Campbell v Northern Territory of Australia (No 3)
[2021] FCA 1089
•9 September 2021
FEDERAL COURT OF AUSTRALIA
Campbell v Northern Territory of Australia (No 3) [2021] FCA 1089
File number: ACD 41 of 2017 Judgment of: WHITE J Date of judgment: 9 September 2021 Catchwords: TORTS – youth held in detention in the Northern Territory – whether the respondents breached the duty of care owed to the applicant by holding him in the Don Dale Detention Centre (Don Dale) in Darwin rather than in the Alice Springs Youth Detention Centre (ASYDC) – application dismissed.
TORTS – s 153(5) of the Youth Justice Act 2005 (NT) (the YJ Act) – whether the detention of the applicant in isolation at different times within the ASYDC and Don Dale and in the adult Darwin Correction Centre (the DCC) amounted to unlawful imprisonment – application upheld in part.
TORTS – whether the use of spit hoods on the applicant on three occasions at the DCC constituted a breach of duty, battery or assault – application dismissed.
TORTS – whether the respondents breached the duty of care owed to the applicant in the application of restraints – where the applicant was taken to the ground and handcuffed – where the applicant was later evacuated from his cell and handcuffed – whether this conduct amounted to battery or assault – application dismissed.
TORTS – whether the respondents breached the duty of care owed to the applicant in failing to test for, diagnose and treat a visual disability – consideration of regs 57 and 58 of the Youth Justice Regulations 2006 (NT) – lack of evidence to support the claim of the visual impairment and its causation – application dismissed.
HUMAN RIGHTS – claims of discrimination in contravention of ss 9(1), 9(1A) and 10 of the Racial Discrimination Act 1975 (Cth) – where the applicant was refused transfer from Don Dale to the ASYDC – where the applicant was held for five days in the DCC as a youth detainee – whether these acts involved a distinction, exclusion or restriction based on the applicant’s Aboriginality – application dismissed.
DEFENCE – claimed immunity of the Northern Territory against all claims – consideration of the application of the Enever principle – whether the Superintendent of a Detention Centre exercises an independent statutory authority and discretion – defence not made out.
DEFENCE – whether the defence in respect of acts done in good faith in s 215(2) is available to the Superintendent of Don Dale – defence dismissed in respect of one claim of false imprisonment.
LIMITATIONS OF ACTIONS – whether the applicant’s claims are time barred – consideration of whether the time bar in s 215B of the YJ Act inserted in 2014 has retrospective effect– application for extensions of time under s 44 of the Limitations of Actions Act 1981 (NT) abandoned in final submissions– the claim on which the applicant would otherwise have succeeded held time barred.
Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PO
Judiciary Act 1903 (Cth) s 79
Migration Act 1958 (Cth) s 189
Racial Discrimination Act 1975 (Cth) ss 9, 10, 215
Correctional Services Act 1982 (SA) s 36
Correctional Services (Related and Consequential Amendments) Act 2014 (NT) s 55
Crown Proceedings Act 1993 (NT) ss 5, 16
Felons (Civil Proceedings) Act 1981 (NSW) s 4
Interpretation Act 1978 (NT) ss 12, 41, 55(2)
Limitation Act 1981 (NT) ss 3, 5, 11, 12, 36, 44
Mental Health (Criminal Procedure) Act 1990 (NSW) s 27
Prisons Act 1952 (NSW) s 22
Prisons (Correctional Services) Act 1950 (NT) ss 6, 7, 9, 23, 62
Public Sector Employment and Management Act 1993 (NT) s 24
Youth Justice Act 2005 (NT) ss 3, 4, 5, 6, 24, 62, 82, 83, 119, 148, 149, 150, 151, 152, 153, 154, 157, 162, 164, 168, 170, 176, 178, 215, 215A, 215B, 216, 217
Youth Justice Regulations 2006 (NT) regs 20, 30, 57, 58, 64, 65, 69, 70, 72
Prison Act 1952 (UK) s 12
Prison Rules 1964 (UK) r 43
Cases cited: Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1
Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117
Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165
Australian National Airlines Commission v Newman [1987] HCA 9; (1987) 162 CLR 466
Baird v Queensland [2006] FCAFC 162; (2006) 156 FCR 451
Bankstown City Council v Alamdo Holdings Pty Ltd [2005] HCA 46; (2005) 223 CLR 660
Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA 1092
Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba (No 2) [2020] FCAFC 39; (2020) 275 FCR 669
Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; (2004) 219 CLR 486
Bennett v Superintendent, Rimutaka Prison [2001] NZCA 286; (2002) 1 NZLR 616
Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71; (1961) 109 CLR 105
Bromley v Dawes (1983) 34 SASR 73
Caledonian Collieries Ltd v Speirs [1957] HCA 14; (1957) 97 CLR 202
Cannane v J Cannane Pty Ltd [1998] HCA 26; (1998) 192 CLR 557
Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Cobbett v Grey (1850) 4 Exch 729; (1850) 154 ER 1409
Collins v Downs (NSWSC 14 December 1982)
Collins v Wilcock [1984] 1 WLR 1172
Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1
Darcy v State of New South Wales [2011] NSWCA 413
Dixie v Royal Columbian Hospital [1941] 2 DLR 138
Enever v The King [1906] HCA 3; (1906) 3 CLR 969
Farr v Corrective Services Commission (Qld) (1999) 109 A Crim R 153
Fricker v Dawes (1992) 57 SASR 494
Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70
Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269
Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1
Griffiths v Minister for Lands, Planning and Environment [2008] HCA 20; (2008) 235 CLR 232
Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615
Hagan v Trustees of the Toowoomba Sports Ground Trust [2001] FCA 123; (2001) 105 FCR 56
Hamzy v Commissioner of Corrective Services (NSW) [2011] NSWSC 120; (2011) 80 NSWLR 296
Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 350
Howard v Jarvis [1958] HCA 19; (1958) 98 CLR 177
JB v Northern Territory of Australia [2019] NTCA 1; (2019) 343 FLR 41
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503
Johnson v Northern Territory of Australia [2014] NTSC 18; (2014) 285 FLR 227
Lackersteen v Jones [1988] NTSC 60; (1988) 92 FLR 6
Lindley v Rutter [1981] QB 128
Little v Commonwealth [1947] HCA 24; (1947) 75 CLR 94
Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261
May v Ferndale Institution (2005) 261 DLR (4th) 541
Meering v Graham‑White Aviation Co Ltd (1919) 122 LT 44
Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290
Miller v The Queen (1985) 24 DLR (4th) 9
Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352; (2016) 315 FLR 305
Obieta v New South Wales Department of Education and Training [2007] FCA 86
Oceanic Crest Shipping Co v Pilbara Habour Services Pty Ltd [1986] HCA 34; (1986) 160 CLR 626
Prison Officers Association v Iqbal [2009] EWCA Civ 1312; [2010] 2 All ER 663
