High Court rules on Northern Territory’s paperless arrests
May 21 in Darwin, a Thursday, was hot.
In a city park that evening, Kumanjayi Langdon sat drinking with friends and family. The 59-year-old was in Darwin to see a medical specialist, having travelled from his remote desert community of Yuendumu, with its population of 817, via Alice Springs. It was a journey of more than 1700 kilometres.
Langdon had a broad, whiskery face and screwed his eyes up when he smiled. He was an artist: the National Gallery of Victoria holds one of his paintings, a 1987 work with a Warlpiri-language title that translates as “Fire Country and Emu Dreaming”, and his murals can be seen on buildings in Yuendumu, including one of the Magpies, the local football team.
“He was an artistic bloke,” says Rex Japanangka Granites, Langdon’s “cultural brother” according to Aboriginal custom.
Langdon died that night after being arrested, in a case that revives concerns over policing in the Top End and has spurred a High Court challenge to the Northern Territory’s “paperless arrest” laws.
His offence was drinking alcohol in a public place – an infraction that carries a fine of $74. At 5.30pm, police carried out a controversial paperless arrest, whereby offenders can be picked up – without paperwork – and detained for up to four hours. Four hours later, however, Langdon was dead on a concrete bench at the Darwin police watchhouse.
The next day, lawyer Jonathon Hunyor received an email from the police. As the principal lawyer of the North Australian Aboriginal Justice Agency, or NAAJA, in Darwin, he was informed of the fatality. When he spoke to the family, they asked him to act in the inquest that would follow.
Hunyor’s agency had already filed a High Court suit to have the paperless arrest law – introduced by the Northern Territory last December – struck down as unconstitutional. “As soon as we saw this law,” he said, “we knew we would challenge it.”
Hunyor said Langdon’s case showed what was wrong with these arrests. “Kumanjayi Langdon wasn’t causing trouble. He wasn’t being a nuisance, let alone doing something that would warrant being locked up.”
Langdon is survived by his wife, Nancy Oldfield, their children and, as one of 10 children himself, a large extended family. While Yuendumu mourned, Rex Granites spoke publicly. “We’re not blaming anybody,” he told the media, “unless we get the answers through that inquest.”
He added: “I think the police arrested him without the proper warrant of arrest, or a paperless arrest, which is wrong.”
Granites was reserving judgement on how Langdon died, even as rumours flew in the small community. But Aboriginal Australians have learnt to fear for the lives of family members who end up in police cells or jail.
More than a quarter-century has now passed since the Royal Commission into Aboriginal Deaths in Custody, which ran for four years from 1987. The commission found that the standard of care had too often been deficient, with most of the deaths resulting from disease, suicide, or other forms of trauma. Many of the inmates had been apprehended for minor public order offences. The central recommendation: make imprisonment a sanction of last resort.
Yet things are still going badly wrong. Nearly 12 months before Langdon’s death, a 22-year-old West Australian Aboriginal woman, Julieka Dhu, died after being held in jail for failing to pay fines totalling $1000. Dhu had complained of severe pain, vomiting and partial paralysis, and was twice taken to Hedland Health Campus but released back into custody, reportedly without having seen a doctor. Her family is still demanding answers.
“One of the fundamental lessons of the royal commission was that Aboriginal people die in custody too often because they’re in custody too often,” said Hunyor, “and we need to stop locking up people for minor offences, particularly things like public drinking.”
The Northern Territory’s paperless arrests, introduced to free police from paperwork, can be triggered by offences including swearing, drinking in public, making too much noise or having an untidy front yard. Before December, these infractions merited only small “on-the-spot” fines. Of the 2000 people who have been detained via paperless arrests, almost 80 per cent are Aboriginal.
In August, Rex Granites went to Darwin for the inquest, attending with Hunyor to represent the family. The coroner, Greg Cavanagh, heard evidence about the deceased’s life: he had gone to school in Darwin, worked at a goldmine in the Tanami Desert, and produced illustrated bilingual books and posters for the Yuendumu school, examples of which Granites had brought along. He heard from five police officers and two nurses, and reviewed CCTV footage and medical files.
As the inquest went on, Hunyor was also preparing for the High Court challenge to the paperless arrest provisions. He and Melbourne-based Ruth Barson, a lawyer with the Human Rights Law Centre, would argue that the measure was unconstitutional, either because it was punitive in nature or because it breached the separation of powers by cutting back on the courts’ oversight of detention.
On Thursday, August 14, the coroner found Langdon had died of heart failure. He pointed to shortcomings in care in the watchhouse – staff were under pressure because of a police operation targeting public drinking – but inattention had not caused Langdon’s heart to stop. He had a pre-existing condition, which he tried to keep secret from his family.
The report details his last days, in which time he was twice picked up by police for being drunk, and on both occasions taken to hospital. He had booked to stay at a hostel, but was “long-grassing” instead – sleeping rough in the long grass, as many out-of-towners do when they come to Darwin – and fell into drinking with friends and relatives.
None of that made Langdon a criminal, and the coroner said as much. He spoke out against paperless arrests, saying they should be scrapped. He said the police blitz targeted Aboriginal drinkers who, due to their state of dress, would likely be refused entry to nearby bars thronging with white Territorians.
“It is no coincidence that the first man to die under the laws is an Aboriginal man,” Cavanagh said.
Northern Territory Attorney-General John Elferink has defended the law. He credits it with a “significant reduction” in alcohol-fuelled violence on Territory streets. “The number of alcohol-related domestic violence incidents are also down, and while it is too early to draw firm conclusions from this, I believe these laws have helped,” he said. “If one woman or child is saved from a domestic violence incidence by these laws, that is a good result.”
The High Court of Australia heard the challenge over two days in September. Last Wednesday, November 11, it ruled, in a 6–1 decision, that the law is valid. A Northern Territory law is subject to less stringent safeguards than laws of the states, and the court employed a common tactic in reading down the provisions rather than declaring them invalid.
That means the court has reined in the law’s operation, making it clear that police may not detain people for longer than is reasonably practicable. They must either issue arrested persons with infringement notices and then release them, or bring them before a court. They shouldn’t be left to languish as Langdon was.
Meanwhile, the deceased’s family prepared for his funeral, which will be held in Yuendumu today. Speaking from his Alice Springs home, Rex Granites reflected on what went wrong for his countryman and fellow artist. A former drinker himself, Granites is as concerned as anyone about problem drinking.
“Children grow up with it, they see it and they do it,” he said, having just come home from taking his two granddaughters shopping.
Granites thinks the police have a role to play, but the focus should be on better – and more consultative – solutions. “Why couldn’t the government have gotten us in to talk about it?”
Hunyor echoed these sentiments. “Punitive policing approaches to the Territory’s drinking problem just aren’t the way to go. We need approaches based on evidence and working with Aboriginal people to find solutions.”
Yet paperless arrests are still the order of the day, despite the coroner’s verdict. “In my view,” Cavanagh said, “Kumanjayi Langdon had the right to die as a free man.”
This article was first published in the print edition of The Saturday Paper on Nov 21, 2015 as "Paperless justice". Subscribe here.