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Aboriginal deaths in custody - Royal Commission (Hon. E.F. Johnston, QC) - Reports - Regional report of inquiry in - New South Wales, Victoria and Tasmania (Commissioner Hon. J.H. Wootten, AC, QC)


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ROYAL COMMISSION INTO ABORIGINAL DEATHS IN CUSTODY

REGIONAL REPORT

OF INQUIRY IN

NEW SOUTH WALES, VICTORIA a n d TASMANIA

C om m onw ealth, New South W ales, Victoria and Tasm ania

ROYAL COM M ISSION INTO ABORIGINAL DEATHS IN CUSTODY

REGIONAL REPORT

OF INQUIRY IN

NEW SOUTH WALES, VICTORIA AND TASMANIA

BY

COMMISSIONER THE HONOURABLE J.H. WOOTTEN, AC, QC

Australian Government Publishing Service Canberra

© Commonwealth of Australia 1991 ISBN 0 644 14166 2

This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without written permission from the Australian Government Publishing Service. Requests and inquiries concerning reproduction and rights should be addressed to the Manager, AGPS Press, GPO Box 84, Canberra ACT 2601.

Printed by P. J. G rills, Commonwealth Government Printer, Canberra

r o y a l c o m m i s s i o n i n t o a b o r i g i n a l d e a t h s i n c u s t o d y

Secretary : John Gavin Assistant Secretary : Jill Sheppard

45 Flinders Street ADELAIDE SA 5000

GPO Box 1005 ADELAIDE SA 5001

Reference: Telephone: (08) 223 6222

Fax: (08) 223 7825

30 March 1991

His Excellency the Honourable William George Hayden, AC Governor-General and Commander-in-Chief of Australia Government House CANBERRA ACT 2600

Your Excellency

In accordance with Letters Patent issued to me on 27 April 1989 and subsequently varied, I have the honour to present to you the report of Commissioner the Hon. J.H. Wootten, AC, QC, of the overall findings o f his inquiry in New South Wales, Victoria and Tasmania.

Commissioner Wootten submitted his report to me on 13 March 1991. The report was based on the inquiry he completed on 31 December 1990 and in his transmission letter to me he expressed regret that the completion o f his report had been delayed by the exigencies o f his extended inquiry into the death o f David Gundy and by consultations concerning my final report

In accordance with Letters Patent issued by them, I am forwarding the same report to their Excellencies the Governors of New South Wales, Victoria and Tasmania.

Yours sincerely

Elliott Johnstgg/ -/ " COMMISSIONER

ROYAL C O M M IS S IO N IN T O A B O R IG IN A L D E A T H S IN C U STO D Y

Secretary : John Gavin Assistant Secretary : Jill Sheppard

45 Flinders Street ADELAIDE SA 5000

GPO Box 1005 ADELAIDE SA 5001

Reference: Telephone: (08) 223 6222

Fax: (08) 223 7825

30 March 1991

His Excellency Rear Admiral Peter Sinclair, AO Governor of New South Wales Government House SYDNEY NSW 2000

Your Excellency

In accordance with Letters Patent issued to me on 10 May 1989 and subsequently varied, I have the honour to present the report o f Commissioner the Honourable J.H. Wootten, AC, QC, o f the overall findings o f his inquiry in N ew South Wales. Because

Commissioner Wootten held parallel Letters Patent from their Excellencies the Governors of Victoria and Tasmania, his report deals with his overall findings in those States as well.

Commissioner Wootten submitted his report to me on 13 March 1991. The report was based on the inquiry he completed on 31 December 1990 and in his transmission letter to me he expressed regret that the completion o f his report had been delayed by the exigencies o f his extended inquiry into the death o f David Gundy and by consultations concerning my final report

In accordance with Letters Patent issued by them I am forwarding the same report to their Excellencies the Governor-General and the Governors of Victoria and Tasmania.

Yours sincerely '

Elliott J COMMISSIONER

ROYAL C O M M IS S IO N IN T O A B O R IG IN A L D EA TH S IN C U STO D Y

Secretary : John Gavin Assistant Secretary : Jill Sheppard

45 Flinders Street ADELAIDE SA 5000

GPO Box 1005 ADELAIDE SA 5001

Reference: Telephone: (08) 223 6222

Fax: (08) 223 7825

30 March 1991

His Excellency Dr David McCaughey, AC Governor of Victoria Government House MELBOURNE VIC 3000

Your Excellency

In accordance with Letters Patent issued to me on 26 April 1989 and subsequently varied, I have the honour to present the report o f Commissioner the Hon. J.H. Wootten, AC, QC, o f the overall findings o f his inquiry in Victoria. Because Commissioner Wootten held parallel Letters Patent from their Excellencies the Governors of New South Wales

and Tasmania, his report deals with his overall findings in those States as well.

Commissioner Wootten submitted his report to me on 13 March 1991. The report was based on the inquiry he completed on 31 December 1990 and in his transmission letter to me he expressed regret that the completion o f his report had been delayed by the exigencies o f his extended inquiry into the death o f David Gundy and by consultations

concerning my final report.

In accordance with Letters Patent issued by them I am forwarding the same report to their Excellencies the Governor-General and the Governors o f New South W ales and Tasmania.

Y p n r c cin/-tf»rv»1\/

Elliott Johnston-"'' COMMISSIONER

ROYAL C O M M IS S IO N IN T O A B O R IG IN A L D EA T H S IN C U STO D Y

Secretary : John Gavin Assistant Secretary : Jill Sheppard

45 Flinders Street ADELAIDE SA 5000

GPO Box 1005 ADELAIDE SA 5001

Reference: Telephone: (08) 223 6222

Fax: (08) 223 7825

30 March 1991

His Excellency General Sir Phillip Bennett, AC, KBE, DSO Governor o f Tasmania Government House HOBART TAS 7000

Your Excellency

In accordance with Letters Patent issued to me on 2 May 1989 and subsequentiy varied, I have the honour to present the report o f Commissioner the Hon. J.H. Wootten, AC, QC, of the overall findings o f his inquiry in Tasmania. Because Commissioner Wootten held parallel Letters Patent from their Excellencies the Governors o f New South Wales and Victoria, his report deals with his overall findings in those States as well.

Commissioner Wootten submitted his report to me on 13 March 1991. The report was based on the inquiry he completed on 31 December 1990 and in his transmission letter to me he expressed regret that the completion o f his report had been delayed by the exigencies o f his extended inquiry into the death o f David Gundy and by consultations concerning my final report.

In accordance with Letters Patent issued by them I am forwarding the same report to their Excellencies the Governor-General and the Governors o f New South Wales and Victoria.

Yours sincerely '

Elliott Johnslon/ / ^ COMMISSIONER

ROYAL C O M M ISSIO N INTO A B O R IG IN A L DEATHS IN CUSTODY

Secretary: John G avin Assistant Secretary: Jill Sheppard

Level 11 Westfield Towers 100 W illiam Street SYDNEY

G P O Box 3409 SYDNEY NSW 2001

Telephone: (02) 357 4255

Fax: (02) 358 2802

13 March 1991

The Honourable Elliott Johnston, Q.C., Commissioner 2nd Floor, Flinders House 45 Hinders Street ADELAIDE SA 5000

Dear Commissioner Johnston

In accordance with Letters Patent issued to me by His Excellency the Governor General of the Commonwealth o f Australia, His Excellency the Governor of New South Wales, His Excellency the Governor of Victoria, and His Excellency the

Governor o f Tasmania, I have the honour to present to you, upon completion of my inquiry into the eighteen deaths upon which I have reported, a report of other findings of my inquiry. The inquiries into the eighteen deaths were completed and the reports submitted by 31 December 1990. I regret that the completion o f this

report was delayed by the exigencies o f the extended inquiry into the death of David Gundy and by consultations concerning the National Report. I submit the report for consideration by you and for furnishing by you to Their Excellencies.

Yours sincerelv

TABLE O F CONTENTS

Page No.

FO R EW O RD ...........................................................................................................1

The message of this report..............................................................................1

Acknowledgments...........................................................................................3

TABLE OF ABBREVIATIONS............................................................................... 6

PART ONE - INTRODUCTION AND O V ERV IEW .................................. 9

CHAPTER 1 - INTRODUCTION....................................................................9

Nature of this R eport........................................................................................9

Lives and deaths.................................................................................... 11

CHAPTER 2 - OVERVIEW.................................................................................. 16

The importance of south-eastern Australia.................................................. 16

Avoidability of deaths.................................................................................. 16

Police care of prisoners...................................................................... 17

Prison deaths................................................................................................ 19

The concern about Aboriginal deaths in custody..........................................20

Disproportionate numbers in custody.................................................. 21

Reducing the disproportion............................................................................23

The path to reconciliation..................................................................... 25

The immediate future.................................................................................... 28

PART TW O - TH E CO M M ISSION 'S IN V ESTIG A TIO N S................. 33

CHAPTER 3 - THE PROCESS OF INVESTIGATION.......................................33

The Commission’s investigation of deaths........................................ 33

Preparation for hearing................................................................................. 35

Location of hearings..................................................................................... 37

Representation at hearings........................................................................... 38

Community consultations............................................................................ 40

Testing custodial officers’ evidence.................................................... 41

CHAPTER 4 - JURISDICTIONAL ISSUES.............................................. 46

Terms of Reference........................................................................................46

Francis Thomas Cooper............................................................................... 47

Allan Gordon Clayton....................................................... 49

Keith ‘Cowboy’ Adams............................................................................... 49

Kenneth John Buchanan............................................................................... 51

David John Gundy....................................................................................... 52

Paul Anthony P ryor............................................................................... 52

Police/Aboriginal relations.......................................................................... 55

xiii

PART TH REE - TH E D EA TH S..................................................................... 59

CHAPTER 5 - GENERAL FINDINGS AS TO CAUSES OF DEATHS.........59

New South W ales................................................................................... 59

In police custody................................................................................. 59

In p riso n .......................................................................................... 60

In a juvenile detention centre...............................................................61

Victoria............................................................................................................ 61

In police custody........... *...................................................................61

T asm an ia.......................................................................................................61

In police custody................................................................................. 61

Foul p la y .................................................................................................... 62

Negligence and lack of care................................................................ 63

Accidental death.............................................................................................. 64

Self-inflicted harm ..........................................................................................65

A boriginal suicide....................................................................................67

Reasons for self-killing................................................................................. 69

Aboriginal beliefs or attitudes....................................................................... 71

Unconscious motivation................................................................................72

The conviction of relatives............................................................................. 73

Hanging...........................................................................................................74

Other cases of self-harm................................................................................76

Unnecessary custody..................................................................................... 76

Health and alcohol problems.........................................................................77

The avoid ability of death................................................................................78

Action against individuals at fault.......................................................79

CHAPTER 6 - PREVENTION OF DEATHS........................................................ 84

Generally........................................................................................................ 84

Duty of care..........................................................................................84

Human relations or technology...........................................................86

Prevention of suicide................................................................... 87

Importance of kinship......................................................................... 87

Learning from experience................................................................... 88

In police custody.................................................................................... 89

Police cells............................................................................................89

New South W ales.....................................................................89

Victoria......................................................................................90

Supervision in small stations..................................................... 92

Selection of police................................................................................92

Notification of Aboriginal Legal Service........................................... 94

Checking of prisoners......................................................................... 94

xiv

Recording times of visits to cells...................................................... 95

Apparently intoxicated prisoners...................................................... 95

Calling of medical assistance...............................................................97

Police treatment of prisoners...............................................................98

Identification and recording of at risk prisoners.............................. 98

Screening o f prisoners..........................................................................100

Police Instructions........................................................................................ 100

New South W ales.............................................................................. 101

V ic to ria ........................................................................................... 102

Getting information to police....................................................................... 103

CHAPTER 7 - ABORIGINALS IN PRISON.......................................................105

Statistical inform ation............................................................................105

Basis of this chapter.................................................................................... 107

Safety of cells and equipm ent.............................................................108

Prison Medical Service............................................................................... 108

Psychiatric Assessment and Treatment...................................................... 109

Prevention of suicide in gaols...................................................................... 112

Involvement of custodial officers in welfare..................................... 112

Confidentiality of medical information...................................................... 113

Sexual offences and sexual identity issues.................................................. 115

Medical services for Aboriginal prisoners.................................................. 116

Imprisonment of disturbed persons............................................................119

Importance of relatives and friends..............................................................119

Accessibility of gaols.................................................................................... 120

Vulnerable prisoners.................................................................................... 122

Drugs in g ao l............................................................................................... 122

Problems of classification and transfer...................................................... 122

Prisoner education........................................................................................ 123

Racism.......................................................................................................... 124

Recognition of A boriginality............................................................. 125

Aboriginal alternatives...................................................................................126

CHAPTER 8 - AVOIDANCE OF CUSTODY.............................................128

Imprisonment for non-payment of fines............................................. 128

B a il.............................................................................................................. 128

Unrealistic bail conditions..................................................................129

Deferment of bail................................................................................130

Victorian initiatives........................................................................... 132

Probation and P arole............................. 132

The importance of Probation and Parole...................................132

The Commission's inquiries............................................................. 133

NSW Draft Policy on Aboriginal Probation and Parole...............136 Post-release Program for Aboriginal Ex-Prisoners.....................139 Community Justice Panels in Victoria.............................................. 141

xv

Decriminalisation of drunkenness............................................................. 142

Drunkenness..................................................................................... 142

O ffensive language................................................................... 144

PART FOUR - ACTION FO LLO W IN G DEATHS.............................. 147

CHAPTER 9 - DISCOVERY OF BODY.................................................. 147

Resuscitation and treatment........................................................................ 147

Importance of openness.............................................................................. 147

Communication with relatives................................................................... 148

Viewing the body....................................................................................... 150

Identification of the body.......................................................................... 151

CHAPTER 10 - POLICE INVESTIGATIONS......................................... 152

Basis o f police investigation............................................................ 152

Independence of investigators................................................................... 153

Police investigating police......................................................................... 154

Oversighting or reviewing of investigations.................................... 155

Deficiencies in investigation...................................................................... 156

Reporting the result........................................................................... 157

CHAPTER 11 - DEPARTMENTAL INVESTIGATIONS................................. 158

The need for departmental investigations................................................. 158

Prisons........................................................................................................ 158

Juvenile institutions.................................................................................... 158

CHAPTER 12 - CORONERS.............................................................................. 160

C ustodial d eath s................................................................................... 160

Openness.................................................................................................... 161

Co-operation with relatives and Aboriginal Legal Service....................... 162 Police investigation for coroner................................................................. 163

Autopsies.................................................................................................... 165

Purpose of autopsies........................................................................ 165

Q ualifications and protocol..................................................... 167

M utilation of body................................................................... 168

The inquest................................................................................................. 169

Use of a ju ry ...................................................................................... 171

Counsel assisting the coroner.................................................................... 172

Recommendations by coroners................................................................. 173

Status o f co ro n ers............................................................................... 174

Cost of coronial inquiries........................................................................... 177

xvi

PART FIV E - TH E ABORIGINALS O F SOUTH-EASTERN AUSTRA LIA .......................................................................................................179

CHAPTER 13 - THE ABORIGINALS OF SOUTH-EASTERN AUSTRALIA........................................................................................................ 179

Understanding the disproportionate custody..............................................179

The denial of Aboriginality................................................................ 181

Living in between....................................................................................... 182

The attempt to destroy Aboriginal identity..................................................185

Classification by the white community..................................................... 186

CHAPTER 14 - LIVING IN SOUTH-EASTERN AUSTRALIA......................191

The Aboriginal population........................................................................... 191

The rural links.............................................................................................. 192

The rural tradition....................................................................................... 193

The North West of N .S.W .................................................................196

Complexity of the Aboriginal population........................................... 198

Social and economic status.................................................................199

CHAPTER 15 - THE HISTORICAL BACKGROUND.....................................201

The importance of history............................................................................ 201

New South Wales.........................................................................................201

The initial dispossession........................................................... 201

Survival strategies............................................................................. 202

Protection begins...............................................................................204

Exclusion from education.................................................................205

Dispersal and the taking of children................................................. 206

The second dispossession.................................................................207

Conflict in the towns......................................................................... 209

Aboriginal organisation.....................................................................210

The Great Depression........................................................................211

The policy of concentration..............................................................212

The fight for rights............................................................................ 213

Behaviour modification.....................................................................215

Economic changes............................................................................. 216

Town housing...................................................................................218

Access to education.......................................................................... 220

Aboriginal organisation continues....................................................222

Movement to the cities...................................................................... 223

Struggles of the 1960s...................................................................... 225

The referendum and the 1970s................................................ 227

The new organisations...................................................................... 229

Victoria......................................................................................................... 232

The invasion and settlement of Victoria........................................... 232

The reserves.................................................................................233

Segregation and assimilation............................................................234

Lake T y ers....................................................................................235

xvii

Life o ff the reserves..................................................................237

Modem assimilation policy.............................................................. 238

An Aboriginal perspective................................................................. 239

T asm an ia................................................................................................... 240

Extinction and renewal..................................................................... 240

The Islanders.................................................................................... 242

Other Aboriginal Tasmanians.......................................................... 243

CHAPTER 16 - THE STOLEN GENERATIONS..................................... 245

The legacy of ’the stolen generations'........................................................ 245

Protection and welfare boards in New South Wales ................................. 247

Link-Up....................................................................................................... 250

Child Welfare to-day................................................................................... 251

PART SIX - ABORIGINALS IN AUSTRALIAN S O C IE T Y ..........253

CHAPTER 17 - DAY TO DAY INTERACTIONS............................................. 253

R acism ........................................................................................................ 253

Views from Swan H ill..............................................................255

Some notes from W ilcannia..................................................... 257

Examples from the cases...................................................................257

The story of Clarrie N ean................................................................. 259

Hidden tensions........................................................................................... 261

Hospitals and Aboriginals........................................................................... 262

Membership of hospital boards...................................................................263

Local Government........................................................................................264

Hotels........................................................................................................... 266

CHAPTER 18 - RELATIONS WITH POLICE.................................................. 268

The importance of Aboriginal/police relations............................................268

A changing situation.......................................................................... 270

The historical background........................................................................... 271

The bad side of the picture........................................................................... 276

Police violence.............................................................................277

Treatment of Aboriginal women............................................. 280

Police harassment..............................................................................282

Hurtful language............................................................................... 283

Discrimination....................................................................................284

Local resolution of issues................................................................. 285

Inexperienced police..........................................................................286

Street offences....................................................................................287

Aboriginal use of police services......................................................287

Police Culture.............................................................................................. 289

Its nature and im portance......................................................... 289

Police stereotypes..............................................................................290

xviii

Police 'intelligence'........................................................................... 292

Truthfulness of police officers.......................................................... 296

Police reluctance to criticise police...........................................297

Changing police culture......................... 298

Policing the western towns............................................ 299

Use of para-military groups........................................... 303

SWOS and its culture.............................................................304

The changing scene........................................................................... 306

Cultural revolution in New South W ales......................................... 306

Community policing..........................................................................307

Changes in Victoria........................................................................... 309

Tasmania lags behind........................................................................ 310

Mechanisms for Change.................................................................... 313

The Victorian Aboriginal/Police Liaison Committee.......................314 Central Liaison or Consultant S taff..................................................316

Aboriginal Community Liaison Officers...................................317

Non-Aboriginal Police Liaison Officers........................................... 319

Police Community Consultative Committees.............................319

O peration B acchus.......................................................................321

Community Justice Panels.........................................................321

A panel in action..................................................................... 321

History of C JP s..................................................................... 323

Problems of CJPs...................................................................325

Aboriginal police officers..........................................................328

Training of police..................................... 329

Aboriginal/police workshops and seminars..................................... 331

Community Aid Panels..................................................................... 331

Lay Visitors Schemes.........................................................................332

Co-operation with Aboriginal Legal Services.................................. 332

Ju v e n ile s...........................................................................................333

Local police initiative..........................................................................333

Police accountability..................................................................................... 335

Police investigating police................................................................. 335

Police accountability to Minister........................................................336

Complaints against police................................................................. 337

A clean police service........................................................................ 338

CHAPTER 19 - DOMESTIC VIOLENCE............................................................339

The importance of domestic violence.......................................................... 339

Police perspectives........................................................................................340

A boriginal perspectives........................................................................ 341

Community and Aboriginal services................................................ 342

Conclusions...................................................................................................345

xix

CHAPTER 20 - JUVENILES............................................................................. 346

A major issue.............................................................................................. 346

Police and juveniles................................................................................... 347

Community services initiatives......................................................... 350

Separating justice and welfare..................................................................... 352

Bail.............................................................................................................. 353

Institutionalisation...................................................................................... 353

Employment and leisure activities.............................................................. 355

Multiple charges against juveniles.............................................................. 356

Parental control of Aboriginal children............................................ 356

PART SEVEN - SOCIAL C O N D IT IO N S ...............................................359

CHAPTER 21 - EDUCATION............................................................................ 359

The Aboriginal experience......................................................................... 359

Aboriginal concerns................................................................................... 361

New South W ales............................................................................ 361

V ic to ria ........................................................................................... 362

H earing problem s................................................................................. 365

Self-determination and education.............................................................. 366

CHAPTER 22- EMPLOYMENT AND ENTERPRISE..................................... 368

Employment history of those who died.................................................... 368

Aboriginals and employment..................................................................... 371

The historical background..........................................................................371

A rural example........................................................................................... 372

CDEP p rogram s.................................................................................... 373

Working in organisations........................................................................... 374

Future development.................................................................................... 375

CHAPTER 23 - HEALTH AND HOUSING............................................. 377

A boriginal h ealth .................................................................................. 377

H eart d isease............................................................................... 377

Alienation from mainstream services.......................................378

The need for Aboriginal Medical Services............................... 379

Aboriginal Health Services and prisons.......................................... 380

Aboriginal health professionals........................................................381

Community services for sexual offenders and victim s.................. 381

Housing........................................................................................................ 382

CHAPTER 24 - ALCOHOL AND DRUGS........................................................ 383

Recognition of the alchol problem..............................................................383

Treatment o f intoxicated persons.......................................................385

Intoxicated persons and proclaimed places................................................386

Alcohol in a rural tow n................................................................... 387

Community action....................................................................................... 389

Cultural revival............................................................................................. 391

Supply of drugs by general practitioners.................................................... 392

Other drugs................................................................................................... 393

PART E IG H T - SELF-D ETER M IN A TIO N .............................................395

CHAPTER 25 - WHAT AND WHY..................................................................... 395

The demand for self-determination.....................................................395

Aboriginal organisations..............................................................................396

Obstacles to self-determination.................................................................... 398

O rganisational form s............................................................................. 398

Conflicts over housing.................................................................................400

Bureaucratic requirements generally............................................................401

Economic viability........................................................................................402

The Clash of Values or Priorities...................................................... 403

The recognition of Aboriginal culture................................................404

CHAPTER 26 - LAND RIGHTS......................................................................... 406

The significance of land rights.......................................................... 406

A continuing sense of place......................................................................... 407

A continuing demand....................................................................................408

The second dispossession 1915 to 1927.................................................... 410

Changing economic conditions 1930-1970................................................ 411

The Lands Trust 1973 to 1983.................................................................. 413

Insecurity grows in the 1970s..................................................................... 414

Land rights in the 1970s...,............................................................... 415

Select Committee Recommends Land Rights............................................. 416

White opposition to land rights..........................................................418

The Land Rights Act 1983........................................................................... 419

The Working of the Land Rights A ct.......................................................... 421

Claiming Land.............................................................................................. 425

Buying back the lan d ................................................................................... 427

The 1990 am endm ents......................................................................... 432

CHAPTER 27 - HOPE FOR THE FUTURE....................................................... 433

Some reasons for hope.................................................................................433

Echuca................................................................................................435

On the other side of the divide..........................................................437

Austfalia Day 1988...........................................................................438

A process of reconciliation................................................................438

xxi

FOREW ORD

THE MESSAGE OF THIS REPORT

A number of people of goodwill have asked me what I have to tell them after my

two and a half years experience as a Royal Commissioner inquiring into

Aboriginal deaths in custody. By now they know that Commissioners have not

uncovered stories of murder and deliberate brutality, but have reached the simple

conclusion that so many Aboriginals die in custody because so many Aboriginals

are locked up in this country.

I answer their question in this way. While it is important to divert Aboriginals

from custody, to make their custody safer, and to ensure that any deaths are

properly investigated, the great challenge to this country is to eliminate the

grossly disproportionate rate of incarceration of Aboriginal people. How is this

to be done? It does not take much close contact with Aboriginal people to

convince one that the explanation for their disproportionate conflict with the

criminal justice system does not lie in greater viciousness and criminality of

character in comparison with the rest of society. One encounters as much

gentleness, kindness, integrity and desire for a peaceful life amongst them as

amongst the rest of the population.

What does become clear is that most Aboriginals have a continuing identity as

Aboriginals which sets them apart culturally and historically as a separate

community of people, encapsulated within a larger community. Relations

between those two communities are built on inequality arising from a

longstanding, unresolved injustice, and tensions which result from it affect the

lives of individuals and communities in all kinds of ways. The dominant white

community has over two centuries mostly tried to deal with the issue by

destroying the Aboriginal identity - either by physical extermination or by genetic

1

or cultural absorption. Even today many of those who accept that a major effort

must be made to overcome Aboriginal disadvantage in matters such as health,

education, employment and so on, accept this only on the basis that there must be

only one people recognised in Australia, and that any assistance to Aboriginals is

not to enable their separate flowering as a people within the country, but to help

them 'catch up' and 'be like us'.

Those who find Aboriginal refusal to accept this unreasonable, irrational,

disloyal or unrealistic, might ask themselves this question. If Japan had

successfully captured Australia and colonised it after World War II, swamping

the former population with Japanese immigrants, how many Australians would

have been prepared to see themselves as thereafter Japanese, to merge their

identity into a greater Japanese society? It was a comparable situation that faced

Aboriginal people all over the world, not only the Aboriginals of Australia, but

the Indians of North America, the Inuit of Canada, Alaska and Greenland, the

Maoris of New Zealand, and many others. Today they share many common

problems, including very high rates of imprisonment. Notwithstanding this,

they continue to assert their separate identities as peoples.

An individual's identity is not a purely personal thing. It is built on a social

identity, on seeing oneself as part of a family and a community, each of which

has its own history, traditions, culture and sources of pride and self-esteem.

These are critical things for the development of the individual personality as a

social personality accepting and conforming to the society in which the person

lives.

These ideas are not easy to absorb, because not only are they unfamiliar, but

even the history of Australia's treatment of Aboriginals, particularly in the second

hundred years of settlement, is little known. However Australia like the United

States, Canada, and New Zealand, has to come to understand them if it is to

make peace with its indigenous people.

2

If a dominant society denies recognition to the very things on which an

individual's identity is built, it will not be surprising if that individual becomes a

delinquent from the point of view of that society. Yet that is what the European

society that took power in Australia has been doing to Aboriginals for two

hundred years. As a result there has developed a complex and difficult situation

which cannot be simply unravelled, or washed away by better social services for

Aboriginals. If Australia is going to deal with it in some way other than locking

Aboriginals up in large numbers, it will have to learn to recognise Aboriginals as

a people, to listen to them, and patiently build understanding and move to a

genuine reconciliation between peoples.

ACKNOWLEDGMENTS

The core of the work carried out under my Commission between May 1988 and

31 December 1990, was the investigation of 18 deaths in custody. There were

in effect 18 Royal Commissions completed in about 136 weeks, as each death

had to be separately investigated and made the subject of a separate hearing and a

separate report. These investigations and reports were completed at an average

rate of about one each 7 V2 weeks.

In addition, another death was fully investigated and heard, although not fully

reported on for jurisdictional reasons, and three other deaths were the subject of

significant investigation and argument before being ruled out of jurisdiction.

Another death was the subject of preliminary investigation and report at the

request of the Victorian and Queensland Governments. Concurrently there was

considerable investigation of underlying issues and the preparation of most of

this report, although its completion was delayed while I was engaged in

consultations with the National Commissioner concerning the National Report.

The completion of so much work in such a relatively short time was possible

only as a result of the contributions of many people. It is not possible to

3

mention them all, particularly as many people came and went during the period.

However, I must particularly mention the dedicated work of Counsel Assisting,

Mr Stephen Norrish, QC, and the Principal Solicitor, Mr John McKenzie, both

of whom were with me through the whole period of my Commission up to

31 December 1990. Mr Norrish was at various periods assisted by Mr Tim

Game and Mr Bob Bellear of Counsel. Mr David McMillan and Ms Louise

Blazejowska did valuable service as solicitors over long periods. Other

solicitors who served for shorter periods were Mr Cled Brown, Mr John

Bishop, Ms Marilyn Bartole and Ms Jo Collings. A very special contribution

was made by Aboriginal Field Officers, Mr Shane Phillips, Mr Barry Cain and

Mr Russell Reid in New South Wales and Mr Richard Frankland in Victoria.

For a period there was a Victorian office under the charge of Ms Kate Auty,

Solicitor, assisted by Ms Sarah Gebert and Ms Andrea Oribin.

The Sydney Office was ably managed for most of the period by Ms Colleen

Crowe, and later by Mr Ian Johnston. I have a special personal debt for

secretarial and research assistance from Kate Brodie, Lyn Carriage and Robyn

Arrowsmith. Gail White was the valued secretary to counsel assisting. Among

those who at various times contributed their expert knowledge and/or research on

historical and social issues, I must specially thank Dr Heather Goodall,

Dr Gillian Cowlishaw, Dr Lois Tilbrook, Mr David Jagger, Ms Louise Casson

and Ms Nikki Rogers.

For varying periods in each of the three States there was an Aboriginal Issues

Unit and I am particularly grateful for the work of Mr Kevin Kitchener,

Ms Denise Andrews and Mr David Green in New South Wales, Ms Sandra

Bailey, Ms Carolyn Steel and Mr Lance Briggs in Victoria, and Mr Greg

Lehman in Tasmania. To all of them and to many others inside and outside the

Commission who gave me assistance and support, I express my grateful thanks.

I benefited greatly from the fraternal co-operation and counsel of the National

Commissioners, first James Muirhead, QC, and then Elliott Johnston, QC, and

4

my fellow Commissioners, Lewis Wyvill QC, Daniel O'Dea and Patrick

Dodson. The Secretary of the Commission, Mr John Gavin, was an ever

available guide, philosopher and friend.

My greatest debt, however, is to the many Aboriginal people who generously

shared with me their experiences, sufferings achievements and aspirations. For

all of them, and particularly for the families of those who died in custody, this

Commission was a painful reminder of tragic events. Their history as a people

and often their personal experiences gave them little reason to have confidence in

a white Commissioner, or to believe that anything good would come from the

raking over of their anguish by his inquiries. Despite their reservations, they

were once again, as so often in their history, trustful, helpful and willing to co­

operate.

It has not fallen to me to make recommendations about what should be done to

redress the injustices which they have suffered and still suffer in what was, in

every sense, once their country. That is for the National Commissioner. For my

part, in the 18 individual reports which I have written about the deaths, I have

tried to tell in a straightforward way, so far as I can understand it, what it has

meant to live and die as an Aboriginal in South-Eastern Australia. The general

issues which came to the fore in those reports are brought together in this report.

JH Wootten

TABLE OF ABBREVIATIONS

ACLO Aboriginal Community Liaison Officer - a position in the New South

Wales Police Department

ADC Aboriginal Development Corporation - a Commonwealth body

ADVO Apprehended Domestic Violence Order - a restraining court order in

New South Wales

AEA Aboriginal Education Assistant

ALC Aboriginal Land Council.

AMIC Australian Mining Industry Council.

APB Aborigines Protection Board - formerly existing in New South Wales

ATSIC Aboriginal and Torres Strait Islander Commission

AWB Aborigines Welfare Board - formerly existing in New South Wales

BAC Blood alcohol concentration

CDBR Committee to Defend Black Rights

CDEP Community Development Employment Program

CJP Community Justice Panel - a Victorian institution

6

DEBT Department of Employment Education and Training

FACS New South Wales Department of Family and Community Services

LALC Local Aboriginal Land Council

NAILSS National Aboriginal and Islander Legal Services Secretariat

PMS Prison Medical Service

RALC Regional Aboriginal Land Council.

SWOS Special Weapons Operations Section of the New South Wales Police

Force

VAHS Victorian Aboriginal Health Service

VALS Victorian Aboriginal Legal Service

WALS Western Aboriginal Legal Service

7

PART ONE - INTRODUCTION AND OVERVIEW

CHAPTER 1 - INTRODUCTION

NATURE OF THIS REPORT

I was first appointed a Royal Commissioner to inquire into Aboriginal deaths in

custody on 6 May 1988. My work has been confined to New South Wales,

Victoria and Tasmania and I have conducted all the inquiries into deaths in those

States except for the death of Edward James Murray in Wee Waa in New South

Wales, which was inquired into by Commissioner Muirhead before my

appointment.

My commissions from the Commonwealth and from each of the States of New

South Wales, Victoria and Tasmania require me to submit a report into each

particular death into which I have inquired, and I have submitted reports into 18

deaths. Each of my commissions requires me upon completion of my inquiry

into the several deaths to submit a report of any other findings of my inquiry and

such recommendations (if any) as I consider appropriate. This report is

submitted in compliance with that provision in my various commissions.

However the fact that I was continually involved in the inquiry into the death of

David Gundy until 31 December 1990, and then went to Adelaide for

consultations with the National Commissioner, means that this report is

necessarily limited in scope and detail. Essentially it brings together the general

issues that are discussed in the individual death reports and the reports of the

Aboriginal Issues Units.

Rather than submit four reports, one to the Commonwealth covering my findings

in respect of all the deaths into which I have inquired, and one to each State

9

relating to my findings in respect of the particular State, I have prepared a single

report covering the findings I have made in relation to the deaths into which I

have inquired in all three States. Any other course would have meant a great deal

of repetition. Although there are important differences in history and

administration between the States there is sufficient commonality to make the

writing of a single consolidated report a sensible course. Most of the lessons to

be leamt apply throughout the region.

This report is in no sense an attempt to make a comprehensive coverage of issues

relating to Aboriginals in the three States. It is essentially, as I believe my

commissions require, a report that brings together the views I have formed as a

Commissioner as a result of conducting the inquiries into the 18 deaths in the

three States. The scope of the issues referred to is somewhat wider than in any

of the reports relating to particular deaths, because it reflects the overview which

I have developed through the experience of all 18 inquiries. This report draws

not only on the evidence relating to particular deaths but on the general

knowledge I have acquired in the course of the inquiries,1 and on the work of the

Commission's Aboriginal Issues Units in New South Wales and Victoria and a

related inquiry in Tasmania. It also seeks to provide a general context to the

individual inquiries by looking at some of the general circumstances of the

' boriginal communities from which the individuals who died came, including

jrrent legal, cultural and social circumstances of those communities, their

history, and their relations with the general community in those States and its

institutions.

A number of my individual death reports contained recommendations of a

specific nature, mostly in relation to the consideration of criminal or disciplinary

1 As this report has been conceived to some extent as a synthesis o f the

individual reports I have often incorporated material from particular reports direedy and not as a quotation. In my first 17 reports I adopted a practice of flagging in Part Three of each report matters requiring consideration in my Regional Report or in the National Report. Sometimes I have incorporated material from those references, but I have also incorporated, sometimes with adaptations, material from other parts of my reports.

10

proceedings against officers. This report does not contain recommendations. It

has been agreed between Commissioners that except in purely local matters

recommendations will be reserved for the National Report. This will avoid the

pre-empting of recommendations by Regional Reports and allow for the collation

by the National Commissioner of the experience of Commissioners across

Australia.

LIVES AND DEATHS

Early in my inquiries I formed a strong conviction that a concentration solely on

the immediate circumstances of individual deaths would not be very rewarding in

terms of the understanding it would give of why Aboriginals were in custody and

dying in custody. It soon became clear that the greatest reason why so many

Aboriginals died in custody was that there were so many Aboriginals in custody.

They were being locked up at quite staggering rates. Once one excluded the

hypothesis that Aboriginal deaths in custody were the result of systematic murder

or ill-treatment by police officers and prison officers, all that could be learned

from the immediate circumstances of particular deaths were points of safe and

humane custodial procedures and cell design. While these matters are important,

they are for the most part not matters of peculiar application to Aboriginals. They

involve matters which were just as important in relation to non-Aboriginal

prisoners - matters such as the elimination from cells of potential hanging points,

the regular inspection of prisoners, the seeking of medical attention for

unconscious or non-rousable prisoners, alertness for the existence of other

conditions masked by alcohol or other drugs, a humane reaction to disturbed,

depressed or angry prisoners and so on. All of these require attention, but in

large measure they can be readily discerned once one starts to examine deaths in

custody. M ost o f them were the subject o f discussion in

Commissioner Muirhead's In te rim R e p o r t, and many of them have received

attention by custodial authorities around the country, although there is still much

room for improvement.

11

Putting to one side these procedural and architectural issues, what could be

learned from the study of the deaths that might increase understanding of why

Aboriginals are coming into custody, and as a result are dying in custody in such

large numbers? It seemed to me that only limited value could be got from

statistical studies of the characteristics of those who died in custody, partly

because there seemed to be a considerable element of chance in which prisoners

happened to die in custody, and partly because the numbers involved were too

small for useful statistical studies. Even if one took the whole of Australia over

ten years as the field of statistical study, there were still only 100 deaths and

these came from a number of very different cultural, social and geographical

backgrounds, and were spread over a ten year period during which considerable

social change had taken place. If one focused down to narrower geographic

areas or to smaller time periods the numbers became so small as to make it

absurd to look for significance in common characteristics. The absurdity would

be well illustrated by looking at Tasmania. Obviously it is not possible to base

any generalisation on one death in a ten year period.

I concluded that the most fruitful way of studying the individual deaths was to

see each death not as an isolated event, but in the context of, and indeed as the

culmination of, a life. Because of the extraordinary level of institutionalisation,

supervision and incarceration that has been imposed on the Aboriginal

population, it was possible to learn a great deal about the life story of each

individual who had died from files that were readily accessible. Of course one

has to be wary of taking these materials, compiled almost entirely by white public

servants, at their face value. In using them it was necessary constantly to bear in

mind that they reflect the viewpoints, interest and attitudes of bureaucrats living

in particular contexts and charged with carrying out particular functions on behalf

of the white community. Often official records and reports tell more about the

person who wrote them, and that person's attitude to the Aboriginal subject, than

they do about the Aboriginal. However the files often contain enough clues to

give a glimpse of what was going on, and one can soon leam to 'read between

the lines'. Usually, somewhere in the files, there are some observations from

12

some perceptive officer whose comments reveal the limited viewpoints of others.

In addition, in most cases, it has been possible to supplement the material on the

files with statements or evidence from other people who knew the Aboriginal

concerned, and particularly from his friends or relatives.

My hope was that a careful use of available material would yield some insight

into the way in which the circumstances of Aboriginal life in Australia, the

cultural patterns of the Aboriginals themselves, and the policies and institutions

of the dominant society which had dispossessed them, interacted to produce the

situation where that individual had ended up in custody and died in custody

instead of achieving some happier life outcome to his2 life. The knowledge so

gained is of a different kind from that generated from statistical studies, but it can

give insights and understandings not available from statistics. It does enable one

to think about Aboriginals as individual human beings and not as mere statistical

inputs. It does enable their lives to be looked at as a whole, their communities to

be looked at as a whole and the critical events of their lives to be seen in the

context of a range of factors. The relations of Aboriginals and Aboriginal

communities with the dominant white society then emerged as the most important

of the factors for explaining what was happening.

My first, and I believe my most successful attempt to place a death in the context

of a life, was in the R e p o r t o f th e In q u iry in to th e D e a th o f M a lc o lm C h a rle s

S m ith. This report generated an extraordinary reaction in the media, and the

story of Malcolm Smith has continued to touch the hearts and imagination of

many people. It brought out, in a way that it would be difficult for statistical

studies to do, the shattering effect on Aboriginal lives of the well-intentioned but

self-righteous and culturally arrogant policies of taking Aboriginal children away

from their families and seeking to shape them by institutionalisation to conform

to the standards and expectations of white society. The institutions of the

dominant society did succeed in severing Malcolm's ties over the critical years of

All the deaths inquired into by me were of males.

13

adolescence and youth with the deprived Aboriginal family that had let him often

run free, unwashed and undisciplined instead of attending school, but had given

him love, warmth, self-esteem and a chance to be a member of a social group.

But society achieved this severance only at the cost of making Malcolm a person

who was adjusted solely to life in institutions and remained locked up for almost

his entire life.

The attempt to understand the life of Malcolm Smith was particularly successful

partly because of the dramatic nature of his story, the wealth of material

available, and the impact he had made on people who remembered him, but also

because of the amount of time I was able to give to studying and writing his

story. As the number of reports to be written built up and deadlines approached I

was not able to give the same attention to all. However in a further 16 reports I

was able in a greater or lesser degree to put the death in the context of a life story.

In my 18th report, that on the death of David John Gundy, I did not place such

emphasis on the life of the man who died. The hearing and the writing of the

report took place under very severe time pressures, and the amount of material

relating to his death, as a result of previous investigations, was overwhelming.

But in any event I did not consider his life as relevant to his death as was the case

with the others on whose deaths I reported. His death was not the consequence

of the working out of factors in his own life. The temporary custody in which he

met his death was not something to which his life and his past conduct had led

him. It was accidental that he was the victim of an arrogant and unlawful police

raid by officers who neither knew nor cared who might be in the house they were

raiding. Consequently it seemed to me more important in the little time available

to me to write the report, to seek to understand the culture of the police which led

them to make a fruitless and unjustified raid on his home, rather than the cultural

background that had led to David Gundy being in that particular house at that

particular moment.

14

In looking in this present report at the wider issues underlying Aboriginal deaths

in custody I am thus informed largely by the study of the lives of the people who

died, supplemented in most cases by visits to the communities in which they had

lived, and consultations with individuals and organisations about the general

circumstances of life in those communities. In addition I have been influenced

by what reading I have been able to do of the reports of the Commission's

Aboriginal Issues Units, the many submissions to the Commission, and the

writings of students of Aboriginal affairs and, very importantly, of Aboriginals

themselves. I am deeply conscious that time has not permitted me to do justice to

any of these sources.

Anyone who attempts to write about Aboriginals in modem Australia must be

conscious of the limitations of what can be achieved, the risks of misinterpreting,

of ending up in gross simplification or suffocating detail, and the inevitability of

hostile reactions from those on one side or another, or on both sides, whose

sensitivities are affronted. However distasteful it be to admit, there is a cultural

or racial divide in Australia, on one side of which there is the Aboriginal

community (itself an aggregation of many smaller communities) and on the other

side the non-Aboriginal communities, with all the complexities and sub-cultures

of which it is composed. Almost anyone who seeks to write will be on one side

of that divide or the other, and will be conditioned by personal and cultural

experience to see certain things and interpret them in certain ways.

There is a view popular in some quarters, both Aboriginal and non-Aboriginal,

that non-Aboriginals have no right or capacity to write about Aboriginals. While

it is proper to be conscious of how any individual writer's account and

interpretation is shaped and constricted by his or her life experience, the denial of

anyone's right to discuss a matter must be rejected. What are desperately needed

are people on both sides of the divide trying to understand each other. Indeed

what is most needed is that people on both sides of the divide should try to

understand and write about the divide itself, what put it there, what keeps it

there, what its consequences are, and how it can be bridged.

15

CHAPTER 2 - OVERVIEW

THE IMPORTANCE OF SOUTH-EASTERN AUSTRALIA

Since many people tend to think of the northern and central parts of the continent

when considering Aboriginals, it is worth stressing the importance in population

terms of south-eastern Australia. Using the figures of the 1986 census, of the

227,645 Aboriginals in Australia 59,011 or 25.9% were in New South Wales.

Only Queensland with 61,268 had a higher figure, and this depended on

including the considerable number of Torres Strait Islanders in that State. The

figure for Victoria was 12,611 or 5.5%, and Tasmania 6,716 or 3%.

Accordingly New South Wales is home to over a quarter of the Aboriginals in

Australia, and New South Wales, Victoria and Tasmania combined to well over

one third. They share a lifestyle with many Aboriginals in southern Queensland,

in South Australia and in the southern parts of Western Australia which is very

different from that of more traditionally oriented people in parts of central and

northern Australia who provide the image of an Aboriginal for many people here

and overseas.

It is important in the overall assessment of the issues underlying Aboriginal

deaths in custody throughout Australia to pay close attention to the

circumstances, both historical and current, in which these Aboriginals have lived

and live today.

A VOIDABILITY OF DEATHS

As a significant part of the pressure for the establishment of the Royal

Commission came from a suspicion that Aboriginals were being deliberately

killed in custody by police or prison officers, it is proper to start by saying that I

16

have found no evidence of such deliberate foul play. Except in the case of

Bruce Thom as L eslie,3 who died on 6 June 1985 following custody at

Tam worth Police Station, I have made findings that the immediate causes of

deaths were illness, self-inflicted injury or accident.

This however is a small comfort and should produce no self-satisfaction. As I

point out in Chapter 5 - Causes of Death, every one of the deaths was potentially

avoidable and in a more enlightened and efficient system of criminal law and

justice might not have occurred. Many of those who died should not or need not

have been in custody at all, but were there because of archaic laws, unreasonable

discretionary decisions for administration of bail, unlawful police actions, or

failure to take critically ill people to hospital. Some deaths may have been

averted by better custodial practices, more conscientious or more humane

attention to prisoners, better psychiatric services in gaol, or proper inquiry into or

response to the causes of offences. All these are matters pertaining to the

criminal justice system itself and do not touch the wider questions of how much

Aboriginal conflict with the law might have been avoided if Australia had

properly faced up to the position of its dispossessed original inhabitants.

POLICE CARE OF PRISONERS

In the case of deaths in police custody an important contributing factor has been

entrenched attitudes, forming part of a widespread police culture, towards

prisoners or detainees, and in particular towards persons who are regarded as

drunk. Often despite the issue of instructions and expressions of concern at

senior levels, it has proved very difficult to get the general body of police officers

to recognise that a person who is, or appears to be, drunk may be a person at

considerable risk, either from natural causes such as heart disease, diabetes or

In the case of Bruce Thomas Leslie I was unable to make a firm finding as to the circumstances o f death due to the untruthfulness of police witnesses. However there was no evidence that Mr Leslie was deliberately killed by police.

17

epilepsy (to name three common conditions among Aboriginals), or from self-

inflicted harm which, with the limited choices available to a prisoner, often takes

the form of self-hanging.

Quite apart from the care of persons in an intoxicated condition, there has been a

widespread reluctance on the part of police to treat the routine checking and

supervision of prisoners as an important part of their duties, to which priority

should be given. A number of the deaths occurred during periods when a

prisoner was left unchecked for a substantial time. Frequent checking is a very

important safety measure as it may enable the early detection of some life

threatening condition in time for treatment, or the discovery of preparations for

self-harm while it is still possible to prevent the prisoner's actions. Apart from

the discovery of preparations or attempts to commit self-harm, the psychological

effect of human contact may itself be of importance in affecting what a prisoner

does. In none of the seven cases of hanging in custody which I investigated was

there reason to think that the prisoner had a fixed determination to hang himself.

In every case the act was an impulsive one under the stress of immediate

conditions, sometimes the effect of declining blood alcohol levels, sometimes

stresses of a recent life experience or other angering or depressing circumstance.

In such circumstances even a small display of sympathy or understanding may

deflect self-destructive action. Unfortunately it does not seem to come easily to

many police officers to treat prisoners in a human way, at all events Aboriginal

prisoners.

How far the police conduct which bore on the deaths was influenced by attitudes

to Aboriginals is less easy to quantify. In the case of Mark Anthony Quayle I

find it impossible to believe that the treatment which led to his death would have

been given to a white citizen of Wilcannia. In a number of cases, on the other

hand, it is not hard to conclude that a non-Aboriginal prisoner or detainee would

have been at similar risk. In yet other cases it is difficult to form a firm view on

the issue. While particular cases may be difficult to determine, overall the

18

statistics indicate that, as a group, Aboriginals in police custody are not at greater

risk in custody than non-Aboriginals.

The physical conditions of police cells are another very considerable problem.

Often cells are so designed as to make supervision or contact unnecessarily

difficult, and very frequently they provide easy opportunities for self-harm, for

example by easily available hanging points. So widespread are the deficiencies

and so significant the cost of overcoming them that governments have been slow

to remedy obvious defects. However at least in New South Wales and Victoria,

reasonably thorough surveys of danger points have been carried out and some of

them have been rectified.

Again in New South Wales and Victoria, Police Forces have reviewed their

Instructions relating to the care of prisoners and to arrangements which allow

prisoners to be left in unattended police stations. To a large extent the latter

practice has been cut out or greatly reduced, and much improved Instructions

have been developed relating to the care of prisoners. Unfortunately there is

often a large gap between excellent Instructions and what happens. Attitudes

embedded in police culture are very resistant to change and it seems difficult to

get police even to read new Instructions.

PRISON DEATHS

Among the deaths which I investigated were five in prison, all in New South

Wales. In one case, that of Maxwell Saunders, the death might well have been

prevented if proper care had been taken by corrective services officers. Their

actions were affected by entrenched attitudes to prisoners who were apparently

affected by drugs. In three cases, those of Malcolm Charles Smith,

Thomas William Murray and Peter Wayne Williams, lack of proper care by the

Prison M edical Service contributed to the death. In the case of

Peter Leonard Campbell, there had been a failure either on sentencing or on

reception in gaol to make inquiry into the reasons for bizarre offences, which

19

inquiry might have led to the detection of treatable mental disease. The latter four

deaths underlined the general incapacity of the prison system to provide a safe

environment for psychiatrically disturbed prisoners.

THE CONCERN ABOUT ABORIGINAL DEATHS IN CUSTODY

While the numbers are so small as to make statistical comparisons of doubtful

value, there is not a great discrepancy between the rate at which Aboriginal

prisoners or detainees and non-Aboriginal prisoners or detainees die when in

custody. If one compares the percentage of deaths in police custody which were

Aboriginal during the period reviewed by the Commission (1980-1989) with the

only information available about the percentage of Aboriginals in custody

(August 1988), one finds that Australia-wide Aboriginals accounted for 29% of

those in custody and 32 % of the deaths. The corresponding figures for New

South Wales were 14% and 12%, for Victoria 4% and 5%, and for Tasmania

7.5% and 2%. One cannot draw too much from the very small figures and the

absence of figures for comparable periods, but at least it can be said that there is

nothing to suggest that Aboriginals were dying at a faster rate than non­

Aboriginals in police custody. A similar conclusion can be reached about deaths

in prison custody where figures for comparable periods are available. Australia­

wide Aboriginals in prison died at the rate of 2.2 per 1000, non-Aboriginals at

the rate of 2.7 per 1000. The corresponding figures for New South Wales were

1.8 and 2.0, while in Victoria and Tasmania no Aboriginals were recorded as

dying in custody, but non-Aboriginal prisoners died at the rate of 4.3 and 2.0 per

1000 respectively. Nor were Aboriginals more likely to take their own lives in

custody; the available figures in fact point in the opposite direction. Australia­

wide 49% of non-Aboriginal deaths in police or prison custody were self-

inflicted, while only 34% of Aboriginal deaths were so caused.

Why then was there the outcry about Aboriginal deaths in custody which led to

the establishment of the Commission? One reason was a very different and more

mistrustful attitude towards the justice system, police and prisons common in the

20

Aboriginal community. Those who conduct these institutions are seen by many

Aboriginals in a historical perspective as oppressors and as not to be trusted.

The failure to carry out independent and thorough inquiries into most of the

deaths, and the failure to deal frankly and sympathetically with relatives,

exacerbated Aboriginal suspicions in many cases. The ability of police to escape

or defeat independent scmtiny, whether from senior officers, coroners, Ministers

or Ombudsmen, which was often apparent, gave support to the longstanding

Aboriginal complaint that police are not accountable for the way they behave.

The unwillingness of police to question or investigate the conduct of other police

emerged from my inquiries as a powerful feature of the police culture.

But there was another reason. There were in fact large numbers of Aboriginals

dying in custody. Had non-Aboriginals died in custody during the period

reviewed by the Commission at the same rate as Aboriginals there would have

been roughly 7,400 such non-Aboriginal deaths instead of the approximately 400

which in fact occurred throughout Australia. Corresponding figures for deaths in

New South Wales would have been in the order of 1,340, and for Victoria

1000.4 Given the widespread kinship networks and community connections

among Aboriginals, large numbers of Aboriginals thus became conscious of

deaths in custody and suspicious of the circumstances.

DISPROPORTIONATE NUMBERS IN CUSTODY

The reason for the disproportionate number of deaths was not the rate at which

Aboriginals were dying in custody, but the rate at which they were being taken

into custody. On an Australia-wide basis an Aboriginal was 27 times more likely

to be in police custody than a non-Aboriginal, and the figure was 15 times in

New South Wales, 13 times in Victoria and three times in Tasmania. Australia­

wide an Aboriginal was 11 times more likely to be in prison than a non-

4 The fluctuating figures for the Aboriginal population make a similar

calculation for Tasmania of little value.

21

Aboriginal, and in New South Wales eight times, in Victoria 12 times and in

Tasmania three times.

While deaths of juveniles in custody are relatively infrequent, and only one, that

of Thomas Carr, was investigated by me, it is as juveniles that most Aboriginals

enter the justice system. Of the 18 deaths which I investigated, 13 were of

persons known to have had convictions as juveniles and at least 8 had spent time

in juvenile institutions. Aboriginal juveniles are 25 times more likely to be in an

institution in New South Wales than non-Aboriginal juveniles, and 20 times

more likely in Victoria.5

One strand in what has happened, and is still happening, in all too many places,

is that Aboriginals are 'criminalised' at an early age by a policing and justice

system that is intolerant of cultural differences, and which targets and overpolices

Aboriginal communities and deals harshly with resulting resentment. The

criminalisation of public drunkenness6 and of 'bad' language has provided an

easy induction to incarceration for Aboriginals, which comes to be seen, as the

story of Mark Quayle shows, as a natural condition for Aboriginals. The story

of that young man shows how hard it is for an Aboriginal to escape the grip of

the prevailing stereotype.

In assessing the extent to which racism is involved, it is sometimes difficult to

disentangle other forms of discrimination. However much police may profess or

seek to treat all citizens with complete impartiality there is a general perception

that the more powerful in the community are treated with more consideration, and

that the more people conform to standard middle-class notions of respectability

and propriety, the more respect and the less suspicion they will attract from

5 D Semple. Director-General of Community Services in Western Australia, gave these figures to the Australian Bicentennial International Congress on Corrective Services in January 1988. There are difficulties with the available figures, which prevent precise calculations, and one may see different estimates. Even allowing a large margin of error, the figures are appalling. 6 Public drunkenness was decriminalised in New South Wales in 1979, and in

Victoria legislation was before Parliament at the time of writing.

22

police. As most Aboriginals belong to the least powerful groups in society and

are likely to have behavioural norms that differ from standard 'respectable' white

norms, these circumstances inevitably affect the way in which Aboriginals are

treated.

REDUCING THE DISPROPORTION

The reasons for this disproportionate number of Aboriginals coming into custody

are at one level complex, and can be broken up into a large number of factors

about each of which something can be done, at least in a palliative way. On the

one hand they include such matters as styles of policing, which may be

experienced by Aboriginals as oppressive and harrassing and generate street

offences, and the exercise of discretions in regard to cautioning, arrest, granting

of bail and other matters. On the other hand they include a variety of social

factors, not necessarily peculiar to Aboriginals, which increase the likelihood of

offending and conflict with the law - poverty, alienation from the education

system, unemployment, poor housing, heavy consumption of alcohol and other

disadvantages.

At a more fundamental level these various factors can be traced in considerable

measure to one unifying cause. Prior to the white settlement or invasion (the

same process seen from different points of view), Aboriginals were the occupiers

and owners of the continent of Australia. In most parts of the continent they

were brutally dispossessed without regard not only to their rights but to their

basic needs. That situation has never been squarely recognised, faced up to or

addressed.

In their eagerness to carve out for themselves a place in what they saw as a land

of opportunity, Europeans who regarded themselves as enlightened Christian

people rationalised their actions by racist theories and assumptions which in one

form or another were built into the nation's attitudes and institutions and remain

effective in a considerable measure today. Until very recent times Aboriginals

23

were treated as people unable to manage their own affairs, and subjected to cruel

and debilitating controls, including in many cases the removal of their children.

