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Western Australian Student Law Review |
A REVIEW: THE IMPLEMENTATION OF THE RECOMMENDATIONS OF THE ROYAL COMMISSION INTO ABORIGINAL DEATHS IN CUSTODY
TAYLA RICHARDS[*]
Royal Commission into Aboriginal Deaths in Custody—Implementation of Recommendations—Evaluation of Implementation
The Royal Commission into Aboriginal Deaths in Custody established 339 recommendations in response to the significant amount of Indigenous deaths in custody. The recommendations were an attempt to reduce the occurrence of such deaths through amending the role of the Coroner and the Coroner’s investigative powers into these matters within the Coroner’s Act 1996 (WA). However, this article’s analysis of the coronial inquests of Mr Ward, Ms Dhu and Ms Mandijarra identifies that the Western Australian government has failed to implement the majority of the Royal Commission’s recommendations. The few that have been incorporated in relation to police custody have been inadequately implemented. In particular, the failure to implement certain legislative changes, such as arresting an individual being a principle of last resort and the decriminalisation of public intoxication, has resulted in breaches of the International Covenant on Civil and Political Rights.
The establishment of the Royal Commission into Aboriginal Deaths in Custody (‘Royal Commission’) in 1987 was in response to the community’s concern regarding the increase in custodial deaths of Aboriginal individuals,[1] particularly within Western Australia.[2] The Royal Commission released 339 recommendations in 1991,[3] after examining 99 Indigenous deaths in custody and the underlying factors that contribute to the over-representation of Aboriginals in custody,[4] in order to reduce the incarceration of Aboriginal people and deaths that occur in custody.[5] This article examines the implementation of the recommendations in Western Australia, specifically with regard to the role of coroners in investigating deaths and Aboriginal deaths occurring in police custody.[6] The analysis of three coronial inquests, those of Mr Ward,[7] Ms Dhu,[8] and Ms Mandijarra,[9] will identify that in Western Australia the majority of the Royal Commission’s recommendations have not been implemented or have been unsatisfactorily partially adopted. Due to the State government’s inadequate partial fulfilment of the recommendations of the Royal Commission, the amount of Indigenous deaths in custody has increased.[10]
The role of the State Coroner in Western Australia, governed by the Coroner’s Act 1996 (WA) (‘the Act’), was significantly amended based on the recommendations made by the Royal Commission.[11] The primary function of a Coroner is investigative in nature; that is, to determine the identity of the deceased and the cause and manner of death.[12] Recommendation 6 of the Royal Commission was implemented by amending s 3 of the Act so that the term ‘reportable deaths’ encompasses a death of an Indigenous person that occurred whilst in custody.[13] The Royal Commission also made Recommendations 7 to 18 in respect of the role of Coroners that generally involved broadening the powers of a Coroner conducting an inquiry.[14] Those recommendations sought to enable a Coroner to look beyond the cause and manner of death to include an investigation into underlying factors that may have contributed to an Aboriginal custodial death.[15]
These recommendations reflect the Royal Commission’s identification of the underlying factors that have contributed to the over-representation of Aboriginal people in custody.[16] A Coroner, under s 25(2) of the Act, is empowered to make findings on anything that is connected with the death, such as any matters of ‘public health, safety or the administration of justice’,[17] which was implemented as a result of Recommendation 13.[18] This power was further expanded under s 25(3), although Recommendation 12 was only partially implemented,[19] to examine the ‘quality of the care, treatment and supervision’ of the deceased prior to death.[20] This examination is required if the deceased individual was determined to be held in custody under s 22(1)(a), the section also establishes that an inquest must be held if the deceased was held in custody before the death occurred.[21] Therefore, the expansion of the Coroner’s ability to comment on surrounding circumstances of the death is intended to lead to the identification of underlying factors that contribute to the over-representation of Aboriginal people in custody.[22]
