Rees, Neil --- "Police Questioning of Aborigines and Islanders: The Bonner Bill" [1981] AboriginalLawB 5; (1981) 1(1) Aboriginal Law Bulletin 5

• Police Questioning Of Aborigines And Islanders: The Bonner Bill

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Police Questioning of Aborigines and Islanders: The Bonner Bill

Neil Rees

On 5 March'1981 Senator Neville Bonner introduced into the Senate, for the third time, a private member's bill entitled the Aborigines and Islanders (Admissibility of Confessions) Bill. The Bill seeks to regulate police questioning of Aborigines, and Torres Strait and Pacific Islanders. The emphasis is upon the exclusion of confessional evidence not obtained in accordance with enumerated procedures. It applies to both the Commonwealth and the States. The Bill is designed to be an extension to the present statutory and common law rules governing police interrogation. Any State laws which can operate concurrently with the new rules will continue to exist. When the Bill was first introduced in 1976 Senator Bonner stated that

the special need experienced by Aboriginals and Islanders in respect of oral and written confessions springs out of a real difficulty they experience when conversing in English; a real ignorance as to their civil rights; a real ignorance of the law, and a different set of social values.[1]

The Bill provides that a confession is not admissible if (1) it is not voluntary, (2) the person making the confession did not understand its effect at the time it was made and (3) certain procedural requirements are not followed. The procedural obligations placed upon the police vary according to the nature of the offence being investigated. When an Aborigine is under restraint in respect of 'an offence', there is to be no interrogation unless s/he has been

(i) informed that s/he is under 'restraint' and told the nature of the offence,
(ii) given the standard caution and
(iii) informed that communication may be made with a friend or relative.

A person is under restraint when s/he is in the custody of a police officer and would not be allowed to leave if s/he wished to do so. 'An offence' means any offence against Commonwealth, State or Territory laws. Once the caution has been administered the suspect must be requested to sign an acknowledgment. If the acknowledgment is not produced in court there is a presumption that the caution was not given.

The police face additional obligations if an Aborigine is under restraint in respect of a serious offence, which is defined as an offence punishable by a term of imprisonment exceeding six months. The suspect must be informed that unless s/he objects an Aboriginal Legal Service will be notified that s/he is under restraint. A suspect must not be interviewed in relation to a serious offence unless

(i) an 'authorised person', (or prisoner's friend) is present,

(ii) the standard caution is administered, in the presence of the prisoner's friend, before commencing the interview and

(iii) the prisoner's friend is satisfied that the suspect understands the effect of the caution.

An 'authorised person' can be a Magistrate, a Justice of the Peace. a minister of religion, a medical practitioner, a representative of a social welfare organisation, a representative of an Aboriginal Legal Service or any other person prescribed by regulation.

When an Aborigine is questioned in relation to a 'serious offence' the interview must be tape-recorded or, if this is not possible, set down in writing. Standard procedures for adoption must be followed when a written record of interview is conducted. If the interview is tape-recorded the police must deliver the tape to the prisoner's friend at the completion of the interview. Following a request by the prosecution or the defence the prisoner's friend must provide, at Commonwealth expense, a copy or transcript of the tape. The tape must be delivered to the court at the commencement of any proceedings.

If an Aborigine who is under restraint in respect of an 'offence' wishes to make a written statement, the police must administer the standard caution and ask the suspect to write out the caution at the beginning of the statement. It is not necessary for a prisoner's friend to be present when a statement in relation to an 'offence' is made, but upon completion the police must take all reasonable steps to ensure the attendance of a prisoner's friend, who should question the suspect about the truth of the statement and the conduct of the police.

The Bill has not attracted support from any of the major political parties. It requires substantial re-drafting as there are many inconsistencies and vague definitions. Some provisions of the Bill deserve re-consideration in the light of experience gained with the Anunga Rules in the Northern Territory[2] and the Police Circular in South Australia.[3] Many of the people eligible to be 'authorised persons' or prisoner's friend are totally inappropriate as they will be seen as authority figures little removed from the police. The use of the standard caution appears pointless. It may be that no set of words will effectively inform many people that there is a choice to speak or remain silent in the face of police questioning, but this should not prevent attempts to improve the working of the caution. The requirement that interviews be tape-recorded whenever possible is commendable, but it is questionable whether the prisoner's friend should have custody of the tape until the commencement of court proceedings. The clear intention of the provision is to prevent any police interference with tapes, but as there may be many cases in which the prisoner's friend is closely associated with the suspect there is a possibility that the friend could face accusations of tampering. It seems desirable that tapes be placed in the custody of a neutral official, such as a court clerk or registrar.

It is unlikely that the Bonner Bill will be passed by both houses of Federal parliament. In a modified form it may be acceptable to some State legislatures, but the formulation of law governing police interrogation of suspects is a matter which traditionally the legislatures have been happy to leave to the courts.

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[1] Senate, Debates, 15.9.76, p. 699.

[2] See R v Anunga [1905] ArgusLawRp 117; (1976) 11 ALR 412.

[3] South Australian PCO Circular No 354, reproduced in R v Williams (1976) 14 SASR