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Australian Indigenous Law Reporter |
October 1996
1.1 This Report uses findings of coronial inquests as a means of auditing the implementation of the recommendations of the Royal Commission into Aboriginal Deaths in Custody.
1.2 The circumstances of actual deaths can provide a strong indicator of the extent of implementation by governments.
1.3 A death in custody includes a death occurring whilst a person is watched or guarded by police. In other words, if that person is not at liberty to come and go as he or she wishes.
1.4 Profiles of the 96 deaths from 31 May 1989 to 31 May 1996 are constructed from information obtained from coronial inquests.
1.5 The profiles record the circumstances of death, relevant issues, coronial recommendations and breaches of Royal Commission recommendations.
1.6 Further comment is provided in the profiles where information from coronial inquests is poor, incomplete or other information is available.
1.7 The profiles and other data is statistically presented in Part B. The characteristics of those Aboriginal and Torres Strait Islander people who died in custody are compared to those who died during the Royal Commission period and to non-Indigenous people who died in custody. Arrest and imprisonment rates and types of offences are also presented.
1.8 The profiles are then analysed under Royal Commission recommendations in Part C. Each chapter in Part C provides a schedule of recommendations breached and a discussion drawn from the profiles under each recommendation.
2.1 There have been 96 Aboriginal deaths in custody in the seven years since the Royal Commission into Aboriginal Deaths in Custody completed its investigations.
2.2 In 1995 there were 22 Aboriginal deaths in custody, the highest number since the Royal Commission.
2.3 A change in the definition of a death in custody in 1989 means that only deaths in institutional settings, as opposed to police pursuit, can be examined when comparing the Royal Commission and post-Royal Commission periods.
2.4 The average number of institutional deaths in the Royal Commission period was 10.4. In the post-Royal Commission period it was 11.4.
2.5 The proportion of deaths occurring in the various jurisdictions has changed significantly since the Royal Commission. The proportion of deaths occurring in New South Wales and Victoria increased while they have decreased in Western Australia.
2.6 There has been a significant decline in the proportion of deaths occurring in police custody and an increase in deaths occurring in prison.
2.7 In both periods the majority of deaths were the result of self-inflicted hanging and natural causes. The Report shows that deaths from these causes disclosed breaches of recommendations as serious as deaths resulting from more direct involvement by custodial officers (eg, gunshot).
3.1 Indigenous people were 16.5 times more likely than non-Indigenous people to die in custody between 1990 and 1995. This rate reflects the disproportionately high number of Aboriginal and Torres Strait Islander people in custody.
3.2 The disproportion in the rate of death was the highest in South Australia (31.7) followed by Victoria (18.8), New South Wales (17.0), Queensland (16.8), Northern Territory (7.7) and Tasmania (2.8).
3.3 Indigenous prisoners were 1.26 times more likely to die in prison than non-Indigenous prisoners.
3.4 Indigenous people who died in custody are significantly younger than non-Indigenous people. The rate of death for Indigenous women in custody was higher than the corresponding rate for Indigenous men.
3.5 The proportion of deaths in police and prison custody was similar for Indigenous and non-Indigenous people. Approximately one-third of deaths occurred in police custody while two-thirds of deaths occurred in prison.
3.6 Deaths from police pursuit have increased for both groups while deaths in police institutional settings have declined.
3.7 Indigenous people were more likely to die from natural causes while non-Indigenous people were more likely to die from gunshot and drug overdoses.
4.1 Indigenous people were 17.3 times more likely to be arrested than non-Indigenous people. The over-representation rate in Western Australia is four times the national average.
4.2 Incarceration of Indigenous people in Australia increased by 61 per cent between 1988 and 1995. Incarceration of non-Indigenous people has increased by 38 per cent.
4.3 Indigenous people in 1995 were 14.7 times more likely to be imprisoned than non-Indigenous people.
4.4 Indigenous people are more likely to be imprisoned for assault, break and enter, motor vehicle offences, property offences- and justice procedures offences. They are also more likely to be arrested for good order offences.
4.5 Indigenous people are twice as likely as non-Indigenous people to be arrested in circumstances where assault occasioning no harm is the most serious offence. They are three times more likely to be imprisoned for such an offence. This indicates that provocative policing is continuing through the use of the trifecta (offensive language, resist arrest and assault occasioning no harm).
