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McFarlane, Olivia; Vines, Prue --- "Investigating to Save Lives: Coroners and Aboriginal Deaths in Custody" [2000] IndigLawB 13; (2000) 4(27) Indigenous Law Bulletin 8

Investigating to Save Lives:

Coroners and Aboriginal Deaths in Custody

by Prue Vines and Olivia McFarlane

‘In the final analysis adequate post death investigations have the potential to save lives’.

This was the fundamental reason for the recommendations made by the Royal Commission into Aboriginal Deaths in Custody (‘the Commission’ or ‘RCIADIC’) in relation to coroners.

All sudden deaths are investigated by a coroner who determines the cause of death. The coronial system therefore plays a potentially vital role in the prevention of such deaths, including deaths in custody. The Commission recognised this and made 34 recommendations for reforming the coronial system.

  • Major issues considered by the Commission considered the following:
  • Ensuring that the coroner’s powers and position were significant enough for the coroner to be able to direct investigation rather than being captive of the police or custodial officers.
  • The disparity in coronial systems amongst Australian jurisdictions. The Commission preferred and emphasised the need for a centralised and co-ordinated system connecting coroner and forensic pathologists, rather than a system where the responsibility for various parts of coronial investigations are divided amongst different government departments.
  • Ensuring openness of coronial hearings.
  • Proper notification of family members and assistance in representing their concerns to the coronial investigation, particularly inquests.
  • The cultural conflicts raised by Aboriginal deaths in custody and the coronial process.
  • The need to have Aboriginal legal and health services and communities involved in the coronial process.

Responses to the Report – Legislative or Administrative

Nearly ten years later, and despite a recent rash of changes to Coroners Acts, few of the recommendations about coroners have been put into legislation.[1] This is the situation in all seven Australian jurisdictions. Why do governments appear so reluctant to legislate? Certainly, legislation is not the only way to work on preventing deaths in custody: administrative changes can also be effective (for example by changing the procedure a coroner’s office uses for dealing with an aspect of the coronial process). Some of those recommendations not implemented by legislation have been complied with administratively. However, to be most effective, legislative change is required. There are a number of reasons for this. Legislative change sends a signal to the community which is far stronger than that made by administrative change. It is more enforceable and entrenches legal rights in a way which administrative change cannot. Its greater public profile has an educational impact, while also ensuring that political will is exercised openly. Furthermore, to pass such legislation requires a majority of members in both houses of Parliament (where there are two houses) and that requires them to stand up and be counted.

It is important to delve into this critical aspect of the Commission’s report – the recommendations about the coronial system – and the minimal legislative response by the various jurisdictions. Lack of compliance with the recommendations indicates lack of political will and, given the continuing outrageously high incidence of Aboriginal deaths in custody,[2] it is a tragic indictment of Australia’s human rights agenda that so few of the recommendations relating to coroners have been legislatively implemented.

Legislative Compliance with the Recommendations

The table outlines the legislative responses to the recommendations regarding coronial investigation.

RECOMMENDATIONS OF THE ROYAL COMMISSION INTO ABORIGINAL DEATHS IN CUSTODY IN RELATION TO CORONERS




























ACT CA
NSW CA
NT CA
QLD CA
SA CA
TAS CA
VIC CA
WA CA
Date of Coroners Act ('CA')
1997
1980
1993
1958
1975
1995
1985
1996


















