05/06/2020

Yesterday, the High Court of Australia unanimously allowed four appeals from a judgement of the Court of Appeal of the Supreme Court of the Northern Territory. The appeals concerned whether deploying CS gas (a form of tear gas) on children in the Don Dale Youth Detention Centre (Don Dale) by a prison officer from the adult prison, Berrimah Correctional Centre, was lawful.  In allowing the appeals, the majority of the High Court took an orthodox approach to the construction of Northern Territory statutes.

Tear gassing in Northern Territory youth detention centres unlawful

The four appellants were detainees at Don Dale and exposed to CS gas through a CS fogger while detained in the Behavioural Management Unit (BMU) of the Don Dale Youth Detention centre (Don Dale) in Darwin on 21 August 2014. The appellants were exposed and affected by the CS gas when an officer used the CS gas fogger in an attempt to subdue another detainee.

The prison officer who deployed the CS gas was a member of an Immediate Action Team (IAT) from Berrimah Correctional Centre. The IAT was permitted to enter Don Dale under section 157(2) of the Youth Justice Act (NT) (YJA) to assist with emergency situations at the request of the Superintendent of Don Dale.  In these situations, the YJA specifies that each responding prison officer is taken to be delegated the powers of the superintendent necessary to perform the superintendent’s functions.  

However, CS gas is a prohibited weapon under the Weapons Control Act (NT) (WCA), which can only be possessed, used or carried if permitted by an exemption under section 12 of the WCA (the Exemption). The WCA provides that the Exemption only applies to prescribed persons (which includes prison officers (as defined by the Prisons (Correctional Services) Act) and police officers) acting in the course of their duties as a prescribed person in respect of a prohibited weapon that is supplied to them by their employer for the performance of their duties as a prescribed person. A youth justice officer and the Superintendent of a youth justice centre are not prescribed persons under the WCA.  

At first instance, in the Supreme Court of the Northern Territory the primary judge found that the prison officer was acting in the course of his duties when deploying the CS gas and dismissed the appellants claims against the Northern Territory for damages for assault and battery. The primary judge held that the having been called upon by the superintendent under section 157(2) of the YJA, the Exemption was engaged. The Court of Appeal dismissed the appellants’ appeals. The appellants appealed, by grant of special leave, to the High Court.

The majority of the High Court of Australia found that the use of CS gas was not authorised by the YJA or the Prisons (Correctional Services) Act, as the prison officer was not acting in the course of his duties (i.e. undertaking the functions of a prison officer in a youth detention centre was outside the scope of his duties as a prison officer). Therefore, the Exemption was not engaged and the prison officer had acted unlawfully.

In dissent, Justice Gageler took a more purposive approach to the statutes and found that the prison officer was permitted to deploy the CS gas under the Exemption because under the Prisons (Correctional Services) Act he was “taken to be a police officer and to have the powers and privileges of a police officer”. However, while police officers are able to use such force as is reasonably necessary to prevent a breach of the peace, the applicants were bystanders who were affected by the CS gas and that at law there was no immunity from liability of battery for a bystander who is injured through an officer’s actions. Justice Gageler concluded that as such the applicants, as bystanders, were entitled to an award of compensatory damages.  

In 2017, the final report of the Royal Commission into the Protection and Detention of Youth in the Northern Territory (the NTRC) also examined this incident and outlined that the use of CS gas was never expressly authorised by the YJA. The NTRC outlined that “scientific literature in relation to the effect of CS gas on children was limited, and prolonged exposure to tear gas in close quarters may be lethal”. The NTRC made a finding Report that “CS gas was used on 21 August 2014 on children in circumstances where there were no guidelines, legislative or policy safeguards, specific to youth detention, which regulated its use and no research results available as to the lethal contamination time in relation to children”.

Where to from here?

The High Court unanimously held that the appellants were entitled to compensation and damages in respect of battery arising out of the use of the CS gas. The matter has been remitted to another judge of the Supreme Court of the Northern Territory for the assessment of damages.

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