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National Aboriginal and Islander Legal Services Sercetariat (NAILSS) --- "A Interesting and Informative Chat is not what I had in Mind NAILSS Response to the Muirhead Interim Report" [1989] AboriginalLawB 9; (1989) 1(36) Aboriginal Law Bulletin 12


“An Interesting and Informative Chat is not what I had in Mind”[1]

The following is one of a number of responses to the Muirhead Interim Report on Aboriginal Deaths in Custody. It has been prepared by the National Aboriginal and Islander Legal Services Secretariat (NAILSS). The views presented below are put by way of discussion only. NAILSS members have not yet met to finalise a policy on the Interim Report.

Background to the Report

The long campaign for a Royal Commission into the escalating toll of Aboriginal deaths in custody met with sudden success on 12 August 1987 when Prime Minister Bob Hawke announced that the Australian Government would establish a joint Federal/State Royal Commission into all the Aboriginal deaths in custody since 1 January 1980.

The Prime Minister also announced that immediate steps would be taken to set up State and Commonwealth Government meetings to look at urgent measures to prevent further deaths in custody.

So much water has flowed under the bridge since then! The estimated 44 deaths have risen to 106. The deaths have not stopped. While the Aboriginal communities are harrowed by further hangings in custody, the Royal Commission itself faces Federal Court challenges to the validity of its terms of reference. Whilst struggling to attract regular coverage by mainstream media the Royal Commission nevertheless suffers intermittent public attacks for being "a lawyers' picnic", for being "too long" and "unrepresentative of Aboriginal interests", in short, for being a waste of public money.

Whatever the truth or otherwise of the criticisms, the fact remains that the Royal Commission into Aboriginal deaths in Custody is the first and only opportunity which Aboriginal people in Australia have ever had to seek answers under oath from State Governments and their bureaucrats about the treatment which their agencies have meted out to Aboriginal people.

Police, prisons, schools, hospitals, welfare agencies... all of them are, under the Royal Commission's terms of reference, potentially answerable to the Aboriginal community, as well as to the families of the dead, for the way in which their institutions have habitually "dealt" with Aboriginal people.

The Release of the Interim Report

The release of Commissioner Muirhead's Interim Report just after Christmas 1988 came at a time when most Aboriginal people and organisations who had been directly involved in the Royal Commission were exhausted from over a year of anxious involvement in the proceedings.

Commissioner Muirhead's decision to split his reporting into two separate categories has come as something of a surprise. On the one hand the Interim Report appears to deal with general matters of "systems and practices". It makes specific recommendations, many of which are of a broad policy nature nevertheless. The Interim Report does not relate any of its recommendations to findings made in specific enquiries.

On the other hand, reports on the first four cases of Kingsley Dixon, John Highfold, Eddie Murray and Charles Michael were released in early February. At the time of writing, the Reports have not been released sufficiently widely for any coherent comment to be made. What is clear, however, is that the reports on the individual deaths make no specific recommendations - they contain only discussion of evidence and bare findings of fact.

At the time of writing it is clear that the Aboriginal community is still coming to terms with the implications of the way the Royal Commission has chosen to report. NAILSS is aware that community meetings are being held all around Australia by Aboriginal people to discuss the Muirhead reports. It is not easy to deal with a general report that makes specific recommendations and a set of specific reports which make no recommendations.

Whilst the media clamours for instantaneous "Aboriginal responses" to the Muirhead reports, the Aboriginal communities must consider their position carefully. Clearly there is a lot to be disappointed about. But there is also a great deal to be lost by over-hasty condemnation of the Royal Commission and its work. When your child is mortally ill and you don't trust the doctor, what do you do? He's the only one in town. It would be nice if white Australia would understand the dilemma.

It is in this context that the following comments on the Muirhead Interim Report are made.

The National and International Context of the Report

To start at the beginning it is necessary to go to the end. In his conclusion Muirhead writes:

It will be unfortunate if the work of this Commission is impeded by narrow, selfish or political considerations. Our performance is being assessed, not only in this country but in overseas forums and I fear that our country's reputation will suffer if expediency rather than honesty prevails. (p65) (emphasis added).

