Binsaris v Northern Territory of Australia; Webster v Northern Territory of Australia; O'Shea v Northern Territory of Australia; Austral v Northern Territory of Australia

[2020] HCATrans 35

[2020] HCATrans 035

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D11 of 2019

B e t w e e n -

JOSIAH BINSARIS

Appellant

and

NORTHERN TERRITORY OF AUSTRALIA

Respondent

Office of the Registry
  Darwin  No D12 of 2019

B e t w e e n -

KEIRAN WEBSTER

Appellant

and

NORTHERN TERRITORY OF AUSTRALIA

Respondent

Office of the Registry
  Darwin  No D13 of 2019

B e t w e e n -

LEROY O’SHEA

Appellant

and

NORTHERN TERRITORY OF AUSTRALIA

Respondent

Office of the Registry
  Darwin  No D14 of 2019

B e t w e e n -

ETHAN AUSTRAL

Appellant

and

NORTHERN TERRITORY OF AUSTRALIA

Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 18 MARCH 2020, AT 10.06 AM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC:   May it please the Court, in each of those appeals I appear with my learned friends, MS K.E. FOLEY and MR J.A.G. McCOMISH, for the appellants.  (instructed by North Australian Aboriginal Justice Agency)

MR D.A. McLURE, SC:   May it please the Court, in each of those appeals I appear with MR T.J. MOSES for the respondent.  (instructed by Solicitor for Northern Territory)

KIEFEL CJ:   Yes, Mr Walker.  I think there are some tidying up - some applications for leave to amend and file a notice of contention out of time. 

MR WALKER:   Yes, there are, and in each case, that is my friend’s application and my application, there is no opposition. 

KIEFEL CJ:   There will be leave to file an amended notice of appeal in terms of the notice of which – notice of appeal of which notice has been given, and leave to file a notice of contention out of time. 

MR WALKER:   May it please the Court.  Your Honours, as you know this is an argument which presents identically in each of the four cases concerning the interaction of three statutes of the Northern Territory.  Those statutes that I will for convenience shorten to the Weapons Act, the Youth Justice Act and the Prisons Act are where provisions are found to regulate the use of force including of a particular kind. 

There are two locations bearing a legal character that may be important to the determination of the issues, by which I mean references to a prison, and references to a youth detention centre.  The relation or difference, if any, between those two may be significant.  There is, of course, also the distinction, which on any view of it is significant, that being common ground between offenders, or persons charged with an offence, below the age of 18 and over the age of 18.  There is a subsidiary division, of which your Honours are aware, in relation to the age of 15, to which I will come.

The force in question was the administration, to use a neutral expression, of CS gas, to which I will come.  It was administered in a youth detention centre.  Our clients were what I call detainees.  There is an immaterial error in the Court of Appeal that I am not concerned to argue about, but I draw it to your attention.  It was not in issue, it was not an issue before their Honours as to the character in which each of the four were detainees.

They were all detainees, but only one was serving a sentence of detention.  The others were, for convenience I will call it remanded at that time, a complicated matter, I stress not material on our understanding of the argument, or our understanding of our friend’s argument, and complicated by the fact that there are backdated subsequent sentences of detention.  But on the relevant day three of them were not serving sentences of detention, but they were unquestionably detainees.

Now, the administration of the CS gas came about because of another - arguably contrasting legal characters – namely, the persons in question - I will use a general expression, “officers of the Territory” – were prison officers and the character in which they were conducting themselves on the premises of the detention centre comes about by reference to important provisions which are at the heart of the argument.  Whether there is a difference in the legal character and limits of their powers with respect to the administration of particular kinds of force, in this case the administration of CS gas, may depend upon provisions to which we are coming concerning their activities in a prison - “in a prison” is a phrase that is important – or their activities in a detention centre.

As your Honours are aware, our clients did succeed in causes of action based upon subsequent conduct.  They failed in their claim with respect to the CS claim – CS gas both at trial and in the Court of Appeal.  In our submission, the nub of the matter is that, for the reasons we will develop by going to each of the three statutes in turn, their Honours below erred in regarding the administration of the CS gas as an authorised activity. 

Could I start, please, with the Weapons Act and could I take your Honours to its section 6.  The Weapons Act starts at 197 of the bundle.  In section 6 there is the creation of a number of offences.  That which matters for our cases appears from these words:

A person must not:

. . . use . . . 

a prohibited weapon except if permitted to do so by an exemption under section 12 -

Those are the material words.  The expression “prohibited weapon” is defined in section 3 to mean:

an article prescribed by regulation to be a prohibited weapon.

Without needing to take your Honours to it, may I tell you that you will find the prescription of the CS gas as item 18 in Schedule 2 for the purposes of clause 3 of the regulation, which you will find in the bundle of authorities at page 229.  The role, accordingly, of section 12 is important.  But for its arguable operation that which was done, about which we complain civilly, was done illegally, criminally.  So section 12 is at the heart of the Weapons Act role in this dispute.

Part 3, which commences with section 12, concerns exemptions and approvals.  We are not concerned with approvals, which might be called ad hoc for private individuals.  We are concerned for class or category exemptions from the operation of the offence‑creating law.  Under section 12(1)(a) the officers in question are exempted because they are – this is common ground – officers:

as defined in section 5 of the Prisons (Correctional Services) Act -

One will find that at page 149 of the bundle of authorities.  We do not need to go to it now.  But could I draw to attention, because of, perhaps, the need to anticipate some argument by our friends, that the other categories of what I will call class exemption from the criminal offence with respect to CS gas includes a police officer.  Subsection (2) is the operative provision granting the exemption, so‑called, to these classes.  It says that section 6 does:

not apply to a prescribed person –

that is – taking the primary argument as we understand it – a prisons officer:

acting in the course of his or her duties as a prescribed person –

that is, acting in the course of his or duties as a prison officer, and then, an important expression:

in respect of a prohibited weapon –

It might be slightly awkward English but the meaning is tolerably plain, namely that the zone of exempted conduct requires consideration, first, of what the person in question is doing so as to examine whether that can be regarded as acting in the course of duties as a prison officer, but second, importantly, part of that inquiry must extend specifically to whether or not the conduct is in the course of duties as a prison officer in respect of the CS gas. 

We say – and we understand that this is at the heart of the contest between us – that their Honours erred below in regarding the administration of CS gas to the detainees - all of them juveniles – was capable of being regarded as being in the course of the duties of the officers in question as prison officers in respect of CS gas because it was the administration of that kind of force in the premises being a detention centre to the persons being detainees.

So section 12(2) is a provision which requires a close consideration of its intersection with the Youth Justice Act, to which I am going to come.  Can I move immediately to it.  As your Honours have seen in our proposition 2 in our outline, the pivot includes the important provisions of subsection 157(2) to which I will come, if your Honours will forgive me, not immediately. 

I am going to try and deal with the statutory provisions just the once, in one sequence.  But the argument in proposition 2 turns on this intersection between section 12 of the Weapons Act and section 157 of the Youth Justice Act.  To jump ahead, it is by section 157 that prison officers came to be carrying out activities not in a prison and not outside a prison apprehending escaped escapees, but inside the detention centre.

Now, at that point could I make this general proposition about our clients.  This is not true of everyone else who was a detainee involved in this incident.  But of our clients, as we understand the matter, it has never been suggested, and is not the subject, of course, of any holding by the Court of Appeal, that they were committing offences, for example, of a kind which would evoke the justification in criminal law of self‑defence or defence of another.  That is the first thing that one can put securely to one side.  Similarly, in none of the cases of our clients was there any question of either police or prison officer powers having been evoked by reference to escape or attempted escape. 

Finally, if it matters – and we think this arises under the notice of contention – we do not understand that there has ever been a suggestion, nor are there holdings in the Court of Appeal, concerning the commission of any offence - let me assume not involving violence against another person - by any of our clients which might have evoked the exercise of powers including the application of force by the officers in question against our clients.

Now, I may be overgeneralising in what I am about to say.  As we understand it, by contrast with all the possibilities that I have named and eliminated, we understand that the flavour of the incident so far as concerns the administration of CS gas to our clients is advanced by the Territory, we think consistently at trial and on the appeal below, as being in the nature of collateral damage, that is, that they were not intended as the targets of the CS gas in and of themselves except ‑ ‑ ‑

EDELMAN J:   …..Mr Roper.

MR WALKER:   Except insofar as the target, being Mr Roper, and the physical proximity, the architecture, the disposition of the premises and the boys meant that those who used CS gas against Mr Roper presumably understood the very high likelihood of it being thereby administered to our clients.  That is what I mean by collateral damage.

I do not understand that there has ever been an argument that there was ever used a power or authority to use that kind of force against our clients on account of their conduct.  That being so, the question obviously arises, where does one find the authority then to administer it by way of collateral damage?

We raise the spectre of some odd notion of doctrine of necessity, which obviously has never been invoked by the Territory, there being a number of obnoxious entailments in any such argument in this context.  Necessity, as a statutory matter, will be involved in a number of the provisions to which I am about to come, but it is a different notion of necessity and does not involve, as we understand it, any justification of what might be called collateral damage.

EDELMAN J:   That may assist your first submission, but it causes difficulty for your second, does it not?

MR WALKER:   Your Honour, the submissions as we have put in the last of our propositions stand independently and to a degree there are pulls in opposite directions.

EDELMAN J:   Yes.

MR WALKER:   Yes.  May I say, I hope not disrespectfully, the scheme that has to be understood, construed and applied arising from these three statutes perhaps could have been more plainly and simply enacted.  The language is not entirely consistent or inexorable in the outcomes it would produce.  They are, at least the Youth Justice Act and the Prisons Act, plainly in one sense in which this word is used, cognate.  They refer to each other, and they expressly intersect with respect to what I will call juvenile prisoners, to which I will be coming soon. 

It may even be, bearing in mind the subject matter of the Weapons Act, that in a broader sense the Weapons Act is also cognate, particularly when one comes to some of the provisions of each of the Youth Justice Act and the Prisons Act with respect to the use of force. 

The Youth Justice Act, we would submit, by reason of the provisions to which I am going to take your Honours, I hope briefly, is an Act which overwhelmingly projects the decision by the legislature to treat youth offenders, including those charged but not yet convicted, differently from the way adults in the same position, that is convicted offenders or awaiting trial, in many, many different ways. 

Could I start with section 4 of the Youth Justice Act which, to put it mildly, does not have anything like complete analogue in the Prisons Act.  I do not mean that it is completely different or radically different, but they are very substantially different with respect to the treatment required by the section 4 principles. 

You will see that these are principles that are to be observed in what I am going to call day‑to‑day conduct, including of a kind that occurred in the incident in question because these must be taken into account in the administration of this Act.  I will be selective, your Honours, without reading them. 

Paragraph (c) is obviously important.  It is not entirely unique to juvenile offenders as your Honours are well aware.  Paragraph (f) refers to reintegration into the community in a way that may cast some light on later provisions about a detention centre.  Paragraph (i) is complementary to that notion, and paragraph (n) may not be peculiar or unique to juveniles but has an emphasis here not found elsewhere. 

In the definition provisions of section 5, could I draw to your Honours’ attention the special court, that which is referred to by the expression “Court”, throughout the Act, that is the Youth Justice Court, the Supreme Court when exercising an aspect of its jurisdiction.       Could I draw to your Honours’ attention the pivotal expression “detainee” and that:

means a youth lawfully detained in a detention centre –

To anticipate a matter which I am sure is common ground, one may be lawfully detained in a detention centre, of course, without yet having been convicted as well as, of course, after conviction and sentence to detention.

A detention centre, this is common ground, is produced by a solemn and formal approval under the Act, just as it happens a prison is, which has the meaning, says this provision, that it bears in the Prisons Act.  Your Honours will see the definition of “youth” in section 6.  Could I then take you directly through to section 24.  This is the beginning of the dealings with a youth that has got into trouble:

If a youth has been charged with an offence and is not admitted to bail, a police officer must, as soon as practicable, apply to the Court . . . for an order that the youth be detained at a detention centre -

One can put to one side as having no significance in our argument, the alternative of another place approved by the Minister.  One then sees in section 27 there is a requirement for someone who has been charged – a youth charged and not released, to be “brought before the Court”, and thus proceedings in train to which the next provisions become critical. 

Section 52 describes the jurisdiction of the Youth Justice Court, and one sees that it is an ample jurisdiction with respect to dealing with all charges, allegedly committed by a youth, paragraph 52(1a).  There is mutatis mutandis adaptation and application of the Justices Act to such proceedings, section 53.  It may be that there is no particular provision of the Justices Act critical to any part of either of the arguments before your Honours. 

