Coulthard v Oberg - [2021] NTSC 15

CITATION:Coulthard v Oberg [2021] NTSC 15
PARTIES:COULTHARD, Corey

v
OBERG, Gregory

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 13 of 2020 (21929714)
DELIVERED:  23 February 2021
HEARING DATE:  19 November 2020
JUDGMENT OF:  Kelly J

CATCHWORDS:
APPEAL against convictions in Local Court for unlawfully assaulting a person who was working in the course of his duties – whether youth justice officers were working in the course of their duties when assaulted
Under s 157 of the Youth Justice Act the superintendent of a youth detention centre delegated in writing certain of his powers to youth justice officers including the power under s 154 of the Youth Justice Act to use force – instrument of delegation did not specifically delegate the function of the superintendent under s 151 of the Youth Justice Act to maintain order and safe custody and protection of all persons present at the detention centre –
HELD - the trial judge was correct to find that the delegation of the power to use force under s 154 carries with it a duty to uphold the responsibilities under s 151 – appeal dismissed
Interpretation Act 1978 (NT), s 46(1), s 46(2)
Youth Justice Act 2005 (NT), s 151, ss 151(2)(c), s 153, s 154, ss 154(1), s 155, s 156, s 157, s 161, s 174, s 178, Reg 72(2)
REPRESENTATION:
Counsel:
Appellant:E Fenge
Respondent:  S Lapinski
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Kel2105
Number of pages:  6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Coulthard v Oberg [2021] NTSC 15

No. LCA 13 of 2020 (21929714)

BETWEEN:

COREY COULTHARD

Appellant

AND:

GREGORY OBERG

Respondent

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 23 February 2021)