RECOMMENDATIONS
















Rec6 definitions
s 3(2)(a),(b)(vi)
s 13A
s 12(1)(a),(b)
s 7B
s 12(1)
s 24(1)
s 17(1)(b)
s 22(1)(a),(b)
Rec7 special designation
No
s 13A
s 6(4)(a)
No
No
s 7(c)
s 7
s 8
Rec8 conduct protocol
No
s 4D(d)
No
No
No
s 18(1)(c), s 7(g)
s 7(e)
s 8(e)
Rec9 stipendary
No
s 13A(1)
s 6(3),(4)(a)(I)
s 50 part
No
s 7(c)
s 7(c)
s 8(c)
Rec10 notify coroner
s 78
s 12A(2)
s 12(5)
s 12(1)
s 31(4)
s 19(4)
s 13(5)
s 17(5)
Rec11 all=coronial inquiry
s 74
s 14B, s 30
s 14(1),(2)
s 7B(b)(I)
s 12(1)
s 24(1)(b), s 21(1)
s 17(1)(b), s 15(1)
s 22(1)(a),(b),(c)
Rec12 quality of care
s 74
No
No
No
No
No
No
No
Rec13 mandatory recommend
s 75
s 22A discretion
No
No
No
No
s 21 discretion
No
Rec15 agency response
s 76
No
No
No
No
No
No
No
Rec16 resp to coroner
No
No
No
No
No
No
No
No
Rec17 report to A-G
s 75
s12A (4)
ss 26-27
No
s 69
s 18
s 21 discretion
s 27
Rec19 notify family
No
No
No
No
No
No
No
No
Rec20 legal service
s 72
No
No
No
No
No
No
No
Rec21 family notified
s 69(1)(b)
No
No
No
No
No
No
No
Rec22 inquests +family
s 37(1)(b), s 69(1)(b)
s 32 unless coroner orders otherwise
No
No
No
No
No
No
Rec23 family, legal aid
No
No
No
No
No
No
No
No
Rec24 provide info
s 23(1)(a-e)
No
No
s 59A fee
No
No
No
No
Rec25 right to view body
s 23(1)(a-e)
No
No
No
No
No
No
No
Rec26 solicitor48hrs
s 72
No
No
No
No
No
No
No
Rec27 salaried officer
No
No
No
No
No
No
No
No
Rec28 duties of lawyer
No
No
No
No
No
No
No
No
Rec29 legal power
s 63(1),(2)
No
s 25(1),(2)
s 50(1),(2)
No
No
No
No
Rec30-35
No
No
No
No
No
No
No
No
Rec36 evidentiary base
s 74
No
No
No
No
No
No
No
Rec37 special forensic
No
s 48(1)(a-b)
No
No
No
s 18(1)(b)
No
No
Rec38 consult legal aid
No
s 48A(1-8)
s 23(1),(2),(3)
No
No
s 38(1),(2),(3)
s 29(1-6)
s 37(1-4)
Rec39 all Aboriginal deaths
No
No
No
No
No
No
No
No
Rec40 Institute of Criminology
No
No
No
No
No
No
No
No


















Latest amendment to Coroners Act
1999
1999
1997
1998
1996
1995
1999
1999

Most and least legislative compliance

The Australian Capital Territory has implemented more recommendations than any other jurisdiction, but even it has not implemented them all. Queensland appears to have complied least. The evidence is that Queensland’s rate of deaths in custody continues to be one of the highest in Australia.[3] Since Queensland’s government in 1994 gave in-principle support to 338 of the 339 recommendations including all the coronial recommendations,[4] this is extremely disappointing.

Definition of death in custody

Recommendation 6 is one of the few which has been legislatively complied with by all the jurisdictions.[5] It recommends that the definition of a death for the purpose of post-death investigation be expanded to include juveniles in police or prison custody, deaths occurring because of lack of proper care or injury in detention and deaths occurring in the process of detaining or attempting to detain persons in custody or attempting to escape. This broader definition reflects the public interest in evaluating the proper use of powers conferred by the State – that is, ultimately , ‘the proper performance of the duty of care turns on the exercise of powers held by custodial officers.’[6] However, although this definition has been accepted, it is by no means clear that governments have accepted that they should be accountable to the coroner.

