NT government proposes $15k cap on false imprisonment compensation

The NT government will attempt to cap the compensation paid to people who experience abuse or false imprisonment while in their care.

UPDATE 1PM MAY 12: NATIONAL human rights and legal organisations have condemned the NT government’s plan to cap compensation for people abused while incarcerated.

Human Rights Legal Centre director Nick Espie has said the proposed Personal Injuries (Liabilities and Damages) Amendment Bill contradicts commitments to international torture conventions.

The proposed amendments will cap compensation for people who are falsley imprisoned or assualted while incarcerated at $15,300.

“These laws are a contradiction to our Government’s commitment to Optional Protocol to the Convention against Torture which Australia ratified in 2017,” he said.

“It flies in the face of a commitment to repairing a broken youth justice system that saw children abused and traumatised by those whose job it was to protect them.”

Mr Espie said the laws will substantially impact Aboriginal people due to the disproportionate rates of Indigenous incarceration, particularly in the Northern Territory.

“The Territory government has committed through an Aboriginal Justice Agreement to treating Aboriginal victims fairly, respectfully and without discrimination. These laws will have the opposite effect.”

However during the drafting of the legislation the Aboriginal Justice Unit which sits within the Attorney General’s department were not consulted.

According to data supplied by same department prisons across the Northern Territory are completely full, with Darwin Correctional Facility increasing capacity by turning single cells into bunk rooms and “repurposing some spaces”.

Echoing Human Rights Law Center, advocacy and legal organisation, Change the Record has called for the bill to be immediately withdrawn.

“Instead of taking urgent action to prevent mistreatment and abuse of children and young people in the criminal justice system, this bill is a cynical attempt by the NT Government to avoid consequences when they do the wrong thing,” Change the Record co-chair Cheryl Axelby said.

“People do not lose their right to be treated humanely and decently because they have been arrested and this is precisely the type of dangerous attitudes that leads to black deaths in custody, mistreatment and abuse.”

Despite calls from legal agencies across the country and Territory, the government is expected to pass the bill.

INITIAL: COMPENSATION for successful “civil wrongs” cases will be capped at $15,300, if changes proposed by the NT government are passed.

There is currently no cap on government payouts for people who are victims of false imprisonment, battery and assault - including the use of spit hoods and restraint chairs - while incarcerated in the Northern Territory.

Amendments proposed to the Personal Injuries (Liabilities and Damages) Amendment Bill that were introduced in March will only apply to new law suits and won’t be backdated.

Northern Australian Aboriginal Justice Agency (NAAJA) principal lawyer David Woodruff has called for the “ill-thought-out” bill to be immediately removed from parliament.

Mr Woodruff said the bill would expected to disproportionately impact Aboriginal Territorians.

“The proposed cap on personal injuries for Territorians who have suffered abuse and mistreatment when incarcerated would diminish their ability to seek justice from wrongdoing,” he said.

“The intended law weakens the safeguards that all citizens enjoy from (unrestrained) and unlawful abuse by those in power in making them truly accountable through legal actions.”

The NT News understands NAAJA was among four organisations consulted on the proposed bill.

However according to multiple sources, none of the feedback provided during consultation was incorporated into the final draft.

Acting Children’s Commissioner NT Nicole Hucks said she was concerned the legislation removed any practical right to compensate children who had experienced abuse in a detention centre.

Ms Hucks said it contradicted the findings and recommendations of recent Royal Commissions into Child Sexual Abuse and Protection and Detention of Children in the NT.

“Given the existing issues within NT youth detention centres as identified in OCC reporting and investigations, any legislation which weakens the prevention of mistreatment of children in youth detention is unacceptable,” she said.

In 2021, the OCC recorded a 113 per cent increase in complaints from families and young people who reported issues with “inappropriate use of discipline” and failure to provide “medical, education or therapeutic” services while in Territory youth detention centres.

The move follows a class action that led to the government having to pay $35m in damages to a number of children who were detained in Don Dale before 2016.

Maurice Blackburn, the corporate law firm that represented the class action, also has “significant concerns” over the proposed bill.

“This bill proposes a deeply unjust two-tier scheme, where those who are mistreated in custody are entitled to less compensation than others within the community,” Darwin regional office lead Amy Williams said.

“If the government really wants to reduce its legal liabilities, it should invest in improving the justice and detention system and decreasing incarceration rates, not give itself a discount when it comes to compensation.”

According to Attorney-General Selena Ubio’s office, the bill has been proposed by the NT government in response to the various royal commissions but the department did not consult its own Aboriginal Justice Unit during the amendment’s development.

Attorney-General Selena Ubio answers questions after signing the Aboriginal Justice Agreement. Picture: (A)manda Parkinson

“The Offender Damages Scheme will place reasonable limits on the amount of damages that the court can award for battery, assault and false imprisonment committed against offenders in custody,” a spokeswoman for Ms Ubio said.

“The implementation of this scheme also addresses community concerns about large payouts from taxpayer funds to offenders for incidents that occur in custody.”

According to the spokeswoman, the capped amount had been set according to “commonly awarded” amounts by the court for similar claims.

Anti-Discrimination Commissioner NT Sally Sievers confirmed the department was also not consulted before the bill was tabled in parliament.

“It was brought to our attention by groups concerned by its impact on people who are covered by Anti-Discrimination Act 1992 (ADA); people disproportionately impacted will be young people, Aboriginal people, and those living with a disability,” she said.

Ms Sievers said the proposed legislation removes human rights and called on the NT government to instead focus on preventing harm and assault while people were under the government’s care.

“The focus for NT should be on ensuring models of care, highly skilled staff and procedures to ensure adults and children detained are not mistreated by those with a duty of care to them,” she said.

“Being detained or incarcerated is the sentence, people should not be further harmed and this harm if it occurs must have consequences.”

The bill is expected to be debated again in parliament on Thursday.