Because of the enduring effect of the past on the present, and the widespread lack

of knowledge of that past, I have included in this report a brief historical account

of what happened in each of the three states.

Few white Australians understand how racism continues to affect Aboriginals *l

and what an all pervasive part of their experience it is. If there is to be a real

change in the position of Aboriginals in Australian society the non-Aboriginal

community has to develop an understanding of the widespread, insidious,

dehumanising and debilitating effects of racism, and work to reduce its influence.

The many Aboriginals working constructively for the advancement of their

people in their own organisations and communities and Government

departments, or eloquently pleading their people's cause in the media or through

books and plays, or winning the world's esteem for their art, have shattered the

stereotype of the unsophisticated Aboriginal who was for so long the butt of the

cartoonists' cheap racism. For all but the most prejudiced they have also

shattered the stereotype of the noisy, drunken, importunate and untidy Aboriginal

in the parks or streets, who, although usually a small minority in any

community, was often the only Aboriginals noticed by most whites. Howver it

is by no means clear that the old stereotypes are being replaced by realistic

knowledge.

Most Aboriginals remain conscious of their identity as a people - the original

people of Australia - and continue to seek recognition of that identity. The

dominant European community has stumbled from one approach to another in

relation to Aboriginals - extermination, exploitation, segregation pending

extinction, forced assimilation, 'expected' assimilation, assimilation 'chosen' but

without alternatives,7 and 'integration', the last an unclear concept often hard to

Whereas the 1961 Native Welfare Conference defined 'assimilation' as meaning that Aboriginals were 'expected eventually to attain the same manner o f living as other Australians', the 1965 Aboriginal Welfare Conference said that the

24

distinguish in practice from assimilation. In more recent times there has been

adoption of policies such as self-management and self-determination, but limited

success in giving them real content. Not the least part of the problem is that

Aboriginals have for so long been cut off from power, from control of their own

lives and communities, and from the exercise of authority and management of

resources and institutions that it is not easy for them to suddenly meet the often

unrealistic and inappropriate expectations and requirements of white officialdom.

Until very recently there has been virtually no willingness to recognise

Aboriginals as a dispossessed people with whom a just reconciliation should be

sought. Only in the current year has the national government explicitly taken up

this issue.

THE PATH TO RECONCILIATION

Australia is not alone today in confronting the need to come to terms with its

indigenous people. In many countries there are people who, like the Australian

Aboriginals, were dispossessed, wholly or partly, by invading settlers with more

advanced technology who took their land with all its economic, social and

spiritual significance and shattered the way of life which they had enjoyed for

many thousands of years. These people have in common a struggle to retain or

gain traditional land or compensatory resources, to cope with government

management of their affairs, to overcome grossly disproportionate rates of

incarceration, and to survive as culturally distinct people within nation-states. In

a developing sphere of international law these people are coming to be recognised

as a specific category of 'indigenous people' and under the aegis of various parts

of the United Nations work is going on to develop a statement of their rights and

ways of protecting and enforcing those rights. The countries facing these

problems include Australia's sister democracies of Canada, the United States and

New Zealand. Although there are great differences between the Indians of North

policy o f assimilation sought that Aboriginals would 'choose to obtain a similar manner and standard of living to that of other Australians ...'.

25

America and the Inuit (as the Eskimos are now known) of the far north, the

issues that have developed are extraordinarily similar to those developing in

Australia. For Australia, as for those other countries, the problem is to reconcile

demand for the recognition of special Aboriginal status and rights within existing

institutional arrangements and the ideological foundations of western nation­

states.8

White Australians have shied away from confronting these issues, sometimes in

complete ignorance of the past treatment of Aboriginals in this country,

sometimes fearful of a challenge to the legitimacy of the white occupation of

Australia, sometimes for the protection of vested interests which they see as

possibly threatened by the recognition of Aboriginal rights, sometimes for racist

reasons, sometimes in an arrogant ethno-centric rejection of cultural pluralism,

and sometimes in an unjust and unrealistic invocation of ideas of equality. But

the issue will not go away. It will only grow as an issue of conscience, justice,

civil harmony and international reputation.

It has not only been the unwillingness and the racism of non-Aboriginals that has

made dialogue difficult. On the Aboriginal side there have been problems not

only of attitudes but of finding mechanisms through which an Aboriginal voice

1 an Aboriginal policy can be formed and articulated. The Aboriginal society

n Europeans found in Australia consisted essentially of small groups

without even regional, let alone national, organisation. Their way of life did not

require a central authority and they had none. Their active resistance to the

European invasion was by local small scale warfare in most cases, and the effect

of the European policies after the defeat of Aboriginal resistance in south-eastern

Australia was to drive Aboriginals from the land on which their social

organisations were based and subsequently to concentrate them, reshuffle them,

segregate them, break up their families, institutionalise them and in many ways

N. Dick, I n d ig e n o u s P e o p le s a n d th e N a tio n -S ta te s 1985 (Memorial University of Newfoundland).

26

hinder the development of even local centres of initiative, let alone large scale

organisation.

Despite this there is a long history, little known to most non-Aboriginal

Australians, of the building of political organisations by Aboriginals. However

there is still no generally recognised voice of Aboriginals on a national, State or

in many cases even regional level. Attempts by government to impose on

Aboriginal communities organisations structured on European concepts have

been generally unsuccessful.

In the absence of some national or widespread organisational unity on the

Aboriginal side, formal dialogue on reconciliation is difficult. One cannot

assume that the role will necessarily come to be filled by a body such as ATSIC

which, despite extensive attempts at consultation prior to its establishment, is

inevitably a body based on non-Aboriginal concepts, and indeed designed to be

part of the governmental bureaucracy. When it comes, national Aboriginal

representation will have to be something evolved by Aboriginals themselves,

even if, as of course they should be free to do, they adopt or adapt organisations

set up for other purposes. If there is to be an effective process of reconciliation,

what is needed on the Federal Government's side is a very flexible willingness to

allow and assist the independent development of representative Aboriginal

institutions, and a resisting of the temptation to create or impose them from

without.

In this context one can only applaud the approach of the Federal Minister for

Aboriginal Affairs, Mr Tickner, who envisages a bipartisan and widely

supported flexible approach to a process of reconciliation fostered by the

Commonwealth Government and all of the States, and the response of the Leader

of the Opposition, Dr Hewson, who has left the door open to a bipartisan

approach.

27

THE IMMEDIATE FUTURE

The process of reconciliation is likely to be long and difficult and will succeed

only if there is a development of understanding and sympathy on both sides.

That will take time. There will be attempts to subvert it by vested interests, by

the narrow-minded and prejudiced and by those unwilling to adopt any but

extreme stances. There will be those who seek to polarise the community by

playing on ignorance, fear, prejudice and accumulated bitterness.

It is very important therefore that further steps in improving the circumstances of

Aboriginal life should not await the outcome of the reconciliation process.

Indeed there are many steps which should be taken which will not only be good

in themselves in enhancing the status of and providing greater justice for

Aboriginals, but will in that very manner pave the way for and ease the strains

associated with the reconciliation process.

Some of the steps can be specific or local processes of reconciliation in more

acute areas of conflict. There is much constructive work under way to reduce the

longstanding tensions between police and Aboriginals, and there is an increasing

number of examples of black and white communities seeking to understand each

other and co-operate at local levels, an arena where there is much scope for work

by local government councils. Many acute sources of conflict can be solved only

at this face to face level.

Many of the areas in which government action and funding are needed to effect

improvement have become obvious enough and indeed have been the subject of

attention for many years. In addition to the areas directly concerned with the

administration of justice, to which reference has already been made, there is the

deplorable health status of Aboriginals which leaves them with a life expectancy

20 years less than that of their non-Aboriginal fellow citizens; low education

levels with flow-on effects to the acquisition of power, skills and employment;

inadequate housing; the influence of alcohol and drugs with resultant social

28

disruption and domestic and community violence; and the degree of mutual

understanding, respect and interaction between Aboriginals and non-Aboriginals.

In recent years governments have made considerable efforts to improve the lot of

Aboriginal people, and while some successes have been achieved, the rate of

positive change has often been disappointing.

While my work as a Commissioner has made me very conscious of these issues,

the time available and the necessity of concentrating attention on the detailed

circumstances of the custody and death of many individuals have prevented me

studying such a range of topics to the point where I would venture to offer

detailed views as to what should be done in the various special areas. However

some fundamentals of the situation stand out fairly clearly. They were confirmed

for me by a visit to North America where I had some opportunity, albeit brief, to

see the very similar situations that have emerged in relation to the indigenous

peoples of North America and Canada.

The great lesson that stands out is that non-Aboriginals, who currently hold

virtually all the power in dealing with Aboriginals, have to give up the usually

well-intentioned efforts to do things for or to Aboriginals, to give up the

assumption that they know what is best for Aboriginals, and to stop treating

Aboriginals as aberrant or backward individuals who have to be led, educated,

manipulated and re-shaped into the image of the dominant community. Instead

Aboriginals must be recognised for what they are, a people in their own right

with their own culture, history, values and right to take part on an equal footing

in finding their place in Australia.

They are a people who through the processes of colonisation were stripped of

resources and, in south-eastern Australia at least, had their culture changed

almost beyond recognition. Nevertheless they have retained and value, and are

entitled to respect for, their distinct Aboriginal identity. They have maintained

their identity and their culture in the face of deliberate attempts to destroy it, and

in the face of having to live in a situation where economic, political and social

29

power, control of resources, control of the media, control of education, control

of employment and indeed most forms of power have been vested in the

competing dominant culture.

What is needed is a redress of that balance so that there is a genuine respect for

and genuine room for Aboriginal culture and identity. This must be accompanied

by a real transfer of resources to the people who were so cruelly deprived of

them, and it must be a real transfer to their control, not the use of resources to

manipulate their responses in a way congenial to the dominant culture.

For many reasons - spiritual, economic, social and cultural - land has played a

critical role in the assertion and maintenance of Aboriginal identity. In some

parts of Australia the restoration of ownership and control of traditional land has

been still possible and has been of great importance. In south-eastern Australia

the complete and long-standing changes in land ownership and use have made

this solution difficult or impossible in most cases. However New South Wales

did introduce in 1983 a valuable and far reaching initiative in its land rights

legislation. It was far more important in its implications than many people

realised at the time. It did carry an implicit recognition of the identity of

Aboriginal people, the injustice of their dispossession and the need to transfer

significant resources into their control. Such a ground-breaking measure must

inevitably encounter problems. On the one side there will inevitably be

resentment and opposition from vested interests, or from those who feel

threatened by the disturbance of an historically unjust situation from which they

continued to benefit. On the other hand there must be difficulties in the giving of

trust and confidence by those who have been so long dispossessed, controlled

and marginalised, and in their achieving success in managing resources of which

they have been so long deprived, and in their exercising initiative and power

which has so long been denied to them.

However such problems must not become an excuse for undermining or

dismantling such an imaginative and potentially constructive measure as the New

30

South Wales land rights legislation. It is only if measures which give some

genuine degree of power and independence to Aboriginal communities,

organisations and individuals are introduced and fully accepted that we can hope

to move towards a reconciliation with Aboriginal people which will mean the end

of the disproportionate numbers of Aboriginals in custody and with it their deaths

in custody.

A closely related issue is the role of Aboriginal organisations. While there are

some Aboriginals ready to step out into the mainstream community and seek the

rewards of individual enterprise, most Aboriginals, in south-eastern Australia as

elsewhere, see their lives in terms of membership of their communities, and to a

large extent their local community.

Traditional forms of Aboriginal organisation and authority have largely

disappeared in south-eastern Australia, and in any event they were not adapted to

the economic and political world in which Aboriginals have to find a place today.

Aboriginals have responded by developing a variety of organisations. Many of

these have suffered great tensions, often because of alien requirements forced on

them as a condition of funding, sometimes for other reasons such as divisions

within communities built from various groups forced together by protection or

assimilation policies, or by economic pressures or by the hostility of white power

brokers in country towns. But despite difficulties and failures, many successful

organisations have emerged.

In one area after another organisations have developed to provide Aboriginals

with representative voices, opportunities to regain control over some aspects of

their lives, and the experience of management and responsibility. They are a

cradle for the development of many skills, of self respect, of unity and co­

operation, and of the culturally appropriate services needed for Aboriginal

advancement in many fields. There are many great advantages that do not appear

in their balance sheets. It would be a tragedy if the organisations which are

building a fabric for Aboriginal society were swept aside by a passion for

31

'mainstreaming' based on narrow calculations of efficiency. It would be, as one

Aboriginal put it to me, 'the second dispossession'.

4

32

PART TWO - THE COM M ISSION'S INVESTIGATIONS

CHAPTER 3 - THE PROCESS OF INVESTIGATION

THE COMMISSION’S INVESTIGATION OF DEATHS

Each death was thoroughly investigated by Royal Commission staff, prior to the

matter coming on for hearing. In each case a process of identifying and then

requesting all relevant files and documents was the foundation upon which the

investigation was conducted. In some cases the lives of the deceased had been

detailed and documented to an extraordinary length by various government

departments. All such files were obtained, as well as all the transcript and

exhibits tendered at the coronial inquest into the death. This considerable mass

of documentary evidence was then sifted and sorted, and arranged into files

under the following headings, according to the source of the material.

Royal Commission Case File Numbers:-

1. Initial information

2. Coroner's file

3. Inquest transcript and exhibits

4. Police

5A. Corrective Services

5B Probation and Parole Service

6. Health

7. Attorney General

7A Director of Public Prosecutions

8. Ombudsman

9. Department of Aboriginal Affairs

33

10. Department of Family and Community Services

(or similar department depending upon which State)

11. Premier's Department

12. Education and employment

13. Relatives

14. Aboriginal Legal Service, Western Aboriginal Legal

Service, Victorian Aboriginal Legal Service or Tasmanian

Aboriginal Legal Service

15. NAILSS

16. Committee to Defend Black Rights

17. Statements taken by Royal Commission

18. Research

The original documents were copied and paginated for ease of reference and

copies provided to each of the parties. An important part in the preliminary

preparation was early direct contact with the family of the deceased so as to hear

from them their particular concerns and desires in relation to the investigation of

the death of their family member. The compilation of a chronology was

commenced once the various material had been organised and paginated. The

chronology presented a fully referenced history of the life and death of the

deceased and of subsequent actions relating to the death.

An initial conference was then called at which representatives of all parties taking

part in the inquiry discussed what issues were appropriate for examination in the

hearing. At this stage advice was also sought from all parties as to those persons

whom it was thought necessary for the Royal Commission to interview and take

statements from, and what topics were to be covered.

Bearing in mind the analysis made by Commission staff together with the advice

of the various parties, lists were drawn up of people to be interviewed. In some

cases the search for those persons entailed considerable work. Some had never

before been formally spoken to in relation to the death. For instance, the

34

investigation of the death of Peter Campbell, which had taken place at Long Bay

in February 1980, was complicated by the need to identify and then track down

60 men who had been in the same wing of the prison on the night that he died.

None of these persons had ever been interviewed or spoken to about the death

before; some had long since left prison and had established new lives elsewhere;

some were back in prison on different charges; some were deceased and some

were unable to be traced.

Once all possible witnesses had been located, officers on the staff of the Royal

Commission arranged and conducted interviews with them, and, on the basis of

the information provided, drafted detailed statements, each of which had then to

be checked and finalised with the relevant witness prior to being distributed to the

parties and submitted as evidence. In some cases as many as 70 individuals were

interviewed and statements compiled. As this work went on, analysis of the

incoming information continued so as to develop a framework of issues to be

addressed in the case. Where appropriate, letters were written to the

representatives of persons or organisations who might be the subject of adverse

comment, drawing attention to this situation and asking for a response to specific

allegations or criticisms.

PREPARATION FOR HEARING

When the compilation of the evidence was almost complete, counsel assisting the

Commission prepared a report9 which set out a preliminary view of the facts as

they related to the death under investigation, any prima facie findings adverse to

or critical of individuals or organisations, areas where oral evidence was thought

to be required and issues to be addressed in such evidence, tentative findings or

submissions and the identification of underlying issues. This report was

circulated amongst the parties for comment and discussion. The parties were

given a fixed time to consider the report and then a final pre-hearing conference

This procedure was introduced after some early inquiries had been completed.

35

was held to consider what oral evidence was required; what issues were to be

addressed and what, if any, matters of relevance had not been covered by

counsel assisting's report.

Following the conference, advice was given to me in relation to the issues to be

addressed and the witnesses to be called. In some cases formal directions

hearings were held prior to the actual hearing of the case, to enable legal

representatives to make submissions to me as to what issues ought to be

addressed by calling of evidence, and what witnesses ought to be called, beyond

those identified by counsel assisting as necessary. In addition to the preparation

of evidence from the ordinary witnesses, particular efforts had to be made to

collect, collate and supply to expert witnesses engaged by the Royal Commission

material relating to various aspects of each case on which they were requested to

comment. Expert evidence was usually obtained about medical issues relating to

the death and the conduct of the autopsy. Depending on the circumstances of the

case, expert evidence was called on other issues, for example the effect of

alcohol or drugs, the difficulty of tying particular knots, the qualities of

materials, fingerprints, handwriting and the authenticity of documents and other

issues. Care was taken to select experts independent of those involved in the

death. For example, New South Wales autopsies were reviewed by Victorian

experts, usually the Director of the Victorian Institute of Forensic Pathology.

When family members and members of the Aboriginal communities were to be

interviewed, it was usual for such interviews to be conducted either by one of the

Commission's Aboriginal Field Officers, or by a solicitor in the company of a

Field Officer. The Field Officers also provided general advice to both the

solicitors and the counsel assisting as to the issues, and the desires, interests and

concerns of the local Aboriginal community.

One object of the detailed preparation of each case was the reduction of time

occupied in public hearings, particularly having regard to the expense involved in

such hearings. This entailed painstaking preparatory work, to a far greater extent

36

than would otherwise have been necessary. The heavy workload was borne by

all the staff of the Commission in a most dedicated and exemplary fashion.

Although the time in public hearings was reduced, the amount of work which

had to be done out of court by myself to master the materials, control the hearing,

make findings and write reports in the 18 cases was considerable. To give some

idea of just how big the task has been, the documentary evidence assembled in

the case of David Gundy, excluding the witnesses' statements taken by Royal

Commission staff, totalled just on 8,500 pages. Even so the hearing covered 38

days and produced 3928 pages of transcript. This was the largest case as far as

preparation and hearing were concerned, but there were several others which

were not far behind. I note in this regard in particular the cases of Malcolm

Smith, Lloyd Boney and Glenn Clark.

LOCATION OF HEARINGS

Consideration was given in each case as to whether the hearing into a particular

death should be held near to the location of death, in the community of the

deceased or in a capital city, having regard to such things as the wishes of the

relatives, the location of the majority of witnesses, and the expected length of

hearing. My general rule was to hold the hearing in the deceased's home town

unless there was particular reason for sitting elsewhere. In New South Wales, a

number of cases were heard in Sydney, some because that is where the death

occurred, some because that is where the relatives wished the hearing to be held

and others for a combination of reasons. However, hearings were also held at

Grafton, Walgett, Tam worth, Lismore, Coffs Harbour, Wilcannia, Brewarrina

and Griffith. I also visited communities associated with other deaths including

Dareton, Broken Hill, Dubbo, Redfem and Wollongong. In Victoria one of the

hearings was held at Swan Hill whilst the other two were held in Melbourne.

However I visited the communities at Moe and Echuca from which the other two

deceased came. The one Tasmanian death occured in a suburb of Hobart, which

was where the hearing was held.

37

Outside of capital cities, hearings were never held in local court rooms. These

are commonly thought of as 'police courts' and are places where charges by

police against Aboriginals are dealt with. Care was taken to ensure that all

hearings were in more neutral territory. Many of the centres were small and the

only available premises apart from the courthouse were council chambers, so

these were commonly used. Sometimes other council premises such as

community centres were available. In Wilcannia the Commission sat in the pre­

school adjoining the Aboriginal 'mission'.

REPRESENTATION AT HEARINGS

At each of the hearings leave to appear was granted to the family or kin of the

person whose death was the subject of inquiry. The New South Wales,

Victorian and Tasmanian Governments respectively were given leave to appear in

those cases relating to deaths in each State. The Governments did not usually

appear on behalf of individual public servants, but in relation to general issues

the State had relevant interests to safeguard and was in a position to assist the

Commission in a variety of ways. The relevant police or prison officer or

associations provided representation for officers who were the subject of inquiry

in every case. The Police Federation of Australia also sought leave to appear but

indicated that it did not propose to attend proceedings as a matter of course. On

the basis that it appeared to be a precautionary measure in case a matter arose on

which the Federation and its State branch had divergent views I neither granted

nor refused leave but left the way open for the application to be renewed if the

need arose. This did not occur.

The National Aboriginal and Islander Legal Services Secretariat (NAILSS),

which is an umbrella organisation of which the great majority of Aboriginal Legal

Services in Australia are members, sought leave to appear on 'overview' issues,

i.e. general issues transcending the circumstances of particular deaths. Similarly

the Committee to Defend Black Rights (CDBR) applied for leave to appear in an

38

'overview capacity'. Having regard both to the ongoing and very real interest in

the general issues relating to the arrest, charging, trial and imprisonment of

Aboriginals on the part of various Aboriginal Legal Services and the fact that

CDBR had played such an important role in relation to the publicising of the

issue of Aboriginal deaths in custody and the movement calling for this Royal

Commission to be established, I granted each organisation a qualified leave to

appear, which did not allow the organisations to duplicate the work of counsel

for the respective families. I granted NAILSS and CDBR leave to appear in

relation to matters relevant to an understanding of deaths in custody as a general

social phenomenon and to steps which might be taken to prevent future deaths in

custody. I particularly remarked in the ruling I handed down on applications for

leave to appear that the parties were invited to make written submissions on

general issues. I pointed out that the grant of leave was not to be construed as

indicating that the Commission considered that it was necessary or appropriate

for the party to be present at all hearings of the Commission, or to be represented

in any particular way.

At each of the public hearings counsel appeared for the family of the deceased,

the police and/or prison officers involved, and the relevant State government, and

to assist the Commission. On occasions, counsel or officers represented

NAILSS and CDBR, though the latter representation discontinued after the

middle of 1989. From time to time other indivduals or organisations sought

leave to appear to protect their interests. At different times these included a

solicitor, ambulance officers, a doctor, the Royal Flying Doctor Service and an

officer of the Prison Medical Service. On occasions counsel for a State

government would appear for some of the most senior officers involved. In

some cases, notably the inquiry into the death of David Gundy, there was

separate representation for different groups of police officers.

39

COMMUNITY CONSULTATIONS

On the occasions when evidence in the individual cases was taken in country

towns, I usually took advantage of the occasion to conduct consultations with

the local community members. This commonly took the form of meetings with

organisations or arranged by organisations, or sometimes with groups of

relatives. In some cases meetings were arranged formally with groups of police H

or other officials concerned with Aboriginal affairs. In Victoria I spent two

weeks visiting communities over a wide range of areas in the State in company

with Mr Richard Frankland, the Commission's Aboriginal Field Officer in

Victoria.

Open public conferences about a range of issues were held in Wilcannia,

Walgett, Brewarrina and Swan Hill. At the time of the inquiry into the death of

Paul Kearney I held a public conference in Redfem in relation to issues arising

out of intoxicated persons and alcohol. Public conferences were held in Sydney,

one on juvenile justice and one on Aboriginals in the prison system. It was

intended to hold a similar conference on Aboriginal/police relations in Sydney,

and corresponding conferences in Victoria and Tasmania. However due to the

time occupied by the inquiry into the death of David Gundy it was not possible

to hold these conferences. I was particularly grateful to have the opportunity in

Victoria to take part in a live-in conference between police officers and

Aboriginals. It was a particularly enlightening and encouraging experience.

I am indebted to all those people, Aboriginal and non-Aboriginal, who took the

time and effort to advise and inform me of their point of view and ideas and

possible solutions. Particular commendation should be made of the role of the

Aboriginal Field Officers of the Royal Commission who were instrumental in

arranging such community consultations and without whom, I am sure, I would

have received nowhere near the amount of helpful and considered advice which I

did fortunately receive. Whilst preparation was underway for many of the

individual cases, solicitors and field officers were at the same time conducting

40

interviews and amassing detailed information in relation to the more general

issues affecting the particular Aboriginal community or of some relevance to

particular characteristics of the individual case under investigation. The result of

all this consultation and statement taking has been a wealth of information, only a

part of which it has been possible to incorporate into this general report.

However, just because particular points or suggestions do not find their way into

this report, I should like to state that my opinions and evaluations have been

fashioned on a continuing basis by all the various people who have taken time to

address me or provide me with written submissions. All the material has been

made available to those working on the National Report of the Commission.

Knowing as I do, the degree to which Aboriginal people have had in the past,

and continue in the present, to have their lives so intricately dissected by white

researchers and departmental surveyors, I am all the more appreciative of those

who nevertheless came forward and offered what were at times deeply personal

and significant accounts in order to help me understand the situation of

Aboriginal people in society today.

TESTING CUSTODIAL OFFICERS' EVIDENCE

In some cases where a death in custody occurs there are some witnesses

independent of custodial officers, for example other prisoners, who may be able

to give useful evidence, but this is not usually so. When the deceased is not

there to give his account of what happened and the only surviving witnesses are

the custodial officers whose conduct is in question, how can one reach a

confident conclusion that there was not foul play or other misconduct? I had to

confront this situation in a number of deaths where it was obvious that relatives

very strongly believed that there had been foul play. I found that basically there

were three approaches which were of assistance: one was to examine critically

and pay great attention to the 'hard' evidence; the second was the critical and

sceptical examination of the evidence of the custodial officers themselves; and

the third was the examination of the plausibility of the self-harm explanation.

41

In no case which I investigated was the suspicion, indeed conviction, of foul

play stronger amongst family and friends than in the relation to death of

Lloyd Boney in Brewarrina Police Station. In that case I found that there were

numerous events which could be given a guilty interpretation or an innocent

interpretation, that is they could be fitted into either a killing or a self-hanging

scenario. I explained how I proposed to approach those issues in the following

passage:

'In some cases there are conflicting accounts of incidents which

happened suddenly and were over in a matter of seconds, a

situation in which human memory is notoriously unreliable. For

many of the events the only surviving witnesses are police and if

they are guilty they are not likely to admit it. On some things they

have clearly not told the truth, but this does not necessarily mean

that they killed Lloyd Boney.

'In these circumstances it is of great importance to see what can be

learnt from 'hard' evidence, that is, evidence which does not

depend on the honesty of witnesses and the reliability of their

memories, but evidence which survived the events in some form

which enabled it to be carefully examined afterwards, or may even

enable it still to be examined now.

'In the present case three forms of hard evidence survived the

events. The most important piece of evidence was Lloyd's body,

which was subjected to very thorough p o st-m o r te m examination

by two independent and well qualified pathologists, one of them

chosen by the Western Aboriginal Legal Service (WALS). Their

observations at these examinations were written down in detail in

p o s t-m o r te m reports which give a picture of the state of Lloyd's

body after the events.

42

The second form of hard evidence consists of the cell and things

found in it. The cell and its doorway are still there and it is

possible to examine them and see whether it was possible for

Lloyd to have hanged himself. The sock by which the police say

Lloyd was found hanging is still available and was subjected to

very thorough scientific examination to see if its condition was

consistent with the police story. A finger mark found in the cell

was photographed, but there was insufficient detail to identify the

person who made it.

The third form of hard evidence is the documentation created by

police in processing Lloyd, which still exists and can be

examined. If it supports police it must be very carefully

considered to make sure it was not fabricated to support the police

story. However if the police officers' own documents contradict

their story, this is very telling.'

The death of David John Gundy was another example where the 'hard'

evidence was of critical importance, because otherwise one would have been

totally dependent on the evidence of the members of the SWOS squad as to the

immediate circumstances of his death. In that case a very great deal depended on

the medical evidence relating to the shotgun wound sustained by Mr Gundy and

the configuration of bloodstains in the room in which he died.

The critical examination of the evidence of the custodial officer witnesses is a

technique very well known to the law and to a considerable extent is what cross­

examination is all about. I was assisted in all the hearings by very thorough

cross-examination by counsel assisting and by counsel appearing for the family

of the deceased. Often because of preceding coronial inquiries and police

investigations a number of previous accounts had been given by the officers

concerned, and discrepancies between their accounts at different times were a

43

matter for critical evaluation. In addition there was the matter of internal

inconsistencies within accounts and inconsistencies between different witnesses.

The consistency of the oral evidence with the hard evidence and particularly with

documentation for which witnesses were responsible is also a very important line

of inquiry.

Of course the mere existence of discrepancies or inconsistencies or conflicts is

not conclusive of untruthfulness, much less of guilt. Human powers of

observation, particularly where events happen at speed or in a complicated

context, are notoriously prone to error. Memories fade quickly and the

reconstruction of events, often quite innocently, comes to play a big role in what

people believe to have happened. Individuals differ greatly in their power of

narration and command of language and in their ability to say with precision what

they mean. All of these things must be allowed for and the assessment of

witnesses’ oral evidence is one of the most difficult tasks of a tribunal.

The third important approach to excluding foul play which I mentioned was the

testing of the plausibility of the competing hypotheses. Among the questions to

be asked in testing the hypothesis that a person took his or her own life are these.

Was the method of death - for example hanging - capable of being carried out, or

likely to have been carried out, by an unaided person? Did the deceased have the

opportunity to carry it out unobserved? Were the means available without

provision by someone else? Did the deceased possess the skill and capacity

needed to carry it out? Was the deceased disabled by intoxication or other

circumstance from carrying it out? Is the objective evidence, including scientific

examination of the site and the pathologist's examination of the remains,

consistent with the deceased's own act? Was it plausible that this person would

have taken his or her own life? Can all persons who had the care of the deceased

or are possible suspects account for their movements?

44

Usually it is possible to reach a conclusion by the use of these techniques.

However in the case of the death of Bruce Leslie I found that due to the untrue

evidence of police officers I was unable to find how the death occurred.

45

CHAPTER 4 - JURISDICTIONAL ISSUES

TERMS OF REFERENCE

As in the case of other Commissioners, my Terms of Reference required me to

inquire into the deaths in specified States of the Commonwealth

'since 1 January 1980 of Aboriginals and Torres Strait Islanders

(including any such deaths that may occur after the date of the

Letters Patent) whilst in police custody, in prison or in any other

place of detention, but not including such a death occurring in a

hospital, mental institution, infirmary or medical treatment centre

unless injury suffered whilst in police custody, in prison or in any

other place of detention caused or contributed to that death.’

In a number of cases issues arose as to whether deaths should be placed on the

Commission's list, or deaths that had already been placed on the list should be

removed. In other States contentious issues have arisen as to whether particular

persons were 'Aboriginals'. In three cases names which had been placed on the

Commission's list were removed at my direction on the ground that the persons

were not Aboriginal. However in none of the three cases (Stanley Cobb and

Edward Hilsley in Victoria and Ross Mulvihill in New South Wales) did any

argument arise. In each case the situation was investigated by Commission

officers who found prima facie evidence that the person concerned was not

Aboriginal and this accorded with the claims of the families of the deceased and

was agreed to by all interests appearing before the Commission.

A major issue did however arise in relation to persons who had died in hospital,

the death being contributed to by injuries suffered while in police custody or in

prison. There were two issues which arose. On the one hand, did the Terms of

46

Reference cover a death in hospital contributed to by injuries suffered whilst in

police custody or prison if at the time of the death the person was no longer in

custody? On the other hand, did the Terms of Reference cover a person who

was still in custody but died in hospital in circumstances where the death had not

been contributed to by injuries suffered whilst in custody? For reasons which I

gave in detail in a ruling issued on 14 December 1988 I answered the first

question in the affirmative and the second in the negative. The answer to the first

question had the effect o f affirm ing jurisdiction in the case of

Bruce Thomas Leslie, which I was then about to hear, but denying jurisdiction

in the case of Francis Thomas Cooper, in which evidence had already been

completed before the question arose.

FRANCIS THOMAS COOPER

Francis Cooper died in the Renal Unit of Prince Henry Hospital, Sydney on

3 August 1984. This was an ordinary public ward and Mr Cooper was not

under guard, but he was a remand prisoner who had been taken to the hospital

for treatment. In a mling on jurisdiction given on 3 August 19901 said:

'The story is one of shocking and mindless inhumanity, with

Mr Cooper slipping between cracks in a system where nobody

took overall responsibility for his welfare. Although unconvicted,

he was left to die over a period of two months in gaol, far from

his family, when he was virtually helpless and a threat to nobody.

He should have been released to die in dignity and comfort with

his family about him. The root of his incarceration was that he

was alleged to have said that he had driven a car while under the

influence of alcohol. No-one had seen him do it, no-one had been

injured and he denied that he had made the admission. Nothing

had been proven against him, and one wonders in any event how

useful was an admission claimed to have been made by a person

affected by a blood alcohol concentration of 0.2.

47

The terrible story raises very serious questions about the conduct

of many people in the criminal justice system, including those

representing Mr Cooper, and about the working of the Prison

Medical Service and the Corrective Services Department as a

whole. As I have said, the matter was investigated by the

Commission without any issue of jurisdiction being raised.

However, it was raised and made the subject of a general ruling

prior to my reporting. It would now not be right to report unless I

am satisfied that the matter was within jurisdiction. It is within

jurisdiction only if injuries suffered in prison or police custody

caused or contributed to Mr Cooper's death.'

After reviewing medical evidence I said:

'There is no suggestion that Mr Cooper was in any way

mistreated or denied any proper medical treatment which he was

willing to accept. What happened to him while he was in custody

was simply the progressive continuation of established diseases

and the evidence identifies no particular step in the progress of the

disease which could be described as an "injury". However, even

if anything which occurred during his period in custody could be

identified as the suffering of an injury, it is clear from the evidence

which I have quoted that there is no basis for saying that it caused

or contributed to his death.

Ί therefore conclude that Mr Cooper's death does not fall within

the Terms of Reference of this Commission and I will accordingly

not report on it.'

48

ALLAN GORDON CLAYTON

Allan Gordon Clayton was a 28 year old Aboriginal man who was found dead at

the bottom of an embankment adjoining the highway at Cowrie in New South

Wales on 2 January 1982. The matter was investigated by Commission officers

and it appeared that the probable cause of Mr Clayton's death was liver disease,

resulting from alcoholism, and that over the 48 hours before his death there was

a slow development of hypoglycaemia of increasing severity which culminated in

his death. At various times some of the symptoms may have been mistaken for

intoxication.

Investigation showed that Mr Clayton was in police custody between 1.00 am

and 6.30 am on 6 January 1982 as an intoxicated person, and that he may have

been in custody between 7.30 am and 9.00 am on the same day when he was

taken by police from a yard in Tam worth to Tam worth Base Hospital and later

back to the police station. It is clear that he had left the station at about 9.00 am

as a free man and was not in custody at the time of his death. Accordingly his

death did not fall within the Terms of Reference. The extensive investigation of

the matter which was carried out did not reveal any reason to suspect any form of

misconduct on the part of police. On the contrary all the indications were that

they had acted out of concern for Mr Clayton's welfare.

KEITH 'COWBOY' ADAMS

Keith Adams, an Aboriginal man living in Collarenabri in New South Wales,

was last seen in the early hours of 9 September 1982. A coronial inquiry held

between 20 November 1986 and 3 December 1987 concluded that certain

remains found in a paddock on 9 June 1984 were those of Keith Adams, and

that he had died of poisoning from the effects of a type of sheep-dip, whether

accidentally or not the coroner was unable to say. There was a lengthy

49

investigation at the coronial inquiry at which the deceased's family was legally

represented.

The matter was extensively investigated by Commission officers. Scientific

evidence from Professor Cordner did not support the coroner's finding that

Mr Adams died from poisoning by the sheep-dip, traces of which were found in

soil near his remains, so that the matter was left on the grounds that there was no

reliable information at all as to the cause of his death. The suggestion that his

death may have been connected with custody came from a statement made by a

witness, Mr Weatherall, who claimed that while in custody with Mr Adams he

saw him being taken away by a sergeant of police and a civilian friend of the

sergeant in a Landcruiser belonging to the friend. Unfortunately Mr Weatherall

died prior to the commencement of the inquest, there being no suspicious

circumstances associated with his death. Commission officers subjected every

detail of Mr Weatherall's statement to close analysis to test its reliability. It

became clear that many details of the statement were inconsistent with each other

and inconsistent with their occurrence around the time of Mr Adams'

disappearance. They were also inconsistent with routine police records. There

were also important inconsistencies between Mr Weatherall's written statement

and oral accounts given by him to other witnesses. It is clear that his statement

provided no basis for any finding of misconduct in relation to Mr Adams' death

or for any finding that he died in police custody. In some ways Mr Weatherall's

statement is reminiscent of statements given by another witness who claimed to

have been in police cells both with Lloyd Boney and Clarence Nean prior to

their deaths, the evidence in both cases being obviously quite fanciful. It is

probable that in all three cases a story was imagined or fabricated to fit around the

circumstances of the death.

One must sympathise greatly with the relatives of Mr Adams, as the mystery of

his disappearance remains completely unresolved. However there was nothing

that the Commission could do to assist.

50

KENNETH JOHN BUCHANAN

The dead body of Kenneth John Buchanan was found lying on a sand dune at

Happy Valley, Coffs Harbour on the morning of 10 November 1986. He was

an Aboriginal who lived on an Aboriginal housing estate, Wongala, in another

part of Coffs Harbour. His death was placed on the list of this Commission for

investigation as a possible Aboriginal death in police custody. On

30 October, 1989 I heard submissions, on the basis of the documentary

evidence then available, as to whether or not the matter was within the Terms of

Reference of this Commission. Following that hearing I issued a Ruling on

8 November 1989 indicating that I was not satisfied on the material then

available that the matter was outside my Terms of Reference and I therefore

directed that further investigation continue. Some further statements have been

obtained and on 2 and 3 April 1990 oral evidence was taken from a number of

witnesses at Coffs Harbour and submissions were made by parties in the light of

the evidence. The evidence and submissions were directed to jurisdiction.

There was no dispute that Mr Buchanan was taken by two police officers from

Coffs Harbour Hospital on the morning of 9 November 1986, shut in the back

of a police wagon and taken to the place where his body was found the next day.

The jurisdiction of this Commission to inquire depended on whether

Mr Buchanan was in police custody at the time of his death. This involved the

two questions whether his relationship with the police who took him to Happy

Valley was one of being in their custody, and, if so, whether that condition of

custody was still in existence at the time of his death.

After hearing evidence I concluded that Mr Buchanan had been in custody shortly

before his death, but was still alive when his custody ceased. In those

circumstances his death fell outside the Terms of Reference.

51

DAVID JOHN GUNDY

David John Gundy, an Aboriginal man, died on 27 April 1989 of the effects of

shotgun wounds sustained when members of the Special Weapons and

Operations Section of the New South Wales Police Force made a surprise forced

entry into his home in search of John Porter who had shot two police officers. I

held that there was evidence that Mr Gundy was in police custody at the time of

his death and this ruling was challenged in the Federal Court. Burchett J on

23 April 1990 held that Mr Gundy was not in custody at the relevant time. On

13 May 1990 a Full Court, (Morling, Beaumont and Gummow JJ) upheld an

appeal, set aside the orders of Burchett J and dismissed the application to restrain

me from hearing the matter. In the course of a joint judgment Morling and

Gummow JJ said:

'An Aboriginal person who is given by the police to understand

firmly that he will be restrained from leaving his house at his own

will may, one should have thought, properly be said to be in

police custody.'

The High Court subsequently refused leave to appeal from the decision of the

Federal Court. I accordingly proceeded to hear and report upon the death.

PAUL ANTHONY PRYOR

Paul Anthony Pryor was an Aboriginal actor from Yarrabah in Queensland who

was found hanged in a shed at the rear of his brother's home in Melbourne on

13 January 1988. He had been in police custody at Wangaratta from 5 to

8 January 1988 and had been due to appear in court on 11 January 1988. The

coroner found:

52

The deceased was depressed and as a result of being arrested at

Wangaratta he became concerned about his previous treatment by

the Yarrabah police (Queensland) approximately 12 months

previously. He was also concerned about his forthcoming court

appearance at Wangaratta on Monday 11 January 1988. The

deceased took his own life between 10 and 11 January 1988.'

The coroner referred the findings to the Attorney General of Victoria for

forwarding to this Royal Commission and as a result the matter came into the

Commission's list. It was clear on consideration of the facts that the matter did

not fall within the Terms of Reference of the Commission. However, following

representations made by the Victorian Aboriginal Legal Service to the Victorian

Government, that Government requested me as the Commissioner conducting

inquiries in the State of Victoria to undertake a preliminary investigation into the

death of Paul Pryor with a view to making a recommendation as to whether the

matter should be investigated by the Commission. This would of course have

involved an amendment to the Terms of Reference. I indicated to the Victorian

Government that in my view it should seek the co-operation of the Queensland

Government if it wished me to carry out any investigation, as major allegations

related to the conduct of police in Yarrabah in Queensland. The Premier of

Queensland indicated that the Queensland Government was prepared to co­

operate by providing any background information about the arrest of Mr Pryor in

Yarrabah and would be prepared to consider any recommendation which I might

make.

It also emerged that allegations were being made that Paul had been mistreated by

police at Fitzroy Police Station in Melbourne on Thursday, 16 July 1987 and

that this was also a factor contributing to his action in taking his own life. I

instructed officers of the Royal Commission to assemble all relevant material and

to interview relevant witnesses in Victoria who were prepared to make

statements. The Queensland Police Complaints Tribunal of Queensland supplied

documentation of its investigation of a complaint by Paul Pryor concerning his

53

treatment by members of the Police Force at Yarrabah on the occasion referred to

at the inquest, and a copy of a report which the Tribunal had made to the Minister

on 16 February 1990.

The Queensland Police Complaints Tribunal had in fact upheld Paul Pryor's

complaint concerning his treatment at Yarrabah even though he was not available

to give evidence. It said that if Paul Pryor had been alive to give evidence

against the police officers it would have had no hesitation in recommending

criminal charges against them. In those circumstances, Paul Pryor's complaint

having been vindicated by a proper inquiry, I took the view that there would be

no point in the Royal Commission conducting a further inquiry.

So far as Paul's detention at Wangaratta was concerned, police officers at

Wangaratta made themselves available for interview by Commission officers.

Paul had in fact told his brother that his treatment by the Wangaratta Police had

been very, very good and the Commission's investigations suggested nothing to

the contrary. Accordingly there was no reason to investigate his custody there.

Although counsel for the police officers submitted to me that I should not

recommend the extension of my terms of reference to include Paul Pryor's

death, the officers at Fitzroy Police Station declined to be interviewed by

Commission officers. They did supply statements through their solicitor.

Commission officers however interviewed all other persons who might be able to

cast any light on what had happened, either from their own observations or from

discussions with Paul. I concluded in my report to the Government:

'It is clear that the period in Fitzroy Police Station had a profound

and distressing effect on Paul, and left him in a state of

considerable concern and depression thereafter. There were

outstanding charges for which he had to appear in court, and of

course he carried with him the fear that this might be the occasion

to extradite him to Queensland. However there is strong reason to

54

believe that Paul's distress was the result of his own reaction to

custody, bringing back the memories and fears from his Yarrabah

experience, and probably exacerbated by the effect on him of

alcohol and amphetamines. I do not propose to go into any detail

about what is said to have occurred in the police station, as it has

not been the subject of any tested evidence and its repetition would

be painful to many people. However I have found the very

strongest reason to believe that a formal inquiry would establish

that the very serious effect on Paul of his incarceration in Fitzroy

Police Station stemmed from the triggering of Yarrabah memories

rather than particular actions by police at Fitzroy.

'In these circumstances a formal inquiry into events in Fitzroy

Police Station would not, I believe, be in anyone's interest.'

Accordingly I did not recommend that the Terms of Reference of the

Commission be amended to include an inquiry into the death of Paul Pryor.

The Victorian Commissioner of Police subsequently went on a national radio

news program and criticised me for not having cleared the police at Fitzroy. I

would point out that the only witnesses alive as to what did happen in Fitzroy

Police Station are the police officers themselves and they not only opposed the

making of a recommendation that an inquiry be held, but refused to be

interviewed by Commission officers for the purposes of the preliminary inquiry.

In those circumstances it was not possible for me to make any firm finding as to

what happened at Fitzroy Police Station, and it is strange that a complaint should

be made on behalf of those officers that findings were not made to 'clear' them.

POLICE/ABORIGINAL RELATIONS

A question of jurisdiction was also raised when I indicated my intention to

convene a sitting of the Commission to discuss the most suitable procedures for

55

informing myself on the subject of police/Aboriginal relations in New South

Wales. What I envisaged was looking at this question generally as background

to the numbers of Aboriginals coming into custody and dying in custody. This

sitting was called for 15 February 1990 and on that day the counsel for the New

South Wales Government made the following submissions:

1. that I had no jurisdiction to consider generally the question of H

police/Aboriginal relations but only to look at their bearing on

particular deaths;

2. that I had no jurisdiction to consider any feature of

police/Aboriginal relationships arising after 31 May 1989,

because my Terms of Reference were related only to

particular deaths occurring before that date;

3. that I could not investigate 'an underlying issue' as distinct

from the immediate circumstances of particular deaths;

4. that even if I had power to inquire into Aboriginal/police

relations I should not undertake that task because of the

limited time available and the number of reports still to be

written, or inquiries to be held, on particular deaths.

I rejected these submissions for detailed reasons given in a decision dated

19 March 1990. In the course of the decision I quoted a letter from the National

Commissioner, Commissioner Johnston QC, expressing the view that all

Commissioners had the power and duty to investigate underlying issues

associated with the deaths which were the subject of their inquiries. Both he and

the former National Commissioner, Commissioner Muirhead had indicated a

desire that individual Commissioners should inform themselves on underlying

issues in the course of their work with a view to assisting the National

Commissioner in his final report.

56

Following this decision I held two public conferences, one relating to

Aboriginals in prison and one relating to Aboriginal juveniles in the justice

system, in which all interested parties were invited to discuss the issues. It was

planned to have a similar conference dealing with Aboriginal/police relations but

in the end the exigencies of completing hearings and reports by the required date,

and in particular the occupation of my extended Commission by the hearing of

the Gundy case and the preparation of the report on it, made it impossible to hold

the conference. This remains one of a number of issues which I have not been

able to pursue to the extent that I would have wished.

57

V

PART THREE - THE DEATHS

CHAPTER 5 - GENERAL FINDINGS AS TO

CAUSES OF DEATHS

In pursuance of my Commission to inquire into and report upon the deaths with

occurred between the relevant dates in New South Wales, Victoria and Tasmania

I have investigated, held public hearings into and reported upon 18 individual

cases of Aboriginal deaths in custody. Commissioner Muirhead inquired into

and reported upon the death of Edward Murray in New South Wales prior to the

commencement of my Commission, and that case is listed but not discussed in

this report. The following is a list of deaths showing the date and place of death,

age at death and year of birth and the immediate cause of death.

NEW SOUTH WALES

In police custody

Edward James Murray; 12 June 1981; Wee Waa Police Station; 21 years -

1959; Self inflicted hanging.

Clarence Alec Nean; 5 August 1982; Dubbo - base hospital following custody

in Walgett Police Station; 33 years - 1948; Head injury following collapse due

to alcohol withdrawal.

Mark Wayne Revell; 29 October 1982; Grafton Police Station; 27 years - 1955;

Self inflicted hanging.

59

Bruce Thomas Leslie; 6 June 1985; Sydney- Royal North Shore Hospital;

following custody in Tamworth Police Station; 46 years - 1939; Fractured skull

- cause of fracture undetermined.

Paul Lawrence Kearney; 11 July 1986; Sydney - Darlinghurst Police Station;

36 years - 1949; Sleep apnea following alcoholic intoxication and drug

overdose.

Shane Kenneth Atkinson; 5 October 1986; Griffith Police Station; 23 years -

1963; Self-inflicted hanging.

Mark Anthony Quayle; 24 June 1987; Wilcannia Police Station; 22 years -

1964; Self-inflicted hanging.

Lloyd James Boney; 6 August 1987; Brewarrina Police Station; 28 years -

1958; Self-inflicted hanging.

David John Gundy; 27 April 1989; Marrickville, Sydney; 29 yearn - 1959;

Shotgun wound.

In prison

Peter Leonard Campbell; 12 February 1980; Sydney - Long Bay Gaol;

33 years - 1946; Self-inflicted cut to throat.

Malcolm Charles Smith; 5 January 1983; Sydney - Prince of Wales Hospital

following custody in Long Bay Gaol; 29 years - 1953; Self inflicted - brush

handle into eye.

Thomas William (Tim) Murray; 1 December 1983; Bowral Hospital following

custody in Berrima Gaol; 19 years - 1964; Self inflicted drug overdose.

60

Peter Wayne Williams; 8 November 1987; Grafton Gaol; 25 years - 1962; Self-

inflicted hanging.

Maxwell Roy Saunders; 28 November 1988; GoulbumGaol; 27 years - 1961;

Heart disease aggravated by self-administered methadone.

In a juvenile detention centre

Thomas Carr; 23 March 1981; Sydney - Minda Training Centre; 17 years -

1963; Heart disease.

VICTORIA

In police custody

James Archibald Moore; 15 May 1982; Swan Hill District Hospital after

custody in Swan Hill Police Station; 58 years - 1924; Pontine haemorrhage.

Harrison Day; 3 June 1982; Echuca Hospital following custody in Echuca Police

Station; about 40 years - between 1939 and 1943; Epileptic fit.

Arthur Moffatt; 11 June 1987; Warragul Police Station; 51 years - 1936;

hypoglycaemic reaction of diabetic origin.

TASMANIA

In police custody

Glenn Allan Clark; 27 March 1986; Glenorchy Police Station; 23 years - 1962;

Self-inflicted hanging.

61

I propose now to discuss the deaths in relation to various causes or contributing

factors. Among the categories I will use are 'Foul play', 'Negligence and lack of

care', 'Accident', 'Self-inflicted harm', 'Suicide', 'Hanging', 'Unnecessary

custody' and 'Avoidability of deaths'. These are not mutually exclusive

categories, and in any event a particular death may be contributed to by a

combination of different factors. Hence particular deaths may be referred to

under a number of headings.

FOUL PLAY

In no case did I make a finding that custodial officers had killed a prisoner or

even deliberately inflicted an injury on them. In the case of the death of

Bruce Thomas Leslie I was unable, by reason of the untruthfulness of police

evidence, to reach a firm conclusion as to how he had died, or to exclude the

possibility that some mistreatment by police had contributed to his death.

However, even in that case there was no reason to think that there had been any

intention to cause his death or to cause him serious injury.

The suspicion on the part of relatives and friends that there had been foul play

was very strong indeed in some cases. One of the great weaknesses in those

responsible for notifying relatives of deaths or for conducting investigations into

deaths has often been the failure to realise that such suspicion was likely to occur

and was not unreasonable in the minds of relatives. From the point of view of

relatives a live brother, father, husband or son goes into custody and a dead body

is returned. It must never be forgotten that a very important and legitimate part of

the 'racial memory' or 'cultural heritage' of Aboriginals in this country is the

deliberate hunting down and killing of their ancestors and the deliberate

destruction of their families by the forcible movement of groups and individuals

and the taking away of children. With these memories police are very strongly

associated. Today police continue to arrest Aboriginals at many times the rate at

which they arrest other people. One simply cannot expect many Aboriginals to

62

share the benign view of the police function that is held by many non-

Abo riginals.

Death often takes place under circumstances where the only witnesses of the

immediately surrounding events are custodial officers, in whose interest it is that

the deceased should be found to have died by his or her own hand, or by natural

causes without fault on their part. Any investigation which is to convince

outsiders must critically examine such hypotheses and investigate the alternative

hypotheses of death by foul play or negligence.

In my inquiries every effort was made to exclude the possibility of death by foul

play. In Chapter 3 I described the thoroughness with which cases generally

were investigated and also the methods that are available for testing the

hypothesis of foul play when a prisoner dies in custody.

NEGLIGENCE AND LACK OF CARE

Negligence, lack of care, and/or breach of instructions on the part of custodial

officers was found to have played an important role in the circumstances leading

to 13 of the 18 deaths which I investigated.

Of the five deaths in prison inadequacies in the services provided by the Prison

Medical Service were apparent in relation to the deaths of Malcolm Smith,

Tim Murray and Peter Williams and in a fourth case, that of Maxwell Saunders,

prison officers failed to seek medical attention when it should have been sought,

partly as a result of a dispute between the prison officers and the Prison Medical

Service. Peter Williams was also the victim of a hasty and inappropriate transfer

to Grafton Gaol, apparently motivated by a desire to reduce the problems of one

overcrowded gaol by sending him to another at the earliest possible moment.

The failure of police to carry out the proper checking of prisoners may have made

the difference between life and death for Shane Atkinson, Lloyd Boney and

63

Harrison Day. Paul Kearney should have been taken to a civilian proclaimed

place, not a police station, but, having been taken to a police station, medical

assistance should have been sought for him in the light of the pills discovered on

him. Bruce Leslie and Arthur Moffatt should have been taken to a hospital not

to a police cell, and in their cases there was a failure in duty by ambulance

officers as well as police. Glenn Clark's life might have been saved had the

Tasmania Police Force learned from the previous experience of deaths in custody

and given appropriate instruction to police. Mark Quayle should never have

been taken from hospital to a police cell, and when taken to the police cell should

not have been locked up unsupervised. In his case there were breaches of duty

by a hospital sister and a doctor as well as by two police officers.

David Gundy's life would not have been lost if police had waited until they had

sufficient information to justify a lawful entry to premises, or if SWOS officers

had been properly trained to deal with the seizing of their shotguns by an

unarmed person.

ACCIDENTAL DF.ATH

In four cases questions of accident arose in relation to the deaths which I

investigated. There was a sense in which the death of Malcolm Charles Smith

was accidental. He was using the handle of an artist's paintbrush in an

endeavour to put out his eye in response to the Biblical injunction 'If thy eye

offend thee pluck it out'. However he pushed the brush so far in that it

penetrated his brain and he died. Leaving aside any legal questions, the death of

David John Gundy involved an 'accident' in common language, in that

Sergeant Dawson did not intend to discharge the shotgun which went off, and

was intending only to wrest it away from Mr Gundy, whom he believed to be

trying to take it off him. In the process of pulling away his index finger

inadvertently came onto and contracted against the trigger.

The most probable explanation of the death of Clarence Nean at Walgett Police

Station is that he fell and struck his head on the concrete driveway as a result of

64

symptoms of alcohol withdrawal. While the alcohol withdrawal symptoms were

a result of previous drinking and its cessation, it was accidental that they should

have these fatal consequences.

The issue of accident was very relevant to the death of Bruce Thomas Leslie.

He may well have died as a result of fracturing his skull as a result of an

accidental fall backwards either before coming into custody or after coming into

custody. However by reason of the failure of police to give a truthful account of

what occurred in the police station I was unable to exclude the possibility of non­

accidental injury.

SELF-INFLICTED HARM

For the most part in my reports I avoided the use of the term suicide or the

making of findings of suicide. I explain my reasons for this in my R e p o r t o f the

I n q u iry in to th e D e a th o f P e te r L e o n a r d C a m p b e ll. I spoke instead of the

deceased killing himself or taking his own life or some similar phrase. In the

strict sense, suicide is more than that. Suicide as a matter of law involves a

finding that a person not only took his or her life, by his or her own act, but did

so intending that consequence. If that person was capable of foreseeing, and did

foresee, that death was the probable consequence of the action which was taken,

then that person has committed suicide.

There were a number of inquiries in which I was confronted by a situation in

which it was clear that the death was not due to natural causes, to accident, or to

the act of another person. In other words it was self-inflicted. In some cases of

self-inflicted death it may be clear that the deceased did not intend to take his or

her own life, but was intending to do something different. Thus, as my R e p o r t

o f th e In q u iry in to the D e a th o f M a lc o lm C h a rle s S m ith shows, the deceased in

that case was trying to put out his eye, not to kill himself. Sometimes, although I

have not investigated such a case, the deceased has spelt out his or her intentions

in a suicide note for all to see.

65

In other cases one must rely on historical or circumstantial evidence to try to

penetrate the recesses of another person's mind. It is a difficult process,

particularly when the person's mind is disturbed, whether by psychosis,

intoxication by alcohol or other drugs, withdrawal symptoms, or delusions of

any kind. Unless the person has been under constant professional observation,

one will have to rely on bits and pieces of information which may give a very

incomplete picture.

