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It is therefore timely and relevant that its appropriateness in dealing with Indigenous over-representation, and with Indigenous marginalisation generally, be critically re-assessed. In particular, there is a need to consider whether the investigative procedures undertaken by the RCIADIC and the political constraints surrounding its inception resulted in non-orthodox information and perspectives being excluded.

This paper uses data collected from interviews with 48 people associated with the RCIADIC in order to critically reflect upon the way in which the inquiry was established and conducted to determine whether it was constrained in its ability to fully consider the problems confronting Indigenous Australians when dealing with the Australian justice system. I Introduction Royal commissions [1] are frequently used in Australia, Canada and Great Britain to investigate political wrongdoing and to make recommendations regarding policy reform.

In Australia there have been 127 royal commissions since 1902, investigating matters including the butter industry, the Constitution, customs and excise, the building industry and taxation. Certain perspectives on the problem being investigated are privileged while others are marginalised or excluded entirely. This paper endeavours to explore this privileging and exclusion by investigating the process, context and outcomes of one royal commission in particular: Although there has been considerable debate about the use of royal commissions to investigate wrongdoings and to make public policy recommendations, [3] few scholars have considered the extent to which the quasi-judicial processes are appropriate for investigating the affairs of marginalised others.

Even though more than a decade has passed since the publication of the final report, it continues to significantly influence Indigenous social and justice policy in Australia.

This paper endeavours to remedy this important oversight. Part III summarises the law and politics literature critical of royal commissions generally. The catalyst for its inception was public agitation by members of the Indigenous community about the large number of Indigenous deaths in custody that were occurring during the 1980s.

Only one commissioner was initially appointed because it was assumed that there would only be approximately 44 deaths to investigate. Commissioner Johnston replaced Commissioner Muirhead who had retired as the national commissioner on 28 April 1989. Although the original terms of reference contained in the Letters Patent were framed in a way that limited the inquiry to investigating the deaths per se, they were later extended to include a consideration of the underlying social, cultural and legal issues that may have had a bearing on the deaths.

Why are so many arrested and put in cells and prisons? Are they treated fairly by law? Why are so many Aboriginals unemployed, poorly housed, poorly educated? Why is their health poor?

  1. Hallett acknowledges that the executive government should have the benefit of a range of differing opinions, but that in the end this may create more confusion rather than a clarification of the issues. One must be cautious in employing such a measure.
  2. Although there has been considerable debate about the use of royal commissions to investigate wrongdoings and to make public policy recommendations, [3] few scholars have considered the extent to which the quasi-judicial processes are appropriate for investigating the affairs of marginalised others. The inquiries into the deaths were conducted using a single member approach in each of the jurisdictions, including Western Australia.
  3. As is the case with any research project, a preliminary examination of the problem is needed before establishing an inquiry and before expecting the inquiry to start the main part of its investigation. Therefore a commission will always be conscious of how much time and money has been expended.

Why is their life expectancy shorter than other Australians? The belief was that this would uncover any foul play on the part of police and custodial officers. More specifically, the National Report noted that [n]ot infrequently the files contain false or misleading information; all too often the files disclose not merely the recorded life history of the Aboriginal person but also the prejudices, ignorance and paternalism of those making the record.

Public hearings for each death investigated were held in either the hometown of the deceased, the town in which the death occurred, or in a capital city. In its investigation of the underlying issues the RCIADIC relied upon sociological and criminological research, public meetings and the submissions received from a number of individuals and organisations in order to understand the way Indigenous people lived and to fully appreciate the way colonisation had affected and continued to affect Indigenous Australians.

This was done to address concerns, which were originally expressed by Gary Foley, a prominent Indigenous activist, that there was no avenue for direct input into the investigations into underlying issues from the Indigenous community. There were no successful prosecutions of police or prison officers as a result of the inquiry.

Only two commissioners Commissioner Wootten [31] and Commissioner Wyvill [32] in the case of Charlie Kulla Kulla made strong recommendations that the conduct of certain police officers be further investigated by disciplinary and prosecutorial authorities.

The National Report, consisting of five volumes, was tabled on 15 April 1991 and made 339 recommendations regarding the underlying issues surrounding the deaths.

