Rioters outside the Todd Tavern in Alice Springs, Northern Territory, Australia. Photo: Screenshot / TVNZ
By Daniel Litjens and Myles Houlbrook-Walk, ABC
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.
An email provided to the ABC details legal advice given to 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."
Finn said he had raised concerns about the declaration with Police Commissioner Michael Murphy.
However, he told members it was "clear from the commissioner's broadcast … concerning the emergency declaration, that he does not share those same concerns".
On Monday, 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."
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]," Wild said.
"I'm not sure it would meet that threshold if challenged."
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.
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, 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
When asked about a potential legal fight on Monday, Chief Minister Eva Lawler welcomed any challenges to the declaration.
"I am more than happy to have a legal challenge around that," she said.
"Bring it on."
Lawler was confident her action would hold up in court, claiming her government had a "couple of hours" to seek legal advice.
She also indicated the people concerned by the legality of the declaration weren't residents in the town.
"While people are talking about those legal challenges, I know on the ground the people in Alice Springs absolutely are overjoyed," she said.
"The vast majority of people are overjoyed to have a pressure release around the curfew."
The chief minister also took aim at those considering taking the matter to court, imploring those parties to find better uses of their budgets.
"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.
Police Commissioner Michael Murphy told the ABC he had no concerns about the legality of the emergency declaration.
"We received legal advice. It's sound legal advice," he said.
Murphy didn't detail the advice, but said the police had good governance to help the force respond to the needs of the Alice Springs population.
"It's obviously a little bit different. It's not responding to floods, fires, or cyclones," he said.
"It's an emergency response and it's about that cumulative harm and what the community expects."
The two-week curfew in Alice Springs ends on Wednesday, 10 April.
- This story was first published by the [https://www.abc.net.au/news/2024-04-02/nt-lawful-alice-springs-youth-curfew-questioned/103654632
ABC]