Indigenous Deaths in Custody: Part D - Implementing the Recommendations

SJC Recommendation

63. Commonwealth, State and Territory Attorneys General Departments move immediately to enact recommendations appropriate for legislative implementation. The Commonwealth Law Reform Commission should take a lead to co-ordinate the drafting of either model state and territory legislation or model uniform legislation which complies with the recommendations of the Royal Commission into Aboriginal Deaths in Custody.

SJC Recommendation

64. Aboriginal Justice Advisory Committees in the States and Territories, as well as the National Aboriginal Justice Advisory Committee, be given the research support they need to provide adequate Indigenous input into the review and drafting of state criminal laws, and at the same time participate in the process of preparing a Criminal Code for the Commonwealth.

SJC Recommendation

65. State Governments and Police Services should accept liability for deliberate acts of violence by police through legislation which specifically extends vicarious liability to assaults by police officers.

66. State and territory Law Reform Commissions review the appropriateness of legal barriers to civil actions against police and prisons.

SJC Recommendation

67. The New South Wales Government immediately re-introduce victims compensation for prisoners criminally injured while incarcerated in New South Wales prisons.

2.j Ex Gratia Payments

Recommendation 4 stated that governments should not take the point that a statute of limitations means an action is time barred, and that governments should negotiate settlements with parties in cases involving Aboriginal deaths in custody where possible. In the case of deaths in custody, this would involve ex gratia payments to family members of the deceased.

Although the Western Australian government supported this recommendation, the time bar cannot be waived in that state. This sudden death limitation period is unlike the provisions in other states such as New South Wales. The government has indicated that it will not consider claims for compensation by families who are outside the time limits set by the Limitation Act, the Crown Suits Act and the Fatal Accidents Act by making ex gratia payments. Legislative reform is needed to change the absolute terms of the Limitation Act. The Law Reform Commission of Western Australia recommended in 1982 that legislation be amended to provide that the basic limitation periods should not apply where a court determines that, in all the circumstances, it is just that it not do so. 119

An example of the failure to implement recommendation 4 is the case of the death of Nita Blankett in 1982, a case examined by the Royal Commission. The Western Australian Attorney General refused in June 1996 to approve an ex gratia payment to the children of the deceased for a headstone for their mother's grave.120 Prison officers refused to provide asthma medication to the deceased prior to her death. The case is statute barred, so the family has no legal remedy against the Western Australian Government.

The Northern Territory Government has been much more amenable to settling claims by making ex gratia payments.

2.k Stay of Criminal Proceedings for Breach of the Right to a Fair Trial

A judge of the High Court stated in a recent case that the right to a fair trial was part of the Australian legal system.118-2 The right is also recognised in the International Covenant on Civil and Political Rights, by which Australia is bound.119-2

There is a strong argument that simultaneous dramatic reductions in resources allocated to the Aboriginal Legal Services and Legal Aid Commissions may mean that the availability of legal representation for Aboriginal people will fall below the minimum standard and breach this right. If so, an application can be made to stay proceedings until the defendant obtains adequate representation. The Royal Commission recognised the vital role of legal services in recommendations 90-91 and 105-108.

3. Enhancing the Use of Existing Structures

Even where recommendations do not necessarily have direct implications as to the lawfulness of custodial behaviour, it is possible to access existing structures which may provide remedies where behaviour is in breach of the recommendations and is improper, unjust, oppressive or discriminatory. This part looks at the Offices of the Ombudsman in the various jurisdictions, coroners, Aboriginal Justice Advisory Committees, visiting justices who hear charges against prisoners and Aboriginal Legal Services. Possible expansion of their respective roles is considered.

3.a Ombudsman

An Office of the Ombudsman or its equivalent exists at the Commonwealth level and in each state and territory. These bodies are in a unique position to review the action of government departments, statutory authorities and local governments. They are empowered to investigate a wider range of administrative actions than any other administrative or judicial review mechanism, although the actions of courts, ministers, Cabinets and Coroners are excluded from their jurisdiction. This section will briefly address the potential for scrutiny by the Ombudsman of compliance with Royal Commission recommendations.

The Ombudsman can investigate and report to the relevant department and minister and recommend that the department in question review its arrangements. If its recommendations are not implemented a report may be made to parliament. The most effective sanction is the use of adverse publicity through the media or annual reports. In some jurisdictions the Ombudsman has the power to make recommendations for ex gratia payments of compensation, which is most significant in light of the unavailability of damages at common law for administrative error.

i. Commonwealth

About $400 million of Commonwealth money over five years was allocated to the implementation of Royal Commission recommendations. Much of it was destined for use in Commonwealth funded projects administered by state and territory criminal justice agencies. Where this money has not been 'acquitted' or appropriately applied to the project in question, because of the manner in which the Commonwealth department structured the grant, or because monitoring was inadequate, a complaint may lie to the Commonwealth Ombudsman.120-2

The Commonwealth Office of Audit is another body which can potentially trace Royal Commission funds, much of which went to state governments to hire staff and run programmes, and much of which has not been accounted for in detail.121 The audit office has increasingly moved towards qualitative rather than purely financial audits, and could assess the extent to which the outcomes intended by the recommendations have been achieved.

ii. States and Territories

The Ombudsman is especially important in examining the implementation of recommendations that are a matter of state responsibility. As justice matters are primarily state issues, the potential role is a significant one. Where funds allocated to the implementation of recommendations have not been used for the intended purpose, or have been ineffectively employed, the Ombudsman in a state or territory can investigate the state agency.

The state Audit Offices also have a role in assessing the efficiency of government programs and expenditures. There has been a recent shift in the approach taken by the Auditors-General towards ensuring not only that dollars have been spent, but also that outcomes have been achieved. These Offices have not addressed the issue of expenditure of moneys from the Royal Commission into Deaths in Custody to date, but it would be within their power to do so. They would certainly be able to make a valuable contribution.

iii. Police

The Offices of the Ombudsman in Victoria and New South Wales, Parliamentary Commissioner in Western Australia and Tasmania, the Criminal Justice Commission in Queensland, and the Police Complaints Authority in South Australia have a crucial role in monitoring Royal Commission recommendations about policing and custodial health and safety procedures.

Police complaints, which are confidential and thus not accessible to other monitoring bodies, may be useful sources of information for monitoring these recommendations. For this reason alone the Ombudsman or equivalent should have a greater role in monitoring Royal Commission recommendations. The Ombudsman can scrutinise departmental procedures as well as react to individual complaints about misconduct. In Queensland the Criminal Justice Commission has a statutory responsibility to oversee the reform of the police service.122

The individual complaints function is also very important. Recommendation 226 was specifically directed to the Offices of the Ombudsman and the manner in which they may oversee investigations into police misconduct. The Royal Commission noted that Aboriginal people felt alienated from such complaints mechanisms, and recommended reforms to ensure their independence from police and enhanced access for Aboriginal people.123 Recommendation 60 also specifically involves the Office of the Ombudsman, which acts on complaints where police have used rough handling or offensive behaviour in dealing with Aboriginal people.

Some progress has been made, although police still investigate police in all jurisdictions, in almost all cases, at first instance. Complaints against police are initially investigated internally, and the Ombudsman has a 'reinvestigatory' role.124 The initial internal investigation may be reviewed, and if the Ombudsman is not satisfied with the conduct of an investigation or its outcomes, it may conduct its own investigation. The Ombudsman or equivalent has a supervisory role from the outset in addition to the power to reinvestigate a complaint.125 The Ombudsman can investigate complaints itself in most jurisdictions for various reasons specified by statute. Under a Bill before the NSW Parliament, the Ombudsman in NSW is to be granted a power to investigate police on its own initiative where there has been no formal complaint.