5.1 An average of 8.5 recommendations were breached in each death. Recommendations were more frequently breached in deaths in Queensland (13.6) and Western Australia (8.9).
5.2 The deaths were arithmetically broken into two periods (31 May 1989-5 March 1992) and (25 March 1992-13 January 1996). The average number of recommendations breached per death did not decline in the second period.
6.1 Police custody deaths were lower between May 1989 and May 1996 than they were in the previous period, although the circumstances outlined in some of the profiles indicate that major problems still exist in policing and police custodial practices. There were allegations of rough treatment by police in a number of profiles, although these allegations were not accepted by the coroners. Three mentally ill Aboriginal people, none of whom had a firearm, were shot by police. Police car chases of young Aboriginal youths remain a problem, especially in Western Australia.
6.2 Little improvement has been made in police procedures for dealing with intoxicated persons. In Western Australia, while public drunkenness has been decriminalised, arrests are still frequently made for drinking in a public place.
6.3 The establishment of sobering-up shelters has been a positive development since the Royal Commission, and may have played some part in the reduction of police custody deaths overall since the Royal Commission.
6.4 Many Indigenous people are being placed in custody for trivial offences. Offensive language charges and the trifecta are two ways in which this happens. Police initiated interventions result in the laying of charges -- typically using offensive language, resisting arrest and assaulting police (or similar offences). The relatively high proportion of Indigenous prisoners incarcerated for assault occasioning no actual bodily harm is indicative of the trifecta phenomenon -- 12 per cent against 4 per cent for the general prison population.
6.5 Indigenous people are still less likely to be granted bail than non-Aboriginal people.
6.6 There has been some patchy commitment to Aboriginal and Torres Strait Islander community involvement in setting policing methods, but recent indications are that the commitment must be reaffirmed.
7.1 In a number of cases there was sufficient information to raise doubts whether imprisonment was used as a last resort in accordance with recommendation 92.
7.2 A significant number of Indigenous people were imprisoned for the trifecta (offensive language/resist arrest/assault police officer).
7.3 Independent prosecution is needed in the cases in which police have an interest, particularly offences involving the trifecta and break and enter. The Director of Public Prosecutions in New South Wales is currently piloting a scheme which would eventually mean that they prosecuted in all NSW courts.
7.4 The commitment of state and territory governments to the principle of `imprisonment as a last resort' seems dubious with `truth in sentencing' and other related legislative policies appearing to predominate. Aboriginal and Torres Strait Islander offenders remain under-represented in their access to non-custodial options, where such options actually exist.
7.5 In 21 per cent of the cases the deceased had committed, or was alleged to have committed, motor vehicle offences. There was little evidence of programs to reduce the incidence of this offending in accordance with recommendation 95.
7.6 Western Australia and South Australia continue to use Justices of Peace for sentencing. This is a clear breach of recommendation 98. The case profiles also reveal that the use of Justices of Peace for other criminal law matters is problematic.
7.7 Aboriginal and Torres Strait Islander people are not being guaranteed fair trials due to the lack of funding and training leading to the availability of accredited interpreters.
8.1 The profiles indicate a growing awareness by custodial and medical staff of issues concerning the proper treatment of both Indigenous and non-Indigenous prisoners. However, implementation of the recommendations is uneven. Some recommendations have not been implemented in any jurisdiction.
8.2 In 9 of the 61 investigated cases concerning deaths in institutional settings there was evidence that police, prison officers and medical staff were unaware of their duty of care to detainees. There was also a noted absence of internal disciplinary proceedings to deal with breaches of instructions relating to the care of people in custody.
8.3 De-briefing procedures have not been properly utilised to prevent future deaths in the same circumstances. Avoidable deaths occurred in almost identical circumstances in a number of cases.
8.4 Deaths of Indigenous people in police cells and vans have decreased since the Royal Commission. However, all of the sixteen investigated deaths in police custody revealed numerous breaches of Royal Commission recommendations.
8.5 The circumstances of deaths in police cells and vans indicated that:
a. was a lack of proper assessment procedures and little involvement of medical personnel, including Aboriginal Health Services;
b. There was often no protocol for dealing with intoxicated people, particularly in Queensland and Victoria;
c. Police officers were insufficiently trained to distinguish intoxication from other injuries. Persons who needed urgent medical help were frequently detained;
d. The observation of detainees was often irregular and infrequent; and
e. The Aboriginal Visitor Scheme does not appear to fully implemented.
