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Indigenous Deaths in Custody: Part D - Implementing the Recommendations

Indigenous Deaths in Custody

Part D - Implementing the Recommendations

Chapter 11. Accountability and the Reporting Process

Chapter 12. Alternative Mechanisms to Ensure Implementation

We are deeply dissatisfied with the performance to date by various government agencies... there does not appear to be any process beyond monitoring to ensure that effective implementation takes place...

We seek clarification on whether: a) the recommendations bind governments in any way; or b) the recommendations agreed to by governments bind them in any way; or c) either a) or b) might be worth testing in a Court of law as to whether their performance in implementation is adequate.

Correspondence to the Social Justice Commissioner from Hewitt Whyman, Chairman, Binaal Billa

Regional Council, 13 December 1995


Chapter 12. Alternative Mechanisms to Promote Implementation


12.1 Recommendations which require legislation, such as those on the principle of custody as a last resort, public drunkenness, the sentencing powers of justices of the peace, prisoners' rights and legally enforceable custodial health and safety rules, have not been implemented. This indicates that a co-ordinated program is required, necessarily involving the Commonwealth and State Law Reform Commissions.

12.2 The recommendations are not mere suggestions. They can have legal implications under the common law relating to negligence, misfeasance in a public office and, potentially, other actions. If a custodial authority breaches recommendations, and that contributes to a death in custody, the custodial authority may be liable in damages.

12.3 The need for accountability in custodial and police settings is greater than ever. Deaths in custody have not decreased, despite the resources that went into the Royal Commission. The Wood Royal Commission in New South Wales has amply illustrated the need for police to be more accountable. Private prisons are being introduced, which must be made accountable for the treatment of prisoners in their charge. The role of the courts in improving accountability must be pressed.

12.4 The first two successful negligence actions by families of persons who died in custody, taken against police and medical authorities, were concluded in 1995 and 1996. As this Report was published a confidential settlement was achieved in favour of the plaintiffs in relation to the profile 39NSW.

12.5 The threat of liability in damages, including exemplary and aggravated damages, is a potentially powerful means of ensuring that prison and police officials have adequate regard for the recommendations of the Royal Commission into Aboriginal Deaths in Custody.

12.6 Various administrative remedies are available to prisoners who are treated in a manner inconsistent with the recommendations. Anti-Discrimination complaints are also possible.

12.7 The Ombudsman or equivalent body must play a greater role in enforcing and monitoring implementation of Royal Commission recommendations in the States and Territories, as well as at Commonwealth level.

12.8 Threats to the funding of Aboriginal Legal Services could set back the process of implementation of Royal Commission recommendations significantly. The Legal Services are virtually the only organisations with the incentive and resources to pursue the legal avenues outlined in this chapter.

12.9 The failure to implement certain recommendations could be pursued in the international arena, particularly the Human Rights Committee.


The questions asked by Hewitt Whyman which appear at the beginning of this chapter have been echoed by Aboriginal groups around Australia. In the aftermath of the Royal Commission positive initiatives have emerged from some police, custodial authorities and other agencies. However, studies such as this one support the view that the mere commonsense and moral authority of the recommendations have not led to full implementation. Police and prison cultures are traditionally resistant to what are regarded as 'soft options.' The previous chapter noted the deficiencies in the reporting and monitoring processes initially adopted and used to date.

Alternative mechanisms for the improvement of the justice system are needed. There have been many suggestions of ways to achieve more effective implementation, several of which are discussed in this chapter. One proposal is that the recommendations should be carried into legislation. Another proposal is that various legal remedies should be more widely used, at both domestic and international level. Other suggestions involve the establishment of new structures, institutions or dialogues to secure the goals sought in the recommendations.

The first section of this chapter deals with reforms to the existing institutions and laws which may reduce the destructive impact of the criminal justice system on Aboriginal people. The recommendations are divided into three categories. Section 12.1.a examines the implementation of recommendations which expressly call for legislation. It looks at what is required of legislation implementing a recommendation if it is to have practical effect. Legislative provisions which are not yet implemented despite government commitments are noted. Section 12.1.b addresses the issue of recommendations which are able to be effectively implemented through legislation. Legislative backing for these recommendations is highly desirable. Section 12.1.c addresses the remaining category of recommendation. It would be impractical to implement some recommendations through legislation. Section 12.1.d examines the potential for the implementation of recommendations through the development of a model Commonwealth Criminal Code.

Section 2 contains a fairly detailed examination of the means by which the courts can be utilised under the present law to provide remedies when deaths in custody occur or where Royal Commission recommendations are breached. This part examines possible actions in negligence, assault and battery, breach of statutory duty, false imprisonment, judicial review, misfeasance in a public office, and habeas corpus. Victims' compensation legislation and anti-discrimination laws are discussed briefly. The part concludes with a brief outline of the right to a stay of proceedings, if the right to a fair trial has been denied.

Section 3 examines existing structures. Even where recommendations do not necessarily reflect what is unlawful under the current law, it is possible to enhance the use of existing structures where behaviour in breach of the recommendations is improper, unjust, oppressive or discriminatory. Section 12.3.a considers the Office of the Ombudsman or its equivalent in the various jurisdictions. Section 12.3.b recommends an expansion of the role currently played by coroners. Section 12.3.c briefly discusses the Aboriginal Justice Advisory Committees as an important structure for ensuring that Aboriginal perspectives are taken into account in criminal justice matters. Section 12.3.d looks at the role of visiting justices, who hear charges against prisoners. Section 12.3.e addresses issues relating to Aboriginal Legal Services.

Section 12.4 discusses potential remedies available for Aboriginal people in international law flowing from breaches of the recommendations of the Royal Commission into Aboriginal Deaths in Custody.

Section 12.5 covers new mechanisms to ensure implementation. Section 12.5.a canvasses the proposal for a national summit to address issues leading to Aboriginal deaths in custody. Section 12.5.b addresses the proposal for a national custodial authority which would monitor standards for all forms of custody.