It might be politic to note the possible expediency of the Federal government's timing of the announcement of the Royal Commission on August 12 1987. This was just two days before the subject of Australia's extraordinary Aboriginal death rate in custody was to be made the subject of a formal intervention at the United Nations - and about a week after the same subject had been well ventilated by a joint NAILSS and CDBR intervention at the Geneva meeting of the United Nations Working Group on Indigenous Peoples and Populations.

Back home in Australia, the practical realities of getting all the States to agree to join the Federal Government in the establishment of the Royal Commission, proceeded apace. The delicate apparatus of not one but eight sets of letters patent was created. In the meantime immediate action to prevent deaths in custody took the form of a series of joint Commonwealth/State meetings between Justice, Police and Prison Ministers, to discuss what has now become known as the Draft Code of Practices and Procedures (to prevent Deaths in Custody).

The Draft Code was presented to a hastily convened meeting of NAILSS' executive members for comment before being put before a Ministerial "summit". Independent Aboriginal access to that summit was denied. The draft code relied on the continuation of wide police and prison officer discretions. It assumed widespread police expertise and application of medical assessment skill and appeared to be premised on a belief that Aboriginal custodial deaths were largely due to suicide.

Despite adverse criticism from NAILSS this code was eventually adopted by the States at a joint meeting in May 1988. Implementation has been various. The State Governments, who have the constitutional responsibility for prisons and police forces did not, despite repeated requests, allow Aboriginal Legal Services any input into their deliberations. Victoria was the only exception. NAILSS is advised that the Victorian Aboriginal Legal Service is satisfied that the steering committee has been a useful starting pointing for Aboriginal involvement in government decision-making affecting the interests of Aboriginal people in that State.

In every other state, however, the release of the Muirhead Interim Report has really been the first opportunity to renew attempts at dialogue between Aboriginal Legal Services (and other Aboriginal organisations) and State Governments over practical ways to prevent further deaths in custody.

How far do the Muirhead recommendations progress from the "draft code" which the states say they have already assented to, in policy at any rate? The reader can make his or her own comparison.

(see next page)

Edited Summary of the Recommendations of Commissioner Muirhead's Interim Report

Intoxicated Persons

3. In jurisdictions where drunkenness has not been decriminalised, Governments should legislate to abolish the offence of public drunkenness. (4.3, 5.2)

4. The abolition of the offence of drunkenness should be accompanied by adequately funded programs to establish and maintain facilities for the care and treatment of intoxicated persons. (4.3, 5.3)

5. Legislation decriminalising drunkenness should place a statutory duty upon police to consider and utilise alternatives to detention of intoxicated persons in police cells. Alternatives should include the options of taking the intoxicated person home or to a facility established for the care of intoxicated persons. (5.2, 5.3)

6. In the States and Territories where public drunkenness has been decriminalised, adequately funded alternative facilities for the care of intoxicated persons should be urgently established and maintained to meet the demonstrated needs. (5.3)

7. All Governments should combine to set up a national task force to examine the social and health problems created by alcohol and confronted by Aborigines in many localities, to assess the needs and the means to fulfil the needs, including legislative action, and the establishment of appropriate facilities for short and long-term care, education and training. The Aboriginal Health Services and other medical resources should be well represented in such a project which should be essentially health-oriented. (5.3)

Conditions and Procedures at Police Lockups

8. Police officers should receive emphasis in training that arrests for minor offences must be avoided when alternative steps are available. (6.2)

9. It should be the duty of officers in charge of police stations to evaluate the decisions made by officers engaged on police patrols to arrest, rather than proceed by summons or caution. (6.2)

10. The operation of bail legislation should be closely monitored by each Government to ensure that the entitlement to bail as set out in the legislation is being recognised in practice (4.5, 6.3)

11. Where practicable the Aboriginal Legal Service should be notified in all instances of the detention of any Aboriginal person in custody. Where it is not possible to contact an officer of that Service, such notification should be given to a person designated by the local Aboriginal community to receive such advice. (6.3)

12. In no case should a person be transported by police to a lockup or watch-house when that person is either unconscious or not easily roused. Such persons must, if found on a patrol, be immediately taken to a hospital or medical practitioner or, if neither facility is available, to a nurse or other person qualified to assess their health. (6.4, 9.6)

