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
[2019] HCATrans 163
[2019] HCATrans 163
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Darwin No D1 of 2019
B e t w e e n -
JOSIAH BINSARIS
Applicant
and
NORTHERN TERRITORY OF AUSTRALIA
Respondent
Office of the Registry
Darwin No D2 of 2019
B e t w e e n -
KEIRAN WEBSTER
Applicant
and
NORTHERN TERRITORY OF AUSTRALIA
Respondent
Office of the Registry
Darwin No D3 of 2019
B e t w e e n -
LEROY O’SHEA
Applicant
and
NORTHERN TERRITORY OF AUSTRALIA
Respondent
Office of the Registry
Darwin No D4 of 2019
B e t w e e n -
ETHAN AUSTRAL
Applicant
and
NORTHERN TERRITORY OF AUSTRALIA
Respondent
Applications for special leave to appeal
KIEFEL CJ
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 16 AUGUST 2019, AT 12.25 PM
Copyright in the High Court of Australia
____________________
MR B.W. WALKER, SC: May it please your Honours, I appear with my learned friends, MS K.E. FOLEY and MR J.A.G. McCOMISH, for each of the applicants. (instructed by North Australian Aboriginal Justice Agency)
MR D.A. McLURE, SC: May it please the Court, I appear with MR T.J. MOSES for the respondent in each matter. (instructed by Solicitor for the Northern Territory)
KIEFEL CJ: Yes, Mr Walker.
MR WALKER: Your Honours, this is, it is true, a case which turns on the interpretation of a statute, or several statutes. It is also true that it turns upon the interpretation of provisions that have since, as to the relevant statutes, been the subject of some amendment. Dealing with that last point immediately, as we have spelt out in our written reply, none of the iterative legislative attempts to reconsider the policy questions concerning the treatment of juveniles in detention facilities have removed the central and dispositive questions of statutory interpretation.
As to this being just a statute, we would respectfully urge that the subject matter of the statute is as close to parens patriae as one gets. This is not incidental mere regulatory legislation. These are provisions which by enactment impose obligations, grant authorities and spell out the extent of powers, including with respect to the exertion of violent means, by the State through its officers against juveniles in the care of those officers.
I ought to note, as your Honours will have seen, that it is of some importance to observe that our clients are not in any sense, statutory or otherwise, prisoners to be treated as prisoners for the purposes of discipline by prison officers. Persons of their age can so acquire that status which carries in its train certain differences in the authorities that may be exerted with respect to violent force, but our clients were not.
That in itself highlights the considerable policy importance of general public significance and for the legal system with respect to the proper understanding and application of statutes that regulate such an important matter as the exertion of force against detained juveniles.
Could I take your Honours, please, to some of the critical provisions. It is common ground of course that the CS gas, the modified tear gas in question, is, but for the availability of so‑called exemptions, a prohibited weapon, that is, it would be a crime to use it against our clients. Could I pick up the matter, if I may, your Honours, at page 352 of the book.
KIEFEL CJ: What is the nature of CS gas? What kind of chemical is it?
MR WALKER: I promised myself I would learn to pronounce its name. This is almost facetious an answer to the Chief Justice. It is o‑chlorobenzylidene malononitrile.
KIEFEL CJ: Does it have a common name?
MR WALKER: CS is the only way in which I have seen it described – or tear gas. It is that last description that I have to say without any direct knowledge, as I understand it it means that it works considerable effects upon, among other things, mucous membranes.
KIEFEL CJ: Yes, thank you.
MR WALKER: It can and should be treated as disabling, if not permanently damaging. It is plainly one of those devices which, in this case, involve chemicals that have an effect biologically on the human body in the same way as sedatives of a kind that zookeepers might shoot into a wild lion. It might be said to be a device for the preservation of order by a forced dose.
In the Youth Justice Act as it was, section 151 on page 352 is of course a critical one. Your Honours will see that with respect to persons like our clients, quite a different form of words and indeed scope of stewardship is imposed. I do not need to read it but you see subsection (2) and subsection (3). Subsection (3)(c), which is of course significant for this case, involves the maintenance of order as one of the mandatory functions of the superintendent. Section 152(1) sufficed for the Court of Appeal to dispose of our cases.
