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The New South Wales state government is seeking to prohibit the use of ‘spit hoods’ on detainees to ensure they cannot be used in the future due to the risk of trauma, injury or even death to the wearer.

A spit hood is typically a mesh bag which is placed over the heads of detainees, covering their face, which can be secured at the base around the wearer’s neck. They aim to stop the detainee from spitting or biting, to prevent injury or infection to guards.

However, their use creates a large risk of injury or death to the wearer, with spit hoods implicated in numerous deaths in custody.

The risk of using spit hoods has been found to vastly outweigh any benefits of their use, given they are ineffective in protecting against transmissible diseases as detailed by a review initiated by the Australian Federal Police (‘AFP’).

Most recently, an inquiry was held in the Coroners Court of Queensland into the death of Selesa Tafaifa, a 44-year-old woman, who died in Townsville Correctional Centre in November 2021.

The coronial inquest heard that a spit hood was put over Tafaifa’s head after she refused to go back to her cell and spat on an officer. It is alleged she told the prison guards four times that she couldn’t breathe before she died.

The Queensland police announced in September 2023 that it would no longer use spit hoods in watch houses; however, they continue to be used in the state’s prisons.

South Australia was the first state to enact a legislative ban on spit hoods in 2021.

In the Northern Territory, spit hoods have only been banned in youth detention centres since 2016.

However, the effectiveness of this ‘ban’, which was not legislated, has been questioned on many occasions with a report in 2023 detailing that police have nonetheless used the device 27 times on children, since 2016.

In 2023, the AFP and Australian Capital Territory Police announced they would no longer use spit hoods. Furthermore, they are not utilised in Victoria or New South Wales.

Whilst they are not used in NSW, the government is now seeking to “enshrine the current operational decision by agencies administering places of detention in New South Wales to not use spit hoods and ensure that only Parliament can authorise the use of spit hoods in the future” as explained by Member of the Legislative Assembly, Dr Hugh McDermott.

The bill will amend the legislation which governs places of detention in New South Wales to prohibit the use of spit hoods by their officers.

Dr McDermott noted that: “the New South Wales 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.”

The ‘Detention Legislation Amendment (Prohibition on Spit Hoods) Bill 2023’ seeks to effect this change, and would amend numerous Acts to ensure police officers, correctional officers, juvenile justice officers, medical officers and those employed at mental health facilities are prohibited from using spit hoods.

It does not include a specific criminal offence for breaching the prohibition on the use of spit hoods.

However, Dr McDermott said that: “if an officer were to place a spit hood on a person in contravention of the statutory prohibition, this would likely constitute an unauthorised or unreasonable use of force, which may trigger criminal and disciplinary action, and may also form the basis for a complaint to the NSW Ombudsman or the Law Enforcement Conduct Commission.”

The bill is currently in the Legislative Assembly and debate has been adjourned for further consideration.

In New South Wales, police officers must exercise force in a manner consistent with Part 18 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

This provides that police can use such force as is ‘reasonably necessary’ to exercise their powers, including when making an arrest or preventing the escape of a person after arrest.

This essentially means that if a suspect resists strongly, officers can use a greater level of force than a situation in which there is no resistance at all.

Other factors that play into this assessment include the suspect’s age, gender, size, fitness, and skill level, when compared to that of the officers present.

If a use of force is deemed to be unauthorised, unreasonable, or excessive, the officer’s actions may be found unlawful, which leaves them liable to criminal charges such as assault, similar to any regular citizen.

Published on 05/02/2024

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AUTHOR Poppy Morandin

Poppy Morandin is the managing law clerk and an integral part of the team of criminal lawyers at Criminal Defence Lawyers Australia . She's also a part of CDLA's content article production team. Poppy is passionate about law reform and criminal justice.

View all posts by Poppy Morandin