*** Aboriginal and Torres Strait Islander readers are advised that this article contains images and details of people who have passed and discusses sensitive issues such as deaths in custody ***
Introduction by Croakey: Systemic national action on recommendations from the Royal Commission into Aboriginal Deaths in Custody is required to address culturally unsafe practices in coronial processes, according to Adjunct Professor George Newhouse and Steven Castan from the National Justice Project.
While two jurisdictions – New South Wales and Victoria – have introduced culturally safe protocols for families dealing with coronial inquiries, the rest of the country lags behind, according to Newhouse and Castan, resulting in trauma and injustice.
Many of the Royal Commission recommendations have yet to be implemented and, according to the Victorian Aboriginal Legal Service, there have been 576 deaths in custody since the final report handed down more than 30 years ago.
Below, Newhouse and Castan report on important discussions from the recent Asia Pacific Coroners Society 2024 Conference, held at Uluru, with the theme: Sorry Business. Can the Coroner’s Court investigate, interrogate and heal?
George Newhouse and Steven Castan write:
More than three decades on from the Royal Commission into Aboriginal Deaths in Custody, coroners and legal practitioners learned at the recent Asia Pacific Coroners Society 2024 Conference that coronial process are implicated in inflicting pain on the families mourning the deaths of their loved ones.
Some families have felt re-traumatised, stigmatised, disadvantaged, unheard, dismissed and sidelined throughout the coronial process, according to the ACT Coronial Advocates Group (ACAG), who spoke at the conference.
Although post death investigations were a key recommendation of the Royal Commission, only two jurisdictions – New South Wales and Victoria – have introduced culturally safe protocols and established liaison units for families dealing with coronial inquiries into the deaths of First Nations people.
And this took more than 30 years to be implemented by coronial courts in Australia – the wheels of justice turn slowly.
The theme of the conference ‘Sorry Business’ explored the cultural insensitivity and racism in our coronial system and offered insights on how to improve the experiences of First Nations families and communities in the process.
The National Justice Project human rights legal service presented a session on the good, the bad and the ugly of coronial practices in Australia.
We recently witnessed an example of the good when NSW Deputy State Coroner Magistrate Erin Kennedy handed down her findings into the death of Ricky ‘Dougie’ Hampson noting that “the inquest included beautiful cultural reflections from the initial smoking ceremony at Dubbo, the Aboriginal dance by his children as part of their family statement and the final reflection on the day of findings by way of a smoking ceremony”.
Cultural safety
We reminded conference attendees that in 2009 former Western Australian Coroner Alistair Hope explained that the Royal Commission into Aboriginal Deaths in Custody provided a “timeless reminder that every avoidable Indigenous death calls upon [coroners] to identify its underlying causes, consider Indigenous disadvantage, uncover the truth about the death and resolve upon practical steps to prevent others”.
Unfortunately, his approach of making broader systemic findings and recommendations has not been followed by many of his successors.
A decade later, the Coroner’s Court of Victoria introduced a new practice direction in 2020, to make the court a safer and more supportive place for Indigenous families, including the establishment of an Aboriginal Liaison Unit.
We believe these initiatives have helped to reduce the trauma experienced by Aboriginal families as they deal with the grief of losing a loved one while navigating the coronial system and driving change.
Two years later, in 2022, the NSW State Coroner’s Protocol was adopted to provide guidance to NSW coroners on the conduct of investigations and inquests into First Nations people’s deaths.
That protocol has led to more timely and culturally appropriate approaches to inquests for First Nations families, including the appointment of Aboriginal Coronial Information and Support Officers.
Victoria and New South Wales both acknowledge the complex family structures and kinship systems in First Nations communities and the desire of families for respect, truth-telling and transparency, systemic change, accountability and closure. These are steps in the right direction, but we need to see more jurisdictions stepping up to make meaningful change.
Systemic change
Without national systemic action, we will see more families broken by a court system that can be culturally unsafe, overtly racist and retraumatising. A system which at its worst has treated Aboriginal witnesses and families with disrespect, by failing to empathise with grief or cultural practices, by discriminating against them and by failing to understand and acknowledge the impact of colonisation on Aboriginal and Torres Strait Islander Peoples.
In 2020 the International Journal for Crime, Justice and Social Democracy published The Experience of Aboriginal and Torres Strait Islander Participants in Australia’s Coronial Inquest System: Reflections from the Front Line.
This was a sobering report on the ways that the coronial systems across the country have failed to act on many of the recommendations from the 1991 Royal Commission and to implement the reforms that are needed to bridge the gap between the expectations of families and the realities of the court process.
In the last four years we have seen significant reforms in NSW and Victoria as well as the granting of Federal Government funding to Aboriginal and Torres Strait Islander legal services around Australia to support First Nations families at inquests.
However, there is still a long list of reforms that have been proposed, recommended and championed over decades, to improve the experience of First Nations families, to stop the overincarceration of First Nations people, to reduce deaths in custody and to mitigate some of the trauma generated by inquests into First Nations deaths.
In particular, the resolution of the conflict between traditional lore and colonial law, to deliver on the expectations of families to see justice and real change and the urgent need to appoint First Nations Coroners and investigators is critical.
About the authors
George Newhouse is the principal solicitor and CEO of the National Justice Project and an Adjunct Professor of Law at the Macquarie University.
Steven Castan is special counsel and educator and Chair of the National Justice Project, and Associate Lecturer in the School of Law at Monash University.
The National Justice Project addresses injustices in prisons and policing, healthcare, immigration detention, child protection and youth detention.
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See Croakey’s archive of articles on cultural determinants of health.
