Lavery, David --- "Empty Words -- Queensland's Response to RCIADIC Recommendations 6 to 40" [1994] AboriginalLawB 26; (1994) 3(68) Aboriginal Law Bulletin 11

• Empty Words – Queensland’s Response To Rciadic Recommendations 6 To 40

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Empty Words – Queensland’s Response to RCIADIC Recommendations 6 to 40

by David Lavery

The Queensland Government has responded twice to the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) recommendations. In March 1992, their Response document was published,[1] and in April 1994 came their Progress Report on Implementation.[2] In these official policy statements, the . Goss Government gave in-principle support to 338 of the 339 recommendations and set out their action statements.

It is impossible in this article to address all the Goss Government's responses. However, one area of continuing importance and concern is post-death investigations. The RCIADIC itself was occasioned by the seemingly disproportionate numbers of Aboriginal and Torres Strait Islander peoples' deaths in prison or police custody, and 35 of the recommendations were directed solely to this issue. The Royal Commissioners were unanimous in calling for effective coronial systems in every State and Territory and were highly critical of the standard of police investigation, the conduct of some inquests and the total absence of an inquest in matters when the facts cried out for public investigation.

The individual reports in Qld contained stinging criticism of the Qld coronial system. For example, in the RCIADIC report into the death of Walter James Barney, (who died at Townsville Correctional Centre on 22 February 1981), Commissioner Wyvill QC stated:

The investigation of less than 90 minutes duration conducted by [the investigating police officer] at the prison was no more than a collection of only those facts which confirmed his initial assumption that there was nothing suspicious about Barney's death. In the course of his investigation, [he] did not inquire into the nature and extent of any supervision of Barney when he was in the observation cell.
[His] investigation was cursory and inefficient yet was accepted without demur by his superiors and the Coroner. The lack of supervision and scrutiny shown in this investigation was still prevalent five years later in Townsville. In my report into the death of Bernard Matthew Johnson, who died in Townsville Prison on 7 June 1986, I criticised the cursory and superficial investigation into Johnson's death and the lack of attention and supervision by the police officers in Townsville at the time. I was also critical of the inquiry by the Coroner, which failed to perceive the shortcomings of the police investigation.
The comments I made into the death of Johnson have equal application to the police investigation and coronial inquiry into the Barney death.[3]

The Barney report highlighted several glaring errors and inadequacies in the police officers investigation. The report also stated that, in failing to review the documentary materials, the Coroner had incorrectly exercised his discretion in favour of not holding an inquest. The Report concluded:

The perfunctory manner in which the investigation into Barney's death was handled did not end with the Coroner's decision [not to hold an inquest], as that decision was endorsed by the Under-Secretary of the Department of Justice without comment.[4]

Not surprisingly, the release of the RCIADIC recommendations prompted the Qld Government to move, and the Coroner's Act 1958 (Qld) is currently under review. During 1993 a Discussion Paper was prepared by an inter-departmental committee and distributed for comment and submissions from interested parties. The new legislation is now apparently in draft form and hopes are high for a revitalised coroner's system in Qld.

This review is to be applauded and, obviously, legislative change was expected to take some time. However, the kudos that the Qld Government could have claimed on this front has been dissipated by their complete inaction in practice in the interim and their 'beating up' of the action statements.

There has been a distinct lack of practical initiative from coroners, police and the Department of Justice and Attorney-General. In the course of coronial investigations in North Qld various 'commitments' of the Qld Government have proved to be hollow. For example, in the March 1992 Response, the following appeared in the Action Statement to Recommendation 8:

Until the completion of a proposed review of the Coroners Act 1958 it is established that the Brisbane Coroner be designated as the Coroner co-ordinating inquiries into deaths in custody. He will be informed of this recommendation and encouraged to make the necessary arrangements, procedures and protocols which comply with this recommendation.

When the Brisbane Coroner was contacted in December 1993 and March 1994, when one could reasonably expect some action on the action statement, his office was not 'co-ordinating' deaths-in-custody investigations, there were no 'arrangements' in place, no 'procedures', no 'protocols' and there was only a general awareness of his alleged new role. To top this inaction off, Attorney-General Wells announced on Human Rights Day last December, the creation of the Office of State Coroner. There was much fanfare and a flurry of governmental press releases trumpeted the initiative. Yet, to this day no such office or person exists.

