Date: 
Friday 23 December 2016

The Australian Human Rights Commission extend its sincere condolences to the family of Yamatji woman Ms Dhu who passed away while in Western Australian police custody in August 2014. We also express our deep respect for their decision to release the footage of the appalling treatment of their young family member.

Last week the Western Australian State Coroner handed down her report on the investigation into the death of Ms Dhu. The Coroner found that Ms Dhu’s death could have been prevented if she had received the appropriate medical care needed to treat severe sepsis and pneumonia on all but the last of three times she was taken to hospital.

While we are pleased to see the Coroner’s recommendations for institutional change, we are conscious that reform of any system is dependent on the conduct of individuals. The Coroner’s recommendations targeting the justice system, particularly on the need for greater staff training, a Custody Notification Service based upon the New South Wales model, and amendments to the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) are welcome. These recommendations are consistent with the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) and are particularly urgent for Aboriginal women who are overrepresented among fine-defaulters in the Western Australian prison population.

However, recommendations for institutional change require consistent, strong political leadership and the cooperation of individual management and staff to ensure ongoing implementation across institutions.

The Coroner has criticised the conduct of almost all the police and medical officers who had contact with Miss Dhu. The release of the footage has understandably prompted the community to ask questions about individual accountability. The Coroner was clear to outline that her role was not to make determinations in relation to criminal or civil liability. Her report did refer to the results of internal police investigations, though details about the nature of any professional misconduct processes that have taken place are unclear.

That the Coroner could find fault almost every person who came in contact with Miss Dhu over a 48-hour period begs the question - is there a common thread that might underpin the decisions of these people? What leads a group of professionals across two systems – health and criminal justice – to conduct themselves in a manner described by the Coroner as appalling, unprofessional and inhumane?

While the Coroner did not conclude that the police or health staff were motivated by conscious deliberations of racism, she adds that it would be naïve to deny the existence of societal patterns that lead to assumptions being formed in relation to Aboriginal persons.

Let’s name these assumptions, which are at the very least discriminatory beliefs about race, gender, health status and age.

The Coroner noted that without a community wide ‘seismic shift’ in the understanding of the needs of Indigenous peoples, ‘the risk of unfounded assumptions being made without conscious deliberation continues, with the attendant risk of errors.’  In Miss Dhu‘s case assumptions led to the failure to properly investigate and treat her symptoms, subsequent certification that she was fit to be returned to custody and complete disregard for her dignity as a fellow human being and as a victim of family violence.  

How will we create the seismic shift we need so urgently across our broader community? Over twenty-five years ago, we held a Royal Commission (RCIADIC) because of the unacceptably high numbers of Indigenous people dying in custody. The report of the RCIADIC made valuable, comprehensive recommendations and yet we continue to experience failures of the health and criminal justice system because these changes are largely yet to be implemented at a systems or individual level. International human rights standards might seem a long way from the realities of remote Western Australia, but there is a clear line of sight between the two.

These standards provide a framework for engendering respect for all people, paying particular attention to the ways we might face discrimination based on  age, race, sex or ability. These standards also acknowledges the ways in which these rights intersect in the lives of our most complex and vulnerable citizens, like Miss Dhu. Implementation and monitoring across our health and justice systems can set standards for procedures and importantly, for the individuals working in them.

We note the Government’s recent consideration of ratification of the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) which provides for monitoring mechanisms aimed at raising the standards of treatment for anyone deprived of their liberty.  We all have much to gain from the implementation of such instruments and the laws that give effect to them.

A seismic shift will not occur without sustained commitment to doing better, from our leaders and those of us working directly with our most vulnerable.

Photo: Carol Roe outside the inquest into the death of her granddaughter Ms Dhu. On Friday 15 April 2016 she joined a march in Perth calling for the recommendations of the Aboriginal deaths in custody royal commission to be implemented. Photograph: Calla Wahlquist for the Guardian