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“paperless arrest” law impacts disproportionately on Indigenous Territorians, is therefore unfair and should be repealed, Coroner Greg Cavanagh said today in his findings on the death in custody of Kumunjayi Langdon of Yuendumu.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