A young Aboriginal Territorian will today file proceedings in the Federal Court of Australia challenging Northern Territory (NT) laws that significantly limit compensation for people unlawfully harmed by the NT Government.

The proceedings, filed by the North Australian Aboriginal Justice Agency (NAAJA) on behalf of Jermahl Ebatarinja, allege Mr Ebatarinja was subjected to two assaults, 11 batteries and was unlawfully separated by Youth Justice Officers when he was 16 years old, and detained in the Alice Springs Youth Detention Centre in 2022.

The case challenges the validity of provisions in the Personal Injuries (Liabilities and Damages) Act 2003 (NT) (PILDA), which places strict limits on compensation available to people who have been the victims of intentional wrongs by the Government while they are in prison, including children in youth detention.

“These laws were a knee-jerk response to the Don Dale Youth Justice Class Action which settled in 2021,” NAAJA Civil Managing Lawyer Andrew Roberts said.

“This case is about Government accountability. If it was an individual who broke the law they would have to pay, but rather than taking responsibility for its failings and addressing the problems in youth detention, the NT Government chose instead to weaken a crucial accountability mechanism and reduce the compensation that they must pay prisoners harmed in their care.”

Mr Ebatarinja’s case will allege the caps do not apply because the conduct amounted to child abuse, and that the caps are invalid under the Race Discrimination Act 1975 (Cth) because of their disproportionate effect on Aboriginal people.

Under the current laws, damages for civil wrongs are capped well below the amounts that plaintiffs might otherwise be awarded. No matter how serious or deliberate the misconduct is, a person can only be awarded:

• $6250 for an illegal strip search;
• $3125 for an illegal assault;
• $6250 for an illegal battery;
• For a false imprisonment for a period of 60 days or more, a maximum of $312.50 per day of the false imprisonment;
• For a series of civil wrongs, no more than $18,750.

The laws also remove the Court’s powers to award additional damages for intentional wrongs committed by the Government against prisoners. This includes aggravated damages to compensate for particularly insulting or humiliating misconduct, and exemplary damages which punish an offender who has engaged in serious wrongdoing, particularly in instances where governments have abused their power.

This claim follows the recent judgement in the High Court which awarded $50,000 of exemplary damages to each of the four men illegally tear gassed while detained in the Don Dale Youth Detention Centre 12 years ago. General and aggravated damages were also awarded.

“If that same conduct occurred today, the current laws would prevent the Court from awarding those young men any aggravated or exemplary damages, despite the High Court describing the Northern Territory’s conduct as reprehensible,” Mr Roberts said.

Mr Roberts said the proceeding raised issues of significant public importance beyond the circumstances of Mr Ebatarinja.

“Cases like these are about accountability,” he said.

“They are one of the fundamental ways Territorians can hold the NT Government to account and ensure it is behaving lawfully and appropriately.”

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