with the notice can elect to pay the penalty within a specified time, in which case the offence is automatically expiated by the payment. Alternatively, the person can elect to have the matter dealt with by a court, in which case proceedings may be taken against the person in respect of the alleged offence as if the infringement notice had not been issued[73].
[73]Division 4 of Pt 2 of the Fines and Penalties (Recovery) Act (NT).
Offences for which infringement notices may be served and which have been prescribed for Div 4AA by regulation, so as to fall within the definition of an "infringement notice offence", comprise specified offences for which a member of the Police Force is able to serve an infringement notice under the Summary Offences Act, the Liquor Act and the Misuse of Drugs Act (NT)[74]. The total number of prescribed offences is 35. They range in seriousness from playing a musical instrument so as to annoy[75] or failing to keep a clean yard[76], to cultivating a prohibited plant[77] or possessing a dangerous drug[78].
[74]Regulation 19A of the Police Administration Regulations (NT).
[75]Section 76 of the Summary Offences Act.
[76]Section 78 of the Summary Offences Act.
[77]Section 7(1) of the Misuse of Drugs Act.
[78]Section 9(1) of the Misuse of Drugs Act.
The penalties for many of those infringement notice offences, if dealt with by a court, are limited to fines. The penalties for others, including the two offences specified in the notice issued to the second plaintiff, extend to imprisonment for a maximum of six months. For the two most serious infringement notice offences, both under the Misuse of Drugs Act, the penalty extends to imprisonment for a maximum of two years.
Each infringement notice offence is within the jurisdiction of the Court of Summary Jurisdiction constituted, for the purpose of hearing and adjudication, by a magistrate or by two justices of the peace[79]. A proceeding for such an offence is commenced in the Court of Summary Jurisdiction by the making of a complaint to a justice of the peace or to a magistrate[80], and a party to such a proceeding has a right to appeal from an adjudication of that Court to the Supreme Court of the Northern Territory[81].
[79]Section 43 of the Justices Act (NT).
[80]Section 49 of the Justices Act (NT).
[81]Section 163 of the Justices Act (NT).
The two conditions for the application of the section being satisfied whenever a member of the Police Force has arrested a person without a warrant under s 123 for an infringement notice offence, s 133AB goes on to provide:
"(2) The member may take the person into custody and:
(a)hold the person for a period up to 4 hours; or
(b)if the person is intoxicated – hold the person for a period longer than 4 hours until the member believes on reasonable grounds that the person is no longer intoxicated.
(3)The member, or any other member, on the expiry of the period mentioned in subsection (2), may:
(a)release the person unconditionally; or
(b)release the person and issue the person with an infringement notice in relation to the infringement notice offence; or
(c)release the person on bail; or
(d)under section 137, bring the person before a justice or court for the infringement notice offence or another offence allegedly committed by the person.
(4)For deciding how to deal with the person under subsection (3), the member, or another member, may question the person about the infringement notice offence, or any other offence in relation to which the person is of interest to police."
The structure is plain enough. Section 133AB(2) authorises the member of the Police Force to detain the person arrested for an infringement notice offence for a period of up to four hours, or longer if the person is intoxicated. Section 133AB(3) gives that member, or another member, four options as to how to deal with that person at the end of the period of detention. Section 133AB(4) authorises that member or another member to question the person for the purpose of determining how to so deal with the person.
The four options given to a member of the Police Force under s 133AB(3) need to be examined in turn. The first three involve releasing the person at the end of the period of detention.
The first option – releasing the person unconditionally – requires no comment, other than to note that it is the only option which would result in the arrest that has occurred being "paperless".
The second option – releasing the person and issuing the person with an infringement notice in relation to the infringement notice offence for which the person has been arrested – involves an exercise of a power conferred on a member of the Police Force by the other Northern Territory legislation which provides for the issuing of an infringement notice for the offence. The issuing of the notice permits the person to elect to pay the specified amount and expiate the offence, or to have the matter dealt with by a court.