Then we come to the very important section 65 which empowers the court at any stage of proceedings in relation to a youth to remand the youth and by order – so selecting from the menu of possibilities on remand – one sees (a), (b), (c) and (d) and (d), of course, is the route that was followed with the three of our clients not yet – or could not at the time – serving sentences.

Section 65(2) discriminates between those 15 and older, that is, up to 18, and those younger because the former class can, by discretionary decision of the court, be detained in a prison.  I will be coming back to that.  That is an important dichotomy – prison or detention centre – that is now found throughout a number of the provisions of the Act, some of which I will briefly draw to attention. 

It appears, for example, in the compulsory presentence report under subsection 69(1).  So, where the possibility of detention or imprisonment is in the mind of the sentencing court, that being obviously an important choice to be made, that is one of the topics to which the familiar compulsory report must turn its attention.

We then come to Part 6 – disposition sentencing.  Section 81 recognises in paragraph 81(1)(a) that the provisions of this Act, the Youth Justice Act – I have drawn to attention section 4 – will be, as it were, paramount over what would otherwise be general principles of sentencing.  The difference, in other words, is explicit and required to be observed. 

Under section 81(6), the custody, by way of punishment, is only “a last resort”.  Again, you see the dichotomy – “detention or imprisonment”.  Within that dichotomy, as to imprisonment, only if there is no appropriate alternative, that which is obviously raised by that language is that detention, as an appropriate alternative, must be considered.  To be an appropriate alternative, of course – for that to be meaningful and not a mockery – it needs to be different.  For the reasons I have already put and am going to develop they are different.  They are different, including with respect to the regime with respect to the application of force.

Section 83 then provides, or empowers the court to choose between those options upon finding a charge proven and that includes – in a familiar way – not proceeding to conviction.  But if there is conviction there are the possibilities that you will see spelled out in paragraphs 83(1)(i), (j), (k) and (l).  Each of those contained this dichotomy of detention or imprisonment within that class of possibility.    

In subsection (2), there are limits imposed with respect to the imposition of sentences of detention or imprisonment which differ according to the age, the relevant age.  You see that in paragraph (b).  Under subsection (3) the possibility of imprisonment, that is, in a prison, is not available for youths less than 15.

So these are people who are, on account of their age, and that which the legislature considers understandably to appertain to and flow from that age, see section 4, they are being treated differently from others with respect to the power of the court to dispose of matters of sentence by way of punishment.

Could I then pass over the detailed regimes for the different kind of detention, pausing only to note by way of illustration of the matter that with periodic detention orders, which starts with section 111, there are specific provisions with respect to what I call warrants of commitments, that is, the authority for the detention dealing with the intermittent nature of the custody in such a case, sections 117 and 118.

Then under miscellaneous matters, one sees again the reflection of the difference perceived by the legislature for these offenders on account of their age.  In section 125 which deals with aggregate sentences, it continues the pattern already set.  The same is - you see a similar reflection of the appreciation of the difference of the position of these people under sections 126, 127.  Section 129 provides for the custody, including by way of remand, for example, to be taken into account, whether or not the sentence is detention or imprisonment.

Then we come to the provisions which we say are at the heart of the matter.  Part 8 deals with youth detention centres and Part 8 is where you find a regime for what may occur there, and may not occur there lawfully.  It is important to note section 149.  These are places where, unless you are a visitor, member of staff, worker, contractor or similar, your admission, as it is called, which includes being kept in custody at one of these centres, must be in accordance with the Act.

Under section 151, there must be the appointment of an employee in the public sector to be superintendent of a detention centre.  That appointment must be by the Director, who is the Director of Corrective Services – the same Director as is called the Director in the Prisons Act.  It so happens that as a matter of nomenclature, he – it is a he at the relevant time – is a commissioner, called a commissioner but there is no dispute that the commissioner is the Director within the meaning of these statutory provisions.

So there is the common important personage answerable to, subject to the direction of the Minister.  The Director is found appointing a superintendent and it is the same Director as the important character given to him or her by the Prisons Act, to which I will come.

Once appointed it is the superintendent who is responsible, as far as practicable, for the physical, psychological and emotional welfare of detainees in the detention centre.  This is language redolent of what I will call the “parens patriae” or “ward of State” flavour of that which is entailed in the compulsory detention of a child by force of law.  Subsection (3) spells this out in mandatory terms, as to some aspects:  must promote programs, et cetera, must encourage social development, et cetera, and then, importantly:

must maintain order and ensure the safe custody and protection of all persons –

not just the detainees:

who are within the precincts of the detention centre –

(d)is responsible for the maintenance –

and a phrase that we submit is significant, the:

efficient conduct of the detention centre; and

(e)      must supervise the health –

The powers – and I draw to attention that 151 starts with the creation and appointment to the office, moves to what might be called functions or duties, and then comes to powers that will be followed by section 153, which is a very important provision - the powers under section 152 are said to be, in the familiar phrase, those:

necessary or convenient for the performance of his or her functions.

Your Honours will appreciate that “functions” can be seen coming from 151(2) in the light of section 4; 151(3) in the light of section 4; and we will say of course 153(1) in light of section 4.  Section 153, which follows that general bestowal of power uses the same syntax as one sees, for example, in 151(3)(c):

must maintain order.

Section 153(1) says “must maintain discipline” and your Honours know that a difference between the parties is that we submit that the Court of Appeal was wrong to re‑discipline in a way that I will broadly describe as purely punitive.  In our submission, discipline and order, as we put the matter in proposition 9 in our outline, is not a pair of words that are travelling in opposite directions.  They are really travelling hand in hand.  They may even be an hendiadys, in reality.  But it is idiomatic English to talk about maintaining order and discipline in an institution or an armed force displaying order and discipline, and you are really talking about the one quality.

They are different words and they refer to slightly different aspects of what we submit is exactly the same phenomenon.  So discipline may produce order and order may be maintained by discipline.  But whether one is talking about a religious order or an armed force, the discipline of the group is that which is displayed, or perhaps produces the good order of the group. 

So under section 153(1), as well as the implication to maintain order, there is the obligation, if it is any different to maintain discipline and then comes a very important provision for the argument, separating the parties.  Section 153(2) says:

For subsection 1” –

that is the obligation to maintain discipline:

the superintendent may use the force that is reasonably necessary in the circumstances - 

an enactment which probably does not go beyond what the common law by necessary implication would in any event understand if one is given a duty to maintain discipline.  Hence the importance of subsection (3), because from that completely case specific and evaluative requirement – what is “reasonably necessary in the circumstances” – with respect to discipline, which of its nature involves questions of the application of force, the legislature has turned to put beyond argument that there is not included – and I might insert parenthetically even if otherwise it would be – on any occasion subject to subsection (4) - it goes down in steps - what is set out in subsection (3). 

EDELMAN J:  Is discipline concerned only with detainees?

MR WALKER:   We would submit not.  We would submit not in the sense that the superintendent must obviously be able to require officers to deal in an appropriate fashion with detainees in order that discipline be maintained. 

EDELMAN J:   Sorry, is the subject of the discipline only concerned with detainees? 

MR WALKER:   We would submit not, any more than order.  So that order and discipline need to be observed by officers as well as by detainees. 

EDELMAN J:  Order might, for example, extend to the officers as the otherwise, within 151(3)(c), where there are no issues relating to the detainees, but where the organisation is just in a state of chaos.

MR WALKER:   Absolutely.  Closing doors when alarms have gone, for example, may not be on account of anything that has occurred by a detainee.  It might be a false alarm.  But the maintenance of order and the ensuring of safe custody and protection would permit, in our submission, would require the superintendent to have a system for the closing of doors upon an alarm.

GORDON J:   Is that any more to say that the discipline limb in section 133 is a subset of order?

MR WALKER:   It probably is not saying much more than that, quite so, because I was about to say and the maintenance of discipline at the detention centre - those are the words in 153(1) - would surely include promulgating the rule that upon this alarm all doors must be closed and if you do not you will have committed a breach of my rules for the maintenance of order of this centre and your breach of discipline will go on your record as an employee.  

So obviously chaos, as Justice Edelman puts it to me, which might involve riot with the deadly risks that that presents to anybody in the vicinity, the risk of escape is obviously a prime one.  But along the way, and not necessarily separate from those concepts, are of course the commission of a miscellany of possible offences:  damaging property, assaulting people, fellow detainees, et cetera, et cetera, et cetera.

So there is a wide range of possibilities, and order and discipline involve precaution, not just response.  It is for those reasons, in our submission, that it is utterly inappropriate to see the word “discipline” as somehow narrowed to what in the Royal Navy in its glorious days, involved the lash – in other words, punishment, that is, the enforcement of order by fear of pain. 

That is a tiny aspect of things which subsection (3) immediately turns its attention to…..in a different era, with Conventions Against Torture and the like, and Conventions about the Rights of Children.  So subsection (3) just says there is not going to be:

striking, shaking or other form of physical violence –

in anything which is advanced as being part and parcel of the maintenance of discipline – that is just not going to occur.  Neither is there going to be the one in question in this case, the:

enforced dosing with a medicine, drug or other substance –

I suppose that is, if we were talking about a zoo and wild animals, there is the tranquiliser dart – so that cannot happen.  Then you have other matters which are topically familiar now, in terms of the treatment of humans by other humans:

compulsion to remain in a constrained or fatiguing position – 

So strung up in chains or forced to squat, or whatever.  That cannot be done either.  It does not matter that it might be regarded by some people as a means of maintaining discipline by inspiring fear, et cetera, et cetera.  The same then comes very interestingly because of subsection (4) - one comes to something which is very familiar in law enforcement and in the conduct of prisons, so:

handcuffing or use of similar devices to restrain normal movement.

Your Honours would be aware that those parts of the case that are not before – the cases that are not before this Court included a device known as a “spit hood”, and that is that kind of device, restraining normal movement, et cetera.

Subsection (4) recognises the kind of exigency which might lead the superintendent – I stress, the superintendent, not a police officer, not the Director, not anyone but the superintendent – to form an opinion which would produce the possibility for the superintendent to use handcuffs or a similar device so long as the emergency situation as it is called continues to exist, and only that long. 

The opinion in question first of all requires reference to an emergency situation and it might be considered that the facts you have heard about in this case could constitute that.  Then under section 153(4)(b) you see that the opinion has to be directed to the question of whether the detainee should be temporarily restrained to protect the detainee from self‑harm - and no one suggested that involves here – or to protect the safety of another person, and for our clients we do not understand that is in question either, but ‑ ‑ ‑

GORDON J:   That would be broader than detainees?

MR WALKER:   Yes.  If I may say so, of course visitors and staff deserve every bit of consideration as anyone else.  Detainees are not privileged in terms of protection of safety.  They are just persons, like everyone else. 

GAGELER J:   Mr Walker, is it common ground that an emergency situation within the meaning of the Act existed?

MR WALKER:   Yes.  The only refinement on that is to say it is common ground that there is absolutely nothing to cast doubt on the lawfulness of the superintendent forming that opinion.  Yes, is the answer to your Honour’s question.  Could the superintendent form that opinion?  Yes.  It is not a contest.  One sees a similar pattern about the superintendent’s power.  It does not throw much light on other aspects of our argument in section 153(5) as well.  So, just pausing on section 153, in our submission it is impossible to read section 153 as if it were separate from the matters to which section 151 went or the exercise of powers under section 152. 

To put it another way, in our submission it is impossible to see “necessary or convenient for the performance of his or her functions” under section 152(1) as involving with respect to the use of force, greater force or different forms of force than that permitted under section 153.  An argument that says but 153 is about discipline, 151(3)(c) is about order, these are somehow so different that that which is necessary or convenient for the function of maintaining order can, as the occasion would appear to justify, exceed that which is regulated by section 153.  That is at the nub of one of the differences between the parties and that is our argument about it.

Your Honours will see that the exertion of force is implied in section 154.  Obviously, the necessary implication is that force reasonable to bring about the transfer of a detainee ‑ ‑ ‑

EDELMAN J:   Just before you do, is one way of looking at sections 153, 152 and 151 that 151(3) is concerned with the functions, 152 is concerned with the powers and 153 is concerned with duties in the exercise of some of those powers? 

