NSW Bans the Use of Spit Hoods in Places of Detention

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By Paul Gregoire and Ugur Nedim

Two incidents in 2016 that involved spit hoods in certain Australian jurisdictions brought the issue of the controversial use of these antiquated devices to national and global attention.

The first was the airing of the Four Corners documentary Australia’s Shame, which featured imagery of a shirtless 17-year-old Aboriginal boy strapped to a mechanical chair with a spit hood on his head, and left in that position for almost two hours. And stills of this torture scene went viral globally.

The other tragedy occurred in September, as 29-year-old Wiradjuri, Kookatha, Wirangu man Wayne “Fella” Morrison was wrestled by a dozen Yatala Labour Prison guards in South Australia, who put a spit hood on him and placed him in a van in the prone position and when it stopped, he was dead.

Led by Morrison’s family, the National Ban Spit Hoods Coalition formed in 2022, after the success of a push that saw a spit hood ban legislated in South Australia the year prior, and this campaign has just seen NSW become the second Australian jurisdiction to pass laws prohibiting them.

And in a rare show of cross party agreement, Labor, the Liberals, the Nationals and the Greens all voted last week to pass the Detention Legislation Amendment (Prohibition on Spit Hoods) Bill 2023, which was drafted by the NSW attorney general’s office.

A legislated ban for NSW

“The NSW government considers that the use of spit hoods in places of detention is an outdated practice that does not align with community expectations about the treatment of persons in places of detention,” Labor MP Dr Hugh McDermott told the NSW lower house on 23 November 2023.

“Spit hoods are not used in NSW, but that does not mean that they cannot be used in the future,” he added, as part of the second reading speech on the bill, which was read on behalf AG Michael Daley. “Without the bill, there is nothing preventing spit hoods from being authorised for future use.”

The ban has been inserted into five Acts. These include the Children (Detention Centres) Act 1987 (NSW), covering child prisons, the Crimes (Administration of Sentences) Act 1999 (NSW), capturing adult facilities and the Drug and Alcohol Treatment Act 2007 (NSW), in regard to treatment centres.

The ban was also inserted into the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), to apply to police cells and officers, as well as the Mental Health Act 2007 (NSW) and the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) to cover those facilities.

The bill defines a spit hood as “a covering, however described, intended to be placed over a person’s head to prevent the person from spitting on, or biting, another person”. And it underscores that the ban does not apply to padded helmets designed to prevent detainee self-harm.

Each of the newly inserted sections outline that the staff involved in each of the differing places of detention are restricted from using potentially deadly spit hoods.

And the legislated ban does not create a specific criminal offence with penalties applying to it, rather anyone found to be “contravening the statutory ban” would likely be considered to have been using unreasonable force, which “may trigger criminal and disciplinary action”.

A legislated ban is necessary

The National Ban Spit Hoods Coalition states that it had reviewed operational bans on spit hoods, such as has been operating in this state prior to the new laws taking effect, but it found that a legislated prohibition was necessitated to prevent the reemergence of such practices in the future.

Reasons for the legislated ban include it being written into law, to act as a safeguard against policy reversal, it being consistent with international law, and that such a ban is in line with community wants, as evidenced by the SA #BanSpitHoods petition having garnered close to 27,000 signatures.

As the ban was before the NSW Legislative Council on 7 February, NSW Greens MP Jenny Leong acknowledged the work of “community and activists”, and she made special mention of Latoya Rule, sister of Wayne “Fella” Morrison, who has been pivotal in the SA and the national campaigns.

Rule has stated that “the assumed need for use of spit hoods is purely based on stigma against some of the most vulnerable people in our communities”. And Leong read these words onto the record.

“The Greens have been echoing the calls from the community to ban the use of spit hoods across this country for years,” the Greens member for Newtown outlined. “Spit hoods are dehumanising, dangerous and archaic. They should never have entered into use.”

“It is disgraceful that they are still being used and have not been outlawed or banned in all parts of Australia,” she continued.

Leong further made clear that the use of spit hoods is “humiliating and degrading”, and in line with the Australian Human Rights Commission’s considerations, the use of the devices breaches human rights. And she added that the United Nations has noted that the practice is torturous.

“The implications of the use of spit hoods on First Nations people cannot be stressed enough,” the Greens member outlined, adding that their use in institutions infected by systemic racism, “has continued since colonisation and invasion” and it continues today.

Support in high places

The National Ban Spit Hoods Coalition criticised the Northern Territory government’s decision not to legislate a ban in regard to spit hoods last September, after the territory rejected a recommendation by the NT Ombudsman.

Despite an operational ban on their use on children having been in place in the NT for the last six years, territory police still readily employ the use of the devices on adults.

Yet, this is going against the grain of the broader push by authorities, as displayed in a 28 April 2023 communique from the Standing Council of Attorneys General that said it “agreed to work together to consider the feasibility of nationally co-ordinated action” to legislate spit hood bans.

And this determination came just a week after the Australian Federal Police and ACT Policing announced that they were no longer going to apply the use of spit hoods in their operations, after an AFP review found they pose “unjustifiable risks”.

The NSW ban on spit hoods will be effective once the NSW Governor assents to the bill, via the act of signing it.

Main image: Still taken from the SA #BanSpitHoods petition footage 

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