The protection of this right requires positive measures to be taken to prevent death. Joseph, Schultz and Castan note that ‘Article 6 has both a negative component, as in a right to not be arbitrarily or unlawfully deprived of life by the State or its agents, and a positive component, in that the State must adopt measures that are conducive to allowing one to live.’4 Such approach has been confirmed by the Human Rights Committee in General Comment 6 which provides that ‘the protection of this right requires that States adopt positive measures’.5
Such a requirement for positive measures extends further in relation to children, the CRC imposing a specific obligation to ensure the survival and development of children. Article 6 of the CRC provides:
- States Parties recognize that every child has the inherent right to life.
- States Parties shall ensure to the maximum extent possible the survival and development of the child.
An obligation to protect and care for children also arises in the following articles of the CRC.
Article 3(1) of the CRC provides that:
States parties undertake to ensure the child such protection and care as is necessary for his or her wellbeing, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
Article 19(1) of the CRC provides:
States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the case of parent(s), legal guardian(s) or any other person who has the care of the child.
Article 12 of ICESCR provides for a right to health. It states, relevantly:
1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.
The Commission has received a copy of a submission to the inquest by the manager of the Mutitjulu Working Together Project, dated 20 June 2005. That submission provides detail of the nature of the problem of petrol sniffing in Mututjulu including, importantly, an analysis of its causes and proposals for addressing the problem.
The Commission understands from communications with counsel assisting the Coroner that the submission raises many of the issues which will be considered at the inquest and that more statements are being obtained that provide further detail of those issues. In particular, it is understood that material is being obtained from the NT and Commonwealth governments outlining their current strategies in the area of petrol sniffing.
The Commission submits, with respect, that such a broad approach to the inquest is both appropriate and necessary.
The approach is appropriate as it will enable the Coroner to be properly informed about the broader causes and circumstances of the deaths under investigation and so be able to make comment and, if appropriate, recommendations to the Attorney-General on matters going to public health and safety, pursuant to ss 34(2) and 35(2) of the Coroners Act.
The approach is necessary as it is only through a broad and thorough inquest that the human rights protections identified above can be given effect. The Commission submits that the right to life can only be adequately protected if systemic causes of deaths are comprehensively investigated and recommendations made that will prevent future deaths in similar circumstances.
Such an approach is also required by the CRC to ‘ensure to the maximum extent possible the survival and development of the child’. Furthermore, the obligations imposed by the CRC require all appropriate legislative, administrative, social and educational measures to be taken ensure the wellbeing of children and their protection from all forms of harm. Similarly, the right to health contained in ICESCR requires the taking of positive steps, such as ensuring access to medical services, to achieve the full realization of that right.
The Commission submits that these human rights obligations can only be adequately met if systemic problems relating to the deaths are fully investigated, enabling recommendations to be made as to the measures that may be taken to avoid future deaths and lesser forms of harm.
The Commission therefore submits that the Coroner should continue to seek and receive material that will enable the underlying social causes of the present deaths to be adequately investigated and understood. While it may be that the issues are substantially similar for the Mutitjulu and Willowra communities, the Commission would encourage the Coroner to seek information similar to that provided for Mutitjulu for Willowra to ensure that any needs specific to that community can be addressed.
The Commission notes that the September 2002 inquest by the South Australian Coroner into the deaths of Kunmanara Ken, Kunmanara Hunt and Kunmanara Thompson provided a comprehensive analysis of issues relating to petrol sniffing in the Anangu Pitjantjatjara lands and other Aboriginal communities in Central Australia. The Coroner made a range of detailed findings and recommendations.6
In September 1998, the Northern Territory Coroner handed down his findings following an inquest into the death of a child from petrol sniffing, which included a recommendation relating to rehabilitation facilities for petrol sniffers in Alice Springs.
The Commission submits that it may be appropriate for the Coroner in the present inquest to review the findings and recommendations of those inquests and consider the extent to which progress has been made in dealing with the problem of petrol sniffing in Central Australian Aboriginal communities.7
The Commission also submits that in conducting the inquest, it is appropriate to seek to ensure that Indigenous people are involved in the process of identifying matters that might be recommended by the Coroner to address substance abuse and enhance community primary health care education. The Commission further submits that, in formulating any such recommendations, it would be appropriate to consider how Indigenous people might be involved in their implementation. Such an approach would be consistent with the right to self-determination (see, for example, article 1(1) of ICESCR which provides ‘[a]ll peoples have the right of self-determination’).
Annexure A to these submissions is chapter 4 of the Social Justice Commissioner’s 2003 Social Justice Report which examines the 2002 recommendations of the South Australian Coroner and their implementation in the year following their release, to assist the Coroner in the present matter.