Repeal ‘paperless arrest’ law: Coroner

REPORT by KIERAN FINNANE

 

The so-called “paperless arrest” law impacts disproportionately on Indigenous Territorians, is therefore unfair and should be repealed, Coroner Greg Cavanagh said today in his findings on the death in custody of Kumunjayi Langdon of Yuendumu.

 

Mr Langdon died in the Darwin watch house – “on a concrete bench with two strangers”– on 21 May this year. He was 59 years old and suffered from multiple chronic health complaints, including heart disease. He died from natural causes but should have been able to die in freedom, with his family and friends, said the Coroner.

 

He had been detained under the paperless arrest scheme, even though he was not causing trouble and was at all times quiet and cooperative with police. (He was, however, very drunk – toxicology showed his blood alcohol to be .270%, “high but not fatal”.)

 

Under the new scheme, introduced in December 2014, people can be arrested without warrant and detained for four hours (longer if intoxicated, ie until they are judged sober) if police suspect they have committed, are committing or may be about to commit an offence.

 

The care for Mr Langdon in the watch house was adequate in the circumstances, said the Coroner, and he noted the significant improvements in watch house procedures and behaviour, brought about since the death of Kwementyaye Briscoe in Alice Springs

 

‘Enormous pressure’ on police

 

However, it was clear that police and the watch house nurse were under “enormous pressure” as a result of the scheme and Operation Ascari II, a police initiative encouraging the arrest of public drinkers “almost all of whom are Indigenous”.

 

It is “no coincidence” that the first death in custody as a result of a paperless arrest was an Aboriginal man, said the Coroner. Aboriginal people make up “the vast majority of those detained under the new laws”, yet only make up 29% of the Territory’s population.

 

The public park where Mr Langdon was “enjoying a quiet drink with friends” on the night of his death, is one street away from the Mitchell Street strip of bars where many mostly non-Indigenous people including tourists “imbibe large amounts of alcohol”. These bars have dress codes which would have precluded Mr Langdon, and other Aboriginal public drinkers whom police were arresting, from entering.

 

Said the Coroner: “The new laws create as ystem where a large proportion of the population drinks freely in pubs and taverns using sections of the public footpath that have been fenced off for outdoor drinking.

 

“Just one street away, Aboriginal people (some of whom have come in from remote communities that are under federal fiat banning alcohol, and will choose to live outdoors in the long grass) are being detained for drinking in a designated public place, even if they are enjoying peaceful, quiet time with family and friends.

 

“That deprivation of liberty and the differential treatment it results in is unacceptable.”

 

Not a criminal but treated like one

 

Mr Langon, a sick, middle-aged Aboriginal man, “was treated like a criminal, incarcerated like a criminal and died in a police cell built for criminals. In my opinion, it matters not that it was only for a few hours that he was deprived of his liberty.”

 

Not only are the paperless arrest laws unfair, they are “irreconcilable” with the recommendations of the Royal Commission into Aboriginal Deaths in Custody, “which urged that Police use arrest and detention as an option of last resort”, said the Coroner.

 

“Ordinarily, it is not appropriate for a judicial officer to criticise laws passed by a democratically elected Government, however I am compelled to do so, pursuant to my powers under s.26(2)the Coroner’s Act.”

 

He said there is a clear link between the paperless arrest laws and an increase in incarceration of Aboriginal people, which perpetuates and entrenches their disadvantage.

 

He said the scheme was introduced “without any apparent thought to the impact on watch house numbers, or the likely increase in deaths in custody.”

 

“In my view, unless the papereless arrest laws are struck from the Statute books, more and more disadvantaged Aboriginal people are at risk of dying in custody and unnecessarily so.”

 

ADDITIONAL REPORTING, 17 August 2015: 

 

Some further reporting from the Coroner’s findings may assist clarity in the debate by commenters:

 

The findings were made pursuant to s 26(1) of the Coroner’s Act that imposes an obligation on the Coroner to “investigate and report on the care, supervision and treatment of the person while being held in custody”.

 

Further, a broad recommendations power is set out in s 35(2), which provides that: “a coroner may make recommendations to the Attorney-General on a matter, including public health or safety or the administration of justice connected with a death or disaster investigated by the coroner”.

 

Under s.26(2) the Coroner must also make such recommendations with respect to the prevention of future deaths in custody, as he/she considers to be relevant. [my emphasis]

 

Specific obligations on a Coroner dealing with deaths in custody were introduced as a response to the Royal Commission into Aboriginal Deaths in Custody.

