Aboriginal Law Bulletin --- "AboriginalLB Interview: Commissioner Wootten" [1989] AboriginalLawB 6; (1989) 1(36) Aboriginal Law Bulletin 8

• Alb Interview: Commissioner Wootten

---

AboriginalLB Interview: Commissioner Wootten

Commissioner Wootten was appointed to the Royal Commission on May 6th, 1988.

His Commission covers NSW Victoria and Tasmania.

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

There are a variety. There is the possibility of criminal charges against individual custodians who have acted in a criminal way. That, of course, is not a matter for the Royal Commission, it is a matter for government. There are difficulties with criminal charges in that the Royal Commission can use evidence that can't be used in criminal cases. This may create the unfortunate position that there are matters as to which the Commissioners are satisfied which couldn't be proved in the criminal process.

Another issue is whether bodies like Aboriginal Legal Services and Aboriginal Medical Services are able with their present resources to provide adequate services to people who are at risk of imprisonment or not treated properly while they are in custody or, in the case of Health Services, whether-they are able to provide adequate services to reduce the risk of people dying in custody from natural causes. Two big reasons why so many Aborigines die in custody are firstly that so many Aborigines are in custody, and secondly, so many are dying all the time on and out of custody - the death rate particularly for Aboriginal men is extraordinarily high. Where you have people whose health is at risk at any time, obviously some of them are going to die in gaol, either because they would have died at that time anyway or because of the extra stresses which are placed on them by the processes of. imprisonment. This means that the role of Aboriginal. Medical Services and the relation of those' services to our continuing deaths in custody is a very important issue.

Another important outcome of the Royal Commission is the very direct one of allaying the doubts and suspicions of the friends and relatives of deceased persons in particular cases: I've certainly encountered in the cases I've heard relatives expressing their appreciation of the fact that as a result of the case they now know what happened. Even if what happened didn't involve any wrong-doing on anybody's part, at least they know, and that's a very important thing for them. It's easy to underrate the value of that and I think one has to remember the tremendous amount of agony there is in the Aboriginal community and families and in community groups about the loss of people and the uncertainties about what happened to them.

But looking at the matter in the long term, I think that the most important outcome of the Royal Commission could be some dramatic impact on public opinion and understanding of the situation of Aborigines in the community. This is going to be a very difficult task; perhaps the most important task for the final report of the Royal Commission is to really get across to Australians generally the situation of Aborigines in Australia in its historical context, in its economic, social and educational context, and in the context of race relations. Few white Australians understand the history not only of massacre and introduced disease, and of the dispossession from land and all that goes with it, but also of the destruction of independence, initiative and self respect in the name of protection and welfare in the second hundred years. The great bulk of Australians live in situations where they have no contact or minimal contact with Aborigines and they have few ways of knowing what life is like for the great bulk of Aborigines or understanding the pressures that operate. In many communities the conditions of life leave young Aborigines growing up feeling that they don't have real equal opportunity and opportunity of acceptance in the broader community, feeling that warmth and moral support depends entirely on the cohesion of the Aboriginal community and the cohesion of peer groups where there is a tradition of drinking and conflict between young Aborigines and police. There is a whole context of life in many Aboriginal communities that makes it almost inevitable that many young Aborigines will grow up in conflict with the law, with criminal records, with no confidence that they have any sufficient opportunities in the outside community to make it worthwhile to pursue an education, for example. It is terribly important that the wider Australian community should start to understand this and that there should be a coming to terms between the two groups in some way that there just hasn't been up to the present.

Commissioner Muirhead recommends that police and prison officers be screened for racist attitudes. Do you see this as a means of change?

Yes, that's a part of it. If real change is going to come, it has to come in a broader context than just police. Where you've got racist police it is very likely that it's because it's a racist community. Police to a very considerable extent respond to the communities they work in. Indeed, I've encountered cases of police having to defend themselves against charges from leaders of the community that they are not hard enough on Aborigines. One has to be aware of making police the scapegoats. That may give satisfaction to people in some cases but in the long run it is not a solution. If you're going to change police attitude you have to do this as part of a change in community attitudes.

How will you be making the cross-case comparisons?

Our first task is to report on what happened in the individual case - the cause of death if you like. We are required by our commissions to do that one by one. But each of those cases throws up more general issues that had an impact on the death. That's one side of it; another side that I think it's very important for us to tackle is an understanding of these matters by going to the Aboriginal community and finding out how the community perceives the deaths and the working of the system within which the deaths occurred. These are things that can easily not come out in an inquiry that's just focussed on what happened to a particular person.

I've proposed to the Royal Commission and the Commission has agreed that we establish Aboriginal Issues units, staffed by Aborigines to do research, and to go into the Aboriginal communities, particularly amongst at risk groups like prisoners and young people in country towns, but also tapping the knowledge and experience of older people to really see this whole problem from an Aboriginal point of view. That unit will interact with the other function of examining, particular cases and they'll feed each other.

