Paperless arrests are valid, but wait, there’s a catch (and a release)

On 11 November 2015, in North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41, the High Court (French CJ, Kiefel and Bell JJ; Gageler J (diss.); Keane J; Nettle and Gordon JJ) ruled that Division 4AA of Pt VII of the Police Administration Act (NT), which confers on police the power to make “paperless arrests”, is valid.  However, the plurality also held that although police are lawfully empowered to arrest persons for infringement notice offences, it does not necessarily follow that such persons may then be lawfully detained for four hours.  As Nettle and Gordon JJ held (at [231]), subject to s 133AB(2)(b) (which provides that an intoxicated person may be detained until they’ve sobered up):

…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.

A statement to similar effect is found in the judgment of French CJ, Kiefel and Bell JJ at [36].

For further recommended reading, see Martin Clark’s handy summary of the judgments and issues on the High Court blog, Opinions on High; and an acutely observed “wider perspective” of the decision by Charles Darwin University academic Ken Parish.