The DEPUTY PRESIDENT (The Hon. Rod Roberts): I acknowledge the presence in the President's gallery of Ms Latoya Rule and Ms Alison Whittaker, who sit within the Jumbunna Institute for Indigenous Education and Research at the University of Technology Sydney. Latoya is the sibling of Wayne "Fella" Morrison, who died in custody in South Australia on 26 September 2015 following restraint asphyxiation from a spit hood. They are very welcome.

The Hon. ANTHONY D'ADAM (19:14): On behalf of the Hon. Daniel Mookhey: I move:

That this bill be now read a second time.

The Government is pleased to introduce the Detention Legislation Amendment (Prohibition on Spit Hoods) Bill 2023. The bill will amend legislation governing places of detention in New South Wales to prohibit the use of spit hoods by officers exercising functions under those Acts. A spit hood is a hood that covers the face or mouth of the wearer and can typically be secured at the base, around the wearer's neck. Spit hoods prevent the wearer from spitting on or biting other persons but can cause trauma, injury or death to the wearer. The New South Wales Government considers that the use of spit hoods in places of detention is an outdated practice that does not align with community expectations about the treatment of persons in places of detention. Spit hoods are not used in New South Wales but that does not mean that they cannot be used in the future. Without the bill there is nothing preventing spit hoods from being authorised for future use.

The bill will enshrine the current operational decision by agencies administering places of detention in New South Wales to not use spit hoods and will ensure that only Parliament can authorise the use of spit hoods in the future. Given the risks posed to persons as a result of the use of spit hoods, the human rights implications and, in particular, the negative impacts on children, the New South Wales Government is of the view that, if any attempts are made in the future to authorise their use in this State, that is something that should be subject to parliamentary scrutiny.

Places of detention in New South Wales are governed by multiple Acts across a number of ministerial portfolios. This bill will introduce a statutory prohibition on the use of spit hoods in all of those Acts. The statutory prohibition on the use of spit hoods will not be limited to within places of detention. It will also apply when officers exercising functions under the respective Acts are exercising those functions outside the place of detention—for example, if a correctional officer is escorting an inmate to a hospital. To protect against the risk of spitting, law enforcement and health officers may continue to use alternative methods of protection. Those include staff‑worn personal protective equipment such as face shields, masks and gloves or other appropriate risk mitigation strategies.

The bill does not include a specific criminal offence for breaching the prohibition on the use of spit hoods. However, 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 has arisen following consideration by the Standing Council of Attorneys-General of the feasibility of a nationally coordinated approach to prohibit the use of spit hoods. Jurisdictions ultimately agreed to individually review any residual authorities to use spit hoods in their respective jurisdictions. The bill gives effect to the Standing Council of Attorneys-General's recommendations.

I would like to thank the Minister for Health, the Minister for Police and Counter-terrorism, the Minister for Corrections and the Minister for Youth Justice for their endorsement of and support for the introduction of a statutory prohibition on the use of spit hoods. I also acknowledge that various bodies have recommended the prohibition of spit hoods, including Amnesty International, the Royal Commission into the Protection and Detention of Children in the Northern Territory, the Australian Human Rights Commission and the South Australian Ombudsman.

I seek leave to have the remainder of the second reading speech incorporated inHansard.

Leave granted.

I now turn to the detail of the bill.

Scope of the bill

The bill inserts provisions which prohibit the use of spit hoods into the following Acts that govern places of detention in New South Wales:

Children (Detention Centres) Act 1987 - this will capture youth detention centres

Crimes (Administration of Sentences) Act 1999 - this will capture correctional centres and court cells

Drug and Alcohol Treatment Act 2007 - this will capture treatment centres

Law Enforcement (Powers and Responsibilities) Act 2002 - this will capture police cells and the NSW Police Force generally

Mental Health Act 2007 and Mental Health and Cognitive Impairment Forensic Provisions Act 2020 - this will capture mental health facilities.

Schedule 1 to the bill will introduce proposed section 22A into the Children (Detention Centres) Act 1987 to define 'spit hood' and provide that a juvenile justice officer, a correctional officer or a police officer exercising functions under this Act must not use a spit hood in the exercise of those functions.