The third option – releasing the person on bail – involves an exercise of a power conferred on a member of the Police Force by the Bail Act (NT). Under the Bail Act, release of a person on bail by a member of the Police Force can occur as an alternative to bringing a person before a justice or a court of competent jurisdiction under s 137 of the Police Administration Act. It can occur only after the person has been charged[82], and is ordinarily to occur within four hours of the person being charged[83]. Charging a person with an offence requires particulars of the charge to be entered in a Police Station charge book unless it is not practicable for that to occur[84]. Whatever the precise significance of charging a person[85], it must be taken in this context to be a precursor to prosecution for the offence charged in a court.
[82]Section 16 of the Bail Act.
[83]Section 33(3)(b) of the Bail Act.
[84]Cf s 116(9) of the Police Administration Act.
[85]Cf Japaljarri v Cooke (1982) 19 NTR 19 at 23.
The final option available to a member of the Police Force under s 133AB(3) is described in s 133AB(3)(d) in terms of the member acting under s 137 to bring the person before a justice or court for the infringement notice offence or another offence allegedly committed by the person. Section 137(1) provides:
"Without limiting the operation of section 123, but subject to subsections (2) and (3) of this section, a person taken into lawful custody under this or any other Act shall … be brought before a justice or a court of competent jurisdiction as soon as is practicable after being taken into custody, unless he or she is sooner granted bail under the Bail Act or is released from custody."
Sub-sections (2) and (3) allow for a person taken into lawful custody in some circumstances to continue to be held in custody for such period as is reasonable to enable the person to be questioned, or investigations to be carried out to obtain evidence of, or in relation to, an offence which involves the person.
For a member of the Police Force to bring a person before a justice or court for an infringement notice offence, or for another offence allegedly committed by the person, is for the member to bring the person before the Court of Summary Jurisdiction and to make a complaint that the person has committed the offence in question. The making of that complaint constitutes the commencement of a proceeding by which the guilt of the person and any punishment for the offence will then be determined by the Court of Summary Jurisdiction, subject to an appeal to the Supreme Court.
The evident law enforcement function served by Div 4AA is to be contrasted with the evident protective function served by Div 4. Division 4, which predated Div 4AA, authorises a member of the Police Force to apprehend without warrant a person who the member has reasonable grounds for believing is intoxicated and is either in a public place or trespassing on private land. The member must have reasonable grounds for believing that, because of his or her intoxication, the person: is unable adequately to care for himself or herself and cannot practicably at that time be cared for by someone else; may cause harm to himself or herself or someone else; may intimidate, alarm or cause substantial annoyance to people; or is likely to commit an offence[86]. The person so apprehended can be held in custody for no longer than it reasonably appears that the person remains intoxicated, and is then to be released[87]. The person is to be neither charged with an offence nor questioned in relation to an offence[88].
[86]Section 128 of the Police Administration Act.
[87]Section 129 of the Police Administration Act.
[88]Section 130 of the Police Administration Act.
Construction
The constitutional validity of Div 4AA turns on the character and consequences of the detention authorised by s 133AB(2)(a). The character and consequences of the detention authorised by s 133AB(2)(b) need not be separately considered. That is because no party or intervener argues that s 133AB(2)(b) has a severable operation.
The threshold question of construction informing the answer to the question of characterisation concerns the measurement of the period of "up to 4 hours" for which s 133AB(2)(a) authorises the member of the Police Force who has arrested a person for an infringement notice offence to hold that person in custody.
The plaintiffs argue that s 133AB(2)(a) authorises the member of the Police Force to hold the person in custody for any period up to a maximum of four hours. Just how long the person is held up to that four hour maximum is for the member to determine.
The defendant argues that s 133AB(2)(a) authorises the member of the Police Force to hold the person in custody only for so long as is reasonable for that member or another member to make and to implement a decision to deal with a non-intoxicated person under s 133AB(3). Holding under s 133AB(2) is for the purpose only of dealing with under s 133AB(3). The four hour maximum is a legislative cap on the time that can be regarded as reasonable.
The defendant also has an overlapping argument. It is that s 137(1) operates concurrently with s 133AB(2) so as to require that a person who has been arrested and taken into custody for an infringement notice offence be brought before a justice or a court of competent jurisdiction "as soon as is practicable" after having been taken into custody. Section 133AB(2)(a) sets four hours as the upper limit of what can be regarded to be "as soon as is practicable" for the purpose of bringing the person before a justice or a court in compliance with s 137(1). To exercise the last of the options given to a member of the Police Force by s 133AB(3) is to do nothing more than comply with the concurrent requirement of s 137(1). If one of the other options given to a member of the Police Force by s 133AB(3) is to be exercised, that option must likewise be exercised within the same time frame: as soon as practicable, but always within the four hour period.