13. A person found to be unconscious or not easily rousable whilst in a watch-house or cell must be immediately conveyed to a hospital, medical practitioner or a nurse. (6.4, 9.6)

14. Police officers whose duties may require them to perform watch-house duties should undergo basic training in the recognition of symptoms of head injuries, major illnesses, and in first aid and resuscitation techniques. (6.4,8.2.1, 8.2.2)

15. Persons detained in custody must be closely monitored for the first six hours of detention and the appearance of the person should be recorded. Where persons detained are apparently intoxicated or appear angry or disturbed, very close surveillance must be maintained. (6.4)

16. Angry or aggressive detainees (no less than detainees who appear withdrawn or depressed) should be presumed to be potentially suicidal in custody notwithstanding assertions to the contrary made by them (6.4)

17. No medication, apparently prescribed for a detainee, should be denied. Any decision not to permit the detainee to take such medication must be made only be a medical practitioner or, in the absence of same, by a duly qualified nurse or health worker.

18. In all cases, unless there are substantial grounds for believing that the well-being of the detainee or other persons detained would be prejudiced, an Aboriginal detainee should not be confined alone in a cell. Where solitary incarceration is the only alternative the detainee must thereafter be treated as a person who requires careful surveillance. (6.5)

19. As soon as practicable, all cells should be equipped with alarm and intercom systems which give direct access to custodians. Priority should be given to providing such systems at smaller police lockups where surveillance resources are limited. (6.6)

21. Visits by family members or friends should not be unreasonably restricted. (6.7)

22. In consultation with Aboriginal communities and their organisations, cell visitor schemes should be introduced to service police lockups and watch-houses wherever practicable. (6.7)

24. Until cells are brought up to what experts regard as a safe standard, surveillance of detainees must proceed on the assumption that they are at risk of death. (6.8)

25. A task force should be established among the Police Departments, in consultation with the Australian Institute of Criminology, to establish a standard and program for the upgrading of police cells to a level where the opportunity for death by suicide is substantially reduced by appropriate cell design and equipment. The task force may consider alarm and communication systems and techniques to minimise the sense of isolation and loneliness which I believe are experienced, particularly by the young. (6.8)

Recruitment, Training and Placement of Police and Prison Officers

26. Police and Prison Departments should re-assess their recruitment policies and liaise with appropriate Aboriginal organisations and educational institutions to ensure that positive encouragement is given to the recruitment of Aborigines. (8.1)

27. Appropriate screening procedures should be implemented to ensure that potential officers who will have contact with Aboriginal people in their duties are not recruited or retained by police and prison departments whilst holding racist views which cannot be eliminated by training or re-training programs. (8.1)

29. Police and prison officers should receive regular training in first aid and resuscitation techniques and the use of automatic resuscitation equipment. Regular refresher courses should be provided so that officers' proficiencies are kept up-to-date. (8.2.2)

30. Police and prison officers should receive regular training in restraint techniques, including the application of restraint equipment. (8.2.3)

31. Restraint methods which involve constriction of air supply or carotid pressures such as 'choke holds' or 'head locks' should never be used. (8.2.3)

32. All personnel of police, prison, social welfare or other departments whose work will bring them into contact with Aboriginal people should receive appropriate training or re-training to ensure that they have an understanding and appreciation of Aboriginal history, culture and social behaviour and the abilities to effectively communicate and work with Aboriginal people. (8.2.4)

33. The Aboriginal component of training courses should be prepared in consultation with representatives from the Aboriginal community. Training courses in Aboriginal issues should be examinable. (8.2.4)

34. Aboriginal police aide schemes should be re-examined to ensure their role is not merely to assist the police in everyday duties but rather to advise the police and to operate as a true link between the police and the Aboriginal population. They must be perceived by both the police department and the community as persons not only with understanding, but with a voice. (8.3.2)

35. Steps should be taken to ensure that Aboriginal police aides have a true career structure and receive proper training and support to enable them to operate in the manner most conducive to effective policing in Aboriginal communities, an important component of which is to create better understanding. (8.3.2)

Medical Issues

39. Police officers should ensure that any person detained in police custody who asks to see a medical practitioner receives immediate medical attention. Police departments should ensure, wherever practicable, that police officers have access to medical practitioners 24 hours a day. (9.5)

40. Police and prison officers should be instructed to immediately seek medical attention if any doubt arises as to a detainee's condition. (6.4, 8.2.1, 9.7)

In summary, however, it can be seen that the Muirhead recommendations do refine and add to the draft code somewhat.