Schedule 2 to the bill will introduce proposed section 236R into the Crimes (Administration of Sentences) Act 1999 to define 'spit hood' and provide that a correctional officer, police officer or person employed in a private correctional centre exercising functions under this Act must not use a spit hood in the exercise of those functions.

Schedule 3 to the bill will introduce proposed section 49A into the Drug and Alcohol Treatment Act 2007 to define 'spit hood' and provide that a person exercising a function under this Act must not use a spit hood in the exercise of that function.

Schedule 4 to the bill will introduce proposed section 231A into the Law Enforcement (Powers and Responsibilities) Act 2002 to define 'spit hood' and provide that a police officer or other detention officer exercising functions under this Act must not use a spit hood in the exercise of those functions.

For avoidance of doubt, this section also clarifies that the terms "authorised place of detention" and "detention officer" have the same meanings as in Part 16 of this Act.

Schedule 5 to the bill will introduce proposed section 69A into the Mental Health Act 2007 to define 'spit hood' and provide that an authorised medical officer or another person exercising functions under this Act must not use a spit hood in the exercise of those functions.

Schedule 6 to the bill will make a consequential amendment to section 71 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 to ensure that new section 69A of the Mental Health Act 2007 applies to the treatment of forensic patients and correctional patients.

Each amending Schedule to 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".

The bill also clarifies that the definition of spit hood does not include a helmet designed to prevent self-harm, even if the helmet incorporates a part designed to stop spittle.

This clarification has been included out of an abundance of caution as the padded self-harm helmets that are used by Corrective Services NSW are placed over a person's head and incorporate a removable piece of Perspex that is designed to stop the wearer from spitting on another person. However, unlike spit hoods, self-harm helmets do not pose a risk to the wearer as they do not restrict airflow and are primarily designed to stop the wearer from potentially very serious injury resulting from an act of self-harm.

It should also be noted that it is not the intention of the bill for face masks, such as surgical masks used to mitigate the risk of transmission of COVID-19, to be captured by the definition of 'spit hood'.

Each amending Schedule to the bill also includes a drafting note that a contravention of the statutory prohibition on the use of spit hoods may constitute an unauthorised or unreasonable use of force.

The bill will commence on assent. As the statutory prohibition on the use of spit hoods legislates existing operational practice, there will be no operational impact on affected agencies and these agencies do not need to take steps to implement the statutory prohibition.

Conclusion

This bill makes it clear that spit hoods will never have a place in detention settings in New South Wales.

I commend the bill to the House.

Second Reading Debate

The Hon. NATASHA MACLAREN-JONES (19:17): On behalf of the Opposition, I lead in debate on the Detention Legislation Amendment (Prohibition on Spit Hoods) Bill 2023. The Opposition supports the bill. I note that spit hoods are not currently used in New South Wales and that that is an operational decision by the agencies administering places of detention in New South Wales. The bill enshrines existing operational practice and ensures that only Parliament can sanction the use of spit hoods in the future. The bill amends various Acts relating to the detention of persons to prohibit the use of spit hoods, including the Children (Detention Centres) Act 1987, which concerns youth detention centres; the Crimes (Administration of Sentences) Act 1999, which concerns correctional centres and court cells; the Drug and Alcohol Treatment Act 2007, which concerns treatment centres; the Law Enforcement (Powers and Responsibilities) Act 2002, which concerns police cells and the NSW Police Force; and the Mental Health Act 2007 and the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, which concern mental health facilities.

The bill aligns with recommendations from the Standing Council on Attorneys‑General, which advocated for a nationwide ban on spit hoods due to their adverse effects. The bill also supports the position of various agencies including the Australian Federal Police and findings from inquiries including the Royal Commission into the Protection and Detention of Children in the Northern Territory.

The risks associated with spit hoods—such as choking, asphyxiation and potential trauma—underscore the necessity for their prohibition. The provisions of the bill address the prohibition of spit hoods in New South Wales and were outlined in detail by the shadow Minister during the second reading debate in the other place. Therefore, I will not outline them again. Each schedule within the bill provides a comprehensive definition of spit hoods, clarifying their intended purpose and excluding helmets that are designed to prevent self-harm. Unlike spit hoods, self-harm protective helmets do not pose a risk to the wearer, and this distinction is crucial to avoid ambiguity and ensure that protective measures remain. The bill makes it clear that spit hoods are entirely unsuitable for use within places of detention in New South Wales. I commend the bill to the House.