MR WALKER:   Yes.  I hesitate only for this reason.  It is very difficult to say that “functions” is a word used in section 152 in such a way as only to refer back to 151 rather than also to 153(1).  That is why I drew to attention that the enacted words have exactly the same syntax:

The superintendent . . . must maintain –

for both of those provisions.  One will have noticed that, alas, the drafters decided not to say that they were spelling out functions in section 151.  It may be, of course, that there are – well, there are, in fact functions found elsewhere in the Act in relation to the superintendent.  But subject to that qualification there is nothing in our submission either at odds with what Justice Edelman has said in the text of the statute, nor is there anything contrary to our argument in what Justice Edelman has suggested.

GAGELER J:   But you are not abandoning your Anthony Hordern argument?

MR WALKER:   Not at all.  Indeed, that is right at the heart of the matter.  Perhaps I should have tagged it when I said what I just said a few minutes ago.  It is, in our submission, not possible to read section 152 as providing for the possibility of greater or different force than that permitted or limited under section 153 when maintaining order – and I have said what I want to say about discipline – because of the Anthony Hordern principle. 

There is specific attention – specific attention – hence, with respect, Justice Gordon’s comment about subset – paid to the force that may be exerted and how it may be exerted – and how it may not be exerted – in relation to the maintenance of discipline.  No one, in our submission, could sensibly say, least of all a superintendent, that my obligation to maintain discipline has nothing to do with the obligation to maintain order and to ensure safety.  One would have thought they go hand in hand. 

KEANE J:   So it does not hurt your argument if 153 is read as being limited in its concern to inmates – detainees.

MR WALKER:   Actually, not in our case.  I have made the comment earlier about promulgating rules for and ensuring the observance of rules by officers as part of the maintaining of discipline.  But it is not necessary for our success, no.

GORDON J:   Can I ask one other question about this use of force and your argument that it is directed at specific – turned its mind directly to these sort of questions?  Is that reinforced by the terms of 159, 160 and 175 that deal with, in effect, as I read the Act, three specific instances where additional reasonable force may be used?

MR WALKER:   Yes, I am going to come to those provisions and a couple of others – yes, is the short answer, no qualification, for once.  Your Honours, I was about to move then to section 154, that is where, obviously, for the special class there of somebody over 15 – 15 or older, that is eligible in the first place to have been sent to prison in the sentence – that such a person in an emergency can again, depending on an appropriate opinion by the superintendent, be temporarily transferred to a prison, but again for a specific purpose. 

These are all regulated as to the nature of the exigency as well as the limits of the expedient.  The nature of the exigency is to protect the safety of another person.  In other words, if anyone thought you could send people to prison to protect them from themselves – that is self‑harm – no, you are not going to send people between the age of 15 and 18 to prison for that purpose.  You will have to do something else for that. 

Then we come to the provision which probably is at the very heart of the differences between the parties.  I realise as I say that that I may be selling short what my learned friend wants to say about sections 8 and 9 of the Prisons Act, but so be it.  Section 157 is part of my answer, of course, to that argument. 

Section 157 starts with a familiar public service or public officer possibility, that is familiar in the myriad of ways in which functions, powers and duties, and limits are given to public officers with respect to their administration of the law for which they are responsible.  That is delegation.  One sees that there is first of all in subsection 1 what I am going to call an ad hoc – that is for one person, or maybe for one occasion – delegation and that comes from any of his or her powers and functions.  So there needs to be a designation of the powers and functions. 

It is a formal matter and for good reason, bearing in mind the significance of the decisions of a superintendent based upon the opinions of the superintendent to which I have just been referring in section 151 and on.  You see that the public service hierarchical administration is recognised by the possibility under paragraph 157(1)(b) that the Director will be authorising such a delegate, not delegating himself or herself, but authorising a person to be a delegate of the superintendent, other, that is, than a member of the staff of that centre.

Now, we can put that to one side in this case.  I draw it to attention only because of the explicit deliberateness by which there really is a focusing on designated people or personages under this Act with respect to resort to force.  Section 157(2) thus assumes its importance in this case. 

There are two classes of people who get what I am going to call an automatic delegation:  a police officer or a prison officer, but only in an event which did occur in this case with respect to the prison officers, if called upon by the superintendent of a detention centre to assist – and I stress the word “assist” – in an emergency situation, or in preventing an emergency situation from arising.  So there is no dispute that the people in question – CS gas administrators – were prison officers, and they had been called upon by the superintendent to assist.

So that places the context.  Obviously one asks, well, what can the superintendent do in an emergency and can assisting the superintendent in an emergency by decision to call upon a decision made by the superintendent, could that possibly rise higher than its source, that is, would that give the assistants fewer limits or greater authority than the superintendent?  Not by those words so far encountered. 

The provision continues such a person is “taken to have been delegated”.  It is not really a deeming because it is not a fiction.  It is in fact what I have called an automatic delegation.  It is to be contrasted with the highly formal written delegation in subsection (1) - “taken to have been delegated” - and there we have the answer to the question, well, can the assistant have powers beyond those of the person calling for assistance? 

The answer is obviously not, because they are taken to have been delegated the powers of the superintendent necessary to perform the superintendent’s functions, hence the notion of delegation.  That is why it is in section 157 under 151(3)(c).  So it is quite plain that maintaining order, ensuring safety, et cetera, is explicitly thus regarded as a function or duty with concomitant powers that exist in the case of an emergency.  It does not exist only in the case of an emergency, but it is explicit in 157(2) that it exists in an emergency.

There are other provisions which may or may not cast light on this statutory technique of assimilating the powers of one kind of officer to those of another which presents a difficulty when they are different contexts.  The superintendent for the Youth Detention Centre, for example, is not a police officer for all purposes.  But see, for example, section 167(1).

GORDON J:   That works in reverse, does it not?

MR WALKER:   Absolutely.  There are provisions in both the Youth Justice Act and the Prisons Act of a familiar kind with respect to escapes.  You do not lose your powers as the miscreant pushes through the fence and leaves the premises.

KIEFEL CJ:   Mr Walker, I know that you have not come to the Prisons Act yet.  I assume you would say that the prison officer’s powers are different from those of the superintendent.  But do you say also that they are relevantly greater or wider in the context of maintaining or returning a place to order?

MR WALKER:   I think the answer to that is yes, because of provisions in 62 of the Prisons Act in particular.

KIEFEL CJ:   I will let you come to those, yes.

MR WALKER:   I am coming to it very soon, but I think the answer to your Honour’s question is yes.  My answer, however, goes to their powers in a prison.

KIEFEL CJ:   The geographical notion?

MR WALKER:   Yes, and I will just point it out that ‑ ‑ ‑

KIEFEL CJ:   Or the location notion.

MR WALKER:   ‑ ‑ ‑ it is the location idea.  I will just point it out that that has a necessary extension obviously with respect to escapes and hence the police officer powers assimilated for a prison officer in such circumstances.  But in answer to the Chief Justice’s question, of course our very point is that in the detention centre and with respect to detainees, of course a prison officer cannot exert all the powers that a prison officer could exert in a prison against an adult prisoner.

EDELMAN J:   But is it really a question of location or is your argument really one of, effectively, persona designata – that the police officer is a designated ‑ ‑ ‑

MR WALKER:   Delegate of the superintendent.

EDELMAN J:   Yes.

MR WALKER:   It is that, but that is not operating differently from what I will call the locational point.  I do not overemphasise the locational point.  It is because of the preposition in 62 of the Prisons Act, to which I will come.  It does not feature in our friend’s argument, I think, because of that preposition.  It does fall out exactly as Justice Edelman has put it to me.  Section 157 – we say there must, subject to the notice of contention argument, be consideration of 157.  You cannot sidestep it.

GORDON J:   Your point is does it rise higher than the source.

MR WALKER:   Exactly.  Now, as I understand it, and I apologise to my friends if I am travestying their argument, I understand the contention point is an enterprise to avoid the embarrassment of 157 and simply to say there is this constant availability of things, police officer style, under 8 and 9 of the Prisons Act, which can just be deployed anywhere, including when you are called upon to assist the superintendent and thereby obtain, by delegation, under 157(2) the superintendent’s powers.

GORDON J:   Putting aside the delegation point just for one moment there are other things, are there not, in the Act that might tend against that argument?

MR WALKER:   Yes, the whole of the statute, as we have tried to demonstrate in writing and I have tried to emphasise in address, differentiates with respect to what I am going to call the severity of treatment between the children and the adults.

GORDON J:   I had more in mind things where, if police officers are to do things in relation to youth detainees they are given express powers, in effect, or more confined powers.

MR WALKER:   That is exactly right.

GORDON J:   So that is one set of provisions which are different to, conversely, secondly, where there is the need for permission to give force, whether by anybody, really – they are given express permission.

MR WALKER:   That is right.  I mean I did not overemphasise this.  Your Honours have seen it in our writing.  Of course, you start with the proposition that it is a legal wrong to lob CS gas at a person because of the harm it does.

KIEFEL CJ:   Is section 157 the only provision in the Youth Justice Act that deals with the situation of an emergency?

MR WALKER:   No, but it is the only one I think relevant to this case.  There are, for example, the provisions to which I drew attention in section 153(4) and there are the provisions of section 154(1), to which I drew attention.

GAGELER J:   Mr Walker, are you coming back to section 152?

MR WALKER:   Yes.

GAGELER J:   No, I just wanted to ask you some questions when you get to it.

MR WALKER:   I am happy to do so now, your Honour. 

GAGELER J:   As I understand it, you have two arguments.  I hesitate to give them labels, but one is the Anthony Hordern argument.

MR WALKER:   Yes.

GAGELER J:   Another I would call a Coco argument.

MR WALKER:   Yes.

GAGELER J:   The scope of the Coco argument is what?

MR WALKER:   That there cannot be, by either direction of the Director to which I will come, or direction of the superintendent, an authority given to exceed specific limits specifically imposed on the conduct in question, that there is not under this statute, indeed one would not approve in any statute, a dispensing power.

GAGELER J:   I follow that.  But is it that you do not read “necessary” or “convenient” as extending to conduct that would constitute a crime?

MR WALKER:   No, that is right. 

GAGELER J:   But is there another element, and that is, whether or not it is a crime, it does not extend to a tortious interference with a person?

MR WALKER:   Yes, yes.  There are three aspects to it.

GAGELER J:   Yes.

MR WALKER:   They are all rule of law aspects.

GAGELER J:   Yes.

MR WALKER:   All of them in fact are informed by the treaty obligations to which I referred in passing – that is not part of my argument.  But it only emphasises the fundamental nature of the rights or interests in question and it emphasises thus a matter of statutory interpretation which is de rigueur.  There are three aspects.  There is crime, section 152(1), using the familiar powers given to sewage boards of necessary and convenient.  That does not dispense from what would otherwise be crime.  “Superior orders”, in other words, has no place in that sense.

Second, the fundamental rights and interests of an individual in physical integrity is not only protected by criminal law but is very importantly protected by the law of tort, and liberty of physical integrity.  That also, for fundamentally important rule of law reasons, is not – it is not capable of forming the legal thought as to how necessary or convenient would ever so incoherently say it is necessary that somebody can authorise a tort, otherwise than by sufficiently plain legislative language adapted to do so.

Necessary or convenient - this is ancillary, that which falls within the ambit of your duties, by definition, unless there be the authorisation of a tort - and there are many authorisations of tort, some of which I am going to come in this Act – but not in the circumstances that obtained on the evening in question.

The third one, of course, is that necessary or convenient, for pressing rule of law reasons of coherence within the same statute obviously does not authorise, in the absence of any peculiar striking express words “apt to do so”, a dispensing power from limits found on the exercise of a power within the very same statute.  So we have crime, tort and statutory limits.  Those are the three ways, we say, it is not possible to proceed as the Court of Appeal did.

Your Honours, could I briefly then come to some provisions in Part 10 which is medical treatment.  Here you will find some authorisation of tort, and here you will find other provisions in what I am going to call a therapeutic context with respect to medicines, drugs, or other substances. 

GORDON J:   There are also some in Part 8, are there not, about taking swabs and testing all of those things?

MR WALKER:   Yes, you will notice in Part 8, Division 3, that there is force ‑ ‑ ‑ 

GORDON J:   Section 159(4) is an example. 

MR WALKER:   Yes.  The authority bestowed by 159(2) is backed up by express authorisation of what would otherwise obviously be a tort, might even be a crime under 159(4).  That provision is not a loan in that regard, but that is a good example.  The specificity of such matters argues, in what might be called an extended Anthony Hordern sense, but really is a generalia specialibus non derogant argument, argues very powerfully against this endeavour of reading 152(1) as a means by which that which is otherwise forbidden or controlled can be done without committing an offence or being unlawful for tortious purposes. 

