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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-09-22 Daily Xml
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Statutes Amendment (Spit Hood Prohibition) Bill

Second Reading

The Hon. C. BONAROS (22:16): I move:

That this bill be now read a second time.

I rise to speak on the bill, which I desperately hope will enjoy the overwhelming support of this place and finally result in the prohibition on the use of spit hoods in all detention settings for people of all ages.

The timing of the debate—which has appropriately become known as Fella's Bill, in honour of Wayne Fella Morrison who died tragically in custody three days after being pulled unconscious from the back of a van at Yatala prison whilst wearing a spit hood amongst other restraints—is particularly poignant given this coming Sunday, 26 September, marks the fifth anniversary since Wayne's passing, five very long and painful years for Wayne's family to get to this day and this moment.

Before I get to the bill itself, Wayne's family have provided me with a statement that I will read onto the record on their behalf, and I quote:

Wayne Fella Morrison died in the Royal Adelaide Hospital on 26 September, 2016. We are Wayne's family. We only had 29 years with him before he was taken away. He belongs to a large and proud Aboriginal family, spanning culturally from the far West Coast of South Australia to New South Wales and beyond; a family who love and miss him deeply. While short, he made the most of his life.

After enrolling in year 13 at high school, he went on to undertake a number of diverse roles. Wayne moved in this world as an artist, a chef, a fisherman and a father. He had many creative hobbies. Alongside his dot paintings, he played every type of guitar. Following Wayne's death, two of his teachers who knew him across primary school and high school reached out. Both shared with us their sadness, especially given the talent they saw in Wayne from early on. When he was a young child, a piece of Wayne's art was selected as the winning piece at his primary school to be auctioned. Proceeds were donated to children undergoing treatment at the Adelaide Women's and Children's Hospital.

Wayne was out in the open ocean almost every day, for years, and especially towards the last years of his life. Speaking with the fishing community of St Kilda, they gave us only fond memories. We tell you this because it's not only our family who misses Wayne, but his larger community feels his loss deeply too. For our families, community and wider network who knew Wayne—our grief is deepened knowing his life was cut short because of reasons including asphyxiation.

He was the type of man who truly valued his space and his freedom. It devastates us to know that he died without space, without freedom, and that his lack of space and freedom took the breath that would have brought him back to us. Wayne Fella Morrison's death was preventable. That speaks to the multitude of ongoing issues of incarceration and control over Aboriginal people that this parliament has the power to resolve today, that has always had the power to resolve, even before Wayne's death. No person should die in custody and no Aboriginal person should be taken by the hands of the system that for hundreds of years has infiltrated every living minute of our lives.

In two days from now it will be five years since Wayne was restrained with a spit hood. He leaves behind his young daughter and his niece and nephews, who will one day read about this historic event when the parliament of South Australia decided to legislate the ban on spit hoods, to legislate Fella's law. This first step, while overdue, is the right one. The campaign for justice for Fella is far from over. We continue to await your public apology for Wayne's death and other legislated commitments against torture.

That apology I might add was recommended by Ombudsman Wayne Lines last year, following his own investigation into the practices of the Department for Correctional Services relating to Wayne's death. That apology might be outstanding, but that does not mean we cannot offer our own apologies in this place.

I, for one, am so very, very sorry. I am sorry to Caroline Andersen, Wayne's mum, to Buster Morrison, to Ella Russo, to Patrick Morrison and to Latoya Aroha Rule, Wayne's siblings, and I am sorry to Allyssa, Wayne's daughter. I am so sorry that your son, your brother, your father, your loved one died a potentially preventable death. I am sorry that you had to endure 1,822 days of pain and sorrow and heartache. I am sorry that you had to spend 1,822 days visualising Wayne's final moments, imagining how scared and how terrified he would have been.

I am sorry you had to be forced to sit in the Coroner's Court and listen to the word 'privilege' over 1,600 times. I am sorry that you had to hear the phrase 'I don't recall' almost 600 times. I am sorry witnesses present on that fateful day, including the prison officers responsible for putting that spit hood on Wayne and carrying him into the prison van, have only offered their names, ranks and titles. I am sorry changes were made to the Coroner's Act too late to affect Wayne's inquest.