The Wood Royal Commission into Police Corruption in NSW recommended in its interim report that there should be an Aboriginal Complaints Unit within the Office of the Ombudsman in NSW, and the Unit has recently been established. In Tasmania the Ombudsman has primary jurisdiction in relation to complaints against police, but generally the complainant must first take a complaint to the Police Internal Investigations Unit.126

Indications from Western Australia are that police are not adequately accountable through the operations of the Ombudsman in their dealings with Aboriginal people.127 The Aboriginal Legal Service reports that the Police Commissioner has refused to comply with a recommendation by the Ombudsman that a matter be referred to the DPP for criminal charges.128 It has called for an independent body which hears complaints and has a power to award compensation and refer matters to the DPP for prosecution.

iv. Prisons and Corrections Health Services

The Offices of the Ombudsman also have a role where there have been breaches of departmental guidelines in other custodial agencies, such as Departments of Corrective Services and Corrections Health Services. The staff of the Ombudsman can play a very important role in shaping departmental policies and ensuring compliance with guidelines.129 Because the Ombudsman can recommend changes to policy, and does not have to establish that illegality is involved, the Ombudsman can potentially play a very valuable role in assisting a state AJAC or Aboriginal Legal Services in applying pressure for the implementation of recommendations of the Royal Commission in prisons. The Ombudsman in each jurisdiction is in a unique position to gauge the extent of implementation of Royal Commission recommendations. The Ombudsman has 24 hour access to the prisons. The Office receives complaints from prisoners. These complaints provide extremely valuable material for monitoring the implementation of Royal Commission recommendations.

A very impressive initiative has commenced in South Australia, where a senior Aboriginal man works from the Department of State Aboriginal Affairs as an Ombudsman.130 His role encompasses prison and police issues. He was instrumental in resolving the problems which resulted in riots at Yatala prison in 1996, and is respected by both Aboriginal and non-Aboriginal people within the prison system. He has an informal right of access to the prisons. This initiative should be seen as a model for other states.

The South Australian Office of the Ombudsman has unfortunately disputed this person's right to use the title 'Ombudsman,' and the term Aboriginal Advocate is now used. This is unfortunate, as prison officials are familiar with the term Ombudsman and with complying with the requests of a person in such a position. It appears that the South Australian Office of the Ombudsman may be hiring an Aboriginal worker to handle complaints from Aboriginal people.

3.b The Existing and Potential Role of Coroners

Coroners traditionally looked only for evidence of criminal misconduct, and had the power to commit for trial. Coroners made findings as to whether there was adequate evidence to support charges, such as homicide or criminal negligence, against any individual. Coroners have by and large seen their role shift in the past decades to an examination of procedures in order that further deaths may be prevented. The legacy of the limited traditional role, a 'blame model' (as opposed to a preventative model of proceeding with an inquest) can still limit the scope of coronial investigations in Australia. For instance, in only one Western Australian death in custody inquest in was a preventative recommendation made (see profile 57WA). While there is no convincing reason Coroners should disregard personal fault, and while doing so is absurd in some contexts, a pure blame model does not serve the public interest which lies in maintaining faith in the institutions of the police and the prisons.131

New South Wales, Queensland and Tasmania are the only states in which coroners retain the power to commit for trial. In Western Australia, the coroner can make a finding that a criminal act has occurred. In South Australia, the State Coroner is expressly forbidden from making any finding, or suggestion, of criminal or civil liability.132In the inquests which this Report addressed, the Coroners made findings of personal fault in profiles 62NSW, 67NSW, and 8VIC. The failure to do so was conspicuous in 10NSW. Referrals to investigative bodies were made in profiles 38QLD and 41QLD.

In cases of deaths in custody, they have tended to look for either direct illegal acts contributing to a death or negligent failures to do what is required to keep a detainee safe. Coroners in New South Wales, Queensland or Tasmania have not found sufficient prima facie evidence of criminal negligence in any of the post-May 1989 inquests concluded to date.

Although the civil burden of proof is applied, the balance of probabilities, the standard varies according to the gravity of the allegations made 133 and evidence must be solid before a coroner will recommend that criminal charges are laid. Post-death investigations of poor quality reduce the likelihood that evidence will be of a sufficient quality to support a recommendation that criminal charges be laid.

The final report of the Royal Commission into Aboriginal Deaths in Custody supported the findings of Commissioner Muirhead in his Interim Report that a State Coroner should have 'terms and conditions not less than those of a District Court Judge.'134 These recommendations have never been implemented and, it might be suggested that the office of State Coroner has been reduced in status in recent years in some Australian jurisdictions. For example, in some cases the State Coroner is a magistrate who has merely been designated 'State Coroner' by administrative act of the Chief Magistrate. Whereas the previous South Australian State Coroner held tenure as State Coroner until the age of 70 years (consistent with a District Court Judge), the present State Coroner has tenure for a term of only ten years. In some jurisdictions, the State Coroner has tenure for only three years. This puts the State Coroner in an invidious position since the renewal of his or her tenure in the position is at the discretion of the executive government. This is in contrast to the position of the judiciary. The decisions of judicial officers do not as consistently deal with matters which are immediately sensitive to the government which appointed them. Coroners must be tenured to ensure their independence and the perception that they are able, fearlessly, to criticise the laws, policies and practices of any government.

Many of the Royal Commission's recommendations merely restate what is required by law. The case R v Taktak sets out the law relating to criminal negligence when a person assumes a duty of care by removing all other avenues of help, and then fails to provide the necessities of life.135 A Queensland statutory provision summarises this (criminal standard) duty of care imposed by the common law:136

It is the duty of every person having charge of another who is unable by reason of detention or any other cause, to withdraw himself from such charge, and who is unable to provide himself with the necessaries of life, to provide for that person the necessaries of life: and he is held to have caused any consequences which result to the life or health of the other person by reason of any omission to perform that duty.137

Medical attention may be a necessity of life.138 It appears that gross negligence is required in order to commence a prosecution for criminal negligence.139 There must be some appreciation by the negligent custodian of the risk.140 The omission must be conscious and voluntary, without intention of causing death, but in circumstances which involve such a great falling short of the standard of care which a reasonable person would exercise, and which involves such a high risk that death would follow, that the omission merits criminal punishment.141

A coroner's finding that there is insufficient evidence to lay criminal charges does not curtail the possibility of suing for damages in a civil action.

The case profiles reveal that existing investigations by coroners throughout Australia could be improved and their recommendations broadened to reduce Aboriginal incarceration rates and deaths in custody. The profiles indicate that, while some coronial inquiries have been conducted very well, many coronial systems are not operating to reflect either the recommendations of the Royal Commission or the case law governing their aims.

The 'special value' of a Coroner's inquest prison and police custody deaths has been stated as follows:

Where the death in custody occurred where a deceased was in a mental institution or a gaol or was in the custody of the police the Coroner's Inquest had a special value, because its existence tended to maintain public confidence in those institutions.'142

In these cases one of the purposes of an inquiry is the possibility of taking steps to prevent the recurrence of particular deaths. The Royal Commission recommendations reflect this statement of the common law. The Queensland Regional Report suggested that the coroner should fully investigate whether there was any systemic failure of any relevant prison/watch-house supervision procedure or of any police arrest/detention procedure.143

The Queensland Government has not yet passed reforming coronial legislation, and will soon be the only state without a State Coroner, and the only state in which justices of the peace conduct coronial inquiries.

The Government has commissioned a report on 'Reforming Coronial Court Proceedings for Enquiries into Aboriginal Deaths in Custody.'144 The stated aim of the report is to examine the possibility of informal mechanisms to make the coronial process more fast, flexible, and fair when dealing with Aboriginal deaths in custody. While such outcomes are desirable, it is disturbing if informal measures are to take the place of reformed coronial legislation.

There are also concerns that informal justice may merely increase the power imbalance between Aboriginal people and custodial authorities. This may be a case of an alternative strategy being used to avoid the more desirable primary strategy.

The Royal Commission recommended the expansion of coronial powers in line with the Victorian Coroners Act. Coroners in most states now operate with broader powers, although as noted reforming legislation has still not been passed in Queensland. Coroners can make recommendations in all jurisdictions; in Queensland they are not a part of the findings. However, investigations and recommendations are often limited to the specific facts of the death, disregarding any deficient systematic practices identified during the enquiry, and focussing on health matters to the exclusion of important issues concerning the administration of justice. They are also limited by the quality of the police investigation, as the chapter on coronial recommendations indicates. Finally, they are limited in states such as Queensland and South Australia to findings which do not suggest criminal or civil liability.145

The remedy is therefore to expand coronial powers in relation to deaths in custody. A statutory duty should be placed on coroners to ensure that they address all relevant matters, including the Royal Commission recommendations where appropriate. They should also be empowered to make findings about deficient or negligent practices and processes which contribute to a death, as was recommended by the Queensland Criminal Justice Commission after it investigated the death of a woman in the Brisbane Watch-house in 1992 (38QLD).

