The Northern Territory government is refusing to reveal the supplier of the tear gas used against children at Don Dale Youth Detention Centre, shielding the company from scrutiny faced by manufacturers worldwide over the use of their dangerous products.

Northern Territory Department of Correctional Services, which runs Don Dale, has shot down a request, filed by Crikey last month under freedom of information laws, for the name of the tear gas supplier and a copy of its most recent contract with the department.

Citing an exemption in the Information Act related to the preservation of the justice system, the NT government has claimed the disclosure would interfere with the upcoming royal commission into the conditions facing young detainees in the Territory.

Under Section 44 of the act, an FOI request may be refused if it would “disclose information about a proceeding or other matter before a court or tribunal; or be in contempt of a court or tribunal, or a royal commission or other commission of inquiry, whether in the Territory or elsewhere”.

Crikey is appealing the decision with the department.

Footage of the 2014 tear-gassing of six teenagers at Don Dale sent shockwaves throughout Australia last month, prompting an almost immediate decision by Prime Minister Malcolm Turnbull to launch an inquiry. The minors involved in the incident, which UN special rapporteur Juan Mendez has suggested could have amounted to torture, are currently suing the NT government.

The secrecy surrounding the tear gas supplier is notable as manufacturers elsewhere have often been targeted for human rights campaigns over the use of their products, and there has been at least one case of a company facing legal proceedings.

In 2014, South Korea blocked shipments by local manufacturers of tear gas to Bahrain, after rights groups including Amnesty International drew attention to the deaths of dozens of pro-democracy protesters due to the agent, which can be lethal to infants and the elderly or when used in enclosed spaces. In the United States and Britain, tear gas makers have attracted fire for their role in suppressing protests in places such as the West Bank and Hong Kong.

Four years ago, Anonymous claimed responsibility for a cyber attack on Combined Systems, a US company that supplied tear gas to Egypt’s then-dictator Hosni Mubarak.

“A company can’t just sell tear gas to the NT government and then wash its hands of the consequences when it’s used against children,” Rachel Ball, director of advocacy at Human Rights Law Centre, told Crikey.

“Companies are responsible for ensuring that they don’t contribute to human rights abuses like those we saw at Don Dale. Companies providing goods and services within the criminal justice system across Australia need to be on high alert. They should be conducting proper human rights due diligence to ensure they’re not contributing to serious human rights violations.”

Ball also slammed the NT government’s rationale for keeping its supplier secret.

“The NT government should absolutely disclose the name of the company that supplied tear gas to Don Dale,” she said. “This is public money and there’s no good reason for the government to keep its suppliers secret.”

While it would depend on very specific conditions and is without precedent here, according to legal experts, it is at least theoretically possible the manufacturer could also be held legally liable for abuses at Don Dale.

In the early 1990s, the families of eight Palestinians allegedly killed by Israeli-fired tear gas sued the American manufacturer in a US court. The suit, which relied on the Alien Tort Statute, an antiquated law which has been interpreted to allow foreign citizens to seek redress for rights violations committed outside the US, failed after a judge ruled the Palestinian claimants did not belong to any state.

Australia doesn’t have such a law, but companies do have a legal “duty of care” toward people affected by its products or services. To hold a firm liable, a claimant would have to prove it was either negligent or had sold a defective product.

Brad Jessup, a law lecturer at the University of Melbourne, told Crikey that a tear gas maker, for instance, might be found negligent if it hadn’t properly informed a customer of the correct way to use its product.

“First of all, what would we expect of someone who manufactures this kind of harmful product to do to make sure people are not unreasonably harmed? If they didn’t do that they may be negligent,” he said. “An important second question is then did someone else do something that was a much greater cause, if you like.”

Another factor in assessing a firm’s negligence would be how it reacted if it knew that its product was being abused — such as whether it issued further guidance for use or withdrew sales.

If a negligence case could not be made, manufacturers of dangerous goods can be liable if their goods if they are “defective”. In legal terms, “defective” products are those that do not operate as expected, rather than being strictly faulty.

“So then you have to ask yourself how is this tear gas supposed to operate, how does a reasonable person understand it to operate and, in this case, did it operate like that,” Jessup said. “If it caused greater harm than a reasonable person would expect, then it may be defective”

Jonathan Kolieb, who lectures in law at RMIT University, told Crikey that holding the tear gas manufacturer legally responsible would probably be a “long shot,” although litigation could be used as a political statement.

“In short: it’d be a stretch to legally prove liability in this case, but as always would depend on the specific circumstances — for instance, what warnings, instructions, guidance was provided by the manufacturer in the use of tear gas?”

Peter Fray

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Peter Fray
Editor-in-chief of Crikey