Bills

Statutes Amendment (Spit Hoods) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 17 October 2019.)

The Hon. C.M. SCRIVEN (23:13): I rise on behalf of the opposition to indicate our support for the Statutes Amendment (Spit Hoods) Bill and indicate that I am the lead speaker for the opposition on this bill. The bill legislates a ban on the use of spit hoods on minors across South Australia's statute books by amending acts under which young persons might be detained or otherwise held.

In particular, this bill follows the September 2019 report by the South Australian Ombudsman which detailed serious issues relating to the use of spit hoods in the Adelaide Youth Training Centre. The opposition supports a ban on the use of spit hoods on children. We, like so many South Australians, were deeply concerned by the contents of the Ombudsman's report, particularly the case studies of the use of spit hoods.

I note that, per the Ombudsman's report, South Australia is the last of the Australian states and territories to permit the use of spit hoods in youth detention. This is clearly a situation that needs to be remedied. While we welcome the government's commitment to phase out the use of spit hoods in the youth training centre, we believe that specific commitments need to be made by the government regarding training and alternative equipment for workers at the youth training centre.

It is not enough for the government simply to ban the use of spit hoods in youth detention. Staff must be provided with alternative methods to address situations where spit hoods would currently be used and trained in the implementation of those methods. These methods should be in line with current best practice, and staff should be supported in this change.

Through the consultation phase, the shadow minister in the other place was informed that there has been a smooth transition to other forms of protection from spitting and other bodily fluid transfers in other jurisdictions. There is no reason this cannot occur in our own jurisdiction with the appropriate support from the department; however, I note that the bill does not simply affect the Adelaide Youth Training Centre but also other acts under which children and young people may be detained.

I understand that current South Australia Police policy is not to use spit hoods on juveniles and, in that respect, this bill reflects some current practice. I am also advised that spit hoods are not used in health settings and their use is not anticipated. Healthcare workers across all settings, including mental health, pioneered the use of personal protective equipment and continue to meet the highest of standards worldwide. The opposition recognises that alternative options to spit hoods should now be available to those working in youth detention settings. We support the end of their use and, for that reason, we support the bill.

The Hon. J.M.A. LENSINK (Minister for Human Services) (23:16): The government opposes this bill for three reasons. The first reason we oppose this bill is that there is a pathway to eliminating the practice of using spit hoods, which I outlined in my ministerial statement following the tabling of the South Australian Ombudsman's report. That investigation took place following the exposure in 2016 by the ABC's Four Corners of the shocking practices at the Don Dale Youth Detention Centre in the Northern Territory, which was an impetus for a royal commission and board of inquiry into the Northern Territory's child protection and youth detention systems.

One of the Northern Territory commission's recommendations was that the use of spit hoods be prohibited in the Northern Territory, which led to highlighting this issue in a number of other jurisdictions and the investigation of spit hoods in South Australia's youth detention system. This was the impetus for the South Australian Ombudsman to commence what is called an own-initiative investigation into their use in South Australia. As I stated, we agreed with a number of those recommendations and following a pathway to have spit hoods eliminated.

The second reason why the government opposes this is that it codifies operational practices, which is not a preferred method of enacting change in systems within our agencies. If the government were not acting following the reports of the Ombudsman and the Training Centre Visitor, I think it would be justified for the parliament to express a point of view but, given that we do have a pathway, we see it as unnecessary.

The third is that it criminalises the use of equipment by the people it is there to protect. Operational practices certainly change over time. I think that is a given. The government youth training centre and the Department of Human Services has accepted that spit hoods are unacceptable, and we are unequivocal in that we intend to eliminate them by June next year. The bill before us amends five pieces of legislation: the Correctional Services Act, the Mental Health Act, the Sheriff's Act, the Summary Offences Act and the Youth Justice Administration Act.

If the bill were passed in its current form, it would require the immediate cessation of the use of spit hoods in custodial settings for persons under the age of 18, with criminal penalties including imprisonment for up to two years. In terms of the youth justice section and the Adelaide Youth Training Centre advice, their advice is that this bill may create risks to safety and security in the Adelaide Youth Training Centre, including for the workforce, the department and industrially.

As I noted in my ministerial statement on 24 September in reference to the Ombudsman's report, the report notes that there were 57 reported uses of spit hoods from October 2016 to June 2019. Changes to practices have seen the training centre significantly reduce the use of spit hoods since that time to only five uses in 2018-19 and none so far since 31 March this year, and that is still the case.

