North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41

HIGH COURT OF AUSTRALIA

FRENCH CJ, KIEFEL, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ

NORTH AUSTRALIAN ABORIGINAL JUSTICE AGENCY LIMITED & ANOR PLAINTIFFS

AND

NORTHERN TERRITORY OF AUSTRALIA DEFENDANT

North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41 11 November 2015 M45/2015

ORDER

The questions asked by the parties in the special case dated 10 June 2015 and referred for consideration by the Full Court be answered as follows:

Question 1

Is Division 4AA of Pt VII of the Police Administration Act (NT) (or any part thereof) invalid on the ground that:

(a) it purports to confer on the executive of the Northern Territory a power to detain which is penal or punitive in character:

a. which, if it had been passed by the Commonwealth Parliament, would be beyond the powers of that Parliament under section 122 of the Constitution, which powers are limited by the separation of powers enshrined in the Constitution; and

b. which is therefore beyond the powers of the Legislative Assembly of the Northern Territory under the Northern Territory (Self-Government) Act 1978 (Cth), which powers are subject to the same limits; and/or

(b) it purports to confer on the executive (rather than the courts) of the Northern Territory a power of detention which is penal or punitive in character, thereby undermining or interfering with the institutional integrity of the courts of the Northern Territory in a manner contrary to the Constitution?

Answer

(a) Division 4AA of Pt VII of the Police Administration Act (NT) does not confer on the executive of the Northern Territory a power to detain which is penal or punitive in character; it is otherwise unnecessary to answer this question.

(b) No.

Question 2

Who should pay the costs of the Special Case?

Answer

The plaintiffs.

Question 3

What (if any) order should be made to dispose of the proceeding or for the conduct of the balance (if any) of the proceeding?