Ms SUE HIGGINSON (19:19): On behalf of The Greens, I indicate our support for the Detention Legislation Amendment (Prohibition of Spit Hoods) Bill 2023. The object of the bill is to amend various Acts relating to the detention of persons to prohibit the use of spit hoods in New South Wales. This is a welcome legislative amendment and one which The Greens support in full. We know that the use of spit hoods in our carceral and care systems is a form of degrading, inhumane treatment and can amount to torture and result in death. We also know that spit hoods are disproportionately weaponised against the most vulnerable and targeted members of our community.

At its core, the use of these devices is a gross debasement of inherent dignity and basic human rights. The profound damage and trauma, not to mention existential threat, inflicted by the use of spit hoods can never be underestimated. The Greens have been consistently calling for the legislated ban of this torture device, in step with community groups, for years now. Whilst spit hoods are not currently used in New South Wales, it is worth noting that the legislated prohibition of these torture devices within our prisons, youth detention centres and mental health facilities is more than long overdue. We support these long-called-for amendments, noting that it was in fact The Greens that commended the bill in the other place.

Today I have the great pleasure of acknowledging the presence of Latoya Rule and Alison Whittaker in the President's gallery, two First Nations researchers who sit within the incredible Jumbunna Institute for Indigenous Education and Research at the University of Technology Sydney. The Jumbunna Institute is a member of the National Ban Spit Hoods Coalition. As acknowledged by the Deputy President, Latoya is also the sibling of Wayne "Fella" Morrison, who died in custody in South Australia on 26 September 2016 following restraint asphyxiation after being hooded with a spit hood. The National Ban Spit Hoods Coalition was formed by Latoya in 2021, following the success of their family and community's campaign to ban spit hoods in South Australia with Fella's Law. The National Ban Spit Hoods Coalition is made up of advocates, researchers, families and individuals who care for the rights of the most vulnerable people in our communities—those who spit hoods are used most frequently against.

We know that spit hoods are used disproportionately against First Nations people, particularly First Nations children, and are authorised for use upon children as young as 10 years old across Australia and upon people with mental health conditions. The Ban Spit Hoods Coalition has provided briefs and submissions to politicians, decision-makers and royal commissions, and has given evidence to the United Nations Subcommittee on Prevention of Torture on the issue of spit hood prohibition. The UN Subcommittee on Prevention of Torture has since recommended a national ban on spit hoods for people of all ages in all settings in Australia. It is a good day when human rights, such as the right against torture, are protected. Today we join South Australia in outlawing spit hoods and call upon members in other jurisdictions to heed this critical call. I thank Latoya for her courage and her commitment in her fight for justice. I acknowledge the deep and profound loss that she will always feel.

The Hon. CAMERON MURPHY (19:24): I speak in favour of the Detention Legislation Amendment (Prohibition on Spit Hoods) Bill 2023. I thank the Attorney General and the Minns Labor Government for bringing about this important reform, and I particularly commend the swiftness of the Attorney General and his office in acting on this gravely important issue. I also acknowledge the presence in the President's gallery today of Latoya Aroha Rule and Alison Whittaker from the National Ban Spit Hoods Coalition. I thank them for their advocacy on the issue and hope that this bill in New South Wales will serve as a model for other jurisdictions around Australia to follow so that we can end the use of those dangerous and despicable devices.

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". Generally, a spit hood is a hood that covers the face or mouth of the wearer. It can usually be secured at the base, around the wearer's neck, and it can be made from various materials including mesh. Spit hoods present a risk of choking and asphyxiation, and can cause trauma, injury or even death to the wearer. Those risks make the use of spit hoods inexcusable, especially when the alternatives are considered. In New South Wales, law enforcement and health workers use alternative methods of protection against spitting, such as personal protective equipment and the use of de‑escalation tactics. A worker who is spat on in New South Wales may also be able to apply for a mandatory disease testing order under the Mandatory Disease Testing Act 2021.