A properly qualified coroner

Recommendations 7 and 8, which provide for a coroner to be specially designated as in charge of Aboriginal deaths in custody,[7] and the development of a protocol for this purpose,[8] have been specifically implemented in most jurisdictions. Recommendation 9 was intended to ensure that Aboriginal deaths in custody are investigated properly by a properly qualified stipendiary magistrate or senior judicial officer. There was evidence before the Commission that at times the process of coronial inquiry had been undermined by placing the role of coroner in the hands of a clerk of the court. The Commission[9] emphasised that it was necessary to have seniority, authority and legal training for the proper exercise of coronial power. It is essential that the coroner be capable of directing the investigation rather than being captive to or ignored by police. NSW, NT, Qld, Tas, Vic and WA have all changed their legislation to reflect this requirement.[10] These three recommendations could have been effectively implemented administratively, but our remarks about the important political and educative function of legislative change stand. To state in legislation that it is a requirement that a senior person must investigate Aboriginal deaths in custody sends a powerful message to the community and custodial officials. But it is not enough on its own.

Notification of the coroner

Recommendation 10, which requires custodial authorities to immediately notify the coroner of any death in custody, has been legislatively implemented in all the jurisdictions.[11] All the jurisdictions have met recommendation 11 that legislation should require all deaths in custody to be the subject of a coronial inquiry culminating in a formal and public inquest, unless there are compelling reasons for making it private.[12]

Proper exercise of custodial power

The Commission recommended (rec 12) that the coroner investigate the quality of care, treatment and supervision of the deceased after a death in custody. Only the Australian Capital Territory has legislatively implemented this recommendation.[13] New South Wales, for example, considered that it was unnecessary to implement this legislatively, because quality of care, treatment and supervision of the deceased were already covered by the coroner’s discretion to examine any matters relevant to the death of a person. However, as the NSW report accepted, this recommendation was the one which the Report of the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner most frequently cited as breached in all the States.[14] Ironically, New South Wales regards itself as having fully implemented this recommendation, despite this acknowledgment. Its comment on the situation suggests that, in its view, the problem lies in the recommendation rather than in the response:[15]

‘This is perhaps indicative of the open-ended nature of this recommendation...Nevertheless it is accepted that further care should be taken in implementing this recommendation.’

This is the heart of the issue which the Commission thought was central to preventing Aboriginal deaths in custody – the proper exercise of public custodial power. The failure to incorporate this in legislation indicates a worrying lack of interest in the accountability of executive governments for the exercise of power. This concern is emphasised when considering recommendations 13 – 19, only some parts of which have been legislatively implemented. These aimed to establish a system for report and action on findings and recommendations of coroners investigating deaths in custody. Recommendation 13 would make it mandatory for a coroner to make recommendations in relation to deaths in custody and empowered the coroner to make recommendations in respect of other deaths.[16] Time limits for actions and the provisions of reports to various parties were suggested.[17] If coronial inquiry is to prevent further deaths then accountability for the agencies or bodies involved in custody is essential. Recommendation 17 required an annual report on deaths in custody from the coroner to Parliament, including a report on the responses to coronial recommendations. Recommendation 17 has been partially taken up by WA, ACT (in relation to deaths in custody only), NT and SA.[18] The ACT complies best as it requires that the coroner must report to the Attorney-General and the custodial agency and requires that the agency respond. The other jurisdictions require the Attorney-General to table the report in Parliament, but go no further. WA requires the coroner to report to the custodial agency, but does not mention a response. NSW and Tasmania make no mention of reporting at all, and Victoria gives a discretion to the coroner as to whether to make a report.[19] Recommendation 19 sets what would seem a minimum requirement – that is, to immediately notify the family of the death. It is likely that this is administratively carried out, but it is not in the legislation.

Recommendations 13-19 are the core of the issue for the Commission – that is, they are recommendations which are directed to accountability of executive action. They are directed to prevention of deaths in custody rather than blame. Hallstead[20] notes that focusing on blame can itself impede prevention, as blame may merely lead to scapegoating and ‘a false sense of rigour’.[22] This is why the Commission recommendations were not merely to report to the Attorney-General (which might be seen as blaming), but to ensure that that report was passed to the custodial institution and that the custodial institution had to act to show that further deaths would be prevented. This latter step has been addressed only by the ACT. This failure to legislate to implement the most crucial and essential issues is serious. No systems exist to ensure accountability of institutions where deaths in custody occur. They therefore continue.