The arguments divide along battlelines not unfamiliar where questions about the constitutional validity of a law are abstracted from questions about the concrete application of that law to determine the rights and liabilities of the parties. The party seeking to challenge validity advances a literal and draconian construction, even though the construction would be detrimental to that party were the law to be held valid. The party seeking to support validity advances a strained but benign construction, even though the construction is less efficacious from the perspective of that party than the literal construction embraced by the challenger. The constructions advanced reflect forensic choices: one designed to maximise the prospect of constitutional invalidity; the other to sidestep, or at least minimise, the prospect of constitutional invalidity. A court should be wary.
"If the choice is between reading a statutory provision in a way that will invalidate it and reading it in a way that will not, a court must always choose the latter course when it is reasonably open."[89] The nature of that mandated choice must not be misunderstood. The choice, where binary, is between two constructions: both of which are reasonably open in the application of ordinary principles of statutory construction; one of which is in opposition to the Constitution, the other of which is in conformity with the Constitution[90]. Questions as to the severance or reading down of otherwise invalid provisions aside[91], a court has no warrant for departing from ordinary principles of statutory construction in pursuit of constitutional validity. And a court has no warrant for preferring one construction of a statutory provision over another merely to avoid constitutional doubt[92].
[89]Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 at 644 [28]; [2000] HCA 33.
[90]Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 504 [71]; [2003] HCA 2.
[91]Cf Australian National Airways Pty Ltd v The Commonwealth (1945) 71 CLR 29 at 92; [1945] HCA 41. See, relevantly, s 59 of the Interpretation Act (NT).
[92]Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 89 ALJR 382 at 396-397 [65]-[66]; 317 ALR 279 at 295-296; [2015] HCA 7.
The approach which a court should adopt was identified and explained in the following statement by French CJ in International Finance Trust Co Ltd v New South Wales Crime Commission[93]:
"The court should not strain to give a meaning to statutes which is artificial or departs markedly from their ordinary meaning simply in order to preserve their constitutional validity. There are two reasons for this. The first is that if Parliament has used clear words to encroach upon the liberty or rights of the subject or to impose procedural or other constraints upon the courts its choice should be respected even if the consequence is constitutional invalidity. The second reason is that those who are required to apply or administer the law, those who are to be bound by it and those who advise upon it are generally entitled to rely upon the ordinary sense of the words that Parliament has chosen. To the extent that a statutory provision has to be read subject to a counterintuitive judicial gloss, the accessibility of the law to the public and the accountability of Parliament to the electorate are diminished. Moreover, there is a real risk that, notwithstanding a judicial gloss which renders less draconian or saves from invalidity a provision of a statute, the provision will be administered according to its ordinary, apparent and draconian meaning."
[93](2009) 240 CLR 319 at 349 [42]; [2009] HCA 49 (footnote omitted).
There is a further reason why a court should resist being drawn into adopting a strained meaning of a statute when it is merely to sidestep or minimise the prospect of constitutional invalidity. That reason was well articulated in a recent critique of the practice of construing statutes to avoid constitutional doubt in the Supreme Court of the United States. The reason is that the facility merely to express constitutional doubt as the basis for making a constructional choice "allows judges to articulate constitutional principles in a context where the real impact of those principles – the invalidation of a law – will be unfelt" in a manner that "is anomalous in a case-or-controversy legal system that (ostensibly) abhors advisory opinions". To construe a statute to avoid not a judicial determination of invalidity but a judicially articulated doubt as to validity "is problematic because it unmoors adjudication from the traditional, structural source of judicial restraint"[94].
[94]Katyal and Schmidt, "Active Avoidance: The Modern Supreme Court and Legal Change", (2015) 128 Harvard Law Review 2109 at 2112, 2164.
Only if each were reasonably open in the application of ordinary principles of statutory construction could the prospect of constitutional validity or invalidity legitimately bear on the choice between competing constructions; and only then if the court were satisfied that one construction would lead to validity and the other to invalidity.
