Government continues to defend civil claims from former inmates by arguing restraint of minors ‘reasonable’

This article is more than 1 year old

This article is more than 1 year old

The Northern Territory government is still fighting civil claims from Don Dale detainees by arguing the use of spit hoods on minors was “reasonable”, despite having since banned their use and agreeing to royal commission recommendations to outlaw the practice.

The government has also argued Don Dale officers were trying to keep a young Indigenous detainee “safe” when they left him for almost an hour with his hand handcuffed above his head to a basketball court fence.

The NT banned spit hoods and restraint chairs in youth detention in 2016 following shocking footage showing their use on Dylan Voller in Darwin’s Don Dale youth detention centre.

The footage helped prompt a far-ranging royal commission, which recommended in 2017 that spit hoods “should continue to be prohibited” and said they had the potential to “cause distress to young persons”. The current NT Labor government has maintained the ban.

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But Guardian Australia can reveal the NT government is continuing to defend civil claims from former Don Dale detainees by arguing spit hoods were justified and reasonable.

A former juvenile detainee, Marley Campbell, is suing the Northern Territory over his detention between 2009 and 2012 in Alice Springs and in the Don Dale centre, and over a temporary transfer to the Darwin Correctional Centre, an adult prison.

Campbell, who was 14 when he first entered detention in 2009, alleges he was fitted with a spit hood three times while in the Darwin Correctional Centre, including when he was being walked to a doctor, transferred between cells and taken back to the prison’s reception for transfer back to Don Dale.

Campbell’s lawyer, Sam Tierney of Ken Cush and Associates, has alleged in court documents that the use of the spit hoods was unlawful and involved excessive force.

“On the first occasion that the applicant was placed in a spit hood, it was applied from behind, without warning and caused the applicant to experience discomfort, difficulty breathing, shock, panic and fear and to believe that he was being suffocated by the officers,” the court documents allege.

But the NT government has argued the spit hoods were used only once and only as a “reasonable precaution”. It has argued Campbell was involved in an earlier spitting incident and that spit hoods do “not restrain or control movement and is not an article of restraint”.

The civil case is the latest in a long run of claims against the Northern Territory over the treatment of juvenile offenders inside detention centres.

In 2017, four of the teenagers at the centre of a teargassing incident were awarded damages over officers’ use of spit hoods and leg shackles, and cuffing of their hands behind their backs, which the judge ruled were “acts of battery”. The judge found the use of teargas was reasonable and necessary.

Campbell also alleged he was beaten by guards, threatened and forced to shower in the view of adults while at the Darwin Correctional Centre – allegations the NT government denies.

In another incident, Campbell alleges officers came into his cell during a disturbance at Don Dale on Boxing Day 2011. He alleges he was handcuffed, grabbed around the neck and marched outside, where he had his face forced into grass and arms pinned back in a “chicken wing” hold.

Officers then handcuffed him to a fence with his arm above his head and left him for “more than an hour”, according to court documents.

The NT government denied he was manhandled, and said it was justified in handcuffing him to the fence for what it estimated was 40 minutes. Another detainee was letting off fire extinguishers nearby, the government said.

“Once removed from his cell the applicant was escorted outside under minimal physical force where he was handcuffed to the outside basketball fence in the fresh air,” the defence said. “The applicant was not handcuffed to the fence in an uncomfortable or fatiguing position.”

Campbell is also suing over his transfer to the Don Dale detention centre, away from his family, community and country, for nine months, after he was allegedly told it would be for no longer than four weeks.

In its response, the NT government admitted Campbell was told the transfer would “likely be for several weeks only”, and that he made several applications to return, including when spaces reopened in Alice Springs.

But it said Campbell had behavioural issues which were better managed at Don Dale, a “larger and better resourced detention centre”.

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It also said Campbell was scheduled to return in late December 2011, but that was cancelled when he allegedly assaulted another detainee. It was then further suspended after the 2011 Boxing Day riot, during which Campbell allegedly assaulted the centre superintendent, the government’s defence said.

The royal commission into the protection and detention of children in the NT made more than 230 recommendations, including the closure of Don Dale, raising the age of criminal responsibility to 12 and banning the detention of under-14s except for serious crimes.

Don Dale remains open. As of March this year the government still had no timeline for opening a replacement detention centre, after it abandoned plans for a facility at Pinelands in the wake of community objections.

Campbell’s case is due for hearing in the federal court in Darwin in September.