However, as a result of the Royal Commission’s recommendations, the Coroner’s powers under s 25(2) and (3) are restricted by s 25(5), which prohibits the Coroner from making comments that determine questions of liability or guilt.[23] However, the courts in Perre v Chivell[24] and Keown v Khan[25] both identified that even though making findings of criminal guilt and civil liability is not a part of the Coroner’s role, the Coroner is able to make findings that an individual or an organisation had contributed to the occurrence of the death. If the Coroner is going to make adverse findings in relation to an individual, s 44(2) ensures that the individual is provided with a chance to make contrary submissions.[26] A Coroner determining that an individual had contributed to the death, for example, is an essential part of the process of identifying how the death occurred in order to prevent avoidable deaths in the future.[27]
Although Western Australia has made significant legislative amendments to implement the recommendations of the Royal Commission,[28] the failure to implement the majority of the recommendations has resulted in the further increase in Aboriginal custodial deaths.[29] Nationally, from 1991 to 2008, the number of Aboriginal deaths in custody was 279 and 109 of those deaths occurred within police custody.[30] This is a significant increase from the 99 Aboriginal deaths, 63 within police custody, that occurred between the years of 1980 and 1989.[31] In this section, three of the Aboriginal deaths in police custody, those of Mr Ward,[32] Ms Dhu[33] and Ms Mandijarra,[34] will be analysed to illustrate the failure of Western Australia to implement the Royal Commission’s recommendations. Furthermore, the analysis will identify any progress in this area that has since been instigated whilst the coronial inquests took place as a result of the Indigenous deaths in custody.
The State Coroner determined that Mr Ward’s death was avoidable as it was caused by heatstroke as a result of being held in custody in the pod of a police vehicle that was transported in an unreasonably hot temperature for a significant period of time.[35] In making this determination, the Coroner, by reason of the implemented Royal Commission recommendations,[36] was able to make investigations regarding the ‘supervision, treatment and care’ of Mr Ward.[37] In doing so, the Coroner determined that the Department of Corrective Services and the employees of GSL Custodial Services Pty Ltd, particularly those of Mr Powell and Ms Stokoe, the drivers of the police vehicle, all contributed to the death based on the inadequate quality of supervision, treatment and care whilst in the care of those parties.[38]
Western Australia has implemented Recommendation 333 of the Royal Commission,[39] which recommended that Australia become a signatory party to the Optional Protocol to the International Covenant on Civil and Political Rights.[40] However, the Coroner identified that due to the nature of Mr Ward’s death the supervising individuals had breached both arts 7 and 10(1) of the International Covenant on Civil and Political Rights.[41] Article 7 prohibits the inhumane, degrading treatment or punishment of individuals, whilst art 10(1) creates a positive obligation where an individual is deprived of liberty, requiring that the individual to be treated humanely.[42] Therefore, on the basis of the analysis of Mr Ward’s death, the adopted recommendations of the Royal Commission enabled the Coroner to utilise broad powers in determining contributions to the death to prevent further deaths occurring. However, the implementation of Recommendation 333 in respect of international obligations did not prevent the death from occurring.[43]
As a result, the Coroner made a further 14 recommendations,[44] particularly Recommendations 2 and 11,[45] in relation to providing additional powers of review and to the duty of care owed to detained Indigenous people. The Coroner’s Recommendation 2 suggested a broadening of the powers of the Office of Inspector of Custodial Services by modelling new provisions on the terms of The Terrorism (Preventative Detention) Act 2006 (WA).[46] This recommendation has since been implemented by the Western Australian government through the introduction of the Inspector of Custodial Services Amendment Act 2011 (WA).[47] The Coroner further made Recommendation 11 that the policies and procedures of the GSL Custodial Services Pty Ltd be regularly reviewed by the Department of Corrective Services with respect to ensuring that the duty of care owed to Indigenous detainees is complied with.[48] Therefore, due to the failure to comply with international treaty obligations, the Coroner established various recommendations in order to prevent the occurrence of similar deaths to that of Mr Ward’s.