In the case of Peter Campbell for example, Peter was a very private person, who

was revealing his thoughts to no-one in the period before his death, and was

being seen by no professional observer. At the time of the Commission inquiry,

ten years after the event, few people could be found to give any account of his

usual demeanour and state of mind, and their memories could well have been

faulty. There was evidence of premeditation or preparation on Peter's part, but

there was also evidence of recent, apparently irrational, violent behaviour, and in

the not too distant past, of bizarre delusions. I could have weighed up such

evidence as happened to be available and come to a conclusion on the

probabilities, but it might well have been different to the conclusion one would

have reached on fuller evidence.

If in any particular case I had come to the conclusion that the deceased did

commit suicide, it might well have inflicted further pain on relatives who had

already suffered considerably. Personally I can feel sympathy with persons who

suffer such pressures and stresses that they take their own lives and I can respect

their decisions, but for many people the social and religious stigma attached to

suicide is real and important.

I asked myself the question whether it was necessary to make a decision, capable

of inflicting such pain, on such a dubious evidentiary basis. For some legal

purposes it may be important to have a decision whether a death is legally a

suicide, and courts and tribunals have, in such cases, to do the best they can.

66

But in this Commission nothing depended on such a decision. It was important

for me to find whether any other person, and particularly any custodial officer,

bore any responsibility for the death of a person in custody. It was important

also to discover anything that cast light on why the deceased was in custody, and

why he or she died in custody, as this might point to how the numbers in

custody or dying in custody may be reduced in future. For that reason I sought

to learn as much as possible about the life experiences and the attitudes and

thinking of those whose deaths I investigated.

But in most cases I could see no good purpose to be served in trying to resolve

whether a self-inflicted death was suicide in a legal sense (and still less in a

theological sense). I made an exception in Malcolm Smith's case because there

new evidence had clearly shown that a coronial finding of suicide was wrong.

ABORIGINAL SIJICIDE

It was however necessary before making findings that particular deaths were

self-inflicted to consider a widespread assertion that Aboriginals simply do not

commit suicide, ie take their own lives.

I commented on this matter in my R e p o r t o f th e In q u iry in to th e D e a th o f

P e te r L e o n a r d C a m p b e ll because evidence was elicited from Dr Kalokerinos,

who had had considerable experience working as a medical practitioner amongst

Aboriginals, that he had never encountered a case of Aboriginal suicide. The

doctor conceded, however, that he was speaking only of his personal experience,

and that Aboriginal suicide was well documented. For example, in B la ck D ea th

W h ite H a n d s (Allen and Unwin revised edition 1985), Paul Wilson, after

referring to the case of a woman who poured kerosene over herself and burnt

herself to death at Palm Island, goes on:

'Such dramatic examples arc probably exceptional, but other

sources suggest that acts of self destruction are widely known by

67

health and welfare personnel working in official and unofficial

capacities among reserve dwellers. Howard Stevens, a

Queensland flying doctor, reported that "self mutilation was not

uncommon" and also that attempted suicides were frequent on

Queensland reserves. Stevens knew of at least five suicides and

attempted suicides among black people on reserves and

communities he visited in recent years, yet there were no

instances of suicide amongst his white patients.

'Although figures on suicide by reserve Aborigines are difficult to

obtain, Stevens is convinced that this was a rare occurrence

among traditional people - a view supported by experts such as

psychiatrist Ivor Jones - and that far more occurred than are

officially recorded. Similarly, the high number of deaths caused

by motor vehicle accidents among reserve dwellers requires

further research. We documented 32 Aboriginal reserve dwellers

who died in motor vehicle accidents between 1976 and 1980;

many of these deaths were caused, according to one observer, by

"reckless ... attempts by the driver to kill himself'.

'John Taylor, an anthropologist at James Cook University,

confirms Stevens' observations. Taylor, in preparing a report on

dispute settling procedures, discussed "a veritable epidemic of

suicide and self mutilation in Aboriginal communities in North

Queensland". In attempting to explain this epidemic, Taylor

suggested that Aborigines diverted rage and anger inward on

themselves. He says, "if they (Aborigines) were to attack the real

objects of their anger, they would incur retribution from the

Australian legal system".' (pages 28 to 29)

More recently a considerable amount of literature has appeared on the great

growth in suicide amongst Aboriginal populations, not only in Australia but in

68

North America and other countries, in recent decades. This is particularly true of

young male adults living in non-traditional settings.10

There is research which indicates that in traditional Aboriginal society suicide

was unknown or rare. This may be true of many stable traditional societies.

However those into whose deaths I inquired did not live in a traditional

Aboriginal society, but in areas where traditional Aboriginal society had been

shattered for generations by dispossession by white people. The circumstances

in which they lived imposed all kinds of stresses which were unknown in

traditional society. They were no longer part of a clear and stable social order,

but thrust into a different position on the margins of a society in which suicide

was a not uncommon response to the stresses imposed. There is no reason to

think that any Aboriginal disposition against suicide was genetic; if it existed it

was cultural and the culture had been subjected to tremendous change.

REASONS FOR SELF-KILLING

It is of course one thing to reject the proposition that Aboriginals do not commit

suicide at all. It is another to accept the view that many of the Aboriginals whose

deaths were investigated did in fact take their own lives in custody. Whether this

explanation is plausible is something that can only be answered by examining the

facts of particular cases and this I have done in the individual death reports.

However there are some general points that may be made.

E Hunter 'Commissions and Omissions: the Wider Context of Aboriginal Suicides in Custody' T h e M e d ic a l J o u r n a l o f A u s tr a lia 1989 Vol 151 p.218 to 223 and S u ic id e , A lc o h o l, I n c a r c e ra tio n a n d I n d ig e n o u s P o p u la tio n s : a R e v ie w , A Paper for the Expert Working Group on Effects of Alcohol on Cognitivie and Psychomotor Functioning, 1988. N Thompson I n e q u a litie s in A b o r ig in a l H e a l t h Master of Public Health Thesis 1989. pages 188 to 192. J Reser

'Suicide in Native American Communities: Some Parallels and Prevention Strategies Worth Considering' in T h e A b o r i g i n a l H e a l t h W o r k e r

June/July 1988.

69

According to the statistics relating to the period investigated by the Commission,

Aboriginals in custody appear less likely to take their own lives than non-

Abo riginals in custody. Aboriginals were held in custody, both police custody

and prison, at a far greater rate than non-Abo riginals. However, looking at those

who were in custody, the overall death rate for Aboriginals closely parallelled

that for non-Aboriginals. Aboriginal deaths resulted from self-inflicted harm less

frequently than non-Aboriginal deaths. Whereas 49% of non-Aboriginal deaths

were self-inflicted, only 34% of Aboriginal deaths were self-inflicted. On the

other hand only 46% of non-Aboriginal deaths were from natural causes in

contrast of 33% of Aboriginal deaths.11 Thus while there is not support for the

proposition that Aboriginals do not commit suicide, there is support for the

proposition that they do so in custody less frequently than non-Aboriginal

prisoners.

Lobbying for a Royal Commission had been carried on for years by bodies such

as the Committee to Defend Black Rights, but it was the incidence of Aboriginal

deaths in custody in 1987, particularly deaths by hanging in police custody,

which attracted such public attention that the Commission was established. What

was not generally realised at the lime was that although there was an unusually

high number of Aboriginal deaths in custody in that year, this was part of a

general phenomenon that applied to all prisoners, Aboriginal and non-Aboriginal.

The Aboriginal deaths in custody rose from nine in 1986 to 21 in 1987, but in the

same years non-Aboriginal deaths in custody rose from 29 to 72. Moreover the

increase in Aboriginal deaths in custody was particularly in Queensland and

Western Australia. In New South Wales in 1987 there were 29 deaths in custody

but only three of these were Aboriginal. In Victoria there were 26 of which one

was Aboriginal, and in Tasmania there were two, none of which was Aboriginal.

Of the eight cases of Aboriginal self-inflicted death which I investigated it is quite

clear that Malcolm Smith was not intending to take his life but to put out his eye;

11 These figures are taken from Research Paper No 7 o f the Commission's Criminology Research Unit entitled A u str a lia n D e a th s in C u s to d y 1 9 8 0 -1 9 8 8 .

70

Tim Murray, who took a drug overdose, may have intended merely to attract

attention; Peter Campbell, who died of a self-inflicted cut to the throat, had

shown signs of mental disturbance resulting in violence before going to gaol.

The remaining five deaths were by self-hanging and in three of the cases the

person was recently placed in custody in a state of considerable intoxication. The

other two cases were Mark Quayle who was suffering withdrawal symptoms

and hallucinating, and Peter Williams who was under such stress from his life

history and his treatment by other Aboriginal prisoners that his act is not hard to

understand. Mark Revell, Shane Atkinson, and Lloyd Boney were all young

men recently arrested in a highly intoxicated condition. The particular

circumstances which may have affected their view of the world at the time varied

and are discussed in the individual reports; however the effect of alcohol was

common to them all. In the Mark Revell inquiry Dr Gregory Chesher, a

consultant pharmacologist, gave evidence that while an alcohol dependent person

is drinking and the blood concentration (BAG) is rising, the individual feels more

cheerful - a reason for the drinking. When the drinking ceases and the BAG

starts to fall, depression ensues and in some cases there may be a serious decline

in an already low self-esteem.

ABORIGINAL BELIEFS OR ATTITUDES

There was no evidence in the cases before me which established that any

particular features of Aboriginal psychology or belief contributed to the

occurrence of deaths in custody.

However in Western New South Wales a number of Aboriginals emphasised the

strength of belief in spirits with a resultant fear of the dark. There was reference

to 'clevermen' and to 'Feathcrfoot'. It is quite possible that fear of the dark and

of spirits present in the Wilcannia gaol may have had some effect on

Mark Quayle when he hanged himself. On the other hand sufficient explanation

for his actions could be found in the effect of alcohol withdrawal without

resorting to other explanations.

71

UNCONSCIOUS MOTIVATION

While it is tempting to look for factors which would operate on the conscious

mind of an individual and incline the individual towards an act of self­

destruction, one must recognise that they may not necessarily exist or be found.

There may well be factors operating that would not be understood by the

individuals themselves. An Aboriginal woman recounted to me an incident that

occurred to her when she was in police cells in a country town some 12 years

ago. She was then about 17 and in the habit of drinking heavily, and was

cutting out a warrant for non-payment of fines imposed for offensive behaviour

and drunkenness. In a confidential interview she narrated to me the following

experience:

Ί was in the cell for about 3 days and when I was just laying

down in the cell and reading a comic and all of a sudden I had this

urge to get up and tear up a blanket. I just automatically dropped

the comic - sat up, like I had the feeling that something just sort of

possessed me and I, I don't know how or why, I can't think of

any reason why I done that, and the next thing I knew I was there

tearing the blankets and the strips and tying a piece around my

neck and tying it up in the womens' cell section there - going into

the toilet - and trying to hang myself. I kept trying to go down so

that it would pull the neck up. The blanket kept breaking and I

must have attempted it about four or five times and this other girl

... she was there screaming and crying and carrying on and trying

to get the coppers' attention to come down and see what was

happening. And after a while, it must have been about 20 or

30 minutes after, they finally came down there and I was still

there trying to, she was trying to pull me away and everything you

know just like I was possessed. And there were the strangest

things. I don't normally do silly things like that. I consider it

72

very silly but I won't normally do it. I love life too much to

commit suicide.'

Thinking about it since she had not been able to think of any good reason for her

actions. She said that she had a loving family and everything that she wanted.

THE CONVICTION OF RELATIVES

A common feature in the cases where a person had died from self-inflicted harm

was disbelief on the part of relatives. Again and again a strong conviction was

expressed that they knew the person and that he would never have taken his own

life. These feelings are very understandable. They flow from love of and a

sense of loyalty to the person who has died, and may sometimes be influenced

by feelings of regret or guilt about the treatment of the deceased which often arise

when a friend or relative takes their own life.

Often the views are expressed by people who were not really in a position to

know the state of mind of the person who died. This was particularly well

illustrated in the case of the death of Peter Campbell. Family members were

convinced that he would not have taken his own life, but they had not seen him

for seven years before his death and had heard practically nothing from him.

They did not know that since they had seen him his way of life and his mental

state had changed considerably.

While one must respect and sympathise with the feelings of relatives, one must

also recognise that such intuitive judgments are not reliable. They represent not

informed opinions but emotional reactions expressing the unwillingness of

relatives to accept the painful fact of what has happened. In investigating a death

one has to base conclusions on the evidence about the death and the surrounding

circumstances, and what was known of the person at the time, and hope that

relatives can ultimately find it in their hearts to accept the findings of an

exhaustive inquiry.

73

The widespread existence of this phenomenon of reluctance to accept that friends

or relatives have taken their own lives is a critical factor to remember in dealing

with notification of relatives and with investigations. There is need for the

greatest openness and frankness and sympathy. Anything that smacks of secrecy

or reluctance to discuss what happened is likely to be interpreted as evidence of

cover-up or guilt.

HANGING

Undoubtedly one of the reasons for the concern which gave rise to the

appointment of the Royal Commission was the scries of hangings in custody.

There was considerable scepticism as to whether it was possible for so many

persons to hang themselves in custody. However, as I pointed out in my R e p o r t

o f th e In q u iry in to th e D e a th o f M a rk W a y n e R e v e ll, hanging is a classic form

of suicide, in Australia and overseas, particularly among prisoners, Aboriginal

and non-Aboriginal, who have little access to other means of taking their own

lives.

To the person who has had no experience of hanging, the word conjures up a

scene of a body swinging freely by a rope, suspended from some point above the

m's head. This idea of hanging has been expressed in a number of artistic

.aments on deaths in custody - paintings, writing, sculpture and theatre. It

seems a difficult and unlikely method of taking one's own life, and strange that

the means should be so readily available in custody. In fact the typical death by

hanging in custody is not like this at all. Moreover, in the general community

hanging is very commonly found to be suicidal, occasionally accidental, and

rarely homicidal; by contrast, death by strangulation is usually homicidal and

rarely suicidal.

'In hanging, the suicidal nature is nearly always apparent from the

circumstances, such as the point of suspension, the use of a

74

ready-to-hand ligature, the choice of location - usually one which

is private, well known, and where the victim will not be found in

time to interrupt his plans - and sometimes "a suicide note".'

(Watson F o ren sic M e d ic in e (1st edn 1989 page 187)).

Professor Plueckhahn in his book E th ic s , L e g a l M e d ic in e a n d F o r e n s ic

P a th o lo g y writes of hanging:

'This is a relatively common means of suicide, particularly in

males. Incomplete suspension of the deceased above the floor or

ground does not rule out this possibility, and it is not uncommon

for such deaths to occur as a result of fixed suspension from low

elevations such a door knobs, bed heads and clothes hooks.'

A witness told of a terminal cancer patient who hanged himself with the buzzer

cord in a hospital bed whilst he was still lying in the bed. To quote again

Watson's F o re n sic M edicine'.

'It does not require the full weight of the body to successfully

accomplish hanging: the weight of the upper part is quite

sufficient. Hanging can be effected from a low point of

suspension. A victim may sit on the floor and use the door handle

to fix the ligature and then let the body fall away from the sitting

position.'

It was common in the cases I investigated to find that the deceased's feet were

touching the ground, his knees were bent, but the weight of his upper body

rested on a noose made from a strip tom from a cell blanket or sheet, or made by

using an article of clothing such as a sock or jumper. Evidence given in a

number of inquiries has explained that the mechanism of death in such

circumstances is one or more of three factors: the occlusion of the airway, the

occlusion of blood vessels such as jugular veins or carotid arteries, and

75

stimulation of the vagus nerve. Only a few pounds of pressure on the neck is

needed to occlude the jugular vein which drains blood from the brain, skull and

face to the heart. A greater degree of pressure occludes the carotid arteries

delivering blood to the brain from the heart, and still further pressure is required

to occlude the windpipe. At any stage the vagus nerve may be stimulated and

this will slow and sometimes stop the beating of the heart. Although death may

take three to five minutes (less if the vagus nerve is stimulated), unconsciousness

may occur in 15 to 30 seconds.

OTHER CASES OF SELF-HARM

The three cases of death by self-inflicted injury other than hanging involved the

use of items which were readily at hand to the respective prisoners, all of whom

were in gaols, not in police custody. In the case of Malcolm Smith it was the

handle of an artist's paintbrush. Malcolm was displaying talent as a painter and

his inclusion in a painting class was a humane and therapeutic measure which

should be applauded rather than criticised. His use of the paintbrush was

unforeseeable. Peter Campbell used a double-edged razor blade which was

prison issue. He had not given any indication to prison authorities that he was

likely to harm himself. Tim Murray used an accumulated hoard of tablets, his

accumulation of which might have been better policed had there been more

adequate communication between the Prison Medical Service and the custodial

officers.

UNNECESSARY CUSTODY

In a number of cases the custody was in a real sense unnecessary, because it was

unlawful or improper, because there were alternatives which could have or

should have been used, or because it was pursuant to antiquated laws now

recognised as undesirable. Mark Quayle's custody was totally unlawful and

unreasonable. David Gundy's custody was unlawful and would not have

76

occurred if police had showed more patience and judgment in their pursuit of

John Porter. Paul Kearney should have been in a civilian proclaimed place, not

a police cell. Harrison Day, James Moore and Arthur Moffalt in Victoria and

Glenn Clark in Tasmania were all in custody under antiquated laws about public

drunkenness.

Had a proclaimed place other than a police cell been available in Grafton to which

Mark Revell could have gone, it would have been feasible to give him bail on his

charge of driving with a prescribed content of alcohol. A number of prisoners

were in custody only because of non-payment of fines. These included

Clarence Nean in New South Wales and Harrison Day and James Moore in

Victoria. Glenn Clark could have been released but for a warrant for non­

payment of fines. Thomas Carr was unreasonably charged with multiple

offences and should have been on bail instead of having been sent to Sydney in

custody. Shane Atkinson would not have been in custody if the laws relating to

bail had been more reasonably and sensibly administered. If their conditions had

been properly identified, Bruce Leslie, Arthur Moffatt and Paul Kearney would

have been in hospital, not a police cell.

Although I had to rule that the death of Francis Thomas Cooper was not within

my jurisdiction because, although in custody, he died in a hospital, my

investigation of the case showed a shocking and inhumane application of the law

relating to bail. Held on a minor charge founded on meagre evidence, he was left

to die over a period of two months in gaol, far from his family, when he was

virtually helpless and a threat to nobody.

HEALTH AND ALCOHOL PROBLEMS

In 15 out of the 18 cases which I investigated 'lifestyle' diseases or alcohol or

drugs played some role, at least at the point of coming into custody, if not in the

immediate circumstances of the death. Thomas Carr died of heart disease at the

age of 17 and Maxwell Saunders at the age of 27. Deaths from this cause at

77

such early ages would be rare in the non-Aboriginal community. James Moore

died from a pontine haemorrhage which was contributed to by hypertension

(high blood-pressure). Arthur Moffatt died from a hypoglycaemic reaction

arising from his diabetes. Harrison Day died as the result of an epileptic fit.

Tim Murray and Paul Kearney met their deaths following overdoses of

prescription drugs, Paul Kearney also being affected by alcohol. Mark Quayle

and Clarence Nean were in different ways the victims of alcohol withdrawal

symptoms. Bruce Leslie came into custody as the result of alcohol and may

have suffered his fatal injury as a result of an alcohol induced fall.

Shane Atkinson, Mark Revell, Lloyd Boncy and Glenn Clark all hanged

themselves while intoxicated and were all in custody for alcohol related offences,

as were James Moore, Harrison Day and Anhur Moffatt. Peter Campbell was

in gaol as the result of unpremeditated acts of violence under the influence of

alcohol, which were quite out of character with his sober behaviour.

THE AVOIPABILITY OF DEATH

The review which I have made in this chapter of the deaths which I investigated

has shown that all but one of the deaths was potentially avoidable either because

with more enlightened laws or better working of the justice system the person

would not have been in custody at all, or because greater care or observance of

instructions about the custody of prisoners might have avoided the occurrence of

the death.

The one case which I have not listed is that of Peter Campbell. In that case too,

however, a better working of the system of criminal justice might have avoided

his death. He was under sentence for crimes of quite inexplicable violence and

he had other bizarre crimes on his record. Had he been the subject of a proper

psychiatric examination at the time of his sentencing or on his reception to

prison, it may have been possible to provide treatment for his disturbed condition

which would have obviated his subsequent taking of his own life.

78

ACTION AGAINST INDIVIDUALS AT FAULT

If the Commission finds that there was fault on the part of custodial officers,

what should it do about it? From an early stage of the Commission many people,

particularly Aboriginals, asked what would be done about officers who were

found to have some responsibility for a death. Commissioner Muirhead, and

other representatives of the Commission, explained on many occasions that the

Commission had no power to punish anyone; that was a matter for courts and

disciplinary authorities. Nor did the Commission itself have power to prosecute

anyone. Its only power was to report to Governments, but in its reports it could

make recommendations. I have no doubt, from a perusal of the records, that on

many occasions Aboriginals and others were led to believe that if the

Commission found that officers had acted in breach of the law or their duty,

proceedings would be recommended by the Commission.

The first report in which the issue confronted me was that in relation to the death

of Paul Kearney. When I examined the matter, I found that the question of what

recommendations should be made by the Commission was no simple one. I

wrote in my report:

'It would not be right for this Commission to make a finding that

any person was guilty of a criminal or disciplinary offence. The

law lays down certain procedures which must be followed before

such findings can be made, and establishes particular courts or

tribunals which have power to make such findings and impose

penalties in respect of them. This Commission's function is to

ascertain the facts in relation to Aboriginal deaths in custody and

report those facts to Government. It is for Government, or the

appropriate agency of Government, to take whatever action is

called for in the light of those facts, whether that action be by way

of legislation, policy changes, funding of services or institutions,

79

recognition of rights, or prosecution or disciplinary action. The

Commission has no power to do any of these things itself.

While the Commission may make recommendations, there are

good reasons why it should be cautious about making

recommendations for proceedings against named individuals,

except in very clear and serious cases. Whatever the Commission

may recommend, the prosecuting authorities or, in the case of

disciplinary proceedings, the Commissioner of Police, will have

to make up their own minds whether proceedings should be taken.

It docs not follow that, because a Royal Commission has made a

finding adverse to a particular person, a criminal or disciplinary

charge will necessarily succeed or be warranted against that

person. In the first place, because of the quite different

procedures, it may not be possible to prove in a criminal

prosecution matters about which findings may properly be made

in a Royal Commission. A criminal prosecution is an adversarial

proceeding in which the Crown carries the onus of proving

beyond reasonable doubt, in accordance with strict and sometimes

technical rules of evidence, that the accused, who cannot be

compelled to make a statement or give evidence, is guilty of a

crime as precisely defined by law. Not only is an accused person

not bound to give evidence when on trial, but evidence which he

or she has given in the Royal Commission is in most cases not

admissible in the trial. While disciplinary proceedings are not as

constrained as criminal proceedings, they are very different to a

Royal Commission.

In a Royal Commission, set up not to try people but to find out

what happened in some area where information is otherwise

lacking, there are no parties, no onus of proof, no special rules of

evidence, and no requirement of proof beyond reasonable doubt;

80

persons whose conduct is in question can be required to give

evidence; and the Commission may criticise or condemn

reprehensible conduct even if it is not technically criminal. The

limitations on a Royal Commission are, broadly speaking, only

that the Commission should stay within its terms of reference,

base its findings on evidence of some probative value, require a

degree of proof commensurate with the seriousness of a finding,

act in good faith and not make findings in contravention of the

requirements of natural justice.

Apart from possible difficulties of proof, there may be

discretionary reasons for prosecuting or disciplinary authorities

not taking proceedings - for example that the offence was a minor

one committed many years ago by a person of subsequent good

record, or was committed in accordance with what was a general

practice now realised to be wrong. If proceedings recommended

against an individual are not taken, or are not successful, the

outcome will be confusing to the public. On the one hand the

individual may be unfairly assumed to be a guilty person who 'got

off. On the other hand it may erroneously be thought that the

Commission's findings arc unjustified.

Some of the considerations I have mentioned are noted in

Hallett R o y a l C o m m issio n s a n d B o a r d s o f In q u iry pp48, 328­

331. Some are relied on by the High Court in support of its

construction of the In d e p e n d e n t C o m m issio n A g a in s t C o rru p tio n

A c t 1988 in B a lo g v In d ep en d en t C o m m issio n A g a in s t C o rru p tio n

(28 June 1990).'

The issue caused me some anguish. On the one hand Aboriginals had been led to

believe that recommendations for action would be made, and might feel betrayed

if this did not happen. In addition Governments, police and prison officers had

81

been led to expect such recommendations, and might conclude from their absence

that the Commission considered that no action was necessary. In the end I

resolved the dilemma in the way which I stated in the Kearney report.

'So far none of my reports have involved findings of deliberate or

malicious harm, and I put such cases aside for future

consideration if they arise. In other cases, including the present

inquiry, I think the best course is to draw the attention of the

Government, by a recommendation in general terms, to the fact

that the report contains material warranting consideration by

prosecuting or disciplinary authorities.'

I went on to say:

'There has been some com ment about the lack of

recommendations for proceedings against individual custodial

officers, despite criticism in reports of the Commission of the way

in which prisoners or detainees were treated. What I have said

offers some explanation of this. In addition I make two general

points. Firstly, in looking at events that occurred some years ago,

it is easy to be wise in hindsight, and to judge people by the more

sensitive standards of today, developed after years of debate over

deaths in custody, so that conduct which would have passed with

little comment at the time is now seen to be reprehensible. One

would need special justification for appearing to make individuals

scapegoats when their conduct was in accord with common

practice at the time. Secondly, 1 would emphasise that I do not

see the number of recommendations for actions against individuals

as a measure of the 'success' of the Commission. The success of

the Commission is to be measured by the extent to which it can

ascertain and reveal the facts, and increase public understanding of

them and of what lays behind them. If the facts support action

82

against individuals, so be it. But this should not be allowed to

divert attention from the collective responsibility for the public

policies and widespread racism over many years that have

produced the present situation.'

In the event I made recommendations that my report be referred to appropriate

authorities to consider whether criminal or disciplinary action should be taken

against any person in relation to seven deaths - those of Paul Kearney, Shane

Atkinson, Bruce Leslie, Mark Quayle, Lloyd Boney and David Gundy in New

South Wales and that of Arthur Moffatt in Victoria. None of the cases involved a

finding of deliberate killing or physical harm. The relevant findings related to

various breaches of duty relating to the care of persons in custody, to untrue

evidence, and, in relation to the death of David Gundy, to various unlawful

actions.

Before adopting the practice of making such recommendations, I consulted my

fellow Commissioners because of the desirability of a uniform practice being

adopted by all Commissioners. While the other Commissioners inquiring into

individual deaths agreed with me that no recommendations should be made

against named officers, they thought that no recommendations in general terms

should be made, on the basis that if the facts were stated in the reports, it was for

Governments to take appropriate action without prompting from this

Commission. For the reasons explained earlier, arising out of the expectations

created by statements on behalf of the Commission, I was unable to accept that

view. Accordingly I was the only Commissioner to adopt the practice of

recommending consideration of criminal or disciplinary proceedings, and such

recommendations were made only in New South Wales and Victoria. I

emphasise that it would be erroneous for this reason to draw any adverse

inference about New South Wales or Victorian police by comparison with other

States on the basis of the lack of recommendations in other States.

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CHAPTER 6 - PREVENTION OF DEATHS

In this chapter I deal with some general issues involved in preventing deaths in

custody, and with the particular problems of police custody. The special issues

arising in prisons are dealt with in the next chapter.

GENERALLY

Duty of care

Prisoners in the hands of police or gaol authorities are in the custody of the State,

which exercises its responsibilities for them through the Police Service, the

Department of Corrective Services and the Prison Medical Service. These

responsibilities include the taking of all reasonable steps to avoid acts or

omissions which could reasonably be foreseen to be likely to harm the person in

custody. That the legal duty towards prisoners extends to taking reasonable

steps to prevent a prisoner known to be suicidal from taking his own life was

clearly established in a recent case in the Court of Appeal in England, K irkh am v.

C h ie f C o n s ta b le o f M a n c h e ste r (1990) 2 WLR 987. In discussing the duty of

care to a prisoner, Farquharson LJ said at p.996:

'The defendant argues that the judge was wrong in holding that

such a duty existed, more particularly that the duty was to prevent

Mr Kirkham taking his own life. Counsel submits that there can

be no duty to safeguard a man from his own act of

self-destruction, on the principle that there is no duty of care to

protect another from the risk of injury created by himself. The

position must, in my judgment, be different when one person is in

the lawful custody of another, whether that be voluntarily, as is

usually the case in a hospital, or involuntarily, as when a person is

84

detained by the police or by prison authorities. In such

circumstances, there is a duty upon the person having custody of

another to take all reasonable steps to avoid acts or omissions

which he could reasonably foresee would be likely to harm the

person for whom he is responsible ... Where, as in the present

case, the risk is specifically identified then reasonable steps must

be taken to avoid that risk.'

In R v T ak T ak (1988) 14 NSWLR 227 the New South Wales Court of Criminal

Appeal reviewed the law of manslaughter by neglect, and it should be brought

home to custodial officers and their superiors that they have duties breach of

which may incur not only disciplinary proceedings but serious criminal charges.

It is to be noted also that there arc S ta n d a rd R u les f o r th e T rea tm en t o f P riso n e rs,

promulgated by the United Nations in 1984. In several cases before me NAILSS

argued that various aspects of custodial conditions fell short of these standards.

Such submissions were made in relation to police custody at Tam worth in the

Bruce Leslie hearing, and in relation to prison custody at Grafton in the Peter

Williams hearing. In the latter case I observed that there was no available

psychiatrist at Grafton Gaol, something which represented a failure to comply

with Rule 22.1 of the S ta n d a rd R u les, which provides that:

'At every institution there shall be available the services of at least

one qualified medical officer who should have some knowledge of

psychiatry.'

In other cases the suggested deficiencies did not bear on the cause of death and I

did not comment on them.

85

Human relations or technology

Design of some police stations seems to have had little regard to the need for

communication between prisoners and police. It needs to be easy for custodial

staff to keep in touch with prisoners and easy for prisoners to communicate with

custodial staff. In my visit to North America earlier last year I found a

widespread conviction that a most important factor in the custodial situation was

human interaction between the guards and prisoners, not only for immediate

medical and safety reasons, but to ease the stress on prisoners and maintain good

relations between guards and prisoners. As one senior officer said to me, 'Put

your money into human relations not into technology. If your human relations

are good you won't need the technology'.

Where the existing architecture militates against interaction between guards and

prisoners it is necessary to have other means of communication in place until this

situation can be rectified. It may even be necessary in some situations to use

television monitoring, although much overseas opinion seems to regard this as of

highly dubious utility, as well as often being an unreasonable interference with

the privacy of prisoners.

Shane Atkinson's death highlighted the importance of defusing explosive

situations by providing humane and benevolent social intercourse. No matter

how abusive or provocative they may be, prisoners in custody exhibiting signs

of distress or agitation should receive attention to their complaints, and efforts

should be made by custodial staff to calm them rather than leaving them to 'cool

their heels'.

It needs to be brought home to police that to persons in custody a police station is

often a strange, unfriendly and even frightening and threatening environment,

creating stresses of which police may be unaware, but which appropriate and

sympathetic conduct on their part can help to relieve.

86

Prevention of suicide

A remarkably resilient idea is that 'a suicide is a suicide'; once it appears that the

person has taken his or her own life, there is nothing further to investigate except

to get evidence that the person was unhinged or depressed. Coupled with this

notion is the proposition, which I have seen enunciated even by coroners, that if

persons are really determined to commit suicide, there is nothing you can do to

stop them. The corollary is seen to be that it is not very important to ask what

was done to stop the person committing suicide, because it would have made no

difference anyway. The fact is that very few cases where people take their own

lives in custody are the acts of determined suicides, who are set on finding a way

to end their life, no matter what. All the self inflicted deaths that I have come

across in the Commission have been impulsive actions, often under the influence

of very temporary conditions, such as the anger or frustration at the effect of

arrest on other activities, the depression that comes with declining blood alcohol

levels, or the disturbance associated with withdrawal symptoms. Such deaths

can be prevented by adequate care and supervision. Some deaths can be

prevented simply by a little sympathetic human interaction. A short or kind

sympathetic chat by a custodial officer may not alter the prisoner's view of life,

but it may weaken resolve or delay action until an opportunity or impulse for

suicide has passed.

Importance of kinship

Many non-Aboriginal people, including police and prison officers, fail to

appreciate the importance of family tics amongst Aboriginals. In general those

ties are stronger and more pervasive amongst Aboriginal people than they are

amongst the increasingly urbanised, industrialised and atomised non-Aboriginal

community. Only on rare occasions during Malcolm Smith's lifetime in

institutions did it occur to those in authority that Malcolm's family might be

interested in him, or that contact with them might be important to his well being.

Such considerations rarely, if ever, affected his location. The special problems

87

of communication amongst illiterate people were probably not adverted to.

Prison staff were surprised by the sentimental importance to Malcolm's family of

his apparently worthless personal effects. The deprivation of family contact in

Malcolm's adolescent years may have been a m ajor factor in his

institutionalisation. Although Tim Murray sought to reject his Aboriginality, it

was the Aboriginal side of his family which continued to support him. The

facilitation of continuing contact with kin network is an important part of care of

Aboriginal prisoners.

Learning from experience

One of the most effective ways of avoiding further deaths in custody is to leam

the lessons from those that do happen, and ensure so far as possible that the

same thing does not happen again. Neither police nor prison authorities have

been very alert to the potential for learning from deaths that have occurred. The

common attitude is that it can all be left to the coroner, and if he does not make

any recommendations, nothing more needs to be done. However where the

coroner has to rely on the police to bring the relevant factors to his or her notice,

this can be unproductive. Every death should be carefully scrutinised by the

relevant department, without waiting on the coroner's finding, to see what can be

done to prevent a similar death in the future.

In my R e p o r t o f the In qu iry in to the D ea th o f G len n C la rk I commented on what

was apparently utter indifference on the part of the Tasmania Police to the

occurrence of deaths in custody, to the point where the Force displayed no

interest whatever in learning lessons from deaths so that steps might be taken to

avoid further deaths in the future. In the very police station in which

Glenn Clark died, hanged by his jumper, another prisoner had died the same

way four years earlier. Yet the police officers who were responsible for Glenn

were utterly unaware of the risk of such an occurrence. Apparently nothing had

been done following the 1982 death to ensure that police were aware of the risk

of a suicidal person using clothes and low suspension points for hanging. Even

88

more extraordinary is the fact that nothing whatever was learnt from the

occurrence of Glenn Clark's death. No steps were taken to ensure that the

ignorance displayed by police concerning the risk of hanging, the ease with

which it can be carried out, and the articles that can be used, was overcome for

the future. Nor did it occur to anyone to advise police to take a more human

interest in angry or depressed prisoners.

IN POLICF. CUSTODY

Police cells

New South Wales

There are many unsafe cells in police stations around the country. Indeed some

are so primitive as to be positively inhumane. Peter Williams' father,

commenting on the present state of affairs in Lismore, said:

'Better facilities should be available to those persons placed in the

Lismore police cells. At the moment the cells are out on their own

at the back of the police station and it makes it difficult for any

visits. Also the inmates get wet when it rains. These conditions

are certainly very poor.’

Local police shared this view. The officer in charge of police at Tamworth was

also highly critical of the cells at his station.

During the currency of the Royal Commission all police cells in New South

Wales were inspected by Physical Evidence Police for the Police Task Force, and

the information gathered was entered into a data base at the Police Properties

Branch. In January 1989 Circular 89/11 gave a direction to patrol commanders

concerning inappropriate structures. The result may be illustrated from what

happened at Brewarrina cell complex, which had been scathingly criticised by a

89

reviewing inspector in the Police Task Force Report. The cell complex was

located some 15 metres to the rear of the station and was considered a security

risk, and a 'high fire risk', and the cell fittings were not conducive to providing a

safe environment for prisoners and police. However due to the location and type

of construction of the existing cells it was not considered appropriate that any

alterations should be made, as any reconstruction would cause further security

problems. The recommendations made by the inspector included provision

forthwith of an observation cell separate from the existing cell complex and close

to the work area of the station.

At the time of the Commission's visit work done included the replacement of the

wide gauge mesh on the doors of cells and on the windows and roof of the cell

complex, and some other structural changes. However there were still a number

of objects in the cell complex which could be used as means for self-inflicted

injury, including hanging. These included iron bars around the viewing grille on

the door leading from the cell complex to the walkway outside. The old alarm

system, despite the fact it was inoperative, was still attached to walls in the cell

complex. All in all the cells were still very unsafe.

Victoria

most of Australia, Victoria has many police stations with antiquated cell

accommodation. In response to the problems of deaths in custody, the police

have started an accelerated building program of 53 new stations to be built over

twenty years. However, police consider that the custody of prisoners in cells

should be taken over by the Department of Corrective Services and new cell

complexes are being designed to facilitate this. At the time of writing, a

package was being developed for Police regarding the care of prisoners which

would include wall charts and a medical checklist. A District Training Officer

would be responsible for educating officers in the matter. It is heartening to learn

that a key objective of a study of cell block design has been 'to provide a more

humane and comfortable cell environment, an environment which does not

90

adversely affect a detainee's state of mind, but one which may help reduce a

prisoner's stress level and potential for violent behaviour'.

There has now been introduced in Swan Hill and in some other Victorian police

stations a system of 24-hour monitoring by television camera. At Swan Hill

prisoners are thereby kept under the view of police officers 24 hours a day,

except when they are using the shower. Apparently lights are left on all night,

which must be a hardship for some prisoners. Supervision potentially includes

the use of the toilet, and is irrespective of the sex of the prisoner. There are

obviously questions of privacy to be considered and a balance to be struck

between different interests. It seems to me that the method is offensively

intrusive and demeaning, and of doubtful efficacy.

During a visit to North America early last year I found considerable scepticism

expressed about the value and desirability of television monitoring. There is a

widespread view that successful care and security of persons in custody require

more human interaction rather than more technology. One can understand that in

situations where architecture prevents such interaction, it may sometimes be

desirable to resort to such measures as television monitoring until the situation

can be rectified.

A situation which has created great difficulty for Police in Victoria, as in some

other States, has been the use of police cells to make up for deficiencies in gaol

accommodation. The Commission was advised that in May 1990, there were 314

remand and short-term sentenced prisoners being held in police stations.

Particular watchhouses arc gazetted for certain periods, for example, to hold

prisoners for 30 days, 14 days, or 7 days. In order to secure formal compliance

with this limitation, police have had to engage in the absurd practice of moving

prisoners from watchhouse to watchhouse at the end of their gazetted period, and

even exchanging prisoners between watchhouses.

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Supervision in small stations

The problem of supervision in small police stations may also be illustrated from

Brewarrina in New South Wales. At the time of the Police Task Force review,

the station was left unmanned overnight and when police were called out or were

on patrol any prisoners were left locked in their cells unattended and

unsupervised. Following the review Circular 89/11 provided that no person

should be kept in a police cell overnight unless there was at least one police

officer on duty 'unless it is clearly unavoidable'. Where police concluding duty

on the last shift of the day are working in a police station that does not operate on

a 24 hour basis, prisoners are to be transferred to a 24 hour station or police are

to find lawful means of releasing prisoners from custody. 'If it is not possible to

relocate or release the person, an officer will cither remain on duty or be recalled

to duty. This policy should only be departed from under extreme circumstances

and for clearly demonstrable reasons.' In the case of Brewarrina, prisoners were

transferred to Bourke if required to be held overnight.

This Instruction now forms part of the redrafted Instruction 32 concerning 'Care,

Control and Safety of Persons in Police Custody' (32.36). That Instruction also

provides that where police are required to attend to inquiries away from the

station they are to ensure, where a person is detained in police cells and nobody

else is on duty, that they return to the station for frequent checks of the prisoner,

and if the police are to be away from the station for long periods they will ensure

that alternate arrangements are made for the prisoner to be checked at frequent

intervals.

Selection of police for Aboriginal areas

In the In terim R e p o r t Commissioner Muirhead recommended:

'Appropriate sceening procedures should be implemented to

ensure that potential officers who will have contact with

92

Aboriginal people in their duties are not recruited or retained by

police and prison departments whilst holding racist views which

cannot be eliminated by training or re-training programs'.

In the Lloyd Boney inquest the coroner recommended:

That the Police Commissioner in appointing police to any town

with substantial Aboriginal population, ensure, as far as possible,

that such police have the personality and attitude to deal with a

large Aboriginal population. Consideration should be given to the

provision of substantial allowances so as to ensure long term

appointments to police stations which are classified as

"disadvantaged", rather than the present situation of police

attending for short terms, in order to obtain a favourable posting

to the coastal area of New South Wales'.

Superintendent Ure of the New South Wales Police Service advised the

Commission in September 1989 that both issues were being considered by a

Transfer Co-ordination Committee. However an allowance scheme was not in

operation at that time. In relation to the appointment of police, Superintendent

Ure advised the Commission of a number of specific strategies which had been

proposed, but not necessarily implemented, to address the issue including:

i) Consideration of individual suitability, having regard to the views of

officers who might either support or oppose transfer.

ii) Officers sent to remote areas must have a minimum tenure of three years

except in exceptional circumstances.

iii) Development of a community profile for towns, and provision of a

contact police officer to give information about schooling, medical

facilities, recreational facilities etc.

iv) Development of local workshops so that police have a knowledge and

understanding of the requirements of particular towns.

93

v) Establishment of an authorised balance of experienced and inexperienced

police.

vi) Arranging that replacements will work in particular towns before

predecessors have left the station.

In a paper presented to the Royal Commission in its conference on juvenile

issues in 1990, Superintendent Ure said that under the current system 'an officer

must compete for a position, such as a Patrol Commander, in a specific location

and if successful would be appointed to the rank that goes with the position.

Although not perfect this system should identify the person best qualified to fill

the position and accept that accountability'.

The problem remains a continuing one.

Notification of Aboriginal Legal Service

In Victoria there is a longstanding practice that whenever an Aboriginal is taken

in to custody, police must inform the Missing Persons Bureau, which in turn

notifies the Victorian Aboriginal Legal Service. A practice of notifying the

Tasmanian Aboriginal Legal Service has now been adopted in Tasmania.

In New South Wales there is no general practice, and it is highly desirable that

one should be introduced.

Checking of prisoners

At the time of Shane Atkinson's death in Griffith police station, it is clear that the

supervision of prisoners was regarded as merely incidental and subsequent in

priority to other police duties. In Lloyd Boncy's case police maintained that the

task of returning a relieving constable from Brcwarrina to Bourke, and the

practice of using two officers for that purpose, took priority over the checking

and supervision of prisoners.

94

These instances were symptomatic of an altitude to checking prisoners which

surfaced in case after case investigated by the Commission. The requirement in

the New South Wales Police Instruction 32.6 that 'when practicable' the officer

performing station duties or the lock-up keeper 'will visit prisoners every hour

and if necessary more frequently' was construed in practice by many officers to

mean that prisoners would be inspected hourly if this did not conflict with other

police duties. Similar attitudes were apparent in Victoria.

Recording times of visits to cells

In New South Wales there is no requirement that police record, in the cell book

or elsewhere, the times when they make the checks on prisoners, which they are

required to make. While one is reluctant to suggest the imposition of additional

clerical work on police, the noting of such checks would be a very brief matter of

a few words and a time, and would constitute both an incentive to carry out the

checks and a safeguard that they had in fact been carried out.

In Victoria, cell books or watchhouse registers provide for the recording of time

of visits. In Tasmania provision is made for recording comments as well as

times.

Apparently intoxicated prisoners

Officers who have the care of prisoners, and may have to decide at least whether

to summon medical assistance, need some training for that purpose. Without in

any way seeking to define or limit the content of such training, it is obvious that

it should have regard to the high incidence amongst Aboriginals of conditions

which may give rise to states mistakenly attributed to intoxication if the detainee

smells of alcohol, eg diabetes, epilepsy, heart disease.

Doctor Stephen Jurd of the Drug and Alcohol Consultation/Liaison Service at

Royal North Shore Hospital commented to the Commission on the care of

95

intoxicated persons. He emphasised that knowledge was not well disseminated

within the community that alcohol is a drug, a potent hypnosedative that is able,

in overdose, to kill by cardio-respiratory depression. Because of the widespread

consumption of alcohol to intoxicating levels the community has become

insensitive to drunkenness and to the 'sleep' (ie unconsciousness) that it

induces. A sleeping drunk should be regarded as an unconscious person,

overdosed with a sedative drug (alcohol), until proven otherwise. While police

are required to take responsibility for drunk people, it requires education to

understand the potency of alcohol, and its side effects. This education needs to

be effective enough to allow them to develop altitudes towards alcohol different

from the rest of the community:

'... only then will unconscious, intoxicated people have a chance

of being treated as though their lives were threatened, rather than

being "under the weather", "drunk as a lord", "paralytic" or some

other vernacular that diminishes the potential for harm in this

situation. Then, close attention might be paid to:

(a) Deteriorating level of consciousness;

(b) Maintaining an open airway;

(c) Positioning of the intoxicated person.'

In my R e p o r t o f th e In q u iry in to the D e a th o f P a u l K e a rn e y I drew attention to

the evidence of Professor Sullivan concerning the dangers of sleep apnea and the

significance of snoring as an indication of the danger of apnea. I also noted that

in his decision of 12 July 1986 in the case of Dcon Scott Mr Waller, then City

Coroner, recommended that 'it be included in a police circular or instruction that

snoring in any person suspected of being intoxicated due to alcohol or another

dmg is to be interpreted as a sign of respiratory distress so that the person is then

roused and his condition observed'. This matter requires attention in the training

of officers.

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Calling of medical assistance

An example of an attitude embedded in police culture in a number of States is the

preference for calling ambulancemen rather than calling doctors or sending

prisoners to hospitals, where doctors will examine them. There may be some

truth in the police view that doctors' culture includes a reluctance to examine

intoxicated persons, although I have seen no evidence of this. But it seems clear

that police prefer to expose their actions (if at all) to the gaze of ambulancemen

rather than doctors, with whom they are less likely to be 'mates', and with whom

they have less in common, and who arc likely to be less 'understanding' and less

open to influence.

In Bmce Leslie's case in New South Wales and in Arthur Moffatt's case in

Victoria ambulancemen wrongly advised police that the patients were only drunk.

Both ended up dying, one from a fractured skull and one from hypoglycaemia,

although in the former case the possibility remains that the fractured skull was

suffered later. If a person is not rousable or is disoriented, he or she should be

taken as quickly as possible to a hospital or seen by a doctor. In both New

South Wales and Victoria a Police Medical Service is on call.

It was rare to find a police officer who had any knowledge of the high incidence

amongst Aboriginals of various diseases, including diseases such as diabetes,

epilepsy and heart disease, which can produce conditions which may be mistaken

for intoxication, or be masked by intoxication. Dr Cutter of VAHS said in the

Moffatt hearing that no person with a history of epilepsy, diabetes or

hypoglycaemic episodes, heart disease or significant alcohol poisoning or

withdrawal should ever be placed in a cell alone, or with people unable or

unwilling to help. These conditions arc widespread amongst Aboriginals.

97

Police treatment of prisoners

The Commission encountered several examples of the petty tyranny that can be

exercised locally by small-minded police officers over prisoners, and which can

only add to the resentment and frustration of prisoners which in some cases gets

expressed in self-harm. At Bourke in New South Wales in 1987 an inspector

had decreed that all prisoners must hencefonh choose between smoking and

mattresses because a mattress had been set on fire, and that they could not have

reading matter because prisoners had clogged toilets with it. He refused to make

any change in these practices when approached by WALS.

In Victoria it emerged during the inquiry into the death of Arthur Moffatt that no

prisoners were given mattresses at Moc Police Station because some prisoners

had in the past destroyed them.

Such practices are fortunately not general. In Brewarrina, for example, the

officer in charge encouraged visits and the bringing of reading matter to persons

in custody.

Identification and recording of 'at risk' prisoners

The most striking example of a failure to record and act on previous knowledge

of a prisoner's state of risk is that of Shane Atkinson. Only one month before, in

the very same police station, Shane had threatened to take his life in the very way

he did.

Recording of suicide or self-harm threats or tendencies must not rest on an

officer's judgment as to whether the prisoner was 'serious', or be affected by a

prisoner's subsequent denial that he or she was 'serious'. Neither of these

things can be regarded as reliable, and the fact that a prisoner has at any stage

harboured suicidal or self-harm thoughts, or attempted to inflict self-harm,

should be enough to justify particular attention.

98

The difficulties that can arise at the local level when there is a lack of trust

between police and Aboriginals was illustrated by an attempt to introduce

recording of 'at risk' prisoners at Brewarrina Police Station some time after

Lloyd Boney’s death. Inside the front of the charge book was kept a list of

people who were regarded as being 'at risk’. At the time the Commission was in

Brewarrina, eight names were on the list. The identification of people as 'at risk'

was based on what a person may have said in custody, local knowledge, and the

extent of their intoxication. Such people were continuously monitored and if in

need of medical attention were taken to the hospital. Due to the poor relations

between police and Aboriginals this well-intentioned measure met with

opposition. Aboriginals expressed fear that the presence of their names on the

list put them at greater risk because police could readily explain away their deaths

in cells on the basis that they were known to be suicidal. In fact the reverse was

the case; police, having been put on notice of the risk, would have had a lot of

explaining to do if they had allowed someone whose name was on the list to

come to harm.

I was asked to make some recommendation about the making up of this list, but I

expressed the view that it was a sensitive issue that can only be resolved by

discussion after some effective channel of communication is opened at the local

level between police and Aboriginals, and in particular with the Western

Aboriginal Legal Service.

With the advent of computerised records in which criminal convictions,

outstanding warrants and other information are available to all stations, there can

be no excuse for failure to record and use information about vulnerabilities of

prisoners. .

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SCREENING OF PRISONERS

A remarkable feature of many of the deaths in police custody was the cavalier

attitude of police to the possibility that prisoners were at risk. A striking example

was Paul Kearney, who was both unrousablc and in possession of large

quantities of unidentified tablets, yet it did not seem to occur to police that he

might be in need of care, and he was left to die. Shane Atkinson gave loud and

continuing voice to his anger and distress, but was ignored and hanged himself.

These examples show that there is need for a routine screening of prisoners that

will force police both to notice and to give attention to indications of risks to a

prisoner's physical or mental well-being. In New South Wales a Prisoner's

Admission Form has been introduced, and could be a useful precedent for other

States.

As Dr Cutter of the Victorian Aboriginal Health Service said, if a person is too

confused, disorientated or drowsy to give his name or describe his health

problems, then he should not be in a police cell. Dr Cutter also told the

Commission of the encouragement by the Victorian Aboriginal Health Service of

the wearing of pendants or bracelets, recording chronic conditions such as

diabetes and epilepsy.

POLICE INSTRUCTIONS

Police Instructions or Standing Orders contain the rules applicable to the care of

prisoners. But their vagueness and their dubious status has prevented them

being a real control of police conduct. One can understand that on many matters it

may be desirable to give police guidelines and leave them with discretions.

However my inquiries show very clearly that unless strict minimum guidelines

for the care of prisoners and detainees arc stated and enforced, those in custody

will get scant attention from many police. This applies particularly to intoxicated

100

persons or persons believed to be intoxicated. There appears to be a widespread

police culture, highly resistant to change, in which certain attitudes to prisoners

are embedded, including an obdurate conviction that an intoxicated person is to

be treated purely and simply as a drunk, and not as a person in possible need of

care for other reasons. There is also high resistance to the notion that doctors or

hospitals should be consulted about intoxicated persons, and high resistance to

frequent and meaningful checking of prisoners.

These attitudes are tolerated and condoned, and even supported by many senior

officers, and in the Moffatt case even the representative of the Victoria Police

Internal Investigations Department was unwilling to investigate and criticise

them.

NEW SOUTH WALES

The New South Wales Police Instructions contained many clear (and some *

unclear) directions about how police shall carry out their duties, including the

care of prisoners, when the deaths which I investigated occurred. One might

think that the enforcement of these Instructions would be one way in which

police might be made accountable, particularly as the P o lic e R u les made by the

Governor under the authority of the P o lic e R e g u la tio n A c t 1899 provide for the

issuing of the Instructions, and lay down that each member of the Force 'shall

strictly comply' with the Instructions. However on a number of occasions

representatives of police before this Commission strongly maintained that the

Instructions are only guidelines that do not have to be strictly complied with. In

the Ombudsman's inquiry into Lesley Revell's complaint, this view was

officially expounded by the Assistant Commissioner (Internal Affairs), who told

the Ombudsman that Instructions 'arc issued as a guide'. Police actions must

'reflect the spirit of the Instruction and be reasonable in the circumstances', an

approach which makes it very difficult to hold police accountable even for clear

breaches of mandatorily expressed Instructions.

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VICTORIA

In Victoria I was referred to the V ictoria P o lic e M a n u a l a n d S tan din g O rd ers. At

the time of my hearings the M a n u a l contained administrative instmctions, and

some of the matters relevant to my inquiries were dealt with both in the M a n u a l

and in the S ta n d in g O r d e r s in only slightly different terms. The Chief

Commissioner's preface to the M a n u a l stated:

'The Victoria Police Manual is principally concerned with the

permanent administrative instructions and is designed to facilitate

the administrative processes of a large and complex organisation.

Together with the Standing Orders, the Police Manual provides

guidelines for attaining the objectives of the Police Service in

contemporary society. An understanding of the instructions

contained in the Police Manual and adherence to the inherent

principles are essential to the attainment of individual and

organisational aims. Every member of the police force has a

responsibility to be conversant with the contents of this Manual,

accordingly.'

Chapter 9 of the M a n u a l dealt with 'Injured and Sick Persons and Attempted

Suicides'. These provisions were directed to the general attention by police to

people in the community rather than to prisoners in custody, which were covered

by Chapter 9 of the S ta n d in g O rd e rs. The obligations to prisoners, on the other

hand, were set out in the S tan din g O rd e rs, which were introduced by a separate

preface by the Chief Commissioner which stated:

'To facilitate attainment of Police aims in contemporary society,

these Standing Orders have been expressed, following a review of

all permanent instructions to members of the Victoria Police

Force. In some cases, absolute requirements are stipulated. In

other cases, general guidelines have been expressed. In all cases,

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the intent is to assure the effective discharge of Police duties and

responsibilities, in the public interest. It is not possible to make

provision for every eventuality and there will be occasions on

which members of the Force must rely upon their own initiative,

judgment and discretion. In these circumstances, it is imperative

that the action taken should be seen to be fair and reasonable and

in accordance with our aims. In this spirit, I commend these

Standing Orders to the attention of all members of the Police Force

for their advice and guidance.'

Although this preface did say that in some cases absolute requirements were

stipulated, there was such a general emphasis on discretion, culminating in a final

commendation of the S ta n d in g O r d e r s for the 'advice and guidance’ of officers,

that it is not surprising that some police argued that the provisions were only

guidelines and that their observance was not mandatory.

It is essential that instructions for the care of prisoners be clear and

unambiguous, mandatory in their requirements, and strictly enforced.

GETTING INFORMATION TO POLICE

In a number of my reports I commented on the big gap between Police

Instructions and policy changes on the one hand, and any influence on police

conduct on the ground on the other. The Boney hearing provided some

examples.

The inspector at Bourke at the time of Lloyd Boney's death, who had control of

Brewarrina and other towns of high Aboriginal population, was unaware of a

circular issued by the Police Commissioner in January 1988 dealing specifically

with Aboriginal deaths in custody. In order forcibly to bring home the

importance of Police Instructions relating to the care of prisoners in cells, a telex

was sent to each police station during the Lloyd Boney inquest. When giving

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evidence to the Commission, the officer in charge of Brewarrina had no

recollection of receiving it, although it must be said in fairness that he had

independently taken steps to ensure that his officers were aware of relevant

circulars. Evidence was given that a video had been made on the subject of

deaths in custody for the instruction of police, but a number of officers at Bourke

and Brewarrina had not heard of it or seen it.

