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Nothing will bring Fella back but the spit hood ban is some comfort

·6-min read

Latoya Aroha Rule and their mum, Caroline Andersen, are gathered together virtually with other #BanSpitHoods campaign supporters, hunched over their computers right across the continent. It’s late on a Wednesday, 10.15pm. The group have been waiting for hours for this. Latoya and Caroline more specifically have been waiting for five long years, since their brother and son, Wayne Fella Morrison, took his last unassisted breaths in a spit hood in 2016. SA Best’s Connie Bonaros rises in the South Australian Legislative Council to speak to “Fella’s bill’’, which she tabled in early 2020.

I know nothing I say or do will heal your pain, nothing at all will heal your pain; it won’t bring Wayne back. But with the passage of Fella’s bill, I hope you can take some comfort from what you have achieved and a sense of justice … The law needs to make it very clear – putting a spit hood over a detained person’s head amounts to torture … There is no question; absolutely none – that the barbaric and archaic use of spit hoods has no place in our community.

Related: Spit hood ban passes South Australian parliament five years after Indigenous man’s death

The bill passed the Legislative Council on 22 September, and with support declared by all parties on the record it will soon pass the Legislative Assembly and become law. The SA minister for health and wellbeing, Stephen Wade, confirmed that spit hoods would be gone from all settings by the end of the month.

The #BanSpitHoods campaign, with its brief public face and extensive, years-long private machinations, is proof that non-reformist reforms (reforms that curtail the power of criminal legal systems) work as one kind of abolitionist project. Without conceding ground in a way that would shore up state power, it is possible to restrain the carceral practices of this colony piece by piece.

As a result of Fella’s bill, South Australia has secured a future without spit hoods across all institutional contexts – including prison cells, police custody, immigration detention and mental health facilities. The #BanSpitHoods campaign has opened one more opportunity for breath for everyone affected by the carceral colony.

While it’s offered this little bit of hope, the long work for justice is still ahead. There’s an unfinished inquest ​into Fella’s death. There are other states and territories that continue to use spit hoods.

Five years since the death of Fella, 29, on 26 September 2016, coroner Jayne Basheer will hear final submissions this week in his inquest. The inquest was complicated by officers who refused, with the protection of penalty privilege, to provide the court with answers on what happened to Fella in the prison transport van. His family were met in that court with more than 1600 claims to privilege.

Related: Aboriginal deaths in custody reports to be increased to every six months after years of delays

Banning spit hoods in SA is the first step in moving toward banning spit hoods in all carceral settings across the continent. Spit hoods are subject to patchwork laws and regulations between each state and territory. Some states omit spit hoods from regulations of approved restraints and so impliedly issue soft bans on their use. Some states have context-specific regulatory bans for minors. Other states have laws entirely silent on spit hoods and only make reference to them in public-facing manuals.

Caroline Andersen, the mother of Wayne Fella Morrison
Caroline Andersen, the mother of Wayne Fella Morrison, leaves his inquest earlier this year. Photograph: Mark Brake/AAP

We cannot, as SA’s correctional services department hoped to do when it announced a policy ban earlier this year, have discretionary policy that can change at a quick political whim. We cannot have bans that rely on good faith for enforcement, from police and corrections who repeatedly demonstrate that they have none. Litigation also offers little redress. In Campbell v NT earlier this month, the federal court rejected the harm that spit hoods posed to a young Aboriginal man who was put in one at Don Dale, describing them as “unpleasant’’ but claims of harm “exaggerated’’.

The stakes are too high. We know that spit hoods are implicated in deaths of racialised people across the world. They are the subject of lawsuits, and similar campaigns to ours. The days of spit hoods are numbered.

In May, an action ​organised by Fella’s family and #BanSpitHoods organisers with protesters dressed as silent, hooded prison officers emerging from a prison-like van sparked the announcement from the government that it would implement an operational ban.

This week, the faces of Latoya and their brother Fella stared down from billboards above Adelaide’s Rundle Mall, a reminder that if there had been a legislative ban, Fella could have lived to see his 30th birthday. A petition signed by more than 26,500 people to legislate the ban on spit hoods was tabled in parliament.

The years of advocacy Fella’s family and their supporters – whether from the steps of state parliament in a wave of 2016 Black Lives Matter protests after Fella’s death; or from the sit-ins, donations, strategy meetings, media work, investigations and inquiries, panel discussions, lectures, meetings in parliament, supporters’ emails to MPs, and floods of messages of support on social media – all came to bear fruit. We were heard. There is a future now in South Australia where no one will die with a spit hood over their head again.

We end with a statement from Fella’s family, read into Hansard and forever attached to this historic change:

‘[Fella] was the type of man who truly valued his space and his freedom. It devastates us to know that he died without space, without freedom, and that his lack of space and freedom took the breath that would have brought him back to us …

In two days from now it’ll be five years since Wayne was restrained with a spit hood. He leaves behind his young daughter, and his niece and nephews, who will one day read about this historic event when the parliament of South Australia decided to legislate the ban on spit hoods; to legislate Fella’s Law.’

  • The #BanSpitHoods campaign is led by Aboriginal and Māori scholar Latoya Aroha Rule in the legacy of their brother, Wayne Fella Morrison, who died in custody after being restrained with a spit hood. Over the last six months Natalie Ironfield, Roxy Moore, Amity Mara, Lauren Caulfield and Alison Whittaker and other supporters have worked alongside Latoya and their family on the campaign.

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