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8
State Coroner to develop protocol for inquiries into deaths in custody
That the State Coroner be responsible for development of a protocol for the conduct of coronial inquiries into deaths in custody and provide such guidance as is appropriate to Coroners appointed to conduct inquiries and inquests.
We need protocols and processes...particularly an external advocate. If it comes back to the Caucus so that we can see, hear, touch, pick apart what they say they're doing and make sure it is happening. They should be accountable for refining their processes or whatever else because, at the moment, this works a bit like...you know...like coppers doing their own investigating, right?
Aboriginal Justice Caucus Assessment
The intent of Recommendation 8 was for the State Coroner to create a protocol to ensure consistent and thorough investigations into deaths in custody by appointed coroners
The State Coroner issued Practice Direction 6 of 2020 - Indigenous Deaths in Custody (Practice Direction 6) in response to this recommendation, and the Coroners Court review of implementation of relevant RCIADIC recommendations. Practice Direction 6 guides several aspects of the investigation process, including cultural sensitivity and immediate actions after a death occurs.
Concerns have been raised by VALS and the community regarding inconsistent investigations of deaths in custody, which vary between coroners. This inconsistency complicates advice that can be provided to families on how and when aspects of the investigation will progress. There are notable delays in providing families access to the coronial brief despite policy guidelines mandating a three-month release timeframe. VALS reports that documents are often released late or are incomplete.
Other AJC members raised similar concerns about inconsistent implementation of Practice Direction 6 over time and between coroners, given their discretion in applying Practice Direction 6.
There have been issues in the past not just with the coroner doing the investigation but with the internal staff as well working with the coroner and with the families. It’s been very unethical in terms of how they have treated the families.
(Robert Nicholls, Chairperson, Hume RAJAC)
Recommendation 8 remains highly relevant to address the handling of Aboriginal deaths in custody. An external review of the implementation of Practice Direction 6, with Aboriginal involvement, could strengthen it as could including these protocols in the Coroners Act 2008.
We need protocols . . .If you don't have protocols that are implemented, you don't get things done properly.
(Merle Miller, VAEAI representative)
We need protocols and processes...particularly an external advocate. If it comes back to the caucus so that we can see, hear, touch, pick apart what they say they're doing and make sure it is happening. They should be made accountable for refining their processes or whatever else because, at the moment, this works a bit like...you know...like coppers doing their own investigating, right?
(Lawrence Moser, Chairperson, Eastern Metropolitan RAJAC).
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
More consistent application of Practice Direction 6
Independent, external review of existing coronial protocols relating to Aboriginal deaths in custody. Any review must involve meaningful and active Aboriginal participation. The revised protocols must be enshrined in legislation to ensure consistency and accountability across all coronial investigations.
Background
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) emphasised the pressing need for a comprehensive and consistent approach to coronial investigations into deaths in custody. The report proposed that the State Coroner be responsible for creating a protocol to guide the conduct of Coronial inquiries over all jurisdictions into deaths in custody, ensuring that investigations meet appropriate standards and address relevant considerations. By adopting a broader oversight, the State Coroner could potentially guide other Coroners involved in inquiries, assuring that various factors and circumstances surrounding deaths in custody are fully considered in the process.
Actions Taken Since Last Review
Coroners Court of Victoria
During the inquest into the death of Tanya Day, the Deputy State Coroner recognised the need for the Coroners Court to review the RCIADIC recommendations relevant to coronial investigations. This led to the 2020 introduction of Practice Direction 6 – Indigenous Deaths in Custody (Practice Direction 6) which aims to strengthen the implementation of Recommendation 8 from the RCIADIC and related recommendations. While previous Practice Directions addressed procedures for police contact deaths, which generally align with Recommendation 8, the Court has chosen a more targeted approach for Aboriginal deaths in custody.
The Coroners Court intends this to be the fulfilment of Victorian obligations under RCIADIC Recommendation 8 but will also touch upon obligations under certain other RCIADIC recommendations aimed at improving coronial processes.
The Practice Direction acknowledges the significance of the RCIADIC recommendations, particularly those related to coronial processes and the treatment of Aboriginal deaths in custody. It emphasises the importance of embedding cultural appropriateness throughout investigations to avoid further compounding grief and loss for Aboriginal families and communities.
The State Coroner, Judge John Cain recognises the importance of responding to the cultural needs of families affected by Aboriginal deaths in custody:
The Court has an important role in independently investigating Indigenous deaths in custody – how we carry out this duty must recognise and respect the cultural needs of the families affected. This new practice direction will make the Court a safer and more supportive place for Indigenous families. The establishment of the Coroners Koori Engagement Unit has meant we now have the resources to clearly reflect the Royal Commission recommendations in our court processes.
Impact
Outputs
The State Coroner introduced Practice Direction 6 of 2020 to strengthen its response to Aboriginal deaths in custody, aligning with RCIADIC Recommendation 8.
Outcomes
Practice Direction 6 sets out culturally responsive procedures across all stages of the coronial process, from immediate actions after an Aboriginal death in custody is reported to the coroner to the conduct of court hearings. It aims to embed cultural sensitivity in investigations and court proceedings, with the aim of reducing further trauma for Aboriginal families and communities.
While the practice direction is a significant step forward, there is mixed evidence of the extent and consistency of its implementation given the discretion of coroners in this regard.
Community Views
Victorian Aboriginal Legal Service
In their submission titled 'Review of Experiences of Bereaved Families Going through a Coronial Process,' the Victorian Aboriginal Legal Service (VALS) acknowledged the progress made in implementing Practice Direction 6 in Victoria, and highlighted areas for improvement.
VALS emphasised that coronial investigations and inquests into the death of an Aboriginal person occur ‘within a context of systemic racism and institutional violence against Aboriginal people, extending to any loss of Aboriginal life.’ They noted that insufficient resources allocated to coroners contribute to delays and backlogs at the Victorian Coroners Court, a challenge observed in other parts of Australia. Additionally, VALS noted that inconsistencies with coronial briefs and delays in coronial inquests diminish their capacity to prevent future deaths effectively, as recommendations issued by a coroner post-inquest become less impactful over time.
VALS highlighted that in the Tanya Day Inquest, systemic racism was identified as a contributing factor to her death, underscoring the need for a critical examination of bias in decision-making processes. While Practice Direction 6 requires that coronial inquests into the deaths of Aboriginal individuals in custody must consider the quality of care provided before death, VALS argues for the broader inclusion of systemic racism in these investigations. Despite the resilience of Aboriginal communities, the trauma of losing a loved one and navigating the investigative process makes Aboriginal family members particularly vulnerable, necessitating their prioritisation throughout the investigation and inquest.
Aboriginal Justice Caucus
The AJC raised concerns about situations where a coroner’s discretion may result in different outcomes for Aboriginal families, particularly with decisions made in relation to deaths considered to be due to ‘natural causes’ that do not proceed to inquest. If requested by a family, the coroner must reconsider the need for an inquest. Any decision to proceed is at their discretion. Similarly, their discretion has considerable impact on the scope and depth of the inquest and examination of the care and treatment provided to a person before they passed in custody.