Clearly there are logistical as well as psychological difficulties in making an

impact on police culture. Following the Dcon Scott inquest on 25 July 1988 a

coroner recommended that consideration be given to introducing a procedure

whereby all Police Circulars and lectures are noted as seen and read by police

officers at any police station. In his finding in the Lloyd Boney inquest the

coroner recommended that Police Instructions should require that police "note"

all circulars by initialling or signing such circulars. The New South Wales police

response was to point out that Circular 89/11 already placed an onus on Patrol

Commanders to ensure that all police read and comply with circulars and

Instructions. He stated that it was not considered that simply initialling or

signing circulars will ensure compliance. This Commission has been advised that

as from 11 December 1989 police circulars have been published in the Police

Service Weekly. It was suggested that because the circulars are now packaged

with other 'interesting information' there is a greater likelihood of the circulars

being read, but there is still no system for checking if this is done.

The Kearney death illustrated an even more fundamental deficiency. The

important changes to intoxicated persons legislation were not even conveyed to

grassroots police, or incorporated in circulars or instructions for many months.

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CHAPTER 7 - ABORIGINALS IN PRISON

STATISTICAL INFORMATION

In New South Wales I investigated six Aboriginal deaths in prison custody and

reported on five. The sixth which appears in some of the statistical publications

of the Com m ission's C rim inology Research U nit was that of

Francis Thomas Cooper on whose death I did not report because it was held to

fall outside the Terms of Reference.12 Although Mr Cooper was a prisoner at

the time of his death, he died in hospital and his death was not caused or

contributed to by an injury suffered whilst in custody. In Victoria and Tasmania

there were no Aboriginal deaths in prison custody during the period from

1 January 1980 to 31 May 1989.

The very small numbers make it fruitless to attempt any statistical analysis. As

background to the present discussion therefore I will mention findings of the

Commission's Criminology Research Unit dealing with the Australia-wide

figures.13 Even here any conclusions must be treated with reserve having regard

to the relatively small numbers, the differences in the circumstances of life of

Aboriginals in various parts of Australia, and the substantial differences between

States and Territories which appear on the relatively small numbers which are

dealt with in the Australia-wide figures. The Unit concluded that when

allowance is made for age and their relative representation in the Australia

population, Aboriginal people will die in prison custody at a rate nearly 13 times

the rate of non-Aboriginal people. The alarmingly high Aboriginal death rate was

explained, almost entirely by the over-representation of Aboriginal people in

12 See Chapter 4, p.47.

13 See Royal Commission into Aboriginal Deaths in Custody Criminology Research Unit Research Paper No. 11, A u s tr a lia n D e a th s in P r is o n 1 9 8 0 -1 9 8 8 . The figures relate to the period 1980-1988 and population figures are from the 1986 census.

105

custody. Substantial differences existed between the States and Territories

regarding the rates of deaths in custody with the Northern Territory having the

highest ratio of deaths to population at 3.9 deaths per 100,000 and Western

Australia and Queensland being the next highest at 2.2. Those figures apply to

all deaths. With regard to Aboriginal deaths, Western Australia had the highest

ratio at 34 per 100,000 followed by South Australia with 28. The lowest

Aboriginal death rate was in New South Wales with 10 per 100,000 which was,

however, still five times higher than the highest non-Aboriginal deaths to

population ratio in any State or Territory. Aboriginal and non-Aboriginal people

had roughly similar rates of numbers of prison deaths to the size of their

respective prison populations, with Aboriginal rates being a little less than those

of non-Aboriginal people. South Australia and Western Australia had rates well

above the overall national rate which was 2.2 per 1,000 for Aboriginals and 2.7

per 1,000 for non-Aboriginals. Overall non-Aboriginal people made up 12.5%

of the deaths in prison custody, although they were less than 1.2% of the

Australian population aged 15 years and above. The New South Wales figures,

which include the death of Francis Thomas Cooper, referred to earlier showed

an Aboriginal prisoner death rate of 10 per 100,000 of the Aboriginal population

of the State and 1.4 per 100,000 of the non-Aboriginal population. However

when the deaths were related to the prison population, the rate of Aboriginal

deaths per 1,000 of the Aboriginal prisoners was 1.8, less than the

corresponding non-Aboriginal death rale of 2.1. As already mentioned, there

were no Victorian or Tasmanian Aboriginal deaths in prison custody, though

over the period Victorian had a non-Aboriginal death rate of 4.4 per 1,000

prisoners and Tasmania a death rate of 2.3 per 1,000 non-Aboriginal prisoners.

One matter requiring comment is the increased rate of Aboriginal imprisonment in

New South Wales. As at 1 March 1981 5.8% of the New South Wales prison

population was Aboriginal. The current Department of Corrective Services

Aboriginal policy states that the prison census for 1989 shows that the percentage

of Aboriginal prisoners has remained constant since 1986 at 8.5%, an increase of

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2.7% There is no clear trend emerging from the Victorian and Tasmanian

figures.

In considering these statistics it is important to note that on average Aboriginal

prisoners have shorter than average sentences and hence go in and out of prisons

at a faster rate, that is more often and for shorter periods than the general prison

population. As the prison census gives a static picture as at midnight on 30 June

of a given year, the flow of Aboriginal prisoners in and out of prison is greater

than the stock of Aboriginal prisoners, thus the over-representation described in

official figures is probably under-estimated.

BASIS OF THIS CHAPTER

As I did not investigate any prison deaths in Victoria or Tasmania, any remarks

about the circumstances of particular prisoners apply to persons who were in

custody in New South Wales. I did not make any general inspections of prisons

in any State, although in New South Wales I made several visits to prisons

during the course of inquiries into individual deaths. I did not visit any prisons

in Victoria or Tasmania.

In New South Wales a public conference was held relating to Aboriginals in

prison and there was considerable discussion from interested persons including

those responsible for the management of the prisons, ex-prisoners and various

interested persons and organisations. Some observations about prisoners were

supplied to the Commission from the Aboriginal Issues Units in the three States.

Consequently much of what I say is based mainly on information about New

South Wales prisons, although it may be that some of it will be applicable to

prisons in other States. Some of the observations I make about the imprisonment

of Aboriginals may be of general relevance.

107

SAFETY OF CELLS AND EQUIPMENT

The death of Peter Williams by hanging illustrated issues about the safe design

and equipment of cells. A person in his condition should never have been put in

a cell with such easy facilities for self-hanging. Indeed no prisoner should be so

placed on his own. Primitive methods of electricity supply to the cell left an

electric cord suspended from a convenient hanging point. Although another

prisoner had hung himself in Peter's cell some months before, this did not result

in a review of the safety of the cell. Conditions in the cell were considered by the

Director of the PMS a few days before Peter's death, but only as part of a routine

inspection of the gaol, and no attention was paid to the risks of hanging.

The example underlines the need for more attention to cell safety. What I have

said earlier about the importance of human interaction applies as much to prisons

as to police custody.

PRISON MEDICAL SERVICE

In four of the five deaths into which I inquired attention was focussed on the

Prison Medical Service and the connection of its operations with the death in

question. In three of the deaths, those of Malcolm Charles Smith,

Thomas William ('Tim') Murray and Peter Wayne Williams, the concern was

about the adequacy of psychiatric services.

Common decency demands that those who arc deprived of their liberty and so are

unable to seek treatment for themselves, or be looked after by friends and

relatives, should be provided with adequate care by their custodians. This

principle is indeed written into the New South Wales P riso n s A c t 1 9 5 2 , Section

16 of which provides:

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'Every prisoner shall be supplied at the public expense with such

medical attendance, treatment and medicine as in the opinion of the

medical officer is necessary for the preservation of the health of

the prisoner and of other prisoners and of prison officers

I have already explained that the legal duty of a prison authority to take

reasonable care of prisoners extends to taking reasonable steps to prevent a

prisoner known to be suicidal from taking his own life.

PSYCHIATRIC ASSESSMENT AND TREATMENT

Over a period of nearly two years before his death in 1982, Malcolm Smith was

recognised as psychotic on numerous occasions, mostly following serious

attempts at self-injury. Yet throughout this period he had only symptomatic

treatment consisting of observation and medication. On no occasion was a

thorough assessment and diagnosis attempted. On no occasion did a psychiatrist

who saw him discover, for example, his early history of being wrenched away

from his family at the age of 11 or the more recent guilt-provoking history of

killing Terry Percival and being denounced by his sister and convicted on the

evidence of his family. It was not disputed that this was a totally unsatisfactory

situation. The explanation was offered that there were not enough psychiatrists

to meet the enormous demands at that stage. Dr Ward who was acting Director

of the Prison Medical Service at the time said that he would like to think that

things had improved, and Dr McLeod, the present Director, claimed that there

had been considerable change in the patient care at Long Bay Prison.

The inquiry into the death of Malcolm Smith was the first which I conducted and

I noted in my report that the evidence did not enable me to express any view on

the adequacy of the present prison services. However I noted that the evidence

of Dr Η M Jolley, who was a visiting psychiatrist at Bathurst Gaol, indicated

that the problems which existed at Long Bay when Malcolm was there certainly

still existed at Bathurst Gaol at least.

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The next death into which I inquired was that of Tim Murray who died in

Berrima Gaol on 31 December 1983. All in all Tim Murray was an extremely

difficult problem for society and for the prison system to which society

consigned him. When at liberty he was a persistent offender, committing

innumerable offences of break, enter and steal to maintain a high level of living

and dmg and alcohol abuse. Society provided no way of dealing with him

except by sending him to prison, yet this was a very unsuitable place because

there was no gaol equipped to deal with people such as he. He was young,

small, effeminate, attractive, immature, manipulative, self absorbed, with low

self-esteem and uncertain of his sexual identity, likely to become hysterical and

threaten suicide if he did not get the attention he craved, and extraordinarily

vulnerable to harrassment and rape in a prison environment created to house

aggressive personalities without normal sexual outlets. In addition he was a

hypochondriac, anxious, easily depressed, and lacking in purpose and

motivation.

His psychiatric treatment was mainly hurried and symptomatic, and he saw a

number of different psychiatrists in a short time. There was little indication of in­

depth assessment and none of any attempt to develop even a medium term plan

for him. No one explored the possible relevance of his Aboriginality. I

commented that to some extent the failure to embark on real assessment and

treatment might be excused by the fact that he was a remand prisoner who was

likely to be discharged or transferred when sentenced.

The third prisoner who had considerable dealings with the Prison Medical

Service in relation to psychiatric problems was Peter Williams who died at

Grafton Gaol on 18 November 1987. The evidence gave no sign of the

improvement which I was assured had taken place since Malcolm Smith's death.

The Prison Medical Service records relating to the month in which Peter was in

its care give no indication of any in-depth assessment, or of any attempt to

provide any plan to manage and treat him whilst he was in custody. As in the

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case of Malcolm Smith, his day to day symptoms were treated mainly by

medication, and within a few days of his showing signs of calming down he was

released back into the general prison system, free to be sent anywhere, including

Grafton Gaol, where he would have no professional psychiatric attention at all.

He was so released on 5 November 1987, although on that occasion he did not

get past the Metropolitan Remand Centre on his way to Grafton. Four days later

he was back seeking a return to the prison hospital in a highly disturbed state,

and the next day he was admitted to the hospital as 'a serious suicide risk'. Only

two days later, while he was still telling nurses that he was God, a psychiatrist,

who recorded nothing more favourable about him than that he seemed 'quite

cheerful and affable', cleared him to go to court. The psychiatrist made no

inquiry as to whether Peter was in fact due to go to court as he claimed, or as to

when the court was to sit or as to how important Peter's attendance was. As it

turned out, his cases were not to come to court until 25 November, 13 days

later, and there is no indication that even on that day they would have proceeded

in a way requiring Peter's presence.

In making his decision about Peter, the psychiatrist did not even have available to

him the medical fde for Peter's previous stay in Long Bay Hospital, much less

any longer term history. He made a number of assumptions for which he had no

basis, and which he did not seek to verify. He assumed that considerable

difficulty might arise if Peter were not allowed to go to court. He assumed that

Peter would be away for only a day or two, and that Peter would be kept under

observation. He gave no directions that these conditions should be observed, did

not make his clearance conditional on any of these things, and did not even

record on the file that these were the assumptions on which he acted.

Exactly how the system was supposed to treat the psychiatrist's clearance is not

apparent from the evidence. He seemed to think that it was someone else's

responsibility to understand and ensure that Peter should be released only for a

day or two and kept under appropriate observation, but custodial officers were

given no inkling that Peter's return into their hands was in anyway qualified.

I l l

They were not told that he was not to be away from the hospital for more than a

day or two; they were not told that he was to be kept under observation; they

were not told that his treatment at the hospital was incomplete and that he was to

return as soon as possible. Peter was sent to Grafton where no professional

psychiatric service was available, and hanged himself a few days later.

On the information that emerged from these cases, the psychiatric service

provided by the PMS is totally inadequate for its task, badly managed and under

resourced.

PREVENTION OF SUICIDE IN GAOLS

In my R e p o r t o f th e In q u iry in to th e D e a th o f P e te r W illia m s I noted that it was

apparent that insufficient attention had been given to procedures for identifying

and dealing with potential suicides. The case illustrated a deplorable lack of co­

operation between medical and custodial staff. There must be considerable room

for the involvement and training of lay staff, who are the persons in day to day

and sometimes hour to hour contact with the potential suicide. They are in a

position not only to make observations, but by personal interaction to contribute

to the management of such persons. When it is not practicable to keep such

persons under medical observation, steps should be taken to see that the best

possible use is made of custodial staff.

INVOLVEMENT OF CUSTODIAL OFFICERS IN WELFARE

The health care of prisoners cannot be exclusively the province of the Prison

Medical Service, any more than it can be the exclusive responsibility of health

professionals in the general community. The Service has a small staff in a

limited area for limited hours, and inevitably many situations will arise where

prison officers are able to observe things relevant to prisoners’ health and are

able and have a duty to take some action as a result. It is of the utmost

112

importance that a relationship of co-operation and mutual responsibility is

developed. In such an atmosphere it should be possible to work out the

appropriate areas of professional confidentiality on the one hand, and of

information and instruction to custodial officers on the other hand, so as to

produce the best care of prisoners.

Giving prison officers a recognised role in relation to the welfare of prisoners

may also help to bridge, from both sides, the gulf that inevitably exists when

prison officers are seen, and see themselves, as concerned only with security. In

the Max Saunders inquiry there was evidence of plans to introduce a 'Unit

Management Policy' in Goulbum Gaol. The concept of unit management is to

make each wing like a small gaol within itself, with more emphasis on interaction

between prisoners and prison officers. It involves looking at each individual

prisoner, and trying to work out goals for the prisoners. The prison officer will

be doing the face to face work with the prisoner, supervised by a Case

Management Officer. The proposal sounds extremely constructive, although

much will depend upon the spirit with which it is implemented, the resources and

the enlistment of co-operation from prison officers.

CONFIDENTIALITY OF MEDICAL INFORMATION

In the In te rim R e p o r t Commissioner Muirhcad stressed the importance of the

confidentiality of prisoners' communications to medical staff, but noted that the

issue was difficult because other matters affecting the welfare of prisoners

impinge on the principle of confidentiality (pp. 54-5).

There are circumstances in which custodial officers can properly look after a

prisoner's interests only if they are aware of certain matters about his or her

medical condition. If a prisoner is at risk of suicide or self-injury, or is being

sexually abused or otherwise ill-treated by other prisoners, it may be possible to

eliminate or reduce the risk by steps taken by custodial officers in whose charge

the prisoner is, or by appropriate classification of the prisoner.

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An illustration is given by the death of Malcolm Charles Smith, the subject of my

first report. In that case those having the immediate custody of the prisoner did

not know of acts of self-injury which he had committed on two previous

occasions similar to that which was ultimately to cause his death. A

superintendent was asked to take Tim Murray into Berrima but was not made

aware of his previous attempts at self-injury and overdose or that he was being

issued with mood altering drugs. In respect to both prisoners psychiatrists had

clearly noted and recorded the risks, but nothing was done to alert custodial

officers. At Long Bay custodial officers were unaware that Tim was subjected to

rape. Even though Tim did not wish to press criminal charges, custodial officers

aware of the situation might have been able to reduce the risk of further rapes. In

Goulbum Gaol unnecessary problems arose, and may have contributed to Max

Saunders death, because prison officers did not know which prisoners were on a

methadone program. The Superintendent of Grafton did not have vital

information about Peter Williams' instability. Obviously there needs to be some

balance between conflicting considerations of confidentiality and the protection of

a prisoner.

Another repercussion of confidentiality is the restriction on relevant information

being available for classification decisions. The present practice in New South

Wales is that prior to Classification Committee Meetings some members of the

committee, which includes the Director or Deputy Director of Prison

Classification, a Deputy Superintendent of Classification, an education officer, a

psychologist, a probation and parole officer and, on occasion, others such as a

welfare officer, discuss the prisoners listed for classification. If a concern is held

about a prisoner because of behaviour indicative of a possible medical problem or

if the prisoner has revealed that he is on medication, the Prison Medical Service

is asked to provide medical information relating to the prisoner in accordance

with a form. The information can only be obtained if the prisoner consents.

The case of Tim Murray illustrates that this procedure may allow a Classification

Committee to make decisions without information about the degree of

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supervision which a prisoner may need for psychological or medical reasons. A

theoretical solution might be that the Prison Medical Service should be

represented on all Classification Committees but this would be unnecessary and

wasteful of the scarce resources of the Prison Medical Service. Some better

solution needs to be worked out.

SEXUAL OFFENCES AND SEXUAL IDENTITY ISSUES

It is apparent that prisoners with sexual problems or abnormalities create very

great difficulties for prison systems. On the one hand prisoners who are believed

to have been guilty of sexual offences against children, known as 'rock spiders'

in prison jargon, are hated by many other prisoners and are at risk in gaol to the

extent that they may require protection. However the isolation involved in

protection may itself become a problem for prisoners. These difficulties were

poignantly illustrated in the story of Peter Williams.

On the other hand prisoners of ambivalent sexual identity, or simply young male

prisoners, are at risk of rape or other forms of sexual abuse from other prisoners.

There can be little doubt that Tim Murray suffered severely in this way and it is

quite probable that Glenn Clark did also. A major problem is that such prisoners

are often afraid to complain for fear of retaliation. This may lead to great stress

on prisoners and the seeking of protection, which itself may impose further

stress (as happened with Tim Murray), or it may lead to assumptions that

prisoners are willing partners who arc then labelled by staff as homosexuals

(which may have been the fate of Glenn Clark).

At the time of his death Peter Williams was on remand on charges of sexual

interference with a small girl and a woman - he had other charges or convictions

of a similar kind; Max Saunders was under sentence for the offence of rape

which he had committed several times in the past, and Tim Murray had been

placed in a protective environment in gaol because of his ambivalent sexual

identity and his vulnerability to sexual abuse.

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The evidence did not cast much light on the reasons behind Max Saunders'

several offences of rape, beyond the fact that at the age of 14 he commenced a

life almost entirely in institutions and had little opportunity to develop in a normal

community. However both Peter Williams and Tim Murray suffered sexual

abuse as children. There is general recognition that sexual abuse as a child is

likely to contribute to delinquency, failure to establish a mature identity and the

commission of sexual offences. Aboriginals have been expressing concern for

some time about the consequences of sexual abuse which they see as often

associated with policies that have broken up Aboriginal families and isolated

children from their actual families.

Until recently it was widely believed that sexual abuse was not a problem in

Aboriginal communities. However with an increase in community awareness

and services, it is evident that Aboriginal families are not immune from the

increase, or detected increase, in sexual abuse of children which is being seen in

the whole community (Department of Family and Community Services, NSW,

A b o rig in a l C om m u n ity F osterin g E du cation P ro g ra m m e P a c k a g e 1988.)

It is important that the resourcing of Aboriginal Health Services and community

organisations should have regard to the need to provide protection and assistance

to children at risk in this way, and for the counselling and assistance of potential

offenders.

MEDICAL SERVICES FOR ABORIGINAL PRISONERS

Although I was not able to investigate the matter in detail there were many

indications that the mainstream medical services were not adequate or appropriate

for Aboriginals. In the inquiry into the death of Max Saunders there was

considerable evidence of lack of rapport between Aboriginal prisoners and the

Prison Medical Service, although an absence of any specific detail to support

criticisms of the Service's treatment of Aboriginals. It cannot but be a matter of

116

concern that Max Saunders had over a long period been complaining of chest

pains to his family, friends and fellow prisoners, and yet in all the years he was

in gaol there was no record of these complaints ever having been taken to the

Prison Medical Service. Nor is there any evidence of his advanced state of heart

disease having being detected, despite numerous passages through clinics on his

reception in gaols.

It would not be constructive for this problem to fall into an adversarial context in

which Aboriginals expressed antagonism to the Prison Medical Service and the

Service on its side adopted defensive altitudes. Some wisdom on this subject was

expressed by the Aboriginal prisoner, Tim Matthews, who, although he did not

have a high opinion of the Prison Medical Service, went on:

'All prisoners suffer the same problems, but I do not think

Koories get the attention they need. Max was in need of help.

There are things which are particular to Koories that require that

they be given special attention. These things include shyness, and

a problem with attitude to authority. Also a person in the gaol

does not have a responsible attitude, otherwise he wouldn't be in

there. All these things contribute to the fact that someone like Max

would not seek out help. Max was trapped. I believe that he had

a sort of death wish. He was going through a lot of frustration.'

These are obviously problems which should not be ignored. The

disproportionate numbers of Aboriginals in prison, the extraordinarily bad health

profile and the low life expectancy of Aboriginals, continue to mean that

Aboriginals should be regarded as a special and acute problem in the

administration of the Prison Medical Service. Unfortunately this does not seem

to be recognised in the Prison Medical Service itself.

There is a great deal of accumulated knowledge and experience about Aboriginal

health problems and how to deal with them in the Aboriginal Medical Services.

117

While there is evidence that the Prison Medical Service, and the present Director,

Dr McLeod in particular, have adopted a co-operative attitude to the Aboriginal

Medical Services in giving them ready access to Aboriginal prisoners, it does not

appear that there has been any attempt to make use of their experience or their

services in shaping the general delivery of health services to Aboriginal

prisoners. This would appear to be an area for very fruitful collaboration.

Greater resources for Aboriginal Medical Services might allow them to play a

greater role in prisons, which Dr McLeod says he would welcome.

Other references are made in this report to the importance of Aboriginal Medical

Services. However the question is particularly acute for Aboriginals in prison,

not only because of the disproportionate number of Aboriginals in prison, their

very low standard of health and their lack of choice in medical services but

because the state of Aboriginal physical and mental health is often a contributing

factor to their custody. Commenting on Peter Campbell Dr McKendrick, the

Psychiatrist Director of the Victorian Aboriginal Mental Health Network said:

'The story of his life and the plight of Aboriginal people in

custody is familiar to all Aboriginal people and reflects the

conditions of socio-cultural deprivation and racial discrimination

which they experience throughout their lives. In my experience it

is common for Aboriginal people to be taken into custody when it

would be more appropriate that they receive medical treatment'.

A number of psychiatrists candidly admitted their limitations when dealing with

Aboriginals - Dr Freeman, who dealt with Peter Williams at the Richmond

Clinic said that cultural factors made his diagnosis of Peter Williams' condition

problematic. In the Malcolm Smith inquiry two psychiatrists, Dr Jolly and

Dr Milton both recognised the special transcultural problems in the psychiatric

treatment of Aboriginals. Dr Jolly, who had had some experience with

Aboriginal patients suffering what he described as 'schizophrenic-like illness',

said that 'managing these conditions never seemed to correspond to the clinical

118

instruction I had been given in medical school training days'. Dr Milton

commented that 'there were probably profound and subtle differences in outlook

between Smith and those treating him, sufficient to interfere with their evaluation

of his emotional state and the risks attached. For example, what is regarded as

psychotic behaviour i.e. mental illness, by white people, might have been for an

Aborigine a normal if extreme way of demonstrating emotional distress and a

need for help which could not be expressed more directly'.

There are a very limited number of practising psychiatrists who have specialised

in work with Aboriginals. In south eastern Australia the outstanding example is

Dr Jane McKendrick, the Psychiatrist Director of the Victorian Aboriginal Mental

Health Network. Her work with the VAHS could be a model for other States.

IMPRISONMENT OF DISTURBED PERSONS

In the Peter Williams inquiry an experienced PMS nurse said that particularly in

the last five years he had seen a big upsurge in the number of psychiatrically and

emotionally disturbed and developm ental^ retarded people in gaol. He

mentioned three factors in this, namely the increased use of drugs, the S u m m ary

O ffen ces A c t and the implementation of the Richmond Report.

It is a matter of grave concern, and one that must increase the incidence of deaths

in custody, if mechanisms of the law arc being used to convert persons in need

of psychiatric care into criminals, and lock them up in a prison system that is not

geared to their care.

IMPORTANCE OF RELATIVES AND FRIENDS

Prison authorities should be alert to the importance of the relatives and friends of

prisoners. Maintaining contact with them is of great significance for the mental

state of the prisoner, and hence for his or her conduct in gaol, and for prospects

119

of rehabilitation on release. If they have resentments against the gaol's treatment

of them it will soon be communicated to the prisoner, as well as affecting the

gaol's and the department's reputation in the community.

The incident of the refusal to allow a television set to be brought into the gaol by

relatives for Peter Williams' use illustrates the importance of decisions being

explained, and not merely promulgated in an authoritarian fashion. There were

good and proper reasons for custodial staff refusing to allow a television set to be

brought in, but the failure to explain the reasons left relatives angry and resentful,

and convinced that they had suffered discrimination.

Accessibility of gaols

It was obvious that two gaols which I visited during my inquiries, those at

Broken Hill and Grafton, were of particular importance to Aboriginals. The

rehabilitation of prisoners, and even their ability to maintain a balanced outlook

on the world while in prison, may be greatly assisted by the maintenance of

family and kin contacts. Corrective institutions tend to be located at a distance

from centres of Aboriginal population, and the institution to which a prisoner is

sent may be mainly determined by factors other than proximity to family.

Broken Hill and Grafton Gaols are valuable exceptions.

Broken Hill Gaol is a relatively small gaol and one can imagine that in the days of

economies of scale it may be under scrutiny. However its existence is of great

importance to the Aboriginals of the western area of New South Wales, who

supply many of its inmates. Although Broken Hill is 262km from Wentworth,

111km from Menindee, and 195 km from Wilcannia it is at least within an area in

which Aboriginals are used to moving, whereas eastern gaols might as well be in

another planet for many Aboriginals. Imprisonment in Broken Hill gaol gives

some opportunity of maintaining family contacts; indeed with the large extended

families in the area such contacts are to some extent maintained within the gaol.

At the time of my visit in 1988 the gaol was run with a strong emphasis on

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rehabilitation and had for a number of years been under the management of a

Superintendent, Mr Mervyn Love, who had shown great interest in and

understanding of Aboriginals and has won considerable respect in the Aboriginal

community. When the Commission visited the gaol he explained a number of

programmes that were operating to assist rehabilitation and outlined plans for

including a substantial area of grapes on the small prison farm so that inmates

could have the opportunity to acquire skills relevant to working on fruit blocks in

the western region. Such an approach is deserving of every encouragement.

Grafton Gaol is similarly valuable for the Aboriginal community on the north

coast, again providing the opportunity for Aboriginal prisoners for that area to

serve sentences within visiting distances of their families.

During the inquiry into the death of Shane Atkinson, who died in New South

Wales but spent a considerable part of his life in Victoria, I became aware of a

similar significance to Aboriginals of Dhurringile, a low security gaol with a farm

type establishment near Shepparton. Shepparton not only has a considerable

Aboriginal population but is a convenient centre for a number of Aboriginal

communities. Imprisonment at Dhurringile allows many Aboriginals to maintain

contact with their families.

IThe importance of the location of prisons in relation to Aboriginal communities

should be borne in mind when decisions are made about opening or closing

prisons. This is particularly true in New South Wales where distances can be

very great and Aboriginals constitute about 1 in 12 of the prison population.

In discussions with prisoners the New South Wales Aboriginal Issues Unit

found that prisoners nominated access by parents or family or friends for visits

as a major problem. It is a problem that had been made worse by cut-backs in

rail services. Most of the visitors were people on social security benefits and

they did not get concessions on private buses which were not subsidised. The

cost of fares and accommodation when visiting distant gaols was a very heavy

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burden. A place particularly mentioned was Glen Innes Prison Farm which was

a considerable distance out of town and without accommodation for visitors.

VULNERABLE PRISONERS

The evidence in the Tim Murray case showed the lack of any institution suitable

for a prisoner like Tim, whether Aboriginal or otherwise. Dr Ward, the former

acting Director, Prison Medical Services, advocated a special insititution, located

on a prison farm, for young offenders, particularly those in gaol for the first

time. Many have come from broken families with histories of parental alcohol

abuse, violence and sexual promiscuity. Such young offenders have usually

already spent time in boys homes and have abused alcohol and other drugs. Dr

Ward has suggested a program for such offenders.

DRUGS IN GAOL

The evidence in relation to the death of Max Saunders made it obvious that drug

use of many kinds was rife in Goulbum Gaol. Some Victorian communities

expressed extreme concern to the AIU about the adverse affects that gaol has on

their young people. In particular, it was said that the alleged availability of drugs

has spoiled the chances for young people when they ane released.

I did not investigate how the drugs came to be available. However the problem

lends weight to the desirability of adequate drug counselling in gaols, and for

encouragement of activities which will strengthen the self-esteem of Aboriginals

and their cultural pride.

PROBLEMS OF CLASSIFICATION AND TRANSFER

At the conference held by the Commission about Aboriginals in prison, there was

considerable reference to the disruption of Aboriginal gaol communities by

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'shanghai-ing', that is the sudden removal of prisoners from one gaol to another.

Max Saunders' constructive plans for his rehabilitation were twice adversely

affected by sudden, unnecessary and misguided transfers.

It is obvious that the settlement into prison life of prisoners, particularly long

term prisoners, their rehabilitation through employment and education, their

emotional maturation, and their preparation for return to civilian life, can be very

adversely affected by misjudged transfers.

PRISONER EDUCATION

The large number of Aboriginals in prison, their general low level of education,

and the connection of their educational level with their offending, make the

availability of education to Aboriginal prisoners a matter of vital importance. The

Commission has come across quite remarkable examples of rehabilitation of

Aboriginal offenders as a result of new windows on the world opened to them.

One former prisoner of 35, who had spent half his life in prison, told me that his

rehabilitation had begun when he started to study sociology and art in gaol. 'For

the first time in my life I felt free', he said.

It was very disturbing to hear reports of opportunities being cut back by financial

stringency, the placing of TAPE on a fee for service basis, and restrictions on the

right of prisoners to have study material in their cells.

The reduction of the number of educational programmes in corrective institutions

must be one of the most short sighted and expensive policy changes imaginable.

Literacy is a disability that can be highly correlated with propensity to crime and

is one that can be remedied with skilful teaching. The acquisition of literacy is

highly likely to improve the opportunities available to the offender. The highest

priority should be given to encouraging Aboriginal access to education in prison,

not only of a vocational nature, but for personal development, and funds for this

purpose should be specifically provided and not have to compete with security

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expenditure in corrective services budgets. The negotiations under way with

TAPE to develop new opportunities for vocational education, life skills, literacy

and culture are to be commended.

RACISM

Several prisoners complained about racism in gaols, and what they alleged was

differential treatment because of their race. One Aboriginal said that being a

Koorie in prison created what he called 'an invisible wall' between himself and

other prisoners. Although he had never experienced physical harassment, he had

experienced verbal abuse.

There were some very eloquent statements at the Commission's conference on

Aboriginals in prison about the problems that arise. There were also indications

of failures on the part of superintendents and others to be aware of the problem.

This is exemplified in the present case by a statement of the Superintendent of

Goulbum Gaol:

'In my time here as Superintendent or as Deputy I have never had

an inmate coming to me with a complaint about problems with

racism.'

Aboriginals who have lived all their lives suffering the effects of racism are not

likely to come and complain to the superintendent about experiencing it in gaol,

quite apart from the general reluctance of prisoners to complain for the fear of

retaliatory action. The statement also suggests a failure to distinguish between

acts or expressions of racial prejudice and the racism embedded in institutional

practices such as the lack of recognition of the importance of kinsfolk to the

emotional well-being of Aboriginal prisoners.

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RECOGNITION OF ABORIGINALLY

Aboriginals stressed the painful and destructive effects of isolation. 'From the

cradle to the grave, Aboriginal people are social beings and they're surrounded

by people.' Problems occurred when Aboriginals were taken from their families

or social units and put in an isolated position. There was a need for Aboriginals

to be put with other Aboriginals, and again and again it became apparent that

whatever divisions they might have outside Aboriginals tended to form a close

social unit within gaols.

I encountered some examples of this being recognised. The gaol at Broken Hill

to which I have already referred was one in which Aboriginals found their culture

respected and they were encouraged to express their Aboriginality. In Grafton

Gaol it was the practice to allow Aboriginals to share a cell known as the

'mission' cell and when necessary an adjoining cell. This was a sensible and

desirable recognition of Aboriginal identity by the gaol management.

However it is clear that many Aboriginals perceive their experience in gaol as one

in which the expression of their Aboriginal identity is discouraged. There were

perceptions that Aboriginal groups were deliberately kept to a limited size in gaol

and that persons who were active in expressing their Aboriginality or their

solidarity with other Aboriginals were likely to be 'shang-haied' to another gaol.

How far this is the fact was not something that I was able to investigate. One

Aboriginal prisoner put it that problems often originated with other inmates who

were prejudiced against Aboriginals or resented their solidarity, rather than with

gaol managements. In his view it suited gaol managements to be neutral between

Aboriginals and non-Aboriginals as the division left them very much in control.

In a visit to North America early last year I found a strikingly positive attitude to

the encouragement of Indian identity in federal prisons. This was expressed in

traditional religious and cultural practices which were encouraged and facilitated

by the prison administration, which regarded the development of Indian self­

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esteem as highly desirable. This was not on abstract grounds but in terms of

improving the atmosphere in gaols, making administration easier, and

encouraging the rehabilitation of prisoners. Urban Indians who had been cut off

from Indian communities often responded with great enthusiasm. It even became

a problem that non-Indians were seeking to pass themselves off as Indians to

gain admission to the warmth of the Indian fraternity which stood out in the gaol

situation.

ABORIGINAL ALTERNATIVES

Aboriginal communities are very conscious of the deleterious effect of gaols on

Aboriginals, and particularly young people. A number of Victorian communities

saw the revival of Koori culture and the Koori means of social control as a

solution to the over-representation of Kooris in custody.

As a means of achieving this, many communities would like to see an alternative

to prison. Several submissions, which embody detailed proposals, have already

been prepared by various community organisations and workers in the field. The

prison alternative has been described as a Farm, a Way Forward and a Living

Skills Development Program. The aims are to reduce the custody rate and to

reduce recidivism.

The features of this much needed alternative which were common to all the

proposals put to the AIU were:

• that it be a place away from the prison system, and, some

said, away from the city

• that the staff and organisers not be part of the Office of

Corrections and not be police officers

• but that it operate in conjunction with the OOC

• that the focus would be on

developing living skills

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providing support

enhancing cultural identity

strengthening self esteem

providing meaningful education

• that it be controlled by the local Koori community

• that the entire project be conducted within the appropriate

cultural framework.

The use of the word 'rehabilitation' was rejected and the term 'cultural revival'

was used. The point being made was that the objective of the program would be

to instill a sense of identity and self worth as opposed to changing someone's

lifestyle in order for them to 'fit back into the general society'.

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CHAPTER 8 - AVOIDANCE OF CUSTODY

IMPRISONMENT FOR NON-PAYMENT OF FINES

The abolition of imprisonment for non-payment of fines was recommended in the

I n te r im R e p o r t of Commissioner Muirhead. The importance o f this

recommendation was apparent from a number of cases.

But for the existence of a warrant for the non-payment of a fine Glenn Clark

would have been entitled to be released when he sobered up. It was suggested,

and it is possible, that the fact that he was not going to be released when he

sobered up may have contributed to his depression and his taking of his life.

Harrison Day was serving time for non-payment of a fine when he died.

Clarence Nean died after collapsing in Walgett Police Station, where he was

spending four days on a warrant for non-payment of a fine of $80, imposed for

taking a tin of sardines and sauce valued at $1.07 from a local supermarket while

he was intoxicated.

BAIL

I have earlier characterised as a story of shocking and mindless inhumanity what

happened to Thomas Cooper, whose death was investigated but ultimately found

to be outside my terms of reference. Although unconvicted, he was left to die

over a period of two months in gaol, far from his family, when he was virtually

helpless and a threat to nobody. He should have been released to die in dignity

and comfort with his family about him. Instead bail was imposed which he could

not raise. While this was a particularly stark example because Mr Cooper was

dying, the suffering of imprisonment for inability to raise bail rather than for the

commission of offences has been a significant part of the Aboriginal experience.

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For example in 1969 G am e Nean was charged with an assault and acquitted, but

he had nevertheless spent nearly six weeks in custody awaiting trial, as the terms

of his bail required him to find a surety for $200 in a town away from home. In

1971 he spent a similar period in custody, being unable to find a surety for $300

in another such town, although he was ultimately given a bond for the offence -

an assault while drunk. Although in 1974 he was fined only 50c for offensive

behaviour, he had been in custody for five days, unable to find a surety for $40.

In 1976 he spent two weeks in custody awaiting trial for a PCA charge, his bail

having required a surety for $200.

Unrealistic bail conditions

I commented in a number of reports on the fixing of unrealistic bail conditions.

Bail conditions should not be set which obviously will not or cannot be complied

with. Unrealistic conditions simply set the defendant up for failure, and produce

the result that bail is at the discretion of the police, who can arrest the defendant

for breach of conditions whenever they choose not to turn a blind eye to the

breach.

The principal purpose of bail conditions should be to ensure that people attend at

court to answer particular charges, although there may be other purposes in

particular cases, e.g. the avoidance of further offences. However the conditions

should not be used by police officers or magistrates to impose their views of an

appropriate life style on offenders. A common condition is total abstention from

alcohol, which is an invariable accompaniment to any social life for many

Aboriginals in many country towns. The condition was repeatedly imposed on

Lloyd Boney's bail during 1987 that he not partake of intoxicating liquor. In the

circumstances of Lloyd's life in remote communities in western New South

Wales, the limited opportunities for social life revolved around social drinking,

very frequently in public under the gaze of police. If it was seriously thought

that it was necessary that Lloyd should not drink at all he should not have been

released on bail, but obviously this would have been unreasonable. It is

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interesting to note that in Lloyd's case the condition was not sought by police,

but was apparently automatically added by magistrates or justices to the more

appropriate conditions sought by police.

Shane Atkinson's final custody flowed from an unrealistic and irrelevant

condition requiring him to report at 5.00 pm each day in a sober condition,

which, given his known habits, meant that his bail was revocable at the whim of

police. Where reporting conditions are imposed the object is to put police on

notice at the earliest available opportunity of the possibility that the defendant

may not appear, or may be offending again, so that inquiries can be made. Yet in

the case of Shane Atkinson six days elapsed before his failure to report was

recorded in the Occurrence Pad and no attempt was made to inquire as to the

reason. Instead he was simply arrested when seen at Griffith Show with his

girlfriend, one of the reasons for the anger which he later expressed by taking his

own life.

Another very onerous condition which seems to be much too readily imposed is

one requiring the defendant to stay out of his own town, often the town in which

he has lived his whole life.

Deferment of bail

The Revell case illustrated difficulties which arise about the application of the

New South Wales B a il A c t to a person who is, in some substantial degree,

affected by alcohol or other drug. Under the Act police have no power to review

bail granted by themselves or any other police officer. Consequently, once they

refuse bail the person must remain in custody until he or she can be brought

before a justice. For persons arrested during the evening or night this commonly

means remaining in custody until ten o'clock or later the next day. This creates a

dilemma where police consider that although a person is not in a proper state to

be released immediately after arrest, that person may be able to be released after

some hours of sobering up. By reason of s.5 of the I n to x ic a te d P e r s o n s A c t

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there may be an impediment to giving the person bail for the offence charged, but

then holding him or her temporarily under the I n t o x i c a t e d P e r s o n s A c t.

The police have found a practical solution to this problem, which is expressed in

police training lectures which say that police are entitled to defer determining bail

by reason of the provision requiring bail to be determined 'as soon as

practicable'. This phrase is construed as allowing police to defer the

determination of bail until persons are sufficiently sober, not only to understand

the conditions of bail, but to be able to be released without risk to themselves or

others.

There are two problems about this. One is that it is a very doubtful interpretation

of the B a i l A c t . Counsel before me in the Revell case were virtually unanimous

in accepting that the B a i l A c t does not allow such deferment of a determination

and that, properly construed, the B a i l A c t would require the police officer to

make a determination as soon as possible, even if it meant refusing bail to a

person who could be released some hours later.

The other objection is that the practice opens the way to the possibility of abuse.

The deferment of bail does not even have to be recorded. Bail might be

improperly denied by an officer simply deferring a decision; the deferral is not

subject to any review.

The existing position is unsatisfactory. The Revell case gave an example of

police acting reasonably and in the interest of the prisoner but on a questionable

legal foundation. In other circumstances it is not hard to imagine that there might

be a challenge to the good faith of police, as well as to the legality of their

actions. It is desirable that the position should be clarified in some way. There

are a number of ways in which the law might be altered, for example, by giving a

power to defer with some safeguards; by giving police power to review a refusal

of bail by themselves or other police officers, or by reviewing the interaction of

the B a i l A c t and the I n t o x i c a t e d P e r s o n s A c t.

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V ic to r ia n in itia tiv e s

Some recent constructive moves have been made in Victoria to improve the

administration of bail. Legislation has been passed for the specific appointment

of persons as Bail Justices. Bail Justices may be ex o ffic io , as the holders of

prescribed offices such as Clerks of Court, or they may be individual

appointments by the Attorney-General. The Attorney-General's Department has

developed a training course for Bail Justices in conjunction with the Leo Cussen

Institute and all appointees will be required to complete the course. The intention

is to improve the consistency of bail decisions and deal with any inappropriate

preconceptions of those making bail decisions.

In relation to juvenile bail, it has now been enacted in Victoria that no young

person may be refused bail on the grounds that they do not have adequate

housing. A Remand Advocacy Program has been established and Youth Officers

at Training Centres assess the incoming juveniles and endeavour to find

appropriate community placements. When such placements are found the juvenile

is returned to the court for approval and release.

PROBATION AND PAROLE

THE IMPORTANCE OF PROBATION AND PAROLE

Probation and parole play a critical role in determining the numbers in custody,

probation by providing an alternative to sending an offender to prison or a

juvenile institution, and parole by allowing early release and the taking of

measures to assist the parolee to settle into the community and avoid reoffending.

Special importance attaches to the opportunities to divert a first offender,

especially a child or young person, from the custodial system, and to assist a

seasoned offender at the point which so many reach where they realise the futility

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of spending the rest of their lives in custody and wish to find a constructive

alternative. The Probation and Parole Service in each State has a key role both in

assessing individuals for, and making recommendations about, probation and

parole, and in supervising probation or parole when it is granted by courts or

correctional authorities.

The Commission's inquiries

A number of those whose deaths I have investigated were at times under the

supervision of one of the Services, or were candidates for such supervision, but

in no case does the result appear to have been successful. Because I heard so

many more cases in New South Wales, and because the three Victorian cases

related to men who had not had any significant conflict with the law except over

drunkenness, most of my observations related to New South Wales.

In my first report, that into the death of Malcolm Smith, I noted the ways in

which the Probation and Parole Service in New South Wales had failed to

provide Malcolm with any support at critical times of his life. Released on

probation in the strange city of Sydney at the age of 15, instead of being returned

to his family at Dareton, he was soon incarcerated again at the behest of his

Probation Officer, who appears to have given him no support. When he did

return to Dareton on parole at the age of 21, the Service was unable to provide

supervision and he was soon back in gaol. When he was 24 he was refused

parole to return to Dareton, against the background that the Service was unable to

provide the required supervision in 'this remote part of the State'.

Lloyd Boney experienced one period of supervision in 1986-87 while he was

moving between Bourke, Enngonia and Brewarrina. He reoffended and his

Parole Officer reported that 'Lloyd should not again due to nomadic lifestyle be

placed under the supervision of this Sendee as it only serves to be a useless game

of "cat and mouse'". At a critical period in his life Peter Williams was denied

supervision by the Service because of legal quibbling about its powers. At the

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age of 14 Max Saunders was recommended by a Probation and Parole officer for

committal to an institution after his first offence of stealing $6.60 worth of

cigarettes, thus beginning a life spent almost entirely spent in custody. At a late

stage of his life a parole officer devoted a great deal of time and energy to his

rehabilitation, and was so confident that he would not repeat his offence that she

could not believe that he was guilty when again convicted.

In Tasmania Glenn Clark spent virtually the final six years of his life from the

age of 16 under supervision, but no officer seems to have established rapport

with him. Even after he had responded creatively to an opportunity to produce a

newspaper in gaol, probation officers could find no positive potential in him, and

missed the opportunity to nurture and build on this revelation of a constructive

side of Glenn's character. By this time the Service seems to have been treating

Glenn as a stereotype. A probation officer noted in 1980 that 'the flow of

offending does not seem to have abated as a result of supervision', but this does

not seem to have led to a re-evaluation of what the Service was offering.

Two parole officers, one in New South Wales and one in Tasmania, established

good rapport with Peter Campbell at lonely times in his life, but did not succeed

in keeping him out of further custody. The Tasmanian officer, reflecting on his

failure, wrote:

'There are some sound lessons to be learnt from the failure of

myself and allied services in this case

- our knowledge of Aboriginal mores, values etc. was nil.

- the need was guessed at and then amply demonstrated

itself for an intensive, wide ranging contact between

this man and the available Services.'

With some notable exceptions, it was common for Probation and Parole Officers

to experience great difficulty in establishing rapport with those whose deaths I

investigated, and for those officers to express negative views of their intelligence

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and potential which were at odds with other evidence available to the

Commission. These comments are not made to belittle the efforts of officers of

the Probation and Parole Services. On the contrary in many of the cases there

were sympathetic and careful reports of these officers which evinced a keen

desire to help their clients. The point is simply that the Services were not geared

to dealing with Aboriginals, and had not at the time recognised the special needs

to build cultural awareness in their staff, to recruit Aboriginal staff, and to enlist

the latent creative energies and responsibility of Aboriginal communities.

During the inquiry into the death of Malcolm Smith the Commission received a

valuable paper from Mr Mark Robertson, the Director of the NSW Probation and

Parole Service, in which he described the then policy of the New South Wales

Service, which he supported, of a generalist approach, in which officers worked

with all sections of the community. He supported the recruitment of Aboriginal

officers, not to specialise in work with Aboriginal people but to make the Service

more representative of the community as a whole, and hence more sensitive and

effective in dealing with its clientele, including Aboriginals. He did however

see benefit in Aboriginals serving Community Service Orders working in

Aboriginal community improvement programs, and for developing Attendance

Centre programs in conjunction with Aboriginal communities. However he saw

the need for Aboriginal communities and organisations being given the resources

necessary to set up effective community-building and improvement programs of

a general nature, rather than funding them to undertake a formal system of

supervision of Aboriginal offenders.

The Commission saw heartening evidence of this situation beginning to change

during the course of the Commission. In particular the inquiry into the death of

Malcolm Smith acted as a catalyst for a review of the relations between the New

South Wales Service and their Aboriginal clients, and indeed Aboriginal

communities. After my report appeared, Mr Ross Lay, the officer in charge of

the Service in Tamworth, who had had official contact with Malcolm, was

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stimulated by reading it to propose a seminar of the Service on the issues

underlying Aboriginal deaths in custody.

NSW Draft Policy on Aboriginal Probation and Parole

Following that seminar, a Working Party was formed which developed a draft,

which after comment will form a basis from which a Probation and Parole

Service Aboriginal Policy will be developed. This draft was circulated on 14

February, 1991, and it is worth noting the very constructive character of the draft

Policy, which goes a long way to meeting the needs noted by me during my

inquiries.

The draft Policy recognises that while a common set of humanitarian principles

should apply to the supervision of all offenders regardless of race, procedures

and practices specific to the supervision of Aboriginal offenders are necessary to

achieve equality of access to services and equality before the law. It proposes

principles and strategies for adoption in the various activites of the Service.

In relation to assessments for p r e -s e n te n c e r e p o rts, the draft Policy recognises

that Aboriginal people's mistrust of non-Aboriginal agencies, and the fact that

Probation and Parole Officers are not always culturally aware, impose

restrictions on assessments, to overcome which certain strategies are proposed.

These include the conducting of interviews wherever possible outside service

offices and in the Aboriginal community, and the presence of an Aboriginal

person at the initial interview, at which the question of who will be present at

later interviews will be determined. The client will read the report when it is

prepared, or have the contents and recommendations explained by an Aboriginal

person who is suitable to do so.

Emphasis is placed on exploring kinship ties rather than concentrating on the

nuclear family, and on the avoidance of stereotypes. Cultural factors must be

taken into account in relation to matters such as education, employment, and

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fines, and in the selection of organisations for Community Service and other

matters.

In relation to assessments for p a r o le re p o rts emphasis is placed on the importance

of explaining that many Aboriginals do not meet the 'normal criteria for parole',

that conditions should be flexible rather than fixed, and that it is unrealistic to

impose conditions requiring no consumption of alcohol or dissociation from

community and family members.

It is proposed that a recommendation be made from the Probation and Parole

Service to appoint Aboriginals to the Serious Offenders Review Board and the

Offenders Review Board.

In relation to s u p e r v i s i o n , emphasis is again given to considering the

appropriateness of conditions attached to probation or parole to the circumstances

of Aboriginal life. Most importantly in relation to supervision, it is proposed to

increase Aboriginal community participation in decision making about offender

management and supervision. Services would be tailored to local and regional

resources and the needs of the Aboriginal community and individual offenders.

The concept of an 'Aboriginal community standard' would be developed through

the establishment of Aboriginal Community Justice Panels. There would be

networking with Aboriginal community organisations and a use of the resources

of organisations and departments with Aboriginal Units. The potential for

contracting offender management to appropriate Aboriginal organisations would

be investigated. Contact for Aboriginal offenders could be facilitated by

interviewing and reporting at an Aboriginal Community Office such as the

Aboriginal Legal Service. Steps would be taken to ensure that Aboriginal

offenders understand the process for complaint against a supervising officer who

may be culturally unaware.

For s t a f f re c ru itm e n t, a target of 2% Aboriginal representation in permanent

positions by 1991 is proposed for the Service, with a number of identified

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positions for which Aboriginality would be an essential qualification, and the

selection committee for which would include at least one Aboriginal person from

the local community. There would be Aboriginal Liaison Officers, and identified

Aboriginal Probation and Parole Officers who would work predominantly with

Aboriginals. It is particularly noted that a criminal record should not necessarily

be an impediment to employment, each person being dealt with individually, and

the views of the local Aboriginal Community obtained. A special effort would be

made to employ Aboriginal women.

The draft Policy also contains a number of proposals for taking account of

special problems of Aboriginal women offenders. It also proposes a number of

strategics to ensure that Aboriginal culture awareness training is mandatory for all

staff.

The draft Policy supports the concept of Aboriginal Community Justice Panels

along the lines of panels already operating in Victoria, with the following

objectives:

(i) to minimise the contact of Aboriginal persons with the Criminal Justice

System through working with police on appropriate diversionary

programs;

(ii) to assist police in ensuring the safety of Aboriginals in police custody;

(iii) to provide assistance to Aboriginals involved in court processes;

(iv) to provide advice to courts on sentencing matters in relation to

Aboriginals;

(v) to advise on and participate in the supervision of community based

sentencing orders, pre-release programs and parole orders;

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(vi) to assist prison authorities in ensuring welfare of Aboriginals in custody;

(vii) to assist Aboriginals in the post custodial stage.

The proposal is that two panels would be piloted, one at Redfem and one at a

country location, provided there was relevant community support for the

proposal. Appropriate training for panel members would be provided and the

principle of fee for service adopted.

The policy is most constructive and is fully in conformity with the needs as they

have appeared to the Commission. It is to be hoped that the proposals will be

adopted and adequately resourced.

Post-release Program for Aboriginal Ex-Prisoners

Another valuable initiative is the Post-release Program for Aboriginal Ex­

Prisoners (PRP), which began in New South Wales in September 1989 as a pilot

scheme to fund Aboriginal community-based organisations to run centres which

would offer education, training and job placement services for Aboriginal ex­

prisoners. The overall objectives of the program were to reduce recidivism and

imprisonment rates among Aboriginal people by redressing some of the social

disadvantages they face, especially those deriving from lack of employment,

education and training. The centres were intended to provide services which

included:

(i) basic education in literacy and numeracy on an individual basis for the

participants assessed as needing it;

(ii) pre-training or training programs in vocational skills conducted in liaison

with a formal training centre such as TAPE or Skill Share;

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(iii) access to certificate, diploma or degree courses from recognised tertiary

education institutions;

(iv) job seeking and job placement services, including visits by officers of

the Commonwealth Employment Service to discuss employment

prospects with participants, assistance in preparing job application letters

and presentation at job interviews, and direct job placement assistance

through the CES and other employment agencies.

To implement these objectives, each funded centre was to employ at least one

Aboriginal project officer whose responsibilities included visiting prisons, courts

and legal centres to recruit participants; liaison with prison authorities, police and

the Aboriginal Legal Service; liaison with local education bodies to secure

training arrangements for participants; liaison with Aboriginal vocation officers,

the CES and other agencies to secure post-program employment or further

training for participants; and the keeping of relevant records.

PRP is under the oversight of an interdepartmental committee consisting of

representatives of the NSW Department of Corrective Services, the NSW Office

of Aboriginal Affairs and ATSIC. Initially four centres were approved for

funding, and at the end of the first year two of these were functioning

successfully. One was based in Towri, an Aboriginal hostel in Bathurst which

normally catered for students attending the Mitchell Campus of Charles Sturt

University and Bathurst TAPE. The other was at Bennelong's Haven, a drug

and alcohol rehabilitation centre on the site of Kinchela, the former APB Boys

Home at Kempsey. At these two centres the program was sufficiently

successful to lead to a decision to fund two more centres, one at Armidale and

one at Dubbo. Although two of the centres originally funded had not succeeded,

an evaluation of the successes and failures led to conclusions to be applied in

further development of PRP. These were that:

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* any organisation funded should have a sound administrative

structure from the outset and be capable of taking on the required

program without placing any major strains on its existing

operations;

* the organisation should be experienced in running government-

funded programs on an independent basis, and be willing to take

responsibility for its own affairs. (K Windschuttle E v a lu a tio n

R e p o r t S e p te m b e r 1 9 8 9 -S e p te m b e r 1 9 9 0 ).

Community Justice Panels in Victoria

In Victoria the most encouraging developments in probation and parole work, as

in other aspects of criminal justice, have centred around the development of

Community Justice Panels, which were officially recognised in July 1988. The

wide-ranging activities that have grown up around some of these panels,

particularly that in Echuca, have made their activities relevant to a number of

chapters of this report. For a general account of the Panels readers are referred to

Chapter 18 where they are discussed in relation to Aboriginal/police relations,

and their general organisation, strengths and needs arc addressed. However it is

to be noted in the present context that they were from the beginning intended to

provide a service to Community Based Corrections. The Office of Corrections,

which administered community service orders, and Aboriginal communities both

desired to provide a more culturally relevant and supportive service to Aboriginal

offenders and members of the offenders' family clan group. Amongst other

functions, panel members would, in the event of an offender being found guilty,

provide a pre-sentence assessment, offering an outline of the responsibilities the

panel was prepared to undertake in relation to the offender, eg

- supervision

- direction community work assignments

- co-ordinate personal development and/or educational programs

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- provide progress reports on individual offenders

- provide disciplinary action when required.

Following successful completion of a Community Based Corrections volunteers

training course, which has been developed by TAPE and is expected to be

funded by DEBT, panel members will become gazetted community corrections

volunteers.

The potential of the program is demonstrated by the fact that in over a year after

the institution of the panel in Echuca, not one Aboriginal had been sent to prison.

As I indicate in Chapter!8, the critical issue is whether the Government will

supply the necessary resources, in terms of equipment and remuneration, to

maintain the program. It would be false economy not to do so.