The latest death of an Aboriginal prisoner in Far North Qld occurred at Lotus Glen Correctional Centre on 9 January this year. He was found dead in his cell, having earlier complained of pain in his upper body after playing sport. Tharpuntoo Aboriginal Legal Service accepted instructions from the family of the deceased man to represent them at the inquest. A letter was addressed to the head of Mareeba police district asking that Tharpuntoo be informed on the progress of the police investigation and brief. This request is consistent with Recommendation 24 which states:

[U]nless the State Coroner or the Coroner appointed to conduct the inquiry otherwise directs, investigators conducting inquiries on behalf of the Coroner and the staff of the Coroner's Office should at all times endeavour to provide such information as is sought by the family of the deceased, the Aboriginal Legal Service and/or lawyers representing the family as to the progress of their investigation and the preparation of the brief for inquest. All efforts should be made to provide frank and helpful advice and to do so in a polite and considerate manner.

An inspector from the Mareeba District duly replied. Regrettably, there must have been some breakdown in communications over the past seven years, because he stated in his reply that to assist the legal representatives would be 'improper'. The letter dated 19 April 1994 stated:

All matters raised in your correspondence will no doubt be addressed at the relevant inquest and therefore it would be improper to provide any particulars from this office prior to this date.

The author of this report, an inspector of police, believes it less than proper for him to inform and assist the deceased's family.

The Queensland Police Services (QPS) Custody Manual, Section 11.3 states that the relevant police officer should "provide such information as sought by the family of the deceased and/or lawyers representing the family, unless that Coroner directs otherwise, about the progress of the investigation and the preparation of the brief for the inquest." The inspector is ignorant of his current Manual and apparently of the Commissioner's Circular of August 1993 which instructs him to familiarise himself with the new Manual.

Tharpuntoo ALS finds it extremely difficult to combat this form of blatant and pervading ignorance. Their limited resources will be frittered away in a paper war with a senior member of the QPS informing him of the principles enshrined in the recommendations, accepted by government, set out in the QPS Custody Manual and reinforced by his Commissioner's Circular. To have to explain to the gathered family, who view this matter with the utmost importance, that these magical recommendations state that they should get 'frank and helpful' and 'polite' assistance, but that the QPS views their request for information as bordering on impropriety, is embarassing. There is a yawning gap between published policy and principles and actual practice.

Yet another example of scratching the statements of commitment in the Qld governmental responses on post-death investigations and getting a bureaucratic booby prize occurred recently. In March 1992, the Qld Government supported the conducting of 'psychological autopsies' for suicide victims, that is the 'paper profiling' of the deceased by an experienced psychiatrist assessing their habits, behaviour, psychological state, alcohol use, family history and other relevant inquiries. The Response document stated:

Queensland Health will develop a formal proposal regarding 'performance of psychological autopsies' as well as post- mortems in cases of suicide in 1992 and liaise with the Coroner from the Department of Justice.[5]

In late 1993, at the inquest of an Aboriginal prisoner's suicide at Townsville, the issue of a 'psychological autopsy' was raised. All legal representatives[6] and the Coroner agreed that this profiling would be extremely helpful in specifically understanding the deceased man but, more generally, to the Qld Corrective Services Commission in identifying 'at risk' prisoners. Counsel Assisting the Coroner thus made efforts to locate the Qld Health proposal and to have the deceased examined under this protocol. Following his investigations, he informed the Coroner in November 1993 that the proposal was still 'in fluid form'. The Coroner and his Counsel Assisting persisted and the first such 'psychological autopsy' in Qld is now very near to completion. It was the efforts of the Aboriginal Legal Service, in this case the Mackay-based Corporation, which enabled the family of the deceased to be represented and for the sad circumstances surrounding the death to receive the attention they deserved.

Undue delay in the investigation of deaths and the hearing of inquests is also a matter of concern. A case in point is that of the death of a young man injured in a bullriding rodeo event at Warrami outside Tully in September 1991. He died later in an ambulance vehicle. Tharpuntoo and the.Townsville-based Aboriginal and Islander legal services combined their resources to ensure legal representation at the inquest .[7]

Unfortunately, the police report of the investigation into the death took 13 months to get to the Coroner, the formal opening of the inquest was 14 months after the death and the first evidence was not received until January 1993, some 16 months after the death.

The present Coroner's Act (sl5) requires that if an inquest has not been commenced within 12 months of the date of death, notification of such fact must be given to the Under-Secretary (now the Director-General) of the Justice Department. No such notification was given to the Justice Department.[8] The family, residents of the Hopevale community, were understandably dismayed at the unexplained delay.

There also appears to be a failure by many of those in the coronial system to recognise that a coroner traditionally represents the general community whose interest it is that deaths, fires and missing persons are, in some manner, publicly explained. The Coroner is investigating the matter and putting the evidence to a public hearing on behalf of the community.