Another strategy shows great promise. A national coronial database is being established in Victoria. The initiative is welcome because it will allow the valuable findings and recommendations made by coroners to feed into government policy in a more systematic way.146 This is of vital importance and may promote the genuine development of national standards based on best practices drawn from all jurisdictions.

3.c Aboriginal Justice Advisory Committees

Aboriginal Justice Advisory Committees have now been established in each state as a result of recommendation 3 of the Royal Commission. The South Australian Aboriginal Justice Advocacy Committee has probably been the most successful model to date, relying upon extensive community consultations and producing research and monitoring of an extremely high standard. The regional structure of the Western Australian Aboriginal Justice Committee has also achieved some success. Unfortunately, in most states the funding and research support has been inadequate, and staff have felt that they lack independence from government. Nevertheless, almost all AJACs have produced valuable reports, and have been a vital community link in the monitoring and implementation process. The National Aboriginal Justice Advisory Committee was established in 1995.

These structures will play an important part in the National Summit on the Royal Commission into Aboriginal Deaths in Custody which is proposed to be convened by the Commonwealth Government in 1997. However, they need better resources so that their research and policy input can be effective. Without resources, they are merely window dressing.

3.d Visiting Justices

Cases 13QLD and 14QLD involve Aboriginal prisoners who had been charged with numerous offences under the Prisons Act while in prison. It was alleged by the local Aboriginal Legal Service that disciplinary charges were being unfairly laid by prison officers and that privileges were frequently denied for petty offences. The two deaths illustrate the importance of the independent determination of charges for alleged misbehaviour while incarcerated.

Recommendation 180 provides that prisoners charged with offences which may increase their prison terms should be dealt with by visiting justices, who are magistrates, in public courts. Only Western Australia and South Australia did not state their support for this recommendation.147

In New South Wales, the governor has wide powers to do anything required for the good order and discipline of a prison. Formerly the Governor could not use this power to by-pass the visiting justice.148 The courts allowed a right of appeal to the District Court from a decision of a visiting justice.149 Unfortunately, the Prisons Act has been gradually amended, giving Governors the power to impose penalties for a range of offences. Visiting justices are now rarely used in New South Wales, and disputes are less likely to be handled in a detached, dispassionate manner.

It is disturbing that visiting justices are being phased out in New South Wales. All states must restore the role of visiting justices. It is crucial that decisions on prison discipline are made by independent officials who do not have an interest in the outcome of a charge.

In Western Australia, justices of the peace hear prison charges which can result in the extension of a sentence. This is a breach of the recommendations of the Royal Commission.

3.e Aboriginal Legal Services

The Royal Commission recognised the role played by Aboriginal Legal Services ('ALS') in many of its recommendations, most notably recommendations 89-91 in relation to bail and 105-108 in relation to the provision of legal representation and policy activities. Recommendation 105 states:

That in providing funding to Aboriginal Legal Services governments should recognize that Aboriginal Legal Services have a wider role to perform that their immediate task of ensuring the representation and provision of legal advice to Aboriginal persons. The role of the Aboriginal Legal Services includes investigation

and research into areas of law reform in both criminal and civil fields which relate to the involvement of Aboriginal people in the system of justice in Australia. In fulfilling this role Aboriginal Legal Services require access to, and the ability to conduct, research.

Aboriginal Legal Services have recently been the subject of review, and the Minister for Aboriginal Affairs made sweeping statements indicating that dishonest use of resources characterises legal services.150 The need to remedy unsatisfactory practices or misconduct in the operation of some legal services has been recognised by many, including the former Royal Commissioner Mr Hal Wootten.151 There is one profile in this report (1SA) in which a lack of organisation prevented a young Aboriginal man from having legal representation at a bail hearing before two justices of the peace (themselves relatively unversed in the law). The transcript in the inquest in the profile 51NSW indicated poor organisation and argument on the part of counsel for the Legal Service. In 63NSW, the Coroner communicated his displeasure at the frequent lack of preparedness of solicitors working for the ALS. These examples hardly justify across the board cuts to the already tight resources available to these organisations, which will make it even more difficult for them to provide legal representation and related services.

An illustration can be drawn from the case of the New South Wales ALS which is proposed to be defunded on 30 November 1996. Allegations made in the cover story on Channel Nine's Sunday Program on 4 April 1996 indicated corruption within it and other legal services. Unfortunately, while exposing corruption is commendable in the public interest, allegations about the representation of prisoners were inaccurate. The claim that ALS solicitors had not visited remand prisoners at Long Bay Correctional Centre for four years was incorrect. The 19 year old prisoner who spoke out against the legal service was in fact well represented, and on the evidence was lucky to beat his charge. That is not to say the service was well managed.

As regards problems with operational matters, accountability demands that an appropriate investigation should take place, and any necessary remedial action should be undertaken in a rigorous and fair way (based on proven misconduct). This Office does not have access to the evidence to make any definitive statements on what wilful misconduct, if any, has occurred, nor is this report the appropriate forum. However, the positive contribution of the NSW ALS has not been noted in the debate, and completeness demands some brief observations.

It is important to note that the NSW ALS has successfully run very important cases central to the Royal Commission recommendations, including recent cases which led

to: (a) a settlement in favour of the family of a woman who died in custody in a police cell in 1992 (39NSW); (b) the introduction of condoms in NSW prisons; and (c) an initiative to address the alleged discriminatory segregation of Aboriginal prisoners at Long Bay Gaol. Its solicitors presently do a very good job on extremely tight resources. In regional areas, for example, one solicitor has had to service up to 16 courts, as well as a number of prisons and juvenile justice institutions.

Solicitors have pointed out that expectations are unrealistic on funding provided. Recommendation 121 was that the ALS must be contacted whenever an Aboriginal person was detained in custody. The ALS's have never had the resources to enable constant attendance at the large number of police stations in the well populated regions. If police want to detain a suspect for questioning without any question of ALS involvement they can, and do, take the suspect into custody late at night.

There is no blue ribbon alternative available to Aboriginal clients in the form of the Legal Aid Commissions. These bodies are also over-stretched. They too cannot provide an adequate level of representation to clients in criminal matters. As with the ALS, the blame for inadequate funding levels lies with Australian governments.

Current initiatives of the Federal Government in practice undermine Aboriginal Legal Services and access to justice by Aboriginal people. These include:

(i) An initiative by ATSIC to require Aboriginal Legal Services to operate along similar lines to Legal Aid Commissions, restricting the work the Legal Services can do, and applying means tests;

(ii) A National Commission of Audit Report released in June 1996 which recommended that Aboriginal Legal Services and Legal Aid Commissions be amalgamated, with legal advice provided by specific Aboriginal Community Legal Centres. Accountability for Aboriginal Community Legal Centres would be through Legal Aid Commissions to the Legal and Family Services Unit in the Attorney-General's Department. The report completely ignores issues of Aboriginal self-determination; and

(iii) Cuts to funding. For example, ATSIC had already cut funds to the Western Australian Aboriginal Legal Service by 10 per cent by June 1996, prior to the release of the August budget.

The NSW Attorney-General has warned that Indigenous defendants would be left in a vacuum if the federal government carries out threats to strip legal services of funding.152 It now appears that the NSW ALS will be regionalised. For Sydney, there are indications that this will mean halving the number of solicitors, who may have almost no secretarial or computer support, and an end to the valuable work this chapter anticipates for them - civil actions to introduce proper accountability.