Furthermore, a spit hood is an obviously dangerous method of restraint that does not solve any of the underlying problems that cause incidences of spitting or violence in custodial settings in the first place. My father, Justice Murphy, in his seminal judgement inNeal v R [1982] HCA 55, stated at paragraph 20:

Spitting is humiliating and degrading. It is a typical response of children and others without power, attempting to humiliate and degrade those who are seen as oppressors. … The sentence of imprisonment imposed upon Mr Neal will not improve race relations but will tend to embitter them.

Spit hoods serve only to introduce a further level of escalation to the situation and do not address the inherent power imbalance between figures of authority and detained persons in those environments. There are better, less dangerous and less violent ways to reduce cases of spitting as well as the methods already used to mitigate their effects. The fact of the matter is that spit hoods are a dangerous form of restraint that has no place in a compassionate and civilised society in which the human rights of all people are respected, even those who are incarcerated or detained.

Many have called for a ban on spit hoods in Australia, including Amnesty International and the United Nations Subcommittee on the Prevention of Torture. The 2017 Royal Commission into the Protection and Detention of Children in the Northern Territory and a 2019 investigation by the South Australian Ombudsman into the use of spit hoods at the Adelaide Youth Training Centre also recommended that their use should be prohibited. The idea that the devices have been used on children in those settings is chilling. It brings to mind the startling images of a young boy, Dylan Voller, restrained and hooded at Don Dale Youth Detention Centre—images that captivated the nation and led to the aforementioned royal commission. Those atrocities should never be repeated.

In 2021 South Australia was the first jurisdiction in Australia to criminalise the use of spit hoods following the death of Wayne "Fella" Morrison, a 29-year-old Wiradjuri, Kokatha and Wirangu man, in 2016. Again, I note the presence of Latoya Rule, Mr Morrison's sibling, in the President's gallery tonight. Credit for this monumental change must be given to their family and their supporters. I again thank them for their advocacy. Still, it should not take a death to achieve change. I am very proud that New South Wales is leading the charge for other States across the country to outlaw this practice. Unfortunately, the use of spit hoods continues in other jurisdictions such as Queensland.

In October of last year an inquiry was undertaken in Townsville into the death of Selesa Tafaifa, a Samoan woman who died in custody. Video footage of that incident has revealed that Ms Tafaifa, who had asthma and other health concerns, was forcefully restrained by officers and had a spit hood placed on her while in respiratory distress. Six minutes after the confrontation began, she was dead. Ms Tafaifa repeatedly stated, "I can't breathe." That statement now has a new resonance following the tragic death of George Floyd at the hands of police officers in the United States in 2020.

On 22 November last year I spoke in this place about the death of Ms Tafaifa and the continuing tragedy of deaths, particularly Aboriginal deaths, in custody. I called for a nationwide ban of spit hoods then. I continue that call today and hope there will be a day soon when the use of spit hoods is prohibited by law across Australia. This legislation is important not only because it makes clear that there is no doubt on the matter—spit hoods are unlawful and should not be used in New South Wales—but also because it serves as an example to other jurisdictions that still use spit hoods and where they should be banned. Following the consideration of this matter by the Standing Council of Attorneys-General last year, I am very hopeful that the use of spit hoods can be eliminated not only in New South Wales but also across Australia. Again, I thank the Attorney General for introducing the bill. I commend it to the House.

The Hon. AILEEN MacDONALD (19:31): I support the Detention Legislation Amendment (Prohibition on Spit Hoods) Bill 2023, which prohibits the use of spit hoods on people, particularly young people, in detention or custody. In a previous life I was a community corrections officer of 10 years standing and I agree with the general consensus that they are quite simply inhumane. I note that spit hoods are not used in New South Wales and certainly were not used in New South Wales when the Coalition was in government. I most definitely believe it is in the public interest to ensure that detention practices in New South Wales are safe and secure and align with community expectations.

I know this has already been said, but it is worth repeating: Spit hoods are quite obviously a humiliation, present a risk of choking and asphyxiation, and can cause trauma, injury or death to the wearer. I know from personal experience that the protection of people who work with detainees from spitting can be achieved in other ways, as already outlined by the Hon. Anthony D'Adam. The use of spit hoods in places of detention is clearly an outdated practice that does not align with community expectations. Amnesty International Australia has said that spit hoods are a "tool of torture" that can cause profound damage and trauma. I note that the bill captures a range of facilities, including youth detention centres. I support the bill because, while spit hoods are not used in New South Wales, it ensures that they cannot be used in the future. For all the right reasons, it makes clear that spit hoods will never have a place in detention settings in New South Wales. I commend the bill to the House.