1. Implementation Through Legislation

The state usually demonstrates its commitment to a particular norm or a standard of behaviour by embodying it in a legislative provision. After a controversial death in police custody in Brisbane in 1993 (53QLD), the Brisbane Aboriginal Legal Service submitted a petition containing hundreds of signatures to the Minister Responsible for Aboriginal Affairs 'calling on the Government to immediately legislate into law those 339 recommendations.' 1

In examining the possibility of converting the recommendations into legislation, the recommendations can be divided into three basic categories. First, some recommendations specifically call for legislation to be passed or amended. In some cases these recommendations have not been implemented. If legislation has been passed or amended, the question arises as to whether this is adequate to achieve implementation. Second, some recommendations which do not specifically call for legislation could be implemented by legislative means. The third category consists of recommendations which are difficult or impractical to implement through legislation.

The Commonwealth, states and territories could potentially pass co-operative legislation to implement Royal Commission recommendations in the first two categories. If states did not wish to honour commitments by legislating, the Commonwealth Parliament could exercise its power to make special laws for the benefit of Aboriginal people, 2 or its external affairs power to pass domestic legislation to ensure that it complies with international obligations to guarantee certain civil and political rights and eliminate racial discrimination. 3 Section 109 of the Constitution would have the effect that state laws contravening such Commonwealth legislation would be invalid to the extent that the laws are inconsistent.

Realistically, widely varying state crimes legislation, sentencing legislation, police legislation and prisons legislation will perpetuate a patchwork of criminal justice systems for some time to come. Uniform reform in conformity with the Royal Commission recommendations has proved to be a tall order. The Commonwealth has not taken an adequate leadership role to date.

An analysis of the three categories of recommendations addresses weaknesses in the methods used so far to implement Royal Commission recommendations. The deficiencies bolster the case for specific legislation to implement many of the recommendations.

1.a Implementation of Recommendations which Expressly Call for Legislation

While some legislation passed in response to the Royal Commission recommendations has been valuable, much has been cosmetic, ineffective and inept in achieving the desired outcomes.

i. Custody as a Last Resort

The issue is canvassed in the discussion of the implementation of recommendation 92 (see p for an outline of the responses to this important recommendation).

Uniform criminal and sentencing laws passed with the co-operation of the states may provide one theoretical solution in the long term - see section 12.2.2. In the meantime, the Commonwealth must emphasise the futility of increasing imprisonment rates in the face of stable reported crime rates in forums such as the Standing Committee of Attorneys General. The Commonwealth should take a leadership role to advocate against State and Territory law and order campaigns which produce a contrary result to this recommendation.

The issue of the rising number of Aboriginal people in custody is on the agenda in New South Wales, where the Law Reform Commission is to prepare a report into the sentencing of Aboriginal people in 1997. The review is relevant to recommendation 92. It is crucial that concrete shifts are achieved, and that other states also focus carefully on the problem of Aboriginal over representation in prisons.

ii. Public Drunkenness

One of the foremost recommendations for legislative change was recommendation 79, the decriminalisation of public drunkenness. The Commonwealth does not have the power, or seemingly the will, to induce Queensland and Victoria to decriminalise public drunkenness as such, or to induce Western Australia to decriminalise drinking in public (see chapter 8).

However, the Commonwealth does have the power to intervene to the extent that the laws impact in a discriminatory way upon Aboriginal people. The race power or the external affairs power could in theory be used to prevent the discriminatory impact on Aboriginal people of the offence of public drunkenness. This would satisfy the Commonwealth's obligations under the Convention on the Elimination of All Forms of Racial Discrimination. Realistically, this is not a likely short term development. But again, the Commonwealth must at least take a firmer leadership role at the Standing Committee of Attorneys General to advocate changes to state laws.

iii. Justices of the Peace

Recommendation 98, that Justices of the Peace should not be allowed to determine charges or impose prison sentences, does not specifically call for legislative amendment. Legislative amendments are required if magistrates and judges are to be the only officials with the power to imprison. Justices of the Peace with little training are still sentencing Aboriginal people in Western Australia, South Australia, and Queensland. Research shows that they are more likely to impose sentences of imprisonment than magistrates or judges, especially when sitting alone. 4

In Western Australia, South Australia and Queensland they also determine bail applications, which is tantamount to sentencing in many cases where there are long delays before a court appearance. 5 The case of the man who died in the Ceduna Lockup (1SA) featured a refusal of bail by Justices of the Peace. The Western Australian government recently committed itself to Justices of the Peace retaining this function on cost efficiency grounds. 6 A concession that Magistrates can review sentences is limited by logistical difficulties, 7 but traditionally the original exercise of discretion to impose a sentence is not lightly disturbed on appeal. The current legislation must be changed. Provision for giving judicial officers exclusive powers in these areas should be a feature of a Commonwealth Model Criminal Code - see below.

iv. Prisoners' Rights

Recommendation 329 has not been implemented. It states:

That the National Standards Body comprising ministers responsible for corrections throughout Australia give consideration to the drafting and introduction of legislation embodying the Standard Guidelines and in drafting such legislation give consideration to prisoners' rights contained in Division 4 of the Victorian Corrections Act 1986.

This is a very important recommendation. Specified rights to a safe custodial environment would increase the force of the custodial health and safety recommendations (122-187). At present there is Australian authority that prison rules do not confer private rights of action for breaches, 8 although this is only a general rule (with important exceptions). 9 This issue will be discussed in section 12.1.6.

The above recommendations do not form an exhaustive list of proposals that are inadequately implemented. 10 The examples merely illustrate the lack of will to reform properly the criminal justice system in line with the findings of the Royal Commission. In the sense that legislation was the intended mechanism for implementation of these recommendations, a more comprehensive and effective legislative strategy (rather than an alternative strategy) is needed.

1.b Recommendations able to be Effectively Implemented through Legislation

Not all recommendations expressly call for legislation. However, it is possible that legislation would provide an effective means of implementing certain recommendations which the case profiles indicate have not been thoroughly implemented. When they are considered in light of recommendation 329, which generally calls for legislative rights of a type which other recommendations address, some of the examples which follow about custodial health and safety fall into the category of recommendations requiring legislative implementation.

i. Legislation Setting Out Custodial Health and Safety Standards

Rules for custodial health and safety and other matters usually take the form of prison rules or internal policies. The Royal Commission called for enforceable guidelines and policies. This study reveals that many deaths which have occurred since the Royal Commission involved breaches of the guidelines in these recommendations. Probably the only way that they can be properly enforced is to enshrine them in legislation, which would make agencies liable for their breach when injury occurs as a result.