8.6 The increase in the number of deaths in prisons calls for increased scrutiny of the operation and funding of prisons, particularly in relation to health services and general prison conditions.
8.7 The circumstances of deaths in prisons indicated that:
a. Health services in some prisons were well below community standards;
b. The provision of psychiatric services is a continuing problem in all jurisdictions;
c. In one third of the cases at risk information concerning the deceased was not passed between medical and prison staff, or from police to prisons. It is extremely important that this situation is urgently remedied;
d. The rate of suicide in Queensland prisons was twice the national average. In eight of the nine of the investigated deaths there was no protocol for those at risk of self-harm. In other States protocols for self-harm were sometimes unsatisfactory or were not followed by staff;
e. Medical staff and prison officers were often not aware of cross-cultural health issues, particularly heart disease, and performance on the recruitment of Aboriginal staff was poor;
f. Some jurisdictions have not fully implemented recommendation 156 through providing an assessment on the reception of prisoners by a medical practitioner. This was a contributing factor in a number of deaths; and
g. In many cases there was a lack of proper procedures for the exchange of medical information between external health services and prison staff.
8.8 Some delay or deficiency in attempting to resuscitate detainees was evident in 17 of the cases investigated by the coroners. Problems were caused by inappropriate security procedures which delayed access to prisoners locked in cells, inadequate training and faulty resuscitation equipment. Despite all states and territories claiming implementation of recommendation 161 the failure to seek medical attention when doubts arose as to the medical condition of prisoners was a serious problem in the deaths under investigation.
8.9 Of the four Aboriginal people shot by police between May 1989 and May 1996, three were mentally ill and the fourth was a highly intoxicated 16 year old. None had firearms. Police firearms training was criticised as focussing on the criminal element only, instead of contemplating people with mental disabilities. Guidelines for the use of restraint equipment were also found not to comply with Royal Commission recommendations.
8.10 There are indications that prisoners are still being charged with criminal offences or breaches of prison regulations in relation to suicide attempts.
8.11 Some of the cases provided information on recommendations concerning general prison conditions. Few prisons have employed Aboriginal Welfare Officers and implemented a transitional period to assist remandees or freshly sentenced prisoners in adjusting to prison life. In some prisons shared cell accommodation was not available.
9.1 There were fifteen juvenile deaths in custody between May 1989 and May 1996. As the Indigenous juvenile population grows proportionately larger than the non-Indigenous juvenile population deaths of young Indigenous people can only be expected to increase if significant measures are not taken. The cases of six other adult Indigenous people who died in custody demonstrated very early and frequent contact with the criminal justice system.
9.2 The number of Indigenous kids who are brought before Children's Courts (rather than dealt with in diversionary schemes) remains disproportionately high in comparison with non-Indigenous kids. The rate at which they then are imprisoned in comparison with non-Indigenous kids is even more pronounced.
9.3 Procedures for the transfer of juveniles to adult prisons need to be examined urgently.
9.4 Police car chase deaths are increasing overall, and in most jurisdictions police services need much more stringent policies setting out when pursuit is justifiable in the public interest.
9.5 Community policing principles need to be implemented to better deal with young Aboriginal people who use public areas and with Aboriginal juvenile delinquency generally.
9.6 Juvenile justice panels and family conferencing schemes with adequate cultural adaptation and Indigenous community involvement can be effective solutions to juvenile crime problems. Current schemes which increase alienation are not succeeding.
9.7 Indigenous juveniles in many jurisdictions now face more impediments to the granting of bail than existed at the time the Royal Commission reported.
10.1 There has been resistance by some coroners and police services to classifying deaths occurring during police pursuit as deaths in custody. There is a strong argument for coronial inquests into deaths occurring in all institutions, especially mental institutions.
10.2 The Coronial framework in several jurisdictions limits the usefulness of inquests. For example, in Queensland and South Australia coroners have very narrow statutory `terms of reference.' As a result the coroners often cannot make findings about the quality of care and supervision of the deceased before his death. In contrast, the corresponding Victorian legislation gives the coroner adequate scope to examine the workings of the criminal justice and correctional systems.
10.3 Coroners, and counsel assisting them, frequently omit to examine the circumstances of the arrests which lead to the incarceration of remand prisoners whose guilt has not yet been determined by a court.