Unlike the case of Mr Ward, Ms Dhu’s being taken into police custody prior to her death was a result of an offence, being the failure to pay certain fines.[49] Notably, the Royal Commission identified such offences as being one where Indigenous people are over-represented among offenders.[50] Through recognising that the offence leads to the over-representation of Aboriginal people,[51] particularly Indigenous females, the Royal Commission made Recommendation 87(a) to establish that the action of arrest should be the last option exercised in such cases.[52] This correlation between fine defaults and the subsequent arrest of female Indigenous people can be understood through the economic underlying factors of unemployment and poverty, as identified by the Royal Commission.[53] Furthermore, the Coroner highlighted the necessity of legislative amendment by referring to a 2016 report that identified that 73 per cent of the female fine defaulters within police custody are unemployed,[54] with Aboriginal women encompassing 64 per cent of the total female fine defaulters.[55] While the Western Australian government adopted Recommendation 87 as a principle to be used by police officers, there is not a definite legislative provision enforcing the principle.[56]
There is a further contrast between the inquests of Mr Ward and Ms Dhu with regard to government authorities making advances in the treatment of Indigenous people in Ms Dhu’s inquest.[57] The State Coroner acknowledged that the Western Australian government established the Justice Ministers’ Working Group in 2015.[58] The Group sought to implement principles[59] in order to apply Recommendation 333 of the Royal Commission[60] to provide police authorities with the discretion required to utilise the principle of an arrest being a last resort.[61] However, the Coroner stated that the policies considered by the Justice Ministers’ Working Group are yet to be implemented and the Group is, therefore, an inadequate attempt by the State government to improve the treatment of Indigenous detainees.[62] The Group is, nevertheless, a development towards improving the treatment of Aboriginal people[63] that was not in place during Mr Ward’s inquest.[64]
Ms Mandijarra, similarly to Ms Dhu,[65] was arrested prior to her death for the offence of public intoxication.[66] The Royal Commission recommended, by Recommendations 79 to 86, that the offence be decriminalised.[67] Those recommendations were based on findings that 35 individuals of the 99 cases that the Royal Commission investigated were in custody due to public drunkenness.[68] Through the Royal Commission’s investigations the over-representation of Aboriginal people arrested for public intoxication was identified to amount to 46 per cent of the individuals detained.[69] Furthermore, the Royal Commission ascertained that Indigenous women arrested for public intoxication represented 78 per cent of the females taken into custody for the offence.[70] However, even in light of the Royal Commission’s findings,[71] Western Australia has not implemented Recommendation 79 made by the Royal Commission, which would abolish public intoxication as an offence.[72]
While the Western Australian Government has not decriminalised public intoxication, the State Coroner recognised the implementation of sobering-up facilities, particularly the Broome Sobering-up Shelter, in Ms Mandijarra’s inquest.[73] Furthermore, s 12 of the Protective Custody Act 2000 (WA) establishes that an individual should only be taken into police custody for public intoxication in ‘exceptional circumstances’.[74] The establishment of sobering-up facilities provides police officers with an alternative option when policing public intoxication in order to execute the principle of arrest being an option of last resort.[75] The Coroner further identified that police officers had considered utilising the facility for Ms Mandijarra, however, due to her banned status from the facility it was not an option that could be applied.[76] Therefore, unlike Mr Ward’s and Ms Dhu’s inquests, there was no additional action taken by governmental authorities to improve the treatment of Aboriginal people since the death of Ms Mandijarra due to the already implemented alternatives to detention available.[77]
Due to the over-representation of Aboriginal people being incarcerated and the significant amount of Indigenous deaths in custody, the Royal Commission established recommendations in an attempt to reduce the occurrences of these issues.[78] The recommendations made with respect to the change in the role of a Coroner and the Coroner’s investigative powers have largely been implemented within Western Australia through amendments made to the Coroner’s Act 1996 (WA).[79] However, the same diligence has not been applied with regard to implementing the majority of the recommendations, particularly in relation to the prevention of Aboriginal custodial deaths.[80] Consequently, a further 279 Aboriginal deaths have taken place.
