Aboriginal Law Bulletin --- "Update: Royal Commission to Investigate Redfern Raid; 'Defining' Aboriginality (State of Queensland v Wyville 90 ALR p611)" [1990] AboriginalLawB 10; (1990) 1(43) Aboriginal Law Bulletin 2

• Update
• Royal Commission To Investigate Redfern Raid
• ‘Defining’ Aboriginality: State Of Queensland V Wyville 90 Alr P611

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Update

Royal Commission to Investigate Redfern Raid

On the 8th of February, at 4am, 135 members of the Tactical Response Group, Sydney District Police, the Police Rescue Squad and police dogs converged on 10 houses in Redfern. The police conducted the raids in para military style, clad in riot gear and armed with shotguns, sledge hammers and search warrants. Ten arrests on minor charges ensued from the raid. Mr. Cecil Patten of the ALS described the raid as, "...typical of the police's South African-style fascist and Gestapo tactics."[1]

A Redfern Community meeting requested that the Royal Commission into Aboriginal deaths in Custody investigate the raid. On the 15 February 1990 Mr Finnane QC on behalf of the NSW Government submitted that Commissioner Wootten had no jurisdiction to embark upon inquiries into the broad question of police /Aboriginal relations. Commissioner Wootten made a decision on 19 March 1990 that the police raid in Redfern falls within his terms of reference to the extent that it casts light on general issues of police/Aboriginal relations - and hence will be examined by the Royal Commission.

He found that within each of the Commissions' terms of reference is the obligation to consult with the National Commissioner and assist him in the preparation of his reports and recommendations, and the National Commissioner has a corresponding obligation in relation to the other Commissioners. The National Commissioners brief specifically authorises him to take social, cultural and legal factors which have a bearing on the deaths into account.

Commissioner Wootten found that the state of police /Aboriginal relations is and has been relevant to the Commissions' investigations. Police/Aboriginal relations are significant because of the phenomena of deaths in police custody, the fact that police are usually the agents who first take

Aborigines into police custody, the police role in investigating deaths in custody, and the disproportionate incarceration of Aborigines. Commissioner Wootten states "It appeared reasonable to assume that the fewer Aboriginals that came into custody, the fewer would die in custody, and it further appeared a question worthy of investigation whether the state of Aboriginal/ police relations was a contributing factor to the number of Aboriginals coming into custody."[2] Further the Commission found that the terms of reference require examination of Aboriginal deaths in custody as a social phenomenon, as well as the setting to rest of doubts about particular deaths; therefore the Commission if possible is to make recommendations ensuing from the inquiries which would reduce the number of deaths in the future. The Commission states "It is to be noted that the reference to recommendations in the Letters Patent is not in the context of the reports on particular deaths, but in the context of a final report reviewing the whole of the inquiries that have been conducted" [3]

‘Defining’ Aboriginality: State of Queensland v Wyville
90 ALR p611

Commissioner Wyville decided that Darren Wouters was an Aboriginal person and as such his death within a Brisbane Watchouse came within the terms of reference of the Royal Commission into Aboriginal Deaths in Custody. The former Queensland Government applied to the Federal Court to have this decision reviewed. The Court held that Wouters was not an Aboriginal within the meaning of the Letters Patent issued. Aboriginal is not defined in the letters patent.

Pincus J confirmed the importance of both subjective (self-identification as Aboriginal and identification as such by the Aboriginal community) and objective criteria (Aboriginal descent) in defining Aboriginality. However, the judgement has ethnocentric overtones in its quantification of Aboriginality into 'full blooded and part Aborigines'. Pincus J found Darren's ambivalence towards his Aboriginality a significant factor in concluding that he was not Aboriginal for the purpose of the Royal Commission. His judgement however failed to consider the complex psychological impact of institutionalisation on Aboriginal children. Institutionalisation can result in ambivalence towards or rejection of one's Aboriginal identity. (See Royal Commission report into the death of Tim Murray for discussion of this issue.)

Pincus J's decision is being appealed before the Full Federal Court in it's April sitting in Brisbane.

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[1] Sydney Morning Herald 9 Feb 1990 p.2.

[2] Commissioner Wootten Decision: Consideration of Police/Aboriginal Relations p2,19/3/1990.

[3] Ibid p.7.