Prisoners A‑XX Inclusive v State of New South Wales (1995) 38 NSWLR 622
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Puntoriero v Water Administration Ministerial Corporation [1999] HCA 45; (1999) 199 CLR 575
Qantas Airways Limited v Gama [2008] FCAFC 69; (2008) 167 FCR 537
R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58; [2006] 2 AC 148
R v Deputy Governor of Parkhurst Prison; ex parte Hague [1992] 1 AC 58
Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612
Sandery v South Australia (1987) 48 SASR 500
SBEG v Commonwealth [2012] FCAFC 189; (2012) 208 FCR 235
Secretary, Department of Health and Community Services v JWB & SMB [1992] HCA 15; (1992) 175 CLR 218
Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332
Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245
Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424
Sleiman v Commissioner of Corrective Services [2009] NSWSC 304
Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317
State of New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
State of New South Wales v TD [2013] NSWCA 32; (2013) 83 NSWLR 566
State of South Australia v Clark (1996) 66 SASR 199
State of South Australia v Lampard‑Trevorrow [2010] SASC 56; (2010) 106 SASR 331
SU v The Commonwealth [2016] NSWSC 8
Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Tobin v The Queen (1864) 16 CB (NS) 310
Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581
Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512
Watson v Marshall and Cade [1971] HCA 33; (1971) 124 CLR 621
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Williams v Home Office (No 2) [1981] 1 All ER 1211
Williams v Milotin [1957] HCA 83; (1957) 97 CLR 465
Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278
Woodley v Boyd [2001] NSWCA 35
Wotton v State of Queensland (No 5) [2016] FCA 1457
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
Yrttiaho v The Public Curator of Queensland [1971] HCA 29; (1971) 125 CLR 228
Division: General Division Registry: Australian Capital Territory National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 917 Date of last submission/s: 12 August 2020 Date of hearing: 2-6 September and 4, 5, 6, 9 and 10 December 2019 Counsel for the Applicant: Mr P Tierney with Ms A Perigo Solicitor for the Applicant: Ken Cush & Associates Counsel for the Respondents: Mr D McLure SC with Mr T Moses Solicitor for the Respondents: Solicitor for the Northern Territory ORDERS
ACD 41 of 2017 BETWEEN: MARLEY CAMPBELL
Applicant
AND: NORTHERN TERRITORY OF AUSTRALIA
First Respondent
SUPERINTENDENT OF DON DALE YOUTH DETENTION CENTRE
Second Respondent
ORDER MADE BY:
WHITE J
DATE OF ORDER:
9 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WHITE J:
Introduction
[1]
A chronology of the applicant’s detentions and imprisonments
[8]
An overview of the applicant’s claims
[13]
Statutory provisions
[17]
Matters pertaining to detention generally
[32]
The Applicant’s witnesses
[46]
The Applicant
[47]
Ms Palmer
[58]
Mr Muir
[60]
Mr Ralph
[64]
The respondents’ witnesses
[65]
The “isolation” to which s 153(5) refers
[69]
The Alice Springs Youth Detention Centre
[98]
The Don Dale Detention Centre
[108]
The 7-8 April 2011 false imprisonment claim
[113]
Overview of the applicant’s claim
[113]
Overview of the respondents’ filed defence
[115]
The evidence as to the circumstances leading to the placement
[116]
Findings concerning the applicant’s placement in Room 5
[131]
Was the applicant isolated from other detainees?
[138]
Was the applicant placed in Room 5 for a s 153(5) purpose?
[155]
Conclusion on the 7-8 April 2011 false imprisonment claim
[161]
Detention at Don Dale between mid-November and Christmas 2011
[162]
The applicant’s account of his transfer to Don Dale in October 2011
[171]
The respondents’ account of the applicant’s transfer to Don Dale
[176]
The absence of evidence from Derek Tasker
[185]
Findings regarding the transfer from ASYDC to Don Dale
[188]
Consideration of retransfer to ASYDC
[198]
The cancellation of the Christmas transfer to ASYDC
[215]
Duty of care: the applicant’s pleaded case
[216]
The claim advanced at trial
[225]
The form of loss alleged
[227]
Duty of care: principles
[232]
The duty of care and the “parens patriae responsibility”
[239]
The legislative regime informing the scope of the duty of care
[245]
Findings concerning the detention at Don Dale from mid-November to Christmas 2011
[258]
Why was the applicant kept at Don Dale?
[262]
Did Mr Yaxley have a “disciplinary” purpose?
[268]
Was keeping the applicant at Don Dale unlawful?
[277]
Was the duty of care breached?
[282]
Conclusion on claims of negligence in keeping the applicant at Don Dale until Christmas 2011
[289]
The claim of false imprisonment: 26 December 2011 to 9 January 2012
[291]
Cancellation of the applicant’s Christmas transfer to Alice Springs
[294]
The applicant’s threat of self-harm
[300]
The disturbance in the early hours of 26 December 2011
[305]
Detention in the BMU: 26-28 December 2011
[330]
The removal to the DCC
[334]
Returning to Don Dale
[344]
The Intensive Management Plan for the applicant
[345]
The applicant’s pleaded claims
[351]
The claim of false imprisonment in the BMU: 27-28 December 2011
[353]
Did the detention in the BMU between 27 and 28 December 2011 constitute isolation?
[354]
Was the isolation between 27 and 28 December 2011 for a s 153(5) purpose?
[364]
Did Mr Yaxley have the approval of the Director?
[370]
Approval by Mr Brown?
[371]
The authority of Mr Brown
[376]
Conclusion regarding the December detention in the BMU
[388]
The claim of false imprisonment at DCC: 28 December 2011-2 January 2012
[389]
The claim of false imprisonment in the BMU: 2-9 January 2012
[409]
Did the detention in the BMU between 2 and 9 January 2012 constitute isolation?
[411]
Was the isolation between 2 and 9 January 2012 for a s 153(5) purpose?
[417]
Was the detention in the BMU between 2 and 9 January 2012 authorised by the Director?
[424]
Unauthorised isolation in the BMU and false imprisonment
[431]
Limits on the authorised detention of the applicant
[460]
Conclusion: the applicant was falsely imprisoned
[466]
The claims concerning the use of spit hoods
[474]
The applicant’s evidence concerning the spit hoods
[478]
The respondents’ evidence
[482]
Did the applicant have a history of spitting?
[489]
Findings concerning the use of spit hoods
[506]
Battery and assault: principles
[513]
The expert evidence regarding spit hoods
[522]
Conclusion on the claim of battery and assault
[540]
The claim in negligence
[543]
The claims concerning the incidents on 29 May 2012
[546]
The applicant’s evidence concerning the Tackling Incident
[554]
The applicant’s evidence concerning the Evacuation Incident
[556]
Findings concerning the circumstances of the Tackling Incident
[558]
Findings regarding the Evacuation Incident
[581]
Was there a battery in the Tackling Incident?
