Indigenous Deaths in Custody: Chapter 6 Police Practices
Part C - Profiles Analysis
The Attorney acknowledged the Bill would swell prison numbers. The Northern Territory already has the highest imprisonment rate in the country. Three quarters of Territory prisoners are Aboriginal. The majority have been sentenced for minor offences.
|Table 7.2 Police Car Chases and Juveniles|
|15WA||5 April 1990||Tonkin Highway, Wattle Grove||WA||
|16WA||5 April 1990||Tonkin Highway, Wattle Grove||WA||
|17WA||5 April 1990||Tonkin Highway, Wattle Grove||WA||
|24WA||19 February 1991||Mitchell Freeway, Perth,||WA||
|35WA||20 January 1992||Carmel, Perth||WA||
|40NSW||3 July 1992||Princes Highway, Narooma||NSW||
|81NSW||26 July 1995||Cobbs Road, Tuggerah||NSW||
|86WA||4 November 1995||Thornlie, Perth||WA||
|94QLD||9 March 1996||Townsville, Queensland||QLD||
The late Rob Riley, former head of the Aboriginal Legal Service of Western Australia, commented after the death of a 13 year old in Perth (35WA) that 'it is inevitable that something will go wrong. The very fact that the police officers are skilled operators with advanced driving skills and the kids don't have control over the vehicle is enough to cause an accident.' 5 The danger of high speed car pursuits involving young people is well documented. 6The danger to innocent bystanders is significant. A person not involved in a pursuit was killed in one case (See 15WA), and in another the driver of a vehicle hit by a stolen car was lucky to escape serious injury(A3WA).
High speed police car chases should not be allowed where children or young people are drivers or passengers of the vehicle. Motor vehicle theft needs to be addressed in ways which are less dangerous to the community and to the juveniles involved. Beside considerations involving the danger to life, the property involved is often destroyed in the course of a pursuit. Most stolen cars are recovered undamaged. Alternatives such as helicopters and roadblocks should be used if there is an overriding need to arrest.
In one case in New South Wales, the Coroner carefully examined the communications between the police pursuers and their superior officers during the pursuit, and considered driving conditions (40NSW). He found that the actions of the police were justified. There have been no such examinations in the reports on deaths in Western Australian.
At the beginning of the period under study, police in Western Australia were far more likely to engage in pursuits of stolen vehicles than their colleagues in other states. Evidence indicates that when they reduced the number of pursuits of stolen vehicles and modified their procedures, accidents and car thefts fell dramatically.7
There have been four fatal police shootings of Aboriginal people since May 1989 (see case profiles 18NT, 49TAS, 54SA, 66VIC). Three of the four victims had histories of mental illness (18NT, 54SA, 66VIC) and the fourth was 16 years old. Three of the four were found to be highly intoxicated (49TAS, 54SA, 66VIC). None of the deceased had firearms: one had a replica pistol (49TAS); two had knives (18NT, 54SA); and a 38 year old woman had a tomahawk (66VIC).
The coroners found that the shootings were justifiable in self-defence. Nevertheless, their recommendations indicate the need for improvements in police procedures, especially in dealing with psychiatrically disturbed people.
The Coroner in the Victorian shooting noted that police firearms training focussed on the 'criminal element' only, and did not contemplate people with psychiatric disabilities (66VIC). Recommendations included a specialist team to deal with crises involving mentally ill persons, a record of mentally ill persons on the database used by police radio support operators, and consideration of capsicum sprays and other alternatives to firearms (also a recommendation in 54SA). The Victorian Coroner was satisfied that some of these initiatives, including training in the minimum use of force, were being implemented.
Counsel assisting the Coroner in the Tasmanian case (49TAS) submitted that Police Officers were unaware of instructions regarding use of firearms, instructions were inconsistent, police relied on common sense and that there was need for training to assist police in defusing stand-off situations. The Coroner did not address the issue.
Three coroners addressed the issue of whether warning shots are desirable. In South Australia and Victoria warning shots are currently discouraged. In the Northern Territory case it was decided that the traditional Aboriginal man would not have understood the meaning of a warning shot, and in hindsight negotiation strategies should have been pursued. In the South Australian case there was no warning shot, in accordance with current police policy. The Coroner recommended a review of this policy, which was instituted by the Mitchell Committee in 1974 at a time when operational police generally did not carry guns and when capsicum spray and other alternatives were not available. In the Victorian case, a shot fired into the garden behind the deceased was somewhat questionably found by the Coroner to be a warning shot. The issue did not arise in the Tasmanian death, and it was accepted that a highly intoxicated 16 year old Aboriginal youth threatened police with a replica pistol. The availability of replica pistols was not addressed in any coronial recommendation.
In none of the cases did the coroners specifically recommend better training in techniques to pacify and negotiate with emotionally disturbed people, although the Coroner commented that changes subsequent to the Victorian shooting included this training (66VIC). While acknowledging the difficulties which police face, the pattern of fatal police shootings of mentally ill persons is extremely disturbing. The number of fatal shootings indicate that police training should place far more emphasis on mediation, negotiation and management techniques to calm rather than inflame aggressive situations where possible.
The Northern Territory shooting involved a remote traditional community on Elcho Island, and the community felt that the deceased should have been left alone until his episode passed (18NT). Negotiation was not attempted and Aboriginal Police Aides who knew the deceased and spoke his Aboriginal language were kept at the rear of the party engaged in searching for the man.
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 as an alternative to shooting, and under strict guidelines.
Recommendation 61 - Appropriate Use of Specialist Response Units
That all Police Services review their use of paramilitary forces such as the New South Wales SWOS and TRG units to ensure that there is no avoidable use of such units in circumstances affecting Aboriginal communities.
The Royal Commission was highly critical of methods used by police paramilitary units, especially in light of the death of David Gundy in New South Wales. All jurisdictions except Victoria claimed to have implemented the relevant recommendation, and concern about the inappropriate use of such units arose in only one of the cases. In this matter, a member of a paramilitary unit shot a psychiatrically disturbed traditional Aboriginal man on Elcho Island (18NT). The Aboriginal community felt that the use of the unit was unnecessary. The Coroner did not accept this criticism of the police. However, he did mention the failure to attempt negotiation through the use of the Aboriginal Police Aides present.
The responsible use of such a unit was evident in the recapture of an Aboriginal prisoner on 16 March 1996. The New South Wales Police Service State Protection Group negotiator used taped messages from family members to achieve the peaceful surrender of a prisoner within forty minutes, following earlier unsuccessful negotiations during a ten hour siege. 8
2. Public Drunkenness
Recommendation 79 - Decriminalisation of Public Drunkenness
That in jurisdictions where drunkenness has not been decriminalized, governments should legislate to abolish the offence of public drunkenness.
The Current Legal Framework
Five years after the Royal Commission released its final report, police can only take intoxicated people into protective custody without arrest in five out of the eight states and territories. Public drunkenness remains a criminal offence in Queensland, Victoria and Tasmania. In Tasmania, the offence requires the additional element of insensibility or disorderly conduct (see 49TAS).
The Western Australian Government decriminalised public drunkenness in 1989, following the publication of the Royal Commission's Interim Report and the death in police custody of an Aboriginal person arrested for drunkenness (2WA). This progress must be placed in context - it remains illegal to consume alcohol in a public place in Western Australia. 9 Aboriginal people are significantly over-represented in charges for this offence.
The Summary Offences Act 1966 (Vic) makes it an offence to be either drunk in a public place (s13), to be drunk and disorderly in a public place (s14) or to be habitually drunk (s15). The habitually drunk provision can result in exceptionally onerous punishment. Pleading guilty to more serious charges in exchange for the dropping of the third consecutive drunkenness charge is not an unusual occurrence. At the time the Royal Commission published its final report, the Victorian Government had drafted legislation decriminalising public drunkenness and allowing police officers to take intoxicated persons home. The Government now states support for the Royal Commission framework outlined above, but argues it cannot decriminalise drunkenness until adequate alternative facilities exist. This is not acceptable.
In 1992, the Queensland Government committed itself to abolishing the offence of 'drunk in public'.10 Like Victoria, it has now reversed its position. Its 1994 Progress Report indicated that decriminalisation was no longer supported.
The Criminal Law General Offences Bill 1995 (Qld) proposes to give police officers powers to divert intoxicated persons from police cells, although it would place no statutory duty on them to consider this option. Police would also have a limited discretion to release intoxicated persons into diversionary centres after arrest. Unfortunately, the Bill would increase the criminal penalty for public drunkenness from a fine at present to a fine and one month imprisonment, or both. The maximum penalty for fine default for being drunk in public is currently 14 days. The Queensland Aboriginal Justice Advisory Committee welcomed the diversionary powers in the Bill, but opposed increases in criminal sanctions and other proposals.11
The Committee also raised other problems with the proposed Bill. The onus of proof for drunkenness is reversed, contravening the presumption of innocence in criminal law. Further, an intoxicated person who was not a danger to themselves or to others could theoretically be liable for a fine and/or imprisonment, although by summons not arrest, for merely being intoxicated in a wide range of public places, including licensed premises. The power of local governments to declare alcohol free zones or places designated for public drinking under the State law would not require the consultation which would be legally necessary if these steps were taken under the local government laws. 12
The Bill has now been given low priority. The legislative power to divert people who are intoxicated from police cells is urgently needed in Queensland, as the circumstances of the four deaths in the State amply illustrate.
