High Court reserves ruling on Don Dale teens’ compo claim appeal bid

THE High Court has reserved its final ruling on whether four former Don Dale detainees should receive compensation for being tear gassed at the facility following a hearing in Canberra last week.

The High Court has reserved its final ruling on whether four former Don Dale detainees should receive compensation for being tear gassed at the facility, following a hearing in Canberra last week. Picture: AAP Image/Lukas Coch

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THE High Court has reserved its final ruling on whether four former Don Dale detainees should receive compensation for being tear gassed at the facility following a hearing in Canberra last week.

Josiah Binsaris, Leroy O’Shea, Keiran Webster and a fourth ex-detainee who can’t be named pursued their compensation claim through the Territory’s courts where it was rejected by the Supreme Court and Court of Appeal.

The four were granted leave to appeal those rulings to Australia’s highest court where lawyers for the group and the NT Government pleaded their respective cases before the panel of five judges on Wednesday.

The rejected damages claim contended they had unlawfully become collateral damage after prison officers used CS gas to target another unruly detainee in a 2014 incident that ultimately in part sparked the NT Youth Justice Royal Commission.

In 2017, Supreme Court Justice Judith Kelly found the tear-gassing was a “reasonable and necessary” use of force, a ruling affirmed on appeal last year.

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But in his submissions to the High Court last week, the teens’ lawyer, Bret Walker SC, said there remained an open question as to whether NT laws banned the use of CS gas in youth detention centres.

“The Youth Justice Act … overwhelmingly projects the decision by the legislature to treat youth offenders, including those charged but not yet convicted, differently from the way adults in the same position – that is convicted offenders or awaiting trial – in many, many different ways,” he said.

“The detention centre does not become a prison for the purpose of an emergency situation. It would have been a very simple legislative approach to do that but it may have been highly questionable as policy.”

In reply, counsel for the NT Government, David McLure SC, said the fact the law allowed for the use of certain weapons in adult prisons did not necessarily imply they could not be used in youth justice facilities.

“Our submission is that it is incapable of being an implication that the appellants contend for, that is, a prohibition from section 62 (of the Prison Act) is incapable of being sensibly extended to prison officers when dealing with prisoners outside of prisons,” he said.

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“If it is wrong in that respect, then it also must be wrong in relation to prison officers exercising their duties with respect to youth detainees, assuming they are acting in the course of their duties.”