A comparison of the workload of the Northern Australian Aboriginal Legal Aid Service (NAALAS) and the Legal Aid Commission in Darwin reveals that NAALAS currently provides a comparable amount of legal representation on half the funding of its counterpart. The Legal Service has a network of interpreters with whom the Legal Aid Commission has little contact. Unlike the Legal Aid Commission NAALAS defends clients facing driving charges, primarily because of the disproportionate risk of imprisonment for these minor offenders - Aboriginal people make up approximately 60 per cent of people charged with driving offences, but 80 per cent of the total number imprisoned for driving offences in the Territory. NAALAS represents clients in remote courts at higher expense. Reviews of the legal service have consistently found that it is inadequately funded.153

The Criminal Justice Commission in Queensland has criticised legal representation on the Gulf Circuit in Queensland, based on observations in Kowanyama, Bamaga, Aurakun and Lockhart River. Legal representation was described as inadequate, with clients in effect interviewed for the first time while the court was dealing with them by a solicitor who flew in on the day of court.154 Royal Commission recommendation 108 called for resources such that adequate preparation time is available for criminal court appearances. A 1994 House of Representatives Committee report 155 made the same criticism, but treated the matter as a state responsibility. Queensland refuses to acknowledge any responsibility to provide legal services in remote areas despite the fact that Queensland criminal laws such as public drunkenness give rise to a disproportionate demand for legal services.156 Its implementation report does not even address Recommendation 108.

While problems with corruption or with the practical operational efficiency of the ALS's should be addressed, they should not be hamstrung without a better alternative being put in place at a time when Aboriginal over-representation rates in Australian prisons are escalating. The result of doing so would be to deny Aboriginal people the right to a fair trial, as guaranteed by Australia's obligation under Article 14 of the International Covenant on Civil and Political Rights, and recognised in the Australian legal system.157

4. International Avenues

It has been frequently suggested that 'a case be taken to the United Nations' to compel Australian governments to fully implement the recommendations of the Royal Commission. This section briefly considers the avenues in the international arena which may be utilised by Aboriginal organisations to secure a more comprehensive and expeditious implementation of the recommendations. These avenues are also discussed in the First Report of the Aboriginal Torres Strait Islander Social Justice Commissioner, 1993. Reference is made to a number of other guides on the subject.

There are two types of United Nations bodies concerned with human rights which are shown in Figure 12.1. They are Charter-based bodies, established by reference to the UN Charter, and treaty-based bodies which oversee international treaties on human rights.

Figure 12.1 UN Bodies in the Field of Human Rights

Adapted from S. Pritchard & N. Sharp, Communicating with the Human Rights Committee: A Guide to the Optional Protocol to the International Covenant on Civil and Political Rights, Human Rights Booklet No. 1 Australian Human Rights Information Centre, 1995. p.6.

Three of the treaty-bodies shown in Figure 1 could be directly approached concerning specific human rights violations: Human Rights Committee; Committee on the Elimination of Racial Discrimination; and Committee against Torture. The Commission on Human Rights, a charter body, could also be approached.

At the outset, it is important to make two caveats concerning the use of international avenues. First, there enforcement mechanisms for the decisions of international bodies are less effective than those in the domestic context. Nonetheless, the decisions, recommendations and comments of international bodies have a strong moral or persuasive force. The decision of the Human Rights Committee in Toonen v Australia158 provides a good example. It prompted the Commonwealth Government to pass a law protecting sexual privacy,159 despite the fact that the Committee had no power to directly force the Government to take action. Second, international bodies generally require exhaustion of domestic remedies. In other words, an aggrieved individual or group must use available means within their nation state to resolve a matter before bringing it into the international arena.

4.a Treaty Bodies

Australia is a party to the two major human rights instruments:

International Covenant on Civil and Political Rights (ICCPR); and

International Covenant on Economic, Social and Cultural Rights (ICESCR).

It is also a party to a number of more specialised international human rights instruments which include the:

Convention on the Elimination of All Forms of Racial Discrimination (CERD);

Convention against Torture and Other Cruel or Degrading Human Treatment (CAT));

Convention on the Elimination of Discrimination Against Women (CEDAW); and

Convention on the Rights of the Child (CROC).

As Figure 12.1 indicates, treaty-based committees have been established in accordance with these instruments. These committees are comprised of independent experts.

Each of the treaty committees monitors state parties' compliance with their obligations in a number of ways. First, states are obliged to submit an initial report to the relevant committees and then periodic reports at regular intervals. Aboriginal organisations can contribute to the periodic reporting process.160 Committees will generally allow non-government organisations to submit information which is contrary to that submitted by governments. The Social Justice Commissioner has previously made representations to the treaty committees on periodic reports.161 An alternative report which comments on Australia's third report to the Human Rights Committee under the International Covenant on Civil and Political Rights is currently being prepared.

Second, the committees often make general comments which seek to elaborate upon specific rights contained in the relevant treaties or address particular issues that have arisen out of the reporting process.

Third, three committees can hear complaints from individuals regarding violations of the relevant treaty:(i) Human Rights Committee; (ii) Committee on the Elimination of Racial Discrimination; and (iii) Committee against Torture.162

(i) Human Rights Committee

Australia acceded to the First Optional Protocol to the ICCPR in 1991. This allows an individual who claims that their rights under the ICCPR have been violated to complain to the Human Rights Committee. The communication must meet a number of conditions. The author (the person who makes the communication) must be an individual, a victim of a violation and subject to the jurisdiction of Australia (article 1). The communication must be in writing (article 2); domestic remedies must have been exhausted (article 2), unless these remedies are unreasonably prolonged (article 5(2); and it must not be anonymous (article 3). The Committee will not consider a matter where that same matter is being considered under another international procedure of investigation or settlement (article 5). The violation must have occurred or continued after 25 December 1991.

Toonen v Australia 163 is an example of a successful communication under the Optional Protocol to the ICCPR. Sections 122(a), (c) and 123 of the Tasmania Criminal Code criminalised various forms of consensual sexual activity between men. The author alleged that these laws violated his right to be protected from discrimination on the basis of sexual orientation (article 2(1) ICCPR), the right to privacy (article 17 ICCPR) and the right to equality before the law (Article 26 ICCPR). Despite the lack of prosecutions under these provisions for some years, the Human Rights Committee admitted the communication. This was because the author faced the threat of enforcement, and the effect of the law's continued existence on administrative practices and public opinion affected him personally.164 The Committee found that Article 17 was violated by the law as there was no reasonable argument for the State to interfere with the author's privacy. As the Committee found a violation of Article 17, it did not consider whether the law also breached Article 26.

There are a number of articles of the ICCPR which relate to Royal Commission recommendations concerning the criminal justice system: racial discrimination (article 2(1)); right to life (article 6); torture or cruel, inhuman or degrading treatment or punishment (article 7); arrest and detention (article 9); prison conditions and placement of juveniles (article 10);165 court processes (article 14); right of peaceful assembly (article 21); and equality before the law (article 26). Some of these rights are enshrined in more detail in CERD and CAT.

A communication could be made to a treaty committee regarding legislation, a government policy, an application of that legislation or policy or an action or omission by the government which breaches one of the obligations contained in the relevant instruments. In many cases, domestic remedies will be available for violations of the ICCPR such as for racial discrimination, unlawful arrest and cruel, inhuman and degrading treatment. However, this may not always be the case.

The following discussion provides two examples of possible complaints.

Example 1: Justices of the Peace, Interpreters and Legal Assistance. Court processes could be challenged under Article 14. Article 14(1) entitles:

[E]veryone to fair and public hearing by a competent, independent and impartial tribunal established by law.

The use of Justices of the Peace in courts of summary jurisdiction in Western Australia and South Australia for the determination of charges and sentencing would arguably breach the competency requirement in article 14(1). In Western Australia, Justices of the Peace only receive 20 hours of training (and this is only in the metropolitan area). By way of contrast, a magistrate receives 9 years of training (4 year law degree and 5 years in practice).166 Similarly, the failure of State and Federal Governments to provide sufficient resources for interpreters and legal representation may breach Article 14(3)(a)(f) and Article 14(3)(d).

