IN THE CORONERS COURT OF QUEENSLAND INQUEST INTO THE DEATH OF MULRUNJI ON PALM ISLAND ON 19 NOVEMBER 2004

SUBMISSIONS OF THE
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION:
POWERS OF THE CORONER TO MAKE COMMENTS

  1. These submissions concern the powers of a coroner under the Coroners Act 2003 (Qld) ('Coroners Act') to make comments on what might be described as 'systemic' issues arising out of an inquest.

  2. Section 46 of the Coroners Act provides that:

(1) A coroner may, whenever appropriate, comment on anything connected with a death investigated at an inquest that relates to -

  1. public health or safety; or
  2. the administration of justice; or
  3. ways to prevent deaths from happening in similar circumstances in the future
  1. The Commission submits that, for the reasons set out below, the power to comment under s 46 should be understood broadly. Such an approach is consistent with the wording and purpose of the power and relevant human rights principles.

    Relevant Human Rights Principles

  2. The Commission submits that the coronial process has an important role to play in the protection of human rights and consequently compliance by Australia with its human rights obligations.

  3. A broad construction of the Coroners Act is in accordance with the well-accepted principle of the common law that 'a statute of the Commonwealth or of a State is to be interpreted and applied, as far as its language permits, so that it is not in conflict with the established rules of international law': Kartinyeri v Commonwealth.1

  4. Australia has a number of significant international legal obligations arising under the International Covenant on Civil and Political Rights2 ('the ICCPR') that are relevant to the interpretation and application of the Coroners Act. 3

  5. The right to life is provided for by Article 6(1) of the ICCPR as follows:

    Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

  6. Consequent upon the obligation on to protect life, there is a positive duty to prevent death.4 The Human Rights Committee, in General Comment 6 has noted (at para 5) that

    the right to life has been too often narrowly interpreted. The expression 'inherent right to life' cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures

  7. A particular duty is owed to persons in detention: Lantsov v Russian Federation;5 Fabrikant v Canada;6 Dermit Barbato v Uruguay.7 One element of this duty is to require appropriate training of personnel, such as police officers, to minimize the chance of violation of the right to life.8

  8. Comments by a coroner may go to meeting this positive duty to protect life by identifying ways in which future deaths may be avoided, including aspects of police training that may be improved. A broad approach to the power to make comments is therefore to be preferred.

  9. The right of detained persons to be treated with humanity and dignity is provided for in Article 10 of the ICCPR:
  10. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

  11. Providing for the safety of persons detained falls within this requirement of humane treatment that respects human dignity. Also relevant in interpreting and applying this right is the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment9 ('Body of Principles').10 The Body of Principles provides for medical examinations and care for persons detained (principle 24).

  12. Comments by a coroner may provide a mechanism through which the human right to humane treatment in detention can be protected. A broad approach to the ability of a coroner to make comment will increase scrutiny of treatment received by detainees and enable the greater making of remedial and preventative recommendations.

  13. The ICCPR also imposes an obligation to provide an 'effective remedy' in the case of a violation of human rights. Article 2(3) of the ICCPR provides that:

    Each State Party to the present Covenant undertakes:

    (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.

  14. Vital to providing an 'effective remedy' pursuant to Article 2(3) is the prompt and impartial investigation of allegations of breaches of human rights by a competent authority: Herrera Rubio v Colombia;11 Dermit Barbato v Uruguay;12 Aktas v Turkey.13

  15. The coronial process is an important part of providing an 'effective remedy' for breaches of human rights. A coronial inquest should, as far as possible, seek to provide a thorough investigation with a broad scope so that any breaches of human rights revealed in the course of the inquiry may be identified and be the subject of comment.

