Statutes Amendment (Spit Hoods) Bill

Introduction and First Reading

The Hon. C. BONAROS (17:48): Obtained leave and introduced a bill for an act to amend the Correctional Services Act 1982, the Mental Health Act 2009, the Sheriff's Act 1978, the Summary Offences Act 1953 and the Youth Justice Administration Act 2016. Read a first time.

Second Reading

The Hon. C. BONAROS (17:49): I move:

That this bill be now read a second time.

I speak today on this bill for an act to amend the Correctional Services Act 1982, the Mental Health Act 2009, the Sherriff's Act 1978, the Summary Offences Act 1953 and the Youth Justice Administration Act 2016, all of which will have provisions relating the use of spit hoods in our youth detention settings.

As we were advised by the Minister for Human Services on 24 September, the South Australian Ombudsman, Wayne Lines, produced a report dated 5 September 2019 on his investigation concerning the use of spit hoods in the Adelaide Youth Training Centre (AYTC). Mr Lines' comprehensive report detailed the wide range of people with whom he consulted, and the relevant South Australian legislation and policies governing the use of spit hoods in the AYTC.

The Ombudsman also reviewed domestic and international human rights instruments applicable to the treatment of children and young people who have been deprived of their liberty. I would like to commend and thank the Ombudsman for his excellent report.

Although the use of spit hoods has declined in recent years, the 12 case studies involving the use of spit hoods in the AYTC included by the Ombudsman in his report are highly disturbing, to say the least. There were images of 10 adults manhandling a child because he did not want to leave his room and corrections staff restraining a child because she did not want to go to bed. These are extreme abuses of power that, should they have been perpetuated outside of the detention centre, would surely be the subject of criminal charges.

It is additionally concerning that in all but one of these cases, the child was also restrained and handcuffed in a prone position on the floor, which is known to increase the risk of trauma and asphyxiation, thus posing a very serious threat to the safety of the young person and also to the staff.

I was astonished to learn that South Australia is the only jurisdiction that still authorises and makes use of spit hoods in juvenile justice detention facilities. This is despite the shocking findings of the Four Corners report into the Northern Territory Don Dale youth centre in 2016, and media reports that have linked the use of spit hoods to deaths in custody here and in the United Kingdom and the United States. Some two years after Don Dale, South Australia has failed to implement the good practice of not putting spit hoods on clients.

The Royal Commission into the Protection and Detention of Children in the Northern Territory noted that other practice alternatives should be investigated to prevent exposure. Although every other jurisdiction in Australia has found spit hoods to be inconsistent with a 'trauma informed care framework', the former and current South Australian governments have sat on their hands and condoned the use of these barbaric and inhumane devices for too long. As Cheryl Axleby from the Aboriginal Legal Rights Movement has commented:

…the SA government should be embarrassed and ashamed by the findings of the SA Ombudsman's report into the shameful and degrading practice of using spit hoods and excessive restraints upon children in their care.

As Ombudsman Lines notes, he could not locate any empirical research that purported to evaluate the effectiveness of spit hoods over other forms of protective equipment. In fact, to the contrary, it has been found the use of force can exacerbate, rather than ameliorate, young people's challenging behaviour, especially those who have already experienced trauma.

Ombudsman Lines has recommended the use of spit hoods within the AYTC be reduced and eliminated by 5 September 2020. The minister has indicated she would ban the use of spit hoods from June 2020. This private member's bill is intended to end this unnecessary delay and to make sure that this happens immediately.

We know what best practice looks like in other jurisdictions and we know there are much better alternatives, so there can be no excuse for any further delay in SA. The bill itself makes quite simple and practical amendments to the acts that I have already referred to. It prohibits the use of spit hoods by a wide range of personnel, including security officers, departmental and correctional staff, police officers, Mental Health Act workers, sheriffs and trainee centre staff who may be working in any detention setting, from bail cells to youth training centres, including the AYTC, mental health detention facilities and police or other detention centre transfer vehicles. In a nutshell, if a minor is detained then the bill would prevent the use of a spit hood during their detention.

I understand the Ombudsman also recommended the government should review section 33 of the Youth Justice Administration Act and consider whether the provision authorising the use of force to maintain order in a training centre should be repealed. We on this side of the cross bench will certainly be monitoring the government's response to this recommendation and foreshadow introducing legislation to that effect if the government procrastinates on implementing the Ombudsman's finding in that regard.

I also understand that Ombudsman Lines is due to table a report shortly on the use of spit hoods on adults in custodial settings, and I eagerly await his recommendations, as is, I am sure, the Coroner investigating the death of Wayne Fella Morrison. I had foreshadowed that I would introduce one bill that would deal with both minors and adults and ban the use of spit hoods across the board.

However, given that we now know that there are further recommendations set to be presented to us by the Ombudsman when he finalises that report, I thought it was more appropriate that we deal with an issue concerning minors first—I think it is fair to say that will probably be the least contentious of the two issues—and then have the opportunity to reflect on the recommendations of the Ombudsman in relation to their use in the adult setting. For the benefit of members, I can flag that that is something that we are certainly extremely concerned about and think needs to be done away with.

Although still the subject of Supreme Court action and a coronial inquest, the death in custody of Wayne Fella Morrison, a man with serious pre-existing medical conditions who died wearing a spit hood while restrained face down in a corrections van, raises a lot more questions than the family has answers for at present. I have met with members of Mr Morrison's family. I have met with his mum and I have met with his sister, and I have assured them that I will persist until their questions are answered and until the appropriate legislation is passed by this place to deal with the use of spit hoods and ensure that nobody else suffers the same fate that their son and brother suffered at the hands of corrections.

I would like to acknowledge their tenacity and persistence to seek the truth in regard to what happened to their loved family member. Upon receipt of the report by the Ombudsman into the use of spit hoods in adult custodial settings, I again reiterate that I will be calling for the government to immediately follow our lead and legislate to implement the findings without delay.

Some 25 years after the Royal Commission into Aboriginal Deaths in Custody, conducted by that fearless champion of the human rights movement and passionate advocate for Indigenous Australians, Elliott Johnston QC OAM, it is appalling that in modern Australia we still have instances where people like Wayne Fella Morrison are still dying in custody in such tragic and completely unnecessary circumstances.

We have had at least nine deaths in custody in SA since 2008, all of which the Coroner has investigated, and we need to ensure all of these findings are acted upon, which is of course the exact purpose of another private member's bill that members would be familiar with, the Coroners (Miscellaneous) Amendment Bill 2019, which seeks to ensure that when a Coroner makes recommendations they are either acted on or, if the government of the day chooses not to act on the recommendations, then at the very least they will be required to provide a rationale for why it is that they are not taking action.

I will have lots more to say on this bill, but given the hour of the day I will not do that now. I look forward to progressing this bill as a matter of urgency, preferably before the Christmas break. I do not think there is any reason for delaying such an important issue any further, but in the meantime, I commend this bill to the chamber and seek leave to conclude my remarks.

Leave granted; debate adjourned.