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NT Ombudsman recommends spit hoods be outlawed

Dechlan Brennan -

The Northern Territory ombudsman has recommended the state government formally ban spit hoods as part of a groundbreaking 140 page report on the use of devices in police custody.

The report, tabled in NT Parliament on Wednesday, also makes recommendations on the use of emergency restraint chairs. It noted that the NT police should engage with experts to develop alternative approaches.

Also among the recommendations by Ombudsman Peter Shoyer, is for police to extend the already existing operation ban on the use of spit hoods on children to all people in custody.

Latoya Rule's brother, 29-year-old Aboriginal man Wayne Fella Morrison died in the Royal Adelaide Hospital in 2016 days after he was he was restrained with handcuffs, ankle flexi-cuffs and a spit mask and placed face down in the rear of the van.

They lead the National Ban Spit hoods Coalition, who welcomed the recommendations from the ombudsman, saying it was time the NT take a "stand against torture."

"We continue to hear from doctors and nurses that spit hoods are unnecessary, can cause significant distress, and in my brother's case and sadly others across Australia, they have been associated with asphyxiation and death," they told National Indigenous Times.

"The NT government must heed our collective calls as a matter of urgency. This move is consistent with human rights obligations and will save lives."

NT Corrections no longer uses spit hoods but it is not legislatively enforced. Previously, the NT government, along with the Northern Territory Police Association (NTPA), have resisted turning the operation ban into law.

Police Minister Kate Worden told ABC she was satisfied with the status quo, despite the ombudsman's recommendations.

"NT Police has already reviewed the use of spit hoods in Territory Watch Houses to ensure our processes are modern and uphold the safety of our police and people in custody," she said.

"The Northern Territory Government has already banned the use of spit hoods (in) youth detention centres and watch houses.

"Spit hoods are only (to) be used on adults in Police watch houses in exceptional circumstances with mandatory reporting requirements."

She said that whilst NT police would work through the report, they had no intention of putting a ban of spit hoods for adults in watch houses into law.

The use of spit hoods in NT was thrust into the spotlight when ABC's Four Corners Programme ran a 2016 expose which featured footage of a retained child in a chair with a spit hood on.

The NT government promptly ended the use of restraint chairs and spit hoods in youth detention centres, later legislative amendments removed the use of them in youth detention centres by omitting them from the list of approved restraints.

However, this ban didn't extend to preventing the use of them on children in police custody, instead focussing on improved policies.

The ombudsman report notes that: "As a result, the use of spit hoods and emergency restraint chairs (ERCs) on children by police both in field and in watch houses continued."

The NTPA argues that spit hoods are necessary in specific circumstances to protect their officers. This, despite health bodies saying they do not stop the spread of communicable diseases.

In June, acting NT children's commissioner Nicole Hucks called for their total ban, telling the ABC that "the use of spit hoods is quite harmful to anybody."

"We know those children coming into contact with police here in the Northern Territory already have significant trauma histories," she said.

National Director of Change the Record, Maggie Munn, said at the time that spit hoods often have fatal consequences in detention.

"What we're seeing in practice across a number of states and territories is that there is an operational ban … but there are always extenuating circumstances in which they are employed," they said.

Australia's Children's Commissioner Anne Hollands said in April that the use of spit hoods risked "devastating short and long term consequences" for children.

The United Nations Committee Against Torture expressed concern about the use of restraint chairs in the United States as a breach of the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment.

The ombudsman investigation identified numerous physical and psychological risks to children with the use of restraints and spit hoods.

Physical risks include restricting the ability to breathe; in spit hoods this can be through pressure of the material or due to the presence of vomit or other bodily fluids, with other jurisdictions reporting deaths as a result of spit hoods and the restraints being unnecessarily tight.

Psychological harm from use of these devices may include the trauma of being subjected to such restraint, as well as longer term stress arising from the incident - which includes the potential impacts on development.

The report noted that of the 30 cases of ERC and spit hood use on children in 2020 and 2021, nearly all were Aboriginal - in part due to the gross over representation of First Nations children in custody in the Northern Territory.

Over half of the children were intoxicated at the time, with some being taken into custody initially for "minor incidents."

"It is clear there is considerable room for officers to improve their efforts at genuine communication with children," Shoyer said.

He noted police would benefit greatly from de-escalation training to minimise the use of devices and the same response to children could be replicated with adults.

Acknowledging that spitting on police officers was "abhorrent behaviour," Shoyer said they should be given protective equipment to lower the risk of spitting.

He recommended that NT police "place major emphasis on encouraging patience, empathy and connection" and "for as long as (emergency restraint chairs) are retained as an option for use by officers, NT Police endure that spit hoods and (emergency restraint chairs) are not used in combination under any circumstances for any people in custody".

Along with recommending the complete legislative ban, Shoyer said that if their use were to continue, he recommended they not be used on intoxicated people - due to the increased risk of vomiting - and for an implemented time limit on their use.

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