High Court to rule on ‘proactive policing’ in the NT after cops breathalyse Katherine woman at home

THE case of a Katherine woman charged with breaching a domestic violence order (DVO) to be hashed out in the High Court today could fundamentally change the way police operate throughout Australia.

Eileen Roy was charged with breaching a DVO in 2018 after police approached her unit, knocked on her door and breath tested her.

THE case of a Katherine woman charged with breaching a domestic violence order (DVO) to be hashed out in the High Court on Tuesday could fundamentally change the way police operate throughout Australia.

Eileen Roy was charged with breaching the DVO in 2018 after police approached her unit, knocked on her door and breath tested her, which showed her to be intoxicated in violation of the order.

After multiple appeals on the admissibility of the breath test evidence in Territory courts, the High Court granted special leave to hear the case in March this year.

The court’s decision will set a legally binding precedent on the validity of “proactive policing” techniques, which critics argue are an “Orwellian” intrusion on civil liberties and susceptible to systemic racism and bias.

The case will be heard in the High Court of Australia today. Picture: Judith Kerr

In a blog post for the University of Melbourne, lawyer and PhD candidate Julian Murphy — who once represented Ms Roy — said the decision was “likely to have widespread implications” for policing in Australian jurisdictions where no specific legislation exists allowing police “doorknocking”, including in the NT.

“The case is about whether police can approach a person’s front door to investigate them for a criminal offence,” he said.

“That question, in turn, entails consideration of whether such police are trespassers or whether they can claim the benefit of the common law implied licence normally extended to door-to-door salespeople and Jehovah’s Witnesses.”

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Mr Murphy said the difference between proactive and traditional policing was that it involved “police selecting people for monitoring based on slight, stale or background information that would not normally justify (it)”.

“Critics of proactive policing argue that any practice that requires either highly generalised or highly subjective criteria for selecting ‘targets’ is liable to be infected by systemic racism and implicit bias,” he said.

“For example, choosing a target for surveillance on the apparently objective basis of frequent past police involvements risks simply perpetuating the social and historical forces that result in the over policing of particular, often Indigenous, communities.”

Mr Murphy said the practice also involved the “apparent injustice” of subjecting people to surveillance without “reliable, objective” evidence of wrongdoing.

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“Three police officers attended at Ms Roy’s front door and peered into her lounge room, all without a reasonable suspicion that she had committed an offence,” he said.

“The fact that, on the day in question, Ms Roy had done something wrong is beside the point — rarely does the law allow ends to justify means, especially when to do so would have collateral consequences for many people who are not engaging in wrongdoing.”

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