I am unable to accept that the defendant's construction of s 133AB(2)(a) is reasonably open in the application of ordinary principles of statutory construction.
The proper construction is to be found in the meaning of the statutory language, read in its statutory context and in light of its statutory purpose. The principle of construction known as the principle of legality is of little assistance given that the evident statutory object is to authorise a deprivation of liberty and that the statutory language in question is squarely addressed to the duration of that deprivation of liberty. The principle "exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law", and "is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed"[95]. The principle provides no licence for a court to adjust the meaning of a legislative restriction on liberty which the court might think to be unwise or ill-considered.
[95]Lee v New South Wales Crime Commission (2013) 251 CLR 196 at 310 [313]-[314]; [2013] HCA 39. See also Al-Kateb v Godwin (2004) 219 CLR 562 at 577 [19]; [2004] HCA 37.
Focusing on the statutory language, the defendant's construction involves a distortion, not just of the words of s 133AB(2)(a) but of the opening words of s 133AB(3). The conferral of authority on a member of the Police Force to "hold the person for a period up to 4 hours" is not on its face purposively related to the power of that member or another member to deal with the person. The conferral of authority to deal with the person "on the expiry" of the period of detention rather indicates that the authority to deal with the person is separate from, and sequential to, the authority to detain. What it also indicates is that the expiration of the period of detention must be capable of being ascertained before the authority to deal with arises. The expiration of the period of detention triggers the exercise of the authority to deal with, not the other way round.
Looking more broadly to the statutory context, there exists on any view a tension between: the specific authority conferred by s 133AB(2)(a) on a member of the Police Force to detain a person the member has taken into custody after arresting the person without warrant under s 123 for an infringement notice offence; and the general requirement of s 137(1) for any person who is taken into custody to be brought before a justice or a court of competent jurisdiction as soon as is practicable after being taken into custody. The resolution of that tension necessarily involves determining "which is the leading provision and which the subordinate provision, and which must give way to the other"[96].
[96]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [70]; [1998] HCA 28.
The starting point for the engagement of ss 133AB and 137 is an arrest under s 123 upon a belief on reasonable grounds that a person has committed, is committing or is about to commit "an offence". Upon arrest, s 123 empowers police officers to take the person into custody. The person is thus "taken into lawful custody under this ... Act" within the meaning of s 137(1).
Section 137(1) imposes a duty on police officers in respect of a person taken into lawful custody under the Act: the person "shall ... be brought before a justice or a court of competent jurisdiction as soon as is practicable after being taken into custody, unless he or she is sooner granted bail ... or is released from custody".
Section 133AB "applies if" the offence is an infringement notice offence[223]. Where it applies, the member "may take the person into custody and ... hold the person for a period up to 4 hours"[224]. Section 133AB(3) provides that, "on the expiry of [that] period", the person "may" be dealt with in accordance with one of the four options provided in pars (a)-(d)[225].
[223]Police Administration Act, s 133AB(1)(b).
[224]Police Administration Act, s 133AB(2)(a) (emphasis added).
[225]See above at [201].
In that context, may in s 133AB(2)(a) is permissive, in the sense of conferring a power to hold the person in custody, as opposed to imposing an obligation to do so. In contrast, may in s 133AB(3) has the purpose of imposing an obligation on police officers to adopt one of the four options identified in s 133AB(3)(a)-(d) and so should be read as must[226].
[226]Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222-223 per Earl Cairns LC; Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134-135 per Windeyer J; [1971] HCA 12; cf Ward v Williams (1955) 92 CLR 496; [1955] HCA 4.
Consequently, the effect of s 133AB(2)-(3) is that, if a person is arrested under s 123 and taken into custody on suspicion of committing, having committed, or being about to commit an infringement notice offence, s 133AB "applies"; the person is in "lawful custody under this ... Act" within the meaning of s 137(1); and s 133AB(3) requires that, upon the expiry of the period of up to four hours, the person be released unconditionally or with an infringement notice, granted bail, or brought before a justice or court under s 137.
The question is whether the duty under s 137(1) (to bring the person before a justice or court "as soon as is practicable after being taken into custody, unless he or she is sooner granted bail ... or is released from custody") is suspended or deferred by the exercise of the power to hold the person under s 133AB(2); or, conversely, whether the power to hold the person under s 133AB(2) is subject to the duty in s 137(1) to bring the person before a justice or court as soon as is practicable after being taken into custody unless he or she is sooner granted bail or released.
