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Hewett, Tony --- "Who's Backing Who? The WA Challenge to the Royal Commission into Aboriginal Deaths in Custody" [1989] AboriginalLawB 2; (1989) 1(36) Aboriginal Law Bulletin 4


Who's Backing Who?

The WA Challenge to the Royal Commission into Aboriginal Deaths in Custody

Tony Hewett writes courtesy of the Sydney Morning Herald

The most peculiar aspect of the multipronged challenge orchestrated by the West Australian Police and Prison Officers' Unions against the Muirhead Royal Commission is the position of the WA Government.

Two weeks ago, the WA Government announced that it supports the Muirhead Royal Commission - specifically, it believes that both Commonwealth and State Letters Patent issued to commissioners Lewis Wyvill, QC, and Daniel O'Dea, are valid.

But at the same time, the WA Government, having previously agreed to fund one chalenge against Mr Wyvill, granted a request from the WA Police Union for funds to seek an injunction and later challenge, in the Federal Courts, Mr O'Dea's right to hear evience into Aboriginal deaths in custody in WA.

The WA Attorney General, Mr Joe Berinson, who also happens to be Minister for Corrective Services and Budget Management, said recently that on February 9, the day the Federal court resumes its hearing of the Wyvill challenge, counsel would be instructed by the Government to argue in support of the Commission and the Letters Patent by which it conducts its hearings.

It wouldn't really make much sense on the day for the WA Government to support in legal argument a challenge against the Letters Patent that it approved to be issued.

So on February 9, counsel for the WA unions, Mr Robert Ellicott, QC, will be an adversary to the WA Government's counsel, but both of the Silks will be getting paid from the same source.

Mr Berinson rejects the idea that his Government is "funding" the challenge. He believes that money made available to the unions for the challenges are part of "legal assistance" to servants of the State involved in a commission of inquiry which directly examines their professional activities undertaken for the Crown.

But the WA Governments position in this matter becomes even more unclear when the background to their involvement in the political debate surrounding the Muirhead Royal Commission is examined.

The Premier, Mr Peter Dowding, himself a former Aboriginal rights campaigner and solicitor for the Aboriginal Legal Service, and his Police Minister,. Mr Ian Taylor, are both on record as saying that the inquiry had evolved into a lawyers' picnic and was suffering a direction crisis - all while funds are being provided to enmesh and draw the inquiry, or the Commonwealth, into a drawn-out legal challenge.

The WA Government, which is in the middle of an election campaign (at the time of writing), says it believes that the inquiry should address the "broader social issues" underpinning Aboriginal deaths in custody rather than the intricacies of the individual deaths of which there are more than 30 in WA which have already been "thoroughly" examined by the coronial system.

One of the reasons an inquiry was held into Aboriginal deaths in custody was because of a widespread view, prevalent in the Aboriginal community, that the coronial system was not thoroughly investigating black deaths in custody, particularly in WA.

And the Muirhead Commission, after all, has already on one occasion, and will do so again in the coming months, requested leave to appear at coronial inquests into the recent deaths of two Aborigines in WA. The unofficial reason for this, according to a source within the inquiry, is so that the Commission can ensure that a coroner properly investigates the deaths.

The WA Police Union's application to the Federal Court for it to grant an injunction against Mr O'Dea was unsuccessful.

Justice Lee ruled that there was insufficient grounds for him to constrain Mr O'Dea from hearing evidence based on a submission from counsel for the union that police officers may give evidence to an inquiry that may later be deemed null and void by the Federal Court challenge against Mr Wyvill.

But the ramifications, according to Robert Ellicott in a statement to the Federal Court on December 21, could include the collapse of the inquiry if it succeeds.

Mr Ellicott told the presiding judge, Justice Sheppard, and Justices Gummow and Beaumont: " I realise that this challenge may as a result bring down the whole of the Muirhead Commission ... we don't step back from it."

Shortly after Mr Ellicott presented his arguments to the Federal Court, the Chief Royal Commissioner, Mr James Muirhead QC, asked Mr Wyvill to postpone his hearing of the Robert Walker case, the controversial investigation which prompted the unions to take the inquiry on in the Federal Court. (Robert Walker died in Perth's Freemantle Jail in 1984).

The challenge against Mr Wyvill involves the Letters Patent providing him with his powers and terms of reference and also a matter of professional privilege being claimed by the WA Police Union's lawyer, Mr John Quigley, and his colleague, Mr Paul Price.

The WA Police Union, the WA Prison Officers' Union of Workers and seven WA prison officers, who are to be called as witnesses in the Walker case, are arguing through Mr Ellicott, a former minister in the Fraser Government, that:

In the second part of the challenge, Mr Ellicott is arguing that:

Before the December 21 hearing was adjourned, Justice Sheppard requested that all States and Territories be notified of the challenge so that they could consider the matter and appear if they wished.

Consequently, aside from the WA Governments' curious indication that it will support the inquiry, the Northern Territory has also given notice that it will appear on February 9 and support the Commonwealth's position. The NSW Government, while indicating that it will appear, has not forwarded to the court its position in the matter.

Tony Hewett has covered for the Sydney Morning Herald the Royal Commission into Aboriginal Deaths in Custody since its conception and also reports on Aboriginal Affairs for the paper.


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