10.4 Investigation by an independent body, the Queensland Criminal Justice Commission, has revealed significant shortcomings in police investigations of deaths in custody in that State. Amongst other problems, police officers have been able to frustrate investigations by invoking their privilege against self-incrimination. This problem extends to other jurisdictions.
10.5 Queensland has still not reformed its forty-year-old coronial legislation. Western Australia passed reforming legislation in 1996.
10.6 There are problems in the provision of information by police to the legal representatives of the families of persons who have died in police custody.
11.1 The reporting process was flawed from the outset, and has not resulted in accurate evaluations of progress in implementing recommendations at either Commonwealth or State or Territory level. This is a fundamental question of public accountability.
11.2 The recommendations are still largely current, although there are gaps (for example, no reference to the `trifecta' in the Royal Commission reports) and structural changes have occurred in custodial arrangements (for example, speedier transfer to remand centres, which may, in part, account for the proportional shift in the location of death from police to prison custody).
11.3 Monitoring is not useful unless there is a considered plan for the implementation of Royal Commission recommendations by Commonwealth or State and Territory governments. Responsible departments are encouraged to draw up plans in a six stage process by:
1. reviewing current activities;
2. developing policies and programs;
3. setting goals or targets;
4. allocating responsibility for implementation;
5. ensuring adequate communication and training supports the plans; and
6. establishing evaluation mechanisms.
By comparison, the implementation of Royal Commission recommendations currently starts and stops at step 1.
12.1 Recommendations which require legislation, such as those on the principle of custody as a last resort, public drunkenness, the sentencing powers of justices of the peace, prisoners rights and legally enforceable custodial health and safety rules, have not been implemented. This indicates that a coordinated program is required, necessarily involving the Commonwealth and State Law Reform Commissions.
12.2 The recommendations are not mere suggestions. They can have precise legal implications under the common law relating to negligence, misfeasance in a public office and, potentially, other actions. If a custodial authority breaches recommendations, and that contributes to a death in custody, the custodial authority may be liable in damages.
12.3 The need for accountability in custodial and police settings is greater than ever. Deaths in custody have not decreased, despite the resources that went into the Royal Commission. The Wood Royal Commission in New South Wales has amply illustrated the need for police to be more accountable. Private prisons are being introduced, which must be made accountable for the treatment of prisoners in their charge. The role of the courts in improving accountability must be pressed.
12.4 The first successful negligence actions by family of persons who died in custody, taken against police and medical authorities, were concluded in 1995 and 1996. A third case has recently settled in favour of the plaintiff in relation to profile 39NSW.
12.5 The threat of liability in damages, including exemplary and aggravated damages, is a potentially powerful means of ensuring that prison and police officials have adequate regard for the recommendations of the Royal Commission into Aboriginal Deaths in Custody.
12.6 Various administrative remedies are available to prisoners who are treated in a manner inconsistent with the recommendations. Anti-Discrimination complaints are also possible.
12.7 The Ombudsman or equivalent must play a greater role in enforcing and monitoring implementation of Royal Commission recommendations in the States and Territories, as well as at Commonwealth level.
12.8 Threats to the funding for Aboriginal Legal Services could set back the process of implementation of Royal Commission recommendations significantly. The Legal Services are virtually the only group with the resources to afford to pursue the legal avenues outlined in this chapter.
12.9 The failure to implement certain recommendations could be taken into the international arena, particularly the Human Rights Committee.
1. Departments of Corrective Services use the Australian National Classification of Offences to record offences for which prisoners are sentenced or remanded. [4:39]
2. Negotiation techniques, capsicum spray, electronic stun devices and other `minimum force' strategies be implemented in all jurisdictions. The more extreme methods should be used as a last resort and under strict guidelines. [6:60]
3. Queensland, Victoria and Tasmania decriminalise public drunkenness and legislatively define appropriate protective roles for police in detaining intoxicated persons without arrest. [6:64]
4. Western Australia decriminalise the offence of drinking in public. [6:64]
5. Police be required by statute to complete written reports indicating reasons for detaining persons in police cells rather than in alternative facilities, where such facilities are available and accessible. These reports must be audited for accuracy, and the results must be a matter of public record. [6:67]
6. The Australian Institute of Health and Welfare be funded to gather evidence on the frequency and the effective use of sobering-up shelters in jurisdictions where drunkenness is decriminalised. [6:67]
7.
a. Evidence of implementation of Royal Commission recommendation 85 be
included in State Government
implementation reports.