Constructional choices
There are two constructional choices. The first is to read the stipulation in s 133AB(2)(a) of "a period up to 4 hours" as in effect suspending or overriding, until the expiry of the period of up to four hours, the duty under s 137(1).
So to construe the provision would mean that, despite s 137, a person arrested under s 123 for an infringement notice offence could be held for up to four hours irrespective of whether it were practicable to bring the person before a justice or court (or release the person) within that period before being dealt with in accordance with s 133AB(3).
The second possible construction is to read the power to "hold the person" in s 133AB(2) as a power which arises simultaneously with the duty imposed under s 137(1). The emphasis is on the period of "up to 4 hours" as imposing a time limit of up to four hours on the exercise of the duty under s 137(1). On that construction, Div 4AA operates as a specific elaboration of the general powers and duties under s 137 for application to arrest for infringement notice offences with an outer limit on custody of up to four hours.
Preferable construction
There are a number of reasons to prefer the second construction. First, on the second construction, the four options provided for in s 133AB(3) for dealing with a person arrested in respect of an infringement notice offence are capable of operating harmoniously, and simultaneously, with s 137(1).
As was earlier noted, s 137(1) provides that a person shall be taken before a justice or court "unless he or she is sooner granted bail under the Bail Act or is released from custody". On the second construction, s 133AB(3)(d) operates as a direct reference to taking the person before a justice or court under s 137. The reference to bail in s 133AB(3)(c) is a reference to a grant of bail under the Bail Act. Paragraphs (a)-(b) of s 133AB(3) elaborate on "release from custody" by specifying that the release can be either unconditional or upon issue of an infringement notice. The words "on the expiry of the period mentioned in subsection (2)", namely "up to 4 hours", referred to in s 133AB(3) serve to emphasise that the four options provided for in s 133AB(3)(a)-(d) are enlivened at one of three possible points in time: the passing of four hours; any earlier moment as required to discharge the duty in pars (a)-(d); or, where the person is intoxicated, the time when the police officer believes on reasonable grounds that the person is no longer intoxicated[227].
[227]Police Administration Act, s 133AB(2)(b).
Secondly, as a matter of syntax, the terms of the stipulation of a period of "up to" four hours in s 133AB(2)(a) are redolent of an outer limit of four hours. There would be little point in the Legislative Assembly providing that a person may be detained for "up to 4 hours", as opposed to for "four hours", unless the purpose of so providing were to ensure that action be taken within that period as opposed to waiting until the end of it.
Thirdly, as already noted, s 133AB(3)(d) expressly provides that, if a person arrested under s 123 for an infringement notice offence is brought before a justice or court, the person is to be so brought "under section 137"; and s 137(1) requires that the person be so brought "as soon as is practicable" unless sooner granted bail or released. If the purpose of the stipulation of a period of "up to 4 hours" in s 133AB(2)(a) were to override the requirement in s 137 that the person be brought before a justice or court "as soon as is practicable", there would be no point in s 133AB(3)(d) expressly providing for the person to be brought before a justice or court "under section 137". Unless those words import the requirement in s 137(1) to act as soon as practicable, they add nothing to the remaining words of s 133AB(3)(d).
Fourthly, an infringement notice offence is by definition such a relatively minor offence that it is considered capable of expiation by means of the infringement notice procedure provided for under the Fines and Penalties (Recovery) Act[228]. More precisely, it is the kind of offence which the Legislative Assembly has determined does not necessitate a custodial disposition. It is, therefore, logical to expect that, where a person is arrested for such an offence, he or she will not ordinarily be detained for any more than a relatively short period of time. It makes sense, therefore, that the purpose of the stipulation of a period of up to four hours is to ensure that a person who is arrested for an infringement notice offence is released, granted bail or brought before a justice or court as soon as practicable, but in any event within four hours.
[228]See above at [203].
Of course, if, while the person is in custody, the police form the belief on reasonable grounds that the person had been involved in a more serious offence of the kind provided for in s 137(3), the person may then be detained for a longer period in accordance with s 137(2). But that does not detract from the imperative that, otherwise, a person arrested under s 123 for an infringement notice offence must be released, bailed or brought before a justice or court as soon as practicable.
