The Northern Territory's controversial "paperless arrests" deliberately take away a person's right to liberty, the Australian Human Rights Commission has said in a last-minute intervention to a High Court challenge.
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The High Court is considering whether the NT law, which allows police officers in the territory to detain someone for up for four hours with no warrant and no right to a lawyer, is constitutional and whether it is a form of arbitrary detention.
In its submission, the commission says the arrests grossly impinge on the right to liberty and the basic human rights of people. It also says the law could constitute arbitrary detention for its "unjustifiable deprivations of liberty".
Territory police can arrest people if they believe the person has committed, was committing or was about to commit the offence.
From January to March this year there were 731 arrests, of which 72 per cent were of Indigenous people. One Indigenous man who was arrested in May under these laws for drinking alcohol in public died in custody.
The arrests can be made for minor offences including swearing, "undue noise", "failing to keep a front yard clean" or even leaving a dead animal in a public space.
NT Attorney-General John Elferink said there was no change in someone being arrested and then given bail, to someone being arrested under the paperless arrests system.
"There is no difference between the two systems other than the paperwork for the police officers," he said.
He also said the law was aimed at people "expectorating [spitting], defecating, urinating or fornicating in public".
"There has been a history of arresting people for summary offences in our jurisdiction and a person is arrested for a number of reasons," he said. "Generally, if they are committing, or are about to commit an offence then a person may be arrested."
When asked how police would know if someone was about to commit an offence, Mr Elferink said: "It's rarely exercised in that format but it's a power that exists here and in other jurisdictions. Generally speaking, the power of arrest is exercised when a person is committing or has committed an offence."
In its submission, the Human Rights Commission says the common law "does not recognise any executive warrant authorising arbitrary detention".
"The purpose of an arrest is to enable a person suspected of having committed a crime to be brought before a court as soon as practicable, to be dealt with according to law," the submission said.
The commission confirmed it had made an application for leave to intervene in the proceedings as they raised human rights issues, but was unable to provide further comment on the matter.
