NT Police Association receives legal advice that Alice Springs youth curfew is unlawful
The legality of the youth curfew imposed in Alice Springs has been called into question, with Northern Territory's police union advising its members the emergency declaration may be unlawful.
The two-week curfew was imposed last week following civil unrest in the town.
It bans all children under 18 from town's CBD between 6pm and 6am, unless they have a valid reason.
The curfew was able to be actioned after Chief Minister Eva Lawler declared an emergency situation in the town, which granted authorised officers special powers to enact the curfew under the Emergency Management Act 2013.
But the Northern Territory Police Association's (NTPA) president Nathan Finn has advised his members that the declaration, and therefore the curfew, may not be lawful.
NTPA president Nathan Finn sought legal advice when the emergency situation was announced. (ABC News: Michael Franchi)
An email provided to the ABC details legal advice given to Mr Finn.
It highlights section 4(2) of the act, which states:
"This Act does not authorise a person to do, or make preparations to … put down a riot, or other civil disturbance."
The legal advice then said:
"In my opinion the declaration is unlawful and police operating under that declaration are at risk of acting unlawfully."
Mr Finn said he had raised concerns about the declaration with Police Commissioner Michael Murphy.
On Monday, Mr Finn told the ABC he also had concerns about the extent of police powers when interacting with youth during curfew hours.
"[We've] let our members know that we're concerned about the lawfulness of this … this legislation, this curfew that they've put in place, and to be mindful about what they can and can't do," he said.
"[The act] only lets [officers] carry a youth in that area … to the outskirts of that high-risk area.
"Beyond that, if they're taking them past that area, imprisonment is going to be unlawful."
Commissioner defends lawfulness of curfew
Northern Territory Police Commissioner Michael Murphy dismissed the concerns and said the government had used the act appropriately.
"Usually, the act is implemented for emergency management hazards, cyclones, floods and fires," he said.
The commissioner also said the act was not for three things – the suppression of civil disorder, armed combat, or ending a strike – and he said the act was not being used for any of those.
NT Police Commissioner Michael Murphy travelled to Alice Springs on Monday. (ABC News: Michael Franchi)
He said the act could be used in an event that leads to the loss or damage of property, the loss of life, or injury, or distress to people.
"We saw the senseless attack and violent attack of a 16-year-old girl, who was bashed and stripped. We saw an 18-year-old male die in a stolen motor vehicle, right in the heart of the CBD. We saw a significant attack on a licensed premises in the CBD … and then an attack or a fight between 150 people who were armed," he said.
"So, what we're doing is using all the government assets, we've declared the emergency situation, to make sure there's a coordinated effort over the next 14 days to remedy the situation.
"If there's violence occurring or those community concerns have existed, or they can exist into the future, that's when we can apply the act."
Police union members have been advised the youth curfew in Alice Springs may be unlawful. (ABC News: Daniel Litjens)
Lawyers indicate a legal challenge could be successful
The advice provided to the NTPA could open the door for the NT government's emergency declaration to be challenged in court.
The president of the NT Criminal Lawyers Association Beth Wild said the chief minister only has the power to declare an emergency situation under certain circumstances.
"It's specifically provided for in the legislation that the [chief] minister may only declare the emergency situation, if they believe it's necessary to have the powers under [the act]," Ms Wild.
"I'm not sure it would meet that threshold if challenged."
Legal advice indicates the police may not legally be able to enforce curfew. (ABC News: Daniel Litjens)
Ms Wild said she could see two main avenues by which the declaration could be challenged, one of which would require an "adverse" interaction to attach to it.
"If someone does get charged with resisting being removed, or anything that flows from that … then a situation like that could lead to a challenge," she said.
Ms Wild said the other way to challenge would be a civil filing related to discrimination.
"It's not hard to see how it would be discriminatory in practice … [it's] very much likely to disproportionately affect Aboriginal children," she said.
While the language of the act is broad enough to encompass any event which endangers the safety of the public, Ms Wild said the legislation was designed mainly for natural disasters.
"The legislation is for getting people that are sitting on the top of their car in a floodwater, or refusing to leave homes when a cyclone is about to come through," she said.
"It's not for banning people from coming into town to do otherwise lawful things."
"It's supposed to be for emergencies. So you've got to ask, is this really an emergency?"
Chief minister welcomes legal challenges to curfew
Loading...When asked on Monday about a potential legal fight, Ms Lawler welcomed any challenges to the declaration and said she was confident the action would hold up in court.
"I am more than happy to have a legal challenge around that," she said.
"Bring it on.
"While people are talking about those legal challenges, I know on the ground the people in Alice Springs absolutely are overjoyed," she said.
The chief minister also criticised those considering taking the matter to court.
"If we've got people who want to actually get into the legal arguments around that, and eat up their own budgets that actually should be in place around addressing young people, good luck to them," she said.
The two-week curfew in Alice Springs ends on Wednesday, April 10.