I am sorry for all the systemic failures outlined by the Ombudsman that failed your son, your brother, your father and your loved one. I am sorry it has taken a worldwide pandemic to show those in power that PPE (personal protective equipment) is the answer, rather than a spit hood placed over a detained person's head. I am sorry that you are facing the rest of your lives without Wayne here; it did not have to be this way. Finally, I am sorry that justice has so far been denied to your family.

I know that nothing I say or do will heal Wayne's family's pain, that nothing will heal the grief that they are feeling and that nothing will bring Wayne back, but the passage of Fella's Bill I hope will give them some comfort for what they have achieved and the sense of justice that they deserve.

To Wayne's family, your passionate, articulate and committed advocacy and commitment will ensure that no other family will have to endure a pain like yours, that it does not happen to one more son, to one more brother, to one more father, to one more loved one. As of this morning an online petition started by Wayne's family, calling for the ban on spit hoods, has received 26,509 signatures. There are many people behind you.

To the bill before us today, Fella's Bill, I seek leave now to table a copy of that online petition addressed to the Parliament of South Australia; to the Attorney-General of South Australia, Vickie Chapman MP; to the Premier of South Australia, Steven Marshall MP; and to the Minister for Police, Emergency Services and Correctional Services, Vincent Tarzia MP. It is being tabled as a document rather than a petition, Mr President.

The PRESIDENT: I understand that this petition does not conform with what we normally do in this chamber. Is leave granted to table that document?

An honourable member: Yes.

Leave granted.

The Hon. C. BONAROS: The petition, which is an online petition, reads:

Here lies more than 26,540 signatures in support of a legislated ban on spit hoods in all contexts throughout South Australia, following the death in custody of Wayne Fella Morrison in 2016.

After almost 5 years of advocacy towards this ban, we remember the words of Kaurna, Narungga and Wirangu Elder, the late Uncle Tauto Sansbury:

The discussion needs to start. And then it needs to continue until it bears fruit.

The life and death of Wayne Fella Morrison is not in vain.

From: the family and community of Wayne Fella Morrison and supporters of Fella's Bill, Statutes Amendment (Spit Hood Prohibition) Bill.

I do not make a habit of signing petitions that I have an interest in, but I was more than pleased and humbled to add my name to this one.

Fella's Bill seeks to prohibit 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 training centre staff. I am delighted to say that there is finally consensus that this archaic, barbaric method of restraint is not acceptable for use on anyone of any age in any setting—not in a police cell, not in a court sell, not in a prison cell, not even in a hospital ward, and not in a mental health detention facility or in the back of a transfer vehicle.

I have amended Fella's Bill to encompass my private member's bill banning spit hoods for youth, which has been sitting idle in the House of Assembly for quite some time. It is my sincere hope that common sense has finally prevailed here today. There is absolutely no reason to delay this any longer, especially given the anniversary on 26 September.

I understand from the government that the use of spit hoods by police and corrections is now being phased out, but this is not something we should be comfortable leaving to policy because, as we all know only too well, policies can be undone and changed with the stroke of a pen. The law needs to make it very clear: putting a spit hood over a detained person's head or asking them to do it themselves amounts to torture. It is inhumane. Indeed, it is at complete odds with the OPCAT laws this parliament has debated and continues to debate and the international treaty obligations underpinning those laws, which we have signed up to.

The old days of rack 'em, pack 'em and stack 'em are long gone. No person should be taken into custody and die as a result of preventable means. No person should be the subject of the systemic failures identified and outlined by the Ombudsman in his report. No family should be left behind not only to pick up the broken pieces but to have to fight tooth and nail for five years to determine the circumstances behind their loved one's death, and that is precisely what Wayne's family has been left to do.

Let me be crystal clear: this bill has nothing to do with being soft on crime. Those who commit serious crimes should feel the force of our laws appropriately. Those who commit the most heinous crimes should be subject to proportionate custodial sentences, but no person deserves, according to our own laws and the international obligations that we have signed up to, to be treated inhumanely and to be subjected to torture and other cruel, inhuman or degrading treatment or punishment.

They are not my words; they are the principles underlying the OPCAT legislation that this government has introduced into this place in line with our obligations under those international treaties. There is no question—absolutely none—that the barbaric and archaic use of spit hoods has no place in our community, regardless of the environment they find themselves in.