 

The arrest of Mr Langdon was pursuant to s.123 of the the Police Administration Act (PAA) for the offence of drinking alcohol in a regulated place in a designated area – s101U of the Liquor Act.

 

The new so called “paperless arrest” law, section 133AB of the PAA, came into force on 17 December 2014. It was this law that allowed police to detain Mr Langdon for an infringement offence. The maximum penalty for the minor liquor offence of drinking alcohol in a designated area is a fine of $74 (with a victim’s levy of $40). It carries no term of imprisonment.

 

As reported, Mr Langdon was not violent or being offensive in any way before or after his arrest. “That is to say,” said the Coroner, “there was nothing to indicate that he was going to cause ‘social disorder’ in the sense that the Attorney General used when he introduced the bill containing the paperless arrest provisions (Second reading speech).”

 

The Coroner nonetheless found that the arrest was lawful, but considered as a separate question whether it was “unreasonable and disproportionate”.

 

Police General Orders direct Police that arrest should be an option of last resort (Police General Order ‘Arrests’, 2.2), in line with a number of recommendations of the Royal Commission.

 

Arresting Mr Langdon was not the last resort, since there were several other options, including taking him to a sobering up shelter; arranging for Night Patrol to get him; giving him a banning notice and direction to leave the area; telling him to go ‘home’, taking him home, or asking a family member to take him home, or police; and leaving him in peace, given that the alcohol had been tipped out and an infringement notice could be issued on the spot.

 

Even before Mr Langdon arrived at the watch house Police had issued the infringement notice. So what could have been the purpose of detaining him, asked the Coroner. No court could have locked him up for the offence of drinking in a regulated place in a designated area for any period of time, but under the new laws, the police can exercise their discretion to do so, for a period of up to four hours, or longer if Police determined he was still intoxicated.

 

Yet police have long had laws allowing them to take people into protective custody (pursuant to s.28 of the Police Administration Act) and to arrest and detain people who commit offences and must be removed from the street to protect public safety (see the offences listed in the Summary Offences Act and Crimes Act).

 

In effect, the arrest was for the purpose of preventative detention, which, said the Coroner, cannot be justified except in the most extraordinary circumstances. He considered the argument that such arrests were likely to reduce further, more serious offending, as speculative without evidence.

 

He criticised the lack of an evaluation tool for the paperless arrest law, as to either its effectiveness or its adverse impact: “Recommendations 82, 85 and 87 of the Royal Commission were specifically directed to Governments and Police and urged that they monitor the policing of public drinking offences to determine their impact on Aboriginal people.”

 

Police gave evidence to the Coroner that the majority of those picked up for drinking in a public place are indigenous and did not disagree that 95% of those detained in police cells for liquor offences are indigenous.

 

“That increase in the numbers of indigenous people in custody is likely to lead to a proportionate increase in the numbers of Aboriginal people dying in custody. This has led me to recommend that the [paperless arrest] law should be repealed.”

 

 

The Coroner’s findings go to 35 pages (a little over 9000 words). The full report can be found on the Coroner’s Office website.

 

 

 

 

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10 Comments (starting with the most recent)

NB: If you want to reply to a previous comment, start your comment with this notation: @n where n is the number of the comment you want to reply to.
  1. Paul Parker
    Posted August 28, 2015 at 4:28 pm

    Perhaps the community regards offenses of drinking of alcohol in prohibited areas as not so minor, particularly when repeated.
    Should the maximum financial penalty be amended to at least equal the average cost per day of imprisonment?

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  2. Sarah Penelope Smyth-Garbinhager
    Posted August 23, 2015 at 9:29 am

    “It is not my wish to offend the family and friends, however …” Steve Brown rises to the occasion once again as Alice’s One and Only.
    Well said Pete Path … Alice’s One and Only never stays on topic.

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  3. Steve Brown
    Posted August 22, 2015 at 2:58 pm

    You sure you are reading my comment, Pete? I think your Path maybe in need of enlightenment!

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  4. Posted August 21, 2015 at 8:13 pm

    Nice try, Steve Brown.
    I see what you did there: tried to conflate the circumstances of a victim not charged with any crime, who was “was not causing any disruption … and at all times he was polite and cooperative”, with serious offenders, murderers and rapists.
    Not only quite dishonest, but disrespectful of his audience: the deputy mayor’s venture into the world of political comment is ill considered.
    As for paperless arrest, this dangerous new experiment of allowing police to arrest without charge has failed and should be abandoned.