DECRIMINALISATION OF DRUNKENNESS

Drunkenness

The I n te r im R e p o r t of Commissioner M uirhead recommended the

decriminalisation of drunkenness in those jurisdictions where it had not already

occurred. New South Wales had been a leader in this field. Hence in relation to

the States with which I am concerned, the recommendation was effectively

addressed to Victoria and Tasmania. In Victoria the topic was referred to the

Law Reform Commission, which made detailed proposals for decriminalisation.

The three deaths into which I inquired in Victoria were all cases in which the

detention arose out of drunkenness and I dealt at length in the reports with the

absurdities to which the criminal treatment of public drunkenness gave rise.

While drunks were not being penalised as heavily as in earlier years, the

inappropriateness of dealing with drunkenness through policing was illustrated

by a Swan Hill police officer's description of how the handling of a drunken

person might escalate.

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'You know, drunk is quite sufficient for most. They give you a

bit of lip. They might get drunk and disorderly and if they got a

bit more they might get a language.

Question: Get the trifecta?

Answer: The trifecta. It builds up. "Hamburger with the lot"

they call it.'

If a civilian operating a pick-up van from a sobering up centre was given 'a bit of

lip' by a drunk, he would ignore it and simply try to placate the drunk and get

him or her into the van as peacefully as possible. Because a policeman is

involved, the ramblings of the drunk are treated as a challenge to authority and

made the subject of charges.

In my three Victorian reports I repeated the recommendation of Commissioner

Muirhead for the decriminalisation of drunkenness and linked it to the

implementation of the recommendation of the Law Reform Commission. At the

same time as the reports were released, the Government introduced legislation to

Parliament to decriminalise drunkenness.

While being drunk in a public place is not of itself an offence in Tasmania, it is

an offence under s.4 of the P o lic e O ffe n c e s A c t 1935 to be found in a public

place drunk and incapable of taking care of oneself, or drunk and behaving in a

disorderly manner, or drunk in charge of any vehicle or animal or in possession

of firearms and ammunition or of any other dangerous weapon. The two

offences of 'drunk and incapable of taking care of himself and 'drunk and

disorderly' thus cover most cases of public drunkenness.. The Tasmania Police

Force recognises that to simply lock dmnk persons up is only to create further

problems for both the law enforcement body and the offender, and some years

ago made a submission to the Government for the amendment of the P o lic e

O ffen ces A c t accordingly.

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It is to be hoped that Tasmania will follow the lead of other States, including the

recent decision of the Victorian Government based, inter alia, on the detailed

report of its Law Reform Commission.

The success of decriminalisation depends on the establishment of sobering-up

centres which provide an appropriate form of care for person/persons found

drunk in public places. This matter is discussed in Chapter 26, Alcohol and

Drugs.

Offensive language

Over and over again during this Commission there has been evidence about

Aboriginals using the term 'cunts' in relation to police, usually with the result of

a charge of offensive behaviour or at all events strong disapproval. I have often

been led to wonder how police could continue to remain offended by a term they

heard so often and so routinely.

The evidence in the Gundy hearing gave several glimpses of the fact that, as one

would expect, it is a term in common use amongst police themselves. When

Constable Judd was shown a photo of Porter he reacted 'That's the cunt that did

it'. Shortly after Mr Gundy's death Sergeant Dawson, referring to Mr Gundy’s

seizure of his shotgun, was asking 'Why did the silly cunt do it?'

It is surely time that police learnt to ignore mere abuse, let alone simple 'bad

language'. In this day and age many words that were once considered obscene

have become commonplace in many circumstances, and are in common use

amongst police no less than amongst other people. Maintaining the pretence that

they are sensitive persons offended by such language - 'obscenities', as their

counsel described such language to the coroner's jury - does nothing for respect

for the police. It is particularly ridiculous when offence is taken at the rantings of

drunks, as is so often the case.

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Charges about language just become part of an oppressive mechanism of control

of Aboriginals. Too often the attempt to arrest or charge an Aboriginal for

offensive language sets in train a sequence of offences by that person and others

- resisting arrest, assaulting police, hindering police and so on, none of which

would have occurred if police were not so easily 'offended'. It particularly

brings the law into disrepute when police use similar language, often with racist

overtones, to Aboriginals.

As I pointed out in the last section, when discussing the decriminalisation of

drunkenness, language which would be ignored by civilians looking after drunks

is treated as criminal when used to police. Sometimes this is justified on the

basis that the language is a challenge to the authority of police. But the ravings

of drunks cannot be regarded as a serious challenge, and in any event a peaceful

challenge to authority is not an offence in this country.

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PART FOUR - ACTION FOLLOWING DEATHS

CHAPTER 9 - DISCOVERY OF BODY

RESUSCITATION AND TREATMENT

In my R e p o r t o f th e In q u iry in to the D e a th o f P e te r W illia m s and other reports I

commented on the lack of clarity in custodial officers, both police and prison

officers, about the subject of resuscitation. It is unfair to them and to persons in

their custody to leave them without a clear understanding of when and how

resuscitation should be attempted, and without training in how to carry it out.

It is often an important priority to secure the scene of a death and preserve it for

investigation, but this should not inhibit any possibility of saving life. In

particular all officers who have the custody of prisoners should be trained in

resuscitation, and in when to employ it. Reaction to the discovery of a body

hanging requires particularly clear instructions, as this is the commonest form of

self-inflicted death in custody.

In only one case which I investigated, the death of David Gundy, were there

gunshot wounds, and the officers of SWOS acted with commendable speed and

diligence to give first aid.

IMPORTANCE OF OPENNESS

A number of the inquiries brought out the serious consequences that can flow

from a failure on the part of authorities to be open about the circumstances of a

death in custody. The most striking example was the death of Peter Campbell,

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where the relatives did not learn how their son and brother had died until the

inquest months later. A death in custody is usually a matter of great anguish and

distress, not only to the immediate family, but, in the case of Aboriginals, to a

wider kinship and community network. There is often great suspicion. This is a

natural reaction in view of the great warmth that commonly exists in Aboriginal

extended families, the fact that few people are ready to believe that someone close

to them would have committed suicide, the history of Aboriginal and police

relationships, and the shattering and bewildering effect of a loved one

disappearing into inaccessible police premises, apparently in good health, and

being delivered back as a dead body.

Unless there is a sympathetic and full and open communication of all the relevant

facts, and an obviously genuine and thorough investigation of the matter by

police and coroner, suspicion will grow. When families start to exchange

experiences suspicion will grow exponentially. It is apparent that these

circumstances occurred in relation to many deaths in custody, and contributed

greatly to the concern which led to the establishment of this Commission.

It is of course of great importance that any information published should be

accurate, a point brought home in the case of Peter Williams, where considerable

misinformation was published in the local press, attributed to officers of the

Corrective Services Department. However what is known should be made

available immediately to those with a legitimate interest, which in the case of an

Aboriginal should be taken to include the family and care-givers in the Aboriginal

community and the Aboriginal Legal Service.

COMMUNICATION WITH RELATIVES

The way in which the news of a death in custody is communicated to relatives,

and the openness and frankness with which their inquiries are answered, are of

crucial importance if bereaved families are to come to accept the facts, and the

initial suspicion is to be dissipated instead of left to fester and spread. The

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notification to the family must not be treated as some meaningless ritual, another

duty to be ticked off in the appropriate box. It must have regard to the fact that

the notification sets off an agonising process in which the family has to come to

terms with what has happened, and with whatever implications it has both for

their past relations with the dead person and for the future lives of the survivors.

These implications may be particularly painful if the death was self-inflicted.

To withhold information is cruel and destructive of the family's ability to adjust.

To treat the pendency of a police investigation or coronial inquiry as a reason for

withholding information is self-defeating. It merely breeds suspicion, which the

subsequent inquiry then has more difficulty in dispelling.

No one likes communicating painful news, and no one connected with a death

likes facing a suspicious relative. Too often, as in the case of Mark Re veil, the

task of giving news of the death to relatives is passed to people who know

nothing of the facts beyond a sentence or two of instructions. Often they do not

know the relatives and the task is simply a painful chore for which they are ill-

equipped. They can be polite and utter soothing words, but they cannot answer

detailed questions, or vouch for the truth of what they say, and suspicion starts

to grow.

When those who have been directly involved are confronted by relatives,

sometimes far away at the end of a long distance telephone line, they may feel

threatened by the emotion and the doubts implicit in the inquiries. They may take

refuge in unconvincing excuses for denying information - 'investigations are not

complete', 'the matter is sub-judice until the coroner gives his decision', 'we

cannot give information over the phone', 'how do I know who you are?' - all of

which is seen as evasiveness by the inquirer. 'What have they got to hide?' Or

the officials may become defensive, impatient, or rude, and dismiss the inquirers

as unbalanced or unreasonable, or in terms of some derogatory racial stereotype,

or as ungrateful - Ί did everything I could for that young fellow and what do I

get for it?'. The relative becomes hurt, angry, and again, suspicious.

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Breaking the news requires skill and sensitivity and openness. An untrained

person is likely to feel very uncomfortable, a feeling which will soon be picked

up and possibly misinterpreted by the relatives. In the case of Aboriginal deaths

it is extremely desirable that there should be an Aboriginal person involved in the

notification, who will have much more chance of understanding and responding

to the reactions and concerns of relatives than a non-Aboriginal.

All this applies in relation to members of the general community, but it applies

with special force to Aboriginal people because of the large number of

Aboriginals in custody, their historical alienation from and distrust of law

enforcement authorities, the closeness of Aboriginal families, and the warmth

and breadth of the kinship network that surrounds each individual.

VIEWING THF. BODY

There should be an opportunity, if the relatives wish, to see the body at a very

early stage or have their representatives see it. One matter which gave very great

concern to the relatives of Lloyd Boncy was that the body was whisked out of

town within an hour of being discovered, and before any attempt was made to

notify a relative. Sometimes the sight of the body may be very distressing, but

the choice whether it is seen or not should be that of the relatives. They may well

nominate someone else to look at it on their behalf, but there should be an

opportunity to see whether the body bears any marks of violence or whether

there are other suspicious circumstances. Obviously restrictions may have to be

placed on the viewing for the purpose of ensuring that there is no disturbance of

possible evidence, but this does not justify a blanket refusal of access. Excessive

restrictions, as were imposed on those who went to see Lloyd Boney's body in

Bourke, will defeat the purpose and engender suspicion that there is something to

hide.

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Following the Lloyd Boney inquest the Coroner recommended that the

Commissioner of Police should instruct police that, where possible, relatives

should have the opportunity of identification of deceased persons as soon as

practicable after it is accepted that death has occurred. The recommendation was

referred to the Coronial Investigation Unit to develop guidelines for identification

of deceased persons, but no result became known to this Commission. The

recommendation speaks of 'identification', but this is really a separate issue to

inspection of the body to see what happened.

IDENTIFICATION OF THE BODY

A necessary but painful task is the identification of the body. It should go

without saying that the delicacy of this task requires great sensitivity in selecting

someone to carry out the identification, and, particularly if someone likely to

suffer severe distress has to be used, in selecting the circumstances of

identification. However the extraordinarily insensitive way in which Mark

Quayle's brothers were called on to identify his body in the main street of

Wilcannia shows that this point must be emphasised.

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CHAPTER 10 - POLICE INVESTIGATIONS

BASIS OF POLICE INVESTIGATION

Whether a death occurs in police or prison custody, or in a juvenile institution, ii

is police who are called in to investigate. Depending on the circumstances, the

same investigation may serve a number of purposes: the detection of crime, the

preparation of the brief for the coroner, the detection of breaches of duty on the

part of custodial officers, the investigation of a complaint against custodial

officers, and sometimes other purposes such as a departmental shooting

investigation. Whatever the formal basis of the inquiry, there is required an

appreciation of the need to satisfy the concerns of relatives and of the public

about what happened in circumstances from which people other than custodial

officers are usually completely cut off. A person in police custody is at the

mercy of police, and by the nature of things it will almost always be the case that

the only evidence after a death is the evidence of the police officers who were

responsible for the prisoner. In these circumstances it is a completely inadequate

approach to simply ask those officers what happened and accept their answers

without testing. The same applies in the prison situation.

The matter needs to be approached on the basis that the investigation will

eliminate the possibility, so far as that can be done, that wrong doing, ill-

treatment, or official or unofficial policies or practices contributed to the death or

allowed the risk of injury. One object that should always be borne in mind is not

just the minds of senior police officers that have to be satisfied, but the

reasonable, and perhaps at times over-sensitive, suspicions of outsiders who do

not know what it is like inside the police station or prison. The second important

objective is to see what can be learnt from the death so that similar deaths may be

prevented in the future.

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The Commission was informed by counsel for the New South Wales

Government that in that State all deaths are now approached as potential

homicides. This should assist in securing an appropriately critical approach.

INDEPENDENCE OF INVESTIGATORS

Shane Atkinson’s death was one of many that demonstrated the problems of

other police, particularly those within the same local command structure, having

responsibility for conducting inquiries involving the conduct of colleagues for

coronial or Departmental purposes. Problems are particularly acute when the

investigating officer has special reason to identify with those investigated. In the

Gundy investigation Superintendent Harding identified strongly with the SWOS

officers with whom he had served as a part-time SWOS officer. When he was

being cross-examined about his failure to take up the question of the lawfulness

of SWOS actions and their compliance with Police Instructions, he was asked

'But surely part of your concern would have been to determine whether the

police had acted reasonably?'. He replied 'Yes, but you don't leave your

common sense outside the door when you come to work. I k n o w w h y th ey d id

th ese th in gs a n d to b e p e r fe c tly fr a n k , I h a ve d o n e them m y s e lf a n d I u n d ersta n d

the p h ilo so p h y beh in d it' (emphasis added).

This helps to explain why no serious attention was given to the lawfulness of the

SWOS raid on Gundy's home. Superintendent Harding said that the issue of

whether police acted lawfully in forcibly entering the premises was 'a subject of

discussion' during his investigation, but the actual issue of unlawfulness was not

completely addressed. Asked whether it was a fairly fundamental matter for him

to consider in his investigation he said 'In this sterile atmosphere most certainly

but out in the field where it's happening, no’. He said that in the given

circumstances operational expertise overrides the law.

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It is not a matter of whether the investigator deliberately favoured those he was

investigating, but a question of whether with his background he was able to look

objectively at the conduct of people with whom he so closely identified.

POLICE INVESTIGATING POUCH

However the problems do not arise only where the investigator has a special link

with those he is investigating. In my experience as a Royal Commissioner I have

become very conscious of the existence of a 'police culture' - a set of ingrained

attitudes and ideas that arc widespread in the police force and are very resistant to

change. There is a very great blindness in that culture to the problems of police

investigating police, and a very great reluctance to acknowledge the possibility of

wrong-doing by police. In Chapter 18 I discuss the general problem of police

accountability; here my observations relate specifically to police investigation of

deaths in custody.

Again and again deaths in custody have been subjected to no really independent

investigation and the brief for the coroner has been prepared by the very officer

who was in charge of the prisoner and whose conduct should have been subject

of scrutiny. Even when investigation was under the control or supervision of a

separate unit like the Internal Affairs Branch, the officers who come in have

sometimes acted with a similar reluctance to contemplate police wrongdoing, or

even as though their function is to defend the local police and demonstrate their

innocence, rather than to carry out an independent investigation.

There can be great facades of independent supervision which in practice mean

absolutely nothing. In the inquiry into the death of Arthur Moffatt counsel for

the police argued that the fact that the officer preparing the coronial brief was the

officer who had been in charge of the prisoner was not objectionable, because he

was under the scrutiny of a host of independent eyes - a doctor who came to

examine the body, a CIB detective, the inspector in charge and the Internal

Investigation Branch. One by one the relevant witnesses were called. The

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doctor said that he only certified death and was not concerned to examine the

body; the detective said that his only function was to take photographs; the

inspector said that his task was purely administrative and not investigative; and

the Internal Investigation Branch representative said that his function was to

'oversight', which turned out to mean that he had just accepted what he was told

by the officer in charge. It is almost comical at times to see how everybody

passes the buck for such investigations.

OVERSIGHTING OR REVIEWING OF INVESTIGATIONS

The attempt to secure a high standard of investigation through 'oversighting’ by a

body such as an Internal Affairs Branch is not necessarily successful as the

example quoted in the last section shows. Much still depends on who is in

charge of the investigation and the oversighting, and the frame of mind they

bring to bear. The strong inhibitions imposed by police culture still have to be

overcome.

Because of what had happened in the Lloyd Boney investigation the coroner

recommended:

'That the Police Commissioner in the appointment of his

investigator to undertake an investigation on behalf of the Internal

Affairs ensure that such investigators have a demonstrated

commitment to independence of mind and objectivity to ensure the

proper oversighting of other police investigations.'

In responding to this recommendation, the New South Wales police referred to

Circular 89/31, issued on 10 February 1989, which revised procedures for

investigations into custodial deaths. The circular stated:

'The Command Region Internal Affairs shall assign a

commissioned officer to oversight the investigation into the death

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... the "oversighting" officer shall attend the scene of the death as

soon as practicable and his role shall be to independently oversight

the investigation. It is not his function to carry out the actual

investigation but to ensure that all necessary action is taken. This

oversighting role shall be maintained by the Police Internal Affairs

Branch until the conclusion of the Coronial proceedings.'

It was advised that the title of "oversighting" officer had been changed tc

"reviewing" officer, but the concern of the coroner relating to the type of person

appointed to oversight was not addressed. The quality of the investigations into

deaths in custody remains a matter of concern in all three States, even where

much improved instmctions have been issued.

DEFICIENCIES IN INVESTIGATION

It is remarkable how in police investigations of police, or even of other officials

like prison officers, the need is not seen for the same scrutiny of evidence as in

other cases. It is elementary in general crime investigation that a suspect is

interviewed quickly, and that if there are a number of people involved steps are

taken to prevent them conferring and putting together an agreed version. I doubt

that this has been done in any of the deaths in custody which I have investigated.

In most cases police were not even interviewed but allowed to write their own

statements at leisure, the leisure being any time up to a week or a fortnight before

the inquest. Even where police have been interviewed, steps have rarely been

taken to prevent prior discussion and agreement between them, and what they

say has not been tested or probed.

Obviously available potential witnesses, like fellow prisoners in the same wing

as Peter Campbell, or the other prisoners in Tamworth Police Station on the night

of Bruce Leslie's custody, may not even be interviewed.

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Sometimes the problem is too narrow a focus. Police inquire only whether there

are 'suspicious circumstances' or indications of criminal conduct. Much more is

required following a death in custody if the concerns of the public, and

particularly of relatives, are to be satisfied.

REPORTING THE RESULT

An investigation should culminate in a report which makes clear what

investigation was carried out, what issues were investigated, and why favourable

or unfavourable findings were made. Unless there is such a report, the matter

rests on the unsubstantiated statement of an investigating officer, whose reasons

cannot be examined, and who can at a later date be called to account only by

redoing the investigation.

The size of the report will obviously vary according to the circumstances and

some may properly be brief. A major and controversial investigation like that

into the death of David Gundy, carried out for the purposes of the coroner, of the

Police Department and of the Ombudsman investigating a complaint, obviously

required a substantial examination of the issues. It was a serious criticism of the

whole process of investigation into that death that it led to no written report

which recorded and analysed what had happened, and which showed that the

issues had been properly considered and decisions reached about them for good

reason. Such a written report, which can be subsequently called for and

examined, is necessary if police accountability is to be a reality. The attitude of

the chief investigator, Superintendent Harding, epitomised the escape from

accountability. His theme in the witness box was 'Well, you tell me where police

were wrong?'. It was he who should have shown, in a proper report, which

could be examined, whether police were right or wrong.

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CHAPTER 11 - DEPARTMENTAL INVESTIGATIONS

THE NEED FOR DEPARTMENTAL INVESTIGATIONS

The need for departmental investigations remains notwithstanding the fact that

there will be a coronial inquiry. There should be a review of procedures and the

conduct of officers at the earliest opportunity, with a view to taking all possible

steps to prevent an occurrence. Inquests take some time to come on, and issues

of safety should not wait on the inquest.

Moreover there may be aspects of concern to the Department which go beyond

the coroner's sphere of interest.

PRISONS

In the earlier prison deaths which I investigated there seems to have been no real

departmental investigation at all. In the latest, that of Max Saunders, there was

such an investigation. While I did not find myself fully in agreement with its

identification of problems and conclusions, at least it did show a real attempt by

the department to leam from the experience.

New South Wales now has a protocol covering what should happen following a

death in prison.

JUVENILE INSTITUTIONS

There was no departmental investigation of the death of Thomas Carr, which

occurred in Minda Juvenile Detention Centre. The coroner made a

recommendation that the relevant authorities consider the feasibility of a change

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in the availability of medical treatment at night at Minda, but the recommendation

was never conveyed to anyone who had a responsibility to consider it.

The need for a departmental investigation was certainly not obviated by the police

investigation, which was very narrowly focussed and treated the death as a

matter of no urgency or importance. This was probably standard practice at the

time but after all the concern about deaths in custody there would be no excuse

for such an approach today. For deaths in police custody a very detailed protocol

for independent investigation has been worked out within the police force and

embodied in instructions. While the same issues of independence would not

necessarily arise when police investigate juvenile institutions, it is important that

there should be instructions ensuring that the investigations are carried out

thoroughly, so as to remove any concerns about neglect or inadequate practices

as well as about foul play.

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CHAPTER 12 - CORONERS

CUSTODIAL DEATHS

The special character required of an investigation and inquiry into a death ir

custody has long been recognised. Waller's C o r o n ia l L a w a n d P r a c tic e (2nd

edition, 1982), which has been widely used in Australia, cites the C o r o n e r 's

M a n u a l (4th edition, page 45) which summarises in measured terms the aim ol

holding inquests into deaths in custody:

'It is very desirable that no suspicion should arise in the public

mind that deaths in Government Institutions such as gaols are

made the subject merely of investigation by Government officers,

and that therefore, when deaths occur, it is not likely that

everything which reflects on the management of the institution will

be allowed to come into the public view. The public should be

satisfied that the prisoner or confinee came to his death by the

common course of nature, and not by some unlawful violence or

unreasonable hardship put upon him by those under whose power

he was while confined. There should not be given an opportunity

for asserting that matters with regard to deaths in public

institutions are "hushed up'".

What goes on inside a gaol or police cell is hidden from public view, and after a

death very frequently the only surviving witnesses are the custodial officers.

From a relative's point of view a live son, daughter, husband, wife or other

relative goes into custody and a body is returned. There are no independent

witnesses. Relatives and the public are entitled to be suspicious unless there is a

full, open and impartial inquiry and the greatest possible access given to all

information on the part of those representing the family. The issues go far

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beyond questions of homicide or deliberate infliction of physical harm; they

extend to the care taken of a prisoner, often one who is intoxicated or under the

influence of drugs, and to the psychological treatment of the prisoner.

In the In terim R e p o rt Commissioner Muirhead said:

The anguish of many relatives of those who die in custody, i.e.,

in the 'care' of Government agencies, and the fear and suspicions

which follow are not generally comprehended. The situation

demands the most thorough investigation of facts and

circumstances by skilled investigators who hopefully may be

regarded as impartial, autopsies performed by expert forensic

pathologists followed by thorough coronial inquiries conducted by

legally trained Coroners under modem legislation which enables

such Coroners to make remedial recommendations. In all these

processes there must be sensitivity to the situation of the families

of the deceased.

'If this degree of thoroughness, the implementation of such

expertise, had been current in Australia over past years, it is

arguable that the necessity for establishment of this Royal

Commission would not have arisen. It is for this reason, which

appears to be widely misunderstood, that the Terms of Reference

require investigation into inquiries made subsequent to death'.

OPENNESS

There is a very great temptation on the part of custodial authorities to be secretive

about a death in custody. Instead of regarding relatives and their representatives,

such as the Aboriginal Legal Services, as genuinely concerned people who want

to know what happened, there is a tendency to treat them as trouble makers to be

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denied knowledge in case they misuse it, or (patronizingly) as people who

should not be told things that might upset them.

A particularly undesirable practice is the use of the coroner and the pending

coronial inquiry as a shield behind which custodial and investigative officers

hide. Relatives may be told that the body cannot be seen because it is in the

charge of the coroner; the site cannot be visited because it is the subject of

coronial investigation; information cannot be given out because the matter is in

the hands of the coroner; nothing can be said until the coronial investigation is

complete and the inquest over. This use of the coroner's name may have taken

place without any reference to the coroner, who may well have been quite

unaware of the fmstration being suffered by relatives and their representatives.

CO-OPERATION WITH RELATIVES AND ABORIGINAL LEGAL SERVICE

In my reports I referred to the desirability of those who are conducting

investigations making contact with relatives and learning of their concerns, so as

to be sure that the investigation addresses them. Similarly whoever is appearing

to assist the Coroner should seek the views of the representatives of the family as

to what issues should be addressed, rather than treating them as opponents or

parties to be kept at arm's length.

There should also be the earliest possible access on the part of the family, usually

through their legal representatives, to documentary material, witnesses'

statements, and, where witnesses are in custody, to the witnesses themselves.

The investigations of police and coroner should take priority in the sense that

they should have the opportunity to carry out their interviews of witnesses before

others speak to them. However once that is completed witnesses should be

available, just as they would be if they were not in confinement.

It is wrong to suggest that the interviewing of witnesses and the sighting of

relevant exhibits by representatives of the family is of itself a threat to the

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integrity of police or coronial inquiries. Clearly such inquiries are entitled to an

immediate priority, so that the scene of death and exhibits can be secured from

interference pending examination, and so that witnesses can be interviewed

before their evidence is contaminated, but thereafter there should be free access to

parties with a legitimate interest. Any other approach will justifiably breed

suspicion.

In some cases the family will wish to have someone present at the autopsy,

perhaps their own forensic pathologist or perhaps a lay person who will be able

to see the state of the body and what is done. Again this should be facilitated,

subject to not allowing any interference with the work of the forensic pathologist.

The family should be involved in the preparation for the inquest. The most

satisfactory inquests that the Commission has investigated have been those where

there was collaboration from an early stage between those assisting the coroner

and the representatives of the family. This has ensured that all the witnesses

whom the family consider relevant are interviewed and if necessary called and

any tests or other steps desired by the family are attended to.

Apart from the demands of humanity, there are practical reasons for treating

relatives in this open way. If there has been foul play or neglect, the more critical

eyes of the sceptical relatives may help expose it. If there has not, this may

become obvious. In any event openness will be of value in reducing suspicion

and disputation.

POUCH INVESTIGATION FOR CORONER

In most of the cases which the Commission has investigated the coronial inquiry

has been largely shaped by the preceding police investigation, although there

have been recent exceptions in New South Wales where an independent counsel

has been briefed at an early stage, and together with an instructing solicitor from

the State Crown Solicitor's Office, has taken control of the investigation for the

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coroner. Often the inquest has consisted of no more than a perfunctory running

through of a brief supplied by police. Unsatisfactory coronial inquiries have

usually been the prisoner of inadequate police inquiries. If a police investigatior

is inadequate, there is often little the coroner can do to retrieve the situation when

he comes to consider the matter. In these circumstances the integrity of the

coroner simply lends respectability to the inadequate investigation. If we are to

continue with the system whereby deaths are investigated for the coroner by

police, the quality of police investigation is of tremendous importance.

In a submission to the Commission the Victorian State Coroner, Mr Hallenstein,

realistically stressed that a coroner is inevitably dependent on experts. Two

particular areas are the investigation and the autopsy. So far as the latter is

concerned, the establishment of the Victorian Institute of Forensic Pathology is a

major investment in ensuring professional independence and competence, based

on highly specialised study. So far as investigations are concerned,

Mr Hallenstein said:

'In relying on the Victoria Police and other expert investigators the

State Coroner assumes absolutely and has never been given any

reason to doubt the honesty and integrity of investigation. If a

situation were ever to arise that the field investigation did not

proceed with the utmost integrity then it is probable that State

Coroner and Deputy State Coroner will be sufficiently close to the

investigation process to identify and rectify any problem either

before or during inquest.'

However the Arthur Moffatt inquiry, and other inquiries conducted by the

Commission, show that there are very great problems when police are called on

to investigate police. I have already directed attention to this subject in Chapter

10 in discussing the general subject of police investigation of deaths in custody.

164

It is important that all investigating police should be clear about the purpose of

their investigation of a death in custody for a coronial inquiry. It is wider than in

many police investigations. The danger of confusion was illustrated by the chief

investigator of Malcolm Smith's death, who defended the inadequate police

investigation by saying: 'The Police function is to investigate crime. There

must be some evidence that a crime has been committed before there can be a

criminal investigation'. This proposition must be emphatically rejected as a

limitation on the investigation of a death in custody for a coroner.

Important issues are often excluded by the very narrow focus of police

investigations and this applies to deaths in prison as well as in police custody. In

the case of a self-inflicted death there is often concentration on showing that the

actual death was self-inflicted and a failure to inquire into surrounding

circumstances of care and supervision and safety, such as, for example the gaol

classification of a disturbed prisoner as one who does not require observation.

This is important not only for establishing responsibility for the death, but to see

whether similar situations of risk can be avoided in the future.

AUTOPSIES

Purpose of autopsies

There was a surprising lack of agreement amongst those who gave evidence

before me as to the function of an autopsy in a death in custody. At one extreme

is the pathologist who sees the function of the autopsy as simply to establish a

cause of death which can be entered on a death certificate. Next is the pathologist

who sees his or her function as to take the police report, assuming it to be prima

facie correct, and see if a cause of death can be found consistent with the police

report. It is essential that in a case of a death in custody the forensic pathologist

should proceed in a completely independent way, and amongst other things see

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whether there is anything consistent with foul play or ill-treatment. The

investigation should not be limited by the police report.

Professor Cordner, the Director of the Victorian Institute of Forensic Pathology,

reviewed numerous autopsies for the Royal Commission. He has said that the

fundamental purpose o f all autopsies is to discover and describe all the

pathological processes (including injuries) present in the deceased. This enables:

(i) the provision of an accurate cause of death,

(ii) the identification of pathology contributing to death, and

(iii) correlation with the clinical observations made in life.

A forensic autopsy has an additional purpose - contributing to the reconstruction

of the events leading to the death. It is in this area that forensic pathologists have

their particular expertise. The contribution to the reconstruction of the events is

made by a combination of:

(i) an assessment of the scene of death,

(ii) the autopsy findings.

The third major purpose is to record the findings in such a way as to put another

pathologist at a later date in the same position as the one who conducted the

autopsy. Achieving this involves detailed description, retention of relevant

organs and tissues, and photography.

Ideally the pathologist (and for that matter the coroner) would visit the scene of

death and see the body in place before it is removed, or at all events see the

remainder of the scene undisturbed. However there are judgments to be made as

to how practicable this is and whether it is worth the time and expense. In the

case of deaths in custody, it is desirable that such judgments should be made by

the coroner or the pathologist rather than by the police.

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The body is very frequently the most important piece of 'hard' evidence which

survives the circumstances of death and is not dependent on human truthfulness

and recollection. This not only makes the autopsy very important in itself, but

makes important the preservation of information about it in case controversy

resumes at some later time or new issues are raised. Extensive and good quality

colour photographs are most important, and the preservation of samples, for

example, of blood and stomach contents for further examination if required.

Tissue samples are often taken for histological examination and can be kept.

Qualifications and protocol

In the In terim R ep o rt, Commissioner Muirhead said 'Whether or not there should

be a prescribed protocol for autopsies is a matter of some debate within the

forensic pathology profession'. There is also an issue about the minimum

qualifications for persons who conduct autopsies following deaths in custody,

and these two questions are to some extent linked. On the latter question, the

Council of the Royal College of Pathologists of Australasia adopted the

following two statements at its meeting in September 1989:

1. The autopsy is a specialised procedure and should only be

undertaken by a pathologist or a medical practitioner

under the supervision of a pathologist.

2. That the public has a proper and significant interest in the

results of autopsies in homicides and suspicious deaths,

including deaths in custody, and these should only be

undertaken by full-time forensic pathologists or (because

of constraints of distance or resources) by a pathologist in

communication with a forensic pathologist. In the latter

instance it would be desirable that the pathologist had

undergone a period of supervised training in forensic

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pathology in an institution recognised by the College for

that purpose.

I have not heard evidence or argument about the practicality of implementing this

resolution, or the need to apply it to all deaths in custody.

The College does not favour the adoption of a protocol. Some aspects of this

question were debated in the James Moore inquiry, where Dr Byron Collins

expressed the view that certain steps should be taken in all cases. The matters he

commented on as lacking in the autopsy in that case being the routine weighing

of organs, the histological examination of major organs, and toxicological

investigation. The experienced pathologist who carried out the autopsy

disagreed very strongly with Dr Collins' view that the steps he enumerated

should be carried out as a matter of routine in all cases. He put the case, which

he claimed was widely accepted today, for a discriminating use of the

procedures. He also emphasised the desirability of taking into account such

matters as, in the case of James Moore, that the deceased had been under hospital

observation and treatment for two and a half weeks before his death, and was the

subject of a recorded medical history going back for some nine years. It would

seem reasonable in many cases that such matters should be left to the

professional judgment of the person conducting the autopsy, but in any case

where there is the slightest possibility of controversy all feasible investigations

should be carried out.

Mutilation of body

One problem is that the more exhaustive the investigation by the pathologist, the

more mutilation there will be of the body. This may be offensive to relatives and

is a consideration that has to be taken into account by the pathologist. However

in most deaths in custody it is desirable that there should be very extensive

investigation for the purpose of establishing whether the prisoner has been

bruised or man-handled. This may be very important in apparent suicides or

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natural causes deaths. In hangings, for example, such examinations may go a

long way to eliminate the suggestion that the person was forcibly hung, or hung

after being killed in some other way in order to conceal the original cause of

death.

One problem that has arisen in some of the cases dealt with by the Commission

has been concern on the part of the family that major organs such as the brain or

heart are buried with the deceased. In some cases it appears that they are

removed for further examination and disposed of separately and not returned to

the body. This is capable of causing very considerable anguish to some relatives

and is to be avoided unless there are strong forensic reasons necessitating it.

THE INQUEST

These days coroners usually have reasonable facilities for recording and

reproducing the evidence, and it is important that this position should be

maintained.

A matter to be noted is the reaction of one of Mr Moore's daughters to the

atmosphere in court, expressed to the Commission in private conference. She

said that it 'never felt right'; she felt that police were 'jeering, laughing and

talking'. I have no reason to think that anything unusual happened in that case.

What is important is the effect on bereaved relatives, unfamiliar with the process,

of the routine and impersonal way in which court business is often unthinkingly

conducted. This complaint echoes others that I have heard from a number of

Aboriginal relatives in various places; indeed I have heard such comments at

times about the conduct of people taking part in this Commission's hearings.

People like police and lawyers, who regularly take part in court proceedings,

including inquests, as part of their routine functions, can easily forget the very

different way in which the proceedings are seen by the relatives of the deceased

person. The making of a joke to break the tension, or other acts that may be felt

to be normal conduct by those involved, may appear to a relative in the way

169

described by Mr Moore's daughter. The unintended effect which careless

conduct may have on the feelings of relatives is a matter to be borne in mind by

all who take part in inquests.

An issue in regard to a number of inquests has been the treatment of the family

and its representatives. Regrettably there is sometimes a tendency for the person

assisting the coroner, and sometimes the coroner himself or herself, to fall into

the lawyer's habit of treating the inquiry as an adversary proceeding. The family

should not be treated in any way as an adversary, but as a group of people who

have a right to know what happened and are trying to find out what happened.

Thus if the family wants a witness with relevant information to be called, it is

quite wrong for the representative to be asked whether foul play is alleged and to

be called on to formulate an allegation. Families obviously have not had the

resources and access to make the investigations which have been made, or

should have been made, by police, and are entitled to test the police investigation

and to explore possibilities without being compelled to assume the role of

adversaries or to make allegations.

The most successful coronial inquiries I have seen are those in which those

assisting the coroner have worked in close co-operation with the family to ensure

that all relevant issues are ventilated and all relevant material put before the

inquiry.

Very often the significance of the inquest goes far beyond the particular death.

The death may be illustrative of widespread problems. In these circumstances it

is appropriate that public interest groups and other appropriate persons should

have an opportunity to participate in a coronial inquiry. This does not mean that

they should have open slather, and be entitled to go over circumstances of the

particular death which are being covered by representatives of the family. But it

is desirable that they should have opportunities to ventilate the matters of general

concern that arise out of the death.

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USE OF A JURY

An interesting example of the way in which racism is often structurally built into

institutions that on the surface are fair and democratic can be seen in one of the

arguments used by a police inspector to reassure the Aboriginal community of

Brewarrina when it was concerned about the investigation of Lloyd Boney's

death. He informed them that the family could have a jury if they wished. Given

that the inquest was to be held in Dubbo, one could have expected almost

certainly an all white jury, as Aboriginals immediately pointed out. While there

had been no experience of juries in inquests in that part of the State, WALS

informed the Commission that the few Aboriginals who appear on jury panels for

criminal trials are routinely challenged.

The only case inquired into by me in which a jury was used at the inquest was

that of David Gundy. It did not produce a particularly helpful outcome. This is

not a criticism of the jury, which did the best it could, but of the unreal

expectations put upon the jury. In the coroner's opening statement when he first

sat, he talked about introducing 'a sense of order into the matter' and attempting

to 'reduce the atmosphere of near hysteria which seems to pervade this death',

and announced that he would hear the inquest with 'that most independent of

tribunals, the jury'.

Had the function of the inquest been to determine the guilt or innocence of the

officer whose gun killed David Gundy - which in the end was virtually all that it

purported to do - there would have been much to be said for having a jury to play

this very traditional role of juries. However determining any person's guilt or

innocence was one thing that it was not the function of the inquest to do. What

was needed from the inquest was a very careful sifting and explanation of the

circumstances leading up to the death and an examination of what might be done

to prevent similar occurrences in the future. The rendering of this service by the

inquest was frustrated by the appointment of a jury which in the nature of things

has to reach a very quick decision on very limited material with no opportunity to

171

read, study and reflect on the issues. These are services which coroners ar

other judicial officers can provide but juries cannot provide.

COUNSEL ASSISTING THE CORONER

The position of officer or counsel assisting the coroner is very important. It ha

been traditional in Australia for assistance to a coroner to come in most case

from a member of the police force. In some cases into which the Commissio

has inquired the officer who was in charge of the prisoner at the time of deatl

and whose conduct should have been subject to scrutiny, was not only the office

in charge of the investigation and the preparation of the police brief for th<

coroner, but the officer assisting the coroner. This makes a mockery of an>

notion of independent investigation. At the Bruce Leslie inquest a police office:

brought from Sydney simply presented the police case without testing it and

without even voicing a criticism which he had formed of police conduct. In a

number of cases the police officer saw the papers for the first time on the

morning of the inquest. If a coroner's investigation is carried out by police and

he is assisted by police he is not well equipped to inquire into the conduct of

police.

It is increasingly common today for independent counsel to be briefed in relation

to deaths in custody. There is a very strong case for the coroner to be assisted by

someone who is quite independent of the police force. Often this is a member of

the private bar. This can be very successful if the member of the bar takes an

active role in the preparation and conduct of the case and sees himself or herself

as having responsibility to ensure that all the facts come out. I have however

seen inquiries in which a member of the private bar was briefed and did no more

than a police prosecutor would have done, that is simply call the witnesses

nominated by the police and run through their statements. In that case nothing

except expense is added to the inquiry. On the other hand I have seen cases

where the counsel assisting has been a person with prior experience and

understanding of the Aboriginal point of view, and has so prepared and

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conducted the inquiry as to ensure that so far as possible all avenues of concern

are thoroughly explored and all evidence is thoroughly tested.

Forensic skill and independence are not confined to the private bar, although that

is certainly a place where they can be located, and is also a place where because

of the high remuneration available a lot of the most able people congregate. The

latter consideration becomes a problem if very high counsel's fees have to be

built into the general running of coronial inquiries. It may be that there are many

cases which could appropriately be handled by salaried legal officers of the

Crown, provided that adequate care is taken to ensure that they are not persons

identified with police or prison administrations.

RECOMMENDATIONS BY CORONERS

In a number of cases, of which the Tasmanian death of Glenn Clark was one, the

coroner did not see it as his role to make any recommendations. That case

illustrated the dangers of such a course, as the attitude of the police was that no

attention would be paid to the results of the inquest unless some specific

recommendations were made by the coroner. It would have been possible for the

coroner to make some recommendations which jolted the police out of their

apathy towards the occurrence of deaths in custody, and prompted them to take

some real steps to develop a policy about such deaths, and to educate officers at

least in some of the more obvious risks involved.

In several of the recent inquiries into Aboriginal deaths in custody in New South

Wales the coronial inquiry has not only been wide ranging but has resulted in

extensive recommendations. One noteworthy example was the inquest into the

death of Lloyd Boney at Brewarrina. These recommendations have been very

valuable and it is important that coroners should make explicit recommendations.

In some cases coroners have proceeded on the basis that the situation is apparent

from their findings and there is no need for recommendations, but all too often

173

police or public authorities take no notice of anything except explicit

recommendations.

Even very explicit recommendations can be ignored. In a number of cases they

have not even come to the notice of relevant authorities. It is essential that there

be proper machinery for conveying all coronial recommendations to the relevant

authorities, and for monitoring what happens. One suggestion is that the coroner

should have some continued jurisdiction for a period after he delivers his

findings, during which he could if necessary have a further hearing to follow up

the issues which emerged from the inquest.

STATUS OF CORONERS

There has been a steady increase in the status of coroners. The days of lay

coroners are largely gone and coronial inquiries are in the hands of magistrates

and increasingly of specialist magistrates, or at all events under the supervision

of a specialist magistrate. A hangover in New South Wales is the situation where

a Clerk of Court acts as coroner. There may be value in a Clerk of Court being

able to perform some of the administrative functions of coroner, particularly

where there is no resident coroner, but I have suggested in my R e p o r t o f th e

In q u iry in to th e D e a th o f M a rk W a yn e R e v e ll that such officers should not

exercise the judicial or quasi-judicial functions of coroners. I referred in that

report to

'a system which prostituted the precious tradition of judicial

independence and competence to rubber-stamp inadequate police

investigations on the cheap. If certain inquests are to be

formalities to be carried out by administrative officers, they should

be presented as administrative acts, not passed off as judicial'.

This is particularly important in relation to deaths in custody, as Clerks of Court

inevitably have close contact with the local police and are seen by many people as

174

part of a closely knit establishment. It is essential that judicial functions,

including coronial hearings and findings, should be carried out by somebody

with a clearly independent status, with some degree of remoteness from police,

and capable of commanding public confidence, and in particular, in the case of

Aboriginal deaths in custody, the confidence of the relatives and of the

Aboriginal community. An indication of the problem is that the clerk who acted

as coroner in the Bruce Leslie inquest told the Commission that he privately

formed views critical of the way Bruce Leslie was handled, but his only public

comments were exculpatory of police and ambulance officers.

In his In terim R e p o rt Commissioner Muirhead wrote:

'The value of the Coroner's role must now be recognised, the

responsibilities of that office require recognition of the Coroner's

true status, the provision of adequate and coordinated facilities. In

my view the Coroner should be the person basically in charge of

investigation of deaths within his or her jurisdiction and those

responsibilities should be recognised. The terms and conditions

attaching to Senior Coroner's or State Coroner's office should

certainly not be less than that of a Judge of a District or County

Court. The office represents the only tribunal which can

investigate circumstances fairly and quickly, before memories fade

or perhaps before reconstruction rather than memory influences

the minds of witnesses.'

We have not yet reached the stage suggested by Commissioner Muirhead, but in

several States there has been an enhancement of the status and resources of a

State Coroner. This has resulted in considerably more specialisation in coronial

functions, and in specialist supervision of inquests carried out by others. The

Victorian State Coroner, Mr Hallenstein, said that, by contrast with the two full­

time coroners (the State Coroner and his deputy):

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'the country Magistrates who are also Coroners have a prime

responsibility as judicial officers in an adversary system of

criminal law and civil judicial process and cannot compromise

their judicial position by close and physical involvement in the

investigation process'.

Add to this their role in putting prisoners into custody, and their continuing day

by day association with police, and there is a strong case for such magistrates not

having coronial responsibility for deaths in custody, and for such deaths to be

normally inquired into by specialist coroners.

The experience of the Commission shows that the establishment of new

procedures and institutions does not easily change ingrained practices and

attitudes. I have discussed some of the problems that have come up in

Commission inquiries without regard to particular systems operating at the time.

They are problems which must be recognised whatever system operates, and it

should not be too easily assumed that they will automatically be overcome by the

revamping of institutions. Constant monitoring will always be required to ensure

that the new institution works with the quality, confidence and independence that

is necessary. The coronial inquiry into the death of Arthur Moffatt took place

well after the coming into force of the C o ro n e r's A c t 1985, and in circumstances

where it was known that the death would come to the Royal Commission.

Nevertheless the investigation, autopsy and inquest were no more satisfactory

than in earlier cases investigated by the Commission.

In a submission the Victorian State Coroner, Mr Hallenstein, wrote on

3 October 1988:

'In the end one cannot really criticise Coroner or pathologist who

were acting in the context of change and increased understanding

in the Victorian Coronial Service in the last year - 1 1th June 1987

may just as well have been fifty years ago'.

176

;vertheless the fact that the system worked so ineffectively over a year after the

:w Act does prompt some reflections. One is the need to treat every death in

istody, even if the actual death is patently due to natural causes, as requiring the

ime degree of scrutiny as a potential homicide. A person in custody is at the

ercy of his or her custodians, and dependent on them for the most elementary

lings. A high degree of care must be demanded, and so far as possible all

rounds for suspicion of deliberate or negligent mistreatment excluded.

:OST OF CORONIAL INQUIRIES

tome of the coronial inquiries that have been held into Aboriginal deaths in

ustody in recent times have been extremely long and expensive. The cost of

hese inquiries has been part of the price which is being paid by the public, in one

lense for its general treatment of Aboriginals, but more specifically for the failure

o establish relations of trust and confidence between Aboriginals and police, for

he failure to take proper care of prisoners, for the failure to be open and frank

with relatives when deaths occur, for the failure to conduct thorough, impartial

and independent and open investigations into deaths, and for the failure to be

sensitive to the Aboriginal viewpoint on many issues and to listen to what they

have to say. It was the combination of all these things which have necessitated

such lengthy coronial inquiries. If the lessons are learnt, hopefully there will be

fewer such deaths, and when they do occur, as inevitably some will, they will be

dealt with in an atmosphere of much greater trust. With professional and

independent investigation, and frank communication with relatives, it is

reasonable to expect that future deaths will not normally engender such suspicion

that long and expensive coronial inquiries will be necessary in an attempt to

dispel it. Nevertheless they should not be shirked when the circumstances call

for them to remove doubts or allay suspicion.

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PART FIVE - THE ABORIGINALS OF SOUTH-EASTERN

A U ST R A LIA

CHAPTER 13 - THE ABORIGINALS OF

SOUTH-EASTERN AUSTRALIA

UNDERSTANDING THE DISPROPORTIONATE CUSTODY

If we wish to reduce Aboriginal deaths in custody to a marked degree, we must

reduce the grossly disproportionate number of Aboriginals coming into custody.

To do this we must understand why they come into custody. Only a very small

percentage of the white population of south-eastern Australia have significant

contact with Aboriginals, and many think of them as primarily concentrated in the

centre and north of Australia. They are surprised to learn that one-third of

Australia's Aboriginals live in the three south-eastern States. Hence I will devote

some space to introducing these Aboriginals, and saying something about the

circumstances of their lives and their relations with the surrounding society.

It is natural in seeking an explanation of disproportionate custody rates to look at

the point of arrest. Is it not logical to say: either Aboriginals are committing

criminal offences, in which case they should be arrested, or they are not, in

which case they should not be arrested. This leads to an explanation in terms of

'goodies' and 'baddies', and indeed there are many who view the situation in just

such a way. Either it is good police and bad Aboriginals, or bad police and good

Aboriginals.

It does not take much close contact with Aboriginal people to convince one that

the explanation for their disproportionate conflict with the criminal justice system

does not lie in greater viciousness and criminality of character in comparison with

179

the rest of the community. One encounters as much gentleness, kindness,

integrity and desire for a peaceful life amongst them as amongst the general

population. Equally, close contact with police soon shows that most police are

simply trying to do a job as they have learnt it, and that, as in the rest of society,

there is a wide range of personalities and attitudes. Many have tried to improve a

situation which they do not like and have retreated puzzled, and sometimes hurt,

by what they see as a lack of response on the part of Aboriginals.

The truth is that Aboriginals and police are caught up in a process from which

each finds it hard to break free. There is much that can be done to ease the

conflict between them, but its roots lie elsewhere, in a conflict between a

dominant white society and a dispossessed Aboriginal people who are still

resisting the dispossession, and stmggling for recognition of their identity as a

people and for a dignified and just position in the wider society in which they

find themselves encapsulated.

Relations between those two communities are built on inequality arising from a

longstanding, unresolved injustice, and tensions arising from it affect the lives of

individuals and communities in all kinds of ways. The dominant white

community has over two centuries mostly tried to deal with the issue by

destroying the Aboriginal identity - either by physical extermination or by genetic

or cultural absorption. Even today many of those who accept that a major effort

must be made to overcome Aboriginal disadvantage in matters such as health

education, employment and so on, accept this only on the basis that there must be

only one people recognised in Australia, and that any assistance to Aboriginals is

not to enable their separate flowering as a people within the country, but to help

them catch up and 'be like us'.

To begin to understand this situation it is necessary to look both at the present

situation and the history which has shaped it. In this Part I will look first at some

of the conflicts that have arisen in individuals over Aboriginal identity, as they

are illustrated in the lives of those who died in custody. Then I will consider

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some of the general features of Aboriginal life in south eastern Australia, the

history that lies behind it, and specifically the terrible story of the attempt, which

still casts its shadow today, to 'solve the Aboriginal problem' by separating

children from their families and dispersing them in the community. In the next

Part I go on to consider relations with the rest of the community, including the

police.

THE DENIAL OF ABORTGINALITY

One of the cruellest, although usually unwitting, manifestations of racism is the

attempt to deny the Aboriginality of persons who have grown and lived and

suffered as Aboriginals, by imposing some category of genetic fractionalism. It

would be extremely rare in south-eastern Australia to find a 'full-blood'

Aboriginal, as language still commonly describes a person totally descended

from those who were in Australia prior to the arrival of Europeans. Yet all too

often one hears in the white community the ignorant assertion that those who

claim to be Aboriginals in south-eastern Australia are therefore 'not real

Aboriginals'.

This is particularly cruel because the persons who would so deny the

Aboriginality of their fellow citizens would for similar reasons deny them full

admission to the white community, and leave them in a social limbo. They are

neither 'real' Aboriginals nor 'real' (ie fully accepted) whites. Indeed the refusal

for the most part of the white community to give full social acceptance to persons

of mixed Aboriginal/European ancestry has been part of the reason why such

persons are indeed real Aboriginals. They are not rejected by Aboriginal

communities but grow up as its members, find a place in their kinship networks,

find there the love and social warmth that every individual needs, and identify

with an Aboriginal family, with an Aboriginal community and with the history of

Aboriginal people. The process was reinforced by the fact that most of the

European ancestry in Aboriginal communities dates from an early period on the

frontier where there were few or no European women, and the children of the

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European fathers grew up in the Aboriginal communities in which their mothers

lived, or to which they returned when their white partners died or discarded

them.

It is not fine details of genetic ancestry but social identification and shared

experience that makes an Aboriginal. As Shirley Smith said:

'I'll tell you. An Aboriginal is anyone that knows what it was like

down on Erambie Mission, West Cowra, thirty years ago. An

Aboriginal is anyone who lived down there with me, thirty years

ago, that knew what it was like'.14

There are of course an unknown and possibly very large number of people with

some Aboriginal ancestry who have 'passed' into the white community, and who

may often be quite unaware of their Aboriginal ancestry. Their identification is

with the white community and they are not Aboriginals.

LIVING IN BETWEEN

On the other hand there are those who are caught somewhere in between, and

who have often suffered most tragically as a consequence. There is an infinite

variety of situations. Two examples in the deaths which I have investigated are

Thomas William ('Tim') Murray and Paul Lawrence Kearney. Tim Murray's

father was not Aboriginal; his mother was distinctly Aboriginal in appearance,

and his Aboriginal grandmother had been a great refuge and comforter in his

childhood. He himself was not Aboriginal in appearance and sought to reject his

Aboriginality, generating painful internal conflict as he denigrated part of

himself. That conflict was overlaid by another conflict, since he was of

ambivalent sexuality and his identity became a painful and complicated issue for

him. He adopted such stereotypes of Aboriginals as those of 'always wanting

Shirley Smith, recorded in L iv in g B la c k by Kevin Gilbert

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things’ and given to bashing children. These stereotypes were no doubt common

in his peer group; to what extent they were current in his family is not clear. But

it is clear that Aboriginality was not easily accepted and respected in the home,

and was at least a matter of conflict between the parents, if not a matter of agreed

disparagement. Aboriginality was certainly not a matter for agreed pride and

self-esteem.

The Commission received a perceptive paper from Millie Ingram, then Assistant

Director, Community Relations and Special Projects, Office of Aboriginal Affairs

in the New South Wales Premier's Department. She wrote:

'Living in the heart of white suburbia as Tim did, it is very

difficult for any Aboriginal child to hold on to a sense of pride and

dignity about his or her Aboriginality. It is, in such a situation,

very difficult not to be influenced into denying one's

Aboriginality. The overall effect of the pressure which surrounds

you is to push you into wanting to be seen as a white person.

Unless pride in being Aboriginal is instilled into the child at an

early age so as to counter the pressure brought to bear by the

combined forces of white suburbia, an Aboriginal child will bow

to instincts of survival and begin to deny his Aboriginality. As

well as the pride in being Aboriginal it is vital that the child should

be made aware of and be recognised as possessing qualities which

are different to non-Aboriginal people, and not inferior. This is a

process which really needs to be commenced in formative years,

ideally at pre-school. It is vital that the pride and dignity be

encouraged both at home and at school. If the Aboriginal child

begins to deny his Aboriginality a very troubled life lays ahead for

him. This fact is most often seen in the lives of people who were

taken away from their Aboriginal families when still young and

brought up by non-Abo riginal people'.

183

She commented also on the particular problems of the child of a mixed marriage,

saying that quite often confusion will accompany the child's self-identification.

'Usually, whoever is the dominant partner in that mixed marriage

will have the greatest influence as far as cultural identification for

the child is concerned. If the non-Aboriginal parent is the

dominant partner, that then becomes a very strong formative

influence on the child.'

In the circumstances in which Tim grew up he lacked any clear role model, and

in particular was unable to relate satisfactorily to any adult male in his family

circle. This contributed to his difficulty in establishing a sexual identification and

also a racial identification. Neither by role model nor by the society around him

was he helped to feel pride in his Aboriginal descent. He was left in a situation

where he would, in Millie Ingram's phrase, 'bow to instincts of survival and

begin to deny his Aboriginal identity', with a predictably 'very troubled life'

ahead of him.

Paul Kearney, the son of an Aboriginal father and a white mother who separated

from her husband and sought to bring Paul up in the white community,

experienced painful conflict in a different form. He was not able wholly to

identify with either community and at one stage spent his nights drinking with

Aboriginals in Sydney parks and his days working for Australia Post in a manner

for which his white middle-class upbringing had prepared him. Both Tim and

Paul died in custody of overdoses of prescribed drugs, at least in part a reflection

of the stresses to which their struggles for identity subjected them.

Tasmania, by long denying Aboriginal identity to any of its citizens, created

painful problems of identity for those of Aboriginal descent who had survived

the extinction on which Tasmania perversely prided itself. Today a strong

Aboriginal community has emerged and organised itself in Tasmania, providing

mutual support for such people. But two young men who grew up before this

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occurred are numbered in the deaths which I have investigated.

Glenn Allan Clark hanged himself in Glenorchy Police Station in Tasmania and

Mark Wayne Revell hanged himself in Grafton Police Station in New South

Wales. Both had serious problems with alcohol addiction and hanged

themselves when left alone after arrest in a heavily intoxicated condition.

Victoria also long denied recognition of their Aboriginal identity to the

Aboriginals who had been forced off the reserves on which many Aboriginals

were at one time concentrated. Despite the lack of official recognition, large

numbers of Victorian Aboriginals maintained a clear identity, but the stresses of

the difficult social and economic conditions in which they lived are seen in the

story of Shane Kenneth Atkinson who grew up in Victoria but hanged himself

in Griffith Police Station in New South Wales.