Further notification of family and Aboriginal community

Recommendation 20, that appropriate Aboriginal Legal Services should be notified immediately of any Aboriginal death in custody has been implemented by both ACT and Tasmania.[23] Recommendations 21 and 22 would ensure that the deceased’s family and the Aboriginal legal service were informed in adequate time of the date and time of the coronial inquest and that it did not proceed in their absence unless they so wished. This provision has been largely ignored, although Queensland has provided that persons may get information for a fee.[24] No jurisdiction has implemented recommendation 23, that the family of the deceased be entitled to legally aided representation at the inquest. Only the ACT has implemented recommendation 25, that the family should have a right to view the body or the scene of death and have an independent medical practitioner present unless the coroner directs otherwise.[25] Similarly, only the ACT has implemented recommendation 26, that a solicitor or barrister be appointed to assist the coroner’s inquiry. Recommendations 27 and 28, that the lawyer be a salaried officer whose duties include ensuring that all relevant evidence is brought to the attention of the Coroner, have not been implemented.

Coroner’s power of investigation

The ACT, NT and Queensland have all responded to recommendation 29, that a coroner investigating a death in custody should have legal power to require the police to report to the coroner, and direct any additional steps in the investigation. This was clearly a significant concern to the Commissioners who referred to a number of investigations where the police ignored or subverted the coroner’s investigation. Many such events occurred in Queensland, so it is pleasing that this particular direction has been implemented there.

Recommendations 30-35 set out the responsibilities of the lawyer assisting the coroner and the personnel carrying out the police investigation. No jurisdiction has implemented these recommendations in legislation. However, the Commission contemplated changes to police standing orders as the best mechanism for ensuring proper police investigation of deaths in custody. Although administrative implementation is satisfactory, it is preferable to have the policy that the police standing orders are intended to reflect stated in the legislation.

Recommendation 36, which requires a thorough evidentiary basis for consideration of cause and circumstances of death and treatment beforehand, has been implemented by the ACT alone.[26] Recommendation 37, that a specialist forensic pathologist carry out all post-mortem examinations, has been implemented by NSW and Tasmania alone, [27] although this may be common practice in most jurisdictions.

Cultural issues

An issue of great cultural sensitivity is raised by recommendation 38. Where an Aboriginal person has died in custody, a post-mortem examination may offer vital information about the cause of death. However, many Aboriginal people regard post-mortem examination as desecration of the body,[28] and this may be exacerbated where the death occurred in custody. The Commission recommended that the State Coroner should develop a protocol for resolution of such questions in consultation with Aboriginal Legal and Medical Services. The ACT has complied with this to some extent by requiring that the coroner consider cultural sensitivities before ordering an autopsy,[29] (the only jurisdiction to mention cultural sensitivities). The other jurisdictions have complied with this recommendation by providing a process where the deceased’s senior next of kin can object to a post-mortem examination.[30] However, a protocol which reflected cultural inquest practices is greatly preferable to the possibility of a blanket objection to post-mortem which can be overruled.[31]

Extending coronial protocols to all Aboriginal deaths

The Commission considered the background issues of health and poverty affecting deaths in custody. Recommendation 39 reflects this by suggesting consideration by a State coroner of extending the terms of any protocol developed with Aboriginal legal and health services to all Aboriginal deaths. This is not evident in the legislation, but some protocols for all Aboriginal deaths have been established,[32] although we are not aware whether this has been done in consultation with Aboriginal legal and health services.

