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Aboriginal and Torres Strait Islander viewers are advised that this website contains the names and images of people who have passed
This is a RCIADIC recommendation
12
Legal requirement to consider care and treatment prior to death
That a Coroner inquiring into a death in custody be required by law to investigate not only the cause and circumstances of the death but also the quality of the care, treatment and supervision of the deceased prior to death.
Without undermining the discretion of coroners to manage each investigation/inquest on a case by case basis, there should be further standardisation of coronial processes. This will assist in providing clarity for families and their legal representatives about the process.
Aboriginal Justice Caucus Assessment
The intent of Recommendation 12 was to mandate thorough investigations into deaths in custody, encompassing not only the cause and circumstances of death but also the quality of care, treatment, and supervision provided to the deceased before their passing.
The Aboriginal Justice Caucus (AJC) determined that actions taken partially aligned with the intent of Recommendation 12. The State Coroner issued Practice Direction 6 of 2020, which directs the investigating coroner to consider, when investigating the circumstances of the death of an Aboriginal person in custody, the quality of care, treatment and supervision prior to death.
The AJC found that the intent of Recommendation 12 had not been fully realised, as the updated Coroners Court Bench Book notes that the recommendation has not been explicitly incorporated into the Coroners Act 2008 (Vic). A practice direction is not ‘required by law’ in the way intended by Recommendation 12.
The AJC stressed that Recommendation 12 remains highly relevant for further work, as it addresses crucial aspects of death in custody investigations by broadening their scope and potentially allowing for a broader range of recommendations to be made that may ultimately result in significant systemic changes that prevent Aboriginal deaths in custody.
The AJC noted that further efforts towards full implementation of Recommendation 12 require ‘upgrading’ the relevant directive in Practice Direction 6 to a legal requirement by including it in the Coroners Act 2008. In addition, the AJC advocated for ‘minimum’ scope requirements for Aboriginal deaths in custody that include examining potential breaches of human rights and impact of systemic racism, to ensure greater consistency across coronial inquiries and increased likelihood that systemic issues may be identified and addressed over time
Priority for Further Work:
High
Relevance and potential impact | |||||
|---|---|---|---|---|---|
Low (0-2) | Moderate (3-4) | High (5-6) | |||
Extent of action taken and evidence of outcomes | High (5-6) | ||||
Moderate (3-4) | |||||
Low (0-2) | |||||
Potential Actions for Further Work
Amend the Coroners Act 2008
- Enshrine parts of Practice Direction 6 in law. Amend the Coroners Act 2008 so that a coroner must consider, when investigating the circumstances of the death of an Aboriginal person in custody, the quality of care, treatment and supervision prior to death.
- Specify minimum requirements for the scope of inquiry into an Aboriginal death in custody that include the examination of potential breaches of human rights and impact of systemic racism.
Cultural training for people involved in coronial investigations
Ensure that everyone involved in the investigative process undergoes cultural training and integrates awareness of the RCIADIC recommendations into their work, not just attending training sessions but actively demonstrating this knowledge in their roles and findings.
Background
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) emphasised the need for comprehensive coronial inquiries having examined too many that were narrowly focused or failed to consider a broad range of factors contributing to Aboriginal deaths in custody. The Commission recommended that investigations should not only examine the cause of death but also critically evaluate the quality of care, treatment, and supervision provided to the deceased. Such inquiry would promote transparency and accountability and potentially lead to improvements in custodial practices to prevent future tragedies.
Actions Taken Since Last Review
Coroners Court of Victoria
The Coroners Court Bench Book guides Victorian coroners in their interpretation and application of the Coroners Act 2008. Reflecting on fifteen years of legal evolution and practical implementation, the updated 2023 edition provides insights into established practices across key areas, including jurisdiction, procedural fairness, inquests, and investigative powers.
Notably, it includes a section on the RCIADIC summarising its key criticisms about coronial inquiries and related processes, and recommendations made to improve the coronial system.
The Coroners Court Bench Book notes that Recommendation 12 from the RCIADIC has yet to be directly incorporated into the Coroners Act 2008 (Vic).
While the Act does not explicitly mandate this broader investigation for deaths in custody, Practice Direction 6 of 2020 outlines the process for investigating Aboriginal deaths in custody, emphasising the need to consider the quality of care, treatment, and supervision in line with Recommendations 12 and 35.
In the Finding into Death with Inquest into the Passing of Veronica Nelson, Coroner McGregor concluded that section 6 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’), which protects the right to life, shapes the scope and focus of inquests. He determined that the Charter obliges coroners to closely examine deaths by scrutinising the conduct of State actors and the broader context, particularly to identify any possible human rights breaches that may have caused or contributed to the death. Whether this occurs consistently in practice, depends upon the discretion of individual coroners.
Impact
Outputs
The State Coroner issued Practice Direction 6 of 2020 which outlines matters to be investigated for Aboriginal deaths in custody, in support of Recommendations 12 and 35.
Outcomes
The Coroners Act 2008 (Vic) does not explicitly require the assessment of the quality of care, treatment, and supervision provided to the deceased before their passing. The Coroners Court Bench Book highlights that RCIADIC Recommendation 12 has yet to be directly incorporated into the Coroners Act 2008 (Vic). While Practice Direction 6 of 2020 outlines the investigation process for deaths in custody of Aboriginal persons and emphasises the consideration of the quality of care, treatment, and supervision, as a directive rather than legislative provision it lacks the legal basis intended by Recommendation 12.
Community Views
Victorian Aboriginal Legal Service
The Victorian Aboriginal Legal Service made several recommendations in their submission to the ‘Review of Bereaved Families going through a Coronial Process’ including that:
Without undermining the discretion of coroners to manage each investigation/inquest on a case by case basis, there should be further standardisation of coronial processes. This will assist in providing clarity for families and their legal representatives about the process.
This ‘standardisation’ could include minimum requirements for the scope of the inquiry.
Human Rights Law Centre
Systemic racism in the coronial inquest into the death of Tanya Day
The Human Rights Law Centre (HRLC) represented the family of Yorta Yorta woman Tanya Day during the coronial inquest into her death. The Day family raised serious concerns about the role of systemic racism in the actions of the agencies involved in her treatment and sought its examination within the scope of the inquest. The HRLC defined systemic racism as the formal and informal policies and practices embedded within institutions that harm certain racial and ethnic groups while benefiting others. The coroner ultimately permitted witnesses to be questioned about whether racism influenced their decisions, including their treatment of Ms Day, the options they considered, and the potential unintended consequences of their actions. An expert report on systemic racism was admitted, and witnesses were required to produce relevant policies, procedures, and training materials.