So under Part 10 one sees first of all the primacy of what I am going to call medical advice, even before coronavirus, in 174.  In 175 there is the compulsory - that is the reversal of what would otherwise be the fundamental liberty and physical integrity of an individual is reversed under 175(1).  That might be called a benchmarking exercise – everyone gets measured as it were – for health condition, by taking samples under 175(1).  One can obviously see the benevolent purpose there. 

There is the force you see under 175(3).  That sample is not only on induction but thereafter, after consultation with a medical practitioner, which is a compressed way of saying on medical grounds, I hope, it may be taken at any other time as well and you see the dispensation from liability quite specifically addressed in paragraph 175(3)(b). 

Under 176, one can see specific attention being given to examination or treatment – medical examination or treatment.  Now, it is not possible, we think, to understand the word “treatment” as not including the ingestion of or the physical exposure to a pharmacokinetic substance – something that actually has an effect, chemically, on the organism, whether by inhalation, whether by the skin or whether by internal ingestion or injection or any other way – such as a tablet or dose or, for example, a syringe into the ear or eye.  So treatment is a very broad category and one can see that under section 176 there are very carefully calibrated controls on when that may occur. 

KIEFEL CJ:   That may be a convenient time. 

MR WALKER:   If it please, your Honour. 

AT 11.17 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.34 AM:

KIEFEL CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, in section 176(1) of the Youth Justice Act, you will see in paragraph (b), upon refusal of, say, treatment by a detainee, what is necessary in order - for an order of mandatory treatment to be made under subsection (2) is the state of affairs constituted by the “life or health” being – as the medical practitioner considers it:

of the detainee, or any other detainee or person, is likely to be endangered or seriously affected as a result of the refusal –

to undergo examination or treatment.  That obviously raises, with respect to other detainees or persons, the possibility, say, of infectious disease.

It is not immediately obvious, except by implication, as to the use of force under 176.  There is a mandatory treatment ordered under subsection (2) and one sees that it has an effect upon what would otherwise be criminal or civil limits or sanctions – see subsection (4)(b).  One assumes that reasonable force to make the examination or submit to treatment might be implied.  The point, for our purposes, is this is again a highly detailed calibration after legislative turning of attention to the question of, in this case, the forcible administration of medical treatment.

Under 177, one sees again the authorising of torts, that is, by giving consent – in this case, the extended legal efficacy of consent by a director rather than, for example, consent by a parent or guardian.  One sees specific attention being paid in the statute to the, as I say, assimilation of the powers of a designated character for certain purposes – continued as an aspect of this statute in section 187, for example – what might be regarded as being obviously expedient extension of the lease powers for escorts taking detainees outside the premises.  One sees a familiar immunity provision in 215 which, I think, plays no part but obviously is posited upon good faith exercise, or purported exercise of a power, et cetera.

Your Honours, that brings me to the Prisons Act.  Just before I go there, proposition 11 concerns what I have already touched on in address, namely, the character of the forcible administration of the CS gas by it being deployed in such a way as calculated to…..the active ingredients in sufficient mass and vicinity as to be inhaled so as to produce, in a predictable way, a detrimental effect on the bodies in question.  One sees in material eventually produced at trial – in the appellants’ joint book of further materials – pages 53 and 54 – just that understanding of the matter on the part of the Territory and its officers. 

I do not need to read the whole of page 53, but if I draw to attention the way in which calculations are made with respect to a bodily effect, just below line 10 on that page ordinary language is used redolent of the concern of the statute in 153(3)(b), “enforced dosing”.  I quote:

When CS is released in a confined space, the possibility of an overdose must be considered.  If the time for a lethal dosage is calculated to be ten minutes, then –

et cetera.  This is obviously a dangerous matter.  I do not know whether officers carry what is on page 54 around with them or how, according to their procedures, matters are calculated.  But it suffices to say it is all about dose and the fact that the dose may be inexact does not mean it is not a dose.  That is the whole point of the warning.  The forcible administration is by way of dosing and it is by way of a recognised way that therapeutic or non‑therapeutic pharmacologically active substances can be brought to bear upon the human body. 

Nebulisers obviously are aerosol inhalation, application topically to skin, ingestion by tablet, injection into the bloodstream, or muscle tissue, et cetera.  There is a range of ways, all of which in our submission is not only within treatment when one is talking about therapy but also is within dosing by medicine or drug or other substance within the prohibitions contained in 153(3)(b).

The last thing I want to say about 153(3)(b) is this.  It is not a prohibition that is subject to an emergency situation relaxation.  You can apparently forcibly dose somebody who is a detainee but only therapeutically under the provisions with which I have just concluded.  The contrast of course is with handcuffs, which is conditionally prohibited because it can, with appropriate reticence, be used during an emergency situation.

Could I then turn to what might be called the alternative regime for adults, to which some juveniles can be exposed in ways that I will draw to attention.  The Prisons Act in section 5 has definitions which are of some moment.  There is “officer”, which includes the Director.  It includes a person employed in a prison.  A “prison” is defined; it results from a formal declaration.  It need hardly be said that the events in question in these cases did not occur in a prison.  Then there is a definition which may pose some obscurities:

prisoner means a person:

(a)      committed or remanded by a court and in lawful custody –

So these boys were remanded.  I have drawn to attention section 65, and they were certainly in lawful custody.  There is a question as to what “committed” may mean but not, on our understanding of the arguments below or here, one of any moment in this case.  Then you will find that a “prisoner” means a person:

under a sentence of imprisonment –

None of our clients was; or:

who is a detainee under the Serious Sex Offenders Act –

None of our clients was.  So there is a specific selection of possibilities of people who may fit the description of “prisoner” and we submit that we simply do not fit anything other than the possible section 65 remand by a court in lawful custody as a matter of literal understanding.  But as we have argued in paragraph 4 of our reply, to which I will not go in detail, contextually, given the difference of regimes and the dichotomy between detention and imprisonment that one sees in the provision to which I have already gone, these four were not prisoners.  Mind you, if they were, that would not be fatal to our argument, for the reasons we have spelled out.

Could I then turn to section 6.  It is not clear to us, with respect, what significance section 6 has in this case on the argument of the respondent.  The history of issues and contentions made in the two courts below does not yield, we think, any showing that section 6, particularly its subsection (2), has before this Court played any part in the respondent’s justification of what happened.

We note that in the parenthesis to our proposition 13 in our outline, justification of what happened by characterising our clients as “prisoners”, and by relying upon something that is said to flow from subsection (2) of section 6, on our researches and searches of the records below, simply has not been raised by the Territory hitherto.  We say it is still not raised, for the reasons we put in that parenthesis.  That is not what the contention raises.  In our submission, the argument should not be entertained.  However, I will draw to attention the provisions. 

We understand this novel point being that the Director – and one will recall this is the same Director as the Director to whom the superintendent answers under the Youth Justice Act:

the Director has the control of all prisons and police prisons -

Well, that is not to the point.  The superintendent is responsible for the youth detention centre.  Then comes the phrase that we understand our friends wish for the first time here to make something of, and the Director has:

the custody of all prisoners, in the Territory.

Now, that proposition, which may well be salutary in terms of accountability, is in our submission simply unavailable as any legitimate foundation for an authorisation of these torts, or what would otherwise be crimes, about which we sue.

Having the custody of a prisoner rather imposes responsibilities and enlivens duties of care, rather than exposes the prisoners to the commission against their bodily interests of torts and perhaps crimes.  Section 8(2) is, as we understand it, and it is invoked by the notice of contention, section 8(2) simply says that:

Officers are subject to the directions of the Director –

well and good:

in the performance of their duties and functions and exercise of their powers. 

So you have to look elsewhere to find out what their duties and functions and powers are on the occasion in question.  I have already adverted to that with respect to the section 157 Youth Justice Act point.  We may be wrong but we understand by way of anticipation of our friend’s argument, that section 8(2) is called in aid in some way as to say, notwithstanding limits on power or the unavailability on such an occasion of the conduct being lawful, about which we complain, so long as it was, as it was in fact – we accept that – as it was in fact directed by the Director then it becomes lawful, non‑tortious, apparently not an offence.

In our submission, for the reasons we have developed in writing and in the argument, which includes my answer to Justice Gageler’s question before the break, section 8(2) is an entirely inadequate foundation for such an argument.  Being subject to directions is nowhere near being dispensed from other requirements of the law and a moment’s thought would rather raise an entirely opposite approach to the reading of such provisions, namely that the Director must be lawful, as the public sector legislation makes explicit in giving directions – that is it is only lawful directions that have to be obeyed. 

There is no order of a superior defence of any kind imaginable here, and there is no dispensation of either Director or officers with respect to even so‑called lawful directions contemplated from what are otherwise requirements of the law.  So “Go and put X in cell Y” is a lawful direction, but does not authorise the use of more than reasonable force, for example. 

Section 9, we think invoked by the notice of contention, we think is a separate argument, though it may be called in aid as by some kind of bolstering of the arguments I have tried to deal with under sections 6 and 8.  Section 9 we understand says of this assimilation of the powers of a prison officer to those of a police officer, in some way as to outflank section 157 of the Justices Act or section 153 of the Youth Justice Act – the Youth Justice Act I meant, in both cases - and in our submission that again is not really arguable bearing in mind that the powers and privileges of a police officer in question are explicitly confined to those used for performing duties as a prison officer. 

KIEFEL CJ:   Well, a prison officer who is effectively seconded by the superintendent of a detention centre is acting as what, if not as a prison officer?

MR WALKER:   Acting in both capacities.  They are seconded because they are a prison officer – see 157(2) – and they get the powers of the superintendent.  So they remain throughout a prison officer.  They do not become ‑ ‑ ‑

KIEFEL CJ:   The essential point is that their capacity as a prison officer does not draw with them all the powers under the Prisons Act.

MR WALKER:   That is why I call in aid the two different regimes for the two different kinds of people.  There are juvenile detainees and there are adult and some juvenile prisoners.  Section 157 is not the means by which the safeguards with respect to detainees are entirely removed so that juvenile detainees are subject to whatever may occur to adults or juveniles in a prison.  The detention centre does not become a prison for the purpose of an emergency situation.  It would have been a very simple legislative approach to do that, but it may have been highly questionable as policy.

GORDON J:   Or even just included something like section 9 of the Prisons Act into the Youth Justice Act if that was intended.

MR WALKER:   Yes.  You could say all officers in a detention centre have the powers and privileges of not only a police officer but of a prison officer as if the detention centre was a prison, but there is no such thing.

KIEFEL CJ:   I was asking you earlier about the breadth of the powers under the Prisons Act as compared with those under the Youth Offenders Act.  If a prison officer who was called upon by the superintendent to assist brought with himself or herself the Prisons Act powers, do you say section 157(2) would not be necessary – the delegation of powers under ‑ ‑ ‑

MR WALKER:   Yes, it would render 157(2) an otiose exercise.

KIEFEL CJ:   Unnecessary.

MR WALKER:   Yes.

KIEFEL CJ:   Because they are - and the point I was clumsily really asking about before is that they are not additional powers ‑ ‑ ‑

MR WALKER:   No.

KIEFEL CJ:   ‑ ‑ ‑ if one looks at the prisoner ‑ ‑ ‑

MR WALKER:   No, it actually provides limits, because the superintendent does not have the powers of a prison officer.

EDELMAN J:   It is powers and functions as well.  It is the powers to perform the superintendent’s functions.

MR WALKER:   That is right, and the functions are with respect to a detention centre, not with respect to a prison.  So that deals with a matter that I have attended to, as it were, by way of anticipation.  Can I come back to some textual indications of this ‑ ‑ ‑

GAGELER J:   Sorry, Mr Walker, section 8(2) of the Prisons Act, does that apply to a prison officer who is subject of the deemed delegation in section 157?  I think you have said in fact it does not work that way.

MR WALKER:   Yes, I have.  Your Honour’s question requires more than a monosyllabic answer, but the monosyllabic answer with which I will start and try to justify it is yes, but let me explain (a) why that is so and (b) why that does not harm our position.  It would be both with respect to public sector management and the Prisons Act and the Youth Justice Act entirely a good thing that lawful directions be given by the Director who is after all also the director to whom the superintendent answers when prison officers are, to use the jargon, seconded, that is, when there is a request for them to assist in a situation at the detention centre.  That is the first thing.

That is why yes is correct.  Make sure you bear in mind that these are young people and they are not prisoners, for example.  Make sure you bear in mind that they include remand detainees, not only persons serving sentences by way of punishment.  Those are lawful and appropriate directions, one would have thought, as prisoners officers are rapidly deployed off to a detention centre.  That is the first thing.