The Hon. STEPHEN LAWRENCE (19:34): I speak in support of the Detention Legislation Amendment (Prohibition on Spit Hoods) Bill 2023. I commend the Attorney General for his work on the introduction of this comprehensive bill to prohibit the use of spit hoods in all detention centres, correction centres and court cells as well as drug and alcohol treatment centres and mental health facilities. I also acknowledge the presence of Alison and Latoya in the President's gallery. I had the privilege of meeting with them last week and getting some particular insights into the bill and the circumstances that have brought it about. I acknowledge their important work in the National Ban Spit Hoods Coalition, and also their important work at Jumbunna in researching particular issues that relate to coronial inquests and the experience of First Nations people in those inquests.

Having appeared in a number of death in custody inquests for Aboriginal families, I can certainly speak to how horrific and traumatic they are. A whole range of social and cultural factors compound and produce truly horrible experiences. I distinctly remember, though, the determination of those families to get truth and justice. Often those matters go on for years and years, and the determination of those families is quite incredible. But Latoya has really taken it to a new level in the sense that her terrible experience has led her to bring about legislative change across the country. That is truly an incredible thing. It was such a tragic death, but the consequences that have flowed from it will save other lives. I acknowledge the really profound work that Latoya has done.

A lot has been said already. Spit hoods are known to present a risk of choking and asphyxiation and can cause trauma, injury or death to a wearer. A number of reports and reviews, such as the 2017Report of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory and the South Australian Ombudsman'sInvestigation concerning the use of spit hoods in the Adelaide Youth Training Centre, have identified those risks and recommended their prohibition.

The bill before the House has arisen following consideration of the use of spit hoods by the Standing Council of Attorneys-General, which considered the feasibility of a nationally coordinated approach to prohibit the use of spit hoods in April 2023. In September 2023 the council agreed to review any residual authorities to use spit hoods in its respective jurisdictions. This bill gives effect to those recommendations in New South Wales. In the scale of these things and how slowly things can work, it truly is a prompt response to the recommendations. I am proud indeed to be a member of a government that has responded so promptly. For those reasons, I commend the bill to the House.

The Hon. ANTHONY D'ADAM (19:37): On behalf of the Hon. Daniel Mookhey: In reply: I thank honourable members for their contributions to debate and their support for the Detention Legislation Amendment (Prohibition on Spit Hoods) Bill 2023, particularly the Hon. Natasha Maclaren-Jones, Ms Sue Higginson, the Hon. Aileen MacDonald, the Hon. Cameron Murphy and the Hon. Stephen Lawrence. As noted by members, the bill will amend legislation governing places of detention in New South Wales to prohibit the use of spit hoods by officers exercising functions under those Acts.

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. A number of reports and reviews, such as the 2017Report of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory and the 2019 report on the South Australian Ombudsman'sInvestigation concerning the use of spit hoods in the Adelaide Youth Training Centre, have identified the risks of using spit hoods and have recommended their prohibition. Additionally, in 2023 the Standing Council of Attorneys-General considered the feasibility of a nationally coordinated approach to prohibit the use of spit hoods and agreed to review any residual authorities to use spit hoods in each jurisdiction. The bill gives effect to this important national initiative.

The statutory prohibition on the use of spit hoods will not place workers at risk. Spit hoods are not currently used in any detention settings in New South Wales. To protect against the risk of spitting, law enforcement and health officers may continue to use alternative methods of protection, including staff‑worn personal protective equipment such as face shields, masks and gloves or other appropriate risk mitigation strategies. Lastly, on behalf of the New South Wales Government I thank Latoya Rule and Alison Whittaker for their advocacy. As a result, spit hoods will never be used in New South Wales. The New South Wales Government is committed to ensuring that detention practices are safe, secure and align with community expectations, and the bill achieves that. I commend the bill to the House.

The DEPUTY PRESIDENT (The Hon. Rod Roberts): The question is that this bill be now read a second time.

Motion agreed to.

Third Reading

The Hon. ANTHONY D'ADAM: On behalf of the Hon. Daniel Mookhey: I move:

That this bill be now read a third time.

Motion agreed to.