Profiles - The Effect of Criminal Sanctions on Policing Practices
Police in Victoria and Queensland can lawfully arrest on 'reasonable suspicion' of intoxication. This gives them an undesirably broad arrest power. The inappropriate use of this broad power, including repeatedly mistaken 'reasonable suspicions' of drunkenness where illness or injury is involved, is illustrated by the circumstances of a number of the deaths.
Four Aboriginal people arrested for public drunkenness in Queensland died in police custody since the Royal Commission period (5QLD, 21QLD, 32QLD and 38QLD). There were two such deaths in Victoria (8VIC, 36VIC).
Two of the Queensland deaths following arrests for public drunkenness were of dubious legality because they involved people removed from private homes before their arrest (32QLD, 38QLD). The legality of the latter arrest was not able to be fully investigated by the Coroner because the relevant police officer invoked the privilege against self-incrimination and did not give evidence.
In another case a 20 year old man was detained in a police cell for public drunkenness (14QLD). He committed suicide in prison three days after being sentenced for 'damaging government property' - he had torn a blanket in a Queensland watch-house and used it to make a noose.
Four deaths in custody since the Royal Commission (8VIC, 5QLD, 21QLD, 38QLD) involved Aboriginal people arrested for public drunkenness while unconscious or semi-conscious. Two of these people were later found to have suffered brain damage (8VIC, 21QLD) and there was evidence that two were not intoxicated (8VIC, 38QLD).
An additional Queensland death involved a conscious Aboriginal woman later found to have suffered head injuries and not to have been intoxicated (32QLD).
A Victorian coroner criticised the arrest of a semi-conscious Aboriginal man who was removed by police from Gippsland Base Hospital in Sale, Victoria in 1991 (8VIC). The man subsequently died of brain damage. The Coroner referred the death to the Law Reform Commission as a case study in what can go wrong under the current law. The case has similar facts to those which formed the basis of a $200, 000 damages award for negligence in Quayle v NSW.13
Police training in dealing with intoxicated people must be improved in Victoria. Of the four Victorian Aboriginal deaths in police custody, one was wrongly arrested for public drunkenness, one apparently requested that he be arrested for public drunkenness, one was locked in a police van after having taken an overdose despite having a hospital band on her arm, and one was intoxicated when shot by police.
The death of a man at the East Perth Lock Up illustrates the inadequacy of Western Australia's 'decriminalisation' (65WA). The deceased had been arrested on a warrant. Allegations were made before the Coroner that police had been engaged in a program of scrutiny and harassment of Aboriginal people drinking in public in Weld Square, Perth. Aboriginal people, through the Aboriginal Legal Service, alleged both regular warrant checks and arrests in trivial circumstances. The Coroner refused to accept evidence on this point.
A Northern Territory death illustrates the fact that decriminalisation of public drunkenness is not a panacea (50NT). Nonetheless, there was a nurse at the shelter to which the deceased was taken. The chances of the deceased surviving were probably greater than they would have been if the practice had been to arrest and take intoxicated persons to police cells, as in Victoria and Queensland. The same can be said of a death in South Australia (A1SA), although one of the issues canvassed there was a delay in police attending the deceased.
These profiles indicate that police accustomed to a criminal justice role must be much better educated in the medical and protective aspects of their role as potential rescuers. Police who have experience of the decriminalisation of public drunkenness where there are adequate support facilities, welcome the relief from the duty of care involved in looking after intoxicated persons in their cells. It enhances their operational efficiency. Inadequate medical screening and assessment procedures can exacerbate the dangers of taking intoxicated and apparently intoxicated people into custody. (See comments on Recommendation 127f(i).)
These dangers were highlighted by the Royal Commission investigations Leslie, Dougal and The Man Who Died in Darwin Prison on 5th July 1985. The lack of improvement is further evidenced by the death of a non-Aboriginal man with head injuries in the Cairns Watch-house in 1994, mentioned in a Commonwealth Government report on the implementation of the Royal Commission's recommendations.14 Police examined by the Coroner were unaware of changes in police procedures outlined in Royal Commission implementation reports, and had no understanding of conditions which can be mistaken for intoxication. 15 Change will come about more rapidly if the problem of public drunkenness is removed from the criminal justice paradigm.
Recommendation 80 - Sobering-up Shelters
That the abolition of the offence of drunkenness should be accompanied by adequately funded programs to establish and maintain non-custodial facilities for the care and treatment of intoxicated persons.
'Sobering-up shelters' established with the support of the local community are central to the success of decriminalising public drunkenness in reducing the numbers of Aboriginal people in police custody. New South Wales and the Northern Territory were the only jurisdictions which claimed to have fully implemented the recommendation. Of the other states, Queensland and Western Australia, particularly, require additional shelters. However, failure by police to use non-custodial facilities appears to be an Australia-wide problem.
Of five sobering-up shelters promised for Queensland, the Mount Isa facility has been properly established, but Brisbane and Cairns are operating in temporary facilities - the Cairns shelter doubles as medical visit accommodation and student hostel. The Rockhampton and Townsville shelters are yet to be built, apparently because of resident and council opposition.
In an inquest into the 1991 death of the woman arrested in a private home on Palm Island (32QLD), the Coroner commented that a proposed detoxification centre would improve the situation regarding the detention of intoxicated persons in Townsville. In addition to that instance, case profile 5QLD also involved the death of an intoxicated person in Townsville. The detoxification centre is yet to be established. In the wake of a death in police custody on Mornington Island in Queensland, the dilapidated facility was replaced by a $2.8m facility, by far the best resourced institution on the Island. Members of the Island Community Council wanted some of the funds to be spent on a sobering-up facility, but were told by the State Government that they would have to fund such a facility on their own. 16
Sobering-up centres in six Western Australian towns have reduced the numbers of intoxicated Aboriginal people held in police custody in those towns. 17 Roebourne has been an exception, with 54.2 per cent of intoxicated persons being placed in police cells in 1994, despite the existence of a sobering-up shelter. The Western Australian Legal Service described the establishment of six shelters as 'reasonable progress to date'. At Wiluna and Kununurra, shelters are now operating, although they are not officially opened. Shelters are planned to be established in Derby, Broome, Midland and Wyndham in 1997. There is a pressing need for a shelter in Carnarvon, where the Royal Commission investigated the death of a person arrested for drunkenness. It is also unacceptable that in the Kimberleys, where there are no sobering-up shelters, 50 per cent of all Aboriginal juveniles in police lock-ups were 'drunken detainees'. 18 The Western Australian Government must find alternatives to arrest and incarceration in these areas.
The impact of the current legal framework falls overwhelmingly on Aboriginal people. Ninety per cent of people detained for intoxication in Western Australia in 1994 were Aboriginal. 19 It is regrettable that the Western Australian Government failed to adopt the recommendation of the Aboriginal Legal Service (and supported by an independent parliamentary committee) that sobering-up facilities should be funded through money received by the Government from liquor licencing.20
In South Australia, intoxicated persons can be released into five sobering-up centres proclaimed under the Public Intoxication Act 1984. In 1993/94, 27 per cent of Aboriginal detainees were discharged to diversionary centres, 18 per cent taken home, 44 per cent released and 2 per cent arrested. However, there is no information on time spent in police cells prior to discharge. 21 There are also indications that police are continuing to detain people in police cells even where there are sobering-up facilities, such as in Port Augusta and Ceduna.
There are 23 sobering-up facilities in New South Wales, and an acknowledged need to expand this number - Wilcannia and Broken Hill have high arrest rates but no shelters. 22
In Victoria, arrests for public drunkenness in 1993-4 made up over 50 per cent of all Aboriginal arrests in the metropolitan Prahran district. There is no sobering-up facility in metropolitan Melbourne, although one is now planned. In the rural Mallee police district, 40 per cent of all Aboriginal arrests were for drunkenness, despite the existence of a local sobering-up facility at Swan Hill. 23 The indication that police are using police cells where sobering-up facilities are available is disturbing.
Recommendation 81 - Duty on Police to Use Alternatives to Cells
That legislation decriminalising drunkenness should place a statutory duty upon police to consider and utilize alternatives to the detention of intoxicated persons in police cells. Alternatives should include the options of taking the intoxicated person home or to a facility established for the care of intoxicated persons.
New South Wales, Western Australia and South Australia claimed to have fully implemented this recommendation, although such claims were usually based on the existence of policy guidelines rather than statutory provisions. The effectiveness of the steps which have been taken remains doubtful in all jurisdictions, particularly in the absence of effective monitoring processes.
Section 5(1A) of the Intoxicated Persons Act 1979 (NSW) places a duty on police not to take intoxicated persons to police cells unless it is not possible to take the person to a proclaimed place, or it is impractical to take the person home. From the adoption of the Intoxicated Persons Act until 1985, when the provision was inserted, monitoring was conducted in a competent manner by the NSW Bureau of Crime Statistics. However, it has since been discontinued.