EDELMAN J: Is it really the whole of 152(1) that gets picked up by 157(2)?
MR WALKER: No.
EDELMAN J: Or is it just a necessary aspect?
MR WALKER: Your Honour is there asking about, I think, the delegation to a prison officer.
EDELMAN J: Yes.
MR WALKER: I do stress a prison officer, not a police officer in our case. There are differences between the powers of police officers and prison officers with respect to the use of otherwise prohibited weapons. In a nutshell, police officers, as you might expect, have a far wider geographical range than a prison officer does with respect to permitted use of what would otherwise be a prohibited weapon.
The delegation is the delegation of the powers of the superintendent, and then comes a critical word, “necessary”, to perform the superintendent’s functions under 151(3)(c). So, whatever else may be said about prison officers being exempt from the prohibition on the use of weapons, it cannot be said that they have under 157(2) any further powers than the superintendent possesses.
EDELMAN J: I think what I am asking is: do they have less power? In other words, does “necessary” constrain the expression “necessary or convenient” only to those aspects of the powers that are necessary?
MR WALKER: It is not a point that has played a part in the argument but the proper answer to it is yes. I doubt whether factually there is material in our cases to distinguish between “necessary” and “convenient”, bearing in mind that convenience is not a low‑level sense of “expedient” but rather appropriate or fit. But certainly the use of the very important phrase which is at the heart of our main point – “necessary or convenient” on the one hand in 152 and the use of the word “necessary” in 157(2) raises a matter of interpretation contextually. That would be necessary to be addressed, and an important matter bearing in mind ‑ ‑ ‑
EDELMAN J: It may not necessarily be adverse to you but at the moment the difficulty I have is whether one even needs to interpret or engage with what is meant by “necessary or convenient” in the context of this regime if 157(2) only allows the exercise of powers that are necessary.
MR WALKER: Yes, and that are the superintendent’s powers.
EDELMAN J: Yes.
MR WALKER: It is the latter that is really at the heart of it. Whatever the connective word, it is only a delegation of the powers of the superintendent. In theory at least it is then a subset of those powers. I just raise that linguistically, that is, it is only those powers of the superintendent which are necessary to perform functions.
EDELMAN J: I see, so you ask first what is necessary and convenient and then you turn to the question of necessity.
MR WALKER: That is one sequence. We would prefer, with respect, to ask first what are the powers of the superintendent granted by the Act and which of those are necessary to perform the particular functions under section 151(3)(c). It is the maintaining of order that we understand to be the focus of the inquiry. Yes, by that means one would then come to section 152(1). At least on the face of it, yes, there is a theoretical possibility that there may be powers in the very broad generality of those that are necessary or convenient for the performance of functions that go beyond those that are necessary for the performance of the function under 151(3)(c). In a sense that must be obvious because 151(3)(c) is only part of the functions.
Under section 153(1) the word “discipline” is used. The Full Court, in our submission, has raised a quirky proposition that discipline and order can and should be, as it were, dissevered. That is simply not correct. Discipline is one of the ways, not the only way, in which order may be maintained. Then one comes, bearing in mind that it is on any view of it a discipline maintenance that was being sought to be effected, that is, to control the unruly one, under section 153(2) and (3) there could not have been plainer and more salutary restriction of the actual forms of violence that could be exerted.
It is for those reasons, in our submission, that it is a plain Anthony Hordern point or, if you like, the general does not detract from the special. Whatever else can be said about 152(1), read either “necessary or convenient” or just “necessary” by dint of 157, whatever may be said about that it could not possibly, with respect, justify a reading overall in these cognate provisions of the statute concerning the functions, the powers and the specific question of the exertion of violence that is forced. It cannot possibly be read as meaning that under the heading of “necessary or convenient” or query “necessary” those things can be done that exceed section 153(3).
It is to be remembered that there is another phrase in section 153(2), namely, “that is reasonably necessary” – a very familiar expression in the common law as well as in many statutes controlling the exertion of force on behalf of the State for the purposes of public order, police classically.