Recommendations 60, 123, 132, 134, 137 and 138 stipulate that the official policies of corrections agencies and prison medical services, or police standing orders, should reflect minimum standards of conduct and minimum safety requirements. Recommendation 123 calls for policies or standing orders to be in mandatory terms. If these orders or policies are not adhered to, disciplinary provisions in the legislation governing the agency are theoretically available. For example, if police standing orders prohibit placing 'at risk' prisoners alone in a cell, disciplinary proceedings can follow if the order is breached. In practice this rarely happens. The time has come for more substantial legislative support - all custodial staff should be personally accountable.

The establishment of private prisons in Australia increases the public interest in the accountability of custodial bodies and their employees. Agencies currently face the pressure of damaged industrial relations if action is taken, and custodial agencies have internal cultures that inhibit disciplinary action against staff. For example, powerful unions often threaten industrial action if disciplinary action is contemplated. Institutional forces combine to frustrate accountability.

Recommendation 60 requires disciplinary proceedings against police who use rough treatment or offensive language against Aboriginal people. Police standing orders reflect this recommendation, so breaches theoretically lead to disciplinary action.

The implementation reports of states and territories do not reveal the numbers of disciplinary actions actually taken. 11 Agencies use their discretion and bring disciplinary charges sparingly. Even recommendations by the relevant Ombudsman do not guarantee disciplinary proceedings.

In light of the inadequate enforcement of internal policy guidelines, compliance must be enhanced with the imposition of statutory duties on police, prisons and other custodial authorities and their employees.

1.c Recommendations Unsuited to Implementation through Legislation

Legislation is not directly relevant to the implementation of some of the Royal Commission's recommendations. For instance, recommendation 227 calls for a review of a police school-based programme in the Northern Territory to consider its adoption by other jurisdictions. Others call for state-based programmes, such as 95 (Aboriginal driver training courses where driving offences are a significant reason for incarceration). Rather than legislation, these recommendations call for changes to administrative priorities, adequate funding and well designed programmes. This category is arguably the most vulnerable to poor implementation.

Pressure for the implementation of these recommendations must be sustained by the Aboriginal Justice Advisory Committees in each state, community groups and inter-governmental forums such as the Council of Australian Governments (COAG).

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.

The next section examines a possible vehicle for enactment of the first two of the three categories of recommendations. The proposal involves translating the principles of the Royal Commission recommendations into a national Model Criminal Code.

1.d A Commonwealth Model Criminal Code Reflecting Royal Commission Recommendations

The Standing Committee of Attorneys-General (SCAG) is an important forum of Commonwealth and State Attorneys General. It meets to consider working co-operatively on legislative proposals. The forum established a Model Criminal Code Officers Committee within the Commonwealth Attorney-General's Department in 1990. The Committee's role is to develop a model Criminal Code for the Commonwealth by the year 2001. The Criminal Code Act 1995 (Cth) was enacted to set out uniform principles of criminal responsibility. According to the Explanatory Memorandum it was the beginning of a new era for the criminal law of Australia, and the 'first stage in the progressive development of a Commonwealth criminal code which will contain a complete and revised criminal law for the Commonwealth.'

Such legislation could be a vehicle for the implementation of Royal Commission recommendations. A report on Theft, Fraud, Bribery and Related Offences, and more recently a discussion paper on Non-Fatal Offences to The Person, have now been prepared. The code could provide an example to states and territories of effective laws designed to reduce inappropriate Aboriginal incarceration. Part 1C of the Commonwealth Crimes Act, which regulates conditions for the detention of suspects for questioning, is an example of a law which currently provides such an example.

The Model Criminal Code is simply a model. Its completion is a long way off, let alone its adoption by the states and territories. In the meanwhile, the federal system dictates that Aboriginal groups must agitate for change with each state legislature, in the face of law and order campaigns antagonistic to the Royal Commission recommendations. It is clear that the problems identified by the Royal Commission remain matters of grave concern in 1996. Commitment must be reinforced. It is essential that Aboriginal Justice Advisory Committees in the states and territories, as well as the National Aboriginal Justice Advisory Committee, are 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

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.

2. Implementation through Common Law Actions

The need for accountability in custodial and police settings is greater than ever. Despite the resources that went into the Royal Commission, deaths in custody have not decreased. The Wood Royal Commission into the New South Wales Police Force has amply illustrated the need for police accountability. Private prisons are being introduced, which must be made accountable for the treatment of prisoners in their charge. The United States experience, where there are over one million prisoners, and where media proprietors hold significant share holdings in prisons and therefore have an incentive to push law and order issues beyond the dictates of justice, is alarming. The role of the courts in improving accountability must be pressed.

Many of the Royal Commission recommendations merely formulate what is required by law. This section examines the civil liability of the various custodial agencies which may flow from inadequate implementation. It is possible that more successful utilisation of existing remedies can improve adherence to the recommendations.

A survey of the legal requirements governing custodial health and safety procedures indicates that many of the deaths which have occurred since the Royal Commission not only involved breaches of recommendations, but also unlawful acts under common law or statute. 12 There may be a range of actions available to prisoners if they suffer as a result of inadequate implementation. This part examines possible actions in negligence, assault and battery, breach of statutory duty, false imprisonment, judicial review, misfeasance in a public office, and habeas corpus. Victims' compensation legislation and anti-discrimination laws are discussed briefly. The part concludes with an examination of ex-gratia payments, and a procedure by which criminal proceedings may be stayed if the recommendations concerning the right to a fair trial are not followed. The following should not be seen as a comprehensive list of legal avenues.

Since 1978, the English common law has supported the proposition that a convicted prisoner retains all civil rights which are not taken away expressly or by necessary implication. 13 Prisoners in Australia generally have a right to sue for damages. An extremely conservative High Court decision in 1978 held that the antiquated doctrine of attainder, or 'corrupt blood,' was part of Australian law. The doctrine denies the right of prisoners who are serving sentences for serious offences to sue in the civil courts. 14 This anachronism has been removed from the law in a number of states. 15

A number of potential problems in framing such actions have not stifled a growing number of successful civil actions for wrongful or negligent acts against prisoners. First, there have been conflicting decisions on the appropriate party to sue. 16 It would seem safest to sue an officer or officers, the Department of Corrective Services and/or the Police Department and the Crown in right of the state or territory. 17 Another potential problem results from a controversial decision that the Crown is not vicariously liable for the tortious act of an employee who exercises an independent discretion by virtue of his or her office. 18 However, this principle has never been extended to prison officers.