The RCIADIC concluded that it was because of the over-representation of Indigenous people in police and prison custody that so many deaths had occurred. The 339 recommendations made by the RCIADIC focused primarily upon the adequacy of police and coronial investigations into deaths in custody; self-determination and empowerment; providing adequate social, educational, vocational and legal services for Indigenous youth; cultural diversity suggestion for case 6 2 birch paper company the need for culturally sensitive practices to be incorporated in the dominant criminal and legal justice systems; managing alcohol and substance abuse; improving police relations with, and treatment of, Indigenous people; improving custodial care; conforming with international obligations; addressing land needs; and the continued recognition of the importance of reconciliation.

Over a decade after the RCIADIC tabled its recommendations, many of the people who were interviewed noted that there has been little improvement in the lives of Indigenous people.

Comments containing sentiments similar to the following were not uncommon: But for all those skills and all that education, our people are still sitting in the same status. Why, after such an extensive inquiry, are these problems and negative perceptions still present? When answering this question, some scholars point to the lack of commitment by federal, State and Territory governments to fully implementing the recommendations made by the RCIADIC.

One must be cautious in employing such a measure. Their reflections are placed within the context of literature that considers the limitations of royal commissions generally. III Royal Commissions and Their Critics Much of the literature that critiques the processes and outcomes of royal commissions focuses on problems that are specific to a particular inquiry. Aside from matters of procedural power, royal commissions have been critiqued for their administrative structure, decisions and functions.

For example, some scholars have considered the propriety of appointing judges to head royal commissions. This, he argues, would avoid problems of conflict of interest that judges still serving on the bench may experience.

Critical Reflections upon Australia’s Royal Commission into Aboriginal Deaths in Custody

One way to resolve the problems associated with appointing commissioners who do not have adequate social science research skills is to appoint more than one commissioner. The appointment of an additional commissioner in that State, however, occurred mainly because of the large workload associated with investigating such a large number of deaths rather than as an effort to address any inadequacy of skills.

In particular, there may be delays in delivering reports and recommendations, [47] and this may result in the exclusion of information due to time and resource constraints. Hallett acknowledges that the executive government should have the benefit of a range of differing opinions, but that in the end this may create more confusion rather than a clarification of the issues. If the dichotomy between investigative and advisory commissions could be maintained, and the former used very sparingly, commissions of inquiry might continue to be useful instruments of policy formulation.

Thus, in reality the best we can call for is clarity of thought suggestion for case 6 2 birch paper company drawing the mandates of commissions of inquiry, not the absolute separation of advisory and investigatory roles. According to Liora Salter, the ability of royal commissions to make radical recommendations that more aptly satisfy and reflect the expectations of victims is impossible because the process of a royal commission itself inhibits such a thing from happening.

It was able to do so because it adopted extensive investigative procedures, which included wide-ranging consultations and close attention being paid to the language used in making recommendations.

Some scholars have blamed this outcome on the types of recommendations made. That is, it is a mechanism used by government as a delaying tactic while it considers its options, rather than being a legitimate method of investigating misconduct.

This requires management of both the process and the media. This would have arguably made it difficult to manage the various stakeholders involved, and ultimately to reflect the views of all concerned. Of the 48 persons interviewed, 23 were legally trained, including both Indigenous and non-Indigenous counsel, commissioners, solicitors, research officers, assistants to the commissioners and heads of AIUs.

Only three of the Indigenous people interviewed had such qualifications. Others, however, supported its establishment, believing it would lead to change. Indigenous people wanted to voice their opinions about the deaths and it seemed they had finally been given an outlet in which to do so. I do know that there are many Aboriginal people whose hopes have been deferred time after time after time and the royal commission was just another time where hope was being deferred.

Ultimately, no successful prosecutions resulted from their efforts and they, like many Indigenous people, were left feeling frustrated and disillusioned by the process.

What follows is a description of these problems and how they affected the information collected and relied upon, as remembered by those that worked on the RCIADIC. Although many suggestion for case 6 2 birch paper company commissions commonly experience some of the problems identified, other difficulties were particular to the RCIADIC inquiry and the subject matter that it was investigating. While the problems are clearly delineated, they are certainly not unrelated and there is considerable overlap between them.

Such a problem is not uncommon with royal commissions that are given unusually broad mandates. One of the lawyers interviewed believed that there were not enough senior people in the RCIADIC who were feeding or driving the research regarding the underlying issues, particularly in Queensland.

Overall, only one commissioner was appointed to focus solely on underlying issues Patrick Lionel Dodson and his focus was purely on the underlying issues in Western Australia. For example, there was little focus on the ways in which Indigenous women experienced racism differently to Indigenous men.

