Many of us may remember the footage of detainees being exposed to CS gas and assaulted at Don Dale Youth Detention Centre back in 2016. While a Royal Commission investigation has since been conducted, four of the detainees also commenced proceedings in the NT Supreme Court against the Northern Territory of Australia. Last week, the detainees were successful on appeal to the High Court in a claim for damages against the Territory.
In August 2014, the detainees, Kieran Webster, Leroy O’Shea, Josiah Binsaris and Ethan Austral, were held in the Behavioural Management Unit of Don Dale Youth Detention Centre. When another detainee, Jake Roper, had begun damaging property in and outside of his cell, Binsaris and Austral caused some damage to the inside of their cell, while Webster and O’Shea remained inside their cell playing cards.
The Superintendent of the Detention Centre contacted the Director of Correctional Services and asked him to mobilise members of the Immediate Action Team from Berrimah Correctional Centre. The Action Team arrived at the Detention Centre, and in attempt to subdue Roper, used CS gas using a CS Fogger. In doing so, they exposed Webster, O’Shea, Binsaris and Austral to CS gas. CS gas is a form of tear gas.
The issue before the court was whether the use of a CS fogger to disperse CS gas was lawful.
Findings of the High Court
While the High Court came to a unanimous decision that the four detainees had a claim for damages, each Justice arrived at this finding for different reasons.
Justices Gordon and Edelman found that the use of a CS fogger was not lawful as it is a prohibited weapon under the Weapons Control Act (NT), unless an exemption applies. An exemption can in some circumstances be granted to a prison officer in a prison, however, a detention centre is not a prison and the detainees were not prisoners. Therefore, the use of the CS fogger was prohibited.
Chief Justice Kiefel and Justice Keane agreed with Justices Gordon and Edelman and added that a prison officer may only use a weapon to ‘maintain the security and good order of a prisoner or prison and only in a prison or police prison’. It was not part of the role of the prison officers from the Immediate Action Team to use a weapon in a youth detention centre.
Justice Gageler disagreed with other Justices, finding that the use of the CS fogger was within the power of the prison officers in an emergency situation. However, this exemption to the Weapons Control Act (NT), did not provide a defence against a bystander suffering collateral harm in the use of force.
Case citation: Binsaris v Northern Territory; Webster v Northern Territory; O’Shea v Northern Territory; Austral v Northern Territory  HCA 22