Fifthly, if the purpose of the stipulation of a period of up to four hours were to override the duty in s 137(1), it would have the irrational and capricious consequence[229] that a person arrested under s 123 on suspicion of committing, having committed or being about to commit a very serious offence – say, for example, homicide or rape – must be brought before a justice or court under s 137(1) as soon as practicable unless sooner granted bail or released, but a person arrested under s 123 for a relatively trivial infringement notice offence – say, for example, neglecting to keep the person's yard clean[230] – could be detained for longer than the time when it becomes practicable to grant the person bail, release the person unconditionally or with an infringement notice, or bring the person before a justice or court.
[229]Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321 per Mason and Wilson JJ; [1981] HCA 26.
[230]Summary Offences Act (NT), s 78; Summary Offences Regulations, reg 3.
An intention to produce such an irrational and capricious dichotomy is not lightly to be attributed to a legislature, especially where it concerns the liberty of the subject[231]; and still less so where, according to the plain and ordinary meaning of the stipulation of the period of up to four hours, it is capable of operating as an outer limit in the manner already described[232]. As Wilson and Dawson JJ said in Williams v The Queen, questions of statutory construction regarding the powers of police to keep a person in custody[233]:
"must necessarily be considered against the background of the common law which provides in this instance the spirit if not the letter of the law. The presumption which requires clear words to override fundamental common law principles has an obvious application in a matter as basic as the liberty of the person".
[231]See Donaldson v Broomby (1982) 40 ALR 525 at 525-526 per Deane J.
[232]See Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at 585 [48] per Gummow and Hayne JJ; [2006] HCA 50.
[233](1986) 161 CLR 278 at 304; [1986] HCA 88.
Here, s 137(1) reflects the basic common law tenet that a person must be taken before a court as soon as reasonably practicable following arrest. A statute that departs from that fundamental position would need to be expressed in unmistakably clear terms.
Sixthly, s 16(2) of the Bail Act provides that, within the time for bringing a person before a justice or court under s 137(1), and so, in effect, as soon as practicable after arrest, the police may inform the arrested person of his or her right to apply for bail; and s 16(3) provides that, as soon as practicable after a person becomes entitled to apply for bail, and therefore, in effect, as soon as practicable after arrest, a police officer must determine whether bail should be granted. If the stipulation of a period of up to four hours in s 133AB(2)(a) meant that police could detain a person arrested under s 123 for an infringement notice offence beyond the point at which it became practicable to make a determination to either grant or refuse bail, it would be in direct conflict with s 16(2) of the Bail Act.
It is not to be assumed that s 133AB(2)(a) was intended to contradict s 16(2) of the Bail Act or to amend it. Evidently, it was not considered that the two provisions would conflict. There is no suggestion of such a conflict in the Police Administration Amendment Act or in any of the extrinsic materials. To the contrary, in the course of the debates in the Legislative Assembly which preceded the enactment of s 133AB(2)(a)[234], reference was made to the right of a person under s 33(3)(b) of the Bail Act to apply to a magistrate or justice after the expiration of four hours following charge for review of a police officer's failure or refusal to grant bail as soon as practicable. There was no suggestion of curtailing or restricting that right. The debate rather suggests that the period of up to four hours in s 133AB(2)(a) was chosen because it aligned with the period specified by s 33(3)(b) of the Bail Act.
[234]Northern Territory, Legislative Assembly, Parliamentary Debates (Hansard), 26 November 2014.
Seventhly, if s 133AB(2)(a) were taken as overriding s 16(2) of the Bail Act in its application to a person arrested under s 123 for an infringement notice offence, it would have the added irrational and capricious consequence that a person arrested for a serious offence – again say, for example, homicide or rape – would have the right to make an application for bail and have it considered as soon as practicable after arrest, whereas a person arrested under s 123 for a relatively trivial infringement notice offence would have no right to apply for bail or to have his or her application considered until the expiration of four hours following arrest.