The second thing is, of course, there is no suggestion in the text of section 8(2), which is a routine or standard explicit creation of the hierarchical responsibility within an arm of the Public Service, there is nothing there to suggest that a director may, by direction, lawfully require or dispense from the legal consequences of other aspects of the law governing conduct. 

We do not think it is seriously proposed that 8(2) is a superior order answer by which, so long as a director directs something, there is no wrong committed by action in compliance with a direction.  The direction must be a lawful direction and a lawful direction cannot require conduct that exceeds limits.  That is our point.  I stress, this is all by way of anticipation.  We may need to reply to that the way our learned friends put it.

GAGELER J:   Can I just follow up?  If section 8(2) applies, what is it about section 9 that prevents it from applying?

MR WALKER:   Section 9 simply gives to prison officers, including when they are seconded, arguably the powers and provisions of a police officer.  We do not how that is thought to be argued because no one is saying that what happened on this occasion would have permitted a police officer to administer tear gas.  No one is saying that.  There are no findings about it.  I think it would have to be said that any offences thought to have been committed by any of my clients in relation to property damage were not such as ever to have justified, or have been thought by anyone to have justified somebody with police powers tear gassing them.

GAGELER J:   So whether or not it applies probably does not matter.

MR WALKER:   Does not matter – does not matter for us.

GAGELER J:   No.

MR WALKER:   But section 9 obviously raises a question not necessary for this case that may arise in another case as to what, “while acting as such” means in a 157 situation.  Let me make it clear, you are only in a 157 situation because you are a prison officer.  So, obviously, it is literally arguable – without any strain or distortion – that you are acting as a prison officer when you are assisting a superintendent upon request to do so. 

But then the question is what does it mean to have the powers and privileges of a police officer performing his duties as an officer?  They are still only the duties under 157 and those duties are circumscribed by the nature of the delegation under 157, which delegation of functions includes the restriction of powers or the correlative duties, and it is for those reasons that section 9 we cannot see has any footing in this case at all.

But we note in section 14 of the Prisons Act, as you might expect, prison officers and police officers are empowered to arrest and detain without warrant an escapee – probably tautologous in the case of a police officer – but important even with section 9, I suppose, to spell out because it makes clear that that is a power that can be exercised after escape – “who has escaped from lawful custody”.  So, it is a locational point that may be of some significance in relation to, for example, claims of wrongful arrest. 

Section 21 was where I wanted to return, no longer anticipating arguments, to add to the many provisions to which we have referred in writing and in address which show that the regimes of a youth detention centre and a prison are really quite different.

Now, I drew to attention before the break that there were some provisions in 81 and 83, or 83 of the Youth Justice Act which may have someone 15 to 18 sent to a prison.  If so, section 21 of the Prisons Act applies and one sees that the person is a prisoner, see subsection (1), and in subsection (2), upon transfer back to a detention centre that detention centre in relation to that prisoner – in relation to that prisoner, is taken to be a prison.

One sees that the interregnum of detention centre ceases upon your 18th birthday.  That really only emphasises these are different regimes, different places and that age is being seen as a critical discrimen concerning what may be done to or against a person.  Then I come to section 60 – Part 16 “Security of prisoners and prisons”.  There is a very wide discretionary power given in section 60 concerning precautions:

to maintain the security and good order of a prisoner, prison or police prison -

not a youth detention centre, I may say.  Section 62, we do not need to worry about subsection (1), that is firearms.  But weapons, obviously, including the CS gas dispenser, which is the prohibited weapon in our cases, are directly the subject matter of subsection (2):

An officer may possess and use in a prison or police prison such . . . weapons . . . as are approved by the Director as necessary to maintain the security and good order of a prisoner or a prison or police prison.

If we are right that none of our clients was within the meaning of that word “prisoner”, a prisoner, then 62 has nothing to do with this case.  In any event, we say it has nothing to do with this case because 62(2) is a legislative permission to do that which would otherwise be a crime, in a prison – you can do that in a prison.  Now, whether or not subsection (3) is said to be some freestanding proposition is perhaps not clear, and maybe I should await the need perhaps for a reply.  But in our submission, the notion of:

such reasonable physical force and restraint . . . as he or she considers necessary to maintain the security and good order of a prisoner –

Assuming against our argument that that were available against our clients as prisoners, plainly that is not language apt to dispense with the need to comply with the specific provisions controlling the forcible administration by dosing of a drug which was in question in this case.  From the generality of “such reasonable physical force”, et cetera, has been extracted by specific legislative attention, that which happened in this case and which remains governed by those specific provisions.

I think I can conclude by noticing another of these power assimilation provisions in section 96.  I do not need to – about escapees.  So there really is nothing in ‑ to return to the argument by way of anticipation, there is really nothing in, we say, whatever section 8 and 9 is relied upon by our learned friends.  If it is supposed that there is a general assimilation of power by section 9 that dispenses with the specific regulation of the exercise of such powers in the provisions to which I have already drawn attention. 

My answer to Justice Gageler is I think a qualification or an alternative to the second sentence of our proposition 15.  In proposition 17 we make what I have already given in answer to Justice Gageler about both sections 8 and 9.  Proposition 18, I think, has already become clear; I do not need to elaborate on that.  That concludes, as it were, what I want to say in‑chief.

Could I briefly in the hope that this will help to compact and focus some argument, could we notice that the respondent’s submission, written submission, about an established distinction between disciplinary or punitive action on the one hand and management action, or action to maintain or restore good order and security on the other, which is a phrasing from paragraph 17 of their written submission, is not, in our respectful submission, supported by that which is cited to support it.  It is footnotes 14 and 15 - I do not need to take you to it, I am going to try and do it in very short order. 

We understand from what has not been included from the Court in the requisite books that there is only one authority of those authorities - Binse v Williams [1998] 1 VR 381, in the book of authorities at 523, that my friends wish to draw to the Court’s attention in address. The others have been evoked in the written submission and I wish to deal with that very briefly.

As to Binse v Williams itself, put shortly it is a decision of the Court of Appeal concerning provisions and applications of the Corrections Act 1986 (Vic) in which the word “discipline” is not found in the relevant provisions, and thus the meaning of that word in any context was not before that court. There was, as a matter of ordinary English, that is, not a statutory meaning being examined, a use by Justice Charles of the quite common phrase of “keeping someone in irons” as a disciplinary measure. You will find that at page 389 of the report in his Honour’s citation from the rather strikingly named American decision In re Birdsong.  I am not sure how much there was in the places in question. 

Now, in our submission, what his Honour was saying by way of drawing lines with respect to what could be done by way of punishment, et cetera, just has nothing to do either with this case, with the meaning of order and discipline in the two provisions in our case, or indeed with, by way of establishing some general contextual usage by which discipline is punishment. 

Yes, discipline can include punishment, but to say discipline is punishment is an utterly incomplete statement.  If you started using words like “punishment” or “punitive measure” in the provisions in question as if they were synonyms, then nonsense ensues.

Then there are three cases – I will give their citations – R v Gray 45 A Crim R 364; R v Walker 60 A Crim R 463 and Bromley v Dawes 34 SASR 73. They are not, as we understand it, to be the subject of address before your Honours, but they are cited in support of the proposition. The first, Gray, the Queensland statute, used the phrase “breaches of discipline”, which rather supports our understanding of the notion of discipline as being in accordance with order.  It is certainly not making it equivalent to punishment, but breach of discipline is a breach of order, obviously.

Walker – again, this rather supports our approach to these words and the concepts in play.  The question was one of a condition for a power of transfer, which included the notion of putting the discipline and security of

the centre at risk.  One can see obviously the discipline there is exactly synonymous with order ‑ good order.

Bromley v Dawes, with respect, an administrative challenge – that is judicial review, administrative law challenge to the transfer of a prisoner.  There is no support in that at all for this supposed contrast, not an overlapping contrast, of notions of order and discipline.

Then, if I may say so, perhaps oddly the citation in the footnotes by our friends includes a reference to a New South Wales statute, which, in our submission - it is the Children (Detention Centres) Act 1987, which, in section 22, sets out what are called prohibited punishments that obviously echoes in the Territory statute.  It has nothing to do with the word “discipline” at all.

Strikingly, however – and maybe this cuts both ways – section 14 of that Act, in subsection (1), required the Secretary to maintain discipline and good order.  It is just one of the many, many uses of those words that support what I said earlier, namely, in many ways this is probably an hendiadys.  They are not too different things; they are two words you add together for one purpose.  May it please your Honours.

KIEFEL CJ:   Thank you, Mr Walker.  Yes, Mr McLure.

MR McLURE:   Your Honours, ground 1 of the appeal deals with the prison officer’s entitlement to the exemption in section 12 of the Weapons Control Act.  We start at the outset to invite your Honours to note the concession that is made by the appellants in their written submissions in reply at paragraph 11 and again in the outline of oral argument today at paragraph 2 that the prison officers, and relevantly the officer who deployed the CS gas was acting in the course of his duty as a prison officer and that the weapon, the CS gas device, was supplied to him by his employer for the purposes of that duty. 

What that leaves, we submit, is a question whether or not there is a prohibition either in the Youth Justice Act or to be implied from the Prison Act that would forbid the use of the CS gas device in the youth justice environment.

The first of the prohibitions that the appellants contend for is the one they say is derived from section 62 of the Prison Act.  Could I invite your Honours’ attention to that provision.  That, as your Honours know, in subsection (2), permits the use of firearms, weapons and articles of restraint in a prison or a police prison, and your Honours understand that the argument which the appellants propound is that because it permits the use of those items in that location, one should imply a prohibition against using them anywhere else.

We test that firstly by asking the question whether or not that prohibition would apply to the use of firearms, weapons and articles of restraint by prison officers when dealing with adult prisoners.  It has to be right for that, just as it would have to be right for that prohibition to apply to the use of force against youth detainees. 

As to that, without rehearsing all of the provisions which Mr Walker has already taken your Honours to, we submit that what is clear from section 6 of the Prison Act is that prison officers’ duties extend to dealing with prisoners outside of prisons.  From section 9 it is clear in the common law that police officers have a duty to maintain the lawful custody of prisoners and may take steps to prevent escape, recapture escapees and prevent the commission of offending.  Section 14 explicitly provides a power to ‑ ‑ ‑

KIEFEL CJ:   I am sorry, Mr McLure, what do you draw from section 6?

MR McLURE:   That the Director has the control of all prisoners in the Territory, not all prisoners in the Territory who are in prisons.

EDELMAN J:   You are going to say that youth detainees are prisoners, are you?

MR McLURE:   No, and to the extent that point is taken in our written submissions, it is not pressed.  But what I am doing here is testing the validity of the appellants’ submission that the locational restraint in section 62 applies to prison officers no matter where they are discharging their duties, that is to say, whether it be against adult prisoners somewhere in the Territory or youth detainees.  So section 14 confers a power to arrest and detain adult prisoners and sections 60 and 61 provide power or duty to take precautions in relation to prisoners, whether they be in prisons or not.

So our submission is that it is incapable of being an implication that the appellants contend for, that is, a prohibition from section 62 is incapable of being sensibly extended to prison officers when dealing with prisoners outside of prisons.  If it is wrong in that respect, then it also must be wrong in relation to prison officers exercising their duties with respect to youth detainees, assuming they are acting in the course of their duties.

GAGELER J:   You have a point that they are their duties and you have to find the positive source of power before you go fishing around for limitations. 

MR McLURE:   I accept that.  What I am identifying is the limits of the prohibition for which the appellants contend.  I now need to move to whether or not the prison officers are capable of having, as part of their duty, using force against youth detainees.

So returning to the exemption in section 12 of the Weapons Control Act, the central question, we submit, is whether or not the prison officers were acting in the course of their duties as prison officers.  That question is answered partly by the functions and powers conferred by legislation, and partly by the functions assigned by the Director pursuant to his power under section 8.

Can I say immediately, contrary to what is said against us by the appellants in writing and orally, we do not contend that the Director’s power to give directions under section 8 in any way permits dispensation with any statutory restraint, including the criminal law.  We submit no more than that the Director may assign duties and direct the manner of their exercise, so long as the direction remains within the requirements of any relevant statutory limit.

So the next question is whether or not a prison officer’s duties are capable of extending to the use of force against youth detainees.  The first way in which such duty is capable of arising is under section 157 of the Youth Justice Act.  As that provision makes plain, a prison officer may be called to assist in an emergency situation. 

