Don Dale ruling a strong message against use of force on children
11th Jun 2020
The High Court’s decision, on 3 June, that the use of tear gas on four youths at the Northern Territory's notorious Don Dale detention centre in 2014 was unlawful could not have come at a more appropriate time.
Not that the Court planned it this way, but the decision was announced against a backdrop of discontent in this nation and of course, the United States, about the excessive use of force by law enforcement against those they detain, including young people.
The four detainees, aged between 15 and 17 in August 2014, claimed damages for assault and battery against the Northern Territory government for the use of spit hoods, leg shackles and hand cuffs. But Justice Judith Kelly of the Territory's Supreme Court dismissed their claims based on the use of CS, or tear gas. As the ABC's Four Corners showed in a 2016 exposé of Don Dale, there were ten bursts of tear gas sprayed into the enclosed area containing six detainees over a period of 90 seconds.
Tear gas is, as the High Court noted, a dangerous substance. Justices Michelle Gordon and James Edelman noted that the gas ‘disables 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’. While there is power in the Northern Territory to use it in adult detention, there is no power to use this weapon on children.
So why did NT corrections officials think it was fine to use such a dangerous weapon on such young individuals? Because officers from a nearby adult prison, three members of a so-called Immediate Action Team, turned up at the Don Dale centre ‘equipped with masks, helmets, protective vests, shields, batons and CS foggers’, according to the High Court, the latter being the device used to spray tear gas.
The officers acted as though they were dealing with adults. It was an unlawful action, an overreach of power by the state. If it had not been for media exposure in 2016 by the ABC's Four Corners, this case would never have been investigated.
If we reflect on the High Court's decision, what can we learn? The most obvious point is that we need to keep a close watch on how those who administer and operate centres of detention, whether they are adult prisons, youth detention facilities or immigration detention centres, exercise their powers when confronted with challenging behaviours by those who are detained.
Particularly in the context of Victoria's recent troubled youth detention environment, the High Court decision sends a timely reminder that there are real limits around the use of force against vulnerable groups such as children and youth. Similarly, the use of so-called heavily armed military-style special operations or tactical response groups in adult detention does not mean that the law against excessive use of force has no application.
But more fundamentally, why is it that the use of force is thought to be acceptable in youth detention at all? In Victoria, after a breakout from the Malmsbury youth detention centre in 2017, the Andrews government approved the use of tear gas in youth detention. Daniel Andrews saw nothing untoward about it, saying he supported ‘our officers having available to them the equipment, the expertise and the training that is required to make sure that these places are as orderly as they can be, and that they are secure’.
The detaining of children and young people in prison-like detention facilities where the use of force, lawful and unlawful, happens far too often, should end. As Peter O'Brien, the Sydney lawyer who acted for Don Dale detainees, has observed, in ‘places like Missouri and New Zealand, the approach to youth justice is very much about having those young people who have been detained or sentenced for a period of time in smaller facilities, closer to family and closer to community’.
As Don Dale and the mess that is Victoria's youth detention system shows, the punitive approach to dealing with already damaged young lives is made a good deal worse by the use of force, and particularly extreme force. If we continue to allow the use of aggressive law enforcement tactics in youth detention centres in Victoria we are ensuring there will be more cases like that which occurred at Don Dale in 2014.
Perhaps the High Court victory for these former detainees can prompt that urgently needed discussion about changing the culture of dealing with troubled young people who intersect with the criminal justice system.
This is an edited version of an article originally published by the Sydney Morning Herald on 4 June 2020. It has been republished with the author’s permission. The original article can be found here.
Greg Barns SC is a barrister and National Criminal Justice Spokesman for the Australian Lawyers Alliance.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).