[602]
Was there a battery in the Evacuation Incident?
[624]
Conclusion on the claims concerning the incidents on 29 May 2012
[635]
Detention at Don Dale from December 2011 until 9 July 2012
[636]
The applicant’s pleaded case
[637]
The applicant’s evidence
[640]
The respondents’ evidence
[644]
Consideration
[662]
The eyesight claim
[672]
The applicant’s evidence
[678]
The respondents’ evidence
[686]
Consideration of the eyesight claim
[697]
The Racial Discrimination Act claims
[708]
Statutory provisions and principles
[713]
The claim of direct discrimination - s 9(1)
[718]
Some preliminary comments
[721]
The requirement that the differential act be “based on” the applicant’s race
[725]
The respondents’ evidence
[733]
Evaluation of the s 9(1) claim
[737]
The claim of indirect discrimination - s 9(1A)
[743]
The refusal to transfer the applicant to ASYDC
[746]
The keeping of the applicant at DCC
[755]
The s 10 claim
[767]
Conclusion on the RD Act claims
[774]
The defence of the Territory: Superintendents exercise an independent statutory duty
[775]
The good faith defence: s 215(2) of the YJ Act
[807]
Consideration
[817]
The limitation of actions defence
[833]
Identifying the limitation periods
[834]
The pleadings concerning the time bar
[848]
The application of s 215B to the applicant’s claims
[856]
When did the limitation periods commence to run?
[881]
Are the applicant’s claims time barred?
[882]
Abandonment of the application to extend the limitation periods
[887]
Assessment of damages
[899]
Summary
[916]
Introduction
The applicant is a man of the Kngwarraye and Aranda People who was born in August 1994 and grew up in Alice Springs. From the age of 14 years he spent periods in custody, ordered under the Youth Justice Act 2005 (NT) (the YJ Act). These included periods at the Alice Springs Youth Detention Centre (ASYDC) and at the Don Dale Youth Detention Centre (Don Dale) in Darwin. In addition, the applicant was held, while still a youth, for five days at the Darwin Correctional Centre, Berrimah (the DCC). There is an issue in the proceedings as to whether that was authorised by the YJ Act.
Each of the ASYDC, Don Dale and DCC is an institution established and maintained by the Northern Territory of Australia (the Territory).
Since turning 18 in August 2012, the applicant has served periods in adult prisons in the Territory.
These proceedings concern events and circumstances which occurred in the period from April 2011 to July 2012 while the applicant was in custody. The applicant claims that particular incidents constituted the torts of false imprisonment, the torts of battery or assault, and involved breaches of the duty of care owed to him by the Territory. He asserts that some of the conduct of officers in the Detention Centres constituted breaches of the YJ Act and of the Youth Justice Regulations 2006 (NT) (the Regulations) made under that Act. The applicant claims damages and compensation in respect of the consequences of these torts.
The applicant also claims that certain conduct constituted discrimination in contravention of ss 9(1) and 9(1A) of the Racial Discrimination Act 1975 (Cth) (the RD Act). He seeks relief under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act), including an order for payment of damages by way of compensation in relation to the claimed contraventions and, in addition, invokes s 10 of the RD Act.
The first respondent is the Territory. The applicant alleges that it is liable, whether directly or vicariously, for the acts and omissions of officers in the Detention Centres of which he complains and that it breached a non-delegable duty of care it owed to him.
The second respondent is named as the “Superintendent of Don Dale Youth Detention Centre”. In effect, the applicant sues the office of Superintendent. No issue was taken in the trial about this manner of naming the second respondent. The applicant sues the Superintendent in the alternative because the Territory denies that it can be liable for the conduct of which the applicant complains, even if that conduct is otherwise established.
A chronology of the applicant’s detentions and imprisonments
It was common ground that to the date of trial the applicant has been held in detention or in prison in the Territory as follows:
Period
Place
Offence
Nature of
Detention/Imprisonment
22/05/2009 – 29/05/2009
Alice Springs Juvenile Holding Centre (ASJHC)
Various, including aggravated assault, stealing in company, and causing bodily harm
Remands
30/05/2009 – 29/06/2009
Don Dale
As above
Remands
29/06/2009 to – 05/07/2009
ASJHC
Various, including stealing in company and causing bodily harm
Remands
05/07/2009 – 16/07/2009
Don Dale
As above
Remands
16/07/2009 – 24/07/2009
ASJHC
Various including stealing in company, causing bodily harm and aggravated assault
Remands
Applicant sentenced on 24 July 2009 to six months detention commencing on 24 May 2009 but sentence suspended
24/07/2009 – 03/02/2010
Applicant not in detention during this period
03/02/2010 – 11/02/2010
ASJHC
Trespass and other offences
Remand to 8 February, sentence thereafter
11/02/2010
Don Dale
As above
Sentence
02/05/2010 – 21/11/2010
Applicant not in detention during this period
21/11/2010 – 22/11/2010
ASJHC
Various, including possessing a controlled weapon and aggravated robbery
Remands
30/11/2010 – 10/01/2011
Don Dale
As above
Remands
10/01/2011 – 11/01/2011
ASJHC
Stealing in company and causing bodily harm
Remands
11/01/2011 – 31/03/2011
Don Dale
As above
Remands
31/03/2011 – 15/10/2011
ASJDC
Various, including stealing in company, causing bodily harm and robbery
Remand to 23/08/2011.
Sentence of detention of 2 years and 3 months imposed on 23 August 2011. Ordered to commence on 21 November 2010 with a non-parole period of 12 months.
15/10/2011 – 28/12/2011
Don Dale
Robbery
Sentence
28/12/2011 – 02/01/2012
Berrimah Correctional Centre
Robbery
Sentence
02/01/2012 – 04/04/2012
Don Dale
Robbery
Sentence
04/04/2012 – 09/04/2012
ASJDC
Robbery
Sentence
09/04/2012 – 09/07/2012
Don Dale
Robbery and various offences including aggravated assault and being armed with an offensive weapon
Sentence on robbery, remands and, from 29/06/2012, a concurrent sentence
09/07/2012 – 25/08/2012
ASJDC
As above
As above
25/08/2012 – 13/11/2012
Alice Springs Correctional Centre (ASCC)
As above
As above
13/11/2012 – 22/03/2013
Applicant not in detention during this period
22/03/2013 – 27/06/2013
ASCC
Breach of parole
Sentence
27/06/2013 – 31/08/2013
Applicant not in detention during this period
31/08/2013 – 02/09/2013
ASCC
Not indicated
Presumably on remand
02/09/2013 – 15/11/2013
Applicant not in detention during this period
15/11/2013 – 06/07/2014
ASCC
Aggravated unlawful use of a motor vehicle and unlawful possession of property
Sentence
06/07/2014 – 25/08/2015
Applicant not in detention during this period
26/08/2015 to the date of trial
ASCC
4 x aggravated robbery
1 x aggravated unlawful entry into a dwelling with the intent to commit an offence
Remand to 12 December 2016, thereafter sentence (6 year sentence backdated to 25/08/2015 with a non-parole period of 3 years)
The “ASJDC” in the table refers to the Alice Springs Juvenile Detention Centre. It is the name by which the ASYDC was formerly known. The “ASJHC” is the acronym for the Alice Springs Juvenile Holding Centre. Mr Yaxley, one of the respondents’ witnesses, described the ASJHC as a basic facility used for the short term accommodation of detainees with upcoming court appearances in Alice Springs. Although use of the ASJHC ceased in early 2011, it recommenced for a period in April 2012.