We ask the Court to note the following things about section 157(2).  The superintendent does not have the power to compel a prison officer to provide assistance when making a request under section 157(2).  Rather, a request is made, and whether or not that request is answered, and the manner in which assistance is provided, is subject to the direction of the Director.  One important consequence of that proposition is that when prison officers are exercising any power delegated to them under section 157(2), they retain their legal status as prison officers.

In this case, the Director and his subordinate commanders directed the prison officers to assist the superintendent with an emergency and, as has been conceded, they were supplied with a CS gas device as a means of fulfilling that duty. 

GAGELER J:   Sorry, what duty?

MR McLURE:   The duty to assist with the emergency.

GAGELER J:   What is the statutory source of that duty?

MR McLURE:   Section 157(2). 

EDELMAN J:   I thought you said that was not a duty – they could not be compelled to assist. 

MR McLURE:   The duty arises because the Director directed them to assist.

GORDON J:   I thought you said they could not be compelled.

MR McLURE:   Not by the superintendent.  My submission is the superintendent cannot compel a prison officer to assist with an emergency under section 157(2).

GORDON J:   Where does the prison officer’s duty arise?

MR McLURE:   From the Director’s direction.

KIEFEL CJ:   So it arises under the Prisons Act.

MR McLURE:   It has to be ‑ ‑ ‑

KIEFEL CJ:   It just simply means that they are obliged to follow a direction given under the Prisons Act - is that right – by the Director?

MR McLURE:   This comes back to the point about the scope of the Director’s power to direct in answering the point put against us that that power must remain within statutory limits.

KIEFEL CJ:   I understand your point that the Director is, under each statute, is the Director both of the prisons and of detention centres as the Director of Correctional Services.  Are you suggesting there is some kind of umbrella and the Director sits and uses his powers with respect to prisons or detention centres interchangeably?

MR McLURE:   Only in this sense, your Honour.  A question would be whether or not the Director could lawfully direct a prison officer to provide assistance to a superintendent in an emergency of the kind dealt with in section 157(2).

KIEFEL CJ:   So, the Director – as Director of Correctional Services – receives a request from the superintendent of the detention centre for prison officers – directs the prison officers to render aid.  How is the power of the Director circumscribed in that circumstance?  Where are the limits of his powers to be ascertained? 

MR McLURE:   In that respect, there is no limit. 

KIEFEL CJ:   There has to be a limit.

MR McLURE:   In the sense that it has to be reasonable and necessary in terms of the use of force.  But the question is does the Director have the power to direct his subordinates to provide assistance and the answer is yes.  That is partly because of section 157(2) and partly because of section 8 of the Prisons Act.

EDELMAN J:   But you are saying that the Director has power to direct the prison officer to assist and, in that direction to assist, is encompassed a power to use force?

MR McLURE:   We put it in two ways.  So upon the Director giving that direction to assist the prison officer then is automatically conferred with the superintendent’s power that is referred to in 157(2).  The second way we put it arises from the notice of contention which is that upon the prison officer being directed by the Director to assist, the prison officer takes with him or her the powers conferred on him or her by section 9 of the Prisons Act.

KIEFEL CJ:   So they are acting as a prison officer with all of the powers of the prison officer, and that arises because of the Director’s direction?

MR McLURE:   Yes.

GAGELER J:   How does section 9 help you?

MR McLURE:   Well, it only helps us if the Court concludes that the restraint in section 153 in relation to enforced dosing applies to the superintendent’s power referred to in 157(2).

GAGELER J:   I am sorry, how does - if you just look at section 9 as a source of power that comes across with a prison officer seconded under section 157(2), what does section 9 allow the prison officer to do?

MR McLURE:   I see, forgive me - the common law power of a police officer to prevent the commission of crime.

GAGELER J:   But it extends to administering CS gas, does it?

MR McLURE:   Well, part of the power to prevent the commission of crime is power to use force, we submit.  There is a separate question about whether or not there is an additional prohibition in relation to the use of CS gas, and that is answered by section 12, that is, if they are acting in the course of their duty, a lawful duty assigned to them, which is to use force to put an end to an emergency in a youth detention centre, then they ‑ ‑ ‑

GORDON J:   Do you need an emergency on that argument?  If you are right you would not need an emergency.  You would say you could ignore the provisions about emergency in the Youth Justice Act and have the Director require assistance and put them in to prevent the commission of a crime.

MR McLURE:   If it is reasonable and necessary to do so, yes, that is right.

EDELMAN J:   Was this argument run in the courts below?

MR McLURE:   Yes.  We relied on section 9 at ‑ ‑ ‑

EDELMAN J:   No, the common law argument, the argument that there is this common law power.

MR McLURE:   Yes.

GORDON J:   Just so I am clear, that would mean that the restrictions in relation to the Youth Justice Act would be rendered otiose?

MR McLURE:   No, one way in which it is not rendered otiose is, for example, the question whether or not the Director could, as part of his direction power, direct detainees – correction, prison officers, to assist a superintendent is informed by the existence of section 157(2).

GORDON J:   I thought your argument was that none of that was necessary given provisions of the Prisons Act.

MR McLURE:   Your Honour, I am not saying it is necessary in order for the power under section 9 to be conferred.  What I am addressing is the reality that is there and it prevents an argument that it is beyond power for the Director to direct a prison officer to assist a superintendent.

GAGELER J:   So do you have any findings that assist in this argument about section 9?

MR McLURE:   No, neither the primary judge nor the Court of Appeal treated with the argument - we relied on a notice of contention ‑ ‑ ‑

GAGELER J:   What findings would you need, or what factual - what facts do you need to establish the argument?

MR McLURE:   All of the same findings of fact that the primary judge and the Court of Appeal held justified the use of CS gas as a reasonable and necessary exercise of force to put an end to the situation going on in the behavioural management unit.

KIEFEL CJ:   Do you have evidence and findings that the Director gave directions to the specific officers?

MR McLURE:   Yes.  I will take your Honours to that now.  Could your Honours go to the combined appeal book, page 238?

KIEFEL CJ:   Mr Middlebrook, yes.

MR McLURE:   So at the point of the narrative in paragraph 18, the emergency had already arisen in the behavioural management unit.  Mr Caldwell was the superintendent.  He telephoned Mr Middlebrook.  Mr Middlebrook then contacted his subordinate commander, Mr Ballantine, who was the acting general manager of the adult prison and then Mr Ballantine asked the members of the immediate action team, which are the prison officers who attended the prison to mobilise.  Paragraph [19]:

They were equipped with –

various items including the CS gas.  Then if your Honours could turn, please, to page 282, paragraph [111], (i) to (v) then are the Court of Appeal’s confirmation of the findings of fact that we rely on, relevantly, that the prison officers were directed by the Director through his subordinate commander to attend – (iii) in particular:

they were supplied with the CS gas for the purpose of assisting –

with that emergency, and then (iv), the gas was deployed:

under the direction of the Director –

(iv) and (v), I am sorry.  So bearing in mind those findings and the concession that has been made that the prison officers were acting in the course of their duty and that they were supplied with the CS gas to perform that particular duty at the youth detention centre, the remaining question becomes one of whether or not there is a source of power to use force, and whether that power extends to using force of the kind used here, namely the CS gas. 

As I have said, we contend there are two sources of that power.  The first is the automatically delegated power in 157(2) and the second is that under section 9 of the Prisons Act.  When I am dealing with ground 2 I will dealt with the argument that is put against in relation to how one reconciles 151, 152 and 153, I will come to that.  But can I just move now to the arguments that are made by the appellants in relation to ground 1 in terms of the limits they contend for on section 152 by reference to the principle of legality.  So at paragraph ‑ ‑ ‑ 

EDELMAN J:  Just on something - the argument about the two sources of power, is there any power that comes from section 157(2) that does not come from the power that you say arises from section 9 of the Prisons Act. 

MR McLURE:   No, but if our submissions are accepted that section 153 does not include a restraint on using CS gas to maintain safety and order, if the appellants’ argument about that is accepted then that is the only circumstance in which we need to rely on section 9. 

EDELMAN J:  So the effect then is you say there are two sources of potential power, one which is a general source and one which is a very specific source, and if the specific source does not confer the power to act in the way that occurred here by deployment of CS gas, the general source would provide that power? 

MR McLURE:   Your Honour, I would not put in terms of the general and specific.  They are both powers to use force to deal with a particular dilemma – namely, the commission of offending – but in any event, even if that proposition is not accepted, to anticipate ‑ ‑ ‑

EDELMAN J:   The latter is a little bit more specific than offending.  It is offending within a juvenile justice centre, which is where the powers in relation to the offending are specific powers of the superintendent and they are limited by the superintendent’s functions.  It is not quite that general.

MR McLURE:  I accept that much.  To anticipate perhaps why your Honour asked me the question, the Anthony Hordern problem does not arise in the context because there is no specific restraint on this premise that we are dealing with – that is to say that the 153 limitation the appellants contend for is not accepted.

So I am dealing the proposition that the appellants advance in paragraphs 28 and 31 of their written submissions.  This is what they call the first and the fourth reasons for why the Court of Appeal’s construction of section 152 should not be accepted.  There in both of those paragraphs what they contend, we understand by reference to the principle of legality, is that section 152 does not sufficiently by clear words or necessary intendment demonstrate or displace the presumption against interfering with a detainee’s personal liberty. 

To this we would say the following things.  Firstly, if what the appellants are referring to is an implication that Parliament would not authorise an interference with personal liberty per se, then we accept that that is something to which the principle of legality would apply but it is adequately displaced by, relevantly, sections 152, 153 and 155, that is to say these are people whose liberty has been deprived by order of a court and there are implied and express conferrals of power to use force on those people in certain circumstances.

But if what is being contended is that there is an additional immunity or liberty in relation to the freedom from an assault or battery by the use of a particular type of weapon, we submit that the common law does not recognise it.  It is sufficiently dealt with in the proposition I have just advanced, that is to say freedom from unlawful assaults and batteries. 

In any event, we submit it is a mistake to look for those types of clear words or necessary intendment in the Youth Justice Act because the relevant prohibition that the appellants are referring to is the prohibition in section 6 of the Weapons Control Act and section 12, by the clearest words, evinces an intention to permit that if the prison officer or police officer is acting in the course of their duty.

GAGELER J:   It is only one way the case is put against you, that what occurred was a crime, but even if it is not a crime it is said it is still a tort.  Do you say that section 152(1) is to be read as authorising tortious conduct?

MR McLURE:   If it is reasonable and necessary to do so, yes.  I am dealing now with the appellants’ submissions at paragraph 29.  This is what they say is their second reason.  As we understand that contention, they seek to make something of the fact that section 152 confers a power that is necessary or convenient, whereas, section 157(2) only confers a power that is necessary.  To this we say neither the primary judge nor the Court of Appeal reasoned to the conclusion they did on the basis that the power used by the prison officers was convenient and not necessary.

To the contrary, the findings were consistently that the use of the CS gas device was reasonable and necessary in the circumstances.  So for that reason we submit that textual difference between sections 152 and 157 goes nowhere.

In paragraph 30 of the appellants’ submissions they offer their third reason in relation to the construction of section 152(1).  There they say the Court of Appeal’s reasoning was to allow the Executive to dispense with the penal provisions of the Weapons Control Act in the absence of an exemption in that Act itself, contrary to this Court’s judgment in A v Hayden.  To this I reiterate that it formed no part of the primary judge or the Court of Appeal’s reasoning and it is not our submission - we do not contend that there is a power to dispense.

But if what is really meant by the appellants’ submission is that the Executive by the Director plays a role in determining the scope of the duty of a prison officer, and that is our submission because that is precisely what the language of section 12 of the Weapons Control Act allows for, it does not require a legislative permission for a prison officer to use a prohibited weapon.  The question is whether or not the prison officer was acting in the scope of his or her duty.

The fifth and final reason offered by the appellants on this point is at paragraphs 32 and 33 of their written submissions – this is the point where they contend that the power in section 152 is ancillary.  That submission might have had more force if the statutory arrangement that we were dealing with was of the familiar kind where there is an enumerated list of powers, the final of which is all things reasonable and necessary to fulfil them.  But that is not the arrangement we are looking at here.

What one sees in Part 8, and in particular in sections 151 to 153, is the assignment of mandatory functions in 151 and immediately following that, in section 152, power that is “necessary or convenient” to perform those functions.  For that reason we say it is not apt to characterise section 152 as ancillary.

