High Court judgment finds young people were unlawfully tear gassed in Don Dale and that they are entitled to damages

Binsaris v Northern Territory of Australia [2020] HCA 22

Summary

On 3 June 2020, the majority of the High Court found that prison officers’ use of tear gas on four Aboriginal children in Don Dale Youth Detention Centre was unlawful.  The High Court unanimously held that each of the four young people were entitled to damages for the harm they suffered.

Facts

On 21 August 2014, four young Aboriginal boys detained at Don Dale Youth Detention Centre in the Northern Territory were intentionally and deliberately tear gassed by a prison officer while the prison officer was trying to incapacitate a fifth young person.  At the time of the incident, all four young people were aged between 15 and 17 years old. 

Each of the four young people were exposed to the tear gas and affected by it.  Tear gas aims to disable those who breathe it by inducing uncontrollable burning and tearing of the eyes, and intense irritation of the nose and throat, causing profuse coughing and difficulty breathing.

The four young people instituted proceedings in the Supreme Court of the Northern Territory for batteries, including the unlawful use of CS fogger, which is a dispersal device for a form of tear gas (CS gas) and a prohibited weapon under the Weapons Control Act (NT).

At trial and on appeal, the Northern Territory Government argued that the use of the tear gas was authorised under a provision the Youth Justice Act (NT) which provides for “all powers necessary or convenient to ensure the safe custody of detainees and others in the detention centre.”  The earlier judgments of the Supreme Court and the Court of Appeal in the Northern Territory had found that the use of the tear gas was lawful.

On 3 June 2020, the majority of the High Court allowed the appeal and found that the use of the tear gas was unlawful and each of the four young people were entitled to damages. This decision effectively set aside the previous findings of the Supreme Court and the Court of Appeal in the Northern Territory on the lawfulness of the tear gassing.

High Court majority decision

The High Court judgment makes it clear that there is a distinction between “detention” and “imprisonment”. A “detention centre” – like Don Dale Youth Detention Centre – is not a prison and children and young people locked up in detention centres “are not prisoners”. As a result, while a prison officer might be permitted to use a weapon in a prison, it was found that it is not part of a prison officer's function to use a weapon in a youth detention centre.

The High Court judgment also confirmed that, if a prison officer is summoned from a prison to attend a youth detention centre to assist in an emergency situation, the powers that the prison officer is operating under are not their regular prison officer powers, but rather the delegated powers of the superintendent of the youth detention facility.  This was relevant because the prison officer who deployed the tear gas was a prison officer from the Berrimah Correctional Centre, an adult prison, and was part of a team mobilised to respond to an emergency situation at Don Dale.

The judgment considered what powers were available as part of a superintendent’s function of maintaining order and ensuring the safe custody of all persons within the detention centre.  It was held that corporal punishment is not a permitted “use of force” under the Youth Justice Act (NT): a fact which Justice Gordan and Justice Edelman note “is unsurprising given that the Act deals with the detention of youth, some as young as ten”.  The Judges also considered that corporal punishment does not align with the objects and general principles for the administration of the Youth Justice Act (NT).

The only substantial exercise of force permitted by a superintendent in a youth detention centre is to restrain a young person with the use of handcuffs or a similar device, and that power is limited to emergency situations only.  The majority considered that these powers do not include the power to use tear gas on children and young people detained in youth detention facilities.

Minority judgment of Justice Gageler: you cannot treat bystanders as ‘collateral damage’ with impunity

Justice Gageler found that each of the four young people were entitled to damages, although his decision was based on different grounds than the majority.

His judgment indicated there are certain circumstances where the use of tear gas might be justified as the “lesser of two evils” in responding to an emergency situation in a youth detention centre. However, even if the use of tear gas could be authorised, there is no “privilege” available to officers which allows them to treat bystanders – in this case, the four young people – as “collateral damage… with impunity”.  That is, each of the four young people are entitled to damages at common law to compensate them for the harm they suffered as bystanders.  The basis of this entitlement is tortious battery, as the use of the tear gas interfered with their bodily integrity.

What happens next?

The Supreme Court of the Northern Territory already found in the first instance that other acts of battery – including placing a spit hood on each of them – were committed in relation to the same incident. The High Court judgment adds to this by finding that the use of the tear gas was another unlawful act of battery perpetrated against them. The case will now be sent back to the Supreme Court of the Northern Territory to assess the amount of damages the young people should receive for being tear gassed.

Comment

This decision confirms that the use of tear gas on young people in Don Dale Youth Detention Centre was unlawful and amounted to battery. This case is significant because it establishes that the use of force on children and young people must be clearly in accordance with what has been authorised and used in accordance with the powers and functions as legislatively defined. In contrast to prisons, which detain adults, there are clear restrictions regarding the use of certain practices like tear gas on children and young people in detention facilities in recognition of their vulnerability and the potential for serious harm or adverse impacts.

The full decision of the High Court is available here.

Sophie Andritsos, secondee at the Human Rights Law Centre.