Recommendations for the decriminalisation of drunkenness and the setting up of national task forces on Aboriginal problems with alcohol and on "suicide proof' cells add more detail, as does the suggestion that police and prison officers be screened for racism and trained in Aboriginal culture. None of these recommendations can be rejected in their own right.

However it must be said that the continued reliance on police and prison officer discretion, with no suggestion of counterbalancing systems of monitoring the effectiveness of the implementation of the recommendations, can leave only one conclusion; at the end of a year's hearings Aboriginal people are being offered no guarantee of better treatment, nor a higher standard of care whilst in custody. Again, Aboriginal people are expected to trust that State governments will see to it that things are improved. Whilst there are injunctions to Aboriginal people to take their part in joining recruitment programs for Aboriginal police and prison officers, there is no policy statement whatsoever about the principles which should apply to ensure that the Aboriginal community, as a community, has some assured way of sharing power with government in the areas of Aboriginal detention and imprisonment. Likewise, there is no stated principle regarding Aboriginal rights to participate in the making of decisions which affect the Aboriginal community.

The absence of these principles is disappointing. It would, however, be premature to criticise or commend the recommendations in any detail until community meetings about them have been completed.

In Favour of the Proposition that "a thing may be known by what it is not"

The meantime, however, is a good time to discuss in more detail matters which Muirhead alludes to but does not really include in the Report.

Conspicuously absent from the Interim Report is any mention of Aboriginal land and resources. What have land and resource rights got to do with Aboriginal deaths in Custody? Everything. In a roundabout way Muirhead himself acknowledges this. Starting with his conclusion again he says:

"Aborigines, whilst far from homogenous, share a common anxiety to play a role in their own future, to seek restoration of self esteem and fulfilment of their anxieties that their children should have equal safety, status and opportunity in this country. This will only be achieved when they are able to play an important part in the decisions which influence their daily lives, when they have opportunities to attain their own economic base and when they can play a real role in dealing with their immense social disadvantages. (p.65) (Emphasis added).

Muirhead thus identifies three essential conditions for the achievement of aboriginal equality;

1. genuine participation in decision-making;
2. access to an economic base;
3. management of Aboriginal programmes by Aboriginal people;

These of course line up quite neatly with principles that lie at the heart of the work which is currently being carried on overseas in the development of international human rights law, especially with respect to Aboriginal people.

NAILSS has been campaigning both at the United Nations and within Australia for the recognition of indigenous peoples' rights to:

1. Self Determination (Article 1 of the International covenant on Civil and Political Rights - Ratified by Australia, 13 August 1980)
2. Uniform National Land Rights (economic base for Aboriginal community development) (Promised in Geneva by the then Minister for Aboriginal Affairs Clyde Holding August 1984 - promise revoked by Prime Minister Hawke 1985)
3. Independent Aboriginal community based and managed organisations.

Briefly, the Working Group on Indigenous Peoples and Populations has been developing standards for the treatment of indigenous peoples. The first draft was presented last year (August 1988) by Madame Erica Daes, Chairman, and is set out below.

The basic principle of the Working Group is the right of self-determination which is set out in Article 1 of both the International Covenant on Civil and Political rights and the International Covenant on Economic, Social and Cultural Rights. (Ratified by Australia 10 December 1975).

Self-determination is not without its problems of interpretation, but it must include the right of peoples to "freely determine their political status and freely pursue their economic, social and cultural development".

The draft text of the Declaration shows growing attention to legal categories which are quite familiar to Australian legal thinking. For example, the definition and protection of the rights of peoples to their own lands, property, or to compensation for land theft, to participation in the processes of government which affect them, and to a culturally and economically viable economy of their own are not foreign to our legal system. The application and extension of these rights to indigenous people in their own right may involve the evolution of some new legal notions like the collective rights to territories, collective language rights and the right to freedom of political expression through indigenous institutions. But these are similarly matters which are quite capable of legal expression. Such matters and their practical political consequences are being thrashed out in international forums by legal, governmental and indigenous experts from all over the world.