It is for those reasons, in our submission, that the reasoning below has been misframed and has left open, indeed would appear to render the law in the Northern Territory that that class of powers called “necessary or convenient” can extend according to a judicial retrospective view of what the judges might like to call a riot as being the legal authorisation to exert violence beyond what the legislature has restricted for the purpose of maintaining discipline.
There is a subsidiary point which we need to address in the Full Court’s reasoning which remarkably seeks to remove from application to our case of the insertion of CS canisters in order to envelop people with the aerosol that contains the chemical which they must breathe in, thereby administering the chemical into their bodies, somehow dissevering that from the statutory notion of enforced dosing with a medicine, drug or other substance, with reference being made to other provisions and the obvious other possibility, bearing in mind the function under 151(3)(a) and (b) and (e) for the giving of consent to medical treatment, for example. There is nothing therapeutic about anything that is listed in section 153(3) we would invite your Honours to consider:
striking, shaking or other form of physical violence –
not coincidentally starts the list. In our submission, the:
enforced dosing with a medicine, drug or other substance –
is exactly the kind of conduct with which the Court will be familiar, if not in our communities, in other communities, and topically; namely, ensuring that somebody’s body absorbs one way or the other, whether by injection, ingestion or breathing a chemical which will either affect cognitive or other physical faculties for the purpose of control. The chemical dosing of prisoners is obviously a matter of great concern to anyone who belongs to the equivalent of the Howard League.
In our submission, that part of the case can be, as it were, for special leave purposes, regarded as certainly apt for ancillary grant of special leave in order to enable the larger point to be attended, namely, whether the proper approach to these statutory provisions which continue in their essence to govern and which are not idiosyncratic to the Territory in their general pattern of scheme, whether this has been correctly determined so as to allow under a general provision, necessary or convenient, the infringement of limits for the specific code of conduct which in fact is the kind of conduct that occurred in this case.
In our submission, the self‑evident importance for the rule of law and for the maintenance of decent standards with respect to the treatment of juveniles in the care of the State makes it appropriate for this Court, particularly with respect to the problematic aspects of the Court of Appeal’s reasoning, to grant special leave.
EDELMAN J: You would not say that the usual circumstance of enforced dosing with a medicine or the usual connotation of that idea would be the application of tear gas.
MR WALKER: But any aerosol – the usual one, I suppose, is ‑ ‑ ‑
EDELMAN J: Forced medicine.
MR WALKER: ‑ ‑ ‑ which could be ingestion, injection or inhalation. Many medicines are conveyed by aerosols with devices to ensure that people breathe them. One way you can ensure people breathe something is in an enclosed space to fill the atmosphere with the relevant aerosol. Whether you are spraying gases into a closed chamber or whether you are injecting a sedative into a vein, you are in both cases dosing a person – dosing – that is, deliberately administering a substance in order to get a biological effect.
Whether it is usual or not, I suppose, really depends upon how widely it would be regarded as effective, efficient or cost effective simply to make sure that everybody in a room has to breathe a substance or whether you selectively put a face mask only over some of them. In our submission, that could not possibly be the reason why in the one case it is not dosing and in the other case it is. If anything, that would be a rather perverse opening of less careful or calibrated techniques precisely when it is clear that what the legislature is doing is seeking to ensure that there is care and regard for the different position of both the officers in question and the juveniles in question.
Your Honours, it is for those reasons, in our submission, that so far as the reasoning of the Court of Appeal is concerned this is a case which, as to its subject matter and as to the putative difficulties in the reasoning against us, justifies special leave. The nature of these statutory provisions, I stress, are not peculiar or singular; neither have they been rendered moot by the passage of legislative amendment. If it please the Court.
EDELMAN J: If there were a grant of special leave, what do you say the consequences would be? It would go back for a reassessment of all of the damages or would it just be an assessment of damages?
MR WALKER: Only some, your Honour.
EDELMAN J: Just an assessment of damages in relation to these particulars.
MR WALKER: To tear gas. That is right. Just that, your Honour.
EDELMAN J: Would aggravated damages need to be reassessed?
MR WALKER: I do not think there is any more evidence necessary but I think that would fall to be determined.
KIEFEL CJ: The exercise would need to be.
MR WALKER: Yes.