It is very difficult to determine whether s5(1A) is effective in practice. While the educative value alone would be significant, senior police have reportedly reprimanded junior police for driving people home because 'the police are not a taxi service'.24
Many other jurisdictions claim implementation of this recommendation because of the existence of general policies, despite statistics indicating that the policies are not being followed. 25 In Wiluna, Western Australia, the detention of intoxicated persons doubled in 1993/94 as a result of a change in police policy, demonstrating the need for a statutory duty to utilise alternatives to police cells. Monitoring in South Australia is inadequate as it does not indicate the length of time spent in police custody prior to discharge.
Recommendation 82 - Monitoring of Alcohol Restricted Areas
That governments should closely monitor the effects of dry area declarations and other regulations or laws restricting the consumption of alcohol so as determine their effect on the rates of custody in particular areas and other consequences.
New South Wales and the Northern Territory professed to have implemented this recommendation in full, while Queensland, Western Australia and South Australia claimed only partial implementation.
The impact of alcohol restricted areas is difficult to assess. None of the profiles touched on arrests in dry areas, although Ceduna in South Australia, where a 19 year old died in 1989, is now a dry area. 26
Recommendation 83 - Review of Local Laws
a. The Northern Territory Government consider giving a public indication that it will review the two kilometre law at the end of a period of one year in the expectation that all relevant organizations, both Aboriginal and non-Aboriginal, will negotiate as to appropriate local agreements relating to the consumption of alcohol in public that will meet the reasonable expectations of both Aboriginal and non-Aboriginal people associated with particular localities; and
b. Other governments give consideration to taking similar action in respect of laws operating within their jurisdictions designed to deal with the public consumption of alcohol.
While New South Wales, Queensland and the Northern Territory professed to have fully implemented this recommendation, the remaining jurisdictions claimed only partial implementation. The discriminatory enforcement of local public drinking laws appears to remain a widespread problem, indicating the need for further review and limitation of these laws in many jurisdictions.
Park drinking, frequently the target of local government laws, was an issue in at least three deaths (5QLD, 53QLD and 65WA). Various Local Government Acts have an effect similar to 'criminalisation' if fine defaulting leads to custodial sentences.27 The Australian Bureau of Criminology reports that 50 per cent of sentenced prisoners received into Australian prisons are fine defaulters. 28
The Royal Commission noted that:
There is clear evidence that in some places the laws which police officers have been directed to enforce have been based on unfair and racist assumptions that Aboriginal people, by their very presence in a community, offended non-Aboriginal codes of conduct. One example of this is local campaigns against public drinking. In some instances, the main objective of such campaigns has been the removal of Aboriginal people from the public view. The behaviour which is sought to be addressed is not so much unlawful but simply different to the proprieties observed, at least in public, by many non-Aboriginal people. In my opinion such laws, and the assumptions which underlie them, have no place in Australian society. 29
Laws and policing operations which meet this description are unlawful under the Racial Discrimination Act 1975 (Cth). The Human Rights and Equal Opportunity Commission can accept complaints raising these issues.
Local laws can be enforced in a discriminatory and inflammatory manner, and lead inevitably to arrest. A recent Townsville by-law authorised persons appointed by the council, including security guards, to confiscate alcohol from people drinking in parks. Police were to be called if there was any resistance. On 28 May, 1996, the day that the law was enacted, 50 Aboriginal people were driven from Hanran Park, a place frequented by Aboriginal people and where a man who died in custody in 1989 had been arrested (5QLD). Many had returned by the afternoon. The Mayor simultaneously opposed State Government plans to establish a sobering-up facility in Townsville. Reports from the Northern Territory also indicate that local laws were leading to the incarceration of intoxicated persons.
Examination of these events reveals a clear pattern, which recurs Australia wide. It is essential that the scope of local laws be restricted to places where public drunkenness leads to behaviour which is a genuine problem. The offence should require at least a non-trivial breach of the peace. Accessible public space must be made available.30Local laws should serve the interests of all groups.
The NSW Government has made an attempt to provide a mechanism for achieving an appropriate focus for local laws. In 1991, the Anti-Discrimination Board was given a role in monitoring the declaration of any places as dry areas to reduce discriminatory impact. 31 Fine default cannot lead to imprisonment under local laws in NSW.32
Recommendation 84 - Negotiated Plans for Drinking Arrangements
That issues related to public drinking should be the subject of negotiation between police, local government bodies and representative Aboriginal organisations, including Aboriginal Legal Services, with a view to producing a generally acceptable plan.
Problems have continued to arise from inappropriate police treatment of public drinking by Indigenous people. The most notable incidents have taken place in Queensland and Western Australia. These States, together with South Australia, New South Wales and Tasmania, acknowledged less than full implementation of the above recommendation.
In the period being examined, two deaths occurred following police operations in areas which the Aboriginal Legal Service submitted were well known as areas in which Aboriginal people have congregated for decades, often to drink (53QLD, 65WA). The Queensland case involved scrutiny of Aboriginal people drinking in Mulgrave Park in Brisbane, which has historical significance to Aboriginal people.
The Western Australian case allegedly involved a period of police scrutiny which aimed at moving the Aboriginal people from Weld Square to the Midland area, leading to arrest on minor offences, infringement notices and subjection to warrant checks. There was no attempt to negotiate with Aboriginal organisations in either case.
The negotiation of local protocols regarding the agreed use of public spaces is strongly recommended.
Recommendation 85 - Monitoring of Inappropriate Detentions
a. Police Services monitor the effect of legislation which decriminalises public drunkenness with a view to ensuring that people detained by police officers are not being detained in police cells when they should more appropriately be taken to alternative places of care.
Part (a) of this recommendation is dealt with separately from parts (b) and (c).
The Northern Territory is the only jurisdiction which claimed to have implemented the recommendation. Tasmania, New South Wales, Western Australia and South Australia maintained that they had gone some way towards implementation, while Victoria and Queensland had not taken any action.
It should be emphasised that deaths of persons who should have been more appropriately detained in sobering-up shelters or taken home, but were instead detained in police custody, occurred only in jurisdictions which have not decriminalised public drunkenness
As previously explained, public drunkenness remains a criminal offence in Queensland, Victoria and Tasmania. In the other jurisdictions, the effectiveness of decriminalisation in reducing levels of detention in police cells is unclear, due to the lack of effective monitoring as required by this recommendation.
The Royal Commission noted 'preventative policing' or 'sweeping' operations in the Northern Territory - designed to clear Aboriginal people from the streets - taking place under the guise of the enforcement of protective custody provisions. 33 The Royal Commission also noted arrests on outstanding warrants as a result of protective detention, and regional disparities in both numbers of 'protective' detentions and lengths of time spent in custody in rural areas.
Protective custody is still being used inappropriately by police to remove Indigenous people from the streets. 34 The NSW Bureau of Crime Statistics formerly monitored the Intoxicated Persons Act 1979 (NSW) until 1985. However, for over a decade there has not been any monitoring of the Act. 35There is now no information gathered on the extent to which police are detaining Indigenous people without any formalities on grounds of intoxication. 36
These problems must be adequately monitored. No state implementation report reveals evidence of adequate monitoring. 37
b. The effect of such legislation should be monitored to ensure that persons who would otherwise have been apprehended for drunkenness are not, instead, being arrested and charged with other minor offences. Such monitoring should also assess differences in police practices between urban and rural areas;
c. The results of such monitoring of the implementation of the decriminalisation of drunkenness should be made public.
Despite claims that this recommendation has been fully implemented in the Northern Territory, and partially implemented in New South Wales, Western Australia, Tasmania and South Australia, the apprehension and detention of intoxicated persons on the basis of other minor charges is clearly still a problem.
The profiles indicated that alternative charges are being laid in the wake of decriminalisation in some jurisdictions. The case of the man who died in the East Perth Lock Up in 1994 (65WA) involved a group of Aboriginal people drinking in public being subjected to warrant checks. A House of Representative Standing Committee on Aboriginal and Torres Strait Islander Affairs noted that alternative charges were being laid in Western Australia since the decriminalisation of drunkenness in late 1991. 38
There is also evidence in Western Australia that the number of people arrested for drinking in public has risen substantially since public drunkenness was decriminalised. 39 The Aboriginal Legal Service cites figures from the West Australian Drug and Alcohol Authority that there was a dramatic increase in detentions for drunkenness (35%) following decriminalisation, although from 1993 to 1995 there was a slight decrease. Sixty per cent of these detainees were being placed in police lockups. There is also evidence of substitute summary offences being used in jurisdictions where public drunkenness remains illegal (53QLD).
3. Arrest for Trivial Offences
Below is an account of the deaths in custody which followed arrests for trivial offences. The cases are placed in the context of the recommendation that Aboriginal people should not be arrested for the trivial offence of using offensive language (R86) and arrest should be used as a last resort (R87). Consideration is given to the overly limited reach of recommendation 86 (offensive language charges only, rather than all public order charges: the 'trifecta') and a recommendation is made to address the problems which are identified.
Recommendation 86 - Offensive Language Charges
a. The use of offensive language in circumstances of interventions initiated by police should not normally be occasion for arrest or charge;
Offensive language charges and other public order offences are still an unacceptably frequent cause of Aboriginal imprisonment, despite claims that this recommendation has been fully implemented in New South Wales, Queensland, Western Australia and the Northern Territory and supported or partially implemented in Victoria, Tasmania and South Australia.