The overview function has been almost dichotomised with the hearing of allegations of criminal conduct. How do you reconcile these two types of evidence in the hearing process?

I'm not enamoured of the formal judicial type process as a way of tackling general issues at all. It is a process which is slow and cumbersome. It lends itself to taking things apart; you can make important general issues disappear in the context of whether somebody actually remembers what happened at 10 o'clock on Saturday night ten years ago or not. I think if you're going to look at general issues you have to have a much more constructive process than that. On the other hand, there are circumstances in which it is essential to be certain about precisely what happened, for example if it is being alleged that somebody did something wrong. Although the judicial process tends to be a slow one, it does tend to be a fair and a thorough one. It provides natural justice to people who are at risk of findings of that sort, so we have to use that process when we are dealing with questions that may lead to charges against or serious criticism of individuals. The problem when one comes to deal with an individual death is that it is not like a court case between parties, where specific allegations are being made and must be proved. Where you have that situation you then have fairly clear touchstones as to relevance, you know before you start what the issues are, people can decide what they'll admit and what they won't admit, and so on. When we come to the Royal Commission all we've got is that somebody died in custody and we're trying to find out what happened. Typically the families don't say they know what happened and they're trying to prove it; what worries them is that they don't know what happened, although they may have suspicions. That means that the process can be a prolonged one because people want to explore possibilities, which aren't limited as in a court case. If anything is going to be pursued which may end up reflecting on individuals, the people representing those interests will of course say it has to be done properly, they have to have the opportunity to test everything, and to defend themselves. This becomes a very long process. If you try to apply it to the pursuit of general issues you cannot do it in any conceivable time. For that reason I have tried to draw a line between the two types of issues, although it has to be a very arbitrary one at times. You have to mould the procedures.

Putting aside questions of time and cost, the adversarial mode of procedure seems quite a culturally specific way of understanding truth.

Yes, I think that's probably a fair comment. But what is the alternative when you have serious allegations? We can't discard the notions of natural justice, and proof and so on, that our system of justice is built on. The Commission is operating within that framework.

In terms of funding, what responsibility does the Royal Commission have in ensuring fair access to the Commission?

The government has retained complete control over funding.

What protection can the Commission afford witnesses who are in vulnerable situations?

Where there seems to be a real problem I try to make the Commission's interest in the matter very clear, to sheet home the responsibility to senior people to see that a person is not treated vindictively. I had, for example, complaints of police harassment of witnesses in a case we are hearing in a country town in NSW and we did two things: firstly we referred the matter for investigation by the federal police; and secondly, I asked the senior officer of the police in the district to ensure that no action of any kind, whether arrest or otherwise, was taken against any witnesses without an officer of the Commission being immediately informed and given an opportunity to speak to the person.

The senior officer in the district immediately responded by issuing an instruction to all the police in the area that no action of any kind was to be taken against any of these persons without his personal prior approval.

These are ad hoc measures, and I have on the books for the new year a discussion with the representatives of the Police Commissioner about what general measures should be put in place. What one has to try and achieve is first of all a general knowledge through the police and prison system that it is a very serious issue. We have had very few complaints in NSW.

Do the terms of reference offer a wide enough jurisdiction for the relevant issues to be investigated?

We've had the problem of people who have been in custody, dying outside of custody. It seems to me to be beyond argument that apart from institutions such as hospitals which are specifically mentioned in the terms of reference, deaths outside custody in other places are not covered, irrespective of the cause of the death. That has given rise to a particularly burning issue in Victoria in the Paul Pryor case where the facts are that after being released from custody Paul Pryor went to his brother's home and hanged himself. The family believed that what led him to do this were experiences he had in custody.

That became such an issue that the Victorian government asked me if I would conduct a preliminary inquiry to make a recommendation as to whether or not the matter should be inquired into. That is a case where there is a very strong issue raised by the terms of reference. But there is a basic problem - you have to draw the fine somewhere. We already have more than a hundred cases which are going to take up a long time. If the Inquiry included everybody whose death anywhere was contributed to by something that happened in custody sometime in their lives, its very difficult to say what the size of it would be. There has to be a practical decision made; it is up to governments to make that decision.

On other aspects of the terms of reference, the main question has been the extent to which we are entitled to look into underlying issues. A complications arose because when our commissions were issued, Commissioner Muirhead's was amended to say that he was specifically authorised to take into account social, legal and cultural issues. That was not put in the other commissions. There has been some suggestion that there is an implied limitation on our commissions because they don't have these words in them. He has specifically said that he wants to be able to consult with us for the final report on the underlying issues and asked us to investigate those as we go along.