Example 2. Inhuman Treatment in Prison. Circumstances which raise issues concerning Royal Commission recommendations on custodial health and safety and prison experience could be challenged under Article 10(1) which states:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

The Human Rights Committee has made clear that this includes not only refraining from negative acts (this would also be caught by article 7) but positive acts such as the provision of a minimum of services to satisfy basic needs (food, clothing, medical care, sanitary facilities, communication, light, opportunity to move, privacy).167 The Human Rights Committee has found that the failure to provide such services, and acts such as isolated detention and harassment breach Article 10(1).168 The availability of domestic remedies for such actions remains unclear (see discussion above).

For further information on using the Optional Protocol, see:

C. Chinkin, "Using the Optional Protocol: The Practical Issues" (1993) 3 (64) Aboriginal Law Bulletin 6-9;

S. Pritchard & N. Sharp, Communicating with the Human Rights Committee: A Guide to the Optional Protocol to the International Covenant on Civil and Political Rights, Human Rights Booklet No. 1 Australian Human Rights Information Centre, University of New South Wales, 1995;

K. Eastman, International Human Rights Remedies, Lawyers Practice Manual (NSW), chapter 15.3.

C. Caleo, "Implications of Australia's Accession to the First Optional Protocol", (1993) 4 (3) Public Law Review, 175-92; and

United Nations, Civil and Political Rights: The Human Rights Committee (Fact Sheet No 15);

United Nations, Communication Procedures (Fact Sheet No 7);

Department of Foreign Affairs and Trade, Human Rights Manual, (AGPS, Canberra, 1993).

(ii) Committee on the Elimination of All Forms of Racial Discrimination and Committee Against Torture

Individual communications can also be made to the Committee on the Elimination of All Forms of Racial Discrimination under article 14 CERD and Committee against Torture under article 22 CAT. The procedure for communications is similar to that under the Human Rights Committee.169 Under CERD, legislation, policy or actions which are racially discriminatory could be challenged - this would include all of the above examples.

Communications under CAT would have to satisfy a high threshold. Article 1(1) states that the act must cause "severe pain or suffering, whether physical or mental", must be "intentionally inflicted on a person" and is "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity". The Royal Commission found that none of the cases indicated a breach of CAT (see recommendation 333). The case of the man who died at Ross River Townsville in 1992 (43QLD) may arguably fall under this definition. However, Australia accepted the competence of the Committee to accept individual communications in 1993, which is after the occurrence of the act. In any case, domestic remedies are likely to be available.

In conclusion, there is considerable scope for international action. For many of the recommendations, domestic avenues will be more worthwhile. However, for some recommendations, a communication to the various committees may be the only remedy. For a detailed consideration of the jurisprudence of the Human Rights Committee, Committee on the Elimination of All Forms of Racial Discrimination and Committee Against Torture see:

M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, (NP Engel, Strasbourg, 1993).

McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights, Oxford, Clarendon Press, 1994;

N Rodley, The Treatment of Prisoners under International Law, (Clarendon Press, Oxford, 1987);170

M Banton, International Action Against Racial Discrimination (OUP, Oxford, 1996); and

T Meron, "The Meaning and Reach of the International Convention on the Elimination of all Forms of Racial Discrimination", (1985) 79 American Journal of International Law 283.

4.b Commission on Human Rights

In relation to complaints of a more general nature which allege violations that do not easily fall under the conventions discussed above, recourse could be made to the Commission on Human Rights.

The Economic and Social Council (ECOSOC) established a Commission on Human Rights (CHR) in 1946. This body is comprised of government representatives, and is responsible for drafting international declarations and treaties, preparing studies and dealing with communications concerning human rights violations. Subordinate to the CHR is a range of other bodies, the most important of which is the Sub-Commission on Prevention of Discrimination and Protection of Minorities.171 The Sub-Commission is an "expert body", consisting of individuals not governments.

The Commission on Human Rights has also developed two procedures to receive individual communications from individuals which concern human rights violations that are potentially open to Aboriginal organisations. The violations can be of any of the international human rights treaties, declarations of international bodies (such as the Universal Declaration of Human Rights), international customary law or circumstances not currently covered by international law.

The first is the "1235 procedure"172. This allows the CHR and the Sub-Commission to examine information relevant to gross violations of human rights and fundamental freedoms in all countries. The Commission could, in appropriate cases, "make thorough study of situations which reveal a consistent pattern of violations of human rights", report and make recommendations to ECOSOC.

The '1503 procedure' gives the CHR authority to "examine communications, together with the replies of governments, if any, which appear to reveal a consistent pattern of gross violation of human rights".173 Individuals or groups may communicate with the Commission. These communications are initially examined by the Sub-Commission. Each communication must describe the facts, the purpose of the petition and the rights that have been violated. However, communications will not be considered unless they indicate a gross pattern of violation; are based on reliable information; and are not anonymous. Furthermore, communications will only be admitted for consideration if domestic remedies have been exhausted, unless it can be shown that solutions at the national level would be ineffective or would extend over an unreasonable length of time.

Admitted communications are then passed to the CHR for consideration. The Commission's discussion occurs behind closed doors. The Commission may dismiss the communication, keep the situation under review, or refer the matter to ECOSOC, which may make public recommendations. The CHR also appoints special rapporteurs or working groups on an ad hoc basis to examine a human rights situation or a specific right in the relevant state. Indeed, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Bacre Waly Ndiaye, has become involved in Aboriginal deaths in custody. After reports by Aboriginal organisations and Amnesty International, the Special Rapporteur has asked the Australian Government to send responses to ten questions to the Centre for Human Rights in Geneva by 1 November 1996. The scrutiny of a Special Rapporteur is timely.

Australia could be subjected to international scrutiny of its actions whereby Aboriginal deaths in custody could be a permanent agenda item through the 1235 procedure. However, use of the 1503 procedure may be more problematic, considering the thousands of communications that are received by the CHR.

The following organisations can be contacted with respect to all of the international bodies discussed above:

5. Establishing New Structures for Implementation and Monitoring

5.a National Summit

The present Commonwealth Government promised as part of its 1996 election platform that it would hold a national summit on the issue of Aboriginal deaths in custody. The details of the summit, proposed to be held in April 1997, are not finalised. Genuine Indigenous participation will be critical to the value and outcomes of the summit.

One focus for the summit could be the recommendations of Justice Under Scrutiny, the Report of the Inquiry into the Implementation by Governments of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody, published by the House of Representatives Standing Committee into Aboriginal and Torres Strait Islander Affairs in 1994. The recommendations have mostly been referred to ministerial councils. The report refutes claims that many Royal Commission recommendations have been implemented, and represents one of the most important recent overviews of implementation of the Royal Commission recommendations.

The 1994 recommendations would require updating. Recent reports of the Aboriginal Justice Advisory Committees and the Queensland Overview Committee should be addressed.174

The recent findings and recommendations of this report should be addressed, as should issues raised by Cunneen and McDonald in their 1996 report on the diversion of Aboriginal people from custody.

It has been suggested that the summit would focus on juvenile justice. The Royal Commission found that incarceration in juvenile justice institutions often leads to imprisonment as an adult. Recommendations of recent reports such as Blagg and Wilkie's Young People and Police Powers should provide a valuable reference point. Given the demographics of the Indigenous population and juvenile rates of arrest and detention, it is imperative to break the cycle before another generation become the statistics of deaths in custody.

5.b National Corrections Agency

There have been recent calls for an agency to enforce national standards in the six main types of custodial institutions: prisons; police cells; juvenile detention centres; immigration detention centres; military prisons; and secure facilities in psychiatric hospitals for persons suffering from serious mental illnesses who may or may not have been accused of committing criminal offences.175 The Commonwealth Government is responsible for two types of custody: immigration detention centres and military prisons. The suggestion is that the principal role for the Commonwealth Government should lie in:

(i) information gathering and dissemination;

(ii) the co-ordination and facilitation of relevant international activities; and

(iii) in providing assistance with the monitoring of custodial standards.