While this reduction is to be commended, it remains that South Australia is the only jurisdiction in Australia that authorises the use of spit hoods in its detention centre, a dubious honour that we should not be proud of. This is why the Department of Human Services will cease the use of spit hoods within 12 months, accepting all three spit hood recommendations made by the Ombudsman.

The transition time is necessary to identify, source and implement appropriate alternative options, including training staff in new techniques, to ensure a smooth and safe transition. As I said, the Department of Human Services has publicly committed to ceasing the use of spit hoods by June 2020 and reporting to the Ombudsman on this by 5 September 2020, and this commitment now also includes court transport contractor, G4S.

The primary purpose for use of mechanical restraints, such as resident-worn spit protection, is to ensure the safety and security of staff and residents at the AYTC and community safety during periods of escorted leave. Regulations under the Youth Justice Administration Act provide that mechanical restraints may be used only if there are reasonable grounds to believe that the resident is about to harm himself or herself or another person, or it is necessary to restrain the resident to preserve the security of the centre, to prevent the resident from escaping from custody or to preserve community safety.

The regulations also provide safeguards on the use of mechanical restraints, including that they may only be used as a last resort and must not be used to punish the resident. From a practical perspective, the use of mechanical restraints is approved by the Chief Executive of DHS under the Youth Justice Administration Regulations. Legislative change is therefore not required as, under these regulations, the chief executive may revoke its authorisation.

A transition time is essential to ensure that best practice alternatives are in place by the time spit hoods are banned. DHS advise that the removal of resident-worn spit protection as an option for protecting staff in the very specific and limited circumstances during this time of transition, where other methods, such as personal protective equipment, are not viable or available to cover the full suite of circumstances and ensure that non-pain compliance techniques are utilised, is problematic.

During the transition phase, an increased level of authorised approval is applied before the resident-worn spit protection can be used. DHS intends to seek independent expert advice to review and assess the AYTC's use of force and current restraint techniques as part of a broader review into youth justice policy and practice.

In relation to SA Health and Mental Health Act implications, the Chief Psychiatrist recommends that the proposed amendment to the Mental Health Act should not be supported, as it is not necessary and may actually be unhelpful to the review currently being undertaken by his office. Further, the proposed amendment to the Mental Health Act may create unintended consequences if other items not listed by their omission are being considered to be acceptable for use.

The Chief Psychiatrist considers that, in line with trauma-informed practice, spit hoods should be prohibited from use on minors. The Chief Psychiatrist is currently in the process of reviewing the use of restraint devices for people experiencing symptoms of mental illness across SA Health facilities and approving or otherwise their use in specific circumstances.

Spit hoods will not be considered an acceptable device and would not be approved for use as a restraint option for people with mental illness. The inappropriateness of spit hood use will be underscored by the imminent issuing of a Chief Psychiatrist standard on the use of restrictive practices under section 90(1) of the Mental Health Act, which is currently being consulted on.

In relation to the Department for Correctional Services, Corrections advise that in practice there are very few instances where a person under the age of 18 is held in an adult prison in the custody of the Chief Executive of the Department for Correctional Services under the Correctional Services Act. The proposed amendment to the Correctional Services Act is therefore considered unnecessary and at this time is not supported.

In relation to SA Police advice on amendments to the Summary Offences Act, it is as follows: the use of spit hoods is governed by internal SAPOL policy. A spit hood may be used for protection from a detainee who is likely to deliberately spit fluid. Use must be authorised by the officer in charge of the cells in a custodial facility or, if used outside of a custody facility, by the shift supervisor. SAPOL has a duty of care to provide a safe working environment for its employees.

Spitting is a common behaviour encountered by police in the execution of their duties, and SAPOL maintain there is a need for the use of spit masks under strict conditions. SAPOL do not support total prohibition on the use of spit hoods and would consider prohibition to be in conflict with the principles of the recently commenced Criminal Law Consolidation (Assaults on Prescribed Emergency Workers) Amendment Act 2019.

There are implications of creating criminal offences for public sector employees for the use of spit hoods. The state government's position is that the use of spit hoods on children and young people in custodial settings should be banned through existing policy and legislative provisions, using disciplinary action to enforce compliance by public sector employees with this prohibition rather than creating a specific piece of legislation that enacts criminal offences of up to two years' imprisonment.

By means of delegated legislation or administrative action, such as through codes of conduct or practice, general orders, policies or directions to staff, the use of spit hoods by officers and employees can already be prohibited. Any use of spit hoods contrary to these legislative instruments and policies can be dealt with through disciplinary measures on the grounds of misconduct under the provisions of part 7, division 3, of the Public Sector Act 2009, and the Code of Ethics for the South Australian Public Sector, made pursuant to section 15 of the Public Sector Act 2009.

