North Australian Aboriginal Justice Agency Ltd v Northern Territory

• Jurisdiction: Australia Federal only
• Judge: French CJ,Kiefel,BELL JJ.,Gageler J.,Keane J.,Nettle,Gordon JJ.
• Judgment Date: 11 November 2015
• Neutral Citation: [2015] HCA 41
• Docket Number: M45/2015
• Court: High Court
• Date: 11 November 2015

[2015] HCA 41

HIGH COURT OF AUSTRALIA

French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ

M45/2015

North Australian Aboriginal Justice Agency Limited & Anor

Plaintiffs

and

Northern Territory of Australia

Defendant

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)

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.

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’.

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.

French CJ, Kiefel and BELL JJ.

Introduction

1 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.

2 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.

3 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.

4 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).

5 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.

6 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.

7 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

8 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

9 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...