b. Police Services or Bureaus of Crime Statistics publish annual reports monitoring:
i. The extent to which police cells are used to detain intoxicated Aboriginal persons;
ii. Regional breakdowns of the average length of time spent in custody; and
iii. Details of all police operations targeting intoxicated persons under protective custody regimes. [6:71]
8. The Summary Offences Acts in each jurisdiction must be repealed. The Standing Committee of Attorneys General must undertake to ensure that each jurisdiction monitors the charging of Aboriginal people with the multiple charge syndrome known as the trifecta. The magistracy should be regularly informed of the outcomes of this monitoring. The monitoring should include the:
a. Extent to which police officers are the complainant in the charges;
b. Frequency with which police officers make claims for victims compensation following these incidents;
c. Different charges which can comprise the multiple charge syndrome, especially malicious-damage;
d. Use of offensive language and other minor charges to validate an arrest enabling a suspect to be held and questioned at a police station. [6:77]
9. All Australian police services immediately design the data bases required for the implementation of recommendation 87ii, and publish regional breakdowns of the exercise of police discretions in custody decisions in the lead up the National Summit into Aboriginal Deaths in Custody, to be held in April 1997. [6:82]
10.Police examine the needs and problems of women in Indigenous communities and develop strategies towards improving services noting the recommendations made in the Report of the Chief Justice's Taskforce on Gender Bias Western Australia:
a. Increased and better training of police officers in Aboriginal awareness;
b. Victims of abuse be referred as quickly as possible to relevant helping agencies;
c. Promotion to depend on satisfactory completion of training in these aspects of policing;
d. Mechanisms to be developed by the Police Department to ensure that only suitable police officers are posted to communities with substantial Aboriginal populations;
e. Bail conditions should not disadvantage Indigent women, and disruption to the lives of children should be a strong consideration;
f. Mothers of young children not be detained unless absolutely necessary; and
g. The above be included in police manuals and courses and police officers be appropriately screened. [6:84]
11. Each State and Territory report on the extent to which it has implemented the Justice under Scrutiny recommendation that it:
a. Promote and fund more Aboriginal-run street patrols (Recommendation 220);
b. Increase the provision of sobering-up shelters (Recommendation 80);
c. Ensure that police services act in the spirit of the Royal Commission by:
i. minimising their contact with and detention of intoxicated people
ii. not utilising substitute charges, such as drinking in public, as some form of social control over Aboriginal people on the street (Recommendation 85). [6:91]
12. State and Territory Governments establish an Aboriginal Complaints Unit within the Office of the Ombudsman with an adequate travel budget to allow the investigation of complaints in non-metropolitan areas. [6:93]
13. Tasmania and Northern Territory legislate to introduce the principle that imprisonment should be utilized only as a sanction of last resort. [7:104]
14. Commonwealth, State and Territory Attorneys General give urgent attention to recommendation 56 of the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs:
The Prime Minister, through the Council of Australian Governments, seek the co-operation of state and territory governments to ensure that all magistrates are aware of recommendation 86 and its role in the trifecta multiple charge syndrome. [7:104]
15. State and Territory Attorneys General phase out the use of police prosecutors in courts of summary jurisdiction. [7:104]
16. Commonwealth, State and Territory Governments review sentencing legislation to ensure it conforms with the principle of imprisonment as a last resort. [7:105]
17. Departments of Health consider establishing a forensic Court Liaison Service, as outlined in the Queensland Mental Health Plan, to provide specialised assessment and referral at the time of first court appearance and the establishment of a mobile intensive treatment team to provide assessment and assertive follow-up to prevent people with mental disorders becoming inappropriately involved in the criminal justice system. [7:105]
18. State and Territory Governments introduce programmes which specifically address motor vehicle offending by Aboriginal people. These should include programmes to:
a. enable Aboriginal people to obtain driving licences;
b. provide education on road safety; and
c. rehabilitate juveniles caught either stealing or stealing from motor vehicles such as `hand brake turn' programme which operates in Victoria. [7:106]
19. Western Australia, South Australia, Queensland and Tasmania move immediately to phase out the use of Justices of the Peace for the determination of charges or for the imposition of penalties for offences. [7:108]
20. All jurisdictions review the use of Justices of Peace in other criminal law related matters. [7:108]
21. a. Commonwealth, State and Territory Attorneys General and Ministers for Aboriginal Affairs increase funding for the accreditation and employment of Aboriginal interpreters.