So that takes us to ground 2.  Could I ask your Honours, please, to go to section 153 of the Youth Justice Act.  The contention in ground 2 is that the prohibition in section 153(3)(b) effectively covers any use of force against youth detainees, including any use of force to maintain order and ensure the safe custody, as referred to in 151(3)(c). 

May I ask your Honours to note the following things about the structure of 153.  Firstly, 153(1) assigns to the superintendent a function in the same way that section 151(3) does.  Secondly, subsection (2), by reference to the words “For subsection (1)” makes clear that the conferral of power in subsection (2) is for the purpose of the function in subsection (1) and then subsection (3) places limits on the exercise of power in pursuit of that function. 

KIEFEL CJ:   Is discipline something less than order?

MR McLURE:   Yes, it is.  It is something different to order.  I will develop that in a moment.  So one immediate barrier to the argument raised by the appellants is that the function – the power to fulfil the function conferred on the prison officer is not that function in section 153(1) because what section 157(2) makes clear is that the power that is being conferred on prison officers who are directed to assist is the power to perform the function in 151(3)(c), not the power in 153(1).

EDELMAN J:   Section 153(1) is not really a power.  It is expressed in terms of a duty; very different from the powers that are expressed in 152.

MR McLURE:   I am sorry, was your Honour referring to 153(1)?

EDELMAN J:   Yes.

MR McLURE:   Yes, I say that is a function, not a power.  The power is in 153(2).

EDELMAN J:   It is not really a function or a power.  Section 153(1) is in the language of a duty.

MR McLURE:   Well, “function and duty” in this sense could be used interchangeably but whether it be accurately described as a function or a duty, the same terminology is used, for example, in 151(3)(c).  We accept that to the extent that it is a function it is a mandatory one and therefore aptly described as a duty but, in any event, we do press the contention that 153(2) is a conferral of power and the power is directed to the function or duty in 153(1).  But that function or duty in 153(1) and the power that attaches to it is not that which is being delegated by 157(2).  That is one reason why the restraint in section 153(3) does not apply to any exercise of power to deal with the duty or function in 151(3)(c).

KIEFEL CJ:   Why is the delegation under 157(2) necessary if the prison officers have all the powers that you have mentioned before?

MR McLURE:   It is not, if our contention about that is accepted.

KIEFEL CJ:   It is not necessary?

MR McLURE:   It is not necessary because ‑ ‑ ‑

KIEFEL CJ:   So, out of an abundance of caution, is it, to overcome any suggestion about prison officers acting without authority?  But how could that be so if, on your submission, they can act under the direction of the Director of Correctional Services?

MR McLURE:   That is right, your Honour, on our contention in the notice of contention, section 157(2) is superfluous in terms of supplying power.

KIEFEL CJ:   That is not a very happy way to approach interpretation.

MR McLURE:   Well, it is not the first example of provisions providing overlapping conferral of power.

KIEFEL CJ:   Is it your submission that the powers obtained from 151(3)(c) are in addition to those which they might have as prison officers?  The powers delegated under 151(3)(c), could they potentially be wider than those of prison officers in the sense that the superintendent would have a power, one would think to direct employees of the detention centre and other officers of the detention centre to do things in order to maintain order?  Do you say that the prison officers obtain those kinds of powers under a delegation of 151(3)(c)?

MR McLURE:    Your Honour, that would be one aspect of the conferral of the ‑ ‑ ‑

KIEFEL CJ:   That might better explain 157(2).

MR McLURE:   Quite so.  So can I move then to how one reconciles whether there ‑ ‑ ‑

KIEFEL CJ:   Well, if this is a larger topic we might leave it for after lunch.

MR McLURE:   May it please the Court.

KIEFEL CJ:   We will adjourn until 2.15.

AT 12.43 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ:   Yes, Mr McLure.

MR McLURE:   Your Honours, can I close off the discussion in relation to section 157.  To an extent this may be repeating something I said before lunch, forgive me.  One thing that section 157 does do is it establishes that the Director may lawfully direct his subordinates to assist superintendents with youth detainees and youth detention centres.

KIEFEL CJ:   Do you say that because, although it is worded in the way that it is, the superintendent of a detention centre could not actually require or even probably request a police or prison officer?

MR McLURE:   Certainly the first part, your Honour.  The superintendent could not require, in the sense of compel – he could ask.  Then a question would arise if section 157(2) was not there, could the Director lawfully set as the scope of the duties of one of his subordinates, providing assistance to a superintendent of a youth detention centre?

KIEFEL CJ:   So if the words “if called upon” are not “if directly called upon” it is called upon by the Director?

MR McLURE:   Yes.

KIEFEL CJ:   The Director of Corrective Services.

MR McLURE:   Or his subordinates.  That is one thing that 157 does do.  It might also confer powers that prison officers do not otherwise have.  An example of that is the one that your Honour the Chief Justice mentioned before lunch.  It does, by its terms, 157(2), confer a power to use force, for the reasons I explained before lunch – that is, it confers the power to fulfil the superintendent’s function under 151(3)(c). 

But the most pertinent question about section 157 is whether it confers a power which is narrower than the power that the prison officer otherwise had under section 9 of the Prisons Act and the way in which the appellants contend for that proposition, as I said before lunch, is to try to draw an implied restriction from section 66 of the Prisons Act or, alternatively, the Anthony Hordern point about section 153 and it narrowing whatever conferral of power there is in 152 to fulfil the 151(3)(c) maintenance of order and safety function.  So I have dealt with the section 66 point.  I will deal with the 153 point.

GAGELER J:   Were you going to deal with section 9 again?

MR McLURE   Only in the sense that it is in our notice of contention, and it is an alternative proposition which only arises if the Court rejects our submissions about what 153 does not do.

GAGELER J:   I was just wondering what you would say is the best authority on the common law power of a police officer?

MR McLURE:   Woodley v Boyd.  Your Honours will find that in volume 4 of the bundle of authorities at tab 19.  It is a decision of the New South Wales Court of Appeal.  The passage that we draw attention to is in the judgment of Justice Heydon at paragraph 37 and, in particular, if your Honours are looking at page 751 of the book, at about point 3 on the page you will see his Honour referred to Lindley v Rutter.  We would invite attention to the first four lines of the extract from Lindley v Rutter. 

So, your Honours, I am dealing then with the appellant’s contentions about the narrowing effect of section 153 on the power conferred in section 152.  So the starting premise of this debate is that section 152(1) confers a power to do things that are necessary or convenient to maintain order, ensure safety and protect people, and our submission is that that by its natural and ordinary meaning would include a power to use force to stop people including detainees but not limited to detainees who pose a threat to order and safety or where force is needed to protect people.

Section 153 is textually and conceptually different because it is dealing with the maintenance of discipline.  Can I say at the outset that we recognise that there will be overlapping effects in the discharge of those two duties, but that is not to say that they completely overlap.

GORDON J:   Do you mean two duties being order and discipline?

MR McLURE:   The two duties being on the one hand order – to maintain order, safety and protect people on the one hand, and discipline on the other.

EDELMAN J:   Is discipline not a subset of order, as Justice Gordon put to Mr Walker?

MR McLURE:   Our answer to that is that they are distinct concepts, but I accept that some disciplinary effects will maintain order and I accept that some effects designed to achieve order, maintain safety and protect people will also have a disciplinary effect.

EDELMAN J:  Can you give an example of a discipline measure that is not concerned with order?

MR McLURE:   Yes, a detainee failing to adhere to the detention centre’s rules in relation to dress. 

KIEFEL CJ:   Could it be that “discipline” is more addressed to an individual and “order” to the wider collection of individuals in the centre itself, so that the premise being that if you maintain discipline by the powers - if you maintain discipline with respect to the individual you should achieve order more generally

MR McLURE:   Yes, we adopt that and equally our submission is that discipline is - the use of force in relation to discipline is, in effect, directed at a detainee, whereas maintenance of order, ensuring safety and protection of people may involve the projection of force on people other than detainees. 

The point against that that was put by Mr Walker is that section 153 can deal with the discipline of detention centre staff.  Our submission is that that ought not be adopted if for no other reason than because it is inconceivable that the Parliament conferred a power on the superintendent to use force in 153(2) to maintain the discipline of detention centre staff.  Our submission is that conferral of power can only have been understood as being directed to detainees. 

Now, not necessarily in order of importance, but can we offer your Honours these submissions in support of the contention about why the order and safety power should be regarded as distinct from – even if there is some degree of overlap with the discipline power.  The first is, as the Court of Appeal held, there is in this milieu a recognised distinction and we cite in support of that proposition Binse. 

Could I invite your Honours to look at that decision, please.  It is in volume 4 of the joint book of authorities at tab 14.  If your Honours could go to page 382 at about point 15 on the page, in the paragraph beginning “On 2 June 1995” your Honours will see there the recitation of the facts concerning the force that was used on the appellant.  Relevantly, about the third line, near the end of the line “confined to his cell” down to:

ankle bracelets which were not connected to the belt.

So this was the use of force that the appellant complained of. If your Honours then turn over to page 384 of the report, 526 of the book, at about point 17 on the page, your Honours will see the extract of section 20 of the Corrections Act (Vic). We would urge your Honours to view that provision as being sufficiently similar to the section 151(3)(c) function and its accompanying power, that is, a function and power to maintain safe custody, and the accompanying duty to take all reasonable steps to ensure that occurs.

So the question that the appellant in that case presented was whether or not the steps that were taken against him were a legitimate exercise of the power in section 20, or instead were merely punishments. What Justice Charles said - I am looking now at page 391 of the report, line 4 - is he accepted that those kind of restraints that the appellant complained of could not be used as a punishment – partially accepting the appellant’s contention.

However, what his Honour then went on to do was consider whether or not those restraints were justified by the section 20 power, the power to maintain safe custody. That proposition was determined against the appellant and in favour of the detaining authority. One finds that in the report at page 392, at about point 8 on the page, the paragraph which begins “The question then becomes whether”.

The conclusion reached at about point 15 on the page, halfway through the paragraph beginning “Section 20(1) imposed”, your Honours see about halfway down that paragraph his Honour concludes:

I do not doubt that implied in these provisions is a power to impose restraints of the kind herein questioned, for the purpose of –

et cetera.  So what that authority demonstrates, we submit, is the recognition of a distinction whereby a detaining authority conferred with a power like the one in 151(3)(c) could take measures that are designed to ensure safe custody, maintain order, as the language is here, but which could not take those same steps if the purpose of it was to punish.

Now, we submit that fundamentally, although not exclusively, section 153 is concerned with setting and maintaining standards that are designed to achieve a high degree of adherence to rules and standards and enables punishment for deviation from those standards, whereas in contrast what section 151(3(c) is concerned with is the safety and protection of people and property.

GAGELER J:   How do you deal with section 153(5)?

MR McLURE:   That, I accept, is dealing with the order and safety power.  It inaptly sits within section 153, but it is not directed to discipline in the sense that the isolation power could not be used as a punishment for a deviation from rules and expectations.  What that power is directed to is, as it expressly says in subsection (5), to protect safety and maintain order and security. 

One textual factor which supports – well, not just textual, but conceptual factor which supports the submission that I am making is it may readily be understood that where there is a serious threat to the safety of people and property in a detention centre that it may be necessary to use physical violence in order to end that threat, yet if the appellants’ construction of section 153 is accepted, that would be prohibited because 153(3)(a) forbids striking or any other form of physical violence. 

So, for example, it would be unlawful for a detention centre staff member or someone called to assist under 157 to use a degree of force that passes over into the characterisation of striking or physical violence to stop that person from carrying out a threat to kill another person within the detention centre.  It would equally forbid the use of that kind of force in order to restrain a person without applying handcuffs, bearing in mind that section 153(4) gives that power, that is, the power to use handcuffs, but not a power if one reads it in the way that the appellants contend for ‑ ‑ ‑

GORDON J:   Or similar device.

MR McLURE:   That is right, but does not confer a device meaning something other than striking or physical violence.  So our submission is that section 153 would have insensible effects if it was read in the way that the appellants do in terms of the superintendent discharging his mandatory function to maintain order, safety and protect people within the detention centre if it was limited in the way that the appellants contend. 

GAGELER J:   What do you say discipline is?  What is discipline, as distinct from order?

MR McLURE:   So the maintenance of discipline, we submit, is maintaining a standard ‑ a high standard of behaviour which involves adherence to rules and expectations. 

EDELMAN J:  Sounds like the definition of order. 

MR McLURE:   Your Honour, I accept that there can be overlap, but the reason for the separate treatment of discipline is it carries with it the power to punish. 