If you need further convincing that there are less dangerous and more appropriate and effective means of protecting workers during the course of their employment from unruly or dangerous persons in custody, then you need to look no further than how our hospitals have approached this issue of protecting their staff. You protect your workers. You need look no further than the use of PPE, which has become so prevalent and common practice as a result of COVID-19. Easy options that pose significant risks to people in custody or detention are not the answer. Spit hoods are certainly not the answer.

Before closing, again, I would like to highlight to honourable members that there is one set of amendments on file that seek to broaden the scope of the bill to minors. As members will recall, and as I have highlighted already, a separate bill dealing with minors has already been dealt with in this place and passed this chamber and has sat in the other place. In the hopefully very likely event that this bill passes today, it makes no sense that minors be carved out from its scope. We need to deal with spit hoods across the board in all custodial and detention settings, including our Adelaide Youth Training Centre. That is the purpose of those amendments. They are very straightforward.

I remind members that spit hoods were introduced into our minors’ detention settings, namely, the Adelaide Youth Training Centre, as late as 2014. While their use may have fallen considerably since 2017, they continued to be perfectly legal and indeed in use until the announcement was made to phase them out last year.

It is my sincere hope, on behalf of Wayne's family, that today will mark a historic moment in this place, one that is in line with community expectations, one that demonstrates that we can all come together and implement sensible and meaningful reforms unanimously, and one that will provide some comfort to Wayne's family, who have fought so hard to see this through to the end despite their unimaginable grief and pain, and to do so in honour of Mr Morrison's memory.

In the words of the late Uncle Sansbury, 'The discussions need to start and then it needs to bear fruit.' Fella's Bill is a significant step towards ensuring just that. Let's not allow Wayne's death to be in vain. With those words, I look forward to the contributions of other members and their support for the prohibition of spit hoods once and for all for all people in all detention settings across South Australia.

The Hon. K.J. MAHER (Leader of the Opposition) (22:33): I rise to speak on behalf of the Labor opposition and indicate we will be supporting the bill that is before us. The Hon. Connie Bonaros first introduced a bill to ban the use of spit hoods in October 2019 that itself responded to a South Australian Ombudsman's report in September 2019 that followed national reporting on the use of spit hoods in the Northern Territory's Don Dale Youth Detention Centre.

That bill passed the Legislative Council with the Labor opposition's support but languished in the government-controlled House of Assembly. The earlier bill sought to ban the use of spit hoods on minors only and, as I said, Labor supported the bill at that time. The new bill before us seeks to ban spit hoods on adults and, with the application of the amendment, on minors, as well, reflecting the earlier bill.

This bill, as the Hon. Connie Bonaros has outlined, follows the death in a South Australian prison of an Aboriginal man, Wayne Fella Morrison, which also triggered changes to the Coroners Act. In the period between consideration of the earlier bill and the bill that is before us, as the Hon. Connie Bonaros has outlined, South Australian government departments informed members that they introduced a range of administrative measures to phase out the use of spit hoods for both adults and minors. Passing a bill that reflects what the government departments say is current practice can do no harm and ensures that they cannot be reintroduced.

In supporting this bill, Labor wants to congratulate the Hon. Connie Bonaros on her determination and the many hours she has spent drafting this bill, attending coronial inquests and with the family. More than that—that is the end of the process—Labor wants to acknowledge and pay tribute to the late Wayne Fella Morrison's family, in particular Latoya Rule, who has turned adversity and a personal and family tragedy into advocacy and something that actually changes the world for people.

A number of us have spent quite a bit of time with Latoya going through this bill and looking at how we can get it successfully passed in the remaining time we have. A number of options have been discussed, including whether the possibility of two years' prison or employment or disciplinary action for breaching the bill as a possible sanction might increase the likelihood of this bill passing. As I understand it, the government will be supporting the bill as it currently stands and I expect it will be passed unanimously in this chamber.

With that, I commend the bill to the chamber. I do acknowledge the lateness of the hour and that Latoya has taken over the tweeting on IndigenousX for the course of today. We have seen the billboards around town and they have been put up on Twitter. We do apologise that it has taken so long to get to this bill, but it is much better late than never.