The appellant was charged with (inter alia) three counts of unlawfully assaulting a person who was working in the course of his duties at the time of the assault. The victims were all youth justice officers at the Alice Springs Youth Detention Centre (“the detention centre”) and the appellant was a youth detained at the detention centre. In the Local Court, the appellant was found not guilty of count 1 and guilty of counts 2 and 3. The appellant is appealing against the findings of guilt on counts 2 and 3.
The facts as found by the trial judge are these:
In short, when an issue arose between the first complainant, Dean Gatluak and detainee AH which culminated in Officer Gatluak using force to restrain AH, [the appellant] and others became involved. [The appellant] approached Officer Gatluak and struck him by punching him in the head, and when other guards intervened, including the second and third complainants, Officers Keating and Bacon, they too were assaulted by [the appellant].
The issue at the trial in the Local Court was whether the youth justice officers were acting in the course of their duties at the relevant time. At the trial, defence counsel argued that the youth justice officers were acting unlawfully or outside the scope of their duties at the time and that, therefore, the charge had not been made out.
That argument was based on the contention by defence counsel that the instrument of delegation under which the superintendent delegated certain of his powers and functions to youth justice officers did not delegate to them the function conferred on the superintendent by s 151 of the Youth Justice Act to maintain order and safe custody and protection of all persons present in the detention centre.
Section 151 of the Youth Justice Act sets out the functions of the superintendent in the following terms:
Superintendent of detention centre
(1)     The CEO must appoint a public sector employee to be the superintendent for a detention centre.
(2)     The superintendent of a detention centre is responsible, as far as practicable, for the physical, psychological and emotional welfare of detainees in the detention centre.
(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.
Section 154(1) of the Act provides that the superintendent of a detention centre has the powers that are necessary or convenient for the performance of his or her functions. This is subject to a number of prohibitions and limitations set out in ss 153, 154 and 155.
Section 157 of the Youth Justice Act empowers the superintendent to delegate in writing any of the superintendent’s powers and functions under this Act to (inter alia) a member of the staff of the detention centre.
The “Revocation of Delegation and Delegation” of authority given by the superintendent of the detention centre dated 5 April 2013 was tendered at the trial. That instrument delegated to youth justice officers various powers under nominated sections of the Act, namely ss 153, 154, 155, 156, 161, 174, 178 and Reg 72(2). It did not mention the duty imposed on the superintendent under s 151(2)(c) to 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.
Defence counsel argued that this meant that youth justice officers did not have a duty to maintain order and ensure the safe custody and protection of all persons within the precincts of the detention centre, and therefore, notwithstanding that they had been delegated the superintendent’s powers to use force under s 154, and the limitations imposed on that power in s 153, they could not lawfully use force for the purpose of maintaining order and ensuring the safety of persons within the detention centre. The learned trial judge rejected that submission. Her Honour held:
The powers conferred on a delegate are referrable to, and arise out of, the responsibilities set out in s 151, in the same way that that is so for the superintendent, and the delegation must, therefore, import those duties and responsibilities in the exercise of any delegated power, whether it is by the superintendent or by his delegate. I do not accept that the power to use force is separate and distinct from any obligation that arises out of the duties set out in s 151, as contended by the defence.
It is clear from the scheme of the Act that the responsibilities are the purpose for which the power in s 154, for example, and any other powers, is granted. In delegating any powers in Pt 8, Div 2, there is an obvious implication that the duties are similarly conferred, that is the duties for which those powers are granted.
Section 154(1) use of power (sic) granted to the superintendent and delegated to a youth justice officer, can only be viewed as a specific power granted to perform the superintendent’s function set out in s 151; and most obviously, the obligation to maintain order and ensure the safe custody of all persons who are in the precincts of the detention centre. Accordingly, I accept that the delegation of the use of force in s 154 on a youth justice officer carries with it a duty to uphold the responsibilities in s 151 of the Act.
The appellant contends that this finding by the trial judge is erroneous; that the duties imposed on the superintendent are separate and distinct from the powers necessary to perform those duties; and that, absent any delegation of the duties imposed on the superintendent by s 151, the youth justice officers have no such duties. I disagree.
The reasoning of the learned trial judge is correct. The superintendent only has the power to use force conferred by s 154 for the purpose of carrying out the functions and performing the duties set out in s 151. Therefore, the only thing the superintendent has the power to delegate under s 157 is the power to use force conferred by s 154 for the purpose of carrying out those functions and performing those duties. He cannot delegate what he does not have. Accordingly, any delegation of those powers is implicitly limited to use of the powers for the purpose of carrying out those functions and duties, including the duty to maintain order and ensure the safe custody of all persons who are in the precincts of the detention centre, and carries with it the obligation to carry out those duties and uphold those responsibilities.
On the hearing of the appeal, counsel for the appellant placed reliance on s 46(2) of the Interpretation Act as support for the proposition that the youth justice officers could not have the duties and responsibilities in s 151 of the Youth Justice Act unless the authority to perform those duties was evidenced in a written instrument.
Subsections 46(1) and (2) provide:
(1) If an Act or a statutory instrument confers a function or power on a minister or other person (whether by reference to an office or otherwise), the function or power may be performed or exercised:
(a)for a minister – by a person who has the authority of the minister; or
(b)otherwise – by a person who, with the approval of the minister administering the provision conferring the function or power, or of a person authorised by that minister to give that approval, has the authority of the person on whom the function or power is conferred.
(2) Subsection (1) does not empower the exercise of a power or the performance of a function by the authority of a person where that authority is not evidenced in a written instrument.
The limitation in s 46(2) applies only to the situations set out in s 46(1). This case does not involve the exercise of a power or function by a person pursuant to that sub-section. It concerns a delegation in writing of the powers of the superintendent of the detention centre under s 157 of the Youth Justice Act. That is to say, the youth justice officers are not authorised to exercise the powers they exercise because the Minister administering the Youth Justice Act has approved their doing so, or because the Minister has authorised the superintendent to approve their doing so. The authorisation for the superintendent to delegate certain of his powers and functions to youth justice officers comes directly from the legislation – ie s 157 of the Youth Justice Act. Accordingly, s 46(2) has no operation.
The appeal is dismissed.
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