As an adult prisoner, the applicant was transferred between ASCC and the DCC for short periods, for example, to facilitate medical examinations and for like purposes. In addition, while at ASYDC he was for very short periods transferred to ASJHC because of short term accommodation difficulties at ASYDC. Those short periods have not been shown in the table.
The table indicates that, from 22 May 2009 to the time of trial, the applicant had not been in detention or imprisonment only in the following periods:
·24/07/2009 – 03/02/2010
·02/05/2010 – 21/11/2010
·13/11/2012 – 22/03/2013
·27/07/2013 – 31/08/2013
·02/09/2013 – 07/11/2013
·06/07/2014 – 25/08/2015
The applicant was in custody at the time of the trial, and arrangements were made for him to be brought to Court from custody.
An overview of the applicant’s claims
The events and circumstances which are the subject of the present proceedings are these:
(a)the alleged unlawful isolation of the applicant at ASYDC on the night of 7 April 2011, which the applicant alleges constituted unlawful imprisonment;
(b)following the transfer of the applicant from ASYDC to Don Dale on 15 October 2011, the keeping of him at Don Dale (other than for short periods at ASYDC and the DCC) until 9 July 2012. The applicant alleges that this constituted a breach of the duty of care owed to him by the Territory or the Superintendent resulting in negligent false imprisonment and mental harm;
(c)the holding of the applicant in isolation at Don Dale and at the DCC between 27 December 2011 and 9 January 2012, which the applicant alleges constituted unlawful imprisonment;
(d)the use of spit hoods on the applicant on three occasions while he was in the DCC between 28 December 2011 and 2 January 2012, which the applicant alleges constituted a battery, assault and a breach of the duty of care owed to him by the Territory or the Superintendent;
(e)two incidents on 29 May 2012 at Don Dale, in the first of which the applicant says he was injured by an inappropriate use of force by detention officers when handcuffing and restraining him and in the second of which he alleges that he was subjected to an inappropriate use of force by Corrections Officers from the DCC. He alleges that the conduct in the first incident constituted an assault, battery and a breach of the duty of care, and that the conduct in the second a battery or assault;
(f)the failure by the Territory or the Superintendent to test, diagnose and treat a visual disability from which the applicant says he suffers, which he alleges constituted a breach of the duty of care.
The applicant also pleads that the conduct of the Territory in transferring him from ASYDC to Don Dale in October 2011, the refusal to transfer him back to ASYDC in November 2011 and thereafter until 9 July 2011, and the placement of him at the DCC from 28 December 2011 until 2 January 2012 constituted contraventions of ss 9(1), 9(1A) or 10 of the RD Act. These claims were modified and confined in the final submissions.
The respondents denied liability on each of the applicant’s claims. In addition, they raised three substantive defences:
(a)by reason that superintendents exercise an independent statutory discretion in the management of detention centres, the Territory cannot be liable, whether directly or vicariously for the actions on which the applicant sues;
(b)by reason of s 215 of the YJ Act, the Superintendent has an immunity from action, because the acts which he impugns were done in good faith; and
(c)the applicant’s claims, other than his RD Act claims and the claims in respect of the DCC, are time‑barred.
As the reasons which follow will indicate, I consider that the applicant has made out only one of his claims, namely, the claim of unlawful imprisonment at Don Dale in the period between 2 and 9 January 2012. However, relief cannot be ordered in respect of that claim because it is time barred and, in the final submissions, the applicant abandoned any claim for an extension of time in which to commence the proceedings. Accordingly, the application must be dismissed.
Statutory provisions
The provisions of the YJ Act to which I refer in this section of the reasons are those which were in force in 2011 and 2012, being the times relevant to these proceedings. It is, however, convenient to refer to them in the present tense. The Prisons (Correctional Services) Act 1950 (NT) (the Prisons Act) which was applicable at the time of the events in issue in these proceedings, was repealed in 2014 but it is also convenient to refer to it in the present tense.
Under Pt 6 of the YJ Act, the Youth Justice Court in the Territory may, amongst other alternatives, order a youth found guilty of a criminal offence to serve a term of detention or imprisonment (s 83). Likewise, the Supreme Court of the Northern Territory may, when sentencing a youth, order that the youth “be detained in a detention centre or imprisoned” (s 82).
The YJ Act does not contain any definition of the word “detain”. However, Pt 8 of the YJ Act provides that the Minister, relevantly the Minister for Correctional Services, may approve an establishment to be a youth detention centre for the purposes of the YJ Act (s 148). By s 149(1) a youth must not be admitted to a detention centre except in accordance with the YJ Act. Section 5 defines a “detainee” to be “a youth lawfully detained in a detention centre”.
It was common ground that the applicant had been ordered by the Youth Justice Court or the Supreme Court to serve the periods in detention occurring before 13 November 2012, that ASYDC and Don Dale had been approved as detention centres, and that the applicant’s admissions to those detention centres had been in accordance with the YJ Act. In particular, it was not suggested that either s 82 or s 83 of the YJ Act had required the Supreme Court, in the sentence imposed on the applicant on 23 August 2011, to specify the detention centre in which he was to be held. In this respect, the powers of the Courts stand in contrast with their powers when refusing a youth bail. In those cases, the Courts must “specify the detention centre or other place at which the youth is to be detained” (s 24(3)).
Section 151(1) of the YJ Act requires the Director of Correctional Services (the Director) appointed under the Prisons Act to appoint an employee, within the meaning of the Public Sector Employment and Management Act 1993 (NT) (the PSEM Act), to be the superintendent for a detention centre. By s 151(2), such a superintendent is “responsible, as far as practicable, for the physical, psychological and emotional welfare of detainees in the detention centre” (s 151(2)).
