Binsaris v Northern Territory: Tear Gas in Prison


The use of tear gas in policing and prison has been a contentious topic for years. The issue was central to the 2020 High Court decision of Binsaris v Northern Territory (also known as the Don Dale case). In that case, four young Aboriginal boys who had been detained at Don Dale Youth Detention Centre in the Northern Territory sued the NT government after being exposed to tear gas while in detention. This article summarises what that court decision said about the lawful use of tear gas by prison officers.

Facts of Binsaris v Northern Territory

In 2014, a detainee (Jake Roper) at Don Dale Youth Detention Centre escaped his cell and began causing a disturbance in the facility. The Immediate Action Team was dispatched to the facility to respond. He was warned by the prison officers to desist. When Roper refused to comply, one of the officers used a fogger to deploy 2-chlorobenzylidene malononitrile (CS tear gas). Four other detainees were exposed to tear gas in the process. They were:

– Josiah Binsaris;
– Keiran Webster;
– Leroy O’Shea; and
– Ethan Austral

These four detainees subsequently sued the NT government for battery, arguing that the prison officer acted unlawfully by using CS gas. The government argued that the corrections officer was justified in his actions and was acting lawfully in the course of his duties as a prison officer.

The claims were dismissed by the NT Supreme Court. The plaintiffs appealed to the High Court.

When can tear gas be used in the NT?

CS gas is deployed using a CS fogger. The fogger is a prohibited weapon under the NT Weapons Control Act, except where it is permitted to be used by an exemption. The NT Prisons (Correctional Services) Act allows for the use of certain prohibited weapons if they are supplied to a prison officer, police officer or correctional officer for the performance of their duties.

The detainees’ argument

The detainees sued for damages for assault and battery, including through the use of CS tear gas. They argued that the prison officer acted unlawfully by deploying the CS tear gas in the detention centre.

The NT government’s argument

The respondent argued that the NT Youth Justice Act allows for a prison officer to bring with them the powers conferred under the Prison Act, when called upon by the superintendent of a prison to aid in an emergency situation. It argued that the prison officer was therefore acting lawfully within the scope of his duties.

The High Court’s decision

The majority of the High Court, made up of Justices Gordon and Edelman found that the use of the CS gas had been unlawful. Their Honours highlighted the following points:

-The Prisons Act permits the use of a weapon to maintain security only in a prison or police prison;

-Although the legislation permits the use of CS foggers by prison officers in certain circumstances, a detention centre is not a prison;

-Youth detainees at a detention centre are not prisoners; and

-A superintendent of a detention centre under the Youth Justice Act is not a prescribed person under the Weapons Control Act

The Prisons Act and the Weapons Control Act, therefore, did not authorise the use of a CS fogger in a youth detention centre.

Justice Gageler dissented, finding that the use of CS gas by the prison officer was exempt from criminal liability under the Weapons Control Act. However, His Honour found that the exemption did not provide a defence to a claim in tort by an onlooker who suffers unintended harm by reason of the use of necessary force. For this reason, Gageler reached the same conclusion as the majority, allowing the appeals and agreeing with the orders proposed by Justices Gordon and Edelman.

The Don Dale decision clearly highlights the distinction between prisoners and youth detainees, and between prisons and detention centres. It also underlines the importance of clearly delineating the powers conferred by legislative exemptions.

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