b. Unsworn statements be reintroduced in criminal trials where defendants lack basic communication skills, or come from cultural backgrounds which leave them vulnerable under cross-examination. [7:109]
22. a. Police Departments review reception procedures to ensure that there are
adequate assessment forms, a regular
nursing presence and liaison with
Aboriginal Health Services.
b. Police Departments review protocols and observation procedures for those identified as `at risk' on reception. [8:138]
23. Police Departments review training in police custodial procedures, to ensure it is both rigorous and structured both at recruit level and on the job. Programmes should be designed, structured and written by experts in the field, and interested Aboriginal organisations should have input into their content. [8:138]
24. Police Departments formalise procedures for working with Aboriginal Visitors Schemes, including recording of responses to issues raised by employees of the schemes. [8:138]
25. Corrective Health Services review the availability of psychiatric services and their cultural appropriateness. [8:143]
26. Ministers for Corrective Services consider policies and funding necessary to ensure appropriate psychiatric services for Prison Medical Services. [8:143]
27. Prison Medical Services review implementation of Royal Commission recommendation 152, with particular reference to ensuring that:
a. Case notes are kept up-to-date and reviewed for that purpose at appropriate intervals.
b. Observation cells are not overly oppressive environments for distressed prisoners (eg, forced inactivity, no smoking, no personal interaction etc) and are not improperly used to punish prisoners;
c. Protocols for the exchange of medical information between prison officers, prison medical staff and external agencies are in existence and understood by all staff.
d. Protocols for care following self-harm are adequate and implemented.
e. National `best practices' should be established and implemented in all state and territory prisons. [8:155]
28. Prison Medical Services and Corrective Services Departments in all jurisdictions should examine ways to modify the `code of silence' amongst prisoners to the extent that it prevents prisoners and Aboriginal Welfare Officers from reporting , `at risk' behaviour. The extent to which the consequences of reporting `at risk' behaviour are unnecessarily negative, because of problems with safe cells, should be addressed in attempting to modify this behaviour. [8:156]
29. That Royal Commission recommendation 144 be applied in prisons such that unless there are substantial grounds for believing that the well being of the prisoner would be prejudiced, an Aboriginal prisoner should not be placed alone in a prison cell. Wherever possible, an Aboriginal prisoner should be accommodated with another Aboriginal prisoner. The views of the Aboriginal prisoners and such other prisoners should be sought. Where placement in a cell alone is the only alternative the prisoner should thereafter be treated as a person who requires careful surveillance. [8:156]
30. Prisons and Prison Medical Services review their cross-cultural health training for prison officers and medical staff having particular regard to content and the effectiveness of the training. [8:159]
31. Reception procedures be reviewed to ensure that:
a. In addition to a reception examination and screening, which should result in immediate medical attention if prisoners present with medical problems, all prisoners are provided with a full medical examination within 72 hours;
b. Screening forms are comprehensive and do not wholly rely on self-report, particularly in regard to suicidal intention where prisoners may be affected by drugs or alcohol, or to diagnose heart disease and mental health problems. [8:163]
32. Appropriate personnel be used in reception procedures. That the inclusion of Aboriginal persons, particularly counsellors, nurses, Aboriginal Welfare Officers, family members and fellow inmates, be examined. [8:163]
33. All Prison Medical Services computerise records and introduce a `risk' flagging system with Health Departments and Aboriginal Medical Services. [8:165]
34. Security systems in prisons, especially Queensland prisons, be modified to allow immediate access to cells of prisoners in need of urgent medical attention. The practice whereby prison officers do not carry keys during cell checks when prisoners are locked in must cease. If necessary, an electronic locking system be introduced. [8:168]
35. a. The Northern Territory Government give support to Royal Commission
recommendation 169 and provide
financial assistance for family visits to
prisoners, particularly after its decision to relocate prisoners from the Top
End to Alice Springs. The Tanami Network be funded by the Northern
Territory Government to use existing
infrastructure to provide video
linkups allowing prisoners from remote communities to have some contact with
their families. Similar initiatives should be implemented in other
jurisdictions.