It is a bit like being in a parallel universe sometimes in this place, but I have sought specific advice from the Public Service Association, which I would like to quote. Their position is as follows:

1. The safety of staff and of young people is of paramount concern. At present, spit hoods provide one means for protecting the safety of our members in exceptional circumstances. Our members are subjected to serious risks of spitting and biting on a regular basis.

2. We note from the Ombudsman's report he confirms that the spit hoods in use are transparent. That is, they are not the notorious Don Dale non-transparent version.

3. We note that spit hoods are not routinely used at present, and are only used in exceptional circumstances.

4. The immediate complete prohibition on spit hoods is too extreme in the current circumstances, including where appropriate alternatives are not in place. (Ie, at present there may be circumstances where, despite all other options and best efforts, a spit hood is the safest option).

5. We support the Ombudsman's position, and the Department's position, that spit hoods may be phased out over a period of 12 months—but our support is subject to the provision of adequate and appropriate alternatives, of which there are none in the SA facilities at the moment.

6. It is also critical that employees are fully trained in any alternatives being suggested or provided as alternatives to spit hoods. It will take time to roll out appropriate training to all the staff.

7. The maximum penalty of two (2) year's imprisonment is far too excessive and out of proportion to the matter at hand. The risks to our members from spitting or biting are life long serious illnesses or injuries.

This is a summary of our position.

Regards,

Austin White

There are also some perceptions, I think, that can be had about the training centre from time to time that I would like to address. I think it is fair to say that it is a challenging environment for the people who work there and that at times there can be situations that can get out of hand if they are not managed appropriately. The staff in the training centre are very well trained in how to use behavioural techniques, in preference to others, to de-escalate situations, and that is the way they process any situation that they think may be getting out of control.

It is the most physically modern youth training centre in Australia. It is a campus-like environment and, if there is any perception that it has some resemblance to a Dickensian institution, I would like that to be put at rest once and for all. I agree that some of the images probably are quite challenging to look at. If I can explain that some of the techniques are actually the safest way to safely and painlessly de-escalate a situation that does require some physical intervention.

The way it has been explained to me is that there is a number of staff who are required, particularly when the prone position is used. You will have one staff member who will need to be at each arm, one person at the legs and then someone who is talking to the person who is being restrained. Then there is another person to supervise, so that is five staff who are involved. In comparison to the one young person, I can understand that that looks challenging, but there are reasons why that is the most appropriate way.

Quite specifically, staff do not restrain people by using their torso. I think that has been inaccurately said to be part of the practice, but it is not. Restraint using a torso is the way that may cause asphyxiation risk, and that is not used in the Adelaide Youth Training Centre. The Youth Training Centre staff are trained in behaviour support techniques. They use specialist physical intervention, called the Maybo technique, to manage conflict and challenging behaviour. Maybo was operationalised at the Adelaide Youth Training Centre in 2012, and all operational staff are trained to use what are called non-pain compliant techniques.

The physical intervention is based on the provision of a safe, non-threatening approach when managing conflict with residents in crisis or demonstrating challenging behaviours. Since the findings of the Northern Territory royal commission, Maybo training and its use has been implemented in Northern Territory Youth Justice.

I have mentioned the prone position, where a resident is safely restrained on the floor. This is only ever to be used as a last resort in the Adelaide Youth Training Centre. It requires multiple staff holding the limbs to ensure that pressure is not placed on the torso, thereby reducing asphyxiation risk.

AYTC practice has developed since the incidents have been under review by the SA Ombudsman. DHS continues to improve practice, commencing a comprehensive independent review of all policy and practice relating to security and operational matters, including isolation, segregation, mechanical restraints and the use of force. I have mentioned that the usage has dropped dramatically: we have had no usage in the Youth Training Centre since March.

I think I have also addressed the reasons why we need time to ensure that we adopt best practice going forward and that vigorous training for all staff is rolled out. I would also like to thank the Ombudsman and the Training Centre Visitor for their work in this space. There are always practices that can be improved. I think it is very useful, in an environment such as this, that we have independent eyes and an independent voice that can assist to improve practice in an ongoing manner.

The Hon. C. BONAROS (23:32): This bill is particularly timely this week because, although we are dealing specifically with the use of spit hoods on minors, I think it is important to note that 19 South Australian prison guards are this week attempting to have a coroner removed from investigating the death in custody of an Indigenous man, after seven guards lost the bid to give evidence into the inquest of Wayne Fella Morrison. As I have said before in this place, Wayne Fella Morrison died in custody while wearing a spit hood. That matter is the subject of not only a coronial inquest but also Supreme Court hearings that are taking place this week.