Provisions excluding liability represent another potential problem. For example, section 46 of the Prisons Act 1952 (NSW) excludes any person from liability for damages for any act done or commanded to be done for the purpose of carrying out the provisions of the Act, unless it was done maliciously and without reasonable and probable cause. 19 Although it appears to be a wide exclusion, section 46 has been interpreted to protect a person doing or commanding an act, but not as protecting a Prison Authority. 20 It has alternatively been interpreted as protecting the Governor but not the State from vicarious liability for false imprisonment. 21 It does not protect a person from liability if something is done for a purpose other than carrying out the provisions of the Act.

A Melbourne barrister wrote recently that 'by and large, damages awards in police cases in Australia are of such low dimensions that they have had minimal impact on the police culture.' 22 The force of his calls for the courts to adopt a more realistic attitude to civil suits, as a spur to police accountability, is demonstrated by a number of cases in this report, and the events uncovered by the Wood Royal Commission in New South Wales. Justice Wood has demonstrated that enormous impediments are placed in the way of permanent bodies whose role it is to ensure that police are accountable. The trend has not been favourable of late in New South Wales, with a 1996 decision that the Police Service is not vicariously liable when its officers assault members of the public (in this case an Aboriginal man). 23 That case may go to appeal.

2.a Negligence

Many cases have now established the principle that custodial authorities owe a duty of care to detainees in their charge. 24 A breach of this duty can result in an award of damages in negligence if there is harm to the detainee, 25 or to a person related to the deceased detainee. 26 The standard of proof in relation to a civil claim is the balance of probabilities. In 1995, in the first case involving an award of damages for an Aboriginal death in custody, it was stated that 'when the liberty of a citizen is constrained by the community, then the community assumes a heavy burden to ensure his or her safety.' 27

Generally, the duty of care for persons in custody extends to protection against risks which are reasonably foreseeable. The terms of particular recommendations adopted by governments may give assistance in establishing what is a reasonable standard of care and what risks are reasonably forseeable. The standard of care is that which a reasonable person would regard as reasonable in all the circumstances of a case. 28 The Royal Commission indicated that the duty attaches primarily to the custodial authority, although the individuals involved are liable if they do not put in practice precepts of their training, observe their orders or directions, or otherwise act unreasonably. 29 The potential liability is significant and is a strong incentive for State governments and custodial agencies to comply with the Commission's recommendations. Lew Wyvill QC concluded that five of the Queensland Royal Commission deaths 'would not have occurred if the custodial authorities had adequately attended to their responsibilities.' 30 Successful negligence actions have concluded in relation to two deaths examined by the Royal Commission, and at least four more have been commenced in relation to post-May 1989 cases. 31

Australian courts have over the past few decades been far more amenable to using the remedy of exemplary damages than English courts. Litigants may seek exemplary damages for wrongs, whether intentional or otherwise, which arise out of behaviour which can be described as wanton, malicious, gross, outrageous, and demonstrating a disregard for another's rights. 32

The following discussion contains a survey of some Anglo-Australian cases in this area, and their applicability to Aboriginal deaths in custody.

i. Quayle v State of NSW 33

The first case involving an award of damages to the family of an Aboriginal person who had died in custody was heard in 1995. 34 Medical officers and police were found to have breached their duty of care in the circumstances in which 23 year old Mark Quayle was transferred from hospital to Wilcannia Police Station. 35 His mother was found to be suffering a 'pathological grief reaction,' and was awarded $56,000 damages. His brothers were awarded $44,800 each.

The facts of that case are not dissimilar to at least two cases outlined in this report. 36 On 23 June 1987 the deceased was depressed and hallucinating, and suffering from alcohol withdrawal. He was, however, sober. His brother took him to Wilcannia Hospital, aware that people experiencing 'the horrors' had been treated there in the past. After his brother left, the nurse spoke to the doctor and decided to call police to take the deceased to the police lock up, where he was detained without lawful arrest. The police had collected him from the hospital and placed him in a totally dark cell, unsupervised and out of earshot. He hanged himself. The next day the police put the body in a bag and drove to find the brothers so they would identify the body.

The claim was based primarily in negligence. Such an action required the plaintiffs to establish a duty of care by the police and the nurse, a breach of that duty and injury to the plaintiffs. Damages can only be awarded for injuries in the nature of a recognised psychiatric illnesses, 37 and the pathological grief reactions suffered by the family members were found to satisfy that requirement. The trial judge allowed an award for nervous shock precipitated by hearing of the death.

The question of whether persons who do not actually witness an event such as a death in custody, and who are not present at the immediate aftermath, are eligible for common law damages has yet to be decided by an appellate court in Australia. It would, of course, be unusual if a relative were physically present in the prison or lockup at the time of a death. The Australian High Court has left the question open. 38

In a recent case in the New South Wales Court of Appeal 39 Justice Kirby expressed the opinion that Australian law allows recovery for nervous shock when news is communicated after the event. Awards in negligence for deaths in custody would be rare under English law, which does not allow damages for nervous shock by report. 40

The mother in Quayle's case relied upon a law peculiar to NSW, the ACT and the Northern Territory which allows a parent or a spouse of a person 'killed, injured or put in peril' by 'the act, neglect or default of another,' to claim for nervous shock irrespective of whether the accident occurred within the sight or hearing of the person suffering the shock. 41 This legislative provision explicitly extends the common law. It does not require that the nervous shock suffered was reasonably foreseeable. The plaintiff's damages are not reduced by contributory negligence or the legal defence that the accident victim voluntarily assumed the risk that the accident would occur. 42 Under the statutory provision any other family members would have had to be in the vicinity of the accident to claim for nervous shock, although they also have the option of suing under the ordinary law of negligence. 43

The case bears significant similarities with case 8VIC, which involves an Aboriginal man who was taken to hospital in an ambulance and was subsequently taken while semi-conscious to a police station.

A second case relating to the death of Lloyd Boney was settled in 1996. 44 Counsel for the NSW Department of Corrective Services was instructed to admit liability, and did so. However, other details of the settlement are confidential.

ii. Howard v Jarvis

In a relatively early Australian case involving a death in custody, the widow of a man who died in a fire in a police cell sued police for failing to make regular checks of his cell, and for failing to confiscate the deceased's matches. 45 It was established that a custodial officer owes a duty of care to prisoners in his or her charge. Although a jury awarded damages, the High Court allowed an appeal because of the nature of the particular facts of the case. The High Court warned against imposing too high a duty of care when the absence of a small precaution, such as failing to search a prisoner for matches, leads to a calamity.

