ESSAY QUESTION

While the intentional torts are not often litigated, they provide common law rights which can constrain the unbridled exercise of public officials’ power against citizens. They therefore have particular significance for vulnerable groups in society and those who historically and/or continue to experience abuse of power. Whilst the Don Dale litigants were successful in the above mentioned cases the judgments invisibilise key systemic features of the violence such as, racism, discrimination and inequality which contextualise the plaintiffs’ experiences of abuse.The Four Corners program ‘Australia’s Shame’ brought public attention to the torture of young people in the now notorious Don Dale Youth Detention Centre in the Northern Territory. The program shows children and young people being shackled, hooded and sprayed with tear gas. The public’s response was of immediate shock and approbation. This, together with much of the subsequent media coverage, presented this treatment as a breach of human rights, illegitimate and requiring public accountability. Shortly after the screening of the Four Corners program the Royal Commission into the Protection and Detention of Children in the Northern Territory was announced. The media coverage, Royal Commission and battery and assault litigation provide some accountability with respect to the mistreatment of young people under the loco parentis of the state when in youth detention centres.HCA 22 are welcome and important decisions because they establish constraints with respect to the use of force against children and young people in detention. Justice Kelly in the Northern Territory Supreme Court found that the use of leg shackles, spit hoods and the manner of handcuffing the plaintiffs amounted to battery. On appeal the High Court found that the use of tear gas against the plaintiffs also amounted to battery.

Pam Stewart and Anita Stuhmcke, Australian Principles of Tort Law (Federation Press, 4th ed, 2017)

Australian Broadcasting Corporation, 'Australia's Shame', Four Corners, (26 July 2016,Caro Meldrum-Hanna) <https://www.abc.net.au/4corners/australias-shame-promo/7649462>.

news/2019/may/31/system-is-broken-all-children-in-nt-detention-are-aboriginal-officials-

say>. .

Priel, Dan, ‘A Public Role for the Intentional Torts’ in Barker, Kit, and Darryn Jensen (eds)

Private Law: Key Encounters with Public Law (Cambridge University Press, 2014).

Stefan Bird-Pollan, ‘The place of the unconscious in critiques of systematic prejudice: Lessons from MacKinnon and Critical Race Theory’ (2020) 51 The Philosophical Forum 377.

Background material

LO v Northern Territory (2017) 317 FLR 324. See in particular paras 29-35, 108, 115, and 168

–367.

Commonwealth of Australia, Report of the Royal Commission and Board of Inquiry, The Protection and Detention of Children in the Northern Territory (Report, Vol 2A, 2017)

<https://www.royalcommission.gov.au/child-detention/final-report>.

Eileen Baldry, Damon B Briggs, Barry Goldson and Sophie Russell ‘Cruel and unusual punishment’: an inter-jurisdictional study of the criminalisation of young people with complex support needs’ (2018) 21(5) Journal of Youth Studies 636.

Terri Libesman, 'Commentary: South Australia v Lampard-Trevorrow [2010] ‘SASC 56' in Nicole Watson and Heather Douglas (eds), Indigenous Legal Judgments: Bringing Indigenous Voices into Judicial Decision Making (Routledge, 2021).

Kirsten Gray, 'Dissenting Judgement: South Australia v Lampard-Trevorrow [2010] ‘SASC 56' in Nicole Watson and Heather Douglas (eds), Indigenous Legal Judgments: Bringing Indigenous Voices into Judicial Decision Making (Routledge, 2021).

Kate Fitz-Gibbon, 'The Treatment of Australian Children in Detention: A Human Rights Law Analysis of Media Coverage in the Wake of Abuse at the Don Dale Detention Centre' (2018) 41(1) University of New South Wales Law Journal 100.