The UN Human Rights Committee could provide a good model for the structure of this body. The states and territories would report periodically to the agency, which would scrutinise the reports for accuracy and gauge conformity with standards. Australia has guidelines based on the Standard Minimum Rules for the Treatment of Prisoners, known as the Standard Guidelines for Corrections in Australia.176

Recommendation 328 called for adequate resources to be made available to translate the Standard Guidelines for Corrections in Australia into practice. However, 'without provision for the reporting of compliance or independent assessment it is doubtful that the guidelines have any impact on Australian correctional policy or practice.'177 Australia claimed compliance with specific provisions for the treatment of detainees in the International Covenant on Civil and Political Rights when it reported to the UN Human Rights Committee in 1995. The guidelines call for humane treatment of prisoners, but commentators have correctly pointed out that 'Currently we don't know who they are, where they are, or why they are in custody, but we are quite sure they are treated humanely!'178

Endnotes

119 see Law Reform Commission of Western Australia Report on Limitation and Notices of Actions, 1982, p96.

1. Giles, D., 'Black Death Sparks Fears for Inmates', Sunday Mail, 3 April 1994.

2. Section 51 (xxvi)

3. Section 51 (xxix)

4. Martin, M., and Newby, L., 'Aborigines in Summary Courts in Western Australia: A Regional Study - Preliminary Report on Selected Findings' in Swinton, B., (ed) Aborigines and Criminal Justice, Australian Institute of Criminology, Canberra, 1984; Commissioner O'Dea Royal Commission into Aboriginal Deaths in Custody: Regional Report of Inquiry into Individual Deaths in Western Australia, AGPS, 1991, p365-568.

5. Commissioner Dodon Royal Commission into Aboriginal Deaths in Custody: Regional Report of Inquiry into Underlying Issues in Western Australia, AGPS 1991 p 111-141, 179-180.

6. Justices of the Peace Review Committee (Chaired by Mr P Thobaven, SM), Report on Justices of the Peace and Commissioners for Declarations in WA, Ministry of Justice (WA), June 1995.

7. 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, 1996, pp.80-82 ('Striving for Justice').

8. Flynn v R (1949) 79 CLR 1 at 8 per Dixon J.

9. Cowell v Corrective Services Commission of NSW (1988) 13 NSWLR 714

10. Recommendations 6-36 and Recommendations 92-121 provide further examples.

11. 'Striving for Justice', op. cit., at p.41-42.

12. For an example of a statutory duty to ensure safety of prisoners, see s 13(1)Corrective Services Act 1988 (Qld).

13. R v Hull Visitors; Ex parte St Germain [1979] QB 425; Raymond v Honey [1983] AC 1; Leech v Deputy Governor of Parkhurst Prison [1988] AC 533.

14. Dugan v Mirror Newspapers (1978) CLR.

15. Felons (Criminal Proceedings) Act 1981 (NSW); Criminal Law Consolidation Act Amendment 1984 (SA); in Queensland and Western Australia a prisoner must obtain the consent of the Public Trustee before commencing a civil action.

16. eg Cowell v Corrective Services Commission (1988) 13 NSWLR 714.

17. Ibid, at 740-741 per Clarke JA.

18. per Clarke JA at 741 citing Enever v R (1906) 3 CLR 969.

19. There is an equivalent provision in s62 of the Corrective Services (Administration) Act 1988 (Qld).

20. Cowell v Corrective Services Commission (1988) 13 NSWLR 714. at 739 per Clarke JA, Priestly JA agreeing; cf McHugh JA at 724.

21. Ibid, per McHugh JA at 724.

22. Freckleton, I., 'Suing the Police: The Moral of the Disappointing Morsel', Alternative Law Joural, Vol.21, No. 4, August 1996 p173.

23. Prior v New South Wales (Unreported, Narrandra DCt, No 4 of 1994).

24. Howard v Jarvis (1957) 98 CLR 177; Quinn v Hill [1957] ALR 1127; Hall v Whatmore [1961] VR 225; Hague v Deputy Governor of Parkhurst Prison; Weldon v Home Office [1990] 3 All ER 733 Ellis v Home Office [1953] 2 All ER 149 at 154 per Singleton LJ and 160 per Jenkins LJ.

25. Ellis v Home Office (1953) 2 QB 135; Masic v Godbold and State of Western Australia (1984) 2 SR (WA) 220 and Howard v Jarvis (1957) 98 CLR 177.

26. Quayle v NSW (1995) Aust Tort Reports 81-367.

27. Ibid.

28. National Report, Vol.1, Chapter 3, p.79.

29. For an account of vicarious liability for the acts of employees see Balkin and Davis, Law of Torts, Butterworths, Sydney, 1991, p.791.

30. Unreported, District Court of NSW, DCJ Hosking, 12 September 1995

31. 39NSW, 43QLD, 67NSW and 33WA.

32. Collis, B QC , ''Tort and Punishment' - Exemplary Damages: The Australian Experience', Australian Law Journal (1996) Vol.70 No.1 p.47.

33. See Mullany, N., 'Recovery for Psychiatric Injury by Report: Another Small Step Forward', Tort Law Review 4 (2) July 1996, p 96-101.

34. (1995) Aust Torts Reports 81-367.

35. see Royal Commission Aboriginal Deths in Custody, Report of Inquiry into the Death of Mark Quayle.

36. See case profiles 8VIC, 36VIC.

37. Jaensch v Coffey 155 (CLR) 547 at 556, per Brennan J.

38. Jaensch v Coffey 155 (CLR) 547 at 555 per Gibbs CJ (at 556), per Murphy J and (at 608-609) per Deane J.

39. Coates v GIO (1995) 36 NSWLR 1 at 7-8, per Kirby P and per Clarke JA at 22 (obiter)

40. Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

41. Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s4(1); Law Reform (Miscellaneous Provisions) Act 1955 (ACT) ss 23 and 24; Law Reform (Miscellaneous Provisions) Act 1956 (NT) ss 23-5.

42. see Balkan and Davis, The Law of Torts, Butterworths, 1991, at p.257.

43. Coates v GIO (1995) 36 NSWLR 1 at 7-8, per Kirby P and per Clarke JA at 22 (obiter).

44. see Royal Commission Aboriginal Deaths in Custody, Report into the Death of Lloyd Boney, 1991.

45. Howard v Jarvis (1957) 98 CLR 177

46. Recommendations 137 and 138.

47. Kirkham v Chief Constable of the Greater Manchester Police [1990] 3 All ER 246 (CA).

48. Knight v Home Office [1990] 3 All ER 237 (QBD).

49. Ibid, at 240.

50. Funk v Clapp (1990) 68 DLR (4th) 229 (BCCA).

51. Marshall v Osmond [1983] 2 All ER 225 (CA).

52. L v Commonwealth of Australia (1976 ) 10 ALR 269; Dixon v The State of Western Australia [1974] WAR 65.

53. Ibid. at p.72.

54. Hague v Deputy Governor of Parkhurst Prison; Weldon v Home Office [1990] 3 All ER 733 at 746 per Bridge LJ.

55. Quinn v Hill [1957] VR 439 at 455 per Smith J; Hall v Whatmore [1961] VR 225.

56. As well as the Common Law, the Workers' Compensation Act 1991 (Qld) and the Workplace Health and Safety Act 1989 (Qld) (now replaced by a new Act) are relevant.

57. Weldon v Home Office [1990] 3 All ER 733 (HL).

58. Zalewski v Turcarolo (1994) Aust Torts Rep 81-820.

59. Nunn v Hippi (Unreported, NSW(SC) Herron J, 5 May 1995).

60. Enever v R (1906) 3 CLR 969.

61. Law Reform (Vicarious Liability) Act 1983 (NSW); Crown Proceedings Act 1972 (SA), s10(2) (see South Australia v Kubicki (1987) 46 SASR 282).