KIEFEL CJ: The Court will now adjourn until 2.15.
AT 12.44 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
KIEFEL CJ: Yes, Mr McLure.
MR McLURE: Your Honours, the first proposed ground of appeal focuses on section 12 of the Weapons Control Act. Could I ask your Honours, please, to go to that at page 406 of the application book. It is common ground, as Mr Walker said, that CS gas is a prohibited weapon and dealt with in section 6. The question raised by the proposed first ground is whether or not the prison officer was entitled to the exemption from the offence provision in section 12(2). That turned on whether or not the prison officer was acting in the course of his or her duties.
EDELMAN J: As a prescribed person.
MR McLURE: As a prescribed person, and the item having been supplied to him for the performance of his or her duties. We would ask your Honours to note two things about that provision. First is that neither section 6 nor section 12 confers power. What section 12(2) does is provide an exemption from the commission of an offence. Secondly, in order to qualify for the exemption in 12(2), there is no requirement for any further legislative intervention. It is predominantly a question of fact about whether the prison officer was acting in the course of his or her duties, and that is how the matter was determined here.
The way the applicant puts the argument is to then draw in section 62 of the Prisons (Correctional Services) Act, which your Honours will find at page 403. Your Honours can see in (2) what that does is provide permission for weapons to be possessed – not just weapons:
weapons and articles of restraint –
to be possessed and used at a particular place, namely:
a prison or police prison.
Now, what the applicant contends is that the construction that ought to be derived from 62(2) is in addition to the permission a prohibition against using weapons or articles of restraint anywhere else other than in prisons or police prisons. We submit, as the Court of Appeal held, that this proposition cannot be correct when section 62 is viewed against the object in the scheme of that Act. We have given your Honours the relevant provisions in the previous page, 402, so to briefly escort your Honours through those ‑ ‑ ‑
EDELMAN J: Even if you were right about the Weapons Control Act, that does not give a power to use it, does it, to use the CS gas?
MR McLURE: Section 62 or 12, your Honour?
EDELMAN J: Yes.
MR McLURE: I agree. Neither confers the power.
EDELMAN J: Yes.
MR McLURE: I will come to where the power is. The power is in 157, picking up 152. Dealing with the structure of the Prisons (Correctional Services) Act, looking at section 8(2):
Officers are subject to the directions of the Director in the performance of their duties –
I will take your Honours in a moment to the unchallenged finding that on the night in question the Director was present and directed the relevant prison officer to deploy the CS gas.
Looking at section 9, your Honours will see that that confers on prison officers all of the powers and privileges of police officers. We have given your Honours the reference in our written submissions, at paragraph 10, to the authorities for the proposition that the common law confers relevant powers and privileges on police officers ‑ including police officers, to include ensuring that a person in custody does not escape, does not injure others and does not commit further offences such as damaging property. Our submission is that the unconditional power to direct in section 8, combined with the generalised conferral of power in section 9, reflect the unpredictable and potentially dangerous nature of duty as a prison officer.
Then looking at section 14, what this demonstrates is the rather surprising outcome of the applicants’ argument if it was to be accepted. Section 14 provides that a prison officer:
may arrest and detain without warrant a prisoner who has escaped –
i.e. someone outside of a prison or police prison. But if the applicants’ argument is correct, it must follow that, when utilising that power in section 14, the prison officer cannot use a weapon and cannot use articles of restraint. That, we submit without any hyperbole, would be absurd.
EDELMAN J: Why? Why would it follow from the applicants’ argument that a weapon or articles of restraint could not be used under section 14?
MR McLURE: That is their argument, that section 62 confines the use of firearms, weapons and articles of restraint to the locations set out in 62(2) to prison or police prison.
EDELMAN J: I see. You are going to move later to the question of whether there was power in the youth detention centre?
MR McLURE: Yes.
EDELMAN J: All right.
MR McLURE: I am. But the reason why this is important is that if this argument is correct, it must be correct for prisons as well as in youth detention. Their argument is that a prison officer cannot use those three things ‑ firearms, weapons and articles of restraint – anywhere other than prisons or police prisons. So the argument goes therefore: the prison officer cannot have been acting in the performance of his duties when he used the CS gas on the night in question.