Section 151(3) of the YJ Act imposes obligations on superintendents:
S 151(3) The superintendent of a detention centre:
(a)must promote programs to assist and organise activities of detainees to enhance their wellbeing; and
(b)must encourage the social development and improvement of the welfare of detainees; and
(c)must maintain order and ensure the safe custody and protection of all persons who are within the precincts of the detention centre, whether as detainees or otherwise; and
(d)is responsible for the maintenance and efficient conduct of the detention centre; and
(e)must supervise the health of detainees, including the provision of medical treatment and, where necessary, authorise the removal of a detainee to a hospital for medical treatment.
As is apparent, s 151(3) imposes obligations on a superintendent, amongst other things, to maintain order and ensure the safe custody and protection of all persons within the precincts of the detention centre, whether as detainees or otherwise, and to be responsible for “the maintenance and efficient conduct of the detention centre”.
Section 152 of the YJ Act vests superintendents with the following powers:
152 Powers of superintendent
(1)The superintendent of a detention centre has the powers that are necessary or convenient for the performance of his or her functions.
(2)The superintendent has power to approve the participation of a detainee in programs conducted in accordance with section 151 in place of consent by a parent or responsible adult in respect of the detainee.
(3)The powers and functions of the superintendent of a detention centre in relation to a detainee are not altered or diminished by the fact that the detainee may be outside the precincts of, or absent from, the detention centre.
The respondents emphasised that the superintendents have the powers that are “necessary or convenient for the performance of [the superintendent’s] functions” (s 152(1)). In JB v Northern Territory of Australia [2019] NTCA 1; (2019) 343 FLR 41 at [118], Southwood J and Graham AJ described the power granted by s 152(1) of the YJ Act as “a very wide grant of power which is intended to ensure the superintendent has adequate capacity to perform his or her wide ranging functions and duties under the Act”. It is established that the power to do all things which are “necessary or convenient” for the performance of a function, while broad, is strictly ancillary, authorising the provision of subsidiary means of carrying into effect what is enacted in the statute itself and encompassing what is incidental to the execution of its specific provisions: Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 at 249‑50. The power does not support attempts to widen the purposes of the Act, to add new or different ways of carrying them out, or to depart from the plan which the legislature has adopted to attain its ends: ibid.
Section 153 concerns the maintenance of discipline in a detention centre:
153 Discipline
(1)The superintendent of a detention centre must maintain discipline at the detention centre.
(2)For subsection (1), the superintendent may use the force that is reasonably necessary in the circumstances.
(3) Reasonably necessary force does not include:
(a) striking, shaking or other form of physical violence; or
(b) enforced dosing with a medicine, drug or other substance; or
(c) compulsion to remain in a constrained or fatiguing position; or
(d) handcuffing or use of similar devices to restrain normal movement.
(4) However, if the superintendent is of the opinion that:
(a) an emergency situation exists; and
(b)a detainee should be temporarily restrained to protect the detainee from self-harm or to protect the safety of another person,
the superintendent may use handcuffs or a similar device to restrain the detainee until the superintendent is satisfied the emergency situation no longer exists.
(5)If the superintendent is of the opinion that a detainee should be isolated from other detainees:
(a) to protect the safety of another person; or
(b) for the good order or security of the detention centre,
the superintendent may isolate the detainee for a period not exceeding 24 hours or, with the approval of the Director, not exceeding 72 hours.
As is apparent, the superintendent is required to maintain discipline at the detention centre and, subject to subs (3) and (4), may use “the force that is reasonably necessary in the circumstances” in order to do so.
Section 153(5) permits a superintendent to isolate a detainee from other detainees for two specific purposes but limits the periods in which a youth can be held in isolation. Without the approval of the Director, the isolation must not exceed 24 hours (s 153(5)). Even then, the isolation may not exceed 72 hours. There is no provision for extension of the 72 hour maximum.
Section 154 provides for circumstances in which a detainee in a youth detention centre may be transferred temporarily to a prison:
154 Temporary removal of detainee to prison
(1) If the superintendent of a detention centre is of the opinion that:
(a) an emergency situation exists; and
(b)a detainee should be temporarily transferred to a prison to protect the safety of another person,
the superintendent may apply by telephone to a magistrate for approval to transfer the detainee.
(2)Subsection (1) applies only in relation to a detainee who is 15 years of age or older.
(3)If the magistrate approves the transfer, the superintendent may arrange for the detainee to be transferred from the detention centre to a prison.
(4)The approval must be in writing and the magistrate must send a copy of the approval to the superintendent as soon as practicable.
(5)The superintendent may proceed under the telephone advice of the magistrate's approval despite that the written approval has not been received.
(6)If the written approval has not been received, the superintendent must sign a version of the approval as authority for the person in charge of the prison to take the detainee into his or her custody.
(7) The period of transfer of the detainee must not exceed 24 hours.
(8)However, the superintendent may apply to a magistrate for an extension of the period of transfer.
…
The effect of s 154 is that the circumstances in which a detainee may be transferred to an adult prison are limited. First, superintendents must be of the opinion that, an emergency situation exists, and that the detainee should be transferred temporarily to a prison “to protect the safety of another person”. The term “emergency situation” is not defined in the YJ Act. Secondly, superintendents may not act solely on their own opinion but must obtain the approval of a magistrate for the transfer (the approval may be obtained by telephone). Thirdly, the period of the transfer must not exceed 24 hours, although the superintendent may apply to a magistrate for an extension of the period (s 154(8)).
Section 157 provides for the delegation of powers and functions by a superintendent:
157 Delegation by superintendent
(1)The superintendent of a detention centre may delegate in writing any of his or her powers and functions under this Act to:
(a) a member of the staff of the detention centre; or
(b) a person authorised by the Director for section 165(b).
(2)A police officer or a prison officer within the meaning of the Prisons (Correctional Services) Act, if called upon by the superintendent of a detention centre to assist in an emergency situation or in preventing an emergency situation from arising, is taken to have been delegated the powers of the superintendent necessary to perform the superintendent's functions under section 151(3)(c).
Matters pertaining to detention generally
At the times relevant to these proceedings, there were two principal detention centres in the Territory. These were Don Dale and ASYDC. Don Dale was much larger than ASYDC.
In 2011 and continuing to 4 September 2012, Mr Middlebrook, one of the Territory’s witnesses, held the substantive position of Executive Director for Northern Territory Correctional Services. This was the position of “Director” for the purposes of the YJ Act. There is an issue about the occupancy of that position during a period when Mr Middlebrook was on leave to which it will be necessary to return.
The evidence did not contain any document evidencing the formal appointment of a person as superintendent of either ASYDC or Don Dale. The respondents’ witness, Mr Fattore, deposed that the position of General Manager of Youth Detention based at Don Dale “encompassed the statutory positions of Superintendent of Don Dale and Superintendent of [ASYDC]”. He held that position until 28 October 2011 when he was succeeded by Mr Yaxley. The latter gave evidence to like effect, as did Mr Middlebrook. Mr Yaxley also explained that in 2011 and 2012, “Youth Justice” had been part of the Department of Correctional Services, which used the terminology of “General Manager”. Hence, this term had also been used in relation to his position.