62. Police Act 1937 (Qld), s69; Police Administration Act 1979 (NT), s163; Police Regulation Act 1952 (SA), s51A.

63. Prior v New South Wales (Unreported, Narrandera DCt No 4 of 1994).

64. As occurred in Nunn v Hippi (Unreported, NSW(SC) Herron J, 5 May 1995).

65. Henry v Thompson (1989) Aust Torts Rep 80-225 at 68,826.

66. Kumar v Minister for Immigration (1991) 100 ALR 439.

67. Todd, S., 'Tort Actions by Prisoners Against Their Custodians' New Zealand Recent Law Review 1992 at p.93.

68. Flynn v R (1949) 79 CLR 1; Ellis v Home Office (1953] 3 WLR 105; Becker v Home Office [[1972] 2 All ER 676.

69. Horowitz v Connor (1908) 6 CLR 38.

70. Hague v Deputy Governor of Parkhurst Prison & Ors [1991] 3 All ER 733 (HL).

71. Ibid, at 752.

72. In Racz v Home Office [1994] 1 All ER 97 at 101. Lord Jauncey incorrectly cited Lord Bridge in Hague v Deputy Governor of Parkhurst Prison; Weldon v Home Office [1990] 3 All ER 733 at 743-744 as having concurred with him that actions for breach of statutory duty can not lie for breaches of the prison rules. The passage cited in fact dealt with false imprisonment.

73. Ibid, at 741.

74. Ibid, at 747.

75. Gibson v Young (1899) 21 LR (NSW) 7.

76. Horowitz v Connor (1908) 6 CLR 38; Flynn v R (1949) 79 CLR 1.

77. eg Quinn v Hill [1957] VR 439 at 448-453 per Smith J, and authorities cited.

78. Smith v Corrective Services Commission of NSW (1980) 147 CLR 143; Cowell v Corrective Services Commission (1988) 13 NSWLR 714 at 724 per McHugh J, at 717 per Priestly JA, at 744 per Clarke JA.

79. International Covenant on Civil and Political Rights, Art 9 (5).

80. Cowell v Corrective Services Commission (1988) 13 NSWLR 714 at 717, referring to the special leave application in Smith v Corrective Services Commission of NSW (1980) 147 CLR 143.

81. Middleweek v Chief Constable of the Merseyside Police [1990] 3 All ER 662 at 668 per Lord Ackner.

82. Hague v Deputy Governor of Parkhurst Prison; Weldon v Home Office [1990] 3 All ER 733 per Lord Jauncey at 753-755, per Lord Bridge at 743-744, per Lord Goff at 747, per Lord Ackner at 747.

83. per Lord Bridge at 745-746, per Lord Ackner at 747 , per Lord Jauncey at 756-757, per Lord Goff at 747

84. per Lord Bridge at 745; Racz v Home Office [1994] 1 All ER 97 at 101 per Lord Jauncey.

85. Racz v Home Office [1994] 1 All ER 97 at 102 per Lord Jauncey.

86. Hague v Deputy Governor of Parkhurst Prison; Weldon v Home Office [1990] 3 All ER 733 at 746-747 per Lord Ackner, at 746 per Lord Bridge, at 747 per Lord Goff, at 755, 756 per Lord Jauncey.

87. Todd, S, op cit at p.101.

88. per Lord Jauncey at 757, per Lord Bridge at 744; Todd, op. cit. at p.102.

89. per Lord Bridge at 745.

90. Racz v Home Office [1994] 1 All ER 97 at 102 per Lord Jauncey; Todd, op. cit., at 103.

91. per Lord Jauncey at 757, per Lord Bridge at 745.

92. Racz v Home Office [1994] 2 AC 45 (HL).

93. Wright v Wilson (1699) 1 Ld Raym 739; Bird v Jones (1845) 7 QB 742 at 752 per Patteson J; referred to in Robinson v Balmain New Ferry Co Ltd [1910] AC 295 (PC) and approved in Williams v Hursey (1959) 103 CLR 30 at78 per Fullagar J.

94. Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (CA); Jackson v Director-General of Corrective Services (1990) 21 ALD 261. Regarding police, see Relationship of Police Officers to the Crown (1983) 57 ALJ 651.

95. Bromley v Dawes (1983) 5 ALN N132 per White J.

96. Bromley v Dawes (1983) 5 ALN N295, Supreme Ct of SA (Full Court).

97. Jackson v Director-General of Corrective Services (1990) 21 ALD 261, Supreme Ct of NSW, Holland AJ.

98. Craig v SA (1995) 69 ALJR 873; 131 ALR 595; Public Service Association(SA) v Federated Clerks Union (SA) (1991) 173 CLR 132. See Finn, C 'Jurisdictional Error: Craig v South Australia' in Australian Journal of Administrative Law, Vol 3, May 1996 p177.

99. The rules of procedural fairness (or natural justice) concern the fairness of the procedure by which decisions are reached. They require that an individual whose interests will be affected by a decision should be given a hearing, and that the decision maker should not be biased.

100. The ultra vires doctrine can involve a 'simple' excess of power - for instance, a decision maker acts beyond the powers given to him or her by statute. The broader doctrine of ultra vires or abuse of power occurs in cases of infringement of common law principles which require administrators to act for a proper purpose, to take into account relevant considerations, not to take into account irrelevant considerations, not to act unreasonably and to act on the basis of logically probative evidence: see further, M Allars, Introduction to Australian Administrative Law (Butterworths, 1990), p 21.

101. At federal level, these grounds of review have been codified in the Administrative Decisions (Judicial Review) Act 1977 (Cth). Further, the federal Administrative Appeals Tribunal has the jurisdiction to review the merits of administrative action, and has the power to substitute its own decisions for that of the relevant administrator. It is unfortunate that apart from Victoria and the ACT, administrative review in the states and territories is characterised by the common law remedies of judicial review. There are no tribunals akin to the AAT with jurisdiction to provide review the merits of a decision.

102. Finn, C, op. cit., fn 96.

103. Barton, Dr GP 'Damages in Administrative Law' in Judicial Review of Administrative Action in the 1980's: Problems and Prospects Taggart M (ed) Oxford/LRF 1986 p123ff; de Smith, Woolf and Jowell Judicial Review of Administrative Action Sweet and Maxwell, London, 5th Ed, 1995 (see especially Chapter 19 'Pecuniary Remedies in Judicial Review' and Chapter 24 'Prison Discipline').

104. Northern Territory v Mengel (1995) 129 ALR 1; overturning Beaudesert Shire Council v Smith (1966) 120 CLR 145.

105. Ibid at 21; Heuston and Buckley Salmond and Heuston on the Law of Torts, 20th ed (1992), p321; James v Commonwealth (1939) 62 CLR at 370 per Dixon J.

106. Northern Territory v Mengel (1995) 129 ALR 1; Racz v Home Office [1994] 1 All ER 97. See also Balkan and Davis, op. cit., p779ff.

107. Ibid, at 102; see Todd, op. cit., p.107.

108. Northern Territory of Australia v Mengel (1995) 129 ALR 1; Kneebone S 'Misfeasance in a Public Office After Mengel's Case: A Special Tort No More?' in Australian Tort Review 4 (2) July 1996: p111-138.

109. Imperial Acts Application Act 1969 (NSW) Second Schedule; Imperial Acts Application Act 1980 (Vic) Pt II Divs 2 and 3.

110. Flynn v R (1949) 79 CLR 1.

111 Ibid.

112. O'Neill and Handley Retreat from Injustice: Human Rights in Australian Law The Federation Press Sydney 1994 at 37-40.

113. Smith v R (1991) 25 NSWLR 1; see Starke J QC Durability of the Bill of Rights 1688 as Part of Australian Law Australian Law Journal (1991) Vol 65 No 12 p 695.

114. Ibid. See Report of the New South Wales Royal Commission into Prisons, Parliamentary Paper 322/1978, Sydney NSW Government Printer 1978.

115. Justice Under Scrutiny, op. cit., p.168.

116. section 9(1A) of the Racial Discrimination Act (Cth) requires a term, condition or requirement that one racial group has greater difficulty complying with. Bail is an area in which this requirement is easily satisfied.

117. See Anderson, T 'The 'Loophole' in Victims' Compensation' Alternative Law Journal Vol 31 No 3 June 1996 p 144.

118 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, p82.

120 Correspondence to the Aboriginal Legal Service of Western Australia from the Hon. Peter Foss QC MLC, Attorney General of Western Australia, dated 14 June 1996.