     Construction of s 46

  16. Section 46 provides:

(1) A coroner may, whenever appropriate, comment on anything connected with a death investigated at an inquest that relates to -

  1. public health or safety; or
  2. the administration of justice; or
  3. ways to prevent deaths from happening in similar circumstances in the futur
  1. The use of the expression 'whenever appropriate' establishes this as a broad power. If a coroner is satisfied that a comment is appropriate, his or her power to do so under s 46 is limited only by:

    • The need for the matter the subject of the comment to be 'connected with' the death; and

    • The need for the comment to relate to one of the matters listed in ss 46(1)(a)-(c).

  2. The section does not require a causal connection between a matter that may be the subject of comment and the death. While some matters may be so remote from a death as to lack the requisite connection contemplated by s 46, the Commission submits that it is not necessary for a coroner to require a close connection with the death.

  3. The Coroner's Guidelines, with which a coroner must comply 'to the greatest practicable extent' (s 14(4) Coroners Act), highlight the importance and breadth of the role of the coroner in making preventative recommendations (at 8.7.2):

  4. The making of riders has long been a function of Coroners but under the 1958 Act they were seen as subordinate to the findings [footnote: See for example s5A "A rider shall not be or be deemed to be part of a Coroner's finding but it may be recorded if the Coroner thinks fit"]. The 2003 Act gives greater emphasis to this role by mentioning such comments in the objects clause (s3) and by dispensing with the limited words that circumscribe the power under the old Act

  5. In the application for review brought in the course of these proceedings, the Supreme Court commented as follows in relation to s 46:

    The comments a coroner may make under s 46 must be connected with the particular death under investigation but are necessarily directed at wider issues - public health or safety, the administration of justice, or ways to prevent deaths from happening in similar circumstances in the future. Allowing for such comments promotes one of the objects of the Act.14

  6. The object of the Act to which the Court was referring is set out in s 3 of the Coroners Act as follows:

    (d) help to prevent deaths from similar causes happening in the future by allowing coroners at inquests to comment on matters connected with deaths, including matters related to -
    (i) public health or safety; or
    (ii) the administration of justice.

  7. The Commission's attention has been brought by counsel assisting the Deputy State Coroner, Mr Plunkett, to the decision of the Victorian Supreme Court in Harmsworth v The State Coroner [1989] VR 989 ('Harmsworth'). The Commission submits that while this decision confirms that any comment made by a coroner must be 'connected with' the death under inquiry, its reasoning should not otherwise be applied so as to limit the powers of the coroner to make comment or receive material that will assist in the making of such comment.
  8. The decision in Harmsworth concerned an inquest under the Coroners Act 1985 (Vic) which provided as follows:

    19 (1) A coroner investigating a death must find if possible:

    1. the identity of the deceased; and
    2. how the death occurred; and
    3. the cause of death; and
    4. the particulars needed to register the death

    (2) A coroner may comment on any matter connected with the death including public health or safety or the administration of justice.

  9. The Court stated as follows in relation to the nature of the powers under of that Act:

    Enquiries must be directed to specific ends. That is the making of the findings as required and set out in s 19(1).

    The power to comment, arises as a consequence of the obligation to make findings: see s 19(2). It is not free-ranging. It must be comment 'on any matter connected with the death'. The powers to comment and also to make recommendations pursuant to s 21(2) are inextricably connected with, but not independent of the power to enquire into a death or fire for the purposes of making findings. They are not separate or distinct sources of power enabling a coroner to enquire for the sole or dominant reason of making comment or recommendation. It arises as a consequence of the exercise of a coroner's prime function, that is to make 'findings'.

  10. The suggestion in this passage that powers of comment are merely ancillary to obligations to make findings is not consistent with the Coroners Act 2003 (Qld).15 The power in s 46 to make comment stands alone and is not dependent upon the obligations to make findings in s 45. The powers of comment arise whenever a coroner investigates a death, subject only to the requirements of s 46 itself (see para 18 above).