GAGELER J:   Is subsection (3) concerned only with punishment, is that what you are saying?

MR McLURE:   That is what we contend.  Whereas ‑ albeit I accept again that there will be a degree of overlap between discipline and order, when one reads order in the context of 151(3)(c), that is the context being ensuring “safe custody and protection” of people, our contention is that is dealing with safety of people and property and maintaining order to ensure the safety of people and property, whereas discipline is dealing with something narrower than that. 

GAGELER J:   It is effectively corporal punishment, is it not?

MR McLURE:   Well, what is set out in 153(3) would be corporal punishment, and it is forbidden.  The two other submissions we offer in

relation to the correct construction of section 153, to the extent that there is repetition in this, is that section 153 involves the taking of measures, including potentially the use of force against a person, and we say the relevant person being a detainee, whereas what occurred here was not the projection of force to the detainees at all, it was the projection of force to Mr Roper which had an incidental effect on them.

Then, finally, the submission we offer in relation to the correct construction of section 153(3)(b) is the ejusdem generis approach to the meaning of the words “other substance”.  In context where what is being referred to is “dosing with a medicine, drug”, we submit substance should be read in the same way.  Our submission is that one would not associate CS gas with a medicine or drug, it is an irritant designed to inhibit a person’s ability to do physical violence.  Our submission is that is not what 153(3)(b) is directed to.

That just leaves the same point we have raised on the notice of contention.  So we rely on section 9 as conferring a power that is not restrained by section 153(3)(b) in the way that the appellants contend for.  That submission only arises if the Court accepts the appellants’ contention in relation to section 153(3).  One reason that the Court would accept that section 9 of the Prisons Act confers that power and is not removed from prison officers directed to assist under section 157(2), is firstly section 9 by its text does not provide for that.

Secondly, the circumstances in which these kinds of powers – that is powers to use force in emergency arise ‑ do not readily promote having a situation where a prison officer deciding whether to use force – or a police officer for that matter – deciding whether to use force in circumstances of emergency is required to go through the mental calibration of deciding under what particular legislative regime may I be using force in these particular circumstances. 

Section 9 confers a power to use force within the ambit of the law and our submission is therefore that provision should have its own independent effect.  Your Honours, we otherwise rely on our written submissions, unless I can be of any other assistance.

KIEFEL CJ:   Thank you, Mr McLure.  Yes, Mr Walker.

MR WALKER:   Your Honour the Chief Justice asked my friend about the role of section 6 in the respondent’s position.  In my submission, the Court did not really obtain an answer to that.  I want to couple that fact with what has most recently been said about section 9 in light of what was also recently said, namely, that the forceful activity that harmed our clients was not directed at them.  Police do not have powers or privileges to cause collateral damage, to push aside people in a crowd thereby injuring them in order to apprehend an escapee.

Or, at least, that does not exist at common law, and I do not know of any statutory provision.  There is none relevant in this case because, as we understand it, it is the common law here invoked by citing from Lindley v Rutter [1981] QB 128 via Justice Heydon’s paragraph 37 in Woodley v Boyd [2001] NSWCA 35 upon which our learned friends build this part of their argument, which we think comprehends maybe section 6, but certainly section 9.

This has nothing to do with powers of arrest with which the first part of Justice Heydon’s expository dictum is concerned.  And it has nothing to do with the prevention of crime.  There are no findings, as my friend frankly said in answer to a question from the Bench before lunch.  There are no findings in the courts below by which, contrary to what has just recently been said by the respondent, this was in fact tear gas, CS gas directed against the appellants to prevent them from committing some crime.

That would have raised, had that ever been the way in which the matter was framed, issues that would not have, at first sight, appeared favourable to the respondent, namely, if somebody is destroying property in their cell, that is something which justifies the administration of CS gas.  That was not explored.  There are no findings. 

It is totally at odds with what we understand the position of the respondent to be, most recently enunciated – this was directed against somebody else, and it happens because of the confined space, and the nature of the substance administered through the aerosol process, that those who breathe in the vicinity will also suffer the effects.

It is for those reasons, in our submission, that section 9 is a dead end.  There are no police powers which were shown to have been exerted in this case against my clients.  And I stress:  I do not understand it and have not heard from our friends and have not read in their argument what would be a very interesting piece of new jurisprudence, namely, that a policeman can make a decision to treat people who are not in the process of being arrested or escaping from lawful custody, treating them as justifying what would otherwise be torts committed against other people altogether, a purely instrumental use of those other people to get to the culprit.  That is not our law and, in our submission, I do not think that is an argument deployed against us.

So it simply means that section 9 goes nowhere because there is no identification of these officers ever going through the mental processes which are a common law prerequisite for the exertion of power.  It is, according to the exigencies of the situation, as apprehended by the constable, which will make lawful or not the headlock, and there has to be some thought by the constable, you cannot make it up after the event.

So section 9 goes altogether out.  We think, by parity of reasoning, so does section 6.  My learned friend, in paraphrasing section 6, at one stage referred to the Director having the control of all prisoners.  The word “control” appears in a different part in that sentence, in section 6(2).  What he or she has is the custody of all prisoners.  There is not a plenary grant, a right of life and death, so to speak, a dominion over all prisoners simply because they are prisoners given to the Director.  The custody is a regulated custody.  It is regulated by the law of tort, by such criminal offences as exist of relevance in the area and, of course, express statutory provisions to be found in the Prisons Act.

With respect to detainees, to which section 6(2) does not speak at all, then one does not find the Director being given any powers at all except as may be refracted through directions by the Director to the superintendent.  I say refracted through, because it is still for the superintendent to form an opinion and, with respect, it should not be understood that the Director can direct the superintendent what to think. 

The superintendent, who is appointed by the Director – that is, who is a different person from the Director ‑ is given the responsibility under the Youth Justice Act for the welfare et cetera of detainees and the good order et cetera of the centre.  His or her opinion triggers the availability of certain powers or the lifting of certain express limits on the exercise of powers.  I have drawn those to attention in‑chief.  My friend has gone to some of them.  Section 153 contains important ones.  No one I think has argued, “We do not apprehend this Court has to deal with the startling proposition that the Director could tell the superintendent what opinion to form”. 

So we are left in relation to Director’s directions, upon which a deal of our learned friend’s address turned, with respect to the use of a weapon.  Unless the use of what would otherwise be a prohibited weapon in the detention centre can be seen to be authorised somewhere, then there can be no question, as our learned friend has frankly accepted, of a power of directions to dispense from that.

So it turns out that the argument about direction simply says the Director can tell the prison officers to do something, namely use tear gas, notwithstanding the superintendent could not do so himself at all.  In other words, the powers of the assistance, of those lending assistance, with delegated powers of the superintendent, concurrently include greater powers than the superintendent could ever afford.

Now, one can imagine a statutory provision that was posited upon the basis that the superintendent might form in an emergency an opinion that powers greater than those the superintendent possessed were needed to be exercised, enabling the superintendent to call upon, to call for assistance from those who had greater powers, but that is not what section 157 does, and there is no hint of the superintendent needing to form an opinion that his powers are inadequate to the emergency. 

There is nothing in the point which is correct, that there is no obligation or duty, statutory duty, in section 157(2), on a police officer or a prison officer to respond positively to a call by the superintendent.  No doubt the fact that both the police force and the prison administration, if I can use this word, disciplined bodies with hierarchies of direction, means that Parliament could be confident that if those on the spot thought things could be done and should be done they would be done.

But what 157(2) does, by no means in otiose fashion or unnecessarily, or for more abundant caution or superfluously, to adopt some of the language of our friend, what it does is to make it clear that persons who are not given authority elsewhere in the Youth Justice Act may behave themselves in certain ways, sanctioned by the State, by the Territory, in what is called an emergency situation in these special places of what I will call asylum for young alleged or convicted offenders.

In our submission, the arguments to the contrary ought be rejected, not only for the reasons we have already mentioned, but because it makes the notion of assistance a very odd one indeed, that the assistance is no longer ancillary but, as it were, is a domineering or paramount exercise beyond that which the superintendent could do himself.

One then remembers that under section 12(2) of the Weapons Act that it is in respect of the weapon, here CS gas, that there is authority given.  And for the reasons we have put, it is quite impossible to see that by Director’s directions, or by section 9, or in any other way, the prison officer called upon and responding to assist by reason of the superintendent forming a view, thereby carries with him weapons which are available only for use in the prison.  That is why section 62 of the Prisons Act really cannot be put to one side, as our learned friend, in effect, did.  Of course, it is where one looks to a specific understanding of the way in which prison officers may use weapons.

I think in answer to one of your Honour’s questions my learned friend suggested that the notion of the superintendent calling for assistance is really more apparent than real, that it would be the Director.  In our submission, the Director would be proceeding otherwise than in accordance with law if the Director were to take upon himself the role of calling upon a police officer or prison officer to assist in an emergency situation in a detention centre.

The differences that sections 151(1) and 151(2) make clear between the two personages in question obviously require the person with the subsection (2) of section 151 responsibility, namely the superintendent, to be the person who calls or not for assistance and, in our submission, it would defeat the notion of those officers with their zones of responsibility if it could simply be said the one person at the top of the hierarchy can, in effect, compel by his or her own mental act the outcome for all positions to which directions may be given.

It has to be a call by the superintendent.  It is unrealistic, and one should not seek to construe statutes by reference to unrealistic and extreme positions, but if there were a disagreement between a superintendent and a Director as to whether the superintendent needed assistance, then what this statute says, it is the superintendent who will make the call, or not.

Whether that is career destroying is not to the point.  That is what the legislature has said.  This cannot be read, in our submission, so that “if called upon by the superintendent” translates to if the Director thinks the superintendent should call upon.  In reality, of course, in practically every case that may be imagined, officers with surely the same aim will no doubt confer and agree.  There is no suggestion that there is any difficulty of that kind.

The argument concerning the relation or not of the concepts or words of order – or good order and discipline we have largely joined issue, so to speak.  Can I respond in particular, however, to the proposition that emerged during argument from my friend to the effect that section 153 is concerned to authorise but limit the extent of corporal punishment.  That, in our submission, is a very remarkable submission because it turns upon the words “reasonably necessary”, that is, the statutory stipulation of the limit of the force that could be used to maintain discipline – see section 153(2).

Now, I realise that “spare the rod, spoil the child” may not be completely exploded as a civilised maxim, but this is a bit odd, that under “reasonably necessary” we find ourselves talking and talking only about corporal punishment.  It would be, in our submission, a most odd version of subsection (4) of section 153 to regard it as regulating the administration of punishment.  That empowers temporary restraint for purposes of protecting from self‑harm or the safety of another, which are protective, not punitive.  Subsection (4) obviously shows, therefore, that section 153 – whatever else may be said – is not wholly concerned with the administration of punishment.  As I say, we rather submit that the force that is reasonably necessary simply does not include any question of punishing by violence. 

My learned friend went so far as to say that discipline carries the power to punch.  Self‑defence might, defence of another might, and a good thing to, but not discipline.  There is no sign of that anywhere in this text, and it does not answer the test of commonsense.  You do not discipline people by punching them.  It would be all the other way around.  You would be disciplined if you punched, be you detainee or officer.  As I say, outside the doctrine of the common law of self‑defence, or defence of another, which has nothing to do with this case and casts no useful light on an interpretation of section 153 or the related provisions.

My learned friend took you to Binse v Williams.  The passages you were taken to, in our submission, reinforce what I tried to anticipate in‑chief – simply that, if anything, that is a decision that rather supports our understanding of the relation of the maintenance of discipline and the maintenance of order.  There is certainly nothing in Justice Charles’ reasons which supports the notion that discipline means punishment, including in section 153 of the Territory Act, that there is nothing going anywhere near that in that context.

Finally, we respectfully adopt as a persuasive reading of at least part of the aspects of relation between 151(3)(c) and 153(1), that advanced by the Chief Justice, namely that although this may not be universally applicable, by and large discipline comes to rest with individuals, more than one perhaps, but it still comes to ground with an individual, and if sufficiently successful one has the overall, the corporate order, and that is, in our submission, a satisfying approach to the way in which 151, 152 and 153 appear in this part of the Act and the way in which they are expressed.  In particular, it shows the relation of discipline to order, which enlivens the Anthony Hordern’s argument to which we cleave.  May it please the Court.

KIEFEL CJ:   Thank you.  The Court reserves its decision in this matter and adjourns to 9.30 am on Friday, 20 March in Canberra.

AT 2.56 PM THE MATTER WAS ADJOURNED