No point was taken about the absence of evidence of a formal appointment of Mr Fattore or Mr Yaxley as Superintendents of Don Dale or of ASYDC.
A number of persons were employed in the detention centres, including Youth Justice Officers (YJOs) and Case Managers or Case Workers. Some YJOs were referred to as “Youth Workers” or “Senior Youth Workers”. Each detainee entering detention was allocated a Case Manager. Broadly speaking, YJOs were responsible for security, responding to incidents and generally managing detainees through the daily routines. Case Managers, on the other hand, were responsible for the well‑being and rehabilitation activities of the youths in detention.
Mr Donald, the applicant’s Case Manager at Don Dale, said, and I accept, that an important task of Case Managers was the making of arrangements for detainees to contact their families. This involved establishing and maintaining the approved‑contact telephone system and, on occasion, making arrangements for contact via videolinks.
Most of the detainees at Don Dale and ASYDC were male. Generally, female detainees were accommodated at Don Dale. The great majority of detainees were Indigenous. Mr Yaxley said that he could recall only “a handful” who were not Indigenous and Mr Donald said that he could recall only one or two.
The number of detainees in detention at any one time could fluctuate markedly and quickly, depending upon the number and length of remands and sentences.
All detainees were classified according to their risk profile. That classification was determined in accordance with a Classification Manual by reference to a number of factors, including the nature and extent of the detainee’s offences, their behaviour in detention, the risk of them escaping, the risk of them causing harm to themselves or to others, and the risk of them causing damage or disruption in the detention centre. All detainees were subject to regular behavioural assessments and classification reviews. These included assessments known as “SCATE assessments” and daily behaviour reports.
The more serious incidents in the detention centres were recorded in an “incident report” entered in the electronic “Integrated Offender Management System” (IOMS).
When reviewing a detainee’s progress and behaviour in the detention centre, the staff had access to the IOMS reports, the SCATE assessments, the daily behavioural reports as well as educational, medical and case manager reports.
Apart from the formal recording of classifications, the classification of detainees was indicated by the colour of the shirt they were given to wear. The classification structure, and the shirt colours assigned to each classification, were as follows:
New admittees to detention
Black Shirts
High or maximum security detainees
Red shirts
Medium security detainees
Orange shirts
Low 1 classification detainees
Green shirts
Low 2 classification detainees
Blue shirts
Open security detainees
Yellow shirts
Greater privileges (by way of greater freedoms and rewards) were given to those with lower security classifications, as an incentive for good behaviour. Mr Donald said, and I accept, that generally the “classification system works very well to reinforce and reward positive behaviours”, but that it worked better at Don Dale than at ASYDC.
The applicant’s classifications from 25 May 2011 until he ceased to be held in youth detention in August 2012 were as follows:
•25 May 2011 to 8 June 2011 – Medium
•8 June 2011 to 6 July 2011 – Low 1
•6 July 2011 to 20 July 2011 – Low 2
•20 July 2011 to 26 September 2011 – Low 1
•26 September 2011 to 2 November 2011 – Medium
•15 October 2011 – transfer from ASYDC to Don Dale
•2 November 2011 to 6 December 2011 – Low 1
•6 December 2011 to 26 December 2011 – Medium
•26 December 2011 to 14 February 2012 – Maximum
•14 February 2012 to 20 March 2012 – Medium
•20 March 2012 to 18 April 2012 – Low 1
•18 April 2012 to 20 June 2012 – Maximum
•20 June 2012 to 11 July 2012 – Medium
•11 July 2012 to 7 August 2012 – Low 1
The Applicant’s witnesses
The applicant gave evidence himself and led evidence from his grandmother, Ms Palmer, from Mr Peter Muir, and from a forensic psychologist, Mr Stephen Ralph. Mr Muir gave evidence as an expert in matters concerning the detention of youths. The respondents challenged his expertise and it will be necessary to make findings on that topic.
The Applicant
The applicant was 25 years old at trial. He was educated to Year 7 level, and it seems that, before going into detention, he had ceased schooling during Year 8. His school reports indicate that the applicant had experienced difficulty in progressing through his education. However, Ms Palmer described the applicant as having been good at maths. The applicant also had some schooling while in detention. The Education Assessment Forms completed in the ASYDC for the period 27 April to 12 September 2011 record that the applicant’s attitude to his education was at times poor. I note that, in the report of 5 July 2011, the teacher reported that the applicant “is capable of a higher standard of academic performance but his lowered self-confidence causes him to give up rather than take risks”. The teacher also reported that “Marley can work at a year 10 academic standard within [Northern Territory Curriculum Framework] guidelines”. The extent to which the applicant continued schooling after September 2011 is unclear as an IOMS Report of 1 September 2011 records the applicant as having “decided to drop out of School”.
It is apparent that the applicant underwent some vocational education while in detention as an email from Mr B Clee, a YJO, on 28 June 2012 recorded that one of the reasons why the applicant wished at that time to return to Alice Springs was to complete “the Certificate 1 in Pastry and Baking, currently running through Charles Darwin Uni” at the ASYDC.
In May 2018, Mr Ralph assessed the applicant’s cognitive functioning using the Raven’s Standard Progressive Matrices, which he described as a test of observation and clear thinking. He reported that this measure placed the applicant in the category of “Grade IV – Definitely below average in intellectual capacity” and on the very cusp of “Grade V – Intellectually Impaired”.
Mr Ralph noted that the applicant is unable to read or write but did not say whether that is what the applicant told him, or whether it was based on testing. In either event, it is contradicted by the evidence at trial. The documentary evidence included letters handwritten and signed by the applicant while in detention and, in evidence-in-chief, he confirmed that he was able to read them (although on one occasion he accepted counsel’s invitation to read the document for him). Later, when asked directly about his reading ability, the applicant said that he was “not that good at reading” and described himself as a “slow reader”.
The matters mentioned above, and my own observation and assessment of the applicant when giving evidence, including when he was asked to read documents, suggest that the categorisation of the applicant as close to borderline intellectually impaired may underestimate his cognitive capacity.
Nevertheless, I accept that the applicant has had limited education and that he has some cognitive limitations. I have taken these into account when assessing his evidence.
Although the applicant’s criminal record suggests that he is no stranger to courtrooms, it was evident that he did not find giving evidence easy or pleasant. For much of his evidence he had a subdued demeanour, and at times a taciturnity. Mr Donald, whose evidence I regarded as honest and reliable, also described the applicant as “often taciturn” in his dealings with him. There were numerous occasions in his evidence when the applicant said that he had no memory of matters relating directly to the incidents in issue.
I have endeavoured to keep in mind that there may be multiple reasons for the applicant’s subdued manner, taciturnity, and statements of poor memory, including cognitive limitations. I also take into account the applicant’s cultural background.