The three deaths which actually occurred in Victoria, those of Harrison Day,

Arthur Moffatt and James Moore, were all of men who remained secure in their

Aboriginal identity, but had suffered the consequences of the shockingly bad

state of health in Aboriginal communities, with its high incidence of conditions

such as circulatory diseases, diabetes and epilepsy, and ultimately died of these

'natural' causes in police custody. Two of them had grown up as workers in the

pastoral industry where their employment largely disappeared with changes in the

1960s. All three had become heavy drinkers when unemployed and had been

savagely or mindlessly persecuted under the absurd laws against public

drunkenness which remain in force in Victoria to this day.

THE ATTEMPT TO DESTROY ABORIGINAL IDENTITY

But the greatest tragedies of identity were created by the inhuman application of

policies of assimilation practised overtly in New South Wales by the Aborigines

Protection Board and the Aborigines Welfare Board, and less explicitly, but

nonetheless effectively, in Victoria and Tasmania through the application of

general child welfare legislation. This was in an era when white middle-class

185

standards were uncritically applied in determining child welfare, and there was

no recognition of the importance of keeping Aboriginal children in need of care in

Aboriginal homes and communities. This was illustrated in Tasmania in the life

of Glenn Clark.

In New South Wales there was a quite deliberate policy of taking Aboriginal

children away from their families and merging them into the white community,

with a view to thus 'solving' the Aboriginal problem. Some of the terrible

identity problems that this created for individuals have been described in

Peter Read's T h e S to le n G e n e r a tio n s and Peter Read’s and Carol Edward's

The L o s t C h ild ren . Amongst the deaths which I investigated the situation was

heart-rendingly illustrated in the life of Malcolm Charles Smith. He was taken

from his family at the age of 11, cut off from them completely, and when

released placed in the alien environment of a Sydney boarding house, where he

was not surprisingly soon involved in petty crime, leading to a life spent almost

entirely in juvenile institutions and gaols. He did maintain his Aboriginal identity

and rediscovered his family at the age of 19. However it proved too late for him

to adapt to life outside institutions and he ultimately died a tragic death in gaol

when affected by psychological trauma flowing from a crime committed as a

result of his inability to cope with ordinary family life during one of his brief

intervals out of prison.

Few Aboriginal families in New South Wales remained untouched by the

devastating effects of the policies of family destruction pursued by the

Aborigines Protection Board.

CLASSIFICATION BY THE WHITE COMMUNITY

Only in relatively recent times have Aboriginals been allowed by the dominant

white community a say in their own classification. When white people came to

Australia, and for many years afterwards, it was assumed that human beings

could be divided into discrete races and that these races could be ordered in

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evolutionary terms from the most advanced to the most primitive. In theories of

'the great chain of being' Aboriginals were allotted a place at the bottom of the

ranks of humans near the apes. However the attempt by scientists to divide the

human race into discrete, totally separate groups called races foundered on the

fact that there were always more genetic differences within the groups than

between them. There were long and involved arguments as to whether there

were three or twelve or fifty races, and which characteristics should be the basis

of the categories. There was the further obstacle that any genetic differences

between populations are differences of frequency. 'That is, only by taking a

single genetically given characteristic can populations be divided into two discrete

categories. Once two or more of the millions of such characteristics are

considered, there will be problems of categorisation.'15

Another reason why most biologists have abandoned the term race is its misuse

as an explanation of other differences. The notion of racial differences became

confused with social differences and with differences of ability or worth or

culture. In fact the main point to be emphasised is that there a r e real differences

between groups that are cultural and historical. But these differences are not

c a u s e d by those few superficial differences in genetic heritage which are

observable and superficial. The fact that skin colour is such a powerful symbol is

due to our colonial history. It is not a sign of innate and fundamental inequality.

It is not difference itself which is the problem, but social practices based on it.

In any event with racial mixing, classification by reference to race became highly

dubious. Colour has always been a basis used by whites to identify who was an

Aboriginal person, and the 'caste' of children at the Kinchela and Cootamundra

Homes was determined by their shading, as happened to David Gundy's cousin

when a group of children were taken. At Cootamundra the darkness of the skin

determined whether the children were adopted out. Max Saunders' mother 'was

Livingstone, 1962. 'On the non-existence o f human races' in C u r r e n t A n th r o p o lo g y 3(3).

187

quite dark and stayed on until she was 16, when she was sent out to work.16

Although the notion of racial categorisation has been shown to be scientifically

invalid, and real differences between groups have been accepted as cultural and

historical, nonetheless the colour of a person's skin is still a powerful social

marker. Thus a person with a dark skin in Australian society will arouse

curiosity about the source. If there is an Aboriginal genetic heritage, whether

there is a visible sign or not, the stereotypes and images evoked are likely to be

negative and potentially upsetting.

Paul Kearney was not easily identified as having an Aboriginal forebear by his

appearance but nonetheless was clearly troubled by the fact of this heritage. Who

knows what anxieties he had when he spoke about a racial identity problem with

his doctor. 'At Redfem House he was placed in group therapy for his racial

identity problem but became very nervous'.17 In cases such as Glenn Clark and

Max Saunders also it is difficult to know what the psychological consequences of

their Aboriginality were.

Whereas once the official definition of who was Aboriginal relied only on skin

colour, so that with light skin a person was virtually forced to identify as white,

and if dark there was little possibility of obeying the injunction to assimilate, now

the official definition of who is Aboriginal has three components not necessarily

reflected in colour or appearance. A commonly used definition requires that a

person must have some Aboriginal ancestry, but must also identify as an

Aboriginal and be identified as part of an Aboriginal community. This makes

problematic the position of those who were adopted or fostered by white parents

or whose kin ties were severed due to being taken into the Protection Board

homes. Those who in an earlier era obeyed the injunction to assimilate are

disadvantaged as, even if they have some community ties they can call upon,

they are not likely to be accepted readily, as they may be seen as traitors. People

who for any reason have no connections with an Aboriginal community, (as in

Report of the Inquiry into the Death of Maxwell Roy Saunders p 17 17 Report of the Inquiry into the Death of Paul Kearney p 51

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the case of Paul Kearney who was reared by his white mother in white

suburbs), may find it difficult to establish a legal claim to be Aboriginal unless

they develop some connections. While a sense of identity could be gained by

joining an Aboriginal community, this is not an option available to all with

Aboriginal forebears.

The consequences of identifying as Aboriginal have changed over the years.

Today there is a common accusation of pecuniary interest associated with the

willingness to identify as Aboriginal. This is bitterly resented by many

Aboriginal people who have not determined the current or previous policies let

alone the definitions of who was Aboriginal. They were previously rewarded for

not identifying but rather assimilating, and are now being rewarded for reversing

their position, and the irony of being blamed for the change is not lost on many

Aboriginals. However, it invites divisions among Aboriginals also, because

there is resentment of those fellow residents of tension-ridden towns who have in

the past distanced themselves from their Aboriginal heritage and connections but

who now want to affirm them. Thus the rewards and punishments for

identifying may be very different within the Aboriginal community from what

they are outside. The issues associated with the question of Aboriginal identity

are clearly complex.

The issues have been particularly acute in Tasmania. 'How many thousands of

people who were not Aboriginals because they found it better not to say so, and

had no community to be recognised by, have now become Aboriginals?'.18

Mark Revell is an example of a person whose psychological state would have

been greatly helped had he been able to identify with a community. His mother

said 'Trouble was he didn't have a tie with a community because the Aboriginal

community was scattered ... If there had been Aboriginal community

organisations this would have helped Mark'.19 The dilemmas over identifying

are not new. Mark's grandmother 'was shy about her race' and his grandfather

18 R e p o r t o f th e In q u iry in to th e D e a th o f M a r k W a y n e R e v e ll p 18

19 Ibid p 18

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also 'did not advertise his Aboriginality, but it attracted the nickname of

Sam bo'.20 Glenn Clark's family may well have avoided the worst of their

suffering had there been Aboriginal organisations earlier.

Ibid p 19

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CHAPTER 14 - LIVING IN SOUTH-EASTERN AUSTRALIA

THE ABORIGINAL POPULATION

Aboriginals and Torres Strait Islanders in New South Wales, Victoria and

Tasmania numbered 78,338 according to the 1986 census - 1.1% of the whole

population in New South Wales, 0.3% in Victoria and 1.5% in Tasmania. They

live in a variety of situations - in isolated Aboriginal communities, and in

communities in country towns, in the heart of capital cities and in suburban

concentrations. As individuals and families, they live everywhere.

While the greatest numbers of New South Wales Aboriginals now live in the

Western Metropolitan and Sydney/Newcastle RALC areas (forming together

36.1% of the total New South Wales Aboriginal population), they constitute a

very small proportion of the total population of those areas. The Aboriginal

population in the North West, West and Central RALC areas is much more

concentrated. The North West, with 6914, or 11.7% of the total New South

Wales Aboriginal population comprises 14.3% of the regional population. In

some places, such as Wilcannia, Aboriginals are in a majority.

Thus, in some rural areas the Aboriginal people form a substantial minority and

are more visible and more community oriented. The urban populations in western

Sydney, Dubbo and other larger rural centres appear to be increasing. But

whether there or in the inner city, they still visit and are visited by rural relatives.

Rural communities continue to form the core of Aboriginal identity in New South

Wales and Victoria. Perhaps the most culturally significant communities are

those in rural towns where a large minority of Aboriginals have been established

since settlement, though often with severe disruptions. Such towns exist all over

the state, but the largest proportion is in western and northern New South Wales

and along the Murray River and in Gippsland in Victoria. Many had missions or

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reserves which nurtured some of the most active leaders of the Aboriginal

communities who called for citizenship in the past and for Land Rights today.

Well known ones include Moree, Bourke, Walgett, Wilcannia, Cowra in New

South Wales and Mildura, Swan Hill, Echuca, Shepparton, and Baimsdale in

Victoria, and satellite towns and communities. The only place where a

substantial group of Aboriginals live in a separate community on Aboriginal land

is at Lake Tyers in Victoria.

Changes in the distribution of the Aboriginal population are going on apace. The

areas of greatest growth of the New South Wales Aboriginal population between

1976 and 1986 were around the centres of Bathurst and Orange. Areas along the

Dividing Range generally and most parts of coastal areas experienced substantial

growth. Dubbo has one of the largest Aboriginal populations of any New South

Wales town outside the urban core of the state - Sydney, Newcastle and

Wollongong. Like this central urban core, Dubbo's Aboriginal population has

grown largely through migration rather than natural increase. Dubbo is a major

reception area for historical and ongoing Aboriginal migration from the towns

and former reserves of Western and North Western New South Wales), but it

has also been, as have other rural centres, a focus for recent return migration

from the urban core.

THE RURAL LINKS

While Aboriginal people are scattered through the population, they are not

scattered evenly, and it is in Aboriginal rural communities that the most

distinctive aspects of Aboriginal traditions are apparent. That is, Aboriginal

cultural identity has been forged in rural communities. A large proportion of the

Aboriginal population in urban areas retains links to either a reserve, a mission or

a rural community through the continuing importance of kinship. Today perhaps

less than half of Aboriginal people in south-eastern Australia live in

predominantly Aboriginal communities. But in the past, when tribal groups were

'dispersed' and many people were forced onto reserves and missions to live

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jnder Protection Board rule, the people retained knowledge of extended family

ties. Most people worked in mral industries.

Thus Aboriginal identity has been shaped by three major forces; the older

Aboriginal traditions, rural work, and control by the Protection or Welfare

Boards or other white agencies. As will appear in the next Chapter, the histories

of the three States are different in detail, but in Victoria and New South Wales

very similar outcomes have been reached. Tasmania lacks the outback of the

mainland, and Aboriginal traditions there have been largely linked with the

islands of Bass Strait. Where Boards did not exist, many features of the Boards'

intrusions were reflected by the police and welfare agencies.

Perhaps the most distinctive features of the Aboriginal communities which is

linked to the pre-invasion past is the close knit, community based life. Families

are large and several generations often share a house with extended kin. There is

a loyalty to kin such that they are all family. Links between communities and kin

are a central focus of life. There is visiting between families and travelling across

the country to relations. Itinerant labour such as fruit picking and cotton chipping

is still part of the annual round for many people.

THE RURAL TRADITION

The mral traditions were apparent in the families of most of those who died in

custody. Typical is the life of James Moore, who was bom in 1924, married in

1944 and had five children. The family moved about following seasonal work in

an area including Swan Hill, Robinvale, Balranald and Moulamein, while he

supported them by labouring, rabbit trapping, wood chopping, sawmill work,

grape picking and other seasonal work. Aboriginals like those in James Moore's

family were left to do the best they could in a hostile and prejudiced environment,

with minimal access to education and to any but casual work. They lived often in

humpies on river banks in unsanitary and poverty-stricken conditions, but

enjoying a community warmth and a degree of freedom unknown on the

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'missions' on either side of the border. When there was no work in winter the

family subsisted at Balranald on rations issued by the police, consisting of tea,

sugar, syrup, treacle, flour and salt. Meat was obtained by hunting rabbits,

kangaroos, possums and emus, with the occasional gift of sheep from a station.

They camped on stations where he and and his wife worked, or lived in humpies

which he erected on river banks, with clothing often taken from rubbish tips and

blankets made from potato bags or knitted from unravelled clothing. Water was

carried and boiled in buckets and baths were taken when it was dark. The Murray

River was no boundary. Like the family of Malcolm Smith, they led an

independent life and had no dealings with 'missions'. James hated being

dependent on rations, and preferred to live on a river bank and do a lot of rabbit

trapping and fox shooting if no work was available. But the demand for the

traditional bush skills of men like him had been declining with closer settlement,

completion of fencing, and the great reduction of rabbits following the

introduction of myxomatosis. After the rural recession of the 1960s the demand

for such labour did not recover and enforced idleness led to a widespread

increase in drinking.

The grandparents of Mark Quayle, who died in the Wilcannia police cells, had

travelled around in the comer country with a wagonette, finding work shearing,

fencing, tank sinking and horse breaking. His father did similar work. As a girl

Mark's mother, Amy Quayle left the overcrowded unhappy mission at Menindee

to travel up and down the Darling River with her Grandmother Moysey. 'Granny

used to work a day or two at the stations for flour, salt, sugar and tea to

supplement the kangaroo and emu which they gathered.' Amy Quayle sees the

loss of freedom to travel around the land and the confinement to towns as a

crucial part of the problems today.

Thomas Carr's aunt said 'We knew we had nothing, we had to work and there

was work around then ... People could go out and get some rabbits ... We

would keep some and to eat and sell the others to the freezers or skin them and

sell them'. The life of the Smith family was itinerant rural work, travelling,

194

camping and avoiding 'the welfare'. 'Malcolm’s childhood at Dareton was a

happy, and carefree one, swimming in irrigation channels and hunting for small

game with a catapult. One or more of the sisters would come along with the billy

and some flour so that the bird could be immediately cooked and eaten.'

But the nomadic rural life came up against fences and boundaries, as well as the

anxieties of the authorities and the local townspeople that Aboriginals be confined

and controlled, and that children such as Malcolm should be given proper

'homes'. In Victoria Aboriginals forced out of reserves as all but Lake Tyers

were closed, eked out an existence, usually by casual work, moving between

familiar places and camping or living in humpies and temporary dwellings on

river banks.

A survey in Victoria in 1959-60 found that most Aboriginals lived in substandard

dwellings or appalling shanty town conditions, and the infant Shane Atkinson's

poor health is testimony to the hardship. But from within a community, life is

valued even when material conditions are poor. The older Atkinson children

recall moving around as their father followed seasonal work. 'We lived in tents

but we had a good time though they were hard.'

Rural work such as droving, fencing, seasonal harvesting was still characteristic

of Aboriginal groups in rural areas until comparatively recently. Many Aboriginal

groups became adjusted to a life of itinerant rural labour. Country music was

adopted and adapted by such folk singers as Dougie Young and Jimmie Little and

more recent groups. Big cars and the roving life are celebrated in the film 'Open

Road'. The long terms reduction in rural labour, most recently in the rural

recession of the 1960s has almost ended such work completely and with it the

cultural strength of a positive rural identity.

The result had a catastrophic effect on many Aboriginals. A number of features

of Lloyd Boney's life were typical of many Aboriginal men of recent decades.

He reached working age at a time when the main opportunities for Aboriginal

195

employment in the pastoral industry had largely disappeared. Instead he lived in a

town where all the power, all the businesses and all the resources were in the

hands of white people who in most ways belonged to a separate, dominant

community. He grew up in a home and among peers to whom formal education

meant little; went to a school which he found alien and alienating; and acquired

the habit of spending his time, in the absence of other ways of using it, in

sociality heavily laced with alcohol.

THE NORTH WEST OF NEW SOUTH WALES

The problems flowing from the rural changes are writ large in the north west of

New South Wales, which has the largest concentration of Aboriginal population

in New South Wales outside of Sydney. A number of towns have a high

proportion of Aboriginals in the population, and a number of problems in

common as well as specifically local problems. In the Boney Report I wrote:

'In the small isolated towns suddenly come upon in the endless

flat country of western New South Wales, things tend to appear

starkly. It is hard to resist the temptation to stereotype. The risk

is not only of seeing things solely in black and white.

Everywhere there is the temptation to classify people as 'goodies'

or 'baddies'. Classification of Aboriginals into good and bad

Aboriginals is widespread in the white community. The bad

include both those who defy notions of middle class propriety by

noisiness and drunkenness in public and the 'radicals' who

challenge the foundation of the existing order by talking about

land rights, human rights, the rights of indigenous people or

almost any rights other than the right to be 'equal' in a racially

structured system rooted in dispossession. The good Aboriginals

are those who try to conform, appear grateful for small mercies

and are ready to acquiesce in criticism of the radicals. But both

the 'good' and the 'bad' Aboriginals are caricatures and the

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Aboriginal community is much more complex, sophisticated and,

despite tensions and divisions, more united than the caricatures

suggest.

'It is equally easy, and equally an over simplification, to see the

white community as divided into the 'red necks' and the

enlightened sympathisers with Aboriginals. Confronted by the

operational solidarity of the Police Force, it is not always easy to

remember that it too is the site of battles between conflicting

attitudes and philosophies. Individual human reactions are often

hard to express under the conflicting pressures. From within

come demands for loyalty and conformity. From outside the force

come irreconcilable claims for harsh law and order policies on the

one hand and social engineering on the other. But in night to

night work police stand alone to face the bitter resentment and

anger of the dispossessed and frustrated when alcohol releases

their inhibitions'.

Collectively the towns form a group which are the source of a large number of

Aboriginals in custody in New South Wales21 and a significant proportion of the

deaths in custody. They have high numbers of police and what is felt by many

Aboriginals to be oppressive policing. There are many indications of racism that

make life unpleasant for Aboriginals. There is, for example, strong 'backlash'

against Abstudy grants for children attending school. Some members of a white

community that agitated to have Aboriginals excluded from schools in 1917 and

for many years thereafter now regard it as objectionably discriminatory to make

any redress of grants to Aboriginal children who carry the burden of that history

in attending school today. On the other hand schooling subsidies to the families

of graziers who now occupy the land taken from Aboriginals are seen as

C. Cunneen and T. Robb C r im in a l J u s tic e in N e w S o u th W a le s 1987 Bureau of Crime Statistics and Research.

197

legitimate.22 Another example is in the conflict over drinking places noted

elsewhere.

The broad alternatives in isolated areas are doing nothing, in which case

Aboriginals in such areas will become increasingly depressed, poverty stricken,

and in conflict with the rest of the community; building local employment and

enterprise; or movement of Aboriginals to more promising areas. The first is

surely unacceptable, and will mean continuing high rates of imprisonment and

deaths in custody. The other choices are fraught with difficulty. Some

individuals and families have moved in search of greater opportunity, but often

only to return home after a period. As a whole the communities show a

passionate desire to stay where they are, and a repetition of the forced

movements of the past is unthinkable today.

The only viable alternative is to give Aboriginal communities the resources to

develop local employment-providing enterprises, as they have shown themselves

only too keen to do. Given the economic limitations of the areas, these may

provide only modest incomes, and may require an element of subsidy from

government, as rural or remote areas have often done in our past. How much

better for everyone would be subsidy in this form than in the form of expensive

policing, courts, maintenance in gaols and juvenile institutions, hospitalisation,

insurance of property damage and periodic Royal Commissions and responses to

the criticisms of world opinion. It would in any event be a small price to pay to

remedy past injustices.

COMPLEXITY OF THE ABORIGINAL POPULATION

The north west is only part of the picture, although a critically important one.

Getting to know the Aboriginal people of south-east Australia brings a realisation

of how varied and complex the Aboriginal population is. Those few Aboriginals

22 See G.Cowlishaw 'Where is Racism?' in J o u r n a l f o r S o c ia l J u s tic e S tu d ie s Vol.3 (1990) Special Edition Series 'Contemporary Race Relations'.

198

who are professional lawyers, school-teachers, and senior public servants seem a

long way from the overcrowded reserves in Walgett, but they show how

dynamic the situation is. The old men sitting drinking on the banks of the Darling

seem to be in a different world from the young people in Redfem. The dancers in

the Aboriginal and Islander Dance Company have very different experiences

from the Aboriginal prisoners in Grafton. There are many Aboriginal people

living in western Sydney Housing Commission houses who have left the more

inward looking communities for a possibly more peaceful but more isolated life.

Yet there is a common past and a sense of common identity among such diverse

groups.

There are other lines of differentiation. The radical activists who remain outraged

at the injustices of the past and of today speak a different language from the

serious bureaucrats who wish to achieve reforms. The respectable Aboriginal

junior officials in government jobs have different aims from the Aboriginal Land

Rights worker who arranges meetings to plan strategies. The writers and artists

who are creating a vision of the future may hope for a better future from the

prison visitor or alcohol worker. And the many many prisoners could join any of

the above categories if they could be freed from the barren and destructive cycle

of custodies.

There is a lot that all of these Aboriginal people share. The contrasting political

strategies are based on differing beliefs about what is possible, but on similar

understandings of past wrongs. There is an immense common feeling of shared

suffering at the hands of the wider society, of having won through difficulties

and of having common cause with all who have been subjected to the laws and

practices of a racist society.

SOCIAL AND ECONOMIC STATUS

The social and economic disadvantage of Australian Aboriginals is well-known.

The consequences to Aboriginals in economic changes have been severe.

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Employment opportunities shrank, and today unemployment is very high and

heavily concentrated in government agencies and organisations serving

Aboriginals. In every sphere, education, employment, housing, health,

employment and economic status, Aboriginals are at the bottom of the pile in

Australian society.

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CHAPTER 15 - THE HISTORICAL BACKGROUND

THE IMPORTANCE OF HISTORY

I will give some space to a summary of the history of Aboriginals in New South

Wales, Victoria, and Tasmania because it is not widely known and it is of

fundamental importance to the understanding of the present position of

Aboriginals. Many non-Aboriginals assume that the dispossession of

Aboriginals happened a very long time ago, and that there has been no obstacle to

their progress since. They are not aware how strongly the dominant society

continued to control Aboriginals, sought to destroy their identity, broke up their

families, denied them civil rights, and deprived them of opportunities for

initiative or experience in managing their own affairs. Nor are they aware how

strongly and continuously the Aboriginals resisted the attempts to destroy them,

an element of the story emphasised in the following account. It explains why

Aboriginals say so proudly today 'We have survived'.

NEW SOUTH WALES23

The initial dispossession

The invasion of Aboriginal land began in New South Wales in 1788, with the

invading English bringing their own labour supply, and aiming to establish an

agricultural base and to find a marketable product. The first impact was felt by

the immediate Aboriginal land owners, the Dharuk, including the Sydney clan of

the Eora, and the Gandangara, who suffered devastating losses from the

introduced disease smallpox within a year of the invasion beginning. Yet they

This section is based on a paper prepared for the Commission by Dr Heather Goodall.

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retained the determination to contest the loss of their lands, expressed in a series

of armed conflicts in the 1800s and 1810s, along the Hawkesbury and Nepean

rivers. They retained too the resourcefulness and flexibility to regroup after the

punitive massacres, and to regain some of their own country, on which some had

developed a farming base in the Burragorang Valley by the 1870s. The

directions of these coastal people were reflected in the paths taken by other

Koories, Murries and Wiimpatjas,24 the Aboriginal people of what became New

South Wales. Savaged by disease and violence, they nevertheless retained not

only the will to resist the invasion of their lands, but flexibility in the methods

they chose and the outcomes they sought in negotiating with their invaders.

The invasion took many forms over time and distance. The demand on world

markets for Australian wool in the 1820s and 1830s meant that the invasion of

the central grasslands was the most rapid and brutal, with thousands of sheep

pouring across the Great Dividing Range within a few years, devastating

Aboriginal game and harvesting resources. Some of the most fierce fighting and

most ruthless massacres took place on the grassland countries of the Gamalarai

and Ngiyamba in the north west (where Myall Creek and Hospital Creek are the

best known but not the only slaughter grounds), the Wiradjuri in the south west,

and the Paakantji on the western Darling. After the collapse of world markets in

1840, however, the pace of invasion slowed for some years on the north coast

and in the far west, reducing the level of violence and creating opportunities for

more varied forms of resistance and survival strategies among the Aboriginal

land owners.

Survival strategies

Some of these strategies involved working in European rural industries, while at

the same time maintaining traditional cultural and social networks. By the 1850s,

These are terms from various Aboriginal languages used by Aboriginals in different areas to refer to themselves, and are used in appropriate geographical contexts in this history.

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many Aboriginal men and women were employed as labourers in agricultural and

pastoral concerns, and as shearers, in some cases on cash wages equal to whites.

In more western New South Wales areas, sheep and cattle properties were soon

dependent on Aboriginal workers. By the 1860s, however, a process had

become evident which would be repeated for all rural labourers, Aboriginal and

white. A whole category of work was eliminated by changing technology - in

this first case it was shepherding which was made redundant by the introduction

of fencing.

Aboriginals responded to changing European land use by increasing their

pressure to regain their land. Not by military means now, but by petitions,

deputations and alliance with local whites, Aboriginals in the south west and

along the coast made the colonial government aware in the 1870s that they were

seeking farming land. Some Aboriginal groups were impatient with such

processes and simply moved onto vacant land within their traditional country and

began planting crops, with no European recognition or with only the tenuous

hold of a permissive occupancy.

Many of these reassertions of land holding were finally acknowledged by the

government in the 1880s, when it began gazetting Crown Land as 'Reserved for

the use of Aboriginals'. Of the 114 reserves gazetted by 1895, 72 (63%) were

declared over land already independently settled and under crop to Aboriginal

farmers or with Aboriginal owners ready to take up the land immediately.

There were some regions where European land use was changing so fast that

Aboriginals were pushed entirely out of employment and away from any access

to their country fortraditional social activity or subsistence harvesting. In these

areas, there was clear evidence of Aboriginal poverty and distress by the 1870s,

as was seen in the south western wheat belt and on the south coast, and

Aboriginals from these areas moved to towns where they demanded

compensation for loss of livelihood. When the south coast Koories moved to

Circular Quay, the government found them too embarrassing to be ignored, and

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it finally responded to missionary pleas to allow them to control and evangelise to

those groups.

Protection begins

The State government set up the Aborigines Protection Board in 1883 to monitor

the church activity and to give out rations. The Board had at that stage very few

other clear cut duties, no legislation and very little power, other than that which

was already vested in the police officers who were its agents across the State. In

fact from the 1880s to the early 1900s the Board acted as a responsive body: it

responded to missionary and philanthropic calls for supervised aid to Aboriginals

in some areas, but it also responded to Aboriginal calls for independent control

over land by gazetting and handing over, free of any supervision, the

independent reserves. Yet again, it responded to white employer calls, on the

northern slopes, to subsidise their Aboriginal pastoral workforce with rations in

the off-season and with reserved areas to secure their residence close to the

properties which were being divided by 'closer settlement' but which retained

high labour needs.

Aboriginals were in mixed conditions from the 1860s to 1890s: working in

some areas for rations only, they were in others employed for wages, and in yet

others living by a combination of seasonal employment and traditional

subsistence harvesting. Yet overall, despite some regional poverty, Aboriginals

were 82% self-sufficient, from some combination of these activities, in the

1880s. There were very few Aboriginals living on white 'charity' at that time and

the development of the Aboriginal farming base in the 1880s enhanced their

economic conditions. Not all the farming was self-sustaining: the family wheat

blocks on Cummeragunja on the Murray, for example, were farmed so skilfully

that they yielded at or above the region's average each year, but they were very

small, at only 27.5 acres, and could never support a family, and so Koories there

remained dependent on seasonal labouring. In the Burragorang Valley,

however, and on the north coast from the Hunter Valley to the Bellingen River,

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;ome Koories had been able to secure small areas of highly fertile land, which by

he mid 1880s were supporting at least 50 extended families by mixed farming

tnd some dairying.

Exclusion from education

Aboriginals were over the same period seeking access to the institutions of public

life, in particular the new 'free, secular and public' State schools. This occurred

first in the areas where farming had given an added economic security, the south

west and the north coast, but during the 1890s Murrie pastoral workers too

began calling for schools to be set up on the remote properties on which they

formed the major workforce, such as Goondabluie north of Walgett. They met

with resistance from local white citizens, whose complaints were eventually and

somewhat reluctantly supported by the State Department of Public Instruction.

One by one between 1880 and 1902, the public schools of New South Wales

were closed down to Aboriginal children.

This was not an impersonal decision by Sydney-based administrators, but a

series of bitter local struggles, in which white citizens opposed Aboriginal

parents face to face and forced their children out of the schools. The reasons

they offered were usually that Aboriginal children posed a threat to the health of

whites, but whenever these claims were investigated they were found to be

baseless. The major health problems cited were always nit and lice, conditions

from which all working class children suffered throughout the State. The real

anxieties held by white parents appear to have been that school would encourage

close social and perhaps later sexual relationships between their children and

Aboriginal children, an outcome which had ramifications for local status and

power.

Eventually, the constant white protests wore down the central administration, and

in 1902 the Director of Public Instruction issued a regulation which allowed a

public school to be racially segregated if there was any complaint by any white

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parent. Aboriginal parents in many towns repeatedly challenged these bans, but

the racial segregation of New South Wales public schools was maintained

officially for over 40 years, and in reality until the 1960s. Until 1973, all

Aboriginal children could still be temporarily excluded from a public school if

one Aboriginal child was believed to be suffering an infectious disease.

Dispersal and the taking of children

The Depression of the 1890s was extremely difficult for Aboriginals and many

were forced out of work. As there was no official unemployment relief, these

unemployed Aboriginals sought temporary aid on the ration lists of the Protection

Board, suddenly increasing the economic demand on the Board. It was

concerned that this would be a permanent drain on State resources, but, of more

significance, the Board's members were alarmed at what they took to be a rapid

increase in the numbers of non-'full-blood' Aboriginals which the unemployment

lists revealed. State parliamentarians were afraid that the Board was fostering the

increase of a group with different cultural values to the white population. In

those years of Federation and 'White Australia' sentiment, such fears were a

powerful motive to change direction, and by 1904 the Protection Board had

begun to seek strong new legislation to break up Aboriginal communities.

The Board most frequently referred to its new policy as 'dispersal' and as this

accurately conveys its aims, if not the real effects of the policy, it is a more

appropriate description than the conventional assumption that the Protection

Board sought to 'segregate' Aboriginals. Its first legislative base, gained in

1909, gave no powers to confine, nor did the Board seek such powers. Instead,

it empowered the Board to expel Aboriginals from reserves and managed stations

and to force them to move away from any town or reserve. Its aim was to push,

as it believed to be necessary, adult Aboriginals into the white working class as

isolated labourers, living independently of government and, most importantly,

separate from any other Aboriginals.

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The focus of Board interest was, however, on children, over whom it gained

powers in lo c o p a r e n tis in 1915. Its aim, expressed many times in its Annual

Reports, was to 'save' as many children as possible, by removing them to be

trained and indentured as domestics and labourers, but most importantly, to be

taught to forget their families. The children were never to be allowed to return to

their homes. The Board's goal was the eventual withering away of Aboriginal

communities altogether. The Girls' Home at Cootamundra was established first

in 1912, reflecting the Board's aim to reduce the Aboriginal birth rate by taking

away girls at puberty. They were to be indentured from there as domestics,

unfree labour to meet the demand from middle class homes which were

increasingly deprived of servants by the movement of working class girls into

higher paid factory work.

The second dispossession

As the economy began to improve after 1904, the closer settlement movement to

establish more small scale white farmers on the land was renewed. Whites began

to view the continuing success of the independent Aboriginal farms with

acquisitive interest. From 1905, the Protection Board came under increasing

pressure to revoke these reserves in favour of white settlers. This pressure

intensified and local Lands Department officers frequently demonstrated

sympathy with the white claimant. By 1914, Lands Department action had

forced a number of north coast Aboriginal farmers off their land, often in mid­

crop and always under protest. The first World War added emotive pressure,

with the Returned Servicemen’s Resettlement schemes, and by 1917 the

Protection Board had ceased its earlier defences of Aboriginal tenure and agreed

to revoke as many of the small reserves as the Lands Department should request.

This drive to revoke led to the loss of 13,000 acres of Aboriginal reserve

between 1911 and 1927, half of the total Aboriginal reserve land in the State. Of

the land lost, 75% was from the north coast, and all of it was fertile,

independently settled Aboriginal farming land. Bellbrook and Burnt Bridge on

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the upper Macleay were two of the very few such reserves which survived the

1920s, saved from alienation only by their relative remoteness and lower

fertility. One of the most productive farms had been the Kinchela lands at the

mouth of the Macleay, settied by the Drew families. These were not lost to white

farmers, but to the Protection Board itself, to set up more of the machinery for

the most destructive aspect of its dispersal policy, the removal of children.

Kinchela farm, which had been a flourishing symbol of independent Aboriginal

survival strategies, became Kinchela Boys' Home, a feared place where boys

removed from their families were kept in loneliness and abuse, to teach them to

forget their Aboriginality.

The Board's dispersal policy generated turmoil among New South Wales

Aboriginals as they were expelled or forced off reserves or as they escaped to

protect their children from 'removal'. The loss of the self-supporting farms was

devastating, especially on the north coast, but the improved employment

conditions of the 1920s allowed Aboriginals some flexibility to move to new

areas away from Board threats to their children. There were never more than

15% of the Aboriginal population under Board managerial control over these

years. The Board had created an illusory dispersal, reducing its ration lists from

the inflated numbers of the Depression, but generating large population increases

in town camps beyond its control, where Aboriginals continued to regard

themselves as Aboriginal, maintaining their extended family relationships and

obligations, and where they were most definitely regarded by whites as

Aboriginal.

The Board did, however, succeed in reaping a bitter harvest of children. More

than 1500 Aboriginal children were taken from their families between 1912 and

1938, at a time when the total known Aboriginal population of the state was only

between 6,000 and 10,000. Many others, for whom there are few accessible

records, were channelled into the Child Welfare system, where their

Aboriginality was officially denied, yet where they suffered subtle, covert

racism. Despite attempts to obstruct them, one in five of the children taken by

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the Board absconded and around three quarters of them returned eventually to

their own or another Aboriginal community, but the emotional scars borne by

these children and their families form a stark and enduring monument to racism.

Conflict in the towns

The Board had not reckoned on white resistance to its dispersal policy, which

had been formulated to appease Treasury and Parliamentary fears. It had led,

however, to great increases in the Aboriginal populations camping close to

country towns, which meant more Aboriginal demands for school access for

their children, more competition between white and Aboriginal workers and

greater visible Aboriginal presence on the town streets. Local councils began to

hector the Protection Board in the early 1920s, demanding that it acquire for the

first time the power to round up and confine Aboriginals, which of course was

precisely the opposite of the Board's own goals. Bitter struggles developed over

the decade as councils used evictions, demolitions and jailings to try to move

Aboriginals, and if those tactics failed, schools were segregated and children

threatened with removal. More informal means of control became widespread:

police harassment to enforce illegal curfews and vigilante gangs to discourage

Aboriginals from town streets were widely observed and in some cases

documented. Aboriginals resisted such pressure in a number of ways,

sometimes taking legal action, as at Lismore, or organising petitions, as at La

Perouse and Bateman's Bay, but their great vulnerability lay in the Board's

power over their children, particularly if the local school closed its doors and the

parents could be accused of failing to secure an education for their children.

Aboriginals in Yass, Walgett and Moree, to name only three out of many

examples, found that to protest a school segregation or to try to live in the town

of one's choice, meant losing one's children to the Aboriginals Protection Board

or the Child Welfare.

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Aboriginal organisation

The Board had not reckoned either on the resistance of Aboriginals. The families

of children under threat had opposed and fought removal, confronting Board and

police officers who tried to take children or fleeing to safer places. Communities

like Cummeragunja had opposed the seizure of their family farms and the

expulsions of individuals from the station with a series of law suits and then with

sustained civil disobedience in the early 1920s. The Koories of the north coast,

hardest hit by land losses and, later, by the removal of children, formed a public

and organised movement in 1924, the Australian Aboriginal Progressive

Association.

Soon linked with south coast and Sydney communities, the AAPA strongly

protested the loss of the lands and of children. The organisation held rallies of

up to 500 people in towns along the coast from 1925 to 1927, where speeches

were made by senior men in their own language, ceremonial leaders who had

also recently been farmers, who called on the government to restore their

traditional lands, their farms and their children. The AAPA petitioned parliament

and press, bitterly condemning the Board for tolerating the sexual exploitation of

the young girls who were 'apprenticed out' and then sent home pregnant.

Beyond this, the organisation organised secret support networks for girls abused

in this way. Fred Maynard, the Hunter Valley Koorie who was spokesperson

for the AAPA, called for acknowledgement of the values of Aboriginal

civilization, for enough land for self-sufficiency for each New South Wales

Aboriginal family and for recognition of cultural difference, with Aboriginals

allowed free access to public schools but also able to run their own schools, as

did Catholic and other religious groups.

This organisation could not stem the loss of lands, but it caused enough public

embarrassment to the Board to lead to some modifications to the child removal

policy. Children were thereafter allowed to return home, at the end of their

indentures, but only to face managerial insistence that they marry rapidly and live

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'respectable' lives. Women continued to bear the brunt of the Board's attempt to

culturally indoctrinate Aboriginals, finding their marriages regulated, their homes

inspected and tested, and their children always vulnerable.

The Great Depression

The 1930s Depression interrupted the Aboriginal political movement by closing

off the few economic options they had had in the 1920s. The Protection Board,

in a bid to meet the shortfall in its budget in the first lean year of 1929, appealed

to the government to allow it to take control of the recently granted Child

Endowment payments to Aboriginal families. It argued that Aboriginals could

not handle the cash, but the only complaints the administering body had made

was that some Aboriginals were underspending their grants. Nevertheless, the

Board was granted control over all Aboriginal families' Child endowment and

used the additional funds to cover the cost of its increasing ration lists as

Aboriginals were thrown out of work.

Aboriginals faced heavy job losses, but were systematically excluded from

receiving the new State unemployment benefits in New South Wales, although

eligible in Victoria for that State's dole. The New South Wales Department of

Labour decided that Aboriginals would have to prove they had 'performed a

white man's work', a test which no-one defined and which effectively excluded

most unemployed Aboriginals in the judgment of the issuing officers, who were

the local police. Despite Aboriginal a n d Protection Board protests, Aboriginals

were forced to turn to Board rations, although they were equivalent to only half

of the meagre Unemployment Food Relief available to white unemployed.

Excluded too from Local Government administered Work Relief, Aboriginals

were forced in increasing numbers on to the Protection Board's resources, until

over 30% of the known Aboriginal population was under the direct and

dictatorial control of Protection managers by 1935 and many more were on

reserves under the surveillance of the police. The Board was forced to admit the

failure of dispersal: Aboriginals had not disappeared or 'merged' with the white

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working class. Over 10,000 people were identified as Aboriginal by the census

collectors, a role also filled by the police.

The policy of concentration

The Board's limited finances were unable to meet the sudden demand, and no

new housing or services could be provided between 1929 and 1935 for the

massive population increases in stations and reserves, which were often carrying

twice the number who had lived there only a year before. The poverty and

sudden overcrowding caused major epidemics of respiratory and eye disease

which swept the Board stations in 1934 and 1936. The Board responded by

finally capitulating to town demands for segregation. It believed that it could only

gain funds to improve living conditions for a reduced number of large,

centralised managed stations, and it formulated a policy in 1934 to 'concentrate'

all Aboriginals on these newly expanded stations, which they would not be free

to leave until they had been 'educated' or 'trained' to live in ways acceptable to

whites. The policy of resocialisation, previously only applied to the children

removed from their communities, was now extended to all adult Aboriginals as

well.

Under the resulting 1936 amendment to the P r o te c tio n A c t, all Aboriginals,

including those of 'light caste' who had previously been told they were not

Aboriginals at all, were to be confined for as long as it took to reshape their lives.

For the Board, this was a programme with an end in sight, 'assimilation' into the

white community, a delayed but eventually more effective 'dispersal'. For local

government councils and rural white communities, the end was the confinement

itself, which they fully expected to be permanent.

Enforced concentration began in 1934 and continued until 1939, but it was

implemented only unevenly across the State. Most dramatically affected were

Aboriginals living where the rural economy appeared to be undergoing the

greatest restructuring, in the western and north coast pastoral industry areas

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where the largest properties were again being broken up. Whole communities of

Aboriginals were moved hundreds of miles by cattle truck and dumped on

Protection Board stations at Menindee, Brewarrina, Toomelah and Burnt Bridge.

Aboriginals protested bitterly but they had been made even more vulnerable by

the legislative changes of 1936, which they called the 'Dog Act', because it

allowed them to be carted around and penned up like animals. In reality they had

few choices, particularly if they had young children. Nevertheless, many were

transported only at gunpoint, like the Murries moved from Angledool to

Brewarrina in 1936. Others stayed in the new 'concentration' stations only so

long as economic conditions forced them into dependence on Board rations, like

the Wangkumarra of the Comer Country, who were forced to Brewarrina in

1938 but left in 1940, 80 strong despite the deaths of many of their old people, to

walk the 190 miles back to their country.

The fight for rights

The massive loss of economic and civil rights suffered by Aboriginals in the

1930s meant that as their political movement reemerged its focus had shifted.

This time a coalition of regional movements was formed. The Cummeragunja

community had linked with others in south-western New South Wales and

Victoria in 1934 to form the Australian Aboriginal League (AAL), to protest the

New South Wales economic discrimination of exclusion from the dole. The

AAL went on to express their long-held community aspirations for land in a well-

researched and pragmatic proposal for redevelopment of the family farms

programme, with Cummeragunja as the pilot project. The west and north­

western communities of New South Wales developed the Aboriginals'

Progressive Association, led by Bill Ferguson and Pearl Gibbs, protesting

economic discrimination, enforced movements and the appalling conditions on

the Protection Board managed stations. Their demands were for immediate equal

civil rights and for a long term goal of land settlement. On the north and south

coasts, the AAPA was reactivated with Jack Patten as spokesperson, opposing

Protection Board control and calling for restoration of Aboriginal lands,

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including the reserves taken in the 1920s. The worsening in access to civil rights

had made this issue the most common immediate demand, while land issues

remained on the agenda but as a long term demand.

A strong body of white support for the Aboriginal movement pushed the

government into reorganising and renaming the Protection Board as the

Aboriginals Welfare Board in 1939. The new Board included anthropologists

and later a token Aboriginal position, but the old 'Dog Act' legislation was

retained and real power never left white hands. Aboriginals bitterly rejected the

new bureaucracy, insisting: 'We are not savages, sinners or criminals. We do

not need anthropologists, clergymen or policemen to look after us’.

The most moving demonstration of Aboriginal distress occurred in 1939, when

the mismanagement and victimisation of the Board manager at Cummeragunja,

and the Board's rejection of the AAL's farm proposals, forced the Aboriginal

residents to walk off the land they had been fighting to regain for fifty years,

setting up a strike protest camp on the Victorian side of the Murray river at

Barmah. They stayed for nine months, despite arrests, harassment and a

freezing winter, mobilising press cover and trade union support to demand an

end to Board rule and the restoration of their farms. While they won the

dismissal of the manager, they did not regain their independent lands, and many

moved to Victorian fruit towns like Shepparton or to Melbourne, where they

formed the nucleus of later political activity.

The war generated such a change in the economy that Aboriginals found

themselves suddenly freed from economic dependence on the Board. By 1948,

only 21% of the Aboriginal population remained under managerial control on

stations and 96% of Aboriginals were employed. Aboriginals had moved to

areas where the Welfare Board had little means of control and where new work

opportunities had arisen. The Welfare Board was forced to admit the failure of

its 'confine and educate' plan, yet it was plagued by new and rising protests from

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white townspeople about the increased presence of Aboriginals in towns like

Moree, Coffs Harbour and Griffith.

Behaviour modification

In 1948 the Board formulated a new version of its reeducation policy: it

abandoned plans to concentrate Aboriginals by active relocation, and began to

construct a system of surveillance, which was aimed at monitoring precisely

those Aboriginals who had succeeded in extricating themselves from Board

control. The Aboriginals' Welfare Board appointed District Welfare Officers

(DWOs) to the towns where large populations of Aboriginals had recently

settled, and told the officers to observe and report on all Aboriginals in the area.

The means of control and social change was to be the newly developed

'Exemption Certificates' which would in theory entitle Aboriginals to have access

to public education, housing, services and facilities on the same basis as white

citizens.

Aboriginals had to apply and be recommended to achieve an exemption, which

meant proving to the DWO that they were willing to live separately from other

Aboriginal people, to work in approved 'regular' jobs and save for 'approved'

purchases, for example home furnishings but not for distribution of resources to

kin or for travel to maintain extended family relationships. Denial or revocation

of exemption certificates meant the family were more vulnerable to school

segregations and to loss of their children, were far less likely to receive Federal

unemployment benefits or old age pension, and were denied access to hotels and

alcohol, which meant exclusion from the labour exchange of many country

towns as well as from the social network of the rural male workforce.

Despite the high cost of not participating in the 'exemption' process, many

Aboriginals refused to be humiliated into applying for what they called a 'Dog

Licence', and opted instead to defy or subvert this behaviour modification

attempt. Between 1943 and 1964, when the system lapsed, there were only

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1500 applications for exemption certificates, out of a vulnerable population of

14,000. Around 1200 were approved, leaving 15% of applications denied or

approved certificates later cancelled. Nevertheless, Aboriginals faced increasing

interference and surveillance as the widening system of DWOs relentlessly

inspected and judged independently rented homes and riverbank shacks as

vigilantly as any managed station hut.

The old system of 'apprenticing' children had apparently been dismantled in

1939, but control over the process of removing children had merely been

transferred to the Child Welfare Department. The Welfare Board's managers and

DWOs (a number of whom were ex-managers) continued to act as 'friends of the

court', advising police and Child Welfare officers on Aboriginal home conditions

and the desire of parents to 'rehabilitate' and 'assimilate'. Increasing numbers of

Aboriginal children appear to have been taken in the 1950s and 1960s. Although

this is difficult to trace in the Child Welfare system, the Aboriginals' Welfare

Board homes demonstrated the increase: there were only 170 children in the

homes in 1951, but by 1961 there were 300. Fewer children were employed as

domestics after the war, although it continued to occur into the 1960s. More

often, children were fostered, first to 'suitable' Aboriginal families, but after

1956 the Board began advertising, successfully in its view, for white families to

foster Aboriginal wards, thus increasing cultural and social alienation. Aboriginal

families were warned repeatedly in Welfare Board reports, that if they did not

demonstrate a willingness to live like white people their children would be taken.

Economic changes

The extension of Welfare Board interference in Aboriginal lives occurred during

the 1950s and 1960s as the economic opportunities again contracted. As had

happened in the past, whole categories of jobs were lost as mral technology and

industry stmetures changed. Mechanized harvesters, for example, eliminated the

need for many workers in the inland wheat and coastal com industries, while

wheat silos eliminated the need for bag sewers. Trucks and motor bikes reduced

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lie need for horsemen and other stock workers in both sheep and cattle

industries, while road trains eventually eliminated droving jobs. Irrigated

agriculture offered many seasonal harvesting jobs, but Aboriginals faced

devastating competition in the Riverina from post-war European migration.

White rural working class families were uprooted and moved to urban industrial

areas, but Aboriginal affiliations to land and kin meant that many Aboriginal

workers sought to stay on their lands despite the economic changes.

In the 1960s, the new agribusiness of cotton generated many new jobs chipping

weeds out from between the young crop plants. This was hard labour in poor

conditions, but at least it offered some work for Aboriginals who made up the

majority of the seasonal workers. In this industry, however, the increasing use

of herbicides and pesticides diminished the need for chippers at the same time as

it caused deterioration of the land and riverine environment. Continuing

Aboriginal subsistence harvesting was being undermined in such ways through

the 1950s and 1960s, as introduced species and intensive chemical based

agriculture damaged the fish supplies in the Darling and other rivers at the same

time as cash work became less available. Over this time too, an introduced

species on which Aboriginals had come to rely for food and cash income, the

rabbit, was decimated by myxomatosis.

On the coast, the spread of white residential, leisure and tourist development

began to eat away at Aboriginal residence and access to the coast for subsistence.

Stuart's Island at Nambucca in the 1950s and Fingal Beach in 1960 were two

examples of such pressure, where the Welfare Board was prepared to accede to

white demand by revocation of the remaining Aboriginal reserves. Aboriginals

protested at all these locations, but only at Fingal were they successful in halting

further land loss. The Board's reserve revocations were most intense in 1955 to

1957, 1959 to 1960 and 1962 to 1965, precipitating reluctant Aboriginal

migration and reactivating the land issue as a major platform of New South

Wales Aboriginal politics by 1960.

217

In the situation of weakening economic opportunities, the Welfare Board could

allow concentration of the Aboriginal population (a goal it had only reluctantly

abandoned) by attrition. Read has described the Board's refusal to maintain

accommodation and facilities on smaller reserves on the Wiradjuri lands of the

south west, its bulldozing of houses while families were unavoidably away on

the ever lengthening seasonal work tracks, and the revocation of the reserves

themselves to force people on to the managed stations. In other areas, such as

the Macleay Valley, Morris has described a differing situation, where newly

appointed managers were imposed on the populations of previously independent

reserves like Burnt Bridge and Bellbrook. Although this generated less

population movement, both processes marked an intensification of Welfare

Board scmtiny into and control over Aboriginal lives.

Town housing

The Board had held out promises of improved conditions for Aboriginals when it

began constmcting its post-war system. The most attractive had been the offer of

a proper house: Aboriginals had been seeking reasonable rental accommodation

in country towns for decades before the war, as well as decent housing on

reserves and stations, but they had met with intransigent residential segregation

imposed by white townspeople. The Welfare Board had a powerful attraction

when it announced that if Aboriginal families could demonstrate that they would

live 'to standards acceptable to the white community' the Board would secure a

house for them in town. The Board's aim was to use such houses as behaviour

modification tools in themselves: separated from other Aboriginals in

'pepperpotted' houses. Such 'assimilating' families faced constant scrutiny and

judgment from their all-white neighbours as well as from the DWO.

Yet the Board failed to fulfil this most central of its promises. The housing

shortage was severe: in 1949, the Board estimated that 600 to 700 houses were

needed simply to meet the current demand. In the following year, the Board built

60 houses on managed stations. But the Board simply could not breach the

218

intransigence of rural residential segregation: from 1946 to 1960, only 39 houses

were built for Aboriginals inside municipal boundaries. The towns simply

would not admit Aboriginals: suddenly no land could be found for Board

acquisition, or the tradesmen who had been engaged to build the houses

withdrew their tender, or the Board was flooded by deputations and petitions

from local government councils and white residents.

The Board responded to what it called 'strenuous opposition' and 'fierce

prejudice' by creating reserves and building houses on them, eg at

Gulargambone and Coffs Harbour in 1948 to 1950, or by retreating from town

building promises and placing new houses on managed stations. As late as 1967

the Board was being forced to acquire land by reservation on the outskirts of

town boundaries.

Intense conflict with white townspeople occurred throughout the 1947 to 1969

Welfare Board period but peaked in blocks in 1947-52, 1956-61 and 1965-68,

and was ongoing at the Board's own demise in 1969. The Board's reserve

revocations, which were most intense 1955-57, 1959-60 and 1962-65, had

possibly generated some population movements which intensified town alarm at

rising Aboriginal populations.

A most significant catalyst must have been economic conditions, with

employment declining sharply in 1958-60 in the Riverina and north coast

regions, and in 1966-69 in the western pastoral areas, with mechanisation and

drought. This meant unemployment for whites too, and a loss of white

population to the cities in these periods, increasing the insecurity of the white

populations which remained in rural areas, particularly those in most economic

decline. A final catalyst was Aboriginal political pressure to desegregate the

towns, which had been mounting since 1956.

There was as well a small but growing body of white rural support for

desegregation: the Board-fostered 'assimilation committees' had in many cases

219

come to criticise the Board itself for acquiescing in town resistance and formed

effective lobbies inside the local government ranks, as happened at Coonamble,

dubbed 'Australia's Little Rock', where an alliance of Aboriginals and a few

townspeople succeeded where the Welfare Board had failed, to secure the first

house blocks in town. A few of these white supporters went beyond this

demand for access to town services, and began to join with Aboriginals to

criticise the whole basis of 'assimilation', recognising the cultural and social

costs imposed on families forced away from their chosen communities to live in

'pepperpotted' houses.

The Board had not only failed to penetrate rural residential segregation but had in

effect acted as a legitimator of that segregation, by consistently resolving disputes

by creating reserves and then building houses on them, despite its stated policy to

do neither, rather than fighting the battles required to gain footholds in the

towns. After the mid-1950s, the Board increasingly sought to shift the blame

from itself or white townspeople by blaming Aboriginals for insisting on living

in town camps rather than in town houses. Yet, as demonstrated by the Board's

own failure, there were in reality no alternatives except to move to another town,

with little guarantee of better conditions, and when towns refused to supply

amenities to camps. Only in 1967 did the Board admit that the major obstruction

to housing Aboriginals in towns had been white residents' objections.

Access to education

The Board failed too in its promise to desegregate public schooling, despite its

claims in 1955 to be rapidly closing the 'special' poorly resourced 'Aboriginal

schools'. The result, documented well by Fletcher in the case of Collarenebri,

was frequently a covert but no less powerful form of segregation, in which

Aboriginal children were allowed into the public school, but then placed all in

one class, with no white students, and at times even allocated separate playing

areas fenced off from white children. In 1961 Education Department figures

220

howed that far fewer Aboriginal children than white stayed on till the later years

>f schooling.

fhe Board, characteristically, attributed the 'failure' to Aboriginals, stating in its

1961 report: 'Aboriginal children, as a whole, do not possess an intelligence

quotient comparable to that of their white counterparts'. In the Board's view,

this was the 'principal factor' in the low retention rate of Aboriginal children in

high school. The Board retracted this view in the 1962 Report, only to blame

Aboriginal parents' lack of support for the low retention rate, despite the years of

Aboriginal struggle to gain entry to the system. Nevertheless, the public

expression of such crude genetic determinism by the body administering

Aboriginal affairs must indicate its widespread currency in the various

departments (Child Welfare, Public Health and Police) represented on the Board.

It is not surprising then that Aboriginal dealings with the AWB and these other

departments should be shaped by culture-bound assumptions about 'IQ', which

appear consistently on the documentation about Aboriginal clients.

Such an assumption was reflected in the frequent justification for internal

segregation in which the Aboriginal class was labelled a 'slow learners' class,

although remedial teaching was seldom if ever offered. There are disturbing

signs of a continuation of this approach in the present in the New South Wales

Department of Education. 'IQ' tests continue to be conducted, despite their

demonstrated cultural bias, and a combination of such spurious testing and

teachers' judgment has labelled 6% of Aboriginal children in the State system as

'mildly intellectually retarded' or ΊΜ'. This proportion is even higher, at 10%,

in western and north western New South Wales, suggesting that the issues are

social, cultural, economic and political rather that genetic.

The Board then, from the 1940s into the mid 1960s, delivered very few of its

promises to Aboriginals. Instead, it actually acted to c o n ta in Aboriginals,

maintaining and even justifying segregated living conditions and using

exemptions and threats to children to police Aboriginal behaviour. Like its

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predecessor the Protection Board, the Welfare Board acted, even if reluctantly, in

the interests of the white population.