I am following that case closely because it deals with the use of spit hoods, not only in relation to minors but also in relation to its appropriateness in an adult custody setting. In that regard, given that I have referred to this previously and there is an undertaking that I have given, I think it is important to refer to a letter sent to me by the Ombudsman in relation to an investigation undertaken by his office. In that letter, he says:

I refer to your Second Reading Speech on 17 October 2019 in relation to your bill 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. According to Hansard, that speech included the following:

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.

The letter goes on to say:

While I note your concerns about the use of spit hoods in adult prisons, I confirm that my Office is not currently conducting any investigation into the use of spit hoods in adult prisons (whether as a practice or in relation to an individual prisoner).

While I am currently conducting an 'own initiative' investigation concerning administrative acts of the agency leading up to and after Mr Morrison's death, I am not conducting an investigation into the incident that preceded Mr Morrison's death, noting that there is currently a coronial investigation on foot.

That said, please note that unless and until I determine that it is in the public interest to disclose or authorise disclosure of the details of my investigation, any investigation by my Office remains confidential.

I would be grateful if you take steps to clarify this matter as you see fit and authorise you to disclose the contents of this letter as necessary.

In the circumstances, I consider it appropriate to provide a copy of this letter to the Minister for Correctional Services and the Shadow Minister for Correctional Services.

I read that onto the record because I think it is important that the Ombudsman's concerns be noted and I certainly apologise to the Ombudsman for my misinterpretation in terms of the review that he was undertaking on the use of spit hoods, given what he said in his letter.

On the issue of spit hoods and minors and in relation specifically to what the minister has said, our position remains the same: if the government has accepted the banning of spit hoods, there is no reason whatsoever for not prescribing that ban in legislation. We absolutely should not be proud of our use of spit hoods on minors; that is a point that I do agree with the minister on.

I fully acknowledge and accept that there are individuals, whether they be minors or adults, who can be extremely challenging in their behaviour, but if our medical professionals and mental health professionals can find alternative ways to deal with those individuals in those settings, then surely the same should apply across the board—end of story. Our police should do the same, our corrections officers should do the same. I do not care if there are 15 cases, 12 cases or one case: SA-Best's position is that any case involving the use of a spit hood on a minor—anyone aged under 18—is completely inappropriate.

Pending the outcomes of the coronial inquest, I have indicated that we will be moving further amendments in this place to ensure that the use of spit hoods—and I should say, more commonly, the inappropriate use of spit hoods—on any individual in a custodial setting is stamped out once and for all. There are alternatives, and if that requires resourcing by the government, if that requires extra training, if that requires extra funding, then that is what the government should be focused on.

Our position remains that the benefit of legislation is clear. It sends a clear message that the use of spit hoods will not be tolerated under any circumstances in this instance, at least when it comes to minors. Can I say in relation to our emergency services workers, in relation to the issue of bites and spitting, that is something that we have advocated for for years in this place, but again I come back to the point that there are alternatives to using spit hoods, which can have life-threatening impacts, and especially the use of those spit hoods on minors.

Our position is that you either support or you do not support the use of spit hoods. It is all well and good for us to say that it is policy that we do not support the use of spit hoods, but we have heard today a number of caveats to that policy from the government, and they are not caveats that I or SA-Best are willing to accept. For that reason—

The Hon. J.M.A. Lensink: You might want to front up to the union and face them.

The Hon. C. BONAROS: I am quite happy to front up to any union.

The PRESIDENT: The Hon. Ms Bonaros, this is getting beyond a summing-up. Either wind it up or I am going to sit you down. Okay?

The Hon. C. BONAROS: Thank you, Mr President. With those words, I commend the bill to the chamber.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. J.M.A. LENSINK: Can I ask the mover of this bill which organisations or experts she has consulted in the drafting of this legislation?

The Hon. C. BONAROS: I have not consulted with the PSA, if that is what the minister would like to know, and I had no intention of consulting with the PSA. Who I consulted with was the family of an individual who died in custody involving the use of spit hoods. I waited for the outcomes of the Ombudsman's report, and I think that outlined extensively the position in relation to spit hoods. I have consulted with members of the legal fraternity and people who have dealt with cases involving spit hoods and the inappropriate use of spit hoods. That is what our policy is based on.

Clause passed.

Remaining clauses (2 to 7) and title passed.

Bill reported without amendment.

Third Reading

The Hon. C. BONAROS (23:45): I move:

That this bill be now read a third time.

Bill read a third time and passed.

At 23:46 the council adjourned until Thursday 28 November 2019 at 11:00.