In some Cape York Peninsula/Gulf of Carpentaria communities, where indigenous spiritual and medical belief systems add another cultural dimension, community concerns and fears do not run parallel with European concepts. Yet the present legislation is totally absent any indigenous perspective. In many instances Aboriginal and Islander customs and religious beliefs are totally ignored. Using the dead person's name in the proceedings is culturally offensive in many Cape York communities and is the most common example of this blithe ignorance.[9] The constant complaints from the next-of-kin of deceased Aboriginal and Islander persons are, primarily, that they are not informed of what is going on and, secondly, that they have little or no role to play in the unfolding inquiry.

These failings are amply evident in the case of the death of the Young Man from Wujal Wujal. In 1987 he was found apparently hanged with a football sock in a concrete box that was the Wujal Wujal watchhouse. His death was one of a spate of apparent suicides in custody of young Aboriginal men in the Cape York Peninsula communities which the RCIADIC investigated.

It is common knowledge on Cape York that the death of the Young Man has so deeply distressed the Wujal community that the subject is still - to this day - only whispered about. Despite a thorough coronial and a lengthy RCIADIC investigation, each of which absolved any person of criminal responsibility, the community is still divided into believing either that the death was by another's hand or that supernatural intervention was involved. The post-death investigations may well have served Euro-Queenslander purposes but it did nothing to abate the concerns and distress of the Wujal Wujal community. In an article entitled Poor Billy Blanket, Chris Anderson, a respected Cape York anthropologist, said of the RCIADIC investigations into the boy's death:

The [R]oyal [C]ommission was set up to investigate the cause of death of a young Aboriginal man at Wujalwujal. It failed because it was merely another form of ignorant European intervention. At no point were Aboriginal interpretations of the events taken seriously...

Without buying wholesale into the debate as to the investigation and hearing methodologies of the RCIADIC, the simple point is that the Wujal Wujal community was ill-served by our present culturally-loaded investigation systems, including the coronial system.

It is hoped that customs and cultures of indigenous peoples will be addressed in the new legislation and will be respected by coroners. Cultural awareness and attitudinal change are required. In recent years, in the NT, there has been a growing cultural sensitivity in dealing with indigenous deaths and the investigations and hearings which follow. In an inquest into a shooting at Galiwinku, the proceedings were translated for the community and the Coroner returned to give his findings, through an interpreter, to the family and community. Ms Sally Thomas, then Chief Stipendary Magistrate of the NT, gives another example of sensitivity regarding a series of deaths in a community:

Rumour and accusation were rife. In fact the post-mortem in all cases had revealed that death was from natural causes, most of them as a result of a heart condition attributable to over-consumption of alcohol since their early teens. The forensic pathologist together with a coroner's constable travelled to the community to explain to the community the results of the post-mortem examination, to discuss the queries that they had and to discuss the effects of alcohol on the health of the young men who had died.[10]

The overhauling of the Qld legislation will not necessarily result in these changes in attitude. It is therefore also hoped that all Qld Coroners (who are principally Magistrates) undergo a cultural awareness program so that the present level of ignorance is rectified. Coupled with recognition of indigenous peoples' practices and mores in the Act, this understanding will do much to reduce the current cultural awareness failings in the Qld coronial system.

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[1] RCIADIC, Response by the Qtd Government, March 1992 ('The

1992 Response").

[2] RCIADIC, Qtd Goveronent Progress Report on Implementation to Decanter 1993, 3 Volumes, April 1994 ('The 1993 Progress Report").

[3] Wyvill QC, Report of the Inquiry into the Death of Waiter moms

Barney, AGPS Canberra, 1991, pp22-3.

[4] Ibid, p 25

[5] The 1992 Response, op cit. fnl, p36.

[6] The writer, as a private barrister, represented the family of the deceased man at the inquest.

[7] The writer appeared as Counsel for the next of-kin.

[8] There was certainly a technical breach of the Act. The Act is, however, silent as to the consequences of such breach other than that the Under-Secretary can apparently cause the Coroner to report fully on the delay.

[9] The writer discerns some change in perceptions on this front but it depends solely on the Magistrate. In one ongoing example, an apparent suicide at the Townsville Correctional Centre, the Coroner has been exemplary in his dealing with the members of the deceased's family. In preliminary proceedings the issue of the name of the deceased was canvassed, and at every juncture of the proceedings the family's involvement and input has been sought.

[10] Thomas, Sally "Coroners and the Environment" in Selby, Hugh (ad), The Aftenmath of Death, Federation press, 1992, p27