The Royal Commission did not describe the well-established pattern which underlies offensive language charges, where a police officer is 'the sole victim, complainant and witness to the charges brought'. 40 While it noted the use of substitute charges in provocative police action in the context of arrests for drunkenness, 41 the Royal Commission did not repeat this warning in the context of offensive language charges.
The Western Australian Aboriginal Legal Services reported that police regularly stop and question Aboriginal people, make derogatory remarks, and use an offensive language charge when interference is resented. 42 The charge of offensive language is not infrequently accompanied by charges of assaulting police and resisting arrest.
This combination of charges is colloquially known by Indigenous people as the 'trifecta', the 'ham cheese and tomato' or 'refusing to fight a police officer'. Other substitute charges can be involved. A recent study found that in NSW, Aboriginal people were the only persons imprisoned for the minor offence of malicious damage to property between 1992 and 1994. 43 The trifecta was recently singled out for criticism by the Commonwealth House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs. 44 Indications are that it is a widespread phenomenon. Table 4.3 of this report indicates that almost 12 per cent of Indigenous prisoners around Australia, compared to less than 4 per cent of non-Indigenous prisoners, are serving sentences for assaults which caused no bodily harm. This is consistent with police using the assault charge against Indigenous people in trivial circumstances as a component of the trifecta.
A recent NSW case illustrates this issue. An Aboriginal man eventually recovered damages in 1995 after it was found that his arresting officer, who charged him in 1987 for causing affront, resisting arrest and assaulting police, had used excessive force to arrest, breaking the plaintiff's jaw. 45 The Aboriginal man was originally convicted but the conviction was overturned on appeal.
On the facts, the Aboriginal man told the police that his car had broken down some distance from the small town and explained he was waiting for his mother to bring a spare tyre. The constable did not believe him, and suspected he was loitering with an improper purpose. An argument and a fight followed. After his jaw was broken, the victim was placed in the back of a police van with an alsatian dog, and was driven 20km to verify the fact that his car was in fact stranded with a flat tyre.
Although damages were awarded for excessive force, the arrest for causing affront was found to be lawful. The judge took judicial notice of the fact that the defendant was a 'village constable', and therefore would not have behaved badly towards an Aboriginal person. The earlier judgement of Shillington J in the District Court, overturning the trifecta charges against the Aboriginal man, indicated that the constable had been provocative. That judgement was not admissible evidence in the action for damages.
Both offensive language charges and the related trifecta remain a great problem for Aboriginal and Torres Strait Islander people. The consequences are especially grave if the charges give rise to the breach of a court order, such as a good behaviour bond, or worse, a suspended sentence. Allegations have surfaced of a police practice of using an offensive language charge as a holding charge, rendering arrest and detention lawful, and subsequently questioning the detainee with a view to pressing more serious charges.
The fairness of the charge is generally not tested because of the tendency to 'plead guilty and be done with it', keeping in mind that a sentencing discount becomes available. If an accused is intoxicated when arrested, then irrespective of guilt, the chances of acquittal are low. Aboriginal people often simply do not appear in court if it requires travelling. In frustration, the Aboriginal Legal Service of NSW even briefly entertained the idea of refusing to represent clients pleading guilty to offensive language charges.
The double standard in the use of this charge by police was noted in a recent case in the New South Wales Court of Appeal. Evidence was led of the extensive swearing by police officers in what Meagher JA said is 'oxymoronically described as police culture'. 46
A recent Western Australian court case illustrates the scant attention paid to recommendation 86. The case involved a child who was detained without arrest under the Child Welfare Act s138B, and later charged with using offensive language during his detention at the police station. His conviction was overturned as the police station was not a 'public place' under the Act, and the words were not offensive in the context. 47
The final objectionable aspect of the trifecta is the lodgement of victims' compensation claims by the police involved. Aboriginal Legal Services in several parts of Australia have suggested that victims' compensation systems are being widely abused by police in cases where assault police charges are laid. Not only do police receive a windfall, but the person charged faces a second penalty (payment to victim compensation fund) for a charge which, in his or her mind, reflected only provocation by police. This establishes a framework for potential abuses of police power, and detracts from the community's faith in its police service.
South Australia claimed ongoing implementation, giving an impression of progress. However, the circumstances of the deaths in the case profiles cast doubt on this. Charging Aboriginal people for minor offences seems to be a serious problem in South Australia - of all matters dealt with by the South Australian Aboriginal Legal Rights Movement in1995, the most frequent charges laid against Aboriginal people were for 'Offences Against Good Order/Street Offences'. 48
A physically and intellectually disabled and disoriented Aboriginal man died in Adelaide in 1991 (29SA) after he strayed onto private property without otherwise offending. After a scuffle with police, he was charged with the 'trifecta' (offensive language, resisting arrest and assaulting police). In view of the man's condition, his reaction to police intervention was understandable. His arrest was unnecessary.
The death at Modbury Hospital (ex Mobilong Prison) (20SA) and the death at the Royal Adelaide Hospital (A2SA) both involved prisoners who were serving time for minor offences, and in both cases avoidable delays in medical attention seem to have contributed to the deaths.
Deaths have also occurred in Queensland after imprisonment for minor offences. The man who died in the Rockhampton Watch-house in 1991 (25QLD) had been imprisoned for two days for an unpaid fine for an offensive language charge. Unfortunately, the circumstances of the original charge were not examined by the Coroner.
The 19 year old who died in Ceduna Police Station in South Australia had been detained for an outstanding warrant for a charge of assaulting police and for unspecified unpaid fines (1SA).
The arrest of the 21 year old who died in Arthur Gorrie Remand Centre (45QLD) involved a recent arrest for offensive language, as well as other charges. There were allegations of police misconduct in the arrest. While not suggesting that this particular case involved what is known as the 'holding trifecta', it is unfortunate that the Coroner did not address this issue. The deceased had been convicted on sixty previous occasions, mostly for minor offences.
The death of the 18 year old arrested in Brisbane for disorderly conduct in 1993 (53QLD) was the culmination of a series of events which began with police scrutiny of a group of Aboriginal youths, most of them members of a dance troupe. Any offending behaviour and language was directed solely at police, who repeatedly drove past the group as they sat drinking in a public park and walked in a street. The Royal Commission was seeking to discourage this kind of policing.
In other cases in the period since the Royal Commission, although offensive language charges were not the cause of the particular arrest or detention that preceded the death, the deceased had been frequently charged with offensive language from a nearly age. 49 In case profile 23WA the Coroner commented that the deceased had a history of incarceration for minor offences, appearing in the Children's Court aged nine and serving his first sentence of imprisonment when he was fourteen. This background mirrors the circumstances of many whose deaths were examined by the Royal Commission.
In hindsight, recommendation 86 was too narrow in focus, especially given the tendency of agencies responsible for recommendations to interpret them as narrowly as possible. Police do not need to rely on a charge of using offensive language if a situation escalates following their intervention. There is no need for charges to be laid unless an incident involving bad language escalates to a point where serious misbehaviour takes place. Police contact should not result in charges being laid unless absolutely necessary. The threshold of 'necessity' seems markedly more easy to cross when police encounter Aboriginal people.
The NSW Government amended section 4 of the Summary Offences Act 1988 in 1994 to remove the penalty of imprisonment for offensive behaviour or offensive language. The above analysis indicates that this is only a partial solution. The Commonwealth House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs recommended that:
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.
b. Police Services should examine and monitor the use of offensive language charges.
All States except Victoria and South Australia profess to have fully implemented recommendation 86. In relation to the second limb of the recommendation, this is clearly inaccurate. Monitoring has been inadequate, with New South Wales, Queensland, the Northern Territory and Victoria not compiling arrest statistics regarding Aboriginal and Torres Strait Islander people. Arrest statistics are compiled without ethnicity data. No state collects comprehensive information, which would include details such as the proportion of charges in which police were the 'victims' of offensive language. Monitoring under this recommendation should be extended to all charges against Aboriginal people in which police officers are the complainants.
The New South Wales Bureau of Crime Statistics is intending to publish research into the trifecta at the end of 1996, although this is being conducted without adequate data about arrest.
A NSW pilot project involves the use of solicitors employed by the Director of Public Prosecutions instead of police prosecutors at local courts in Campbelltown and Dubbo. This initiative has a great potential to combat the 'closed loop' of provocative policing.
Recommendation 87 - Arrest as a Last Resort
The discussion of the implementation of recommendation 87 is broken up by its sub-paragraphs.
Recommendation 87a - Principle of Arrest as a Last Resort
All Police Services should adopt and apply the principle of arrest being the sanction of last resort in dealing with offenders;
All States and Territories acknowledge that this recommendation has only been partially implemented, except Victoria and the Northern Territory, which claim full implementation.
The results of the widespread failure to implement this recommendation are clear. Seventeen Aboriginal people died in police custody: eight in circumstances indicating that Police Services have not adopted or applied the principle of arrest as a sanction of last resort. The analysis below reveals that five people who died in police custody were not offending when arrested. The Aboriginal Legal Rights Movement in South Australia reported routine arrests for matters as trivial as urinating in a public place, with an Aboriginal woman being held in custody for nine hours following such an arrest. 50 Another example of a trivial charge was 'failing to truly answer'. 51 As a result, a person was taken into custody after the laying of a charge which only attracts a fine.