A uniform data base

The final recommendation, 40, suggested a uniform data base of Aboriginal deaths in custody amongst all the Australian jurisdictions’ coroners’ offices. The Australian Institute of Criminology has been collecting data on all deaths in custody since 1990, using the recommendation 6 definition. However, the purpose of that data collection recommendation will not be met until there is a co-ordinated system for dealing with all the Australian jurisdictions. The legislative provisions for coroners remain markedly different from jurisdiction to jurisdiction. However, the Australian Coroners Society Inc has been working towards an organised National Coronial Information System,[33] which will go a long way towards meeting the objectives of recommendation 40.

Political Will and the Responses to the Coronial Recommendations as a Whole

Taking the recommendations one by one does not adequately reflect the breadth of concerns of the Commission. Those concerns were ultimately directed at preventing deaths in custody, and the Commission was attempting to consider all the different processes which have contributed to Aboriginal deaths in custody, including economic status, health, education and culture of Aboriginal people in Australia. The recommendations as to the coronial system are a small but significant part of the Commission’s work.

The legislative responses to the coronial recommendations suggest, firstly, that this is an area where relatively little political will to change has been demonstrated in the legislatures by our politicians. Scrutiny of the exercise of executive power by custodial agencies for the sake of democratic governance or human rights is not a high priority, even where people are dying, as shown by the failure to systematically implement recommendations 13-19 which would have established a system of feedback and accountability between coroner and custodial authorities through parliament. Similarly the failure of most jurisdictions to require the coroner to investigate the quality of care, treatment and supervision of the deceased is a failure that goes to the heart of the issue. That care is the immediate cause of deaths in custody. The political will to establish a common approach or federal coronial system is also lacking, although State Coroners themselves are co-operating.

Example: New South Wales

An examination of the New South Wales response shows that the NSW government is satisfied that it has complied with all recommendations 6 to 40.[34] The legislative changes that were made in NSW were made in the Coroners (Amendment) Act 1993. The Second Reading speech in the Legislative Assembly,[35] by Mr Merton, Minister for Justice and Minister for Emergency Services notes that the Royal Commission into Aboriginal Deaths in Custody as well as a number of other bodies, had showed the need for change. It is of interest to note that the consultative committee to develop the reforms included representatives from the Law Society, the Bar Association, the Police Service, the Public Interest Advocacy Service, the Women’s Advisory Council, the Department of Health, the Attorney-General’s Department, the Director of Public Prosecutions, and the Chief Magistrate. The State Coroner was the chairman. No Aboriginal organisation was represented. The Second Reading speech suggested that some proposals for reform had been misguided:

‘In general, these proposals sought to extend the focus and direction of a coroner’s inquiry beyond its traditional area of concern....[A]ll attempts to make the system a mouthpiece for individuals or interest groups, a monitor and commentator on social problems, or a quasi-royal commission, must be rejected’.

It is notable that the speech is concerned with a more ‘efficient and effective coronial system’ rather than with full and powerful investigation. Although proper efficiency would, no doubt, be said to include this, there is no feeling in the speech that the coronial system could prevent deaths from happening, nor that preventing deaths in custody is significant or important.

Although the Commission stated most of the recommendations in terms which would make them mandatory, most of the NSW response is administrative and based on the State Coroner’s and NSW Police Service and Corrective Commission protocols or procedures manuals. Such protocols do not have the force of law. NSW has implemented recommendations 10, 16, 20 and 25 by use of State Coroners protocol. Where the commission recommended a protocol (recommendation 38 that the State Coroner should consult generally with the Aboriginal Legal and Health Services to develop a protocol to deal with issues of post-mortem examination) this was rejected as unnecessary by the State Coroner. Other recommendations which have been administratively implemented by the use of Police Commissioners Instructions (PCI) or Corrective Services Operation Procedures Manual (OPM) are recommendations 15, 19 –25, 32 – 36 (PCI) and recommendations 15, 19, 20 and 25 (OPM). The approach NSW has taken to recommendation 13 (discussed above) illustrates the problem. It is commendable that the recommendations are being carried out in many cases in practice, but without the strength of legislative action those changes are constantly under threat. Ultimately the impetus for change as shown in the Second Reading speech in NSW, is based on the giving of discretion for the purposes of efficiency rather than establishing rights to ensure that such deaths in custody end.