On the facts of the case the Court found that regular checks through the night were not possible because the cell was at a one man police station. The State of Tasmania was not joined as a defendant, so issues of vicarious liability did not arise. If the station had been adequately staffed by several officers but they had not performed regular cell checks, and the State joined as a defendant to the action, the jury's decision could have been upheld against the State on the grounds of vicarious liability. If the police station was inadequately staffed, and this was unreasonable in the circumstances, that fact could form the basis of the State's primary liability as opposed to vicarious liability.

The Royal Commission into Aboriginal Deaths in Custody has put governments and custodial authorities on notice of the importance of adequate staffing and regular checks. 46 Such notice must affect a prudent mind.

The High Court also stated that a reasonable man in the position of the defendant officer might well not advert to the possibility that a fire might be caused by a failure to check for matches. The same could not be said about the failure to, say, remove the means to create a noose from a prisoner known to be at risk of suicide, especially in light of the publicity surrounding the Royal Commission and commitments by state and territory governments to put in place rigorous procedures for the custodial health and safety of prisoners.

The more well known the profiles of deaths become, the greater is the foreseeability of harm arising from similar causes. The circumstances of many deaths in custody have the quality of deju vu. This highlights the critical importance of systems to communicate coronial findings and recommendations. The more deaths in custody occur the higher is the standard of care which may be reasonably expected to safeguard against future deaths.

iii. Kirkham v Chief Constable of the Greater Manchester Police

Damages were awarded against the police in a recent English case for a death in prison custody. An alcoholic with suicidal tendencies told police that he had recently attempted suicide. Bail was refused, and he was placed alone in a prison cell in a remand centre, where he hanged himself. Police had failed to complete a form for prisoners at exceptional risk, and thereby convey to the remand centre information relating to the deceased's suicidal tendencies. 47 Because the deceased had been suffering from clinical depression it was held that his suicidal act was not truly voluntary. It was therefore found that he did not voluntarily assume risk, a defence which was relied upon by the police.

The case was also notable because it considered the maxim ex turpi causa non oritur actio, meaning 'an action does not arise from a base cause.' The maxim had prevented damages actions arising from a suicide. The majority of the Court of Appeal held that, in light of the changing public attitude to suicide, the defence no longer applied.

The police duty of care can continue after sentencing. Responsibility arises from the custodial setting rather than the technical status of the detainee as a sentenced prisoner or as a person held under arrest. Case 39NSW involved a prisoner who had been sentenced, but was still in police cells. The case profiles in the appendix provide examples of cases in which a duty of care may continue even though police or prison custody has been terminated.

iv. Knight v Home Office

Another English case involved an action for damages in negligence when a mentally ill prisoner committed suicide in a prison hospital. 48 Custodial authorities were alleged to have failed to heed the suicide risk, or keep the deceased under observation, or institute an adequate system of care to prevent the suicide, or to provide proper staff and facilities. The deceased committed suicide in the fifteen minute interval between checks. A single judge held that the action failed because the argument was based purely on the fact that breach of duty lay in staffing ratios at the prison hospital - described as grossly and comprehensively inadequate - were not the same as those in certain named psychiatric hospitals. The judge emphasised that it was never argued that an intermediate standard somewhere between the two staffing ratios could have satisfied the duty of care. 49 It was held that there was a duty to prevent suicide in a mentally ill patient, 50 but that the action failed because standards of care differed in different situations. The case is not authority for the proposition that inadequate staffing ratios in prison hospitals do not represent a breach of a duty of care.

An example of a case which might support a claim for negligence for an inadequate standard of psychiatric care can be found in 73SA.

v. Marshall v Osmond

Many of the case profiles in this report outline the deaths of young Aboriginal people killed as a result of accidents following police pursuits. In a recent English case, the Court of Appeal held that the duty owed by a police driver to a suspect is the same duty as that owed by anyone else, namely to exercise such care and skill as was reasonable in the circumstances. 51 Police pursuing a suspected criminal cannot rely on the defence that the suspect has voluntarily assumed the risk of an accident.

The assessment of what is reasonable in the circumstances must take into account the age of the suspect being pursued. Experienced police drivers have a higher standard of care when pursuing young children (see discussion in chapter 6.1).

vi. Dixon v The State of Western Australia

Prison authorities also owe a duty to use reasonable care and take reasonable precautions to prevent prisoners from harming each other. 52 Prisoners can be awarded damages in negligence if they are assaulted by other prisoners and prison authorities should have reasonably foreseen the danger. A Western Australian case involved an award of damages in negligence when one prisoner was assaulted by a mentally ill prisoner. 53 A prison rule imposed a duty to ensure that prisoners are examined by a medical officer upon admission. The court found that the mentally ill prisoner would have been sent to an appropriate institution had he been medically examined in accordance with this rule. The prisoners in 87NSW and 92NSW died when they were bashed or stabbed by other prisoners. A cause of the distress in case 72NSW was the fact that the prisoner had been previously bashed by other prisoners and was fearful that measures were not being taken to prevent this recurring.

Damages in negligence may also be awarded for detention in intolerable conditions, even if no physical injury results. 54 The potential liability could have forced the earlier closure of Endeavour House in case 65NSW, or prevented the use of the segregation cell in the dilapidated and condemned C wing of Townsville prison in 43QLD.

Prisons are more involved in industry than they were a few years ago. A prisoner may sue in negligence if he or she is injured while working in a prison industry and can establish that a duty of care was owed, and the negligence caused the damage. 55 There is some debate about the extent to which occupational health and safety legislation applies in prisons. The issue of the application of industrial relations legislation in custody needs further examination, and is one aspect of litigation currently before the Supreme Court of Queensland. 56

2.b Assault and Battery

Prisoners can sue for damages if they are assaulted by prison officers. A prisoner sued the custodial authority for assault in a recent English case, although the report does not indicate whether he was eventually successful. He was unsuccessful in the House of Lords on an alternative argument of false imprisonment, but the reported case only addresses the issue of whether he could sue under this alternative. 57

An action for assault can also be laid against police. In a 1994 Victorian case $116, 000 of ordinary damages were awarded to a psychiatric patient shot by police.58 In New South Wales, an Aboriginal man who was originally charged and convicted of offensive conduct, resisting arrest and assaulting police managed to have that conviction overturned in the District Court. He later successfully sued the police officer who had broken his jaw. The court found that excessive force was used in the arrest. 59 Damages awarded, however, were low at $12,500. The judgement does not reveal the fact that the Aboriginal man had suffered brain damage in a motorcycle which occurred during the period between the accident and the hearing.

