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In the Northern Territory, a ‘zero tolerance’ approach to domestic violence has led to claims of police overstepping their powers and questions about how far preventive measures should be taken. By Russell Marks.

Police powers in the Northern Territory

Judges have twice told Northern Territory police they don’t have the power to arrest Aileen Roy in her home. But the police are appealing once more.

The case sits uncomfortably at the crux of two urgent justice reform pushes – one that aims to address the mass surveillance and incarceration of Aboriginal people, the other to punish and prevent family violence.

Operation Haven began in Alice Springs in February 2018 as a “zero tolerance approach to domestic violence and related crimes, including the factors that often fuel it, such as the abuse of alcohol”. Among other enforcement practices, Haven had police locate people they knew were subject to current domestic violence orders (DVOs) to check that they were complying with their court-ordered conditions. Police called it “proactive” policing, saying they were trying to prevent crimes, rather than simply reacting to them.

Unless police have reasonable grounds to believe someone has committed a crime though, continually showing up at their house to “check in” becomes harassment.

The issue is complicated by the fact police, courts and governments know that a lot of domestic violence happens inside people’s homes. DVOs, which have different names in other states, are designed to protect people by restricting abusive partners and relatives from acting in particular ways.

In 2017, a judge told Aileen Roy she could be at her house, or with her husband, as long as she was sober; if she’d been drinking and she went home, she would be in breach of her DVO. The reasoning was that drinking alcohol made Aileen more likely to commit violence against her husband. Conditions such as this are easily obtained in the Territory. However, the nature of alcohol dependence means they are prone to breaches. A dependency won’t vanish simply because a judge orders someone not to drink.

The two constables who knocked on Roy’s flyscreen door in April last year hadn’t received any complaints about her. She wasn’t being violent. In fact, she was lying on the floor and co-operated with the officer who asked for a breath test. The test showed up positive to alcohol, which meant Roy was in breach. She was arrested, led to the cage on the back of the officers’ police ute, driven to the station, charged and given a court date. By all appearances, the officers had achieved the preventive aims of Operation Haven.

But this kind of proactive policing has complicated implications. “Aboriginal people in the NT are subject to extraordinary levels of arrest and surveillance by police,” says prominent Aboriginal leader Olga Havnen, chief executive of the Danila Dilba Health Service in Darwin. “Aboriginal people are 14 times more likely than anyone else to be incarcerated.”

There are no published statistics for how often police randomly stop and search cars driven by Aboriginal people in the Territory. But it’s not uncommon for lawyers to meet Aboriginal defendants in court charged with anything from a cracked tail-light to the possession of alcohol, and for defendants to instruct this was the fifth, sixth or seventh time police had searched their car this year, or this month.

I first met Roy when I was a lawyer on duty for the North Australian Aboriginal Justice Agency (NAAJA). Everything about her in this report is on the public record. As we read through the brief of evidence, I couldn’t see what law gave the officers their powers to proactively “check” Aileen’s compliance with her DVO conditions.

When the then attorney-general Syd Stirling introduced the current domestic violence laws in 2007, he clearly explained that the mandatory sentencing provisions – seven days’ minimum prison time for repeat offenders – wouldn’t apply to non-violent DVO breaches, such as Aileen Roy’s. But a parliamentary drafting error means most judges feel they have no choice but to apply it. So, Roy was facing at least a week in prison for a crime that might be seen in another jurisdiction as a health issue. She instructed me to contest the charge.

As the case progressed, Roy’s lawyers argued that even though parliament had given police “special powers” in domestic violence laws, it didn’t give police power to “check up” on people at home when there hasn’t been a complaint. The prospect of having police show up whenever they feel like it over the duration of the DVO, which could last one or two years, is too great a potential incursion into civil liberties, her lawyers said.

Without being given that power by parliament, the argument was that police were effectively trespassing when they showed up at Aileen Roy’s house. Police argued they didn’t need a power to knock on the door; they could rely on the “implied consent” of the householders – which included Roy’s husband – much as neighbours do. When they did so, the officers said they happened to see, through the flyscreen door, Roy lying on the floor and then walking unsteadily. Police argued this is what gave them “reasonable belief” she was breaching her DVO.

Ultimately, the judge found Roy not guilty. Police appealed to the Supreme Court and lost. The next hearing is in Darwin’s Court of Criminal Appeal in August.

The power police want is also what many family violence prevention reformers want them to have. But should they get it?

Police in the NT already have broad powers in many situations. This year, the Gunner Labor government gave police officers the power to stop a car just for driving past the car park of a bottle shop selling alcohol, and to conduct “covert surveillance” of any person leaving a bottle shop. “It doesn’t take much to imagine whose cars, and which people, are subject to laws like this,” says Havnen. Aileen Roy has become the latest test case for determining just how much the courts will participate in the great police “powers creep”.

The case also has implications well beyond domestic violence prevention. It’s very common for children accused of criminal offences to be bailed with curfew conditions while their lawyers are sifting through the evidence against them. “NAAJA has fielded quite a number of complaints as to police conducting curfew checks multiple times throughout the night,” Shahleena Musk – now of the Human Rights Law Centre – told the Royal Commission into the Protection and Detention of Children in the Northern Territory in 2017.

Advocates say police are ignoring the commission’s findings. “The fact these practices have returned shows that it is business as usual for police in the NT,” one prominent lawyer says. Another says police in Tennant Creek have effectively declared “war” on Aboriginal kids and have many of them on curfew – with multiple compliance checks every night.

Sue Oliver, a retired Local Court judge, says multiple compliance checks “can alienate the child and their family, disrupt sleep and school attendance and cause trouble for them at home”. And for every 20 children apprehended for breaching bail in the NT, 19 are Aboriginal, says Musk. The point of a curfew is to keep kids with family and off the streets, say advocates, not to arrest a child because he happens to be at his aunty’s house instead of his mother’s.

New laws before the NT parliament will soon mean that children who breach curfews but still show up to court won’t be charged with separate criminal offences. It’s unclear, though, whether officers will stop their curfew compliance checks without a clear statement of the law from the judiciary.

And so, as “zero tolerance” approaches to domestic violence and youth offending clash inevitably with civil rights-inspired efforts to keep police powers in check and Aboriginal men, women and children out of custody, Aileen Roy finds herself at the centre of urgent questions about just what prevention and punishment look like in the Northern Territory. 

This article was first published in the print edition of The Saturday Paper on Jun 22, 2019 as "Pre-emptive strife". Subscribe here.

Russell Marks
is an honorary associate at La Trobe University. He has worked as a criminal defence lawyer, a cricket coach, an academic, a policy adviser and a speechwriter.