Five Aboriginal people who died in custody were arrested while unconscious (2WA, 5QLD, 8VIC, 21QLD, 38QLD). Three of these were unconscious due to alcohol (2WA, 5QLD, 21QLD), and one had brain damage following a head injury (21QLD). One had been disorderly in a hospital. His behaviour was probably due to the brain injury found to have killed him. He was not fully conscious by the time police arrived (8VIC). The woman arrested in Brisbane was semi-conscious, and the Coroner found she had suffered a heart attack before police arrived (38QLD). The arrest of people in such ill health illustrates the lack of any noticeable practical reform of the police discretion to arrest.
Others who died in custody were offending in a very minor way. A woman who died in Macquarie Fields police station was arrested for possession of a small amount of cannabis (39NSW). Others had been subjected to police scrutiny because they had gathered in a public place and were either apprehended for disorderly conduct solely aimed at police in response to perceived harassment (53QLD), or apprehended on old warrants (1SA, 65WA, 45QLD). Two were arrested in private homes for the offence of public drunkenness (32QLD, 38QLD). The coroners found that one had suffered a heart attack and the other a head injury before police arrived. These public drunkenness arrests were very likely unlawful, as neither was in public, and at least one of the two was not drunk (38QLD).
An intellectually disabled and disoriented Aboriginal man died in Adelaide in 1991 (29SA) after he strayed onto private property without otherwise offending. After a scuffle with police he was charged with the 'trifecta', (offensive language, resisting arrest and assaulting police). The Coroner recommended:
It is incumbent on all police as far as possible to carefully weigh the facts and the circumstances before exercising the prerogative of arresting a person at a particular scene.
Arresting these people and taking them to police cells was at the very least inappropriate. Many of the arrests showed a contemptuous disregard for the deceased's welfare, and several were unlawful.
The summons procedure, an alternative to arrest which can reduce the incidence of custody, is used in a tiny minority of cases in most states. The Western Australian Government in fact reported in 1994 that 'Much of police resources and time are spent on the summons process. From a strict policing point of view, the process is not effective or efficient.' 52 It would be interesting to note the results of the increased reliance on the summons procedure in Victoria.
Many individual police officers have become aware of the issue of inappropriate charging. In the case of the young man who died in the John Oxley Memorial Hospital in Brisbane in 1996 (A7QLD), the Inquiry commended police for an incident in which the deceased had broken the window of a TAB, but was not charged because of his obvious psychiatric condition. Unfortunately, despite commendable examples such as that one, the case profiles indicate that police culture is resistant to the idea of arrest and charge as a last resort.
Recommendation 87b - Training in Arrest as a Last Resort
Police administrators should train and instruct police accordingly and should closely check that this principle is carried out in practice;
There is clear evidence of a widespread failure by police administrators to train and instruct police to use arrest as the sanction of last resort.
In a controversial Queensland case, the Criminal Justice Commissioner conducted an Inquiry into the death of an 18 year old arrested with a companion for offensive conduct. The Commissioner accepted evidence that the officer-in-charge of the watch-house, had he been contacted, would have approved the arrest a group of Aboriginal youths for minor offending behaviour (53QLD).
In a Western Australian case, police administrators had recently posted a direction on the station bulletin board that a park well known for Aboriginal drinking should be covered by officers in all patrols (65WA).
In a South Australian case, a warrant check was run on two young Aboriginal people sitting in a car (1SA). This allegedly occurred because there had been a break-in nearby, although South Australian police have been judicially criticised for over-frequently checking cars with Aboriginal occupants. 53
Western Australia has the highest over-representation rate of Aboriginal people in police custody, yet the Government claims that the recommendation has been implemented and no further action is needed. 54
Recommendation 87c - Review of Practices Relevant to Arrest as Last Resort
Administrators of Police Services should take a more active role in ensuring police compliance with directives, guidelines and rules aimed at reducing unnecessary custodies and should review practices and procedures relevant to the use of arrest or process by summons and in particular should take account of the following matters:
i. allowances should not operate as an incentive to arrest;
ii. a database should be established monitoring the use of summons and arrest procedures and noting utilisation in particular regions and stations;
iii. role of supervisors in overseeing arrest practices should be examined and strengthened where necessary;
iv. efficiency and promotion criteria should be reviewed so that advantages do not accrue as a result of the frequency of making charges or arrests;
v. procedures should be reviewed to ensure that work processes (particularly paper work) are not encouraging arrest rather than the adoption of other options such as proceeding by way of summons or caution.
As the following comments indicate, there is very limited evidence to demonstrate implementation of the matters listed.
- The history of a meal allowance scheme in Western Australia provides a very illuminating insight into the way police exercise discretion in decisions to take Aboriginal people into custody. For many years, police in remote Western Australian towns were paid an allowance based on the number of people they held in custody. As a result of the Royal Commission recommending the discontinuation of this scheme, and a sustained and vocal campaign by the Aboriginal Legal Service of Western Australia and others, meals were provided by the Department of Justice as a trial measure in May 1995. The number of persons detained in custody decreased dramatically.
- The Crime Research Centre of Western Australia has conducted some monitoring of the relative frequency of the use of summons, court attendance notices and arrest in different parts of the state. However, there is no evidence that police departments are themselves monitoring police discretion in accordance with this recommendation.
In Wiluna, the number of meals supplied to detainees fell from an average of 1280 per month prior to the trial, to 67 the month in which the program was piloted. This indicates a huge decrease in the number of detainees. In Leonora, the number of meals fell from and average of 1500 per month to 800. There were nearly 1,000 fewer meals served per month in Halls Creek.55 These extraordinary figures illustrate the importance of not giving police overly wide discretionary powers, especially where a conflict of interest is involved.
There is evidence that police frequently claim victims compensation after making arrests for assaulting police. The payments can be significant. These claims can operate as an incentive to arrest. The New South Government announced it would be restricting victims compensation claims to police in 1996, but ultimately curtailed the availability of victims compensation claims for sentenced prisoners only.
In New South Wales, a strategic plan for policing Aboriginal and Torres Strait Islander communities provides for the future publication of police arrest discretion, monitoring and research. However, at the date of publication of this report the New South Wales Police Service does not have an operational system for recording Aboriginality in arrest data. This is currently being remedied, but the delay since the Royal Commission has been, to say the least, very unfortunate.
There was not enough detail in the coronial findings since the Royal Commission to ascertain the role supervisors are playing in shaping the exercise of police discretion in all states and territories. However, a well-known Queensland case contained evidence that police did not attempt to contact superiors before commencing a six-police operation to arrest young Aboriginal people for disorderly conduct (53QLD).
Career paths in the Police Service are still largely based on seniority.
Following from the discussion in reference to part (a) of recommendation 87, the Western Australian Government reported in 1994 that 'Much of police resources and time are spent on the summons process. From a strict policing point of view, the process is not effective or efficient'. 56 This comment was qualified by an undertaking to increase the efficiency of the summons procedure in the case of juveniles. In 1994, of all people charged by police, only 9 per cent of Aboriginal people were summonsed, compared to 22 per cent of non- Aboriginal people. 57
Recommendation 87d - Cautions and Arrest as a Last Resort
Governments should look at proceeding by way of formal caution for certain offences.
Cautions should be used more frequently where the 'victim' of an offensive language charge, or other trivial offence, is a police officer.
The case of the 19 year old who hanged himself while on remand in Ceduna police station (1SA) was not fully examined by the Coroner. The deceased was remanded for failing to attend court 300km from his community when charged with assaulting police, and for failing to pay certain fines. There was no exploration by the Coroner of why the serious indictable charge of assaulting police was laid instead of the less serious complaint of assaulting police under the Summary Offences Act. Another profile disclosed that the more serious charge was laid for spitting on a police officer (A7QLD).
Another case involved the use of offensive language in response to what a group of young Aboriginal people felt was discriminatory scrutiny by police (53QLD). Police-Aboriginal relations would be improved by the use of cautioning rather than arrest in circumstances such as those in this case.
4. Over-Policing and Bail
Recommendation 88 - Over-Policing
That Police Services in their ongoing review of the allocation of resources should closely examine, in collaboration with Aboriginal organisations, whether there is a sufficient emphasis on community policing. In the course of that process consider whether:
a. There is over-policing or inappropriate policing of Aboriginal people in any city or country town;
b. The policing provided to more remote communities is adequate and appropriate to meet the needs of those communities and, in particular to meet the needs of women in those communities; and
c. There is sufficient emphasis on crime prevention and liaison work and training directed to such work.
The Northern Territory was the only jurisdiction which claimed to have implemented this proposal in full. All other jurisdictions acknowledged only that partial implementation had been achieved. Little information was available from the text of coronial reports on the issues of community policing. However, it is clear that over-policing remains an area of significant concern.
One case involved warrant checks of Aboriginal people in a car on Saturday night in Ceduna (1SA). An alleged burglary in the street was given as the reason for questioning the young people. The Coroner did not explore whether or not this questioning was an example of the type of intrusive policing contemplated by this recommendation. 58
In one case, the Criminal Justice Commissioner noted that policing was too 'incident driven' and was not adequately community based (53QLD). As a response, the Commissioner recommended community based policing.