The Hon. T.A. FRANKS (22:37): I rise in support of this bill, which will be known as Fella's Bill, to ban spit hoods. On behalf of the Greens, I note that we are now approaching the fifth anniversary of Wayne Fella Morrison's death. That death has given rise to this piece of legislation we see before us tonight. It will not bring him back, but it will protect adults and children into the future.

Spit hoods are a mesh fabric hood designed for restraint. They conceal the face and are generally fixed at the base with a band around the neck. In theory, they are used to protect corrections workers from spitting or biting. In practice, they cause harm and they cause deaths. Every other jurisdiction has gone before South Australia and, unfortunately, we now only come up at the back of the pack in addressing and righting this wrong.

I note that Wayne Fella Morrison was a Wiradjuri, Kokatha and Wirangu man. He was 29 years old when he died—when he was killed—in South Australia's Yatala Labour Prison. Of course, he died in hospital later on but his last conscious breath was taken with a spit hood on, face down in the back of a prison transport van. We do not know quite what happened in that van. There was no CCTV and there were certainly more questions raised than answers given through the arduous processes that followed.

The Northern Territory banned the use of spit hoods on minors in 2019, following the shocking investigation aired on ABC TV that showed Dylan Voller restrained in a chair in Darwin's Don Dale Youth Detention Centre and forced to wear one of these spit hoods. South Australia has, in more recent times, implemented what is an intended administrative ban. That is not good enough. This parliament will effect real change in the legislation, in the act, as it should be and as we should have done so many years ago.

We will not bring Fella back. We will go some way to honouring his legacy, and certainly I join in my mentioning tonight of Latoya Rule and her tireless advocacy for justice for her brother, for justice for her people, and pay tribute to that work. With those few words, the Greens will support that bill.

The Hon. J.A. DARLEY (22:40): I rise to make a brief contribution on this bill. I understand that the correctional services department was investigating alternative arrangements for the use of spit hoods, but there would be several months before they obtained separate equipment. I would like to obtain clarification on this point from the Hon. Connie Bonaros, if possible. If alternative arrangements have been made or sufficient time has elapsed for these arrangements to be made, then the prohibition is more than reasonable and I will support this bill.

The Hon. S.G. WADE (Minister for Health and Wellbeing) (22:41): I rise to speak on the Statutes Amendment (Spit Hood Prohibition) Bill 2020 and indicate I am the lead speaker for the government. The bill proposes a prohibition of the use of spit hoods in five pieces of legislation: 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.

In 2019, the Hon. Connie Bonaros introduced a similar bill, the Statutes Amendment (Spit Hoods) Bill, which amended the same pieces of legislation as the bill before us. However, that bill only prohibited the use of spit hoods on persons under the age of 18 years. I indicate the government will be supporting this bill. Since the introduction of the 2019 bill, a number of agencies have taken steps to remove or prohibit the use of spit hoods.

I am pleased to inform the council that spit hoods are not used in any operational context across the agencies referenced by the bill. Earlier this year, the Department for Correctional Services determined to ban the use of spit hoods across all South Australian prisons. The decision was made following a comprehensive review of alternative protective measures for correctional services officers, where risk of contamination by means of bodily fluids is identified. It is anticipated that spit hoods will be removed from South Australian prisons by the end of September 2021.

In a youth justice setting, the Marshall Liberal government committed to banning the use of spit hoods in the youth justice system and on children detained under the Mental Health Act 2019 in September 2019. On 1 July 2020, the use of resident worn spit protection for all young people, regardless of age, was prohibited at Kurlana Tapa, the youth justice facility. This followed recommendations by the Ombudsman of South Australia, which were provided to the Department of Human Services in September 2019.

In the mental health setting, the standard to reduce and eliminate where possible the use of restraint and seclusion applied under the Mental Health Act, updated and released in May 2021, provides that the least restrictive intervention must be used first. A formal authorisation is required to use a restrictive practice, including an approved restrictive mechanical device. The Chief Psychiatrist has advised that spit hoods would not be approved as a mechanical device for children or adults. The Marshall Liberal government supports this bill.