Much of the applicant’s evidence was inconsistent with the contemporaneous records. It is of course possible that it is those records which are unreliable, but I saw no reason to suppose that that was so. The applicant’s evidence was also inconsistent in several respects with the evidence of others, whose evidence I did consider reliable.
It was put to the applicant more than once that he was fabricating matters in his evidence with a view to advancing his interests in the litigation. He denied that that was so. Although there are significant sections of the applicant’s evidence which I do not think are reliable, I did not have the impression at trial that he was intentionally giving dishonest evidence or dissembling. Amongst other things, there were several occasions when he made concessions which were seemingly against interest and several occasions when he did not seek to embellish his account, even though the opportunity to do so was open. My impression at the conclusion of the trial was that, on some topics, the applicant had become convinced of the unfairness of his treatment while in detention, and that that conviction had resulted in embellishments in his recollection. In addition, I had the impression that, with respect to some matters, the applicant has “locked into” a version of events, despite its implausibility or inconsistency with contemporaneous records. These impressions have been confirmed on my subsequent reading and re‑reading of the transcript.
The consequence is that, generally, I am unwilling to make findings based on an acceptance of the evidence of the applicant when that evidence is inconsistent with the contemporaneous documents and, in some instances, inconsistent with the evidence of others. That in turn means that there are significant parts of the applicant’s evidence which I do not accept.
Ms Palmer
The applicant’s grandmother (Ms Palmer) is an impressive person and was in many respects a sound witness. It was very evident that she has a strong sense of the value of family and of the importance of the applicant’s Aboriginal identity. Ms Palmer has obviously been a significant person in the applicant’s upbringing and has sought to instil in him the values of her family and Aboriginal identity and culture.
Throughout the applicant’s periods in detention, Mrs Palmer visited him regularly, weekly when he was in Alice Springs, and, from time to time, making the long return journey from Alice Springs to Darwin to do so when he was in Don Dale. She was influential in having the applicant transferred back to ASYDC in July 2012. Ms Palmer has a firm conviction that the applicant has been treated unfairly while in detention and I felt that that conviction influenced her evidence. For reasons to be given later, including the fact that the applicant had on some topics misled his grandmother about his own behaviour while in detention, there are some respects in which Ms Palmer’s conviction is unfounded. There were also some aspects of Ms Palmer’s evidence which I regarded as unreliable, and do not accept.
Mr Muir
Mr Muir was called to give evidence of an expert kind regarding the appropriate use of force and physical restraints in the youth detention environment. His academic qualifications are an Associate Diploma in Social Welfare obtained in 1982 from what is now the University of Western Sydney and a Bachelor of Arts from the Wollongong University obtained in 1989. He now conducts his own consultancy, specialising in youth justice, out-of-home care and child protection.
Between 1977 and 2012, Mr Muir was a member of the public service in New South Wales and from 1999 and 2008 occupied the position of Director Operations/Deputy Director General, Operations in the Department of Juvenile Justice. That position included responsibility for up to nine juvenile detention centres. Between 2008 and 2011, Mr Muir was the Director General/Chief Executive of Juvenile Justice and from 2011 and 2012 was the Assistant Director General (Service Delivery Improvement) for the Department of Family and Community Services in New South Wales.
Mr Muir acknowledged that he had never worked directly as a front line officer in a juvenile detention centre, had never worked in an adult prison and accepted that his involvement with youth detention had been at the executive management level.
During Mr Muir’s cross-examination, counsel for the respondent objected to the admissibility of the two reports containing Mr Muir’s opinions. The submission was that Mr Muir’s lack of front line experience in a juvenile detention centre meant that he was not qualified by study, training or experience, to express the opinions which he did in the reports. I rejected that submission noting, amongst other things, that the objection was made after the reports had been received into evidence without any objection to Mr Muir’s expertise to express the opinions they contained. In any event, it was evident that Mr Muir does have expertise acquired by experience. This includes his experience in the positions mentioned above and his experience in overseeing the design of training concerning the use of force in a youth detention environment, setting the parameters for, and reviewing, the materials prepared by his subordinates on the topic, and overseeing its implementation and integration into the training of front line officers. I accept that, by reason of his role in managing the large juvenile detention system in New South Wales, Mr Muir has acquired some expertise in relation to the use of force in the juvenile detention environment. His opinions, like those of any other expert, should be assessed taking into account the nature and extent of the expertise which he has acquired.
Mr Ralph
I will refer to Mr Ralph’s evidence later in these reasons.
The respondents’ witnesses
The respondents led evidence from 17 witnesses. These were:
·Mr Kenneth Middlebrook, the Executive Director of Correctional Services in the Northern Territory until 4 September 2012, and then the Commissioner of Correctional Services;
·Mr John Fattore, who between 11 January 2010 and 28 October 2011 was the General Manager of Youth Detention based at Don Dale and, in that period, the Superintendent of both Don Dale and ASYDC. Since October 2011, Mr Fattore has been the General Manager of Community Corrections in Northern Territory Correctional Services;
·Mr Philip Brown, who from 2010 until 2012 was the Acting Deputy Director of Operations for both Corrections and Juvenile Justice in the Territory;
·Mr Michael Yaxley, who from October 2009 until 28 August 2013 held the position of Assistant General Manager of Youth Detention in the Territory. In 2011, Mr Yaxley acted as General Manager of Youth Detention on several occasions when Mr Fattore was unavailable, and he acted continuously in that position from 31 October 2011 until 19 November 2012. On 31 October 2011, he succeeded Mr Fattore as Superintendent of Don Dale and ASYDC;
·Dr Christine Connors, the General Manager, Darwin Region and Strategic Primary Health Care Branch in the Top End Health Service (TEHS);
·Mr Gregory Donald, who was employed as a Case Manager at Don Dale between 2011 and 2015;
·Mr Barrie Clee, who from 2009 was the officer in charge of the ASJHC and then the ASYDC, but who performed duties at Don Dale from time to time;
·Mr Andrew McAllan, who in 2011 and 2012 worked as a YJO at ASJHC and ASYDC;
·Mr Randall Edwards, who from August 2011 worked as a YJO at Don Dale;
·Ms Julie Auton, who from April 2008 until January 2012 was a Chief Prison Officer at DCC, and from January 2012 a YJO at Don Dale;
·Mr Kalia Mangawai, who from late 2011 worked at Don Dale as a YJO;
·Mr Michael Hall, who has been a Senior Corrections Officer at DCC since January 2004;
·Mr Andrew Nicol, who has been a Corrections Officer with the Territory Department of Corrections since June 2010 (and since 2016 a Senior Correctional Officer);
·Mr Jacob Bonson, who has been a Corrections Officer with Northern Territory Corrections since July 1999;
·Mr Brian Leibhardt, a Corrections Officer at the DCC;
·Mr Nicholas Irwin, who has been a Corrections Officer with Northern Territory Corrections since 2005; and
·Ms Maria Pikoulos, a solicitor in the office of the Solicitor for the Northern Territory.
