Federal Attorney-General Bob Debus will today launch a special edition of the Australian Indigenous Law Bulletin.

The report, Coronial Recommendations and the Prevention of Indigenous Death, examined 185 coronial inquests across Australia and, combined with the accompanying articles, presents a damning indictment of repeated failures by governments across Australia to effectively respond to coronial recommendations and points to several key areas of overdue reform in the management of the “nether world” of coronial investigations in relation to indigenous deaths generally, and those in police custody in particular.

In the report’s introduction, Debus says:

Almost two decades after the RCIADIC (Royal Commission into Aboriginal Deaths in Custody) delivered its final report, the plight of indigenous people who come into contact with the criminal justice system remains urgent … the authors underline the important role that coronial investigations and subsequent recommendations can play in addressing this disadvantage for Indigenous and non-Indigenous people.

One aspect of coronial investigations that receives particular attention in the report is the mandatory reporting by Government agencies of their response to particular, and advice on the implementation of, coronial recommendations within their jurisdiction.

As Debus states: “While some jurisdictions have enacted legislative requirements to formally respond to coronial recommendations, the authors suggest there is a lack of scrutiny of whether they have been implemented.”

The authors of the report note that:

Of particular concern were our study’s findings of the recurring instances where coronial recommendations had not been communicated or had been miscommunicated, or were lost within bureaucratic processes … One of the primary recommendations of the study is that uniform national legislation be enacted compelling public reporting of, consideration of, and response to, coronial recommendations.

At present, the only Australian jurisdiction that requires Government agencies to publicly report on coronial recommendations that fall within their jurisdiction is the Northern Territory.

As NT Coroner Greg Cavanagh described it to Crikey, this important change to the law was in large part due to the advocacy of the Attorney-General in the first Martin Labor Government in the NT, Peter Toyne.

In Cavanagh’s words, Toyne proudly described himself as the “only politician in the NT Parliament who has read the RCIADIC reports from front to back.”

As the Report notes, at least four of the RCIADIC’s many recommendations referred to the benefits of and need for a public reporting and review system of coronial recommendations and responses of governments to them.

Toyne’s commitment to the RCIADIC’s recommendations saw the introduction of section 46B into the Coroner’s Act (NT), which provides that:

  1. If a Chief Executive Officer or the Commissioner of Police receives a copy of a report or recommendation under section 46A(1), the Chief Executive Officer or Commissioner must, within 3 months after receiving the report or recommendation, give to the Attorney-General a written response to the findings in the report or to the recommendation.
  2. The response of the Chief Executive Officer or the Commissioner of Police is to include a statement of the action that the Agency or the Police Force is taking, has taken or will take with respect to the coroner’s report or recommendation.

While the NT is to be lauded for introducing apparently effective reporting by Government agencies in response to a Coroner’s recommendation, there are still frustrations within that system.

In relation to the implementation of s. 46B in the NT, the Report notes that it has not been without its problems:

Coroner Cavanagh continued his findings [into a series of deaths of petrol sniffers in central Australia] with an indictment of the NT Government’s inaction towards petrol sniffing in the NT, noting ‘numerous’ reviews, inquiries and reports concerning petrol sniffing and (with emphasis) the 1991 recommendations of the RCIADIC … Cavanagh noted that he could not disagree with a witnesses use of the word ‘pathetic’ to describe government responses to coronial recommendations in this area.

The introduction of a national model scheme has been before the Standing Committee of Attorneys-General for consideration for some years.

As Debus notes in his introduction to the Report, “The development of a national approach to coronial recommendations could be a component of [the National Indigenous Law and Justice] Framework”.

Crikey understands that a proposal to introduce mandatory reporting, consideration and response to coronial recommendations would meet with considerable resistance from the larger States, where it would be viewed as an inappropriate expansion of coronial powers and the equivalent of having a standing Royal Commission.

But Cavanagh, based on his experience in the NT and his increasing interaction with his interstate colleagues, and notwithstanding the problems that his office has had in the recent past, would be supportive of a national system:

The mandatory reporting and review system that we have in the NT gives the coronial system, and those who work within it, and the families of the deceased, the confidence that a good coronial report that contains sensible and pragmatic recommendations will get an effective and appropriate response from Government and Government agencies.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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