Sections 60 and 61 provide further emphasis for this point. What they provide for is the Director requiring prison officers to take precautions, and 61 provides for prison officers to take precautions themselves. Our submission is that when one bears in mind the object of this legislation, an and obviously practical example of a precaution that a prison officer would take would involve taking steps to reduce the risks concerned with the transportation of a prisoner from a place outside of a prison.
Our submission is that when one views section 62 in that context, it cannot be correct that the permission that section 62(2) confers must also amount to a prohibition to use those items anywhere else. Furthermore, picking up what is said in the applicants’ written submissions, it does not engage theories of principle of legality whereby it would be necessary for an express conferral of power to use a weapon, article of restraint or firearm, bearing in mind what sections 8, 9 and so on do.
Turning to the Youth Justice Act, could I ask your Honours please to turn to page 409. Looking at section 157 at about point 10 on the page, what we accept and I think may be common ground between the parties is that what section 157 does is delegate to the prison officer the power of the superintendent. The power relevantly is the power in section 152(1). To pick up your Honour Justice Edelman’s question to Mr Walker before lunch, we submit it does not matter whether or not 157 picks up only “necessary power” or “necessary and convenient power” because the way we ran this case and the way the court decided it was that we had to cross the threshold of it being necessary and reasonable use of force, and that is what the court so held.
What section 157(2) does is confer the power that is necessary, and the relevant power here to deal with the function in 151(3)(c) is a power to use reasonable and necessary force. That is the power that is delegated by 157(2). It is incorrect to ask, as the applicant does, whether or not the superintendent had the power to use CS gas, because that is not the power being engaged. As I mentioned earlier on, what section 12 of the Weapons Control Act does is provide an exemption from offending. It does not confer the power to use it. The relevant power is a power to use force.
What that then descends to is: one asks whether or not the method used by this prison officer to use the power of force against these particular detainees was prohibited. It was not, because he was acting in the course of his duties, as the court so held. Can I take your Honours then to the relevant findings.
EDELMAN J: The reason it was not prohibited, you say, do you, is because the relevant function in 151(3)(c) is not confined by anything in 153(3)? Is that the additional step that you have to ask?
MR McLURE: The 153 point is the second proposed ground of appeal, and, yes, I will address that. Focusing only on whether or not the power of the superintendent would enable a prison officer to use CS gas, our submission is there are two elements to that: did the superintendent have the power to use force under 151(3)(c) and 152(1)? Answer: clearly yes. Is it a prohibited means of exercising that power to use CS gas? No, if the prison officer was acting in the course of his duties, which he was.
Could I ask your Honours please to turn to page 212. Starting at the heading above paragraph [10] is where the findings of fact are made by the Court of Appeal about the incident on 21 August 2014. Your Honours can fast forward to paragraph [18], page 215: Mr Caldwell is the superintendent. He telephoned the Director. So immediately your Honours have part of the requirements of section 157 of the Youth Justice Act satisfied. There was a request by the superintendent for assistance from a prison officer. Mr Middlebrook, the Director, called another prison officer, Mr Ballantine, who then assembled what is referred to as the immediate action team.
At paragraph [19] the members of the team – relevantly Mr Flavell, he is the officer who deployed the CS gas – attended the detention centre. Looking down paragraph [19], equipped with their equipment, namely, CS gas. Over the page, paragraph [20]:
Mr Middlebrook arrived at the detention centre –
Over the page again, paragraph [26], Mr Sizeland, who was the deputy superintendent, recommended to Mr Middlebrook the use of CS gas. Your Honours will see the last three lines:
Mr Middlebrook then authorised the deployment of the CS gas.
Finally, at paragraph [30], on page 219, the third line down:
Mr Flavell deployed the CS gas into the BMU.
That culminated in the finding at page 259, paragraph [111], the two grounds of appeal being dealt with there are the same proposed grounds of appeal here. The court makes the relevant findings of fact, in particular (v) at the bottom of the page:
Flavell deployed the CS gas under the direction of the Mr Middlebrook –
The third line:
The decision to deploy the CS gas was a sound and reasonable decision –
And three more lines below that:
It was necessary to deploy the CS gas and the decision to deploy the CS gas was made as a last resort.