As Fullagar J stated in Butler v Attorney-General (Vict)[235], every attempt should be made to reconcile competing statutes and it is only where they are irreconcilable that they should be held to conflict. Here, s 133AB(2)(a) of the Police Administration Act and s 16(2) of the Bail Act can be reconciled in the manner already explained by reading the stipulation of a period of up to four hours in s 133AB(2)(a) as imposing an outer limit on the time for which a person arrested under s 123 for an infringement notice offence may be detained, and thus as being without prejudice to the requirement specified in s 137(1) that the person must be released, granted bail or taken before a justice or court as soon as practicable.
[235](1961) 106 CLR 268 at 276; [1961] HCA 32. See also Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 at 145-146 [47]-[49] per Gummow and Hayne JJ; [2006] HCA 5.
The plaintiffs contended that so to construe Div 4AA would render the Division inutile. But plainly that is not so. On the second construction, Div 4AA serves the important function of clarifying that an infringement notice may be issued where a person is released following arrest, and it caps the period of detention in relation to an infringement notice offence at four hours.
That statutory purpose of Div 4AA is found in its text[236]. It is not to be displaced by what was said by the Attorney-General for the Northern Territory when the Bill for its enactment was introduced into the Legislative Assembly of the Northern Territory[237], or in the subsequent debates in the Legislative Assembly[238]. The words of the Minister cannot be substituted for the text of the Act[239]. As Hayne J observed in Momcilovic v The Queen, the relevant "intention" of the legislature is revealed by construction of the law in question[240]:
"Use of the metaphor of 'intention' or 'will' must not be understood as inviting attention to the wishes or hopes of those who promoted the legislation in question. What matters is the reach and operation of the law in question as that reach and operation are ascertained by the conventional processes of statutory construction. The metaphor of intention must not obscure the centrality of construing the laws in question."
Primacy must be given to the statutory language over what has been said in the extrinsic materials[241].
[236]Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; [1987] HCA 12; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 263-271 [26]-[59]; [2010] HCA 23; Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 at 527 [50]; [2011] HCA 33; Kline v Official Secretary to the Governor-General (2013) 249 CLR 645 at 659 [32]; [2013] HCA 52.
[237]Northern Territory, Legislative Assembly, Parliamentary Debates (Hansard), 22 October 2014.
[238]Northern Territory, Legislative Assembly, Parliamentary Debates (Hansard), 26 November 2014.
[239]Re Bolton (1987) 162 CLR 514 at 518.
[240](2011) 245 CLR 1 at 133-134 [315]; see also at 74 [111]; [2011] HCA 34.
[241]Saeed (2010) 241 CLR 252 at 263-271 [26]-[59].
Correct construction of s 133AB(2)(a)
For those reasons, it should be concluded that, upon the proper construction of Div 4AA, s 133AB(2)(a) sets an outer limit of four hours on the time for which a person arrested under s 123 for an infringement notice offence may be held before being released unconditionally or with an infringement notice, granted bail, or taken before a justice or court; and that the outer limit of four hours set by s 133AB(2)(a) is without prejudice to the requirement, which applies under s 137(1) to a person arrested under s 123 for an infringement notice offence, that the person be taken before a justice or court as soon as practicable after arrest unless sooner released (either unconditionally, with an infringement notice, or on bail) under s 133AB(3).
It follows that, when a person is arrested under s 123 for an infringement notice offence, then, as soon as practicable after the person is taken into custody, he or she must be either released unconditionally or with an infringement notice, granted bail, or taken before a justice or court under s 137(1). That means that any detention of the person for longer than required to render it practicable so to release the person or take the person before a justice or court would be unlawful (even if it were within the four hour period specified in s 133AB(2)(a)) and so would be actionable at the suit of the person for damages for false imprisonment[242].
[242]Watson v Marshall (1971) 124 CLR 621 at 626 per Walsh J; [1971] HCA 33.
It also follows that, where a person is arrested under s 123 for an infringement notice offence and it is not practicable at any point before the expiration of the four hour period referred to in s 133AB(2)(a) to release the person unconditionally or with an infringement notice, grant the person bail, or take the person before a justice or court under s 137(1), the person must nevertheless be dealt with in one of those four ways upon the expiration of the four hour period. In those circumstances, any detention for longer than that without releasing the person or taking the person before a justice or court under s 137(1) would be unlawful and actionable at the suit of the person for damages for false imprisonment.