The Aboriginal Legal Service wanted to make the same submission in a recent Western Australian case (65WA). Discussions with the Legal Service indicated that counsel for the family was prevented by the Coroner from making this submission at the inquest. In an illustration of culturally different points of view, the Coroner could not see the relevance of the submission, while the issue was a very important one for the Aboriginal community in Perth.
In July 1996, the Queensland Criminal Justice Commission released a statutory review of the Queensland Police Service, including a chapter on Aboriginal community policing which was largely damning of efforts made by the Service in the area. The review was conducted under the leadership of Sir Max Bingham.
The over-policing of Indigenous people in public places and areas frequented by non-Indigenous people and the under-policing of Aboriginal communities is a continuing problem, particularly for Indigenous women. In Western Australia, for example, the rate of reported spousal violence of Indigenous women is 36.2 times that of non-Indigenous women. 59 A number of profiles indicated the existence of domestic assault (76NSW, 54SA, 60SA, 73SA and 33WA). There is a need for greater and more appropriate policing that is sensitive to communities. The South Australian Aboriginal Legal Rights Movement and the Aboriginal Justice Advisory Committee report that they are 'not aware of any initiatives by SAPOL which specifically meets the needs of Aboriginal women in communities.'
The Report of the Chief Justice's Taskforce on Gender Bias in Western Australia provided useful recommendations on Aboriginal-Police relations in this area. 60 They recommended that victims of abuse be referred as quickly as possible to relevant helping agencies and that police examine problems of women in remote communities and develop strategies towards improving services. They also included recommendations on discrimination and harassment by male police officers and aides.
Recommendation 89 - Monitoring of Bail Legislation
That, the operation of bail legislation should be closely monitored by each government to ensure that the entitlement to bail, as set out in the legislation, is being recognised in practice. Furthermore, the Commission recommends that the factors highlighted in this report as relevant to the granting of bail be closely considered by police administrators.
Queensland, Western Australia, South Australia and Tasmania claimed to support, or to have partially implemented, this recommendation - the other States and Territories claimed that it had been fully implemented. The claims are hard to assess as there is no reliable information on the relative likelihood of Aboriginal people being remanded in custody rather than given bail. Not having a permanent address is an example of a criteria which results in the denial of bail to Aboriginal people around Australia.
At least one case involved an Aboriginal man who was entitled to bail but died in Parklea Prison where he was placed because he could not meet bail conditions (67NSW). He gave a list of potential bailees to the Legal Aid solicitor. His sister was not prepared to post bail. He was not allowed to contact his father, who later stated that he would have gone bail if approached by his son. He was not permitted personal bail.
A South Australian case involved a refusal of bail in circumstances in which the deceased may have obtained bail had he been legally represented (1SA). Unfortunately the appropriateness of the decision to refuse bail and the inability to meet bail conditions were not raised by the Coroner.
Recommendation 90 - Improved Bail Procedures
That in jurisdictions where this is not already the position:
a. where police bail is denied to an Aboriginal person or granted on terms the person cannot meet, the Aboriginal Legal Service, or a person nominated by the Service, be notified of that fact;
b. an officer of the Aboriginal Legal service or such other person as is nominated by the service be granted access to a person held in custody without bail; and
c. there be a statutory requirement that the officer in charge of a station to whom an arrested person is taken give to that person, in writing, a notification of his / her right to apply for bail and to pursue a review of the decision if bail is refused and of how to exercise those rights.
Queensland, Western Australia and Tasmania claimed to have partially implemented this recommendation, while the other jurisdictions maintained that it had been fully implemented.
Despite these assertions, there are clear indications that the recommendation is not being implemented in a meaningful way. 61 Reported incidents include a Torres Strait Islander juvenile being detained on warrants without bail for two weeks in Cairns because the Legal Service was not notified,62 and an Aboriginal juvenile being held in police cells for 20 hours after urinating on a lawn, bail having been set at $1,000. 63
Notification of detention to the Aboriginal Legal Service (ALS) carries with it an expectation that the ALS will be able to respond to all communications. Resources and funding do not always allow the ALS to meet the demand. It is not unusual for arrests to take place late at night. In one case, the Aboriginal Legal Service was unable to provide any sort of legal representation for a bail hearing because staff were on leave (1SA). The ALS should organise alternative representation, such as a legal aid duty solicitor or a pro bono private solicitor, where it unable to assist.
In Western Australia, there is a statutory requirement that the officer in charge of a station to which an arrested person is taken gives notification of bail rights and instructions on how to seek review of bail decisions. The ALS claims that the statutory requirement is not always adhered to. The Victorian Bail Act 1977 does not impose this requirement, although it is apparently under review. 64 The New South Wales Bail Act 1972 requires such information be given to a detainee on a form. Unlike Western Australia, there is no provision for overcoming language and literacy problems by explaining the form to detainees incapable of reading it. 165
There is no indication in the Queensland Government's implementation report that the recommendation has been implemented in that state.
Recommendation 91 - Improved Police Bail
That governments in conjunction with Aboriginal Legal Services and Police Services give consideration to amending bail legislation:
a. To enable the same or another police officer to review a refusal of bail by a police officer;
b. To revise any criteria which inappropriately restrict the granting of bail to Aboriginal people; and
c. To enable police officers to release a person on bail at or near the place of arrest without necessarily conveying the person to a police station.
While all jurisdictions claim to have fully or partially implemented this recommendation, the legislation is often inadequate to ensure that Indigenous people are not inappropriately denied bail.
There is a presumption at common law in favour of the granting of bail, and a statutory presumption for most offences. From the case profiles, the number of people remanded in custody indicate that Aboriginal people have difficulty obtaining bail. A good proportion were remanded in custody for offences in respect of which the accused is typically entitled to bail, such as property offences, offences involving police as the sole 'victims' of conduct and fine defaulting. The current criteria may have an indirectly discriminatory impact on Aboriginal and Torres Strait Islander people with problems such as language and literacy difficulties.
As discussed in reference to part (d) of Recommendation 87, a South Australian man was on remand for defaulting on the payment of fines, and for non-appearance on a charge of assaulting a police officer. The hearing of the assault charge was held in a court 300 kilometres from his place of arrest (1SA). The considerable distance was the reason for the non-appearance. He was not legally represented at his bail hearing. A solicitor on leave at the Aboriginal Legal Rights Movement (ALRM) apparently could not organise a replacement in the ALRM Ceduna Office because there was no funding to do so. This explanation is unsatisfactory. Arrangements should have been made for another solicitor to be available in circumstances where a person's liberty was at stake.
The deceased appeared alone. No person with any legal training was involved in the decision to refuse bail, either at the police station or in court before two justices of the peace. For reasons outlined in the profile, he may well have been eligible for bail despite the non-appearance and the non-payment of fines. The Coroner did not address the issue. He reasoned that any recommendation he made would not be binding on a court. With due respect, that is hardly an adequate reason to limit what could have been a useful consideration of a common circumstance. Had a recommendation been made to the Attorney General that a presumption of bail should survive a non-appearance at a court far from the home community of the accused, it could have resulted in the removal of a common and trivial obstacle to the enjoyment of a bail entitlement.
Bail was refused in two Queensland cases. The first involved arrest for offensive language, resisting arrest, breaking and entering and the unlawful use of a motor vehicle (45QLD). The second involved unspecified property offences (59QLD). Three New South Wales cases involved a woman on remand on a stealing charge in Mulawa gaol (62NSW), a 24 year old remanded on assault charges (63NSW) and a 20 year old refused bail on break and enter charges (72NSW). The most recent of the cases involved a 24 year old Aboriginal man who was refused bail for unspecified minor offences (96WA).
Prior breaches of orders were a significant factor in ineligibility for bail. The existence of outstanding fines can lead to ineligibility for bail (1SA, 25QLD, 65WA). This is not in keeping with the principle of imprisonment as a last resort set out in recommendation 92 - see chapter 7.
In the case of the man who died in the East Perth Lockup, the man's 'tribal background' was given by police as a reason why bail was inappropriate (65WA). The use of a racial or cultural stereotype is highly improper and an inappropriate ground in considering whether an individual is likely to answer bail.
5. Improving the Criminal Justice System: Aboriginal People and Police
Recommendation 214 - Community Input into Policing
The emphasis on the concept of community policing by Police Services in Australia is supported and greater emphasis should be placed on the involvement of Aboriginal communities, organizations and groups in devising appropriate procedures for the sensitive policing of public and private locations where it is known that substantial numbers of Aboriginal people gather or live.
Queensland, South Australia and Tasmania claimed to have partially implemented this recommendation, while all other jurisdictions maintained that it had been fully implemented.
These claims seem dubious, particularly as the recommendation was clearly breached in relation to a number of the deaths. The arrest of a young Aboriginal man in Brisbane and the arrest of a man at Weld Square in Perth demonstrate a number of deficiencies in the implementation of this recommendation (53QLD and 65WA). In both cases the policing style was confrontational in areas frequented by Aboriginal people. The Coroner in the Queensland case made a recommendation for the adoption of proposals for a community policing model in Brisbane, and commented favourably on the fact that the proposals came from the Police Service. It is unclear whether they have been implemented since.