Our submission is that that satisfies all of the elements of section 157. The prison officer used the superintendent’s power to use force, and the means by which he did so was to use a weapon which he was not prohibited from using because he was entitled to the exemption.
That brings us to the proposed second ground of appeal, which is section 153 of the Youth Justice Act. If your Honours could please go back to page 408. A few observations to make about this provision. Firstly, as the Court of Appeal held at paragraph [124], under the Interpretation Act as it stood at the time, the heading to this provision did not form part of the Act. At the risk of repeating what has been said already, what this provision does is subsection (3) controls the force that may be used under subsection (2) to fulfil the duty to maintain discipline under subsection (1).
What that gave rise to were two questions, the first question being: was the deployment of CS gas to maintain discipline? Secondly, if it was, was it enforced dosing within the meaning of (3)(c). As to the first of those questions, we submit the Court of Appeal correctly answered that at page 270, paragraph [126].
Their Honours held that there was a distinction between discipline and order. To pick up one of Mr Walker’s submissions, they did not draw a mutually exclusive distinction between the two; there would undoubtedly be overlap. But the question is: what was the object of the use of the power in this particular case? What their Honours said by way of generality at paragraph [126] is that order, within the meaning of 151(3)(c) is concerned with safety, whereas, if your Honours look at paragraph [127], “discipline”, within the meaning of section 153, is concerned with, looking at the third line:
instruction, teaching, and punishment –
If your Honours then return to section 153, we submit that logic fits with the scheme of the Act because, if one looks at section 153 and tests the applicants’ proposition that it effectively codifies the circumstances in which force may be used, it would follow that in the circumstance where there was a threat to safety that required the use of force to end, it would not be permitted to use physical violence – 153(3)(a) – and that, we submit, cannot be correct.
I am sorry to jump around but if your Honours could please go back to page 272, at paragraph 130. In the last line the Court of Appeal held that in the circumstances of this case the deployment of the CS gas was not a disciplinary act. There is no challenge to that finding, nor could there be bearing in mind what I took your Honours to a moment ago at paragraph [111] about what was said to be a dangerous emergency situation where there was a detainee out of his cell causing substantial damage and threatening serious violence to staff with improvised weapons.
EDELMAN J: So one then has to find any restrictions on the use of force that you say falls within 151(3)(c) as deriving from the necessary or convenient qualification?
MR McLURE: Yes.
EDELMAN J: Whether that is reasonable force or what types of force can be used all have to come from that broad expression.
MR McLURE: It has to be necessary and therefore, by implication, reasonable.
EDELMAN J: Has there ever been a decision which has given the necessary or convenient phrase that type of scope?
MR McLURE: Yes. If your Honours turn to page 276, the Court of Appeal deals with the decision of Edwards v Tasker. That was a decision of a single judge of the Supreme Court of the Territory on appeal from a summary criminal proceeding in the Territory. The question there was whether or not force used to prevent a detainee from spitting on a staff member was prohibited by 153(3)(a). The same process of reasoning was applied by the court in that case.
EDELMAN J: Apart from the first‑instance decision, and maybe not even confined to this legislation, general, necessary or convenient powers across all legislation, is there authority which gives it a scope which is beyond merely incidental?
MR McLURE: I cannot say that there is but equally my submission is that when one has a look at this particular provision in the way that it has been structured, the use of the language and doing whatever else is necessary or convenient is not a catch‑all power put at the end of a list. This is the conferral of power. Those authorities that are referred to by our friends where they say that is something that should be only incidental only works where it is incidental to other powers.
Your Honours, the only remaining point is the enforced dosing contention. The Court of Appeal dealt with that at paragraph [131], at page 273. What their Honours did there, we submit, is a conventional use and generous construction of 151(3)(b). That is to say where the provision
speaks of enforced dosing with medicines, drugs or other substances what one has in mind is the therapeutic administration of something where someone has been controlled while doing it and that the deployment of CS gas by a weapon does not naturally fit within that language. If I can be of further assistance.
KIEFEL CJ: Thank you, Mr McClure. Mr Walker, do you have anything in reply?