This article considered the deaths of Mr Ward, Ms Dhu and Ms Mandijarra, and in doing so argued that the Western Australian government has not adequately implemented the Royal Commission’s recommendations.[81] Specifically, the government has failed to implement legislative amendments in relation to the recommendations concerning the enforcement of breaches of the International Covenant on Civil and Political Rights,[82] to legislate the principle of arresting an individual the last option considered,[83] and the decriminalisation of public intoxication.[84] This is further reflected in the unsatisfactory attempt of the State government in establishing the Justice Ministers’ Working Group, which has failed to apply the Royal Commission’s recommendations by not implementing the policies considered.[85] While Western Australia has partially implemented the Royal Commission recommendations through the establishment of the sobering-up facilities,[86] the government’s efforts have so far proved inadequate to reduce the significant amount of Aboriginal custodial deaths.
[*] Tayla is a third year Bachelor of Laws and Bachelor of Criminology and Justice student at Edith Cowan University.
[1] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 1 [1.1.2].
[2] Ibid vol 1 [2.1].
[3] Ibid vol 5.
[4] Ibid vol 1 [2]–[3.5].
[5] Ibid vol 2, [10]–[20.6]; Don Weatherburn, ‘Disadvantage, Disempowerment and Indigenous Over-representation in Prison’ (2014) 16 Children’s Court 1.
[6] Amnesty International and Clayton Utz, Review of the Implementation of the Recommendations of the RCIADIC (May 2015) Change the Record <https://changetherecord.org.au/review-of-the-implementation-of-rciadic-may-2015>.
[7] Alastair Hope, Inquest into the death of Ian Ward (Coronial Inquest No 9/09, 2009).
[8] Rosalinda Fogliani, Inquest into the death of Julieka Ivanna Dhu (Coronial Inquest No 47/15, 2016).
[9] Rosalinda Fogliani, Inquest into the death of Maureen Mandijarra (Coronial Inquest No 7/2016, 2017).
[10] James Haughton, The 25th Anniversary of the Royal Commission into Aboriginal Deaths in Custody (15 April 2016) Parliament of Australia. <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/2016/April/RCADIC-25>.
[11] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991).
[12] Coroner’s Act 1996 (WA) ss 25(1)(a)–(c).
[13] Amnesty International and Clayton Utz, above n 6, 25–6.
[14] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 1 [4.2.8]–[4.2.11].
[15] Ibid.
[16] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, Regional Report (1991) WA vol 1 [1.4].
[17] Coroner’s Act 1996 (WA).
[18] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 4 [4.2.8]–[4.2.11].
[19] Amnesty International and Clayton Utz, above n 6, 42.
[20] Coroner’s Act 1996 (WA).
[21] Ibid.
[22] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, Regional Report (1991) WA vol 1 [1.4].
[23] Coroner’s Act 1996 (WA).
[24] [2000] SASC 279; (2000) 77 SASR 282.
[25] [1997] 1 VR 69 [16].
[26] Coroner’s Act 1996 (WA).
[27] Perre v Chivell [2000] SASC 279; (2000) 77 SASR 282; Keown v Khan [1997] 1 VR 69 [16].
[28] Amnesty International and Clayton Utz, above n 6, 25–52.
[29] Australian Bureau of Statistics, Deaths in Custody (11 November 2015) <http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/1301.0~2012~Main%20Features~Deaths%20in%20custody~73> .
[30] Ibid.
[31] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 2 [2.1.1].
[32] Alastair Hope, Inquest into the death of Ian Ward (Coronial Inquest No 9/09, 2009).
[33] Rosalinda Fogliani, Inquest into the death of Julieka Ivanna Dhu (Coronial Inquest No 47/15, 2016).
[34] Rosalinda Fogliani, Inquest into the death of Maureen Mandijarra (Coronial Inquest No 7/2016, 2017).
[35] Alastair Hope, Inquest into the death of Ian Ward (Coronial Inquest No 9/09, 2009) 4.
[36] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 1 [4.2.8]–[4.2.11].
[37] Coroner’s Act 1996 (WA) s 25(3).
[38] Alastair Hope, Inquest into the death of Ian Ward (Coronial Inquest No 9/09, 2009) 122.
[39] Amnesty International and Clayton Utz, above n 6, 807.