The RCIADIC realised too late that the underlying issues were important and that police officers were not deliberately trying to kill Indigenous people. Consequently, the investigation into the underlying issues took a back seat and its assessment and incorporation ultimately became the responsibility of the national commissioner.

One of the commissioners also noted that there was no plan for the investigation of the underlying issues whereas there was such a plan for the investigation of the deaths. This made the investigation into the underlying issues that much more difficult.

At another level, the commissioners could not agree on what should go into the National Report because of their differing philosophical and political attitudes. Both Indigenous and non-Indigenous people who were interviewed said that if they were to have another royal commission into Indigenous deaths in custody they would probably focus purely on the underlying issues.

However, some observed that, if such an inquiry were again to take place, someone other than a lawyer should head the inquiry. Ultimately, the feeling was that if they had had the full three years to conduct the underlying issues inquiry they might have done a better job for Indigenous people. Both administrative and professional staffing resources were often scarce and inadequate.

Because the inquiry was occurring nationally, it drained the availability of experts in various fields, which made it difficult for some offices to appoint all the necessary experts they required.

Instead of recognising the constraints that were placed upon the RCIADIC, Duncan Graham notes that [i]t was the slow progress of the commission and the cost which … regularly aroused the concern of politicians, including the federal Labor government, and the police. Sadly there was little public analysis of these events. The fact that each death was investigated using a quasi-judicial process made the investigations into the deaths a protracted endeavour.

Some lawyers strongly believed that many of the less contentious deaths could have been investigated by reviewing the enormous amount of written material collected from government agencies and by having a series of brainstorming sessions with various members of the community and other institutions, rather than having separate hearings for each deceased.

And that's where we started. It would also have been impossible for suggestion for case 6 2 birch paper company RCIADIC to adopt such a process early on in its existence since there had been no preliminary work carried out by the federal government to determine what parameters, if any, should be placed on the investigations.

Indeed, the RCIADIC was appointed without the government having a complete understanding of how many deaths needed investigating and what challenges might arise.

When referring to the initial establishment of the RCIADIC, a lawyer recalled that [t]here was a huge clamour at this stage at the start of the royal commission for it to get established immediately.

In doing so, the commissioners were bound by their terms of reference and the Commonwealth, State and Territory Acts that regulated their powers of investigation. In reaching my findings as to essential events, such findings must be based on the totality of the material before me.

  • Self-Determination as a Solution?
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As previously mentioned, only two of the commissioners recommended that the reports be sent to disciplinary and prosecutorial authorities for further consideration. The Indigenous people who were interviewed were particularly disappointed with the failure of the RCIADIC to apportion blame to individual police and custodial officers.

Half of them thought that the RCIADIC had failed to use the full extent of its powers and had acted in a conservative manner when making determinations regarding why the deceased had died.

Although most of the Indigenous people interviewed were aware that the RCIADIC could not make any findings of guilt, they thought that the commissioners should have at least used stronger wording in the death reports against some individuals whom they thought had lied giving evidence. Anyway what I objected to was the fact that the royal commission could have found in those cases that they believed that this person was killed deliberately and then required some further work to be done with the purpose of setting charges.

Macquarie Law Journal

This tension existed because the inquiry had been portrayed as primarily wanting to investigate why the deaths had occurred and to determine whether there had been any foul play on the part of police and custodial staff. Two of the people interviewed thought that Indigenous communities had not been adequately informed about what the RCIADIC was doing and what powers it possessed, which meant that many Indigenous people believed that there would be different findings in relation to the deaths.

One of the lawyers thought that the Mahon v Air New Zealand [85] case had influenced the way that the commissioners made their rulings. The case considered the personal liability of a commissioner in recommending prosecutions in a 1981 royal commission report against Air New Zealand in an Antarctic crash.

Air New Zealand was successful in proving that Mahon had made the recommendations without any substantial evidence. This case had been decided in the mid 1980s, so the commissioners of the RCIADIC are very likely to have been aware of the possibility of being held personally liable if they incriminated individual police or prison officers without ensuring that the rules of natural justice had been followed.

They are likely to have been conscious of the need to make sure that they had a sufficient amount of evidence to substantiate any claims they made. The fact that witnesses had died, the deaths had occurred a long time ago, documents were missing, and some witnesses were considered unreliable resulted in the commissioners taking a cautious stance in relation to the way they weighed the evidence and ultimately to way they allocated blame.