  11. It is significant to note that the Victorian legislation considered in Harmsworth does not give an emphasis to the making of recommendations. It provides simply:

    1. Purpose
    The purpose of this Act is to:
    (a) establish the office of State Coroner;
    (b) require the reporting of certain deaths;
    (c) set out the procedures for investigations and inquests by coroners
    into deaths and fires;
    (d) establish the Victorian Institute of Forensic Medicine.

  12. This represents an important difference to the emphasis that is given to the making of preventative recommendations in the objects of the Coroners Act 2003 (Qld) as recognised and confirmed in the Coroners Guidelines. Accordingly, to the extent that the decision in Harmsworth suggests a restrictive approach to the power to make comment, it is distinguishable and should not be followed.

  13. In any event, the decision in Harmsworth should not be understood as limiting the ability of a coroner to receive evidence and inform him or herself as he or she thinks fit in relation to matters 'connected with' a death. Where a coroner is satisfied that a matter falls within s 46, they are entitled to seek and receive evidence going to such matters. Doing so simply ensures that a coroner has a sufficient evidentiary basis for the making of appropriate preventative recommendations.

  14. This approach is confirmed by the Coroners Guidelines which provide that a coroner 'should ensure that all inquiries, inspections, tests and examinations necessary to secure the evidence needed to support [findings under s 45] and any s 46 comments are made' (at 7.3, emphasis added).

  15. In Chief Commissioner of Police v Hallenstein [1996] 2 VR 1, Hedigan J considered the passage from Harmsworth cited above and commented as follows (at 7):

    Doubtless it is correct to say that a coroner should not inquire into a death substantially to enable comments to be made. But once the inquest is held, the limits to the power to comment do not admit of easy definition.

  16. The Commission has been provided with the submissions dated 5 August 2005 made on behalf of Ms Erykah Kyle as representative of Palm Island Aboriginal Council. Those submissions consider a number of authorities concerning the powers of coroners to make comments and recommendations.16 The Commission agrees with, and adopts, the submission made on behalf of Ms Kyle that those authorities support a broad and flexible approach to the powers of a coroner.
  17. Matters for comment

  18. At the conclusion of the hearing of evidence, the Commission intends to make detailed submissions to the Deputy State Coroner as to matters about which comment should be made pursuant to s 46 of the Coroners Act. It is anticipated that they will include the following issues:

(a) Was the decision to arrest Mulrunji appropriate?
(b) What were the alternatives to arrest?
(c) What alternatives should be available on Palm Island?
(d) Once arrested, what assessment was undertaken of Mulrunji's fitness and suitability to be incarcerated?
(e) Was Mulrunji properly supervised while he was in the watch house cell?
(f) Were Mulrunji's relatives informed of his condition and death by police in a timely and appropriate fashion?
(g) Was Mulruni's death properly investigated from the outset?
(h) Are there any recommendations of the Royal Commission into Aboriginal Deaths in Custody that are relevant to Mulrunji's death?

  1. These are matters that were previously identified before the State Coroner as being 'proposed issues' for the inquest and were identified by the Commission as being the matters that were to be the focus of the Commission's involvement in the proceedings (see Affidavit of John von Doussa QC, exhibit DH 2).

  2. The Commission submits that, on the evidence to date, all of those issues are matters falling within the terms of s 46, being 'connected with' the death of Mulrunji and relating to, variously, public health and safety, the administration of justice and/or ways to prevent deaths from happening in similar circumstances in the future.

