Mansell, Michael --- "State and Territory Implementation of the Recommendations of the Royal Commission: Tasmania" [2001] IndigLawB 35; (2001) 5(8) Indigenous Law Bulletin 11

State and Territory Implementation of the Recommendations of the Royal Commission –

Tasmania

by Michael Mansell

Relying on the 1993 agreement of the Ministerial Council on Aboriginal and Torres Strait Islander Affairs, the Tasmanian government no longer bothers to report on its progress in implementing the recommendations of the Deaths in Custody Inquiry. This is ironical given the State Government has more to report on in the last couple of years than it ever has.

After many years of agitation by the Aboriginal community the state Labor government finally amended the Police Offences Act dealing with public drunkenness. While addressing recommendation 79 requiring drunkenness to be decriminalised the change eliminated drunkenness as a criminal offence but retained the power of a police officer to take into custody a person who is considered to be drunk.

Under this new arrangement police can still forcefully take a drunk person into custody against their will and charge them with the old trifecta – offensive language, obstruction and resist arrest – without charging the person with being drunk. Despite the objections of the Tasmanian Aboriginal Centre the changes to public drunkenness went through in this form.

As an adjunct to the legislative change the Commissioner of Police issued a direction for police to monitor whether the trifecta is still used by police despite the removal of drunkenness as a statutory offence.

From late 1999 the Tasmanian government has been trying to return eight parcels of land to Aboriginal people but has been frustrated in its attempt by the conservative Legislative Council. The eight land areas – Cape Barren, Clarke, Goose and Vansittart Islands, and a small part of Little Dog Island (all in the Furneaux group in the north east of Tasmania) and three small west coast cultural sites – were less than the package requested by the Aboriginal community. At the time of reporting there is no indication as to the State Government’s next move on returning the lands to Aboriginal people.

To its credit the State has also moved to reform the Burials and Cremation laws to enable Aboriginal people to continue practising traditional rites of the dead. This is not a move peculiar to Aborigines but is in line with the government’s general intention to allow all in the community to deal with their dead in a way they believe fit.

Aborigines also proposed self management of the coastal zone and fishing areas around the islands the subject of the proposed land returns, and sought to extend Aboriginal hunting and gathering rights to the mainland of Tasmania. Currently it is only possible for Aborigines to hunt and gather on lands we own. Relevantly, these are all in Bass Strait. The State Government rejected the proposals.

The State Government also jointly funds, with ATSIC, an Aboriginal community initiative to run the lungtalanana program at Clarke Island. That program is run by Aborigines as an alternative for children who are detained in detention centres. These developments reflect some positive implementations of the Royal Commission’s calls.

Monitoring of Aboriginal incarceration rates by the Tasmanian Aboriginal Centre shows Aborigines are between 4 to 6% of the prison population whilst Aborigines are less than 1.5% of the general population. This disproportionate representation of Aborigines in the legal and prison system was an essential focus of the Royal Commission. Yet in Tasmania we find little has changed. The Tasmanian Aboriginal Centre’s legal service has also received 17 complaints by Aborigines against police in the last two years.

Our lawyers and field officers remarked at the time the Royal Commission was sitting that there had been no change in police attitude to refusing bail to Aborigines. Nothing has changed since. Police still oppose bail for Aboriginal youth and adults as much as they ever did. The State Government continues to balk at imposing a legislative direction on both police and the courts to increase the granting of bail to Aborigines as a means of diverting them from goal.

Similarly in the absence of legislative direction all levels of Tasmania’s courts continue to apply the same approach to imprisoning Aborigines as they did before the Royal Commission was established.

There is strong evidence indicating the Tasmanian government is going in the completely opposite direction to that proposed by the Royal Commission. For instance, the doubling of the penalties for street offences brought in by the previous Liberal government has been retained by the current Labor government. This has increased the numbers of Aborigines who are being put in prison. Police powers to search, detain and interrogate suspects has been widened. The new Youth Justice Act 1997 tends to follow the West Australian direction of treating youth in trouble with the law as hardened criminals. Police are able to force young people to give DNA samples through mouth swabs and hair samples, and place their DNA on a data base with or without their consent. For any youth placed in a detention centre their rights to refuse to co-operate with police are less than the rights of children who are released back to their parents. The effect of this difference of approach make Aboriginal children have more contact with the police and be at a greater risk than middle class children because Aborigines are represented at up to 33% of those in the juvenile justice system.

Tasmania offers a mixed bag. The government is credited with beginning to address the social and land issues necessary to give Aboriginal people a base suggested by the Royal Commission. At the same time it neglects to do anything with the legal system that continues to disproportionately incarcerate Aborigines.

Michael Mansell is Legal Manager of the Tasmanian Aboriginal Centre.

[Ed’s note: At the author’s request, this article has not been edited].