A deviation from community policing took place in Townsville in 1996. The local council attempted to move Aboriginal people from the park by empowering security guards employed by the council to take action against park drinkers. Police deserve commendation for refusing Townsville Council's demands that the Aboriginal people in Hanran Park in Townsville be 'rounded up'. A man who died in the Townsville Watch-house in 1989 was picked up in Hanran Park (5QLD).
These comments are also relevant to Recommendation 215, which three jurisdictions claimed to have partially implemented and the remainder to have fully implemented. Despite these assertions, there is little evidence of such negotiations taking place, or of any outcomes from such initiatives.
Recommendation 215 - Procedures for Negotiation with Communities about Local problems
That Police Services introduce procedures, in consultation with appropriate Aboriginal organisations, whereby negotiation will take place at the local level between Aboriginal communities and police concerning police activities affecting such communities, including:
a. The methods of policing used, with particular reference to police conduct perceived by the Aboriginal community as harassment or discrimination;
b. Any problems perceived by Aboriginal people; and
c. Any problems perceived by police
Such negotiations must be with representative community organisations, not Aboriginal people selected by the police, and must be frank and open, and with a willingness to discuss issues notwithstanding the absence of formal complaints.
The Western Australian Aboriginal Legal Service had hoped that a recommendation for appropriate community policing around Weld Square in Perth, and in Western Australia generally, would arise out of the coronial inquest (65WA). Unfortunately, in a demonstration of the limited focus of coronial inquiries, the Coroner refused to hear evidence on that issue. Claims of over-policing at Weld Square in Perth raised community dissatisfaction, with police seemingly responding to complaints by local businesses without considering negotiation to resolve the issues.
Two Queensland cases involved a coronial recommendation of community policing strategies. The first case involved community police on Mornington Island (21QLD). The Coroner recommended that separation of the functions and operations of members of the Police Service and the Aboriginal police on Mornington island should cease, as it is more appropriate that an Aboriginal police officer work alongside a member of the Police Service, particularly on community patrols.
The death of an 18 year old in Brisbane (53QLD), after he and a companion were arrested for disorderly conduct, demonstrated a lack of negotiation with Aboriginal people around Mulgrave Park in Brisbane. Mulgrave Park is an area in which Aboriginal people have customarily gathered.
A police shooting in the traditional community of Elcho Island also resulted in friction when police perceptions of what was appropriate differed markedly from that of the community (18NT).
Recommendation 220 - Funding for Support Programs
Precis: That organisations actively involved in providing voluntary support for community policing and community justice programs be provided with adequate and ongoing funding by governments to ensure the success of such programs. That similar schemes be introduced in willing communities because they have the potential to improve relations between police and Aboriginal people rapidly and to substantially lower crime rates.
Western Australia and the Northern Territory were the only jurisdictions which claimed to have fully implemented this recommendation. Promising outcomes have been apparent from such initiatives, although funding still appears to be less than adequate.
In Western Australia, patrols were established in Mullewa, Kununurra, Carnarvon, Fitzroy Crossing and Halls Creek in 1994, based upon the Tangetyere night patrol in Alice Springs. Patrols were already operating in Broome, Derby, Geraldton and Kalgoorlie. More recently, Aboriginal patrols have been established in Fremantle, Narrogin, Perth and South Headland. The Aboriginal Legal Service submitted that local Aboriginal patrols would be a better method of policing in places such as Weld Square in Perth (65WA). While there can be problems if these patrols take a narrow 'reactive' or 'incident driven' approach to policing, they can be very valuable in reducing incarceration for alcohol related offences. In Victoria and the Northern Territory, Aboriginal groups have reported that they have been able to achieve good relations with local police. These results are so valuable that more attention should be paid to them.
Aboriginal-run mobile assistance patrols in Victoria, Queensland, South Australia, Victoria, Western Australia, the Northern Territory and in New South Wales (Bourke and Walgett), have helped reduce the incidence of custody for drunkenness. These programs must be adequately funded. They should not only be able to give Aboriginal people shelter for the night, but there should also be an opportunity to refer intoxicated persons to treatment programs appropriate for Aboriginal people. The 'revolving door' syndrome will otherwise damage the morale of the mostly volunteer workforce of the patrols.
Recommendation 221 - Remuneration for Participants in Policing Schemes
That Aboriginal people who are involved in community and police initiated schemes should receive adequate remuneration in keeping with their important contributions. Funding for the payment of these people should be from allocations to expenditure on justice matters, not from the Aboriginal affairs budget.
New South Wales, Victoria and South Australia all claimed to have implemented this recommendation, while the other jurisdictions expressed limited support. The coroners' reports provide little information about this recommendation, although it arose in case profile 21QLD in the form of a coronial recommendation for adequate remuneration. Aboriginal community police in Queensland now receive award wages. The issue also arose before the coroner in the Western Australian case which featured policing in Weld Square, where community patrols were not established and the Aboriginal Visitors Scheme was not given the support it required (65WA).
Recommendation 223 - Protocols for Involving Aboriginal Legal Services
That Police Services, Aboriginal Legal Services and relevant Aboriginal organisations at a local level should consider agreeing upon a protocol setting out the procedures and rules which should govern areas of interaction between police and Aboriginal people. Protocols, among other matters, should address questions of:
a. Notification of the Aboriginal Legal service when Aboriginal people are arrested or detained;
b. The circumstances in which Aboriginal people are taken into protective custody by virtue of intoxication;
c. Concerns of the local community about local policing and other matters; and
d. Processes which might be adapted to enable discreet Aboriginal communities to participate in decisions as to the placement and conduct of police officers on their communities.
While Victoria and New South Wales are the only States which claimed to have fully implemented this recommendation, the most obvious breach of the recommendation occurred in the circumstances of a hanging in Victoria (31VIC). Police did not believe an Aboriginal detainee when he told them he was Aboriginal. The Visitors Scheme was therefore not contacted. The Coroner made a recommendation that procedures be amended. In a Western Australian case, there were no protocols under part (c) to address the concerns of the local Aboriginal community about local policing (65WA).
Recommendation 226 - Improved Police Complaints Mechanisms
Precis: That in all jurisdictions the processes for dealing with complaints against police need to be urgently reviewed to ensure: independent investigations; confidentiality and protection of complainants; public hearings of formal investigations; annual reports to parliament; Aboriginal involvement in adjudication; no cost to complainants; legal assistance to complainants where necessary; Aboriginal staffing; preferably non-police investigators or police under sole direction of independent body; ability to compel police witnesses; legislation for access to police files and documents.
Queensland and South Australia claimed to have implemented this recommendation. Victoria, Western Australia, Tasmania, the Northern Territory and New South Wales claimed that it had been supported to a degree. While the analysis of police complaints systems is beyond the scope of this report, the cases revealed the need for improved police complaints systems.
Several cases involved allegations of police misconduct: 21QLD (rough handling), 24WA (over-zealous police pursuit involving eight cars), 29SA (inappropriate rough handling of a mentally and physically disabled man), 38QLD (rough treatment), 41QLD (failure to intervene in a racist incident which culminated in a drowning), 45QLD (bashing), 53QLD (bashing, improper custodial care, level of scrutiny amounting to harassment), and 65WA (level of scrutiny amounting to harassment).
In a number of profiles, the coroners referred the cases to the appropriate state complaints body (38QLD, 41QLD). In one case, the complaints body conducted the investigation from the outset (53QLD). The latter case was probably the only one of the cases in which this recommendation could have been said to have been complied with. There were investigations into the police involved in apprehending the deceased in both 38QLD and 41QLD, but there were no formal public hearings.
Police declined to give evidence at both coronial inquests on the grounds that they may tend to be incriminated.
The Wood Royal Commission into the New South Wales Police Service has emphasised the need for a more independent complaints system. Its success in uncovering police misconduct has been largely due to its public nature, the fact that legal officers and investigation officers are working in a co-ordinated manner, and the fact that it has been allowed adequate resources. While the Wood Royal Commission does not have the legal power to order a remedy, it has enough political momentum to ensure that matters are prosecuted. The Wood Royal Commission's Interim Report resulted in the establishment of an Aboriginal Complaints Unit within the Office of the Ombudsman. There is a need for such a unit in the other jurisdictions.
Recommendation 225 - Police Aboriginal Unit
Precis: That Police Services set up Aboriginal policy units.
Despite a force of 16,000 employees and a budget of more than $1 billion, the New South Wales Police Service does not have an Aboriginal policy unit, and employment of Aboriginal police under the NSWPS employment strategy has fallen well behind target in its year of inception.
Recommendation 228 - Improved Training
That police training courses be reviewed to ensure that a substantial component of training both for recruits and as in-service training relates to interaction between police and Aboriginal people. It is important that police training provide practical advice as to the conduct which is appropriate for such interactions. Furthermore, such training should incorporate information as to:
a. The social and historical factors which have contributed to the disadvantaged position in society of many Aboriginal people;
b. The social and historical factors which explain the nature of contemporary Aboriginal and non-Aboriginal relations in society today; and
c. The history of Aboriginal police relations and the role of police as enforcement agents of previous policies of expropriation, protection and assimilation.
All jurisdictions claimed to have fully implemented this recommendation except Queensland and South Australia, where it was said to be partially implemented.
However, the reports contained evidence of continuing dissatisfaction on the part of Aboriginal people with the way in which police interacted with their communities.