The question of vicarious liability of the Police Service or the State or Territory Government is not clear cut. An early High Court case involving a wrongful arrest established that the Crown in right of a state or territory was not vicariously liable for the acts of public officials performing an independent discretion conferred upon them by statute. 60 However, by statutory amendment, the Crown in right of New South Wales and South Australia are vicariously liable for the tortious acts of public officials, including police officers, regardless of whether or not they are performing an independent function conferred upon them by statute. 61 Vicarious liability for the acts of police has been legislatively established in some of the other jurisdictions. 62

A recent New South Wales case provided a finding that the crown in right of the state was not vicariously liable for the acts of its police officers where they bashed an Aboriginal man. To use the legal term of art, they were found to be engaging in a 'frolic of their own' rather than performing duties connected with their employment. 63 However, the case may go to appeal. This argument could not be relied upon where the state ratifies the acts of the police officers, which the state could do by proceeding with a prosecution arising out of circumstances in which police assaulted someone. 64 There may also be direct liability if policies can somehow be demonstrated to have encouraged or tolerated assaults.

The need for courts to forgo their reluctance to award damages against Australian police is illustrated most graphically by a 1989 Queensland case. 65 Police gratuitously punched, kicked and jumped repeatedly on an Aboriginal man who had been taken into custody for using offensive language.

A constable then urinated on him while two sergeants passively watched the 'cowardly and unseemly assault' (in the words of the court). Instead of accepting responsibility, the police used taxpayers money to appeal (unsuccessfully) against the very modest amount awarded - $5,000 ordinary damages, $10,000 aggravated damages, and $10,000 exemplary damages.

Assault charges can also be used to remedy rough police behaviour, such as the inappropriate use of handcuffs. The power of the police carries with it the implied power to handcuff the arrested person, but only when justified in order to prevent the person escaping, or endangering the safety or property of others. Those who are unnecessarily handcuffed are entitled, at common law, to bring an action for damages for the indignity and embarrassment suffered. 66 Cases such as 8VIC demonstrate possible circumstances in which such an action could be pursued.

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.

2.c Breach of Statutory Duty

To maintain an action for breach of statutory duty, it is necessary to show that the legislature intended to confer a civil right of action for the breach. This can be done by establishing that:

  1. a statute was passed for the benefit of an ascertainable class of persons, so that members of the class can sue (when passed for the benefit of the community as a whole, there is no right of action to individuals);
  2. the statute makes express provision for its enforcement, an action for damages being more likely if it does not;
  3. the common law grants a remedy, the action for breach of statutory duty operating to supplement it; and
  4. the statute creates a public right and a particular member of the public suffers damages other than, and different from, that which was common to the rest of the public.

Attempts have been made to sue prison officials for breach of statutory duties contained in prison rules. 67 The trend so far has been discouraging for those seeking to use this tort to enforce the recommendations of the Royal Commission.

There is a line of authority which states that a breach of the prison rules creates no civil liability on policy grounds. 68 The basis of this policy is 'that if prisoners could resort to legal remedies to enforce gaol regulations, responsibility for the discipline and control of prisoners in gaol would be in some measure transferred to the courts administering justice.' 69 The rules were therefore 'merely regulatory.'

i. Hague v The Home Office; Weldon v The Home Office

A recent case from the United Kingdom considered liability for breach of statutory duty in the context of a breach of prison rules. The facts involved the segregation of a prisoner serving a 15 year sentence, who was described as a 'trouble maker.' The decision to segregate him was made in good faith, but was technically in breach of the prison rules because the governor at the prison which formerly held the prisoner made a decision which should have been made by the governor at the prison to which he was transferred. 70 The facts were not ideal for a test case. Lord Jauncey, in a conservative judgment, held that prison rules were merely regulatory and never give rise to damages for breach of statutory duty. 71 He noted that prison rules cover a wide range of matters - central administration, prison officers, confinement and treatment of prisoners, release of prisoners on licence, and the provision and maintenance of prisons and offences. He felt that the rules were not intended to protect prisoners against loss, and that even those dealing with the safety of prisoners did not give prisoners any private legal rights for breaches of statutory duty. 72 Lord Goff agreed with him.

On the other hand, Lord Bridge held that a particular provision of the rules may be examined to determine whether it gives rise to an action. He found that the particular rule governing segregation did not give rise to an entitlement for damages for acts performed in good faith, albeit invalidly. He specifically rejected the proposition upon which Lord Jauncey relied - that parliament did not give the Secretary of State the power to confer a right on prisoners when it allowed him or her to make the prison rules. Lord Bridge gave the example that rules to protect prisoners working in prison workshops could give rise to claims for breaches of statutory duty. 73 He also noted that unlawful segregation could give rise to one of the other actions outlined in this chapter. Lord Ackner agreed with him. 74 Lord Lowry did not indicate his views.

There are indications that Australian courts will no longer follow the policy preferred by Lord Jauncey and Lord Goff. The policy was once also the basis of a blanket crown immunity. 75 This immunity has diminished in many areas, and is now seen as antiquated and contrary to the public interest in accountability and fairness. Extremely restrictive reasoning was evident in earlier Australian cases, 76 but has been criticised or not followed in subsequent cases. 77 Important recent cases adopt less restrictive reasoning, similar to that of Lord Bridge and Lord Ackner in Hague. 78 That prison rules do not confer private legal rights is a fair generalisation, but rules for the custodial health and safety of prisoners which satisfy the above criteria may in all probability do so. The decision may well have been different if the prison officer had not acted in good faith.

Another basis for suggesting that the position in some Australian jurisdictions might be different is that prisoners' rights have been set down in legislation in the Victorian Prisons Act. It is much more likely that breaches of provisions expressly granting rights give rise to actions for breach of statutory duty. The 'experiment' has not resulted in massive liability, but rather in safer custodial conditions. The Victorian record in relation to Aboriginal deaths in prison custody has been comparatively good. Compared to the circumstances of deaths in other jurisdictions, the two Victorian prison deaths in the seven year period were not obviously avoidable.