Taking responsibility

This survey shows a relatively low level of legislative compliance with the recommendations on coronial investigation. Although many recommendations have been implemented administratively (and indeed, the Commission contemplated some as being only administratively implemented), administrative change is not easily entrenched and may easily be changed without public knowledge. A whole-hearted response to the coronial recommendations would have been one which implemented them in legislation as a system rather than piece by piece. It would ensure that mechanisms put into place for prevention are mandatory and would have reduced deaths in custody. It would show a sense of responsibility which is not satisfiable by scapegoating of individual custodial officers or agencies, but which requires them to be systematically engaged in prevention. Above all, a whole-hearted response would have shown sufficient political will to establish positive legislative statements that deaths in custody, Aboriginal or otherwise, are unacceptable, preventable and will be stopped. At present, governments show signs of complacency about their response to the Royal Commission. Senator Aden Ridgeway drew attention to this in December 1999 when he said,

‘We as senators of the Australian Parliament have a responsibility to all Australians, Aboriginal and non-Aboriginal, to truly give effect to all of the recommendations of the Royal Commission.’[36]

State parliaments also must take that responsibility. As the number of deaths continue to rise it is apparent that systems must be put in place which are mandatory not discretionary. This is why legislative response is needed - to establish rights rather than expectations, rules rather than discretions so that the abuse of custodial power and the failure to care which is at the heart of this issue is stopped.

Prue Vines is a Senior Lecturer and Olivia McFarlane is a Research Assistant in the Faculty of Law, UNSW.


[1] Coroners Acts: 1997 (ACT) amended 1999; 1980 (NSW) amended 1999; 1993 (NT) amended 1997; 1958 (Qld) amended 1998; 1975 (SA) amended 1996; 1995 (Tas); 1985 (Vic) amended 1999; 1996 (WA) amended 1999. (hereafter referred to by jurisdiction). Various jurisdictions have produced reports detailing their compliance with the recommendations of the Commission: RCIADIC Qld Govt Progress Report on Implementation to December 1993, 1994; WA Striving for Justice Vol 1, 1993; Volume 2 1994; Response by Governments to the Royal Commission 1992.Other reports of compliance with all the recommendations have appeared: J Behrendt and C Cunneen ‘Report to the National Committee to Defend Black Rights; Aboriginal and Torres Strait Islander Custodial Deaths between May 1989 and January 1994’ [1994] AboriginalLawB 22; (1994) 3 (68) ALB 4; ATSIC Royal Commission government Response Monitoring Unit, Implementation of Commonwealth Government Responses to the Recommendations of the RCIADIC; 1992-92 Interim Report, AGPS 1993; 1994-95 Annual Report, AGPS 1996; NSW Attorney-General’s Department Report on Implementation of the Royal Commission into Aboriginal Deaths in Custody 1995-96. However relatively little literature specifically covering the recommendations on coronial inquiries exists: D Lavery ‘Empty Words : Queensland’s Response to Recommendations 6 to 40’ [1994] AboriginalLawB 26; (1994) 3 (68) ALB 11; and see Selby (ed) The Inquest Handbook, Federation Press, 1998, especially chapters by Hallstead and Johnstone.

[2] V Dalton, Australian Deaths in Custody and Custody-Related Police Operations, Australian Institute of Criminology, 1996. In 1999 Aboriginal deaths in prison hit a twenty-year high: Sydney Morning Herald, 4.12.99.[]

3 V Dalton, above note 3, says Queensland reported the highest number of deaths in 1996, and that the number of Aboriginal and Torres Strait Islander deaths in custody in 1996 was the second highest since 1980.

[4] D Lavery, above note 2.

[5] ACT s 3(2); NSW s 13A; NT s 12(1); Qld s 7(b); SA s 12(1); Tas s 24(1); Vic s 17 (1); WA s 22(1).

[6] Report [4.5.42].