b. All jurisdictions review the availability of financial assistance for families to visit prisoners in prison. Overly restrictive telephone contact policies should be urgently reviewed. [8:181]
36. Corrective Services Departments in all jurisdictions move immediately to employ Aboriginal Welfare Officers, for whom a criminal record should not be an automatic bar to employment. [8:185]
37. Corrective Services move immediately to introduce a transition period (flexible custody arrangements) for remandees and freshly sentenced prisoners. [8:187]
38. All State Departments responsible for juvenile detainees adopt and implement Recommendations 228, 230 and 231 of the Kids Injustice Report by the New South Wales Law Foundation's Youth Justice Project:
228. Corrective Services should not accept transferees from institutions unless strict requirements are met;
230. Every attempt should be made to accommodate juveniles together, and Aboriginal juveniles together, in prisons; and
231. Experienced youth workers should conduct programs for juveniles and other young prisoners in juvenile institutions and adult prisons. [9:207]
39. The transfer of a juvenile to a prison should only be considered after
a. the juvenile has received proper counselling; and
b. the family or next of kin have been sufficiently informed of such application and have been given the opportunity to appear or be represented at the hearing. [9:207]
40. Any marked deterioration in a juvenile's physical or mental health or behaviour be notified to the family or the next of kin who should be invited to participate in supportive care and case planning. [9:207]
41. That non-compliance with the requirements in the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child should be limited to cases genuinely relating to the best interests of the juvenile or geographic necessity. [9:207]
42. State Government Departments responsible for juvenile justice fund a regularly updated loose leaf juvenile justice sentencing service for magistrates. The service would give the necessary details of Aboriginal bodies involved in the rehabilitation of young people or juveniles and individuals willing (and considered fit and proper) to take part as a mentors, elders or guardians. [9:210]
43. Post-death investigations and inquests be legally required for deaths of people in all forms of institutional care, such as mental institutions which cater for involuntary patients. [10:224]
44. The Queensland Attorney General appoint a State Coroner or a Coroner responsible for deaths in custody. [10:225]
45. Attorneys General provide appropriate funding for Coroner Offices to ensure the proper preparation of inquests and the thorough investigation of deaths, and ensure that transcripts are made available to interested bodies. [10:225]
46. All jurisdictions, but especially Queensland, Western Australia and Tasmania develop protocols for the conduct of coronial inquiries in cases of deaths in custody. [10:226]
47. In Queensland and other jurisdictions the Coroner inquiring into a death in custody must be a Stipendiary Magistrate or more senior judicial officer, appointed by the Attorney General. [10:226]
48. Jurisdictions which do not require immediate notification of death by custodial authorities to the Coroner amend their relevant legislation or protocols. [10:227]
49. In cases where there is evidence a person has committed an indictable offence Coroners should continue to examine the circumstances of the case and make appropriate recommendations addressing systemic problems. [10:228]
50. All jurisdictions should require the making and retention of full public records of coronial inquests. [10:228]
51. Coroners fully consider the circumstances of deaths in custody including the circumstances of arrest and imprisonment. [10:230]
52. There be a restriction on the right of witnesses at Coronial investigations to claim privilege in respect of testimony which may incriminate or tend to incriminate the witness. Suitable restriction on the use to which such evidence can be put is necessary to maintain the substance of the protection against self-incrimination.
53. Jurisdictions which restrict coroners' powers to make findings and recommendations, by stipulating that recommendations must only be made where they will prevent occurrences of a similar nature in the future, should expand the powers given to coroners in line with s. 19(2) of the Coroners Act 1985 (Vic) and with Royal Commission Recommendations 13 and 18. [10:233]
54. Aboriginal investigative staff must be employed by coroners in each jurisdiction. Such staff should be responsible only to the state or territory coroner for the reporting of investigation outcomes. [10:242]
55. The Queensland Police Service report on the measures adopted to implement the recommendations made by the Criminal Justice Commission investigator enquiring into the death of the woman at the Brisbane Watch House in 1992. All other jurisdictions report on their compliance with those recommendations in their forthcoming implementation reports. [10:244]
56. Chapter 11 of the Queensland Custody Manual be amended to provide practical guidelines and instruction to appropriate members of the Queensland Police Service in the thorough and impartial investigation of deaths in custody. [10:244]
57. Western Australia and other jurisdictions which have not done so consult with appropriate Aboriginal organisations such as Aboriginal Legal Services and develop protocols which cover such matters as: the retention of bodies so that the family can sight the body where possible; the retention of organs; the retention of clothing worn by the deceased; the notification of the family; the appropriate explanation of the coronial process to family members; and referral of the family for counselling. [10:247]