2.d False Imprisonment

Prisoners or detainees in police cells may sue for damages for false imprisonment if they are detained unlawfully. A right to damages is recognised by the common law and under international instruments to which Australia is a party. 79 The remedy would have arguably been available in two Queensland cases involving Aboriginal women removed from private homes and charged with public drunkenness (32QLD, 38QLD). An Aboriginal man died after having been fined and discharged but not released (See 65WA). An Australian case in which damages were awarded for false imprisonment proceeded on the basis that prison rules governing the calculation of remissions gave rise to private rights. 80

It is possible that prisoners can legally enforce recommendations 180 and 181, which require that Aboriginal prisoners are not unlawfully or unnecessarily segregated. The issue has not been litigated in Australian courts.

Recent English cases have considered whether a prisoner can sue for damages for false imprisonment if he or she is improperly put in segregation. The courts initially indicated that a prisoner has 'residual liberty' despite his sentence, and also that intolerable conditions of incarceration could change a legal imprisonment to actionable false imprisonment. 81

In two subsequent cases, it has been held that a prisoner's residual liberty does not render a custodial authority liable if a prisoner is detained in good faith by a person given a broad power under the Prisons Act. 82 In one of the cases, a prisoner was allegedly taken without cause to a strip cell by three officers, assaulted, and left naked for a night in the cell. It was held that he could not sue the custodial authority for false imprisonment because the conditions in segregation were intolerable. 83 The court reasoned that false imprisonment concerns only the lack of lawful authority to justify imprisonment - an invalid exercise of a power to arrest, or an invalid warrant - although the prisoner could pursue other causes of action.

First, a prisoner could sue the prison officer if the power to segregate was exercised in bad faith by a prison officer. This is significant. In Weldon, counsel for the prisoner did not argue that the pleadings disclosed bad faith. 84 It has subsequently been recognised that a custodial authority can be vicariously liable if a prison officer engages in a misguided and unauthorised method of performing authorised duties. 85

Second, where the original incarceration was lawful but the segregation was unlawful a prisoner can seek judicial review of the decision to segregate, or seek damages for negligence, assault, or misfeasance in the exercise of a public office. 86 The prisoner allegedly beaten in the strip cell in Weldon was able to pursue a claim in damages for assault, despite the House of Lords holding that false imprisonment should be struck from the pleadings.

The reasons given for not allowing an action for false imprisonment are open to criticism. The argument that improper segregation in a prison is not actionable because a sentenced prisoner would then have to be released has been criticised as unconvincing. 87 The prisoner would merely have to be released from segregation.

The reasoning that allowing actions for false imprisonment for breach of prison rules in undesirable because it amounts to allowing an action for breach of statutory duty through the back door (where that action is unavailable) has superficial attraction. 88 However, if the segregation was in bad faith an action for false imprisonment may lie against a prison officer. 89 In that case, a custodial authority would be vicariously liable irrespective of whether this is equivalent to an action for breach of statutory duty. 90

Neither prisoner had a remedy in false imprisonment against the custodial authority on the facts of Weldon or Hague. Prisoners have a residual liberty if they are falsely imprisoned by a fellow prisoner or an officer acting in bad faith. 91 However, Weldon has already been distinguished by the House of Lords, and its reasoning is open to criticism. 92

It is likely that an action for false imprisonment could lie in Australia where a prison officer has segregated a prisoner in bad faith. A partial deprivation of liberty, requiring intent, may be the subject of an action on the case on proof of damage. 93

The breadth of the power of a prison governor to do anything required for the discipline and good order of a prison may mean it is very difficult to prove that segregation amounts to false imprisonment, particularly against a governor rather than a prison officer.

2.e Judicial Review

Prisoners can seek judicial review of administrative decisions made by prison governors and other decision makers under state legislation governing prisons or police. 94 It is possible that a court would find, in light of the bipartisan Commonwealth, state and territory commitment to the Royal Commission recommendations, that a decision could be challenged for unreasonableness if a relevant recommendation was not considered in reaching an administrative decision.

A South Australian case involved a successful challenge to the basis of decisions by prison governors to place a prisoner in segregation, 95 but the decision was overturned on appeal. 96 A prisoner in New South Wales successfully challenged a decision to refuse day leave on the grounds that irrelevant considerations were taken into account in a decision of the Director-General of Corrective Services. 97 The grounds for review of administrative action which have developed at common law are based on three fundamental principles. An administrator must not erroneously construe the law, must not act in 'excess or want of jurisdiction,' 98 and the procedure by which the administrator reaches a decision must be fair. 99

These doctrines are expressed in various grounds of review: illegality, 100 irrationality and denial of natural justice. 101 An additional ground, an error of law on the face of the record was considered in Craig v SA. In Craig, a case about a decision by a District Court Judge to grant a stay of prosecution until a defendant in a criminal matter obtained adequate legal representation, the High Court took a restrictive view of what constitutes an error of law on the face of the record, at least where the decision is one of an inferior court. 102 It is relevant to prisons in contexts such as decisions of visiting justices (although their role has been steadily wound back by parliament in New South Wales), bail decisions made by justices of the peace and magistrates, and perhaps the decisions of parole boards.

There is uncertainty about the extent to which damages are available as a remedy under administrative law. 103 The so-called 'Beaudesert Principle,' which protects one person's lawful activities from the deliberate, unlawful, and positive acts of another,' was recently overturned. 104 An action on the case is still available if a person intentionally compels a person, by means of a threat of an illegal act, to do some act whereby loss accrues to that person. 105

A number of remedies are available only in administrative law. Prohibition is issued to prevent a tribunal from proceeding to exceed its jurisdiction. Certiorari is only available in order to quash the relevant decision. The remedy of mandamus can be used to compel an administrator to exercise power or jurisdiction where there has been a failure or refusal to exercise power or jurisdiction. The equitable remedies of injunction and declaration are also available.