  3. The issue that arises at this stage is what further evidence the Court may require or be assisted by in relation to those issues. The Commission submits that, relevant to the above issues, further evidence should be sought in relation to, at least, the following:

  • Alternatives to arrest on Palm Island:
    • Have alternatives to arrest been considered for Palm Island? If so, what became of such considerations? If alternatives were rejected, why?
    • Have alternatives to arrest been tried on Palm Island? If so, have they been successful? If not, why not?
    • Have alternatives to arrest been tried in other remote Aboriginal and Torres Strait Islander communities in Queensland? If so, have they been successful? If not, why not?
    • What alternatives to arrest does the Palm Island community believe would be appropriate and why?
    • What alternatives do relevant government departments/agencies, including the Department of Aboriginal and Torres Strait Islander Policy and the Police Commissioner, believe would be appropriate for Palm Island and other remote Aboriginal and Torres Strait Islander communities in Queensland and why?
  • Supervision of persons detained:
    • What features are to be included in the proposed watch house facilities for Palm Island that will allow for supervision of persons detained?
    • What additional features of watch house design that enhance supervision of persons detained are in use in other watch houses in Queensland, particularly in remote Aboriginal and Torres Strait Islander communities?
  1. The Commission notes the submissions made on behalf of Ms Erykah Kyle as representative of Palm Island Aboriginal Council to the effect that economic, social and cultural factors are relevant to a proper understanding of the circumstances of the death of Mulrunji and the making of preventative recommendations. The Commission supports that submission. Material going to these broader issues is relevant to the matters the Deputy State Coroner is entitled to comment on and receipt of this material will assist the Court in making its comments.


Jonathon Hunyor
Human Rights and Equal Opportunity Commission
17 August 2005


Footnotes


[1] (1998) 195 CLR 337, 384 (Gummow and Hayne JJ). See also Jumbunna Coal Mine N/L v Victorian Coalminers' Association (1908) 6 CLR 309, 363 (O'Connor J); Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J); Pearce and Geddes, Statutory Interpretation in Australia (5th ed, 2001), [5.14].

[2] Opened for signature 16 December 1966, 999 UNTS 171 (generally entered into force 23 March 1976, article 4 entered into force 28 March 1978).

[3] It can be observed that while treaty obligations are entered into by the Commonwealth, Article 50 of the ICCPR provides that its provisions 'extend to all parts of federal States without any limitations or exceptions'. Compliance by Australia with its human rights obligations depends in large part upon the application of State and Territory laws and the interpretation and application of those laws should therefore ensure and promote compliance with human rights obligations arising under the ICCPR. This approach is recognised by the principle cited in Kartinyeri which applies to both Commonwealth and State laws: see also Ballina Shire Council v Ringland (1994) 33 NSWLR 680, 688 (Gleeson CJ), 710 (Kirby J).

[4] See generally Joseph, Schultz and Castan, The International Covenant on Civil and Political Rights: Cases, Commentary and Materials (2nd ed, 2004), Chapter 8, especially [8.01], [8.39]-[8.64].

[5] UNHRC Communication No 763/1997, UN Doc CCPR/C/74/D/763/1997 (2002).

[6] UNHRC Communication No 970/2001, UN Doc CCPR/C/79/D/970/2001 (2003).

[7] UNHRC Communication No 84/1981, UN Doc CCPR/C/17/D/84/1981 (1982).

[8] See Joseph et al, above n 4, [8.39] 181.

[9] GA Res 43/173 UN GAOR, 43rd sess, Supp No 49, UN Doc A/43/49 (1988).

[10] See UN Human Rights Committee General Comment 21, [3]-[5].

[11] UNHRC Communication No 161/1983, UN Doc CCPR/C/OP/2 at 192 (1990), [10.5].

[12] UNHRC Communication No 84/1981, UN Doc CCPR/C/17/D/84/1981 (1982).

[13] ECHR 24351/94, 23 April 2003, [331]-[333]. See also UN Human Rights Committee General Comment 20, [14].

[14] Commissioner of Police v Clements & Others [2005] QSC 203, [15].

[15] It is not necessary to also consider its correctness in the context of the Victorian legislation, but this is, with respect, not accepted by the Commission.

[16] Grace v Saines [2004] VSC 229; WRB Transport Pty Ltd v Chivell [1998] SASC 6937; Atkinson v Morrow [2005] QSC 092.

Human Rights and Equal Opportunity Commission Website: Legal Information Last updated 25 August, 2006