Australia: Binsaris v Northern Territory; Webster v Northern Territory; OShea v Northern Territory; Austral v Northern Territory [2020] HCA 22: CS gas at Don Dale Youth Detention Centre

Summary

In Binsaris v NT, Webster v NT, O'Shea v NT and Austral v NT the High Court considered the use of powers of officers at youth detention centres in the Northern Territory. In particular, they considered whether a prison officer was entitled to deploy CS gas, a form of tear gas, at the Don Dale Youth Detention Centre in the Northern Territory on 21 August 2014. The case followed the release of footage in 2016 of the four appellants being exposed to CS gas at the Detention Centre and the 2017 Royal Commission into the Protection and Detention of Children.

The majority found that the use of CS gas by a prison officer at the Don Dale Youth Detention Centre in the Northern Territory was unlawful. The Court allowed the appeals, with costs, and decided that the appellants were entitled to damages in respect of their claims for battery arising out of the unlawful use of CS gas against them.

Background

The appellants, Josiah Binsaris, Keiran Webster, Leroy O'Shea and Ethan Austral, and others were detained in the Behavioural Management Unit of the Don Dale Youth Detention Centre in the Northern Territory. On 21 August 2014, a detainee at the Detention Centre escaped from his cell, damaging property and causing a disturbance. Appellants Josiah Binsaris and Ethan Austral also caused damage to property and caused disturbance but they remained inside their cell. Appellants Keiran Webster and Leroy O'Shea played cards inside their cell. Prison officers were called to assist with the situation and, on the order of the Director of Correctional Services, as recommended by the Deputy Superintendent and Assistant General Manager of the Don Dale Youth Detention Centre, CS gas was deployed by one of the prison officers against the escaped detainee. The appellants were also exposed to the CS gas whilst in their cells.

The appellants brought proceedings claiming that the use of CS gas by the prison officer constituted battery.

The Majority

CS gas is deployed using a CS fogger, which is a prohibited weapon under the Weapons Control Act (NT) unless permitted by an exemption.¹ Justices Gordon and Edelman found that the use of the CS fogger by a prison officer against detainees in the Don Dale Youth Detention Centre was not authorised by the Weapons Control Act (NT), Youth Justice Act (NT) or Prisons (Correctional Services) Act (NT) and was therefore unlawful.² Justices Gordon and Edelman determined that, although a CS fogger is a weapon that may be used by prison officers in a prison (in certain circumstances), a detention centre is not a prison; detainees in a youth detention centre are not prisoners and the superintendent or other staff members of a detention centre under the Youth Justice Act, are not prescribed persons under the Weapons Control Act.³ Chief Justice Kiefel and Justice Keane agreed, stating that, pursuant to section 62 of the Prisons (Correctional Services) Act (NT), a prison officer is only entitled to use a weapon to maintain the security and good order of a prisoner or prison and only in a prison or police prison.⁴ They found that it is no part of a prison officer's function to use a weapon in a youth detention centre.⁵

The Court unanimously held, including Gageler J, that the appeals should be allowed and that damages should be assessed in respect of the appellants' claim for battery by being exposed to CS gas intentionally and deliberately discharged by a prison officer at the Don Dale Youth Detention Centre on 21 August 2014.⁶

The Minority

In respect of the use of CS gas, Gageler J disagreed with the other members of the Court finding that the deployment of CS gas by the prison officer was exempt from criminal liability under the Weapons Control Act (NT).⁷ Justice Gageler found that the deployment by the prison officer was within its powers under the Prisons (Correctional Services) Act when performing its duty of assisting the emergency situation called at the Don Dale Youth Detention Centre.⁸ However, Gageler J found that this exemption did not provide a defence to a claim in battery by a bystander who suffers collateral harm by reason of the necessary use of force.⁹ On this basis, Gageler J allowed the appeals and agreed with the orders proposed by Gordon and Edelman JJ.¹⁰

Conclusion

The majority made clear statements that a detainee in a youth detention centre, under the Youth Justice Act, is not a prisoner and a youth detention centre is not a prison.¹¹ This decision emphasises the differences in the statutory frameworks that apply to prisoners and youth detainees and the framework against which the powers of officers, in youth detention centres, under the Youth Justice Act, are to be assessed. Providing clear indication that the powers afforded to officers in respect of youth detainees were to be strictly read, and absent clear positive authority for the use of CS gas, the deployment of CS gas as against youth detainees at the Don Dale Youth Detention Centre was unlawful.¹²

Footnotes

¹ Weapons Control Act (Act) s 3 and 12.

² Binsaris v Northern Territory; Webster v Northern Territory; O'Shea v Northern Territory' Austral v Northern Territory [2020] HCA 22 at [53].

³ Binsaris v Northern Territory; Webster v Northern Territory; O'Shea v Northern Territory' Austral v Northern Territory [2020] HCA 22 at [53].

⁴ Binsaris v Northern Territory; Webster v Northern Territory; O'Shea v Northern Territory' Austral v Northern Territory [2020] HCA 22 at [18].

⁵ Binsaris v Northern Territory; Webster v Northern Territory; O'Shea v Northern Territory' Austral v Northern Territory [2020] HCA 22 at [18].

⁶ Binsaris v Northern Territory; Webster v Northern Territory; O'Shea v Northern Territory' Austral v Northern Territory [2020] HCA 22 at [21], [50], [53].

⁷ Binsaris v Northern Territory; Webster v Northern Territory; O'Shea v Northern Territory' Austral v Northern Territory [2020] HCA 22 at [32].

⁸ Binsaris v Northern Territory; Webster v Northern Territory; O'Shea v Northern Territory' Austral v Northern Territory [2020] HCA 22 at [32].

⁹ Binsaris v Northern Territory; Webster v Northern Territory; O'Shea v Northern Territory' Austral v Northern Territory [2020] HCA 22 at [49].

¹⁰ Binsaris v Northern Territory; Webster v Northern Territory; O'Shea v Northern Territory' Austral v Northern Territory [2020] HCA 22 at [50].

¹¹ Binsaris v Northern Territory; Webster v Northern Territory; O'Shea v Northern Territory' Austral v Northern Territory [2020] HCA 22 at [19] and [87].

¹² Binsaris v Northern Territory; Webster v Northern Territory; O'Shea v Northern Territory' Austral v Northern Territory [2020] HCA 22 at [95] – [101], [109].

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