MR WALKER: If it please your Honours. In answer to Justice Edelman’s question, may we suggest that in a case – we have not supplied it to your Honours, but the Territory is aware of it, it intervened in it – Northern Land Council v Quall [2019] FCAFC 77, what we would submit is a familiar ancillary character of “necessary or convenient” provisions as a bestowal of power, was in a very different context, different statute, exactly how their Honours proceeded.
There are no cases that – at paragraph 107, I do not want to dwell on it. There are no cases which support the idea that “necessary or convenient” can switch character in a statute such as this scheme shows so as to become, as it were, the leading provision, as opposed to the ancillary provision.
Now, all the more importantly, because of these aspects of the scheme, as the respondent would have it, which we submit raises very serious questions of a miscarrying of the evident purpose of this legislation – which is, of course, protective of the special interests, as they are plainly perceived to be by the legislature, of young people in detention – not prisoners.
Your Honours were pressed with section 9 of what I will call the prison legislation, by going to page 378 of the book – I do not need to take you back ‑ that is all about prison officers dealing with prisoners in prisons. The same is true of section 60 and 61. The same is true of section 62, to which I took you. The permission to possess and use is:
in a prison or police prison –
Furthermore, it is 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.
These are not transmutable by section 9 or any other provision into expanding the powers of the superintendent under section 151, 152 and 153; that is the first point.
The second point is this. It is suggested that though, of course, understandably, the Full Court is said by my learned friend not to have attempted to separate as if they have no overlap, order and discipline. In many cases, they would be an hendiadys of course. Nothing is proposed by which you could possibly suggest which is which, or when you verge from one to the other – in particular, when something is order and no longer discipline.
In our submission, all of those arguments collapse when one looks at subsection (4) of section 153, if I could take your Honours to page 353 of the book. The superintendent has a contingent power to depart from the restriction imposed by paragraph 153(3)(d), which is:
handcuffing or use of similar devices to restrain normal movement.
That contingent power is if he or she forms the opinion that what is called:
an emergency situation exists; and –
some content is given to that concept by what follows in paragraph (b), namely a purpose of protecting:
the detainee from self‑harm or to protect the safety of another person –
Now, those are precisely – that is the situation, in a nutshell, that my learned friend was positing made CS gas just so reasonable. And, in our submission, the legislature has turned its mind to that and has said of those things in subsection (3) that are explicitly not included in the otherwise ambulatory concept, case by case determination of reasonable necessary force, in that list there is one, handcuffing, that you will be able to use in certain circumstances.
And for those reasons, in our submission, what is proposed to your Honours as a lack of prospects of success by dint of what I will call a reading of the interlocking provisions, is seen to be really without substance and that a proper reading of this scheme does in fact say that there were restrictions that prison officers, whose powers delegated from the superintendent, could not rise above those of the superintendent were of course subject to the restrictions imposed on the superintendent.
KIEFEL CJ: Would the power under section 153(4) extend to doing what was necessary to enable you to apply the handcuffs?
MR WALKER: Must do so, that which is – that is a very familiar reading of the statute.
KIEFEL CJ: Which means some form of subduing a prisoner who has become violent, or a detainee who has become violent.
MR WALKER: It sounds liturgical, but it is, it includes the laying on of hands, of course. It means the grasping of the limb around which the handcuff is then applied, of course. And that goes without saying, on a familiar basis, that if you are allowed to apply a handcuff, you are allowed to do those things which are involved in applying a handcuff.
KIEFEL CJ: But not tear gas?
MR WALKER: Not tear gas, and not a fist to the chin. These are juveniles. And that is the reason why, of course, there is a distinction between police officers at large, prison officers only within prisons. And, of course, we are only there talking about a temporary restraint, pending resolution of the emergency. If it please your Honours.
KIEFEL CJ: There will be a grant of special leave in these matters. What is your time estimate, Mr Walker?
MR WALKER: It should be well within a day.
KIEFEL CJ: Mr McLure, would you agree with that?
MR McLURE: I agree.
KIEFEL CJ: Thank you. The Court will adjourn to reconstitute.
AT 2.42 PM THE MATTER WAS CONCLUDED
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