The Hon. C. BONAROS (22:44): Can I start by thanking the Leader of the Opposition, the Hon. Kyam Maher; the Hon. Tammy Franks; the Hon. John Darley; and the Hon. Stephen Wade on behalf of all the political parties in this place for their support in relation to this bill. I can assure you that even in the moments that we have been speaking Wayne's family have been in contact to say that they are overwhelmed by the support that they are seeing in this place this evening. I am glad that is the case for them, and I am glad that we have come together in this place to pass these very important laws.

I would like to just take the opportunity while I am on my feet to address the concerns or questions that have been raised by the Hon. John Darley. They have certainly been addressed with me via the office of Minister Tarzia, the Minister for Police, Emergency Services and Correctional Services. They relate specifically, as alluded to by the Hon. Stephen Wade, to what the policy will be after September, when spit hoods will no longer be available in our detention settings or custodial settings.

I have been advised by the government that a detailed information manual for the staff, 'Spit hood removal—way forward', has been drafted and is being reviewed by the deputy chief executive. That manual contains comprehensive information on risk mitigation strategies, risk reduction and management of prisoners who are spitting or threatening to spit.

It is still estimated that the removal of spit hoods will occur by the end of September 2021, according to the announcement that was made in relation to the phase-out of spit hoods. The general managers, with support from security managers, will oversee the removal. All references to spit hoods in standard operating procedures will be removed. In terms of the alternatives, consultation on alternative PPE, as I referred to in my second reading explanation, for staff is still being undertaken. Communication with the PSA and representatives from DCS is continuing. A trial of PPE similar to that used by youth justice occurred in August 2021; however, I think that was deemed unsuitable, and alternative options are still being considered in that context.

I can also advise, based on the information I have—and I think I might have mentioned this already—the phase-out period that was committed to by the government is in place, and those alternatives, again as alluded to by the minister, are being considered in terms of identifying suitable PPE that can be used in place of spit hoods.

With those words—and I hope that clarifies the Hon. John Darley's queries—on behalf of SA-Best and on behalf of Wayne's family I offer my sincere thanks to all members in this place for their support on this very important piece of legislation, which as I said I hope will go some way towards easing the pain that Wayne's family has had to endure for some five years now, pain that by no stretch of the imagination will ever be overcome, especially given that as we know and as was referred to by the Hon. Tammy Franks there is still a coronial inquest underway, which to date has taken some three years.

I am sure that coronial inquest and its findings will also provide the family with some more answers to what can only be described as very tragic circumstances for them and, of course, for Wayne. With those words, again I thank honourable members for their support.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 and 2 passed.

Clause 3.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–1]—

Page 3, line 7 [clause 3, inserted section 86AA(1)]—Delete 'an adult person' and substitute:

a person

Just for the record, all of the amendments are related. They all deal with the same issue, and that is broadening the scope of the bill to ensure that it includes a person rather than an adult, to ensure that it covers the jurisdiction of adults and minors and that it will apply to the Adelaide Youth Training Centre in addition to the other detention and custodial settings that are already outlined in the bill.

Amendment carried; clause as amended passed.

Clause 4.

The Hon. C. BONAROS: Again, for the benefit of members, all of the remaining amendments are related to the first one. I move:

Amendment No 2 [Bonaros–1]—

Page 3, line 20 [clause 4, inserted section 48A(1)]—Delete 'an adult person' and substitute:

a person

Amendment carried; clause as amended passed.

Clause 5.

The Hon. C. BONAROS: I move:

Amendment No 3 [Bonaros–1]—

Page 3, lines 32 and 33 [clause 5, inserted section 9J(1)]—Delete 'an adult person' and substitute:

a person

Amendment carried; clause as amended passed.

Clause 6.

The Hon. C. BONAROS: I move:

Amendment No 4 [Bonaros–1]—

Page 4, lines 11 and 12 [clause 6, inserted section 82A(1)]—Delete 'an adult person' and substitute:

a person

Amendment carried; clause as amended passed.

Clause 7.

The Hon. C. BONAROS: I move:

Amendment No 5 [Bonaros–1]—

Page 4, line 25 [clause 7, inserted section 33A(1)]—Delete 'an adult person' and substitute:

a person

Amendment carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. C. BONAROS (22:54): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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