[40] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 5; International Covenant on Civil and Political Rights, signed 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[41] Alastair Hope, Inquest into the death of Ian Ward (Coronial Inquest No 9/09, 2009) 130; International Covenant on Civil and Political Rights, signed 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[42] International Covenant on Civil and Political Rights, signed 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[43] Alastair Hope, Inquest into the death of Ian Ward (Coronial Inquest No 9/09, 2009).
[44] Ibid 147.
[45] Ibid 134, 144.
[46] Sections 34, 39.
[47] Explanatory Memorandum, Inspector of Custodial Services Amendment Bill 2011 (WA) 1.
[48] Alastair Hope, Inquest into the death of Ian Ward (Coronial Inquest No 9/09, 2009) 144.
[49] The relevant offence is found in Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 53.
[50] Rosalinda Fogliani, Inquest into the death of Julieka Ivanna Dhu (Coronial Inquest No 47/15, 2016) 145.
[51] Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 53.
[52] Amnesty International and Clayton Utz, above n 6, 259.
[53] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 1 [4.2.5.2].
[54] Rosalinda Fogliani, Inquest into the death of Julieka Ivanna Dhu (Coronial Inquest No 47/15, 2016) 146–7.
[55] Office of the Inspector of Custodial Services, Government of Western Australia, Fine Defaulters in the Western Australian Prison System (2016) 13.
[56] Amnesty International and Clayton Utz, above n 6, 259–60.
[57] Rosalinda Fogliani, Inquest into the death of Julieka Ivanna Dhu (Coronial Inquest No 47/15, 2016) 147–9.
[58] Ibid [802].
[59] Ibid [803].
[60] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991).
[61] Rosalinda Fogliani, Inquest into the death of Julieka Ivanna Dhu (Coronial Inquest No 47/15, 2016) [804].
[62] Ibid [807].
[63] Ibid 147–9.
[64] Alastair Hope, Inquest into the death of Ian Ward (Coronial Inquest No 9/09, 2009).
[65] Rosalinda Fogliani, Inquest into the death of Julieka Ivanna Dhu (Coronial Inquest No 47/15, 2016) 145.
[66] Liquor Control Act 1988 (WA) s 119(1); Criminal Investigation Act 2006 (WA); Ms Mandijarra (Unreported, Coroners Court, 12 April 2016) 3.
[67] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991).
[68] Rosalinda Fogliani, Inquest into the death of Maureen Mandijarra (Coronial Inquest No 7/2016, 2017) [367].
[69] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) [7.1.11].
[70] Ibid.
[71] Ibid.
[72] Amnesty International and Clayton Utz, above n 6, 239.
[73] Rosalinda Fogliani, Inquest into the death of Maureen Mandijarra (Coronial Inquest No 7/2016, 2017) [366]; Amnesty International and Clayton Utz, above n 6, 243.
[74] Amnesty International and Clayton Utz, above n 6, 243.
[75] Rosalinda Fogliani, Inquest into the death of Maureen Mandijarra (Coronial Inquest No 7/2016, 2017) 11.
[76] Ibid 73.
[77] Rosalinda Fogliani, Inquest into the death of Maureen Mandijarra (Coronial Inquest No 7/2016, 2017) 73.
[78] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991).
[79] Ibid; Amnesty International and Clayton Utz, above n 6, 25–53; Coroner’s Act 1996 (WA) ss 3, 22(1)(a), 25(2)–(3).
[80] Amnesty International and Clayton Utz, above n 6.
[81] Australian Bureau of Statistics, Deaths in Custody (11 November 2015) <http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/1301.0~2012~Main%20Features~Deaths%20in%20custody~73> .
[82] International Covenant on Civil and Political Rights, signed 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976); Amnesty International and Clayton Utz, above n 6, 798–807.
[83]Amnesty International and Clayton Utz, above n 6, 259–60.
[84] Amnesty International and Clayton Utz, above n 6, 239.
[85] Rosalinda Fogliani, Inquest into the death of Julieka Ivanna Dhu (Coronial Inquest No 47/15, 2016) [807].
[86] Rosalinda Fogliani, Inquest into the death of Maureen Mandijarra (Coronial Inquest No 7/2016, 2017) [366]; Amnesty International and Clayton Utz, above n 6, 243.
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