NT government caps compensation on false imprisonment and assault victims at $15k

A secret $35m settlement for Don Dale children has sparked news laws to cap payouts for assault and false imprisonment. Read more here.

TERRITORY parliament has passed new laws that will cap compensation at $15,000 for people falsely imprisoned or assaulted while incarcerated.

Territory Families Minister Kate Worden hinged the amendment on recommendations made by the Royal Commission in to Institutionalised Child Sexual Abuse, that calls for governments to change the onus of proof from the victim to the institution – ‘reverse onus’ as it is legally known.

“Let us take a moment to educate ourselves on why these changes are so very important. Sexual assault is a form of trauma,” she said.

However, the Royal Commission recommendations do not include any references to caps on compensation and the new laws do not apply to children of institutional sexual violence - unless it occurs while in youth detention.

The new legislation caps the maximum payout for a single assault (including a strip search) or battery at $5000.

For a person to be eligible for the maximum payout of $15,000 they would need to be assaulted on three separate instances.

Ms Worden’s speech and that of the former Attorney-General Selena Uibo failed to acknowledge the people who will be most impacted by the legislation - Aboriginal Territorians.

The Opposition also suggested the caps were to prevent further class actions like the $35m paid to children incarcerated in Don Dale before 2016.

Opposition Territory Families spokesman Josh Burgoyne said the bill was like closing the gate after the horse had bolted.

“Overall, this legislation is beneficial but some of the proof visions concerning the limitations on payouts to offenders seem a day late and a dollar short,” he said.

NAAJA principal lawyer David Woodruff said the new laws would put people who entered prison or detention at further risk of assaults due to reduced liabilities.

“This is a further dark chapter in the Territory’s history of failing to ensure the safety and full protection of the law for Aboriginal victims of government wrongdoing and abuse,” Mr Woodruff said.

WHAT IS THE NEW LAW ABOUT?

The new laws aim to do three things; reverse the onus of proof for victims of institutional abuse, cap compensation and provide a redress scheme to victims of crime.

According to the Attorney-General’s department, false imprisonment will be paid on a sliding scale, while unlawful strip searchers and battery will be capped at $5000 per charge to the maximum of $15,000.

All other assaults will be paid capped at $2500 per charge up to the maximum value of $15,000.

Previously the NT News asked Ms Uibo how these caps were decided.

“The maximum amounts for each tort have been set with regard to the amounts commonly awarded by the Court for these types of claims,” she said.

However, when the NT News requested a list of cases the department reviewed to arrive at each amount, a precedent could not be provided.

Independent MLA Yingiya Guyula said this type of legislation would prevent justice from ever being realised.

“The cost of bringing an action will outweigh the benefits, meaning that justice will never be realised for the victims of those abuses,” he said.

Mr Guyula said the bill did not treat prisoners with respect and passing the bill was a “disgrace for this government”.

“It is a bill that has been introduced on the back of ill-informed public concern that taxpayer money was given away like Santa Claus …” he said.

“Legal right experts have likened the creation of the victim’s Trust by this bill to historical abuse of power against Aboriginal people where money was held in trust for Aboriginal people such as the Stolen Wages era.”

Mr Yingiya (Mark) Guyula at Budget Estimates. Picture: Che Chorley

The amendment also included a ‘redress’ like scheme where compensation now paid to a prisoner who experienced assaults while incarcerated would be held in trust and potentially distributed to a person or business the prisoner committed a crime against.

The amendment was well received by the CLP and therefore passed almost unopposed, with Mr Guyula the only voice against and leaving the parliamentary floor before voting.

The legislation is the first of its kind in Australia despite Ms Uibo trying to claim “it brings the Territory into line” with other jurisdictions.

The only other place in Australia that caps compensation for institutional assaults is NSW that requires a victim to prove they have 15 per cent or more “whole person impairment”.

THE LEGAL COMMUNITY RESPONSE:

During the debate, Ms Worden also acknowledged John Lawrence SC in the parliamentary gallery, who has advocated for the rights of children in the youth justice system for the past 20 years.

“We might not agree on everything but it is nice to see him here for the debate this evening, because he has a great interest in the children of the Northern Territory and making sure they have a great future,” she said

Mr Lawrence, who has defended children in Don Dale Youth Detention Centre, said the passing of the law was backwards and shameful.

“What I witnessed there tonight was descent into barbarism,” he said.

“The conduct of Labor members ignoring the reasoned and fair criticism from a First Nations’ Yolngu Elder … was embarrassing to behold and spoke volumes to their character and the laws they pass.”

Human Rights Legal Centre director Nick Espie said the NT Royal Commission into Youth Detention had exposed how human rights abuses thrive in places like Don Dale.

“It is shameful that these laws have now passed and will erode critical safeguards to allow the NT government to dodge responsibility for human rights’ abuses that children and adults in prison can be subjected to,” Mr Espie said.

“These laws discriminate against Aboriginal people and contradict the NT government’s Aboriginal Justice Agreement to treat Aboriginal victims fairly, respectfully and without discrimination.”

He went on to say it was a backwards step in a “commitment to repairing” the Territory’s broken youth justice system.

Maurice Blackburn office leader Amy Williams, who represented the children in the $35m class action, has said the firm has serious concerns.

“It is deeply unjust to have a two-tier scheme, where those who are mistreated in custody are entitled to less compensation than others within our community,” she said.

“If the Government really wants to reduce its compensation bill, it should put more effort into making sure people aren’t harmed or abused, instead of introducing a price cap for damage that has already occurred.

Ms Williams said experience had shown that incarceration did not reduce the rate of reoffending, but making prisons safer and more rehabilitative does.

Before the law was passed, the Territory’s Anti-Discrimination Commissioner Sally Seviers and Acting Children commissioner Nicole Hucks condemned the amendments, calling for their withdrawal and widespread consultation.

Despite both commissioners holding portfolios that will be directly impacted by the change, neither were consulted prior to it being tabled back in March.

In 2021, the Office of the Children’s Commissioner 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 NT News also understands all consultation provided by NT Bar, NT Law Society, NAAJA and NT Legal Aid was not incorporated.

Ms Uibo confirmed her own Aboriginal Justice Unit, led by Leanne Liddle, was not consulted during the amendment’s development.

According to recent data provided by the NT Department of the Attorney-General and Justice, detention centres, work camps and prisons are completely full.

Darwin Correctional Facility has increased its operational capacity by converting single cells into bunks and “repurposing some rooms”.