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  5. Sensible "not a ghost writer" Steve
    Posted August 19, 2015 at 7:26 am

    Re Scotty: Hmmm, a better place? Probably want to revisit that.

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  6. Kieran Finnane
    Posted August 17, 2015 at 11:31 am

    Some further reporting from the Coroner’s findings may assist clarity in the debate by commenters.

    As it goes to some detail, I have posted it under the heading ‘ADDITIONAL REPORTING’ at the bottom of the original report.

    @ Paul Parker, these findings are focussed on the death in custody and the paperless arrest law, and not with detox facilities.

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  7. Scotty
    Posted August 16, 2015 at 7:38 pm

    Steve Brown, I commend you on your expressed analysis.
    Great to see someone who tells it how it really is.
    Alice would be a better place if more people held your views.

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  8. Paul Parker
    Posted August 16, 2015 at 1:38 pm

    I agree with Steve Brown’s comments: Posted August 15, 2015 at 11:02 am.
    Does Coroner Greg Cavanagh address issues concerning detox facilities elsewhere in this judgment?

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  9. Robin Henry
    Posted August 15, 2015 at 3:04 pm

    Well said Steve Brown. One can’t change a whole legal system because it inconveniently adversely effects a particular group.
    Had here not been a “paperless” system in use, the deceased may well have still been in custody and died. With a heart condition, he could just as easily died elsewhere.

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  10. Steve Brown
    Posted August 15, 2015 at 11:02 am

    It is not my wish to offend the family and friends of the late Mr. Langdon, they have my deepest sympathies at his sad passing under such unfortunate circumstances. However the Coroner’s political comment deserves some analysis given the horrific social consequence of this kind of thinking.
    This is a continuation of political comment from the bench in recent years, all apparently motivated by a blinkered client association that appears to have some on the bench identifying and sympathizing with those that appear before it rather than the wider community whom they are supposedly there to protect. That is a wider egalitarian society trying to regulate a reasonably civilized existence for all its peoples, equally. The comments appear to display a disassociated Academic Paternalism, the most insidious destructive form that racism takes, a willingness to single out one particular race for special treatment no matter what effect that special treatment has on the rest of the population while also being all encompassing of the particular race in question in the usual paternalistic manner, assuming that everyone who identifies as belonging to that particular group is sympathetic to an individual’s plight. The same kind of thinking that in the past has seen serious offenders, murderers, rapists, receiving lenient sentences and returned home to communities simply because they were of that origin without the slightest regard for the hellish effect that outcome had on those trying to live a normal peaceful civilized life within those communities.
    The Coroner is requesting the removal of paperless arrest because they capture more Aboriginal people than other Community members, this apparently being discriminatory and divisive. Has it occurred I wonder to the Coroner, that these same laws may also “protect” more Aboriginal people, more women and kids from the results of drunken behavior?
    Further if it is necessary to remove this law because of the over representation of Aboriginal persons wouldn’t it then follow that it would also be necessary to remove laws relating to violent assault, rape, murder and robbery, given that Aboriginal people are also over represented in these areas?
    Maybe if we stopped and thought awhile before tearing off down the self sacrificing road on which this ridiculous Paternalistic approach to law enforcement would set us we would also take into account the victims! Those who are being subjected to these appalling criminal abuses! Where surprise, surprise, the numbers of Aboriginal people are also disproportionate!
    How do we protect them?
    Aren’t the honorable intentions of our Egalitarian laws to protect everybody equally? If that is not the outcome, is that because of the written Law, or because of the actions of those charged with implementing them? Is the Coroner saying our Police are racist in their implementation and if that is so then surely doesn’t the answer lie in dealing with that abuse? Not in changing our Laws!
    While analyzing implementation we need to keep in mind that not arresting someone because they are of a particular race is every bit as racist as arresting someone because they are of a particular Race!
    The Coroner’s venture into the world of political comment is ill considered. His comments if taken at a somewhat flippant face value are utterly flabbergasting, the concern appears to be division, but the remedy is also division? So if the Coroner doesn’t want society to use the law to discourage, dare I say change, particular behavior, what other options does a Community have? A free for all!
    Taking the comments at face value the Territory should be allowing the consumption of alcohol in its public places, we need to do this because not everybody could be bothered freshening up to get into a pub and because apparently it’s a whole lot better to die on the streets or in a back alley than it is in a supervised jail cell. Further to that, those actually doing the right thing, obeying a law which unfortunately applies equally to everyone, by drinking in pubs and clubs are arrogant snobs who need to be brought to level. This could be achieved by implementing a boozy free-for-all.

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