In the wake of the police shooting of an Aboriginal man on Elcho Island in the Northern Territory, the Coroner noted that the community was dissatisfied with its interaction with the police (18NT). Training is required to reinforce the principle that negotiated responses are the best basis of interactions.
The Aboriginal Legal Service argued that police were inadequately trained in interacting with Aboriginal people, as evidenced by their behaviour in the circumstances surrounding a death in the East Perth Lockup in 1994 (65WA).
Recommendation 231 - Aboriginal Police
That different jurisdictions pursue their chosen initiatives for improving relations between police and Aboriginal people in the form of police aides, police liaison officers and in other ways; experimenting and adjusting in the light of the experience of other services and applying what seems to work best in particular circumstances.
Queensland, Victoria and Tasmania were the only states which claimed less than full implementation of this recommendation.
This recommendation calls for strategies for improving relations with police. It was breached in the circumstances of a death in Brisbane (53QLD). An informal protocol stopped police from entering Musgrave Park. As soon as the young people in question made their way out of the park they were arrested under the Vagrants and Gaming Act. The arrest involved six police. The record of the police radio call also indicated a less than desirable attitude towards Aboriginal youth.
See Table 4.3a.
Australian Bureau of Statistics, National Survey of Aboriginal and Torres Strait Islander People 1994, AGPS, Canberra, 1995.
See for example Aboriginal Legal Rights Movement Inc/Aboriginal Justice Advisory Committee Independent Royal Commission Into Aboriginal Deaths in Custody Monitoring Report January 1995 - June 1996, p. 52 ('ALRM/AJAC, Independent Monitoring Report (SA)')
There were three other deaths from police pursuit: two 18 year olds (80NSW, 86WA) and a 27 year old (89WA).
5. op. cit..
Homel, R., High Speed Pursuits in Perth, Police Department of Western Australia, 1990. See also Beresford, Q., and P. Omani, Rites of Passage Aboriginal Youth Crime and Culture Fremantle, Arts Press, 1996 at p. 80 quoting WA Standing Committee on Legislation 1992 Report.
Broadhurst, R. and N. Loh, 'Selective Incapacitation and the Phantom of Deterrence', in Repeat Juvenile Offenders and the Failure of Selective Incapacitation in Western Australian, UWA Crime Research Centre, 1995 at pp. 73-75.
Correspondence from Paul Whelan, Minister for Police, to Michael Dodson dated 2 July 1996.
9. Liquor Licencing Act 1998 (WA) s119.
Royal Commission into Aboriginal Deaths in Custody Responses by Government, 1992 Vol 1 p 2280.
11. Criminal Law General Offences Bill 1995: Submission of the Aboriginal Justice Advisory Committee to the Hon. the Minister for Justice and Attorney-General, Minister for Industrial Relations and Minister for the Arts, unpublished, 1995.
The current law is the Liquor Act 1992, sections 164 (drunk in public and offence), 173A-E (designation of public places where drinking is not unlawful), Penalties and Sentences Act 1992 section 185 (fine default).
(1995) Aust Torts Reports 81-367.
House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs Justice Under Scrutiny: Report of the Inquiry into the Implementation by Governments of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody AGPS, November 1994, pp 170-71 ('Justice Under Scrutiny').
Brennan, S., As Good as Their Word: A Reply to Melville, Jeans, Adcock and Preston, Current Issues in Criminal Justice, Vol.6 No.2, November 1994, 264-274 at p.269.
Race Discrimination Commissioner, Aboriginal and Torres Strait Islander Social Justice Commissioner, Mornington Island Review Report, Human Rights and Equal Opportunity Commission, April 1995, pp.1-13.
Government of Western Australia, Royal Commission into Aboriginal Deaths in Custody: Government of Western Australia 1995 Implementation Report, p285 ('WA Implementation Report 1995'), Vol.1 p.80.
Aboriginal Justice Council, Getting Stronger on Justice, Western Australia, 1995 p.26
Aboriginal Legal Service of Western Australia, Striving for Justice Vol 3: Report on the Western Australian Government's Implementation of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody, pp.52-57 ('Striving for Justice'). See also Taskforce on Aboriginal Social Justice Report of the Taskforce, Vols 1 and 2, April 1994, p.456.
See Striving for Justice, op. cit., p 53; Hon Max Evans, Report of the Minister for Racing and Gaming on the Review of the Liquor Licensing Act 1988, June 1995, p 10; Review Committee Liquor Licensing Act 1988, (Mattingley, Morris, Karasek) Liquor Licensing in WA: Report of the Independent Review Committee Appointed by the Government of WA, April 1994, recommendation 24.
Drug and Alcohol Services Council, Public Intoxication Act Annual Statistical Report, 1993/94, p 3.
Government of New South Wales, Implementation of Government Responses to the Recommendations of the Royal Commission into Aboriginal Deaths in Custody: New South Wales Government Report, Vol.1, 1993/94 p. 135 NSW Implementation Report 1993/94').
Mackay, M., 'Law, Space and Justice: a Geography of Aboriginal Arrests in Victoria', in People and Place, Vol.4 No.1, p.28.
24. Justice Under Scrutiny, op. cit., p.141. In case profile 31VIC police officers offered to drive the deceased, who was intoxicated, home.
See Department of State Aboriginal Affairs, Royal Commission into Aboriginal Deaths in Custody: 1993 Implementation Report - South Australian Government, April 1994, p 95 (SA Implementation Report 1995'); WA Implementation Report 1995, op. cit., Vol.1, p.82.
For a good discussion of issues to do with drinking, see ALRM/AJAC, Independent Monitoring Report (SA), op. cit., pp.60-61, 92-101.
For instance, see the Local Government Act 1989 (Vic).
Australian Bureau of Criminology, Australian Prison Trends, No 206, July 1993, p 1.
Royal Commission into Aboriginal Deaths in Custody, National Report, Vol 2 p 196.
James, S., 'Aboriginal People & Public Drunkenness', Aboriginal Law Bulletin Vol. 3 No.65, December 1993, pp. 12-13.
Section 644A(3) Local Government Act 1993 (NSW)
32. Ibid, Section 649.
Royal Commission into Aboriginal Deaths in Custody, National Report, Vol 3, pp 19-21
34. Justice Under Scrutiny, op. cit., p.144, 152; Royal Commission into Aboriginal Deaths in Custody, National Report, Vol 3, p 19.
35. NSW Implementation Report 1993/94, op. cit., pp 134-47.
See Brown, D., Farrier, D., Neal, D., and D. Weisbrot, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, The Federation Press, 1990, pp 973-985; Egger, Cornish and Heilpern 'Public Drunkenness: A Case History in Decriminalisation',in Findlay, Egger and Sutton (eds), Issues in Criminal Justice Administration, (1983).
See case profiles 5QLD, 21QLD, 38QLD and 5VIC.
38. Justice Under Scrutiny, op. cit., p.144, 148.
39. Striving for Justice, op. cit., p.56.
40. Striving for Justice, op. cit., p. 60; see also ALRM/AJAC, Independent Monitoring Report (SA), op. cit., pp.62-65
Royal Commission into Aboriginal Deaths in Custody, National Report, 1992 Vol 3, pp 26, 29.
Eyland, S., Truth in Sentencing: A Koori Perspective, (Unpublished paper), p 49.
44. Justice Under Scrutiny, op. cit., p.160, p.165, pp.222-223.
45. Hippi v Nunn (Unreported, Herron DCJ 5 May 1995).
46. Commissioner of Police v Anderson (Unreported, NSWCA, 40469/95).
47. E (A Child) (1994) 76 A Crim R 343.
ALRM/AJAC, Independent Monitoring Report (SA), op. cit., p.62.
See 19NSW, 25QULD, 45QLD and 65WA.
ALRM/AJAC, Independent Monitoring Report (SA), op. cit., p 63
Section 30 of the Road Traffic Act 1961 (SA). The Question was supposed to have been 'Who was the driver of the vehicle?' but it transpired that this question was not asked.
Government of Western Australia, Royal Commission into Aboriginal Deaths in Custody: Government of Western Australia 1994 Implementation Report, p 314 ('WA Implementation Report 1994').
53. R v Armstrong, (1989) 53 SASR 25 at 27-8, per King CJ.
54. WA Implementation Report 1994, op. cit., p.102.z
55. Striving for Justice, op. cit., pp 65-66.
56. WA Implementation Report 1994, op. cit., p.314.
Western Australian Ministry of Justice, Aboriginal Contact with the Juvenile Justice System in WA: A Statistical Profile 1995, p.19.
58. R v Armstrong, (1989) 53 SASR 25 at 27-8, per King CJ.
Broadhurst, R., Ferrante, A. and N. Loh, Crime and Justice Statistics for Western Australian 1992, University of WA Crime Research Centre, December 1993, p.27.
The Hon. Mr. Justice D.K. Malcolm AC Chief Justice of WA, Report of the Chief Justice's Taskforce on Gender Bias, 30 June 1994 cited in Striving for Justice, op. cit.
61. Justice Under Scrutiny, op. cit., pp.314-324.
62. Ibid, p.317.
63. Ibid, p 320.
64. Striving for Justice, op. cit., p.73.
NSW Implementation Report 1993/94, op. cit.,p.147-148
A Report prepared by the
Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner
Aboriginal and Torres Strait Islander Commission