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Aboriginal Law Bulletin

Aboriginal Law Bulletin (ALB)
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Aboriginal Law Bulletin --- "AboriginalLB Interview: Commissioner Muirhead" [1989] AboriginalLawB 5; (1989) 1(36) Aboriginal Law Bulletin 7


AboriginalLB Interview: Commissioner Muirhead

The AboriginalLB interviewed Commissioner Muirhead on 18 January 1989, two days after he announced his resignation from the Royal Commission, and two weeks after the release of his Interim Report.

What are the possible and hopeful outcomes of the Royal Commission?

I would hope a greater measure of justice and understanding of the plight of Aborigines in custody; a review of practices and procedures which at present seem to result in gross over-representation of Aboriginal people in our gaols and lock-ups.

In looking at individual cases, how do you reconcile evidence to do with overview material with the types of evidence that might go to criminal charges?

We have heard a certain amount of overview material in specific inquiries. We are all of the view now that it is better to get that overview material from more general information-gathering exercises and I think we'll be working along those lines, receiving general submissions from Aboriginal people and other people about practices and procedures.

Will you be participating in the writing of the final report?

I doubt if I will be, because as you know I'll be leaving at the end of April.

What arrangements will be made to ensure that the work that you have done so far will have input into the final reports?

All my reports will be in the hands of governments by then. We have computerised information systems, we have regular discussions between Commissioners and we have our staff. I have no fear that it will be lost.

Would you characterise the hearings as adversarial in nature?

Yes, they are because we are working under a Royal Commission Act. We have to be governed by procedures which involve natural justice to those against whom allegations are made, and others. But in many cases facts are almost agreed and its just a matter of looking perhaps at medical questions, practices and procedures rather than at the conduct of individuals.

The continental legal systems, for example France and Germany, have inquisitorial systems. Were those ever considered an option for structure or methodology of hearings?

Not to the best of my knowledge. We are bound by the Royal Commission Act and we are bound by our terms of reference. We have the right to simplify our hearings and we will do so as much as possible and especially in so far as taking the evidence of Aboriginal people.

You comment on p9 of the Interim Report that oral evidence given many years after a death is often less reliable than records made contemporaneously. Aborigines have an oral tradition, and many are illiterate. Do you think that this reflects an Anglo perception of accuracy?

No. I'm not dealing with mythology or cultural matters there. I'm dealing simply with the limited capacity of all our minds to recall factual happenings which happened years and years ago with a degree of accuracy as if they happened last week. You have to bear in mind that our inquiry goes back to 1980.

Considering that funding must affect representation, has the Royal Commission's inability to fund parties posed any problems for your work?

I don't think it has to date. We would encourage reasonable funding of legitimate interests.

On p35 of the Interim Report you mention that putting prisoners together in cells may not prevent suicide attempts, given the repressive and often hostile atmosphere of places of custody. Are you also concerned about the possibility that surveillance, particularly electronic surveillance, may exacerbate the atmosphere of oppression?

Generally speaking, with people who are upset or disturbed or have been recently arrested or incarcerated we should avoid putting them in lonely cells where they are not subject to virtually constant surveillance for some hours, especially if alcohol or drugs intrude. A lot of our custodial facilities do create a hostile environment. We can do a lot to alleviate that, especially since a lot of them are not convicted people. Any surveillance in those first critical hours is better than none. Some of the difficulties about auto based surveillance these days is that people are apt to destroy them or they may not work because of a technical malfunction. I do know that there is a lot of work being done on electronic surveillance. I suppose it does add to the spookiness of the experience, but as I said, surveillance itself can be quite critical to prevent early deaths.

What responsibility do you think the Royal Commission has to protect witnesses, family members and other people associated from harassment?

With whatever powers we've got, which are pretty limited, we would certainly endeavor to avoid harassment of any witnesses. It is an offence under the Royal Commission Act, but beyond witnesses themselves, as far as harassment or alleged harassment is concerned, we are rather an inappropriate body to deal with that. I think its better dealt with by Aboriginal Legal Aid Services and other organisations.

On p40 of the Interim Report, you outline a policy of not recruiting and not continuing to employ officers who had racist attitudes. How do you envisage this policy being implemented? for example would you envisage Aboriginal people being able to initiate investigations?

First of all, there's the screening process. If there is racism or unfair conduct which can be attributed to racist views, it is the responsibility of the authorities to make sure it is not repeated. Its really a very difficult area but there is anti-discrimination legislation, ombudsmen, there are some relief patterns such as that. But the fact is those who run institutions should try to combat racism.

In the Interim Report on p21 you address the problem of sentencing by JPs and magistrates who have little experience and legal training. Given that sentencing as a last resort can only be a discretionary measure, how can racism within the judiciary itself be addressed?

A lot of racism is ultimately lack of understanding. I would think that it is very valuable for judges and magistrates who are working in areas with high Aboriginal populations to get to know something about the culture, the lifestyle, the history of the people in that area and that in itself serves a very definite purpose. Its very hard to go to the soul of an individual and cure him of his natural traits, but I am sure magistrates and judges as a whole endeavour not to dispose of sentences on racial grounds, although you have got to consider Aboriginal culture and the views of Aboriginal people when you are disposing of them.

In some cases, do you think feelings of vulnerability have prevented people from coming forward to give evidence?

I don't think I have had that experience of any witness, be he or she a prisoner or family member or police officer or anyone. All I can say is I don't know what has influenced people, but to the best of my knowledge that hasn't been a problem.

In your Interim Report you emphasis the recruitment of Aboriginal people to relevant state institutions and the education of non-Aboriginal people within such institutions. What impact do you feel this will have on the structures, policies and procedures within institutions?

I think it will have a very positive one in the long run. We know from experience that just having black police, or black officers here or there doesn't necessarily solve problems. But I think it is positive that Aboriginal prisoners do have some opportunity of relating to people who they identify as people of their race.

In your Interim Report you observe that Aborigines are often reluctant to become involved with police or prison officers "due to deeply entrenched suspicion and to worries of community criticism of those in such roles." In your view are such attitudes justified?

I can understand the attitudes. I would regret them because unless Aborigines are prepared to play their part in the system, I don't think we will get dramatic change. People have just got to get the understanding that those who work within these systems are not against their own people. It's a constructive area where Aborigines can and should work. If communities are going to hound them because they do that then that's most unfortunate. It stresses the importance of people in those areas, including police aids, having a good career structure, having responsibilities and having the confidence of the people with whom they are working. There is a lot of loose talk about the functions of police but the fact is that Aboriginal people need the police probably more, in many areas, than other communities. That has got to be recognised. The main thing is to create better understanding and new perceptions between the community and the police officers. In some areas relations are very good.

Have there been some hopeful developments for the future?

There's a new interest in reviewing custodial procedures and public drunkenness arrests, in trying to interest Aboriginal people in joining the police, and greater endeavours to ensure that Aboriginal people play a greater part in their own destiny, whether it be in the legal areas or health. I feel very strongly that in education and opportunities for education lies part of the solution. The Royal Commission is designed to try and alleviate an unacceptable and tragic situation and I hope in the long run it will do so. We can't do much about the past but we can do a lot about the future.


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