Part of the evidence in chief of Mr Fattore, Mr Yaxley, Mr Donald, Dr Connors and Mr Bonson, being their evidence on background and contextual matters, was provided by way of affidavit. Most of their evidence concerning the particular events and circumstances on which the applicant based his claims was given orally. Mr Leibhardt and Ms Pikoulos were not required to attend for cross‑examination on their affidavits.
In addition, the Territory led expert evidence from two witnesses:
·Dr Gosia Wojnarowska, a Forensic Psychiatrist; and
·Mr Paul Conway, who has expertise in the management of youths in detention centres.
Before addressing the applicant’s particular claims, it is appropriate to address the meaning of the “isolation” to which s 153(5) refers, as this relates to more than one of the applicant’s claims.
The “isolation” to which s 153(5) refers
The terms of s 153(5) are set out in these reasons, at [26]. It was part of the YJ Act at all times material to these proceedings.
Division 8 of the Regulations as in force at material times had the heading “Management of detainees”. Regulation 72(1) in Div 8 provides that a detainee must not be isolated in a cell except under s 153(5) of the YJ Act. Its effect is that s 153(5) is to be regarded as stating exhaustively the circumstances in which a superintendent may isolate a detainee in a cell.
Regulation 72 imposes obligations on superintendents with respect to detainees who are isolated:
…
(2) If a detainee is isolated:
(a)the detainee must be continuously monitored by closed-circuit television or physical observation by a member of staff; and
(b)written observations by a member of staff, including the date, time and name of the member of staff, must be recorded at intervals not exceeding 15 minutes.
(3) The Superintendent must keep a journal recording:
(a) the date and time a detainee is isolated; and
(b) the name of the detainee; and
(c) the reason why the detainee was isolated; and
(d)the time the on-call person in charge was notified and that person's name; and
(e)the observations of a member of staff at intervals not exceeding 15 minutes and the name of the member of staff making the observation; and
(f) the date and time of exercise periods and ablutions; and
(g)details of any approval by the Director for isolation exceeding 24 hours; and
(h) the date and time the detainee is released from the isolation cell.
Taken in combination, s 153(5) and reg 72 reflect an understanding that periods of isolation may be detrimental for youths in detention and are times of particular vulnerability.
Counsel for the respondents submitted that the isolation to which s 153(5) refers is the “complete inability for any kind of interaction between the detainees” with the consequence that, provided that the detainee had the ability to have interaction of some kind, there was no isolation.
The term “isolated” and its cognates are not defined in the YJ Act. The relevant meaning of “isolate” in the Macquarie Dictionary is:
to set or place apart; detach or separate so as to be alone.
That meaning and the composite term in s 153(5) “isolated from other detainees” suggests that the term is used in the sense of keeping the detainee separate or apart from other detainees. This implies that there must be “other detainees” from whom the detainee may be isolated, so that a detainee who is the sole occupant of a detention centre will not be isolated in the requisite sense: Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 at 328; Hamzy v Commissioner of Corrective Services (NSW) [2011] NSWSC 120, (2011) 80 NSWLR 296 at [81]. It may also be pertinent that the term “other detainees” is not prefaced by an adjective such as “some” or “all”.
Although it is common for legislation or regulations concerning imprisonment or detention to limit the circumstances in which a prisoner/detainee may be held separately from other prisoners, there seems to have been relatively little judicial consideration of the term “isolate” or its cognates in this context.
Rule 43 of the Prison Rules 1964 (UK) made pursuant to the Prison Act 1952 (UK) (Prison Act UK) was a counterpart of s 153(5). It provided (relevantly):
(1)Where it appears desirable, for the maintenance of good order or discipline or in his own interests, that a prisoner should not associate with other prisoners, either generally or for particular purposes, the governor may arrange for the prisoner’s removal from association accordingly.
(2)A prisoner shall not be removed under this Rule for a period of more than 24 hours without the authority of a member of the board of visitors, or the Secretary of State.
…
In Williams v Home Office (No 2) [1981] 1 All ER 1211, Tudor Evans J regarded it as clear that r 43 provides an administrative power “to remove a prisoner wholly or in part from association with other prisoners”, at 1228.
In Bromley v Dawes (1983) 34 SASR 73 at 78, White J said of the term “separately confined”:
Separation means separation and no more. It has its origins in old legislation. Cf. the United Kingdom Act, 28 & 29 Vict. Cap. 126 s 17, separation of men from women, debtors from criminals, specially punished prisoners from ordinary prisoners, children from adults and the like.
In Sandery v South Australia (1987) 48 SASR 500, Olsson J said of the power in s 36 of the Correctional Services Act 1982 (SA) to “segregate” a remand prisoner that segregation “could, in practice, range from solitary confinement of a single prisoner to a separate confinement of a group of prisoners”, at 509.
In Fricker v Dawes (1992) 57 SASR 494, one of the issues was whether the plaintiff had been kept, unlawfully, in solitary confinement. In rejecting that claim, Mullighan J said:
[T]he evidence does not disclose that the plaintiff has been kept in solitary confinement. Apart from the periods when he was the subject of segregation and separation, he has been permitted to mix with other prisoners in the Division, although not all of them. Some prisoners, such as protectees, have been kept in an isolated group for reasons of their safety. The plaintiff has not been in association with them. From time to time he has been kept away from other prisoners for reasons of security. On occasions he has exercised alone, but in the main he has associated with other prisoners in the Division when he has been out of his cell. He has enjoyed various benefits and privileges, even though to a lesser extent than prisoners in B Division. His incarceration cannot be described as solitary confinement even though his association with other prisoners is curtailed due to the length of time he spends in his cell.
As in all cases of statutory construction, s 153(5) should be construed by reference to its text, context and purpose – see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 and 408 in which Brennan CJ, Dawson, Toohey and Gummow JJ said:
[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) use as ‘context’ in its wider sense to include such things as the existing state of the law and mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended remedy.
(Citation omitted)
In summary, with the exception of the claim in respect of his detention in the period 2‑9 January 2012, the applicant has not established any of his claims of wrongful imprisonment. Nor has he established his claims of racial discrimination, battery, assault or breach of the duty of care. The applicant did establish that he was unlawfully detained in the BMU in the period from 2‑9 January 2012, but that claim is time barred. It has not been necessary to consider an extension of time for that claim, as the applicant expressly disavowed such an application in the final submissions.
The formal order of the Court is that the application is dismissed. I will hear from the parties with respect to costs.
I certify that the preceding nine hundred and seventeen (917) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice White. Associate:
Dated: 9 September 2021
6
18