Aboriginal organisation continues

Rather than the long boom experienced by many white Australians, the 1950s

and 1960s were decades when New South Wales rural Aboriginals faced

constriction of the job market, an increase in bureaucratic surveillance and

interference, the loss of more of their reserve lands, and continued residential and

educational segregation. Aboriginal individuals and communities resisted these

processes in varied ways, many refusing to engage in the exemption system, for

example, and attempting to maintain their wide family obligations despite

obstruction and disapproval by managers and DWOs. The Board had demanded

rent from its tenants, often for miserable unserviced huts, as a tool for educating

Aboriginals to 'accept responsibility'. Most refused to make the nominal

payments, and even the Board had to recognise that it faced widespread civil

disobedience in protest 'for dispossessing them of their lands'. Other forms of

resistance were more ambiguous and destructive: for at least some Aboriginals,

public expressions of defiance were made by adopting forbidden behaviour, such

as drinking, despite or indeed because of the continued illegality of supply of

alcohol to them.

A persistent Aboriginal response, however, was to organise politically, although

the white support of the 1930s had been eroded by the Welfare Board's early

liberal rhetoric. Pearl Gibbs, in particular, campaigned through the Council for

Aboriginal Rights, based in Dubbo but with some Sydney trade union support.

She organised protest meetings and gained some press attention for the appalling

conditions Aboriginals were facing in north western New South Wales, with no

town housing to rent because of white racism, no services to town camps

because of local government reluctance to encourage Aboriginal presence and no

freedom under Welfare Board control on the managed stations.

222

Local Aboriginal communities protested the increasing use of bulldozers against

the camps by local government, and against reserve housing by the Welfare

Board, and by 1956 they had gained some urban support in the formation of

Australian Aboriginal Fellowship (AAF) in Sydney. This organisation served as

a focal point for reemerging white support and in 1957 assisted Pearl Gibbs by

sending union representatives on a fact-finding tour to Walgett to publicise rural

segregation and tension. On the north coast, the increased tempo of reserve

revocation was the catalyst for the political mobilisation of the Bandjalang, the

original owners of the country stretching from the coast where tourist

development was increasing into the rugged hill country where the beef cattle

industry was being finally restructured. In a series of conferences and meetings

from 1960 to 1962, the north coast Koories brought land rights back to the

forefront of the political agenda, with calls for the restoration of traditional lands,

an end to reserve revocations and assistance to develop the lands agriculturally

along co-operative lines.

Movement to the cities

By the late 1950s, some Aboriginals had decided that the industrial areas of the

cities offered better economic, educational and political conditions than the

suffocating conservatism and racism of so many small rural towns. This

migration was along paths trodden already by kinsfolk, so that chain migration

occurred to Sydney suburbs where some Aboriginal families had been living for

decades. Redfem and Alexandria were the most publicised destinations, but

Aboriginal communities were also well established on the old Gandangara and

Dharuk lands of western Sydney.

Conditions were poor, with many Aboriginal migrants able to afford no more

than crowded slums and with intense racism manifested by real estate agents and

local governments at any signs of increasing Aboriginal population. What was

not present was Welfare Board control: the Board had never developed a strong

urban surveillance structure and it appeared to find the task of monitoring

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complex and dense urban communities just too difficult. In default of the

Welfare Board to contain Aboriginals, local government and white residents

called on police to control their presence and behaviour. By the early 1960s

Aboriginal concern about police harassment was becoming more public and raids

on hotels and homes were increasingly well documented.

As they had in rural areas, the rising Sydney Aboriginal population formed

supportive networks which offered social and then later political organisation.

The 'Redfem All-Blacks' football club was one such body, which provided a

vehicle for strengthening community links but also a base for negotiating with

predominantly white support groups like the AAF. Ken Brindle, an activist

involved in the 'All-Blacks' was central in mobilising and directing the AAF to

address the pressing issues for urban communities, notably accommodation and

police harassment. Brindle himself was savagely bashed by Redfem police

when he tried to assist the family o f Patrick Wedge, a Wiradjuri man shot by

police in 1963. The Council for Civil Liberties' involvement in Brindle's

defence and damages claim laid the foundation for later alliances between urban

lawyers and Aboriginal activists.

The Welfare Board had begun to recognise its own failure to break into mral

residential segregation by the early 1960s, and it attempted to intervene in the

stalemate of conflicts between towns and Aboriginals by pushing Aboriginals

towards the industrial workforce of the coast. While some Aboriginals clearly

chose migration, at least temporarily, many others had continued to assert their

rights to live in the area of their choice, which was often related to their

traditional country and always to their extended family relationships. From 1960,

however, the Welfare Board began to argue that young people and their families

should 'pull up roots' and seek housing and training in the cities, and in 1962 it

threatened that those Aboriginals who failed to respond to such suggestions

would be forced off reserves and stations. In 1963, the Board began to use the

Housing Commission to acquire houses in urban areas rather than in the mral

towns with highest Aboriginal populations and highest demand for houses. The

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intention was made very plain to Aboriginals: if you wanted a house at all, you

would be far more likely to get one if you agreed to move to Sydney or

Newcastle.

Struggles of the 1960s

At the same time, as the conditions under which Aboriginals were living had

become more public due to agitation by Aboriginal and white groups, the Board

made a last ditch attempt to minimise the isolation of some Aboriginal reserves

and to be seen to be addressing the health and housing crisis. Some large and

remote stations were closed and a series of housing settlements were rapidly built

on reserve land at the edge of towns like Brewarrina, Bourke, Kempsey and

Moree from 1964 to 1966, all cheap and jerry built, but at least allowing the

Board to call them 'town settlements' rather than reserves. These white towns

had all won their battles to keep Aboriginal families outside municipal

boundaries, but the Welfare Board then simply dumped large Aboriginal

populations in overcrowded and poorly-built houses on the very edges of those

towns, exacerbating anxieties and tensions.

The Aboriginal movements had been openly condemning the cultural destruction

sought by the 'assimilation' policy since at least 1958, when Bert Groves

reasserted, for the first time since 1927, the cultural distinctiveness and values of

Aboriginal societies. Aboriginal involvement in the AAF and the early meetings

of the Federal Council had encouraged the national, pan-Aboriginal perspective

which had been so evident in the Aboriginal Progressive Association of the

1930s. Since 1957, there had been strong New South Wales Aboriginal support

for the AAF campaign to change the federal Constitution to make the

Commonwealth Government responsible for Aboriginal Affairs, the fulfilment of

another platform of the 1930s movements. In the early 1960s, however, the

focus of political organising returned to New South Wales, and the Aboriginal

movements campaigned strongly during 1962 for the abolition of the Welfare

Board and the dismantling of the Assimilation policy. They generated a debate

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about the relative merits of 'assimilation' and 'integration' which raged in the

press in the following years. Major changes had already occured when the

Commonwealth Government agreed in 1960 to grant pensions to any aged

Aborigine, regardless of 'caste', place of residence or 'exemption'. The powers

of the 'Dog Licence' were now greatly diminished, and with them, the power of

the Board to threaten and intimidate New South Wales Aboriginals.

The remaining legal restriction was Section 9, the ban on the supply of alcohol to

Aboriginals. After an effective Aboriginal and AAF campaign, this too was

removed in March 1963, taking with it the final power of the exemption

certificate. The level of Aboriginal drinking appears to have been little affected,

according to police reports to the Welfare Board, as those Aboriginals who had

wanted alcohol before had been able to obtain it at an inflated 'black-market'

price from publicans and storekeepers, who appeared happy to sell methylated

spirits to alcoholics. This avenue of abuse was closed off, although there were

many towns where Aboriginal access to the normal venues for social drinking

has never been achieved, with Aboriginal drinkers instead confined to the least

comfortable back bars of many country pubs. The few early figures which are

available on arrests of Aboriginals for public drunkenness appear to indicate that

an increase in Aboriginal drinking occurred not in 1963, with legalisation of

supply, but much later, in the 1970s, when employment in many areas had dried

up altogether for Aboriginals and the level of confrontation between local

government and Aboriginals had risen still further.

Through the early 1960s, there was growing urban support for local rural

activism which challenged the segregation in picture shows, swimming pools

and pubs, all symptoms of the fundamental residential segregation. While there

was increasing metropolitan press coverage for events like the Labour Council

delegation to Walgett in 1964, it was not until 1965 that there was major attention

given to the issue. The Freedom Ride, with its tape recordings and photographs

of ugly confrontations over attempts to break the colour bar, produced chilling

evidence for urban audiences of the racism in rural New South Wales. It was, as

226

well, a very public announcement of a new alliance between Aboriginals in both

urban and rural areas and white professionals, in this case university students,

who were later to become the lawyers and others who staffed the 1970s

Aboriginal controlled organisations. It contributed far more than the Welfare

Board had ever done to public awareness of the problem, and to the breaking

down of the petty but infuriating segregation of rural public spaces. Residential

segregation, however, was to be far more persistent.

The years of previous campaigning combined with the direct action and high

publicity of the Freedom Ride to prompt a New South Wales government select

committee inquiry into the Welfare Board in 1966. Its report condemned the

Board, but largely, it argued, because the Board had not been assimilationist

enough, continuing to foster Aboriginal communities by allowing reserves to

persist, when it should have been actively pepperpotting families all over the

State. The report's underlying directions to the bureaucracy were therefore to

continue and indeed accelerate many of the very policies opposed by Aboriginals.

Nevertheless, it spelt the end of the Welfare Board as an entity, and plans began

to dismember its functions and transfer them to relevant departments, such as the

Housing Commission and Child Welfare Department. The demise of the Welfare

Board appeared a positive step, and a new rhetoric of 'integration' had replaced

the earlier 'assimilation' terminology, and it seemed that political activism had

made a major impact.

The referendum and the 1970s

Just as dramatic were the results of the long-awaited federal Referendum, which

in 1967 won overwhelming support for the proposals to recognise Aboriginal

people symbolically by including them in the general census count and to transfer

responsibility for Aboriginal affairs to the federal Government. Close analysis of

the voting returns showed, however, that the areas with the lowest 'yes' votes

were those rural areas with large Aboriginal populations, which had usually

manifested the most entrenched discrimination and segregation. In New South

227

Wales, the racial conservatism of rural areas was being fanned into the open by

the political challenges of Aboriginal reassertion and by the growing sense of

insecurity as the Welfare Board was dismantled. This body had effectively

managed and contained Aboriginals for white townspeople, and now it was

going. In fact, the diffusion of the sites of control and surveillance to a number

of other departments made those powers greater and more difficult to fight. The

large bureaucracy of the Housing Commission, for example, could much more

effectively force Aboriginals to conform to 'normal' standards in house use, rent

and location than the smaller and more personalised Welfare Board had been able

to do. Yet for rural local government, particularly in those towns with newly

constructed and adjacent 'town settlements', the situation looked far less

controlled than in previous years, and rural media in western areas began to

reflect calls for more police, more control of Aboriginals and more 'law and

order’ from the early 1970s.

The Aboriginal political movement too expressed grave concerns about the

directions of New South Wales policy. Aboriginals had little real input into the

new administration, the Directorate of Aboriginal Affairs under the Ministry of

Social Welfare. Although an elected Aboriginal Advisory Council first sat in

1970, it had no powers independent of the Minister, and in one of its earliest acts

agreed to the revocation of Kinchela reserve. The pressure on Aboriginals to

conform to Housing Commission expectations of nuclear family and urban living

was intensifying, and Aboriginals found the new Directorate even more openly

committed to urban relocation than had been the Welfare Board. The

recommendations from the Directorate to the Housing Commission in 1971 show

far more houses being constructed for Aboriginals in urban areas than in areas of

highest demand like Bourke. Such discrepancies demonstrated the distance

between Aboriginal demand and Directorate intentions.

Aboriginal concerns were not allayed when the Director of the Directorate, Ian

Mitchell, initiated the Aboriginal Family Resettlement Programme, a scheme to

assist supposedly voluntarily migrating families. Aboriginal suspicions were

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widespread that substantial pressure was applied to community leaders to attract

them with house and job offers in order to stimulate chain migration, and that the

covert goal was the old Protection Board one of closing down the reserves

altogether, to be left with atomised, urban families rather than Aboriginal

communities. [At least 200 families had been moved in this way by 1980, but

25% of them had returned to their rural homes, and more were to do so in the

following years as employment opportunities in urban secondary industry

disappeared. The programme collapsed in 1988.]

The anxiety generated by the recognition that Aboriginals would continue to be

under pressure to leave their home countries if they wanted decent housing, was

heightened by the continued threat to reserve lands by revocation. Some

concessions were made to reassure the most politically active communities like

Woodenbong that their reserve would not be revoked, but the Directorate was

clearly not committed to maintaining what little remained of the Aboriginal land

base.

The new organisations

To concerns about the direction of policy were added the very immediate

concerns generated by increasing police harassment, most noticeably in the inner

suburbs of Redfem but in rural areas as well. Tensions were rising as local

authorities, urban and rural, expressed their insecurity over the loss of the

Welfare Board, and the growing effectiveness of Aboriginal political re assertion.

The alliance between Aboriginals and urban professionals, first obvious in 1965,

bore fruit in the documentation of police harassment and violence in the early

1970s and then in the formation of the Aboriginal Legal Service in Sydney in

1971, with branches established in rural areas by 1973. While influenced by

strategies of organisational support being established in urban Afro-American

communities, the New South Wales attempt to make the legal system more

accountable reflected a response to the realities Aboriginals were facing in both

urban and rural areas, where police were being called on more frequently to fill

229

the vacuum in managing Aboriginals which appeared to have gone with the

Welfare Board. The example was rapidly followed in the health field by the

establishment of the Aboriginal Medical Service.

The use of white professionals like lawyers and doctors, under direct Aboriginal

control, was an organisational structure which was untried in Australia and

which brought immediate results in improving legal representation for

Aboriginals at least to the level accessible to the urban working class, but beyond

this more fundamental political changes were needed. This was the basis in 1975

for the New South Wales ALS and the Central Australian Aboriginal Legal Aid

Service to call for a wide ranging Royal Commission to inquire into Police

Aboriginal relations, in the context of the wider role of police as a body

interconnected with other institutions such as the State child welfare and health

authorities and local government. The fall of the Whitlam Government in 1975

ended plans for such a national inquiry, although more limited studies have been

undertaken until the issue of Aboriginal deaths in custody pushed the complex

matter again into prominence and generated the current Royal Commission.

Aboriginal political concerns in the early 1970s had reflected, as well as the

immediate pressure of relations with white society through the police, the

increasing pressure on land and the right to live in communities in the area of

people's choice. This focus on land and country issues was demonstrated in the

New South Wales-initiated Tent Embassy demonstration in 1972, in which New

South Wales concerns were welded to those of Aboriginals from all over

Australia. The increased pressure on the incoming Whitlam government to make

concessions on Land Rights had effects outside Commonwealth territories, as the

New South Wales government conceded in 1973 that there should be some

recognition of Aboriginal concerns about land by renaming the Aboriginal

Advisory Council the 'Lands Trust', although without giving it any more powers

and certainly no more land.

230

Aboriginal communities were using the newly available Commonwealth funds to

more effect: the emergence of Housing Companies in many rural towns reflected

the assertion by these communities that they intended to remain on their chosen

country a n d have decent houses. As the rural recesssion deepened in the mid-

1970s, many rural areas lost significant numbers of white residents, and the

combination of vacant houses and some available funds for Aboriginal housing

companies led to the first real breakdown of rural residential segregation, with

the housing companies finding themselves able to buy up the empty houses in

previously white neighbourhoods. Such a process continues to be partial and

incomplete, but to the extent that residential segregation has been challenged, it

has been Aboriginal housing companies which achieved what gains have been

made. Aboriginal goals have not been 'pepperpotting', however, and they

continue to struggle with State housing authorities which are now more inclined,

with federal funds, to build homes for Aboriginals in rural towns of Aboriginal

choice, but in general refuse to build on Aboriginal reserve land.

Beyond the limited success of the housing companies, Aboriginal political action

continued to focus on land issues through the early 1970s, building strength

from the public awareness of the Woodward Inquiries into Land Rights in the

Northern Territory, but grounded in 200 years of very local Aboriginal

campaigns to regain traditional lands and reestablish an economic base. Out of

this movement, the New South Wales Aboriginal Land Council was formed in

1976, an organising body which included veteran land rights activists from the

coastal movements of the 1920s, people from the west who had experienced the

enforced moves of the 1930s as well as younger people involved in these issues

for the first time. It was this body which lobbied the New South Wales State

government until it established a Select Committee inquiry into Land Rights,

which eventually recommended Land Rights legislation in New South Wales,

passed in 1983.

A related idea was beginning to emerge by the mid-1970s. This was

sovereignty, an amorphous but powerful formulation of a number of strands

231

which had been developing in Aboriginal politics. Aboriginal mobilisation for

equal and non-discriminatory access to education, housing and other public

services was increasingly tempered by disillusion with an 'equality' that differed

little from assimilation, an 'equality' which still spelled 'the same as whites' and

which denied Aboriginal aspirations to develop their own cultural directions, an

'equality' which was often invoked to make disadvantage permanent. With this

disillusion was a rejection of increased bureaucratic surveillance, well-established

under the Welfare Board and expanding ever more rapidly under the variety of

Federal and State departments with which Aboriginals were dealing after 1972.

Linked with the cultural reassertion of the 1970s and based on the movement to

regain lands, these strands have continued to interact in complex ways, forming

and reforming to shape the public face of Aboriginal political and cultural action

over the following decade.

VICTORIA25

The invasion and settlement of Victoria

Prior to the actual settlement of Europeans at Port Phillip in 1835, populations in

what is now Victoria were probably halved by smallpox spreading south from

Sydney around 1790, and again significantly reduced by another outbreak in

1830. Only Gippsland appears to have escaped the disease. The aftermath of the

white arrival was even more shattering. According to official estimates, about

10,000 Aboriginal people remained in Victoria in 1835, but by 1853 only 1,900

survived - a decline of 80% in 18 years. Disease, malnutrition, declining birth

rates and alcohol, all themselves the result of dispossession, accounted for about

In addition to evidence of Aboriginals, the Commission has had the benefit of a paper V ic tim s a n d V o y a g e r s : T h e A b o r ig in a l E x p e r ie n c e o f th e E u r o p e a n

C o lo n ia l P r e s e n c e in V ic to ria sin c e 1 8 0 2 by Dr Richard Broome, the author of A b o r ig in a l A u s tr a lia n s (1982). What appears here largely draws on the outline given in the R e p o r t o f th e I n q u ir y in to th e D e a th o f A r th u r M o f fa tt.

supplemented by material from the R e p o r t o f th e I n q u ir y in to th e D e a th o f J a m e s A r c h ib a ld M o o r e and the R e p o r t o f th e In q u iry in to th e D e a th o f S h a n e K e n n e th A tk in s o n .

232

90% of the fall of 8,000 in the population. White violence, and to a lesser extent

black violence resulting from the disturbance of traditional balances, caused

possibly 10%.

The decline occurred in the face of one of the most rapid land occupations

known. By 1850 six million sheep and 400,000 other stock grazed the lands of

Port Phillip. As hunting and gathering and the depasturing of sheep are both

activities which seek to use all available land, the traditional basis of Aboriginal

life was rapidly destroyed, except in remote and less accessible areas. The

population decline was not halted by the Port Phillip Aboriginal Protectorate,

which operated from 1839 to 1849 under humanitarian pressures from Great

Britain.

The reserves

For 13 years after 1849, Aboriginals were left to fend for themselves, aided by

the gold rushes of the 1850's which drew labour away from pastoral properties

and so created a temporary acute demand for Aboriginal labour. There are

records of Aboriginals expressing a wish for land to farm as early as 1843.

Following the Report of a Select Committee of the Victorian Legislative Council

in 1859, a Central Board for Aborigines was established in 1860 to proclaim

Aboriginal reserves, distribute Government monies and oversee local Aboriginal

protection committees.

The first allocation of land had in fact been made the year before, when the

Minister for Lands, impressed by a deputation of Kulin Aboriginals from the

Melbourne and Goulbum Valley areas, had allowed them to select 1,820 hectares

in an area of special significance to them. Although they received no help with

supplies and equipment, they rapidly set about developing the reserve, only to be

moved after pressure from settlers who coveted the land. After three such moves

between 1859 and 1863, the Kulin 'squatted' on a traditional site near

Healesville, which they named Coranderrk, and which came under the control of

233

the Board in 1863. Other reserves under the direct or indirect control of the

Board were Framlingham (1861), and the Church mission stations at Ebenezer

(1859), Ramahyuck (1861), Lake Tyers (1861) and Lake Condah (1867). By

1869 only a quarter of Victorian Aboriginals had been enticed onto the reserves,

and in that year powers of coercion were given to the Board for the Protection of

Aborigines.

Where the Aboriginals had cultivable land and sympathetic management, they

showed great industry and ability in farming. Coranderrk became for a period a

model agricultural settlement. Other reserves with more regimented management

gave less scope for Aboriginal creativity, and Coranderrk itself was often in

rebellion.

Segregation and assimilation

In 1877 there were still less than half of Victorian Aboriginals on reserves,

although there was a continual flow between the reserves and the outside world.

In that year the policy of segregation on reserves was questioned by a Royal

Commission, and a new Act of 1886 gave effect to a new Board policy of

segregating 'full bloods' on reserves, together with 'half castes' over 34 at the

time, who were considered too old to adapt. The rest of the mixed blood

population was to move into the general community and be 'absorbed', or, as the

popular term later became 'assimilated'.

The process was aided by the initiation of a policy in 1898 whereby all 'half

caste' children living on the reserves were transferred on leaving school to the

Department of Neglected Children. After initial training in departmental homes in

rural and domestic work, they were sent out to 'service'. The head of the

mission station at Lake Condah commented in his annual report for 1900:

'As the blacks are dying out, and the Board removes the half-caste

boys and girls by handing them over to the Industrial Schools

234

Department, finality is greatly facilitated and will doubtless be

attained in a few years'.

Lake Tyers

The reserves, their viability already undermined by lack of capital for stock and

equipment, insecurity of title, dictatorial management, and the Board's

unwillingness to let residents keep the fruits of their labour, now had most of

their manpower sent away. Their populations and production declined and the

Board closed Ebenezer in 1902, and closed and sold most of the others by 1923,

by which time only Lake Tyers remained a functioning reserve.

Residents of other reserves, including Arthur Moffatt's forebears who had been

on Ramahyuck and Coranderrk, were transferred to Lake Tyers, where the

numbers increased from about 50 in 1920 to over 230 by 1925.

The management at Lake Tyers was despotic. As late as 1968 people coming on

to the reserve had to obtain a permit, and give two weeks notice - even those who

had previously lived there and wished to return.

At one time, under sympathetic management, there was flourishing agricultural

production on Lake Tyers. Subsequently farm buildings were dismantled by

successive managers, conditions were let mn down, and pressure was applied to

make residents leave. The McLean Report of 1957 recommended that Lake

Tyers should be administered with a 'helpful, but firm policy of assimilation',

and that there should be a return to the spirit of the 1886 Act 'to encourage or

force' the able bodied off the reserve. The reserve itself should be reduced

twenty-fold to 200 acres set aside for the care of those unable to fend for

themselves. The pressure was maintained and by 1965 there were only 50

people left at Lake Tyers.

235

But Lake Tyers had become a symbol of Aboriginal survival. Victoria's

Aboriginal people, led amongst others by Doug (later Sir Douglas) Nicholls, and

Arthur Moffatt's father, Laurence, fought back and finally won. There was a

change of policy - instead of Lake Tyers being closed down, a project committee

was set up to make recommendations as to the improvement of the reserve. In

1965 it was gazetted as a permanent reserve. In 1968 the permit system was

abolished and residents were allowed to own their own motor vehicles. The

mission at Lake Tyers had been established in 1861 and the first accommodation

erected in 1864. A church had followed in 1868, but it was to be 100 years

before the people of Lake Tyers gained any security of title, even to this little

residue of the State of which Aboriginals had once been the sole proprietors.

In 1971 the 1,600 hectares remaining of the reserve were handed over to the

surviving 40 residents under communal freehold title, each member of the

community holding trust shares that prevented future sale if one member

objected. Together with Framlingham, Lake Tyers was the first hand back of

land to Aboriginals in Australia.

Shares in the Lake Tyers Trust were given to all people who lived on the reserve

as at 1 January 1968, and to people subsequently admitted with the approval of

the Lake Tyers Aboriginal Council. The disenfranchisement of many former

residents, who regard Lake Tyers as home, has remained a source of

considerable resentment and conflict, as people who had been bom on Lake

Tyers, but had succumbed to the pressure to move prior to 1 January 1968, did

not receive any rights in respect of the reserve. They could become members of

the community again only with the approval of those who had been fortunate

enough to qualify. Arthur Moffatt was one who had left in 1954 to do his

National Service, and thereafter made his life in the Latrobe Valley.

236

Life off the reserves

Until 1957 the Victorian government did not acknowledge the existence of those

Aboriginals who over the years had yielded to the pressures and left the reserves.

They eked out an existence, usually by casual work, moving between familiar

places and camping or living in humpies and temporary dwellings on river

banks. Rabbiting was an important occupation and source of food. The official

attitude was expressed in 1941 when the Victorian Chief Secretary replied to

suggestions that Aboriginals from Cummeragunja, who had settled in bag and tin

humpies on the river bank at Mooroopna, should receive some official help. He

explained that they were not Aboriginals; 'they were quadroons, octoroons and

of light colour, and were ordinary citizens, entitled to the benefits and privileges

of citizens, also their responsibilities'. Such an attitude ignored the whole

history, and the fact that, whatever the legal position, they were socially

stigmatised by the dominant white population as Aboriginals. It also ignored

their own sense of identity as a distinct people.

In 1944 a survey was published by two research students in the Melbourne

University Agricultural School of all Victorian towns with a population between

250 and 10,000 people. This included towns such as Lakes Entrance, Orbost,

Warragul, Morwell, Moe and Baimsdale. The only mention of Aboriginals

anywhere in the book was in a discussion of the prevalent attitudes in the towns:

'The Australian aborigines, who present no economic

competition, for they are only used when labour is very scarce,

are not hated. They are despised, good humouredly: "You can't

expect them'to leam anything. They're really just like animals".

Generally speaking, in the few districts where there are any

numbers of them, there is very little sense of responsibility

towards them. When the girls are prostituted by white men the

community reaction is not against the latter, but is expressed in

237

such a comment as: "The blacks are like that, they don't know any

better'".26

Modern assimilation policy

However concern about the condition of Aboriginals in Victoria built up

sufficiently for the Bolte Government in 1955 to appoint Charles McLean, a

retired Chief Stipendiary Magistrate, to conduct an inquiry. He counted about

1,346 Aboriginal people, later found to be an under-estimate by about 50%. He

found that most rural Aboriginals, apart from those at Lake Tyers and

Framlingham, lived in squalid humpy conditions. He recommended a new

Aborigines Welfare Board to pursue an 'active policy of assimilation', and this

was established.

In 1957 there was a major change in Government attitude - in that year the

discriminatory laws and the Board for the Protection of Aborigines were

abolished, and the Aborigines Welfare Board was established. The new Board

was set up to actively implement a policy of assimilation, with the object of

assisting everyone of Aboriginal blood to obtain the status of 'a fully accepted

member of the general community'.

One of the first steps taken by the new Board was a survey of the Aboriginal

population, which concluded that Victoria had a population of 1,400 of whom

less than 20 were full-blood. One finding was that they lived in appalling

housing conditions. In its report for the year 1959-1960 the Board noted that in

country areas there were 77 families with 385 persons who lived in 'appalling

shanty town conditions'27; 145 families with 771 persons who lived in

AJ and JJ McIntyre C o u n tr y T o w n s o f V ic to r ia : A S o c ia l S u r v e y (1944) at p 265.

This was a description o f the buildings by the standards of the white community, and reflected the poverty o f the Aboriginals. Within many o f these shanties Aboriginals no doubt maintained spotless homes and cared well for their children.

238

substandard dwellings; and 110 families with 500 persons who were considered

to have satisfactory housing. In the metropolitan area 30 families were in very

substandard houses and 30 were considered to be in satisfactory houses. The

family of Shane Atkinson was one of the 77 families living in appalling shanty

town conditions. Indeed for much of the time they lived in a tent.

The Aborigines Welfare Board existed for only 10 years and in its last report for

the year 1966-1967, when the number of part Aboriginals whom it had identified

in Victoria had grown to 3,500, it claimed that there were not more than 12 river

bank shacks, pickers’ huts or other rural slums still occupied by Aboriginals.

The Atkinson family was one of those which had benefited, and by the time

Shane was a year old the family had moved into one of the first houses provided

for Aboriginals in Echuca.

An Aboriginal perspective

Bevan Nicholls, an Aboriginal who is Cultural Officer at the Swan Hill Pioneer

Settlement, gave the Commission an Aboriginal view of the history of the Swan

Hill area:

'My great great grandparents came from around here. This land

was theirs. With the whites arriving they took all the good land in

the end. The Aboriginal people ended up on the river bank and

over at Wamba Wamba. We got Wamba because it is low lying

ground. Nobody else wanted it as it frequently flooded.

Eventually, Murray Downs (a pastoral property) extended so far

that lots of tfie people moved away to a place called Aggie

Swamp. Three hundred people moved there and never ever came

back. Nobody knows what happened to them. There had been

conflict between whites and Aborigines all along the river - at

Speewa, Aggie Swamp, Tintinda Homestead (West of Swan

Hill). I have been told a story about the Beveridge brothers who

239

moved up here. One of them was speared by Aborigines after

taking Aboriginal women and chaining them to the beds and using

them up. The tribal meeting about this matter decided that one of

the brothers should be killed for that and that's what happened. I

was told about this by Nellie Stewart. She said that he was quite a

good fellow before that. After his death Aboriginal people were

poisoned and shot all over the place. Aboriginal people were a

nuisance to the whites when they wanted more land, and so they

wiped them out.

'When the families ended up with no land we were moved around

by the government. My family went to Cummeragunja which was

a mission reserve. It was no better there as the State nurses were

do-gooders who didn't like the Aboriginal way of doing things.

They were coming in and taking the kids away. Aboriginal people

were never asked what they wanted. This problem continues to

this day. When we are asked and tell people they don't listen

anyway.'

TASMANIA28

'Extinction' and renewal

Before the European invasion, Tasmanian Aboriginals had a thriving culture, and

the island was as densely populated as similar areas on the mainland. Despite

some conflict, there was accommodation with the early settlers who came for

sealing or agriculture, but the pastoral expansion between 1820 and 1830

This section brings together material from the R e p o r t o f th e I n q u ir y in to th e D e a th o f M a r k W a y n e R e v e ll, a Tasmanian Aboriginal who died in New South Wales, and the R e p o r t o f th e I n q u ir y in to th e D e a th o f G le n n A la n C la r k , a

Tasmanian Aboriginal whose mother came from Cape Barren Island. The general historical background draws heavily on Lyndal Ryan, T h e A b o r ig in a l T a sm a n ia n s (1981).

240

provoked the same dislocation and fierce conflict as it did on the mainland, as

Aboriginals were driven off their land and their food supplies were destroyed.

The military and police cleared most Aboriginals from settled areas, assisted by

'roving parties' of settlers to complete the elimination. A sorry band of survivors

was segregated under the management of George Robinson on Flinders Island

and later moved to Oyster Cove, where they gradually died out.

Until relatively recent times everybody 'knew' that there were no Tasmanian

Aboriginals, there being only a few survivors from the famous 'Black War', as

Turnbull called it, and the last of these, Truganini, having died in 1876. Like

many popular conceptions about Aboriginal history, this was wrong. However,

until recent times there was no one to question it because there was no incentive

to declare one’s Aboriginality in Tasmania. To do so would only evoke

unpleasantness and discrimination. It is only in fairly recent times, since an

Aboriginal community has emerged in which individuals identifying themselves

as Aboriginals can find mutual support, and the availability of some benefits has

provided a counter-weight to the disadvantages, that many Tasmanian

Aboriginals have started to declare themselves.

One has only to look at census figures. The first major change came in the years

following the 1967 referendum and the development of Commonwealth

Government interest, especially from 1972 on. A comparison of the 1971 and

1976 censuses shows an increase in the self-identified Aboriginal population in

Tasmania of 338.5%, the figure jumping from 671 to 2,942. This was nine

times the rate of increase in Australia as a whole. During the next five years the

figure for Tasmania, as in Australia generally, stabilised, and indeed showed a

slight decline to 2,688. But the next census, in 1986, reflected the emergence of

a high-profile Aboriginal community, as exemplified in the central role played by

the Tasmanian Aboriginal Centre, and 6,716 persons were identified as

Aboriginal, a further increase of 150%, compared with an Australia-wide

increase of 42.4%. In a careful study of the figures, Census 86: Data Quality -

Aboriginal and Torres Strait Islander Counts, published in September 1989, the

241

Australian Bureau of Statistics concludes that the main explanation of the

magnitude of the change is the increased propensity of people to record

themselves as Aboriginals. Even the latest figures would be an

underenumeration; Aboriginals are underenumerated to a greater extent than other

persons.

The Islanders

Tasmania could maintain that there were no Aboriginals left after the death of

Tmganini in 1876 only by refusing to acknowledge the identity of the 'Islander'

community in eastern Bass Strait. This community traced its ancestry to

Aboriginal women whom sealers had brought to the islands. With a perverse

pride in having exterminated a race, white Tasmanians dismissed these people as

'hybrid' or 'half-caste', but they retained their identity. In 1847 there were 13

Islander families totalling about 50 people on Cape Barren Island and the

surrounding smaller islands. Among many surnames now familiar in the

Aboriginal community was that of Glenn Clark's mother who was bom Mansell.

Edward Mansell lived on Long Island with Julia, an Aboriginal woman from St

Patrick's Head. After 25 years together they were formally married when

Bishop Nixon visited the Islands in 1854.

The community grew and fought for recognition and land rights, and the

protection of the muttonbirding, which was central to its economy. In 1871 the

Government offered the Islanders two to ten acre blocks on the western end of

Cape Barren Island for homestead and agricultural land. Among the seven

families living there by the end of the next year were those of Thomas and

James Mansell.

'The reserve system was reintroduced to Tasmania in 1881 with

the establishment of the Cape Barren Island Reserve for the

sealing community ... The Islanders were expected to become a

self-sufficient farming community despite the fact that the island

242

was largely unsuited to agriculture. Their movements to and from

the reserve were controlled; they were threatened with constant

eviction and were subject to government regulation, but were not

entitled to government assistance. There was no opportunity for

self-determination. The ultimate irony arrived in 1951 when in

accordance with the assimilation policy, the reserve was abolished

because the government no longer defined the Islanders as

Aborigines.'29

'Despite their service in two world wars, the reserve was

withdrawn in 1951, as part of the assimilation policy which

declared that the Islanders had to live "like white people" and leave

the island so that their land could be used by cattle farmers. But

the Islanders' stubborn refusal to disperse enabled a more

sympathetic federal government in 1971 to bring some life back

into the community.'30

Before the Second World War there had been 300 Islanders on Cape Barren

Island, but enlistment, manpower drafting and the search for new opportunities

reduced the number to 106 by 1944. At the end of 1947 there were 130 in

residence, but by the mid-1960s only 50 survived the revocation of the reserve

and the offers of houses and jobs in Launceston from the Social Welfare

Department. Among those who had left were Glenn Clark's mother and her

parents.

Other Aboriginal Tasmanians

To a large extent the history of Aboriginals in Tasmania since Tmganini's death

is the history of the Islanders. However they were not the only source of

modem Aboriginal Tasmanians as the story of Mark Revell's family illustrated

Ryan, lo c . cit. pp. 5-6 ib id , pp.258-9.

243

his mother Betty Revell was proud of the fact that both her mother and father

were of Aboriginal descent. Her mother, Vera Vincent, was the daughter of Eva

Miller, who was the daughter of Sarah Smith, who in turn was the child of

Fanny Cochrane. Fanny, who died in 1905, had been at Flinders Island and

Oyster Cove with Truganini, and was the daughter of Sarah, who was an

Aboriginal of the Tanganuturra tribe. Despite her historic ancestry Betty Revell's

mother seldom spoke of being Aboriginal. Betty says Ί think the reason for this

is that she found it hard growing up in Tasmania as an Aboriginal and therefore

was shy about her race'.

244

CHAPTER 16 - THE STOLEN GENERATIONS

THE LEGACY OF 'THE STOLEN GENERATIONS'

The taking of Aboriginal children has been touched on in the previous chapter,

but its abiding effect on Aboriginal communities and their perceptions of

'welfare' call for more detailed treatment. The R e p o r t o f th e In q u iry in to the

D e a th o f M a lc o lm C h a rle s S m ith was the first which I wrote, and it brought

home to me the terribly destructive effect on the Aboriginal communities of

south-eastern Australia of the removal of children from their families. The taking

away of Malcolm Smith from his family and its catastrophic effect on his life and

ultimately his death was not some isolated incident. Peter Read has calculated

that 5,625 Aboriginal children were taken away from their families in New South

Wales up to 1969 under the A b o r ig in e s P ro te c tio n A c t, the A b o r ig in e s W e lfa re

A ct, and the C h ild W elfa re A ct.

'Everyone of the 5,000 children removed from their parents had,

and have, their own private and bitter memories of separation and

later problems of adjustment. From the point of view of the

Aboriginal race as a whole, we can hardly guess at the cost of

wasted talent of those who spent a decade in the service of the

whites. We can hardly guess at the number of men and women

who deny their own birth-right as Aboriginal citizens of Australia.

The comparisons must tell the stories. Perhaps one in six or

seven Aboriginal children have been taken from their families

during this century, while the figure for white children is about

one in 300. To put it another way, there is not an Aboriginal

person in New South Wales who does not know, or is not related

245

to, one or more of his/her countrymen who were institutionalised

by the whites.'31

The fact that the Aborigines Welfare Board was abolished in 1969, and that since

that date Aboriginal children have in New South Wales been dealt with under

generally applicable child welfare legislation, does not mean that Aboriginal

people are no longer suffering the impact of the policies adopted, or that no

remedial action is necessary. A submission from the National Aboriginal and

Islander Legal Services Secretariat (NAILSS) referred to:

'what people in the Aboriginal community know as an

indisputable community sorrow. That is that the survivors of

Kinchela (and Cootamundra Girls Home) and their children are

now adults, struggling against the odds to lead normal lives in a

world that is permanently disordered from the inside out. An

indeterminate number find themselves in a revolving door

relationship with police, hospitals, prisons and various debilitating

dependencies. Malcolm Smith was one of many'.

One cannot spend much time amongst the Aboriginal people of New South

Wales without realising the truth of the NAILSS assertion. Constantly one meets

people whose lives have been shattered or gravely disturbed by the taking away

of children. They may have been the grandparents or parents or brothers or

sisters or other relatives of the children concerned. They may have been the

children themselves or they may be themselves the children of those who were

taken away, their own lives suffering from the damage that was done to their

parents. Many are people still mourning the children that were taken away, or

are themselves people who were taken away and are still seeking their relatives.

There are many heart rending stories of searches and reunions in the Aboriginal

community.

Peter Read T he S to le n G e n e r a tio n s p. 18

246

PROTECTION AND WELFARE BOARDS IN NEW SOUTH WALES

New South Wales was not unique in its practices and similar heart-rending

stories will be heard all over Australia. From State to State there were variations

in the time at which policies were applied, length of time for which they were

continued, and the thoroughness of their application, but at least as far as south­

eastern Australia was concerned the Aborigines Protection Board of New South

Wales stands out for its impact. It was established administratively in 1883 and

given a statutory basis in 1909. Cootamundra Girls' Home which operated from

1912 and Kinchela Aboriginal Boys' Home which operated from 1924 to 1969

had a lasting effect on the lives of many Aboriginals. The homes were

established as instruments of the Board's original policy which was summarised

by Dr Read as:

(a) the 'full-bloods' to die out peacefully within a generation

or two on the reserves, which would then be revoked,

(b) the part-Aboriginal population to be persuaded or forced to

leave the reserves within the same time-scale,

(c) the children to be removed to institutions where they

would leam to identify as a lower grade of white people.

The Board waged a campaign, successful in 1915, to obtain total control over

Aboriginal children, with the following aims (as distilled from the reports and

minutes of the period by Dr Heather Goodall):

1. Reduction of Aboriginal birth-rate by removal of

adolescents, particularly girls.

2. Prevention of Aboriginal children's identification with the

Aboriginal community by:

• isolating them from their families and communities

through adolescence,

247

• preventing or hindering their return to their families

or the Aboriginal community at the end of their term

of 'apprenticeship'.

The Board's policy was designed to achieve the disappearance of Aboriginals as

an identifiable group of people. Such a policy would today be internationally

condemned as genocide. The Board explicitly sought a 'final solution', saying in

its 1921 report that 'the continuation of the policy of disassociating the children

from camp life must eventually solve the Aboriginal problem'.

Dr Read writes of Donaldson, the 'beady-eyed reformer1 who was a member and

later inspector of the Board:

'His solution was breath taking. He wanted to remove the girls at

the age of 9 or 10 to training homes, not just the neglected ones;

all of them. The boys were to be removed a few years later, but

all would go for good. "Under no circumstances whatever should

the boys and girls be allowed to return to the camps except on

short visits in an emergency, and then only by consent of the

Department".'32

The policy was never fully implemented for reasons which include the resources

available to the Board, the resistance of the Aboriginal people themselves, the

strength of Aboriginal identity, and the determination of many young people to

return to their families at whatever cost.

When the Aborigines Protection Board was replaced by the Aborigines Welfare

Board in 1940 there was 'new legislation and new rhetoric'.33 Procedures were

those of general child welfare but the objective remained the disappearance of

Aboriginals as a people by individual assimilation into the general community.

P. Read A H u n d r e d Y e a r s W a r , ANU Press 1988, Canberra, pp. 61-62. 33 R. Chisholm o p . c it.p.20

248

There does not appear to have ever been an explicit repudiation of past policies,

although they were expressed in less crude and blatant terms. Although there

was lip service to the undesirability of breaking up Aboriginal families, and

expressions of sympathy for family requests for information about children in the

Board's care,34 and a claim that children were not taken until all efforts to

rehabilitate the home had proved unsuccessful,35 there was no sign of such more

enlightened policies when Malcolm and his brother were taken away in 1965.

The horror of a regime that took young Aboriginal children, sought to cut them

off suddenly from all contact with their families and communities, instil in them a

repugnance of all things Aboriginal, and prepare them harshly for a life as the

lowest level of worker in a prejudiced white community, is still a living legacy

amongst many Aboriginals today, some of whom I have spoken to directly. The

horror continued until only a few years before Malcolm's arrival at Kinchela.

So horrible was it that it makes the less reactionary regime of Malcolm's day look

almost benign. At least it was no longer necessary, as it had been in 1933, to

warn the manager against being drunk on duty, using a stockwhip on boys, tying

them up, or denying them food as punishment36

Yet his experience must have been traumatic for an eleven year old suddenly cut

off from the family which had been his whole world, and transported into a

totally strange environment many hundreds of miles away. His father Joe did

not know where his sons had been taken and official files show that no attempt

was made to contact him while Malcolm was a ward or on his discharge, or

indeed till years later. To more sophisticated people it may seem obvious that he

should have contacted the welfare authorities or written letters. He was illiterate

and had never written a letter in his life, and Malcolm too was illiterate and

remained so. The 'welfare', far from being people from whom assistance might

be sought, were the people he had been evading all his life, just because they had

Aborigines Welfare Board A n n u a l R e p o r t 1 9 5 0 p.8. Aborigines Welfare Board A n n u a l R e p o r t 1 9 5 3 p.6. P. Read T h e S to le n G e n e r a tio n s p. 11

249

the reputation of taking away children and denying all contact with them. That

reputation had been well deserved for decades and nothing had happened to

indicate a change.

A year after Malcolm went to Kinchela its manager gave evidence to a New

South Wales Joint Parliamentary Committee into Aboriginal Welfare that he

believed that the boys were sent there because their parents had neglected them

and that parents did not visit them because they were indifferent to their fate.

Such gross misunderstanding of the fundamentals of Aboriginal society in the

man who ruled over Kinchela speaks volumes. He said that a typical boy at

Kinchela received only a smattering of training of any kind and was turned out to

employment at the first moment he turned 15. A few years before Malcolm's

arrival there had been yet another inquiry into unnatural sexual practices, in

which it had been shown that there was a lack of recreational facilities, a lack of

evening occupation, and an utter lack of privacy, presided over by a manager

who stereotyped the boys as of a low standard of intellect.

LINK-UP

The pain of these policies continues for many people until today. One measure

taken to alleviate some to the resultant suffering was the establishment of Link­

Up in 1981. This organisation has sought, by providing research, investigation

and personal contact services, to reunite displaced people with their families.

The provision of adequate funding and official co-operation to a body such as

this would be a small measure of compensation for some of the damage that has

been done. It is certainly reasonable to suppose that measures to reduce the very

severe emotional tensions operating in the Aboriginal community over this issue

may help to reduce the gross over-representation of Aboriginals in juvenile

institutions and in gaols and resultant deaths in custody.

250

CHILD WELFARE TO-DAY

I have pointed out the remarkable parallel between the way in which Glenn Clark

and his siblings were dealt with and the way in which many Aboriginals were

dealt with in the name of overt policies of assimilation on the mainland.

Whether or not the break-up of Glenn's family is seen as influenced by attitudes

to Aboriginals, it showed a frightening lack of understanding and concern for the

well-being of young children, and the importance to them of the emotional

security and the bonds of love that are provided in the family situation.

Today there should be a recognition of the importance of the family setting for

the child, and the need to provide assistance to maintain families rather than to

destroy them, as was the experience of Glenn's mother. There is also now a

very considerable body of knowledge of the importance of endeavouring to

match the cultural and racial background of children with foster parents or

adopting parents. So far as Aboriginal children are concerned, there is now a

very widespread recognition of the role that should be played by Aboriginal

organisations in ensuring suitable placements for Aboriginal children. This dates

largely from the early 1970s and followed campaigns by Aboriginals for

recognition of the very adverse effect on Aboriginal families and children of

earlier practices.

There is in several States legislation designed to ensure that priority is given to

placing children who cannot remain with parents with kinsfolk, in their own

community, or at least with other Aboriginals. There are also Aboriginal child

care agencies involved in the placement of children. Hopefully this will go a

long way to preventing the abuses of the past, but in the meantime many

Aboriginal people, families and communities remain affected by what has

happened.

251

PART SIX - ABORIGINALS IN AUSTRALIAN SOCIETY

CHAPTER 17 - DAY TO DAY INTERACTIONS

RACISM

In my report on the death of Malcolm Charles Smith I wrote:

'Asking an Aboriginal what he or she regards as the important

factors underlying deaths in custody often elicits as a first reply

"Racism". An increasing number of Aboriginals are seeing racism

as a key concept in understanding and explaining their relations

with the rest of the community. It is an uncomfortable subject

which tends not to be talked about very openly and the existence

of which is often vigorously denied by those who are its most

obvious practitioners'.

It is also something the subtler forms of which are hard to notice, embodied as

they are in common assumptions which non-Aboriginals share, and in

procedures and institutions which non-Aboriginals take for granted. Few if any

are immune; I certainly can make no such claim. Indeed an increasing

consciousness of the ramifications of racism has been the result of a slow

learning process for me as my experience in this Commission has gone on,

giving me many opportunities to talk to Aboriginals individually and in groups,

and to other experienced people, to see the official view of lives of Aboriginals

laid out in many files, and to read the illuminating work of scholars in the

field.37

37 See for a recent example, J o u r n a l f o r S o c ia l J u s tic e S tu d ie s Vol.3 (1990)

Special Edition Series ‘Contemporary Race Relations’.

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In my reports on the deaths of Malcolm Charles Smith (pp.87-88), Thomas

William Murray (pp.81-82) and Mark Wayne Revell (pp.17, 20) I noted some

fairly obvious examples of the effect of racism on the lives of those Aboriginals.

In reading the files in Clarrie Nean's case I came to see more clearly how deeply

the lives of Clarrie and his parents were affected by the racist assumptions of the

non-Aboriginal community, and of how much they continue to affect the lives of

Aboriginals today, not least in the towns of northwest New South Wales with

significant Aboriginal populations.

It is important that racism should be recognised as a pervasive problem in

society, and not a matter about which anyone can adopt a 'holier than thou'

attitude. Effort must go into understanding and combatting it. One reason

directly relevant to the work of this Commission is the tremendous load racism

can place on the self-esteem of those who suffer its consequences. Low self­

esteem is often a characteristic of those who behave in ways that bring them into

custody, and none the less so when it presents as defiance or aggression. The

greatest tragedy of racism is when it not only fixes the stereotypes held by the

dominant community, but, as in Tim Murray's case, it is internalised by its

victims. Low self-esteem prevents achievement, underlies much conduct that

leads to imprisonment, and results in self-destructive activity.

Another reason is the way in which unconscious racism defeats so many well-

intentioned efforts to improve the situation. Aboriginal affairs and Aboriginal

towns are full of people who are so sure that they know better than Aboriginals

what is good for them that they cannot bring themselves to listen to or consult

with Aboriginals in a meaningful way. The life of Clarence Nean, Clarrie's

father, reveals a number of examples of how officialdom listened to white people

intervening on his behalf while he himself was ignored. The reluctance to allow

Aboriginals to control their own affairs and resources is another example,

whether it be their modest child endowment payments in the 1950s, or their

254

organisations, services and enterprises today. Yet Aboriginal independence and

initiative is clearly fundamental to real change in the present situation.

It is not hard to recognise these factors at work when we look back some decades

to the activities of the Aborigines Protection and Welfare Boards. It is harder to

be aware of them in our own conduct and policies today.

Views from Swan Hill

There is no reason to think that Swan Hill is more or less racist than other towns,

and I mention it only as a town which I happened to visit for the James Moore

inquiry and which serves as an example. Many Aboriginals see as a major

reason why their children do not progress at school, or even stay at school, the

hurtful effect of racist attitudes, mainly on the part of other children. Children

tend to start happily at school and progress until they become conscious of these

attitudes. It is clear that racist remarks are hurtful and discouraging to a degree

that most non-Aboriginals fail to understand. A common experience, according

to one school principal, is that the problem comes to a head at adolescence, the

stage where relationships begin to develop between boys and girls. Parents

become involved. There is a closing of ranks on the part of the white children

against interracial relationships, and Aboriginal children, feeling rejected and

excluded, become unwilling to stay at school.

Children would be largely reflecting adult attitudes which they learn at home or in

the community. They may often repeat words they do not even understand, and

they may not have leamt the adult habit of saying things behind other people's

backs instead of to their faces.

A medical practitioner who had lived in Swan Hill for about nine years expressed

the view to the Commission that racist attitudes have a direct bearing on the much

lower life expectancy of Aboriginals. He said:

255

'My belief is that the Aboriginal people are subject to negative

feeling from the rest of the community, this damages their self­

image seriously. For a person's self-image to be good and

healthy and for them to want to live a long and happy life, they

need the approval of the rest of the community, and this of course

includes the European community. It is, in particular, this lack of

positive affirmation which causes Aboriginal people to be so

unhappy living in a European dominated world, that they wish to

die'.

He stressed the importance of positive programs to improve European attitudes.

His remarks have been strongly supported by Aboriginals who have read them.

In discussions with people, Aboriginal and non-Aboriginal, working in

organisations and departments dealing with Aboriginal affairs, many examples

were given of racist attitudes in Swan Hill. This often takes the form of ignorant

criticisms of what are described as 'handouts' to Aboriginal people. One

example of the double standards involved was given by a Commonwealth

Employment Service officer. He told of an employer who sought a subsidy of

100% to employ an Aboriginal, and at a later date was heard at a meeting to

complain of Aboriginal people being given 'handouts' by the Government. An

Aboriginal commented on 'two-faced racism' on the part of people who were

apparently friendly to Aboriginals but denigrated them behind their backs.

One Aboriginal Educator told of being invited to address year nine pupils at a

Catholic school, because the sister in charge was concerned about the attitude of

pupils towards Aboriginals, attitudes which they appeared to bring from home.

When the Aboriginal Educator went to the school the pupils had a list of

questions along the following lines: Do Aboriginals pay rent? Do they work?

Are they always drunk? How come they get a new car every year?

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Some notes from Wilcannia

An example of the way in which Aboriginals are excluded from facilities is in

relation to the TAB at Wilcannia. The only agencies are in the Golf Gub and in

the Wilcannia G ub Hotel. Few Aboriginal people belong to the former and

many are barred from the latter: thus they have no access to betting facilities

which they quite properly regard as a service to which all should have an equal

right. This is another of many sources of feelings of resentment, powerlessness

and humiliation.

The division between the two groups was seen as maintained in many ways by

white racism. While the Commission was in the town an Aboriginal organised

barbecue was held to which the whole town was invited. Wilcannia offers few

alternatives, but the barbecue was attended by 250 Aboriginal people and five

white people from the town. There were similar complaints about the refusal by

white residents to join in Aboriginal sporting events.

There was strong expression of feeling about being the object of scrutiny and

contempt by Golf Club patrons: 'You don't want to go up there and let all white

people stare at you'. 'We're just like a mob of animals in a cage or something.'

There were complaints of the exclusion of Aboriginals from the New Year's

dance at the Golf G ub until the local police sergeant intervened. He commented

to the Commission that the refusal of entry was 'not what I would call open

racism - I think the Club was under a misapprehension then as to what its

constitution said'.

Examples from the cases

Malcolm Smith's brother commented on racial prejudice in the school at Dareton.

The activities of the Aborigines Protection Board and Aborigines Welfare Board

in relation to the taking away of children were based on racist assumptions and

sought to achieve racist objectives. Kinchela was an instrument of this racism.

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Racist attitudes at Mt Penang Training Centre were described as appalling. It is

probable that racist attitudes had something to do with the persistent

downgrading of Malcolm's intelligence by those who assessed him. It is

difficult to discount the possibility of racism as an explanation for some of the

extremely harsh sentences received by Malcolm, as when he was committed to an

institution after missing two days from an unattractive job at the age of 15. A

Parole Officer observed that Aboriginal prisoners were generally stereotyped by

prison management as uneducated, unhealthy and futureless people not worthy

of the investment of services and support, harmful generalisations which worked

adversely on the prospects of Aboriginal people in the gaol situation. Perhaps a

non-Aboriginal would have been treated as inadequately by the Prison Medical

Service, but one wonders.

Although there was a general denial that the fact that Arthur Moffatt was

Aboriginal affected his treatment, it is impossible to exclude racism as an element

in what happened. Racism is not necessarily manifested in hostility towards

persons of a particular race - it can be implicit in standard practices or 'common

knowledge', and even well intentioned stereotyping. It is probable that the

attitude of the train conductor, who was adamant that Arthur Moffatt was very

drunk, and that it was not a matter for the ambulance, was affected by the

knowledge he volunteered that 'it is the practice of a lot of Aboriginal people to

congregate at a park in Morwell near the railway station and from there people

often catch the Morwell train'. The conductor remembered what was said by the

Aboriginal passengers whose aid he enlisted to quieten Mr Moffatt:

'They tried to talk to him and asked him to get up and said to him

"You are going to get us all into trouble". The passenger

travelling through to Moss Vale made some comment about

"We've got to get to Moss Vale and we don't want to be put off

the train'".

258

Obviously their reaction was that as Aboriginals they might be held responsible

for and suffer for the conduct of another Aboriginal, even when they had done

their best to help. Such trepidation can only be the result of past bad experiences

and provides chilling evidence of the subtly dehumanising effects of racism.

The story of Clarrie Nean

Looking at Clarrie Nean's life as a concrete example of the effects of racism, one

can see that the reason for his custody lay not in any inappropriate or unlawful

police action, but in the story of his life, and behind that in the story of

dispossession, pauperisation and dependency inflicted on Aboriginals. They

were, as Ashley Montagu described the Blacks of America, 'deprived,

oppressed, discriminated against, impoverished, ghettoized, and generally

excluded from the brotherhood of man'.

When Clarrie was 15 months old his parents were not able to maintain him in

good health and, instead of their being offered assistance or counselling to

overcome the difficulties which they faced, Clarrie, after spending seven critical

months of development in hospital as a baby cut off from family life and

individual love and care, was made a ward of the Aborigines Welfare Board. He

was sent far away from his parents for seven years, cut off from all contact with

them and passed through three different foster homes. His parents wanted him

back but were left in the debilitating environment of racist Aboriginal stations and

a condition of general powerlessness and marginalisation. What this means is

described in detail in Part Two of the Nean report from the official files.