2.f Misfeasance in a Public Office

A prisoner can recover damages if a prison officer or a police officer abuses his or her office by acting with the object of harming a prisoner or suspect in some way, knowing the actions are invalid, and the prisoner suffers damage as a result. 106 A recent case has indicated that a custodial authority, as an employer, can be liable for deliberate and malicious acts of prison officers or police if the acts are an unauthorised way of doing something that is authorised. 107 The harm must have been foreseeable. 108

2.g Habeas Corpus and other Legislation

The English Habeas Corpus Acts of 1640, 1679 and 1816 require that prisoners illegally imprisoned must be released, and also provide for damages for false imprisonment. Prisoners in New South Wales, Victoria and Tasmania are protected by the Acts. 109 Case law indicates that the writ survives in Western Australia. 110

A High Court case involved an unsuccessful attempt to plead habeas corpus by a prisoner who was held despite accruing sufficient remissions to allow his release under the prison rules. The case failed. The rule allowing release was not in mandatory terms. 111 If it was, the case would have succeeded. The Habeas Corpus Acts are almost certainly still in force in Queensland, South Australia, and the Northern Territory, although not in the Australian Capital Territory. 112 In practice, the writ is used to secure the release of prisoners held without lawful arrest or without a valid warrant of commitment, but there has been little need to rely on the laws for damages because a civil action for false imprisonment is generally available.

The Bill of Rights 1688 (UK) 1 Will & Mar sess 2 c 2 provides that 'excessive baile ought not to be required nor excessive fines imposed nor cruel and unusual punishments inflicted'; words later incorporated into the eighth amendment to the US Constitution. The provision has been relied upon in dissent in a recent case, 113 and may yet be of use in improving conditions in the criminal justice system. Appalling conditions revealed by the New South Wales Royal Commission into Prisons, presided over by Justice Nagle, arose despite the existence of this remedy. 114

2.h Anti-Discrimination Actions

It is unlawful under the Racial Discrimination Act 1975(Cth) and the various State and Territory anti-discrimination enactments for police, prison employees or courts to treat people unfavourably because of their race. The Equal Opportunity Commissions in the states and territories and the Human Rights and Equal Opportunity Commission can accept such complaints.

In 1996, the NSW Equal Opportunity Tribunal heard a complaint by three inmates of Long Bay Prison in Sydney who alleged that they were placed in segregation because of their race. The inmates sought damages. A decision has yet to be handed down. Recommendations 180 and 181 call for proper procedures for the determination of charges in prisons, with no unnecessary segregation for Aboriginal inmates. Anti-discrimination legislation provides a potential means of enforcing the recommendations.

Anti-discrimination actions have also been utilised by Aboriginal staff employed within the police service and the prison system.

There are many other ways legislation such as the Racial Discrimination Act (Cth) 1975 or its state and territory equivalents can be used to enforce the recommendations. For example, there is allegedly a practice of police detaining one member of a group of Aboriginal people for public drunkenness, not for any particular action but merely to break up a group. Essentially the object is to remove Aboriginal people from the streets. This is a breach of recommendation 87.115 It is also a breach of section 9 of the Racial Discrimination Act 1975 (Cth) if Aboriginal people are targeted. Similar circumstances are described in the case of the man who died in the East Perth Lockup (65WA).

The prohibition of indirect racial discrimination could be used to remedy the refusal of bail on the basis of a criterion which applies to all (or is 'facially neutral' in the terminology of anti-discrimination law) but which impacts disproportionately on Aboriginal people. 116

2.i Victims' Compensation Legislation

The New South Wales government has recently moved to prevent prisoners from obtaining compensation when they are the victim of criminal assaults while serving their prison term. The restriction does not apply to fine defaulters, but applies to prisoners sentenced for minor crimes. 117

The media was fed with information about a person convicted of the murder of a child applying for victims compensation. The prisoner had suffered horrendous torture at the hands of fellow inmates. The use of such an extreme example to justify the termination of victims compensation to prisoners is misleading and deceptive. The highest over representation of Aboriginal prisoners in Australian prisons occurs not in the very serious categories, but for driving offences. 118 It is grossly unfair that these prisoners have this remedy denied to them if they are injured as a result of the criminal acts of another inmate or a prison officer.

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.

SJC Recommendation

68. In states where a strict limitation of actions period applies, legislation be amended to provide that the basic limitation period may be waived where a court determines that, in all the circumstances, it is just to so waive it.

69. The fact that a legal claim relating to a death in custody is statute barred by the lapse of time should not be an acceptable ground for State or Territory Governments to refuse to make an ex gratia payment in a case relating to the implementation of Royal Commission recommendations.

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.

SJC Recommendations

70. The South Australian initiative, where a senior Aboriginal person works from the Department of State Aboriginal Affairs as an Ombudsman, should be used as a model by all State and Territory Governments. That position should be supported by express statutory powers.

71. The Ombudsmen in each jurisdiction should be given an express role in the monitoring of recommendations of the Royal Commission into Aboriginal Deaths in Custody. Ombudsmen must be given powers and adequate resources to fulfil this function.

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.

SJC Recommendation

72. State Coroners must immediately be guaranteed conditions equivalent to those of a District Court Judge, including tenure, so as to ensure that judicial independence is achieved in this important jurisdiction.

73. A statutory duty must be placed on coroners ensuring that they address a wider range of specified matters in cases of deaths in custody, such as Royal Commission Recommendation 12 which requires investigation of not only the cause and circumstances of death, but also the quality of care, treatment and supervision of the deceased prior to death.

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.

SJC Recommendation

74. All state and territory governments should legislate to provide that visiting justices or magistrates adjudicate all charges laid against prisoners relating to offences alleged to have been committed while in prison.

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

SJC Recommendations

75. Any review of Aboriginal Legal Services should address matters of wilful misconduct or operational efficiency, but should ensure as a priority that services currently provided to Aboriginal people are not unfairly withdrawn. Aboriginal Legal Services should not be amalgamated with Legal Aid Commissions.

76. The funding of legal services should be provided on a basis which is adequate and at least equivalent to the funding provided to Legal Aid Commissions for an equivalent case load. Specific attention should be paid to funding for the purposes of obtaining psychiatric reports and court transcripts.

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:

United Nations Information Centre   Centre for Human Rights
Level 5, 46 York St,   United Nations Office
Sydney NSW 2000,   8-14 avenue de la Paix
Ph: (61) (2) 262 5111   1211 Geneva 10, Switzerland

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


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.





cover of report

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

for the

Aboriginal and Torres Strait Islander Commission