58. An independent forensic expert must be provided to assist the family, with the cost borne by the authority most closely connected with the circumstances of the death. Funeral costs should also be borne by the relevant authority. [10:247]
59. State Police Departments publish regular statistics on, and analysis of, the incidence use of arrest, summons and court attendance notices to back up claims of implementation. The research should be conducted to reveal variations between districts, and should convey ethnicity and charge information. [11:261]
60. All government departments and agencies should record and publish statistical or other objective data relevant to the implementation of all Royal Commission recommendations for which that department or agency has responsibility. Annual targets should be set by reference to such statistics or data to provide a measure of effective implementation or otherwise. [11:261]
61. State and Territory Governments use standard terminology ("implemented", "part implemented' or "not implemented") in their reports, and support these claims with appropriate evidence drawn from their own records and data from other agencies with direct involvement. Three examples of interested agencies who should provide supporting evidence in the criminal justice area are the State and Territory Ombudsmen or equivalent, Anti-Discrimination Commission or equivalent, the Bureau of Crime Statistics and the Office of the Auditor-General. [11:268]
62. State and Territory Governments acknowledge the shortcomings in their reporting on implementation of Royal Commission recommendations, and commit to the model of comprehensive Action Plans by responsible departments (similar to those provided for in Part 3 of the Disability Discrimination Act (Cth) 1992). Interested Aboriginal organisations should be invited to comment as part of the process in the drafting of these action plans. [11:268]
63. Commonwealth, State and Territory Attorneys General Departments move immediately to enact recommendations appropriate for legislative implementation. The Commonwealth Law Reform Commission should take a lead to co-ordinate the drafting of either model state and territory legislation or model uniform legislation which complies with the recommendations of the Royal Commission into Aboriginal Deaths in Custody. [11:278]
64. Aboriginal Justice Advisory Committees in the States and Territories, as well as the National Aboriginal Justice Advisory Committee, be given the research support they need to provide adequate Indigenous input into the review and drafting of state criminal laws, and at the same time participate in the process of preparing a Criminal Code for the Commonwealth. [11:279]
65. State Governments and Police Services should accept liability for deliberate acts of violence by police through legislation which specifically extends vicarious liability to assaults by police officers. [11:289]
66. State and Territory Law Reform Commissions review the appropriateness of legal barriers to civil actions against police and prisons. [12:289]
67. The New South Wales Government immediately re-introduce victims compensation for prisoners criminally injured while incarcerated in New South Wales prisons. [12:297]
68. In States where a strict limitation of actions period applies, legislation be amended to provide that the basic limitation period may be waived where a court determines that, in all the circumstances, it is just to so waive it. [12:298]
69. The fact that a legal claim relating to a death in custody is statute barred by the lapse of time should not be an acceptable ground for State or Territory Governments to refuse to make an ex gratia payment in a case relating to the implementation of Royal Commission recommendations. [12:298]
70. The South Australian initiative, where a senior Aboriginal person works from the Department of State Aboriginal Affairs as an Ombudsman, should be used as a model by all State and Territory Governments. That position should be supported by express statutory powers. [12:303]
71. The Ombudsmen in each jurisdiction should be given an express role in the monitoring of recommendations of the Royal Commission into Aboriginal Deaths in Custody. Ombudsmen must be given powers and adequate resources to fulfil this function. [12:303]
72. State Coroners must immediately be guaranteed conditions equivalent to those of a District Court Judge, including tenure, so as to ensure that judicial independence is achieved in this important jurisdiction. [12:307]
73. A statutory duty must be placed on coroners ensuring that they address a wider range of specified matters in cases of deaths in custody, such as Royal Commission Recommendation 12 which requires investigation of not only the cause and circumstances of death, but also the quality of care, treatment and supervision of the deceased prior to death. [12:307]
74. All State and Territory governments should legislate to provide that visiting justices or magistrates adjudicate all charges laid against prisoners relating to offences alleged to have been committed while in prison. [12:308]
75. Any review of Aboriginal Legal Services should address matters of wilful misconduct or operational efficiency, but should ensure as a priority that services currently provided to Aboriginal people are not unfairly withdrawn.[12:312]
76. The funding of legal services should be provided on a basis which is adequate and at least equivalent to the funding provided to Legal Aid Commissions for an equivalent case load. Specific attention should be paid to funding for the purposes of obtaining psychiatric reports and court transcripts. [12:312] l