It is important to remember that all of these "rights" are being explored in the context of indigenous peoples, who, like Australian Aborigines, may now be a racial minority forced into a relationship with a dominant and alien state. That such rights will be defined is beyond doubt. The process, which is already in train, requires the dominant states to fundamentally re-assess the practical nature of the power relations between themselves and the indigenous people or peoples with whom they are territorially involved and for whom the international community holds them responsible.

In a federal system this responsibility of re-assessment of power relations between indigenous peoples and the State must be shared by central and provincial governments, in proportion to their constitutional assignment of sovereign power. Refusal to do so can only put dangerous stresses on the constitutional fabric of the Commonwealth as a whole.

A further imperative presses closely; the General Assembly of the United Nations has expressly resolved that the violation of the economic and political rights of an indigenous population constitute crimes against humanity (Resolution 2148 (XXI) of 12 December 1966 and 2202 (XXI) of 16 December 1966.)

Suggested Amendments to the Draft Declaration

(Edited Summary)

Annex II (to 1988 Working Group Report)

Part II

3. The collective right to exist as distinct peoples within their territories and institutions and to be protected against genocide, as well as the individual rights to life, physical integrity, liberty and security of the person.

4. The collective right to maintain and develop their ethnic and cultural characteristics and identity, including the right of peoples and individuals to respect for their self identification.

5. The collective to protection against cultural genocide. This protection shall included, in particular, prevention of (a) any act which has the aim or effect of depriving them of the integrity of their distinct societies, cultures and identities, (b) any form of forced or induced assimilation or integration, (c) dispossession of lands and resources, (d) imposition of alien cultures or ways of life, or (e) any propaganda directed against them.

7. The duty of States to grant - within the resources available - the requested assistance for the maintenance of their identity and their development.

9. The right to maintain, use and transmit to future generations their own languages. This includes their right to use their own languages in all administrative, judicial and other relevant purposes.

Part III

12. The right of ownership, possession and use of territories which they have traditionally occupied or otherwise used. The territories may only be ceded by their informed consent expressed through their own institutions as memorialised in a treaty or agreement.

13. The right to recognition of and protection for their own self-defined land-tenure systems.

14. The right to own and control renewable and non-renewable resources pertaining to the territories they have traditionally occupies or otherwise used.

15. The right to reclaim land and resources or where this is not possible, to obtain just and fair compensation for the same, when it has been taken without genuine consent, in particular, if such deprivation has been based on theories related to discovery, terra nullius, waste lands of idle lands. Compensation, if the parties agree, may take the form of land or resources of quality, quantity and legal status at least equal to that of the land and resources previously possessed or otherwise used by them.

16. The right to protection against any action or course of conduct which may result in the destruction, deterioration or pollution of their territories, air, water, sea ice, wildlife or other resources.

18. The right to maintain their traditional economic structures and ways of life, the right to be secure in the enjoyment of their traditional means of subsistence, and to engage freely in their traditional and other economic activities including, inter alia, hunting, fresh and saltwater fishing, herding, gathering, lumbering and cultivation. In no case may an indigenous people be deprived of its means of subsistence. The right to just and fair compensation if they have previously been so deprived.

20. The right to determine, plan and implement through their own institutions all health, housing and other social and economic programmes affecting them.

Part IV

23. The right of the peoples concerned to determine the nature and structures of their institutions and to select the membership of such institutions according to their own procedures.

27. The right to participate fully at the State level, through representatives chosen by themselves through their own institutions, in decision-making about and implementation of all national and international matters which may affect their lives and destinies.

28. The right to have their specific characteristics duly respected in the legal systems and political institutions of the State, including full recognition of indigenous law and custom.
Part V

30. The individual and collective right to access to and prompt decision by mutually acceptable and fair procedures for resolving conflicts or disputes between States and indigenous peoples, groups or individuals. These procedures should include, as appropriate, negotiation, mediation, national and international courts and arbitration procedures, international conciliation and international human rights review and complaints mechanisms.

