Aboriginal and Torres Strait Islander viewers are advised that this website contains the names and images of people who have passed
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
4
Claims for compensation based on findings of Commissioners
That if and where claims are made in respect of the deaths based on the findings of Commissioners:
a. Governments should not, in all the circumstances, take the point that a claim is out of time as prescribed by the relevant Statute of Limitations; and
b. Governments should, whenever appropriate, make the effort to settle claims by negotiation so as to avoid further distress to families by litigation.
Families often have to wait years to find out crucial information about how their loved ones have died. This is cruel and exacerbates a family’s grief and trauma.
Victorian Aboriginal Legal Service
Aboriginal Justice Caucus Assessment
The intent of Recommendation 4 was to ensure families could seek compensation in relation to deaths in custody without being hindered by the Statute of Limitations. It also encouraged governments to settle claims through negotiation to avoid the additional distress of litigation for bereaved families.
The Aboriginal Justice Caucus (AJC) observed that while civil processes exist for families seeking to make compensation claims, there is limited information on their accessibility, use or outcomes for Aboriginal families:
It would be advantageous to know what that data says regarding claims that were made…to be able to know if people have been able to navigate that system or how difficult it was. Families may not be aware that they can pursue these options.
(Lawrence Moser, Chairperson, Eastern Metropolitan Regional Aboriginal Justice Advisory Committee (RAJAC)).
While AJC members knew of some families who had sought compensation in relation to deaths in custody, they highlighted that the confidential nature of settlements and lack of publicly available information, limited the available evidence.
The AJC stressed the need for Aboriginal families to be well-informed about options for seeking compensation and advocated for the Victorian Government to make ex-gratia payments to avoid further distress and trauma associated with litigation.
It’s important our people are well informed in regards to whether they can or cannot make claims for compensation or pursue ex-gratia payments.
(Bobby Nicholls, Chairperson, Hume RAJAC)
The AJC also discussed amending funding agreements, particularly with private prison providers so that there are financial consequences when a death in custody occurs, and funds can be made available to families.
In the funding agreements, procurement . . .going forward there must be a component in there around this particular issue and around the resourcing.
(Lawrence Moser, Chairperson, Eastern Metro RAJAC).
Priority for Further Work:
Moderate
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
Inform families about options for pursuing compensation for deaths in custody
Ensure families are well-informed about their options for pursuing civil compensation claims and/or ex gratia payments; avenues for accessing legal and other support to pursue these; and their rights to pursue additional claims if new information arises.
Advocate for the Victorian Government to provide ex-gratia payments
Encourage the Victorian Government to offer ex gratia payments to avoid additional distress of litigation.
Include financial consequences for deaths in custody in private prison contracts
Include financial consequences for deaths in custody in contracts/funding agreements for private providers of prison and/or custodial health services.
Immediate financial support for family after a death in custody
Provide families with a financial support payment (to cover funeral expenses, travel, counselling and other assistance) immediately after a person has died in custody (similar to payments made to families when a child passes in the care of the State). (Agencies with custodial responsibilities to contribute to this fund.)
Background
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) emphasised the need for a sensitive and nuanced approach towards addressing claims related to individual deaths in custody. The Commission re-examined the circumstances of ninety-nine deaths in custody. Several of these had occurred years prior to its establishment and had not been thoroughly investigated until brought to the attention of Commissioners.
The RCIADIC uncovered a disturbing number of instances where systemic failures had either caused or contributed to these deaths and discussed avenues via which families might wish to explore the option of seeking compensation. Acknowledging the diverse attitudes and needs among family members might require different approaches, the Final Report recommended that Aboriginal families resolve these matters with the help of their legal advisers, enabling them to determine the best course of action.
Two significant concerns were raised by the Commission for consideration by governments. Firstly, the potential for the time that had elapsed between a death in custody and the findings of the Commissioners to impact options for families and their legal representatives to make claims. Secondly, the need to minimise the emotional strain on families and proceed via negotiation wherever possible to avoid further distress of court-based hearings.
Actions Taken Since Last Review
In Victoria, pursuing compensation after coronial inquests typically requires civil litigation under the Wrongs Act 1958 (Vic). Claimants in wrongful death cases must demonstrate significant personal injury and may rely on evidence from coronial findings. The Victorian Aboriginal Legal Service (VALS) noted that compensation is challenging to obtain due to the strict psychiatric assessment requirements under this Act.
In rare instances, compensation claims related to deaths in custody have become public. For example, Percy Lovett, long-term partner of Veronica Nelson, initiated a wrongful death lawsuit against the state of Victoria and four other entities. However, in most cases such claims are settled privately through confidential agreements. While this may spare the family further harm or trauma from prolonged litigation, as suggested by the RCIADIC, the confidentiality of these settlements means there is limited public information on the extent to which the Victorian Government has been involved and/or made payments in relation to compensation claims arising from deaths in custody.
The Aboriginal Justice Caucus (AJC) and VALS advocate for more proactive efforts by the Victorian Government to settle claims arising from deaths in custody in good faith, including making ex-gratia payments.
In other jurisdictions, ex-gratia payments have been made by governments in the wake of Aboriginal deaths in custody. An ex-gratia, or act of grace payment, is a discretionary payment made by the government when an individual suffers financial loss or harm due to government actions. This type of payment may be provided when the issue cannot be resolved or compensated through legal means, or when legal action is impractical. There are examples of ex-gratia payments being made in other jurisdictions in relation to Aboriginal deaths in custody, but similar examples were not found for Victoria.
Impact
Outputs
Due to the confidential nature of settlements, there is limited information regarding compensation paid in relation to Aboriginal deaths in custody examined by the RCIADIC, and those that have occurred since.
Outcomes
Despite the 2005 Review recommending that relevant compensation claims be reported to the Aboriginal Justice Forum, no records of such reports could be found.
Compensation claims following deaths in custody can be pursued through civil litigation under the Wrongs Act 1958 (Vic), with the limitation being that legal action must be initiated within 12 years of a death. These court-based processes can be complex and may contribute to the distress and trauma experienced by families whose loved ones have passed in custody.
While some claims become publicly known, many are settled privately, which conceals the extent of the Victorian Government's involvement in and/or payment of claims for wrongful acts or neglect contributing to deaths in custody.
Community Views
Victorian Aboriginal Legal Service
Through Wirraway, VALS offer culturally safe legal support and representation to families, particularly for deaths in custody. VALS has represented several Aboriginal families in coronial inquests for deaths in custody, and continues to raise concerns about the time families must wait for answers:
Families often have to wait years to find out crucial information about how their loved ones have died. This is cruel and exacerbates a family’s grief and trauma.
Lack of accountability for failures contributing to deaths in custody, means civil processes are often the last available option for families seeking justice:
So far, no individual or organisation has faced any disciplinary action or criminal prosecution for their involvement in Veronica’s passing.