The foregoing requirements are, however, subject to s 133AB(2)(b), such that, if the person is intoxicated, the person may be held for a period longer than four hours until the person is believed on reasonable grounds no longer to be intoxicated. They are also subject to s 137(2), and so a police officer may continue to hold a person arrested under s 123 for an infringement notice offence for questioning or investigation in relation to another offence in accordance with s 137(3) for the period specified in s 137(2).
The plaintiffs' constitutional arguments
The plaintiffs advanced two constitutional arguments in the alternative. The first was that Div 4AA impermissibly confers judicial power on the executive government of the Northern Territory by permitting a "superadded" period of detention for up to four hours in addition to any time required to bring a person before a justice or court under s 137(1). The second was that Div 4AA undermines the institutional integrity of the Supreme Court of the Northern Territory, in contravention of the Kable doctrine.
The first argument assumes that Div 4AA should be characterised as conferring a power on the executive which is "penal or punitive".
In Chu Kheng Lim v Minister for Immigration, Brennan, Deane and Dawson JJ said that, subject to certain exceptions, "the involuntary detention of a citizen in custody by the State is penal or punitive in character and ... exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt"[243]. The "most important" exception to that principle, however, is "the arrest and detention in custody ... of a person accused of crime to ensure that he or she is available to be dealt with by the courts"[244].
[243](1992) 176 CLR 1 at 27; [1992] HCA 64.
[244](1992) 176 CLR 1 at 28.
For the reasons already given, Div 4AA should not be construed as permitting the detention of a person for a period longer than is reasonably necessary to bring the person before a justice or court. Upon its proper construction, Div 4AA falls squarely within the arrest and detention in custody exception to the principle adumbrated by Brennan, Deane and Dawson JJ in Chu Kheng Lim. That is so even though the Fines and Penalties (Recovery) Act contemplates that a person issued with an infringement notice will not be dealt with by a court in relation to that infringement notice offence if the offence is expiated. That statutory regime provides for a diversion from, rather than a substitute for, the bringing of an alleged offender before a court in relation to the offence. It is, therefore, unnecessary to consider whether the separation of powers doctrine limits the Commonwealth's legislative power under s 122 in the manner submitted by the plaintiffs.
The plaintiffs' second constitutional argument was put on the basis that Div 4AA grants the police a power to detain a person in circumstances where, as a matter of practicality, the exercise of the power is immune from supervision by a court, contrary to the principles in Kable[245] and Kirk[246].
[245](1996) 189 CLR 51.
[246](2010) 239 CLR 531.
That argument may also be disposed of briefly. On its proper construction, Div 4AA does not grant police a power to detain for a period longer than provided for by ss 123 and 137. For that reason, Div 4AA cannot be regarded as usurping or otherwise interfering with the exercise of judicial power by a court of the Territory once a person who has been arrested is brought before the court.
Abuse of power
Finally, it should be mentioned that, during the course of argument, counsel for the plaintiffs expressed concerns that Div 4AA appeared to contemplate the arrest and taking into custody of a person for an infringement notice offence for which the maximum penalty is non-custodial and therefore for which arrest and taking into custody may not be necessary.
Those concerns are unwarranted. The powers of police to arrest a person and take him or her into custody are only to be exercised for the purposes for which the powers are granted and, therefore, only for a legitimate reason. Where, therefore, a police officer reasonably suspects that a person has committed, is committing or is about to commit an infringement notice offence of such a minor nature that it does not carry or is unlikely to be visited with a penalty of imprisonment, then, unless the offence is continuing or there is an ongoing risk to public safety or order, it is difficult to conceive of a legitimate reason for the police officer to arrest the person rather than issue an infringement notice "on the spot". The exercise of police powers is also subject to well-established mechanisms of legal supervision. Actions in assault, trespass and false imprisonment lie in respect of unlawful arrest, and exemplary damages may be awarded[247]. And, in the Northern Territory, a deliberate delay in bringing a person who has been arrested before a court is a crime punishable by imprisonment[248].
[247]New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57.
[248]Criminal Code (NT), s 106.
Conclusion
Division 4AA is not invalid on either basis advanced by the plaintiffs. The questions in the special case should be answered as follows:
(1)(a)No.
(1)(b)No.
(2)The plaintiffs.
(3)The proceeding should be remitted to a single Justice of this Court for further directions.