118-2 Dietrich v R (1992) 109 ALR 385 at 429, per Toohey J. See also Mason CJ and McHugh J at 387, Deane J at 408, Gaudron J at 436. See O'Neill and Handley Retreat from Injustice: Human Rights in Australian Law The Federation Press 1994, Chapter 9.

119-2 International Covenant on Civil and Political Rights, Article 14.

120-2 Ombudsman Act 1976 (Cth), s15(1).

121 Audit Act 1901 (Cth).

122 Criminal Justice Act 1989 (Qld) s 2.15 (i).

123 RCIADIC, National Report, Volume 4, p. 124 - 131.

124 Ombudsman (Northern Territory) Act 1980 (NT), s14(4); Ombudsman Act 1973 (Vic), s13(3A); Parliamentary Commissioner Act 1971 (WA), s14 (1a), (1b), (1c); Complaints (Australian Federal Police) Act 1981 (Cth) ss 23, 24, 25, 26; Criminal Justice Act 1989 (Qld) s 2.20; Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) s25.

125 Police Service Act 1990 (NSW) as amended by the Police Service (Complaints, Discipline and  Appeals) Amendment Act 1993 (NSW), Sch 1; Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) s25; Criminal Justice Act 1989 (Qld).

126 Ombudsman Act 1978 (Tas) s4, Sch1, Item 45

127 ALS of WA Striving for Justice Vol 3 p 177-180.

128 Parliamentary Commissioner for Administrative Investigations (WA) 1994 Annual Report 23 October 1994, p 84, 85, 89.

129 eg see NSW Ombudsman Annual Report 1994/95.

130 Department of State Aboriginal Affairs South Australian Government Implementation Report 1994/95, p82.

131 Halstead, B Coroners' Recommendations and the Prevention of Deaths in Custody: A Victorian Case Study Deaths in Custody Australia, No 10, November 1995, Australian Institute of Criminology, Canberra.

132 s26(3) Coroners Act 1975 (SA).

133 Briginshaw v Briginshaw (1938) CLR 336 at 361-362 per Dixon J

134 Volume 1, para 4.5.9, p132.

135 (1988) 34 A Crim R 334

136 R v Young (1969) Qd R 417 at 441

137 s285 of the Criminal Code (Qld); s262 Criminal Code (WA).

138 Rv McDonald and McDonald [1904] St R Qd 151; R v Taktak (1988) 34 A Crim R 334; R v Sheppard WAR.

139 R v Taktak (1988) 34 A Crim R 334

140 Ibid, at 357.

141 Ibid, at 357 per Carruthers J, see also 355 per Yeldham J; Andrews v DPP (1937) AC 575.

142 Bowe v Farquar [1974] 1 NSWLR 377 at 387 per Hutley JA

143 Royal Commission into Aboriginal Deaths in Custody, Regional Report into Queensland, AGPS 1991 p92.

144 The report is being prepared by Geoff Airo-Farulla, Faculty of Law, Griffith University, Brisbane 4111.

145 Coroners Act 1958 (Qld) s 43; Coroners Act 1975 (SA) s26(3).

146 Aboriginal Affairs Victoria Victorian Government 1994 Implementation Report, p 67

147 RCIADIC Responses by Government to the Royal Commission 1992 Vol 2 p 683-685.

148 Maybury v Osborne [1984] 1 NSWLR 579

149 R v Fraser (1977) 2 NSWLR 867; R v Clifford [1980] 1 NSWLR 314.

150 Bachelard, M ATSIC Faces Racism Charge Over Funding: Herron Names Three More Groups for Probe Canberra Times 4 April 1996 p 5.

151 Lawyer Calls for Action on ALS Canberra Times, 8 April 1996

152 Jopson, D and Lamont, L Aboriginal Defendants 'Facing Injustice' Sydney Morning Herald 8 April 1996 p 4.

153 House of Representatives Standing Committee Report on Legal Aid (1980), Harkins Inquiry into Aboriginal Legal Aid (1985), Fitzgerald Review of the Northern Australian Legal Aid Service (1985), ATSIC Evaluation of the Law and Justice Program (1995)

154 Smith, W Rough Justice for Outback Aborigines Courier Mail 6 April 1996 p22.

155 House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs Justice Under Scrutiny AGPS 1994 p 150.

156 Queensland Government Progress Report on Implementation 1994 p251.

157 Dietrich v R (1992) 109 ALR 385 at 429, per Toohey J. See also Mason CJ and McHugh J at 387, Deane J at 408, Gaudron J at 436. See O'Neill and Handley Retreat from Injustice: Human Rights in Australian Law The Federation Press 1994, Chapter 9.

158 Toonen v Australia, Communication No. 488/1992; UN DOC CCPR/C/50/D1/488/1992.

159 Human Rights (Sexual Conduct) Act 1994 (Cth).

160 See D Celermajer, "Overdue and Under prepared: Australia's Draft Third Periodic Report", Human Rights Defender, June 1996, p.11-13.

161 For example, CERD, Forty-Fifth Session (1059th Meeting, Geneva, 12 August 1994), UN DOC CERD/C/SR.1059.

162 A fourth procedure entitles a state party to the Convention to lodge a complaint against another state to the effect that it is in breach of its obligations under the Convention. This procedure has never been utilised.

163 Toonen v Australia, Communication No. 488/1992; UN DOC CCPR/c/50/D1/488/1992. For a discussion of the case see For comment on this case see: S. Joseph, "Gay rights under the ICCPR - Commentary on Toonen v Australia", University of Tasmania Law Review, v13, n2 (1994); I. Shearer, "United Nations: Human Rights Committee: The Toonen Case", The Australian Law Journal, v69, August 1995 600, p.392; S. Pritchard "Gay Rights Victory at the UN", Human Rights Defender, April 1994 and June 1994.

164 S. Pritchard, ibid.

165 Article 10(2)(b) and (3) provide for the segregation of juvenile offenders from adults in prisons. Article 10(3)also states that the essential aim of prisons is reformation and social rehabilitation. However, Australia has made reservations under Article 10(2)(b) and (3) because it does not accept the need to separate juveniles from adult prisoners. These articles can not be challenged before the Human Rights Committee.

166 Aboriginal Legal Service of Western Australia, Striving for Justice, Volume 3, p.82.

167 General Comment 7/16 and 21/44 in M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, (NP Engel, Strasbourg, 1993), p.188.

168 See for example No. 10/1977; Luyeye Magana ex-Philibert, No. 90/1981; Kelly v. Jamaica, No. 253/1987; Parkanyi v. Hungary, No. 410/1990 in Nowac, ibid, at p.187.

169 For a discussion see M O'Flaherty, The Individual Complaints Procedure under the Convention  against Torture and the International Convention on the Elimination of All Forms of Racial Discrimination, paper delivered at "UN Human Rights Procedures and Indigenous Australians" Conference, Sydney 28-30 June 1995. Publication of papers is forthcoming. Groups are also entitled to make communications to CERD.

170 Concerned with Convention against Torture.

171 The Sub-Commission has its own subsidiary bodies, of which the Working Group on Indigenous Populations (WGIP) is one. The Working Group reviews national developments affecting Indigenous peoples and the evolution of international standards concerning Indigenous peoples. Its most significant contribution has been the drafting of the United Nations Draft Declaration on the Rights of Indigenous Peoples.

172 ECOSOC Resolution 1235 (XLII), 6 June 1967.

173 ECOSOC Resolution 1503 (XLVIII) of 27 May 1970.

174 Aboriginal Justice Advisory Committee (Victoria) Response to the 1994 Victorian Government Implementation Report August 1996; Aboriginal Legals Service of Western Australia Striving for Justice Volume Three, Report to the Western Australian Government on the Implementation of the Royal Commission into Aboriginal Deaths in Custody July 1996; Queensland Overview Committee The First report of the aboriginal and Torres Strait Islander Overview Committee: An Agenda for Action August 1996; Report of the Aboriginal Justice Advisory Committee Queensland, December 1995.

175 Biles, D 'Custody, Crime and the Community' in Current Issues in Criminal Justice, Vol 7 No 3, March 1996.

176 RCIADIC, National Report, Volume 5, p. 12 - 45

177 Biles, op cit at 336.

178 Biles, op cit at 338.