[7] NSW s 13A; NT s 6(4)(a); Tas s 7(c); Vic s 7; WA s 8.

[8] NSW s 14D; Tas s 18(1); s 7 (g); Vic s 7(e); WA s 8(e).

[9] Report [4.5.66-4.5.72].

[10] NSW s 13A(1); NT s 6(3); 4(a); Qld s 50 – duty of police to assist coroner; Tas s 7(c); Vic s 7(c); WA s 8(c). Willis, ‘ Inquiring into Pitjantjatjara Deaths’ in Manderson (ed) Courting Death; Pluto Press, 1999.

[11] ACT s 78; NSW s 12A(2); NT s 12(5) ; Qld s 12(1); SA s 31(4); Tas s 19(4); Vic s13(5); WA s17(5)

[12] ACT s 74; NSW SS 14B(1) and 30; NT s 14; Qld 7B; SA s 12(1); Tas s 24(1); s 21(1); Vic s 17, s 15; WA s 22(1).

[13] ACT s 74.

[14]Aboriginal and Torres Strait Islander Social Justice Commission, Indigenous Deaths in Custody 1989-1996, Canberra, 1996.

[15] NSW Attorney-General’s Department: Report on the NSW Government’s Implementation of the Recommendations of the RCIADIC, 1995-95, (hereafter NSW Attorney-General’s Report) Recommendation 12.

[16] A discretion to make a recommendation (as in NSW s22A and Vic, and impliedly elsewhere) does not meet the recommendations.

[17] Eg, recommendation 15 gave a three month period for agencies to respond to coroner’s recommendations. Rec 16 provided for those responses to be passed to the coroner, who could call for further explanation or reports as to action taken.

[18] ACT s 75-76; WA s 27; NSW s 12(A);NT s 26-27; SA s 69.

[19] Vic s 21.

[20] A case study of deaths in custody in Victoria from1990-1992 examined them in the light of the recommendations, especially recommendations 13-19. Hallstead, ‘Coroners’ Recommendations following Deaths in Custody’ in Selby (ed), above note 2, selected cases where the coroner had or could have made a recommendation and found the Commission’s recommendations were honoured rather in the breach than the observance.21

[22] Ibid, p 206.

[23] ACT s 72. Tasmania’s legislation provides for an approved Aboriginal organisation to carry out an investigation of the death of an Aboriginal: s 23.

[24] Qld s 59A.

[25] ACT s 23(1). This recommendation is central to ensuring proper accountability since the family of the deceased has the greatest interest in the investigation.

[26] ACT s 74.

[27] NSW s 48(1); Tas s 18(1); s 35 establishes a system of approved pathologists or medical practitioners to undertake coronial autopsies.

[28] Re the Death of Unchango(Jr) (1989) 23 FCR 239; Green v Johnstone [1995] VICSC 34; [1995] 2 VR 176;

See Freckelton ‘Autopsy law; multiculturalism working successfully’ (1998) 6 J of Law and Medicine, P Vines ‘Objections to post-mortem examination; multiculturalism, psychology and legal decision-making), (2000) 7 J of Law and Medicine, forthcoming.

[29] ACT ss 20, 28.

[30] NSW s 48A; NT s 23; Tas s 38; Vic, s 29; WA s 37.

[31] Willis, above note 15 ; Brennan ‘Accommodating Law to Culture ‘ in Selby (ed) The Aftermath of Death Federation Press, 1992; Freckelton, above, note 30.

[32] For example, in NSW: telephone interview, social worker, NSW Institute of Forensic Medicine; and NSW Attorney General’s Report.

[33] J Moller ‘The National Coronial Information System’ in Selby (ed), above note 2.

[34] NSW Attorney General’s Report, which reported that all of recommendations 6-37 and 40 had been fully implemented, and recommendations 38 and 39 partially implemented. Most of the implementation is administrative.

[35] Hansard, 21 April 1993.

[36] Hansard, 9 December, 1999.

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