Implications for the Royal Commission

What have these matters to do with the Royal Commission into Aboriginal Deaths in Custody? Simply this. The wider context of the rapid development of international law in the field of indigenous rights is directly relevant to the scope of the the Royal Commission's Inquiry. Principles which are becoming part of international law cannot be ignored if final recommendations are to have any lasting value. Standard-setting activities overseas create both legal and political consequences in Australia.

The Interim Report's recognition that equality for Aboriginal people depends on the satisfaction of essentially self-determination rights of Aboriginal people has consequences that cannot be avoided. These rights are not "airy-fairy" concepts. They are completely translatable into concrete application. To attempt to implement change - much less halt a tragic toll of deaths among Aboriginal people - without reference to the body of laws and knowledge which has been snowballing specifically in response to the wider tragedy of indigenous peoples' suffering worldwide, is folly.

To give an example from the Interim Report, Muirhead recommends the following in respect to Aborigines and alcohol:

While these recommendations are no doubt intended to be humane, they do not provide an answer to the fundamental question of Aboriginal death.

The substitution of one category of Aboriginal inadequacy with another is no solution. Now, instead of being "criminal", Aboriginal people who are the victims of alcohol abuse will be treated as if they are "sick". While of course anyone affected by alcohol dependency may need medical care, that is not, from an Aboriginal perspective, what the problem is about.

Aboriginal people, if asked, will quite readily explain that alcohol has so many Aborigines in its grip because the pressures to choose between assimilation with white society, and the pain of trying to live an Aboriginal life without land and other strong cultural support is often too great to bear. Alcohol fills the gap. This is not alcoholism in the European sense at all. It is something completely different. The solution must come from Aboriginal culture.

By applying principles built up from the body of indigenous international law - that is the right to land, culture, self-determination, participation and community control - it is possible to reach a workable and highly practical recommendation to address the dilemma of Aboriginal cell deaths related to alcohol dependency.

Thus NAILSS would offer as an alternative recommendation the following:

The immediate commitment of state and federal governments to set up, nationwide, a network of Aboriginal controlled community based Recovery Centres. These must be built on Aboriginal land, and run by Aboriginal people. They would focus on a comprehensive program of recovery of what has been lost; health, culture (including language), etc. Depending on the local communities wishes, the program of the centres would enable the teaching of traditional culture to Aboriginal people, some of whom would be there as part of an alcohol rehabilitation process. Others may be there to gain old or new skills, work out community service orders or initiate community enterprise schemes like craft workshops or market gardens.

This kind of recommendation is immensely practical. In a formal sense the structure of a recovery centre could include:

1. A detoxification unit (working in liaison with the local hospital and/or Aboriginal Medical Service);

2. Drug and alcohol rehabilitation facilities for both residential and out patient counseling;

3. Aboriginal cultural studies - for example local history projects, site identification and care courses;

4. Community skills projects - market gardening, building and vehicle maintenance, adult literacy, administrative skills training, etc. (depending on local wishes);

5. Aboriginal enterprise - for example, craft centres, market gardening;

6. Community service order programs to divert fine defaulters and minor offenders from prison.

By focussing on positive Aboriginal values like cultural recovery and skill development, the tendency to remain caught in the negative cycle of drunkenness and ill health could be broken.

The cost of the above would have to be paid. It would, however, be significantly defrayed by the co-ordination of funding that already comes from such sources as health, social security, technical and further education, housing, corrective services, arts board etc. The long term benefits of breaking the vicious cycle of Aboriginal poverty and ill health are obvious.

Monitoring Implementations

International law also has much to offer in the area of precedents for monitoring the protection of basic human rights. The development of the concept of an indigenous, that is, Aboriginal, Ombudsman offers intensely practical possibilities for the provision of guarantees to both the Aboriginal community and State governments that the undertakings for the careful exercise of police and prison officer discretions with respect to Aboriginal prisoners are being honoured.

Conclusion

In conclusion, NAILSS can only reiterate that the careful understanding and respect for the principles which lie at the heart of the growing body of international human rights law, especially in the area of the protection of indigenous peoples, offers the Royal Commission and the Australian governments, State and Commonwealth, a valuable guide to practical change.

These principles are not a collection of impossible dreams, but sensible ideas hammered out with great patience and expertise by a world panel of experts. They are a resource and a standard which Australia cannot afford to ignore.


[1] Commissioner Muirhead’s Interim Report


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