Indigenous Deaths in Custody: Recommendations of the Social Justice Commissioner

Recommendations of the Social Justice Commissioner
  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]

    1. Evidence of implementation of Royal Commission recommendation 85 be included in State Government implementation reports.
    2. Police Services or Bureaus of Crime Statistics publish annual reports monitoring:
      1. The extent to which police cells are used to detain intoxicated Aboriginal persons;
      2. Regional breakdowns of the average length of time spent in custody; and
      3. Details of all police operations targeting intoxicated persons under protective custody regimes. [6:71]
 
  1. The Summary Offences Acts in each jurisdiction must be repealed.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:
    1. Extent to which police officers are the complainant in the charges;
    2. Frequency with which police officers make claims for victims compensation following these incidents;
    3. Different charges which can comprise the multiple charge syndrome, especially malicious damage;
    4. 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
  1. 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]

  2. 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:

    1. Increased and better training of police officers in Aboriginal awareness;
    2. Victims of abuse be referred as quickly as possible to relevant helping agencies;
    3. Promotion to depend on satisfactory completion of training in these aspects of policing;
    4. Mechanisms to be developed by the Police Department to ensure that only suitable police officers are posted to communities with substantial Aboriginal populations;
    5. Bail conditions should not disadvantage indigent women, and disruption to the lives of children should be a strong consideration;
    6. Mothers of young children not be detained unless absolutely necessary; and
    7. The above be included in police manuals and courses and police officers be appropriately screened. [6:84]
  1. Each State and Territory report on the extent to which it has implemented the Justice under Scrutiny recommendation that it:

    1. Promote and fund more Aboriginal-run street patrols (Recommendation 220);
    2. Increase the provision of sobering-up shelters (Recommendation 80);
    3. Ensure that police services act in the spirit of the Royal Commission by:
      1. minimising their contact with and detention of intoxicated people
      2. 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]
  1. 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]

  2. Tasmania and Northern Territory legislate to introduce the principle that imprisonment should be utilized only as a sanction of last resort. [7:104]

  3. 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]

  4. State and Territory Attorneys General phase out the use of police prosecutors in courts of summary jurisdiction. [7:104]

  5. Commonwealth, State and Territory Governments review sentencing legislation to ensure it conforms with the principle of imprisonment as a last resort. [7:105]

  6. 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]

  7. State and Territory Governments introduce programmes which specifically address motor vehicle offending by Aboriginal people. These should include programmes to:

    1. enable Aboriginal people to obtain driving licences;
    2. provide education on road safety; and
    3. rehabilitate juveniles caught either stealing or stealing from motor vehicles such as ‘hand brake turn’ programme which operates in Victoria. [7:106]
  1. 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]

  2. All jurisdictions review the use of Justices of Peace in other criminal law related matters. [7:108]

  3. 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]

  1. 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]

  1. 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]

  2. Police Departments formalise procedures for working with Aboriginal Visitors Schemes, including recording of responses to issues raised by employees of the schemes.[8:138]

  3. Corrective Health Services review the availability of psychiatric services and their cultural appropriateness. [8:143]

  4. Ministers for Corrective Services consider policies and funding necessary to ensure appropriate psychiatric services for Prison Medical Services. [8:143]

  5. Prison Medical Services review implementation of Royal Commission recommendation 152, with particular reference to ensuring that:
    1. Case notes are kept up-to-date and reviewed for that purpose at appropriate intervals.
    2. 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;
    3. Protocols for the exchange of medical information between prison officers, prison medical staff and external agencies are in existence and understood by all staff.
    4. 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]
  1. 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]

  2. 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]

  3. 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]

  4. Reception procedures be reviewed to ensure that:
    1. 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;
    2. Screening forms are comprehensive and do not wholly rely on self-report, particularly in regard to suicidal intention where prisoners may by affected by drugs or alcohol, or to diagnose heart disease and mental health problems. [8:163]
  1. 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]

  2. All Prison Medical Services computerise records and introduce a ‘risk’ flagging system with Health Departments and Aboriginal Medical Services. [8:165]

  3. 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]

  4.  

    1. 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.
    2. 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]
  5. 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]

  6. Corrective Services move immediately to introduce a transition period (flexible custody arrangements) for remandees and freshly sentenced prisoners.[8:187]

  7. 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]

  1. The transfer of a juvenile to a prison should only be considered after
    1. the juvenile has received proper counselling; and
    2. 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]
  1. 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]

  2. 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]

  3. 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]

  4. 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]

  5. The Queensland Attorney General appoint a State Coroner or a Coroner responsible for deaths in custody.[10:225]

  6. 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]

  7. 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]

  8. 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]

  9. Jurisdictions which do not require immediate notification of death by custodial authorities to the Coroner amend their relevant legislation or protocols. [10:227]

  10. 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]

  11. All jurisdictions should require the making and retention of full public records of coronial inquests.[10:228]

  12. Coroners fully consider the circumstances of deaths in custody including the circumstances of arrest and imprisonment. [10:230]

  13. 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. [10:230]

  14. Jurisdictions which restrict coroners’ powers to make findings and recommendations, by stipulating that recommendations must be 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 section 19(2) of the Coroners Act 1985 (Vic) and with Royal Commission Recommendations 13 and 18. [10:233]

  15. 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]

  16. 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]

  17. 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]

  18. 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]

  19. 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]

  20. 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]

  21. 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]

  22. 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]

  23. 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]

  24. 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]

  25. 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]

  26. 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]

  27. State and Territory Law Reform Commissions review the appropriateness of legal barriers to civil actions against police and prisons. [12:289]

  28. The New South Wales Government immediately re-introduce victims compensation for prisoners criminally injured while incarcerated in New South Wales prisons. [12:297]

  29. 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]

  30. 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]

  31. 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]

  32. 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]

  33. 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]

  34. 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]

  35. 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]

  36. 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]

  37. 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]

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A Report prepared by the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner

for the

Aboriginal and Torres Strait Islander Commission