What it meant for young Clarrie was that for seven of the first eight years of his

life he grew up separated from the love and support of his family, and that when

he did return it was to an environment in which racism was taken for granted, in

which he was expected as an Aboriginal to accept the role of inferior to white

people who would manage him and educate him to be like them. When, not

surprisingly, he manifested problems in adolescence, his parents were again

259

marginalised and the mystique of science in the form of a misinformed and

inexperienced psychiatrist was invoked to legitimise the views of white officials

on the station, without consulting Clarrie's parents. As a result he again became

a ward of the Board and was sent to Kinchela. There he was very unhappy and

desperately anxious to return to the parents from whom he had been separated.

His attempts to escape landed him in a further institution and ultimately he was

able to return to Walgett at the age of 16 with a very disrupted childhood behind

him, much experience of separation from his parents, life in foster homes and

institutions, and several criminal convictions. In all he had spent only six of his

first fifteen years with his family. With little education his only opportunity was

for unskilled work which he pursued for a number of years until he fell into the

grip of alcohol, the context of so many Aboriginals coming into custody.

The experience of Clarrie and his parents is not unique, but part of the general

pattern of Aboriginal life. Some parts of that pattern have changed; for example

children are no longer so easily separated from their parents. But other parts

remain, embedded in attitudes and policies of many kinds that hamper the growth

of initiative and self-esteem. A reduction in the great disproportion of

Aboriginals in custody will be difficult to achieve without fundamental changes

to the racist attitudes that have pervaded the treatment of Aboriginals.

Aboriginals must have real opportunities to escape from the situation to which

they were forced by dispossession and institutionalisation. Fundamental is the

need to restore self esteem and, as part of this, independence, and an

opportunity to take real responsibility for their own affairs. The deep desire for

this is expressed in claims for 'self-determination', 'self-government' or

'sovereignty'. These may seem strange concepts to the ears of white

Australians, but they are being advanced by indigenous peoples in many

countries, not least such kindred countries as Canada, New Zealand and the

United States. Like other countries, Australia has to learn to listen to its

indigenous people and to face the hard task of finding what meaning can be given

to their claims within a nation state.

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HIDDEN TENSIONS

In most towns few non-Aboriginals seem to be aware of the depth of feeling

which many Aboriginals have about their position and the way they are treated.

Repeatedly through my inquiries I have had glimpses of normally controlled or

suppressed anger, resentment and sense of injustice in Aboriginal people

bursting out at unexpected and apparently inappropriate times. I am sure that this

suppressed anger is responsible for much violence and damage by Aboriginals,

as much directed at themselves as at others.

An example was in the inquiry into the death of Peter Williams, who was not a

person who normally engaged in political activity or expression, or who usually

had bad relations with white people. Yet such feelings came to the surface

following his arrest in 1986, when there was a rare fiercely violent struggle with

police, after which he said This country belongs to us blacks. You whites stole

it off us', and went on to talk about the rights of Aboriginals.

Peter Campbell was another who was not at all politically active. In

September 1976 he expressed his anger at the way Aboriginals were treated by

police and told them that if he was in power there would be some changes.

Similar feelings were expressed to a Parole Officer in Hobart in March 1977 and

to a psychiatrist at about the same time, and may have surfaced in his acts of

violence.

White Australians generally have yet to come to terms with the fact that this anger

and sense of injustice exists, is well justified, and will not go away. Like a

number of other countries, Australia will have to face up to the difficult task of

effecting a reconciliation with its dispossessed indigenous people. Meanwhile

the suppressed anger and resentment is likely to lead to custody when it bursts

out often disguised in some unrecognised form, and frequently released by

alcohol. While suppressed it adds to the great stresses on Aboriginals, and

creates acute tension between the races in many rural areas in particular.

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HOSPITALS AND ABORIGINALS

The death of Mark Quayle brought to the fore disturbing aspects of the

relationship that develops between police and hospitals in small country towns.

Some other examples are referred to in my R e p o rt o f th e In qu iry in to the D e a th o f

L lo y d B o n e y where police were involved with Lloyd in hospital at both

Goodooga and Brewarrina Hospitals. A relationship between police and

hospitals also figured in my Victorian R e p o r t o f th e In q u iry in to th e D e a th o f

J a m e s M o o re . Obviously there may be occasions when the hospital needs the

assistance of police, but in such settings this can all too easily become one of

unnecessary reliance on police instead of resolving problems in the hospital by

proper medical means. There could be no more striking example of this than the

way that Mark Quayle was treated.

In a town such as Wilcannia, which is marked by a racial divide between whites

and Aboriginals, the relationship between police and hospitals can easily become

part of the general technique by which the white power holders manipulate and

manage the Aboriginal community. In such towns, where there is no Aboriginal

Medical Service and limited access to doctors, the hospital plays an extremely

important role in the life of the community. This is particularly so in the case of

Aboriginals who have few resources to seek medical care outside the town. Yet

even in Wilcannia where Aboriginals are a large majority of the population, and a

very high proportion of those treated at the hospital, Aboriginal participation on

the hospital board and as members of the hospital staff has been very limited. It

is hard to imagine that hospital staff could have treated Mark Quayle in the way

they did if they had been used to dealing with Aboriginals not just as a group of

poor and disadvantaged patients but as members of the governing hospital board

and as fellow employees.

The whole question of the connection between the Aboriginal community and the

hospital in towns of substantial Aboriginal population will require very

concentrated and continuing attention to change the situation.

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MEMBERSHIP OF HOSPITAL BOARDS

A very important part of the process is ensuring that the hospital board is

representative of the community. Typically, hospital boards in towns like

Wilcannia, have been dominated by persons with businesses in the town or rural

properties, with little or no representation from the white public servants or the

Aboriginal residents of the town. Gloria King was one of the first three

Aboriginal people to be appointed to the Wilcannia Hospital Board in 1980 and

she said that she felt isolated when she attended board meetings.

Evidence to the Commission was that appointments to hospital boards have been

essentially political appointments not made on the basis of the needs of the

community. The Chief Executive Officer of Wilcannia Hospital explained that

applications for membership of the hospital board were put in order of priority by

the board itself. The applications were then sent to the local member of the State

Parliament and also to the Regional Director of the Department of Health, who

made a recommendation to the Minister. The M inister made the actual

appointment. As described by the Regional Director, the process of selection

was one in which white people were given a say, and indeed a veto, over the

selection of Aboriginal members, but no attempt was made to seek the opinion of

the Aboriginal community. He said that of a list of seven members from the

Aboriginal community who volunteered to become members of the Wilcannia

hospital board after Mark's death, two were excluded from the list because of

objections by the local Member of Parliament. The advice of Matron Crisp was

sought on the remaining five, and only two names were endorsed by the Matron.

There was no Aboriginal community consultation or consultation with the

existing Aboriginal board member. With a procedure such as this, in which the

only Aboriginals who could get onto the Board were those acceptable to the

white power brokers, Aboriginal membership can easily become a facade which

reinforces rather than breaks down the racial divisions in the town.

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As noted in discussing the coroner's recommendations, the Minister has since

directed that there should be greater consultation and in July 1990 there were

three Aboriginal members on the board of Wilcannia Hospital.

LOCAL GOVERNMENT

In many parts of New South Wales the local government Councils play a major

role in the life of rural communities and impact on Aboriginal communities in a

number of ways. These Councils are a major employer, but invariably

Aboriginal persons receive very few jobs and nothing anywhere near

proportionate to their numbers in the general community. Even where there are

a large number of Aboriginal people, there may be no Aboriginals employed by

the Council. Complaints are frequent that even filling labouring jobs preference

will be given to non-Aboriginal persons who may not even be residents of the

area. Where Aboriginals work for Councils under Employment Schemes

subsidised by the Department of Employment, Education and Training, or other

Government organisations, the employment invariably ceases when the subsidies

cease. Employment in the administrative or service delivery areas is rare for

Aboriginals.

Most of those who are employed by Councils have been in the employment for a

long time and there has been negligible employment of new Aboriginals in recent

years. On the odd occasions that an Aboriginal person may obtain employment,

he or she often finds difficulty working in isolation with no other Aboriginal

employees, and is sensitive to discrimination. For such reasons some have not

stayed very long.

Recently developed Government strategies are to be welcomed but the AIU

found that very few people in Aboriginal communities had any information in

relation to these initiatives.

264

In many areas there are conflicts between Aboriginal communities and Councils

over the provision of services or infrastructure to Aboriginal communities and on

the other side the payments of rates on Aboriginal land. Aboriginals also feel that

Councils are frequently hostile to development applications related to Aboriginal

projects. Councils in the north and north-west of New South Wales have also

been heavily involved in 'law and order' campaigns. Whatever the rhetoric, they

are directed at securing the targeting and over-policing of Aboriginal

communities. Local Members of Parliament have also been involved in a number

of these campaigns. Such campaigns are directed to repressive action against

Aboriginal communities, not to any attempt to secure constructive approaches to

the problems that are endemic in such communities.

There have been occasions in recent years when Aboriginal people have

organised and succeeded in electing one of the number to a local Council.

However, persons so elected usually either do not complete their term of office

or do not stand for re-election. It is a common feeling that Aboriginals on the

local Council are not seriously listened to or taken notice of and accordingly they

find that their participation is not only an unpleasant experience, but serves little

purpose for their community.

At Wilcannia, where the Commission held a community conference, there were

numerous complaints by the Aboriginal community about the attitude of the local

council, including the very limited employment of Aboriginals. A particular

grievance was the management of the swimming pool which was often closed

while the Commission was sitting in Wilcannia in mid-summer. Given the

population of the town the greatest potential use of the pool is by the many

Aboriginal childfen, to whom it would be of tremendous importance in summer

holidays. Members of the Aboriginal community had expressed interest in taking

over the management of the pool and complained about a decision to give the

management to some white residents on a part-time basis. The defence of the

situation by a councillor at the community conference speaks for itself:

265

'The swimming pool is not controlled by the Council in any way,

it is controlled by a committee, and it just so happens that the

people on that committee happen to be employees of the Council

... which has the responsibility of appointing the members of the

committee'.

Aboriginals expressed particular bitterness about the situation because they

believe that the Council had received financial assistance to build the pool

because of the Aboriginal population. The occasional examples of positive

attitudes are appreciated by Aboriginal communities. There was praise when the

Council at Burke gave support to some initiatives to provide some activities for

young people.

HOTELS

Leaving aside the long-term issues that arise from excessive use of alcohol, the

fact is that in many centres where there are Aboriginal communities in south­

eastern Australia, hotels are the main centres of social life, especially for

Aboriginals. Small centres, like the western towns of Wilcannia, Brewarrina and

Walgett, in all of which deaths were investigated, have few recreational outlets.

The social life of the white community is to a much greater extent centred on

clubs. While most of these now have some Aboriginal members, they are the

more 'respectable' or conformist members of the Aboriginal community and

most Aboriginal drinking is dependent on hotels or the drinking of liquor bulk-

purchased from hotels or stores.

Hence hotels are of great importance to Aboriginals, but they frequently

contribute greatly to the tensions and discord of Aboriginal life in the town.

There is often a substantial separation of Aboriginals from other drinkers by one

device or another, and the areas used by Aboriginals are usually austere and

depressing in the extreme. Despite the widespread Aboriginal preference for

outdoor drinking, beer gardens are rare in Aboriginal towns.

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Friction between hotel owners and Aboriginals is common, with publicans often

seen as arbitrarily excluding particular Aboriginals temporarily or permanently.

Police are seen as the allies, if not the tools, of publicans. Some of the issues

have been discussed in Chapter 18. Suffice it to say that there will not be good

relations in Aboriginal towns until there is equal negotiation about and agreed

resolution of the problem of acceptable drinking places.

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CHAPTER 18 - RELATIONS WITH POLICE

THE IMPORTANCE OF ABORIGINAL/POUCE RELATIONS

As one would expect, given the high rates of Aboriginal custody, relations with

police loom much larger in Aboriginal communities than in the rest of society.

With the growth of Aboriginal organisations carrying on an increasing range of

activities, there are now more contacts with other government agencies and non­

Aboriginal society, so that relations with police are not as dominating as they

once were. However relations between Aboriginals and police occupy a key

point in determining the numbers of Aboriginals that come into custody. The

first step in almost every Aboriginal custody is a police action. Even where

police have no alternative to arrest, the manner in which they treat Aboriginals,

and particularly the manner in which they treat juveniles, may have important

consequences. It may affect the likelihood of ancillary charges arising out of the

arrest, whether against the offender himself or those with him, and it may affect

their future attitude towards the police and the law.

But in the great majority of cases, Aboriginals come into custody as a result of

relatively trivial and often victimless offences, typically street offences related to

alcohol and language. Many of these 'offences' would not occur, or would not

be noticed, were it not for the adoption of particular policing policies which

concentrate police numbers in certain areas, and police effort on the scrutiny of

Aboriginals. The concentration of large numbers of police is itself a result of the

fact that Aboriginal communities are seen as troublesome, untrustworthy and

given to criminal conduct. The presence of police in large numbers leads to

innumerable further trivial charges, creating a vicious circle in which Aboriginals

are criminalised.

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Trivial as the offences may be, police reaction to them is fraught with grave

consequences. Those arrested are criminalised in several ways. They acquire

criminal records, they are defined as deviant not only in the eyes of police but of

the broader society, they are introduced to custody in circumstances where they

feel resentment rather than guilt, and hence arrest and custody cease to be matters

of shame. In dealing with these situations, there is often a great deal of room for

alternative courses of action by police, depending on how they interpret a

situation, what aims they adopt in their policing, what judgments they make and

how they exercise numerous discretions available to them.

What happens will inevitably be influenced greatly by the state of relations

between Aboriginals and police in the particular community. The 'offensive'

language, which so frequently initiates Aboriginal conflict with the law, often

reflects resentment against police and their repressive role, and offences like

resisting arrest and hindering or assaulting police, will also be closely related to

the state of police/Aboriginal relations. Whether particular actions of police will

be perceived by Aboriginals as harassment, or on the other hand, as ordinary

execution of police duties, or even as attempts to make constructive contact, will

also be a reflection of police/Aboriginal relations in the community.

Those relations have on the whole been bad. The circumstances which gave rise

to this Commission illustrate starkly the extent to which Aboriginals regard police

as enemies. When a series of Aboriginal hangings occurred in police cells, there

were large numbers of Aboriginals who could and did readily draw the

conclusion that police were simply killing Aboriginals. Hostility to police is

widely shared among Aboriginal people of all ages and in most communities in

south eastern Australia, both in rural towns and in urban areas. Both Aboriginals

and police bring a great deal of historical baggage to their contemporary relations.

Each has difficulty in discarding their stereotypes of each other and the distrust

and antipathy.

269

Often the stereotypes have more to do with historical legacies, or particular past

experiences, than with the realities of the current situation. Even the

interpretation of the contemporary situation is often highly selective, police

tending to stereotype all Aboriginals according to the characteristics of a minority

with whom they have problems, and Aboriginals often having their current view

of the situation dominated by a minority of police who conform to the historical

stereotype of a rough, offensively spoken and racist officer.

A CHANGING SITUATION

Fortunately there is much happening on both sides to destroy these stereotypes.

New images are emerging, particularly where there has been some shift of power

and resources into Aboriginal hands. Where Aboriginal communities or

organisations have acquired funds and property and conduct a range of activities,

their spokespersons are able to speak with a new confidence and cannot be easily

dismissed. Whereas the Aboriginals who were not in conflict with the law

tended in the past to be inconspicuous, accepting of assimilation and unassertive,

today they are increasingly able to assert themselves and their Aboriginality

through organisations and communities.

This change on the Aboriginal side has necessitated a re-appraisal of police

attitudes in many places, and often there has been an intelligent response by

police to the new situation. In many of the police services (as the former police

’forces' are increasingly called) this has been assisted by an enlightened

realisation at senior levels that the old relationship with Aboriginals is no longer

acceptable, and a real attempt to change the attitudes and practices that have been

inherited from the past. Amongst other things there is increasing recognition that

in the northwest of New South Wales, for example, excessive numbers of police

exacerbate conflict.

The process of change is a difficult one, and has a long way to go. Like a

battleship under full steam, the traditional relationship between police and

270

Aboriginals has a tremendous momentum from the past, and it will take time and

great effort to turn it round. The encouraging thing is the growing numbers of

people on both sides who are trying to do so. It is a situation of which it is

difficult to write in a fair and balanced way, which on the one hand gives due

credit and encouragement to those who are seeking to change the situation, but

on the other hand, does not downplay the bad legacy from the past or exaggerate

what has been achieved, and create an unwarranted complacency and thereby

undermine the continuing efforts that are necessary.

Neither police services nor Aboriginal communities are monolithic in character.

Seldom are there uniform attitudes and reactions on either side in a local area,

much less across a State or across the whole of Australia, even though it is

possible to identify an Aboriginal culture and a police culture. Indeed people

have written in a generalised way of a police culture, common at least to police in

the common law world, and in some respects much more widely, and on the

other side there are often surprising similarities in the cultures of indigenous

peoples in different countries in the world. The similarity extends to the relations

between police and indigenous people in different countries, and this itself

suggests that the beliefs, attitudes and reactions which characterise the interaction

between the two cultures are in a considerable degree the product of a common

historical situation, where police, as the front line agents of a dispossessing,

invading society, have had to confront and control the dispossessed. But while it

is enlightening to note the common features even at this international level, and

the increasing solidity of the cultures at national, state, regional and local levels,

it is important to remember that there are always conflicting tendencies within

each culture, and that individuals always vary in the extent to which they

conform. -

THE HISTORICAL BACKGROUND

Police have been until very recent times, and in many places continue to be, the

section of the non-Aboriginal community with which Aboriginals have had most

271

contact. It has for the most part been a highly repressive contact, which gave

Aboriginals much reason to fear and dislike police, and little reason to think well

of them. Aboriginal resistance to the taking of their lands was put down by

para-military forces along a moving frontier that spread from Port Jackson in

1788 and continued into north-western Australia as late as the 1930s. Originally

conducted by troops or armed bands of settlers, these operations were taken over

by police as police forces were formed.

In widespread Aboriginal perceptions of police there is an unbroken continuity.

When warfare ceased at different times and different points on this moving

frontier, control and repression of Aboriginals did not cease. Attempts by

Aboriginals to maintain themselves from the settlers' herds that had displaced

their game met with police action. The period was a terrible one in Australian

history, quite apart from any actions of police. The struggle for the land,

between two groups whose views of the world had little in common, was

conducted with cruelty and brutality, and Aboriginal women suffered particularly

in a situation where the powerful dispossessors for years had few women of

their own race with them. There was never a negotiated accommodation

between the two groups; the invaders won so overwhelmingly by their superior

weapons, settled lifestyle, continual reinforcement from immigration, and

superior immunity to the diseases which they brought with them, that they could

look down on Aboriginals as little more than pests. Into this situation police

came as the representatives of law and order, but it was the law and order of a

society which did not include the Aboriginals. It is not surprising that police

inherited, and embodied in their own developing culture, attitudes which

regarded Aboriginal men as enemies to be subdued and accorded scant respect to

Aboriginal women.

Jimmie Barker described how Aboriginal people viewed the police on the

'mission' near Brewarrina early this century:38

J Mathews T h e T w o W o r ld s o f J im m ie B a r k e r (1988) p 145.

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The attitude to the police among people living at the Mission was

always one of fear. No Aborigines would ever go near the police

station or a policeman. When help was needed the police would

be the last people approached, probably because the normal words

of greeting from a policeman were; 'What do you want, boong?'

or 'Hey, Charcoal, come here'. In those days the police regarded

the dark people as something worse than animals ... They were

cruel and terrible to all Aborigines. In those days a dark man

would run and hide if he saw a uniformed policeman

approaching'.

The legacy of violence and disrespect remained long after the situation which

gave rise to it, and still has not been entirely eradicated. At Wilcannia a highly

respected Aboriginal gave evidence that many Aboriginals were frightened of the

police and frightened to go to them and talk to them. Mark Quayle, a young

Aboriginal of good character, needed a driver's licence to get seasonal work with

the National Parks and Wildlife Service but was afraid to go to the police to get

one, although he could drive. At the Commission's community conference there

were still complaints of 'spotlighting' of Wilcannia Aboriginals by police, which

one Aboriginal likened to kangaroo shooting. It is clearly reminiscent to

Aboriginals of the humiliating scrutiny and violence to which they were

constantly subjected in earlier times.

Although attitudes have gradually changed, violence to men and abuse of women

remains part of what Aboriginals fear from police, and still sometimes

experience. Old attitudes came to the surface in Aboriginal reactions to three

recent incidents in Sydney - the death of David Gundy in 1989 in the course of a

raid on his home by the New South Wales Special Weapons and Operations

Squad (SWOS), an incident at a National Aboriginal Day carnival in Alexandria

Park also in 1989, when a number of firearms were discharged in the vicinity of

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the crowd, including large numbers of children, by plain clothes police, and a

TRG raid on a number of homes in Redfem in February 1990.39

When Aboriginals accepted their dependence on the white economy, it was police

who had the task of controlling their behaviour and their movements within limits

acceptable to the white community. Throughout the many decades when policies

of protection, welfare, segregation or assimilation called for Aboriginals to be

controlled, confined or moved, often with great anguish, from areas of traditional

attachment, or for their children to be taken away to their irreparable heartbreak,

police were always involved. Often police had to carry out the tasks on behalf of

the administrative authorities, and there are many Aboriginal adults to-day who

learnt as children to run and hide when police were sighted, lest they be taken

away from their parents. Even where officers from other departments carried out

the policies which Aboriginals feared, they depended on the force provided by

police to protect them and enforce their decisions. That police did not make the

policies which they enforced would often not have been obvious, and in any

event would have been irrelevant, for Aboriginals who suffered under them. As

Commissioner Muirhead said in his Interim Report, police were 'the cutting edge

of an uncaring society'.

There were of course always police who did care. Harrison Moore's daughter

Nellie referred to the way in which her family had been assisted when she was a

child at Swan Hill by the efforts of Sergeant Feltham, who apparently was

concerned about the education and accommodation of Aboriginal children living

on the river bank. She said that 'he put all the welfare workers to shame', even

by today's standards. His attitudes may have been paternalistic, but they were

appreciated nonetheless.

C. Cunneen, A b o r ig in a l- P o lic e r e la tio n s in R e d fe rn : w ith s p e c i a l r e fe r e n c e to th e 'p o lic e r a id ' o f 8 F e b r u a r y 1 9 9 0 . HREOC, Report Commissioned by the National Inquiry into Racist Violence (1990).

274

Until very recent times, Australia did very little to recognise the cultural

difference of Aboriginals. Not only was there no recognition of Aboriginal law

or custom, but there was little tolerance of Aboriginal norms of behaviour which

did not conform to European ideas of decorum. Traditionally, Aboriginal life

was lived in the open. With rare exceptions, there was no housing as Europeans

know it and any shelter was simply rudimentary and temporary protection against

the weather. As Aboriginals were excluded from their traditional lands, and

ultimately even from residence on the pastoral properties, where for a period they

found employment and refuge, they were increasingly concentrated in and

around country towns, under the censorious gaze of white people who found

offensive their unconcealed poverty and their apparent obliviousness to European

ideas of decorum, their hygiene, their family relationships and their attitudes to

property. All this was exacerbated by alcohol, for the consumption of which

there were no traditional norms in Aboriginal society, and which, much to the

distaste of many Europeans, was absorbed into the public life which Aboriginals

led in the streets and parks and on river banks of towns.

The warfare for the control of the countryside has long since ceased, but in many

towns in rural Australia another kind of warfare has continued for control and

use of the open space in towns. Rarely has there been negotiation between the

contending forces to see whether some accommodation could be found which

would allow cultural differences to be maintained without undue violence to the

lifestyles of either side. Instead, the white section of society, through its armed

agents the police, has continually, although never quite successfully, sought to

impose its ideas on Aboriginal communities. The 'warfare' has not been

recognised as such because the dominant community has defined disliked

Aboriginal conduct·as criminal through the various channels of local government

law, street offences (significantly often called 'police' offences), 'protection'

legislation and planning laws. For present purposes, the point is simply that

through all this conflict the police have had the role of controlling and

subordinating Aboriginals. Issues that cried aloud for solution in a spirit of

toleration and negotiation have been handed to police to resolve by the application

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of the force of the law. For instance, intoxicated persons, usually of little danger

to anyone except themselves, were made the responsibility of police who had

neither the training nor the facilities to look after them, instead of being taken into

appropriate care.

THE BAD SIDE OF THE PICTURE

The continuing seamy side of Aboriginal/police relations is expressed in many

places in police violence to Aboriginal people, discrimination in the application

of the law, lack of even-handedness in conflicts between black and white, rough

or discourteous behaviour, hurtful or belittling remarks, disrespect or worse to

women, harassment of youths or previous offenders, excessive and unnecessary

use of the power of arrest, provocative behaviour and multiple charging and so

on. Sometimes much of the discontent focusses on the conduct of a minority of

officers in the town, whose racist attitudes poison what might otherwise be a

good relationship. In larger centres, whether the general pattern is good or bad,

Aboriginals usually point to some officers who have a different attitude to the

majority. It is usually the younger officers, still learning to handle the power that

has suddenly been conferred on them, who are found to be the most arrogant and

the least able to listen and understand.

The complaints are much the same in all States. In Tasmania the Commission's

Aboriginal Issues Unit reported:

'For most Blacks, the only contact with Police usually amounts to

a bad experience. It is not surprising therefore, that the reputation

of Police in the community is very poor. This is not to say that

the community believes that every police officer is bad. However,

the intensity of racism demonstrated by those officers who are

involved in conflicts with Aborigines has a great impact on the

community, as the story of experience while in custody is shared

around very quickly'.

276

It is not necessarily deliberate discrimination or conscious prejudice on the part of

police, although it sometimes is. Particular ways of treating Aboriginals may

have become so entrenched as to seem normal or necessary, and be carried on

without any individual ill-will, or desire or intention to discriminate. The

mindless and pointless enforcement of drunkenness laws against the pleasant,

well-behaved Harrison Day is an example.

When police walk into Aboriginal houses without invitation or warrant, and do

not respect the privacy of Aboriginals as they would that of white people, they

may simply be thoughtlessly doing what police have done from the beginning.

Some police will still justify oppressive actions as for an Aboriginal's own good,

or maintain that force is all that Aboriginals understand. When a constable

brought an ambulance containing Marie Quayle's body in a bag into a main street

in Wilcannia and called on Mark's brothers to get in, climb along their brother's

body to his head and identify him, on the implied, if not expressed, threat that if

they did not do so the body would be taken to their mother's house for

identification, he could not understand the criticism his actions aroused.

The consequences of seeing Aboriginals as stereotypes rather than as individual

human beings had already been vividly demonstrated when Mark, taken to

hospital because he was disoriented and needed treatment, was locked alone in a

police cell. The fact that he was taken there at the instance of a nurse and with

the approval of a doctor show that the underlying racism was not confined to

police.

Police violence

I have referred to the continuation of frontier legacies of violence and sexual

exploitation or abuse of women. I have not had the opportunity to investigate

specific allegations of bashing or of sexual abuse, and indeed there have been

relatively few formal investigations of this sort. Police point to this fact as

showing that complaints are not bona fide and cannot be substantiated.

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Aboriginals point to it as evidence of the fact that the mechanisms for dealing

with complaints are so loaded against Aboriginals, and the fear of retaliation so

great, that few Aboriginals dare to complain.

Complaints are dealt with in a formal manner and usually investigated by police;

the complainant is usually alone against an array of police witnesses, and

handicapped by a record of previous convictions, and as a result unable to

discharge the burden of proof placed on him or her. Having lodged one

unsuccessful complaint, the complainant feels vulnerable to retaliation, either

personally or against relatives. The existence of these problems emphasises the

critical importance of improving complaint mechanisms as a step in improving

Aboriginal confidence in police.

While the existence of the problems does not enable one to resolve particular

complaints adversely to police, it does caution against placing much reliance on

the paucity of formally substantiated complaints. Notwithstanding the

disincentives, some complaints are made and substantiated. A notable example

was the case of Paul Pryor, whose death outside custody was the subject of a

preliminary investigation by me at the request of the Victorian and Queensland

Governments. A complaint by Paul of a very serious assault by police at

Yarrabah in 1986 was upheld by the Queensland Police Complaints Tribunal

notwithstanding that Paul was unavailable to give evidence, initially because he

was afraid to return to Queensland and later because of his death.

Complaints include punching, shoving, beating with batons, and the indirect

violence of deliberately rough rides in police vans. In New South Wales, many

of the Aboriginal people who appeared before the Human Rights and Equal

Opportunity Commission's National Inquiry into Racist Violence identified

relations with police as the most significant aspect of the violence that they

continue to experience. Complaints of police bashing were made to Aboriginal

Issues Units by a number of communities in all three south-eastern States. In

Tasmania the AIU reported that they were 'very common'. Aboriginals believed

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that when young police were sent to the town they needed twenty convictions in

court in order to get a transfer and that Aboriginals were 'easy targets'.

While some are no doubt unjustified or inaccurate in detail, the widespread but

discriminating nature of the complaints, the depth of feeling expressed about

them by Aboriginals, and historical sources, can leave no doubt that at various

times and at many places police 'bashing' of Aboriginals has been a serious

problem and has left a major barrier to Aboriginal trust of police. A convincing

form of evidence which I have encountered is where Aboriginals nominate a time

where it stopped at the local station, or give a particular officer credit for stopping

it.

To what extent such violence continues it is not possible to say, but it does seem

reasonable to conclude that it is nowhere near so widespread and frequent as it

once was. Today it is not usually at the forefront of Aboriginal complaints

about police, and, as I have said, one hears Aboriginals refer to the fact that it no

longer occurs at a particular place. Also today one is less likely to hear individual

police advocate the desirability of physical punishment. But Aboriginal accounts

as told to Commissioners and reported by Aboriginal Issues Units, and such

substantiated complaints as that of Paul Pryor, show that at least in some places

police violence towards Aboriginals has not been eliminated, and it behoves

police forces to stamp it out where it continues. Complaints should be treated

seriously, there should be no excusing or turning of the blind eye, and police

administrations should make it very clear that such conduct is totally unacceptable

and will be severely dealt with.

Senior police should seek frank discussions at the local level with Aboriginal

communities to ascertain whether there are concerns about mistreatment, and

should not refuse such discussions because no formal complaints are lodged or

details given of particular incidents. While such complaints are necessary for

disciplinary action, there are other ways in which an officer in charge may

respond to general expressions of concern which appear sincere, for example by

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stressing to his officers the importance which he attaches to the matter, and

ensuring appropriate supervision.

Treatment of Aboriginal women

A widespread Aboriginal perspective is put in the report of the Tasmanian

Aboriginal Issues Unit:

O f particular concern to the community is the attitude of Police

Officers to Aboriginal women. During arrest and detention,

Aboriginal women are consistently abused, verbally with terms

such as 'black slut', 'whore', etc. While it is improper for

individuals to be insulted by police officers in the first place, the

nature of such insults is particularly threatening for young women

who are placed at the mercy of several white males in unfamiliar

surroundings.

'The attitudes expressed by police in these instances refer directly

to an historical stereotype which maintains that Aboriginal women

can be regarded as available for the convenience of those in

power, and accorded little, if any, respect.'

While other women of low socio-economic status may have problems in their

relations with police, the position of Aboriginal women merits special attention

because of this historical nexus and the fact that they are so disproportionately

taken into custody. What I have earlier said about senior officers discussing the

issue of violence with Aboriginal communities, irrespective of the lodging of

formal complaints, applies equally to the issue of mistreatment of women.

The issue of the treatment of Aboriginal women by a largely male police force is

a sensitive issue in Aboriginal communities and assumes a particular importance

in view of their alarmingly high level of arrest. Across the country, Aboriginal

280

women made up nearly 50% of all women in police custody in August 1988,

although they comprised less than 1.5% of the national population of women.

Many of the offences for which Aboriginal women are detained are street

offences.

It is not merely a question of physical mistreatment or sexual abuse or

harassment. Relatively subtle differences in address or behaviour can be very

damaging to self-esteem, and to good relations, especially when obviously

discriminatory. A light-skinned woman told me how she was treated and spoken

to by police more politely her darker sister, until their relationship became

known, when she received the same brusque and discourteous treatment.

In recent years the police services have increasingly recruited women as police

officers. While a major impetus has been the pressure for equal opportunity for

women, there is clearly great potential for the more diverse and representative

force to change some of its attitudes, although there were complaints by

Aboriginal women at Commission conferences about the attitudes of

policewomen. Hopefully Aboriginal women will be amongst the beneficiaries of

change to attitudes that are rooted in a frontier past in which white women had

little presence.

Police services should take all possible steps to eliminate any mistreatment,

physical or verbal, of Aboriginal women. The obligation to treat them with

courtesy and respect, even when intoxicated, should be emphasised to all police.

Any complaints of mistreatment should be investigated as serious matters, and if

substantiated appropriate action should be taken. Officers in charge in areas of

Aboriginal population should take steps to ensure that they are aware of any

Aboriginal concerns on this issue, irrespective of the lodging of formal

complaints.

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Police harassment

'Harassment' by police is another widespread complaint of Aboriginals. Various

forms of police conduct are experienced as harassment. The oppressive scrutiny

by police in cars slowly cruising up and down the streets of towns in western

New South Wales is one, as is the use of spotlights in Aboriginal residential

areas. In Victoria complaints to the AIU included Police cars constantly driving

past Koori houses and Koori areas 'just checking, keeping a vigil, reminding us

that we are "bad" and need to be kept an eye on. They tried to intimidate us'.

Police were reported to have told other children 'not to hang around with blacks'.

Koori kids going to a Blue Light Disco felt harassed when they were greeted

with comments like 'You're not going to muck up tonight, are you?' Aboriginals

who arrived from out of town were stopped by police and questioned as to who

they were and what they were doing. It was felt that young people in particular

were targeted and harassed by police in a way that gave them little opportunity

for rehabilitation if they had offended. In some areas the perception of

harassment is clearly linked to the excessive numbers of police assigned to police

Aboriginal populations because they are viewed with suspicion. The suspicion

becomes a self-fulfilling prophecy.

Harassment can be a difficult issue to come to grips with because of different

perceptions of the same situation by different people. A Victorian police officer

told how he had set out to cultivate friendly relations with Aboriginal youths in

his town by talking to them in the streets, only to be accused of harassing them.

What this demonstrates is the importance of frank discussion and negotiation

between police and Aboriginal communities about policing methods, with a view

to developing mutually satisfactory approaches, or at least understanding of the

purpose of police operations.

Police should frankly discuss with Aboriginal communities the methods of

policing used, with particular attention to identifying police conduct perceived by

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the community as harassment and negotiating more acceptable ways of achieving

necessary police objectives.

Hurtful language

No doubt some of the offensive language used by police is in response to

language addressed to them. While this may make the response understandable

in some cases, it does not excuse it. Police are paid professional people

performing public duties, Aboriginals are not. Police on duty are sober, while

those using language to them are often drunk. Aboriginal persons may have low

self-esteem as a result of widespread racist treatment and may be merely

expressing pent-up resentment. They may be vulnerable to humiliation. Police

should be secure in their role and can afford to ignore abuse. They should be

prepared to take the lead in breaking the cycle of abuse rather than perpetuating it.

I have already pointed to the hypocrisy often involved when police purport to

take offence at language they commonly use themselves. Certainly mere general

abuse cannot reasonably be taken as a licence to use hurtful racist language.

Sometimes the hurtful language creeps into documents. In New South Wales the

AIU was told of a case where a Court Attendance Notice directed to an

Aboriginal showed his occupation as "bludger". He was in fact employed,

although that is irrelevant: the entry was obviously a gratuitous attempt to

denigrate and hurt.

Police services should take all possible steps to eliminate the use by police

officers of racist o r other offensive language to, or in respect of, Aboriginal

persons. Any complaints of such language should be investigated as serious

matters, and if substantiated appropriate action should be taken. Officers in

charge in areas of Aboriginal population should take steps to ensure that they are

aware of any Aboriginal concerns on this issue, irrespective of the lodging of

formal complaints.

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Discrimination

It is clear from AIU reports that many Aboriginals in all States perceive local

policing as discriminatory. There were frequent complaints that Aboriginals

were charged in situations where white people would not be charged. Aboriginal

complaints against non-Aboriginals are not taken up. It seemed to be almost

unknown for a white person who assaulted an Aboriginal to be charged, but the

reverse situation invariably brought charges. A fight between an Aboriginal and

a white person would invariably lead to the charging of the former. In many

communities all Aboriginals felt under suspicion when any offence had been

committed, even though it might turn out in the end to have been committed by a

white person.

The Quayle report gives concrete examples of discriminatory treatment. A

prominent white citizen who used offensive racist language to Aboriginals,

including Mark Quayle's brother, and abused a police sergeant over a period of

time, was treated with tolerance and allowed to go home uncharged. Yet on

another occasion another of Mark's brothers was arrested for an isolated

offensive remark made when he was so intoxicated that he could not be given

bail, and held for six hours in the cell in which his brother had hung himself.

Mark's brother John said:

Ί seen a lot of white of people up in the town get drunk, hop in a

car and drive away dangerous to the public, and the police are

there and they don't do nothing about it, but a poor Aboriginal

person walking home drunk, they got to pick him up and say he's

a danger to himself. Now, which is the dangerous, the one in the

car drunk, or the one walking home drunk?'.

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Other perceptions of discrimination expressed at Wilcannia included swearing by

police at Aboriginals and the failure to arrest non-Aboriginals for swearing.

Local resolution of issues

Again it is important that there should be the sort of dialogue between police and

Aboriginal communities at the local level in which such issues can be brought to

the surface and resolved. They will never be resolved while police refuse to

consider such issues except on the basis of formal complaints about specific acts.

What is needed is not the prosecution of individuals so much as the examination

of patterns of behaviour in frank discussion. If community policing means

anything it should mean a real willingness to account to local Aboriginal

communities, not a holding of them at arm’s length by an insistence that

complaints must be dealt with by adversarial process.

Usually this cannot be done through organisations representing the whole

population of a town, Aboriginal and non-Aboriginal. Too often the latter 'talk

down', and promote negative views of, the Aboriginals, who are considered

responsible for town problems and are expected to do all the changing.

Until relatively recent times, it has not been easy for Aboriginals to organise

themselves for negotiation in ways which the non-Aboriginal community would

accept and respect. Through most of Australia traditional forms of Aboriginal

authority were undermined or destroyed when land was taken and the social and

religious structures related to it were destroyed. Communities were decimated

and, in the more settled parts of Australia, shifted about, broken up and mixed

with other communities. As society has become more complex and more paper

based, small and inadequately educated communities have been at a great

disadvantage in making their views felt. Until recently, neither the education nor

the resources required for effective organisation have been available to

Aboriginals in most of Australia. Notwithstanding this, there were many notable

examples of Aboriginal organisation, both local and sometimes over a

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surprisingly wide area. Rarely, however, did it gain acceptance as an institution

with which negotiation about the accommodation of cultural difference could

proceed. More often, cultural difference was seen as something to be eliminated

and organisations expressing it were regarded as subversive and trouble making.

This attitude is still alive amongst some police today, as is shown by the 1987

police intelligence reports from Brewarrina, quoted in the report on the death of

Lloyd Boney.

Today in many communities there are Aboriginal organisations with which police

can negotiate if they have the wisdom to do so.

Inexperienced police

Everywhere there are complaints from Aboriginals about the conduct of newly

recruited young officers exercising their newly acquired powers arrogantly and

without understanding, tolerance or sympathy and the wisdom that experience

can bring.

As one Aboriginal said:

'I'm worried about the young police who come to Walgett, some

get pretty smart. We try to tell them something and they go the

opposite way. These young police need to learn to understand

Aboriginal people'.

On the other hand, while older police have an established relationship with

communities, it may not be a productive one. It may be difficult for them to

adapt to new approaches in which Aboriginals are not dealt with in a paternalistic

fashion, or to develop the kind of relations with youth that are needed if the

appalling involvement of juveniles in the justice system is to be reduced.

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Street offences

Most of the conflict with Aboriginals arises from police endeavours to enforce

'street offences' legislation, which seeks to impose on Aboriginals the views of

the European culture about the appropriate use of public space. While sections of

the Aboriginal population have adopted the values of the dominant community on

these issues, the values are in many places constantly challenged by groups of

Aboriginals who do not conform to ideas about public drinking, noisiness,

language, dress and general decorum. It is thus the constant effort of police to

subordinate to the standards of the white society Aboriginal conduct which

reflects cultural differences. No doubt police seldom think of their role as

maintaining the subordination of Aboriginal people, nor are they the only

institution in Australian society that act to do so. Indeed, it is often the

relationship with other institutions that is crucial, as for example, with local

government or hospitals or the media or hotel owners or schools. Nevertheless,

the routine nature of much of police involvement with Aboriginal people means

that their day to day practices act to entrench the subordination of Aboriginal

people and, with it, racist attitudes in the dominant society. Only a change in

these fundamentally unequal relations can alter the relationship between them.

As this report stresses in many places, the time has come for the issues to which

cultural differences give rise to be settled by negotiation and with tolerance,

rather than by repression and insistence on conformity.

Aboriginal use of police services

Relations with police have been one of many dilemmas for Aboriginal people.

Like any other people1 , they too have a need for the enforcement of some form of

law and order to maintain harmony and to control violence and other

unacceptable behaviour within their communities. The traditional ways in which

Aboriginal communities coped with unacceptable conduct were very different

from those of western society, and relied far less on the conferring of power and

authority on individuals and institutions. Dispute-settling mechanisms included

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the responsibilities of certain kin to intervene in disputes; an extensively

elaborated set of rules for orchestrating disputes, of which fighting and swearing

were an integral part; and avoidance and mobility, which were solutions available

in traditional Aboriginal society in a way they are not today. While these

mechanisms remain important in some parts of Australia, at least for some

purposes, they are often incapable of dealing with the much more complex

circumstances of today, or of being applied in the much more concentrated and

less mobile populations. In the face of new factors, such as easy access to

alcohol, once culturally appropriate behaviour may now produce unintended

consequences, such as uncontrolled, instead of controlled violence. Moreover,

some of the very mechanisms of social control, such as public action involving

swearing and controlled fighting, and the involvement of appropriate kin as

monitors, are likely to be seen by police and the white community simply as

more unlawful behaviour.

In the absence of any effective internal means of controlling violence in

contemporary Aboriginal communities, Aboriginals are dependent on police

intervention. The dependence often produces an ambivalent attitude to police on

the part of Aboriginals, and sometimes a bewildering situation for police

themselves. This is particularly so when police officers are called to deal with

one of the most common forms of violence, domestic violence. This conduct

presents great difficulties for police in society generally, as women are often tom

between the need to protect themselves and their children against violence from a

perhaps drunken spouse, and their reluctance to be the cause of his incarceration,

either for reasons of affection or for fear of subsequent retaliation. In Aboriginal

communities, where people often do not live in nuclear families and a range of

kin may see themselves as having some responsibility or right to intervene, the

situation may become correspondingly more complex and more difficult for

police. It is significant that in a number of the cases that have come before the

Royal Commission, it has been women or other members of the family who have

called the police in the first instance. This was so in the cases of Glenn Clark in

Tasmania and Lloyd Boney in New South Wales. The reports of the Aboriginal

288

Issues Unit in New South Wales showed that Aboriginal communities often rated

local police according to the way they responded to calls for assistance with

domestic violence, a particular community sometimes being divided as to

whether police overreacted or underreacted. I discuss some of the issues in more

detail in the next chapter.

Generally speaking Aboriginal people accept the need for police, and do not want

their communities to be without their services. What they typically complain of

is that police are not 'accountable', and that they themselves are 'powerless' in

the face of police. The power they want over police is not physical power, but

effective legal power - the power to make police themselves accountable for their

actions in the community. A formal right of complaint to a senior police officer

or a distant bureaucracy is seen as of little comfort. What they want is a real say

at the local level in how their community is policed. There are some outstanding

examples, to which I shall refer, in which a mutually satisfactory and workable

accommodation has been reached between police and particular Aboriginal

communities. These remain very much the exception, but hopefully they will

serve as an inspiration to police and to Aboriginals in other places.

POLICE CULTURE

Its nature and importance

It became increasingly apparent to me as I conducted inquiries into deaths, that

there was operating what might fairly be described as a 'police culture' - a set of

beliefs, values and attitudes which were wide-spread amongst police officers,

highly resistant to change, and passed from one generation of police officers to

another. It is by no means wholly negative. Obviously some of it - such as

traditions of bravery, dedication, loyalty and discipline - are, if properly directed,

admirable. There are many police officers who discriminate in their adherence to

police culture, and reject parts of it, and it is capable of change. However there

are many elements of this culture that are highly resistant to change and certainly

289

cannot be changed merely by the issuing of Instructions or the giving of a few

hours lectures to new recruits at a police academy.

Any group of people who work or pursue common interests together on a

permanent basis will develop over a period their own 'culture', and this is

apparent to a greater or lesser degree in all professional and vocational groups.

However it is particularly strong in disciplined bodies like police and military,

whose members are marked off to perform certain duties for the community as a

distinct force, and who must depend greatly on each other in their day to day

activities. This has been noted by many writers in many countries. Its

importance was noted in the Fitzgerald Report in Queensland (1987-89, p200):

The institutional culture of a police force is of vital importance to

a community. A police force is numerically strong, politically

influential, physically powerful, and armed. It stands at the

threshold of the criminal justice system and is in effective control

of the enforcement of the criminal law. Each police officer has

extensive authority over all other citizens, however powerful,

coupled with wide discretions concerning its exercise.

Subsequent stages in the criminal justice process, including courts

and prisons, are largely dependent on the activities of the Police

Force, and will inevitably be affected by its deficiencies,

especially any which are cultural and therefore widespread'.

Police stereotypes

One aspect of police culture of particular relevance to this Commission is the

way in which particular stereotypes held by police - as they are by many in the

general community - are passed on from generation to generation within the

culture, so that they are unquestioningly accepted as 'knowledge' or 'common

sense'. Moreover they are constantly reinforced and reproduced by routine

police practices.

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Discretions are exercised differently in regard to people of different status in

society. One group of people who attract a particular set of attitudes are

'drunks'. It is very often difficult to get a policeman to acknowledge the

possibility that a person who is intoxicated may also have some other condition

which needs attention. For many police a drunk is a drunk, not a person who

may have special problems and be in need of care. Clearly too, Aboriginals are

another group about which there is a strongly embedded set of beliefs or

attitudes.

This was exemplified in an interchange with a police sergeant which angered

Bruce Leslie's sister, Joan Baker. The sergeant told her that he was stationed at

Coonamble for 18 years, and 'knew' how the Aboriginal people lived and drank

amongst themselves. She felt that he was stereotyping her brother as a drunkard

because of this claimed expertise about Aboriginal people. She said 'That's not

true, because you can't take one Aboriginal down, its just like a bunch of apples,

you know. You can't blame one Aboriginal person for the rest of them and put

them all together like he was trying to tell me'. She felt that he was 'a very mde

man on the phone, who didn't have any respect'. A person who, like

Bmce Leslie, is both drunk and Aboriginal is at special risk of being treated as a

stereotype, rather than with careful attention to the actual condition displayed.

Nowhere was a stereotype of an Aboriginal better illustrated than in the decision

to take from the hospital and lock alone all night in a police cell young Mark

Quayle, described in the hospital records of his last visit as a 'pleasant

gentleman' who helped with the dishes. He had been brought to hospital by his

family, well-known in the town, for treatment for the withdrawal condition

which was causing him to hallucinate.

In the R e p o r t o f the In q u iry in to th e D e a th o f A rth u r M o ffa tt I referred in the

discussion of police culture to 'different attitudes and practices in relation to the

policing of certain groups, the use of roughness, violence and hurtful language,

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and the differential application of discretions in many matters, including the

relative use of the "blind eye", the caution, the summons and the power of

arrest'.

When based on stereotypes of Aboriginals, such practices act as racist practices

irrespective of the intentions of the person carrying them out. Such

institutionalised practices are then not just discriminatory in relation to Aboriginal

people, but also operate to reproduce racist views. This occurs both among

police themselves, as their contact with Aboriginal people tends to be routinised,

and in the general society, where the over-representation of Aboriginal people in

the criminal justice system defines them as disorderly or criminal. In this way,

without any deliberate intention on the part of those caught up in it, police culture

plays an active role in reinforcing not just the subordinate position of Aboriginal

people in the society at large but also the negative views towards them of many

of those in the dominant society. It forms an element in the forces of inertia

which those trying to turn around the battleship of bad police relations must

overcome.

Police 'intelligence'

How far police stereotypes can go in distorting judgment and unfairly

criminalising Aboriginals was vividly illustrated in a number of Criminal

Intelligence Reports filed from Brewarrina Police Station. They were produced

to the Commission by counsel for police officers in the Lloyd Boney inquiry for

the purpose of shedding light on the reasons why members of the TRG were

brought into Brewarrina in January 1988. If these reports were the reasons why

the TRG was brought in, it can only be concluded that they were brought in

because of completely unjustified paranoia on the part of local police, reflected in

a willingness to report completely unsourced gossip and to misinterpret quite

innocent events in amazing ways. An example of the former is a report on

12 December 1987, completely unsourced, which is headed 'Bicentennial

Celebrations' and reads:

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'Information has been received that aboriginals within the Bourke,

Brewarrina, Walgett and Moree areas have come into possession

of a large number of firearms. Informant stated that these firearms

were purchased in a crate through M. MANSELL by use of

Government funding. Believed to be hidden for use in 1988.'

On 2 November 1987 a constable in Dubbo reported:

'Information was given to me about the Bicentennial in 1988. I

was informed that a hotel owner came into Dubbo on Saturday to

do some shopping and whilst in Grace Bros started talking about

information he had heard in BREWARRINA about what would

happened [sic] in Dubbo early next year. My informant believes

that this hotel owner who lives and has his hotel in Brewarrina

might have some information that might be helpful to Police. My

informant told me that the Aboriginals intended to congregate and

make a mess of Dubbo. The hotel owner in Brewarrina is

described as not real tall but big in the belly. It is not known what

hotel he own [sic] but from what I have been told he might know

a bit more about what is going to happened [sic] next year'.

Perhaps the most telling indication of the police state of mind was in two reports

filed by Constable Bordin on 16 November 1987. The first was a report on

Mr Winters and Mr Bloomfield, the two Field Officers of WALS in Brewarrina.

It read:

'At about 6.30 pm, on Monday the 16 November 1987, whilst

patrolling a bush track which mns off the Bourke to Brewarrina

road, Police observed the abovementioned vehicle which is

know n to P o lic e as the v e h ic le driven by

TH O M A S M A R T IN W IN T E R S , A .K .A . 'T h o m b o '

WINTERS. Sitting on the bonnet of the vehicle was a man

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known to Police as JOHN BLOOMFIELD. He was with another

male Aboriginal of about 30 years old. Police thought this

strange to see the two men sitting in the bush about ten kilometres

out of Brewarrina, with the motor of the vehicle turned off. We

did not speak to them, but drove by to 'the Old Piggery'. When

Police returned to the track about 15 minutes later, the car and the

men were still there, we drove past them, and when going a

further kilometre up the track, we observed the Vehicle No.

OBH352, a blue 1968 HOLDEN. This vehicle had the owner of

the car, PETER JOHN BEETSON, and WINTERS aboard. They

were driving down the track, obviously to meet with

BLOOMFIELD. Another vehicle was also observed No.

OKD093, a grey 1980 Chrysler. This was also heading on a

different track towards BLOOMFIELD from the opposite

direction. All of the abovementioned vehicles were seen at the

SIMMONS Service about ten minutes later, in town.

'Police thought this to be suspicious, as BLOOMFIELD is a field

officer in the Aboriginal legal aid service in Brewarrina ...

WINTERS is also a member of the Aboriginal legal service, and

the above described car is owned by the Aboriginal lands council.

This was obviously a meeting of sorts, as this is a little used track,

it seems strange to see them all congregating for about ten

minutes'.

A second report by Constable Bordin on the same incident, filed under the names

of Mr Beetson and Mr Clarke, contained the following paragraph:

'This is a suspicious circumstance as this is an almost totally

unused track and is out of the way for anyone. The persons

WINTERS and BLOOMFIELD are both aboriginal legal aid field

officers, and are both influential members of the aboriginal

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community. It is also believed by Brewarrina Police that they may

be holding meetings there on a regular basis for an unknown

purpose. One possible reason is to organise protests or similar

disturbances for the 1988 Bicentenary, which it is believed that

there could be trouble in the western part of the State (Brewarrina,

Bourke, Walgett). Both BLOOMFIELD and WINTERS are

known aboriginal activists who although not vocal in their beliefs,

do make it obvious that they are pro-aboriginal and perhaps anti­

Police.'

Even allowing for the fact that to Constable Bordin's mind it was a very

suspicious circumstance that two Field Officers of WALS should make it

obvious that they were 'pro-Aboriginal', the facts as stated seem a surprisingly

flimsy basis on which to develop any suspicion. When Mr Winters was in the

witness box, I asked him if he remembered and would care to tell the

Commission about the occasion. He said:

'Well, the occasion was - Mr Clarke had gone fishing - he'd

broken down - he walked up to West Brewarrina - 1 was down at

West Brewarrina - he asked me to come down and tow him back

up, so I took off, and when I got down there I found that - I

didn't take notice of how much petrol I had and I ran out of petrol.

I walked back up town, and the first person I saw that I knew was

Peter Beetson in the Royal Hotel - Peter had a blue Holden. I

said, "Pete, look, how about running me back down to my car

with some juice?" We went up to the Simmo's Service Station

and got the juice, and we went back down and put it in my car,

and I then towed Mr Clarke back home. That was the result of it.

If every time you help somebody you are going to get this sort of

stuff, you'd feel careful about helping people, wouldn't you?'.

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This was the incident which led to four persons, including the two Field Officers

of the Western Aboriginal Legal Service, becoming the subject of reports filed

with the Bureau of Criminal Intelligence, and led Constable Bordin to surmise

that meetings were being held on a regular basis to organise disturbances for the

Bicentenary.

Truthfulness of police officers

One of the the less desirable features of police culture is what I described as 'the

high level of toleration of police untruthfulness within the force' (Inquiry in to the

D e a th o f B ru c e T h om as L e slie 1990:176). It was illustrated after Lloyd Boney's

death by the fact that, in reporting the coroner's finding and making

recommendations about it, senior officers did not even mention the coroner’s

adverse comment as to the truthfulness of two constables. His comment

reflected not only on their evidence to him, but on records of interview with

police investigators. Yet the matter was treated as simply of no interest whatever

to the Police Force. The oversighting officer criticised the coroner for not

recommending action against Aboriginal witnesses whose evidence he rejected,

but ignored the coroner's comments on the two constables. This aspect of police

culture was also exemplified in the Bruce Leslie inquiry by the willingness of

officers who were not involved in whatever difficulty the three officers on night

shift had got themselves into to tailor their evidence in a supportive way. It was

also illustrated in the lenient treatment of a constable who had lied to a police

investigation in Wilcannia. In the Revell case a senior officer had no difficulty in

accepting all of a series of inconsistent stories told by an officer he was supposed

to be investigating. There were other examples.

Everybody would recognise that there are many police officers who are

scrupulous in telling the truth, but conversation with people involved in the

criminal justice system, be they lawyers, judges, or welfare workers, as well as

litigants, elicits a very widespread view that lying by police in the witness box is

all too common. This view is shared by many people who are sympathetic (as

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most judges are for example) to the problems of police in combating crime. Such

police conduct may often reflect an attitude that the end justifies the means in

bringing criminals to book, but it is not acceptable that police should usurp the

role of the court in deciding who is guilty and of what.

Sometimes it seems to reflect another element of police culture, that is that they

feel that they are under siege and must defend themselves. This is

understandable when police are involved in a Royal Commission inquiry into an

Aboriginal death in custody. However if police would reverse their strategy of

closing ranks in blind loyalty, and instead assist inquiries and courts to get at the

truth, their own reputation and the level of respect accorded them in the end

would be greatly enhanced.

That such practices are a part of police culture constitutes a very serious matter

for the community. Frequently it is difficult to pin down the specific untruths,

and indeed it is sometimes hard to escape the feeling, as I observed in the Bruce

Leslie Report, that some police consider that they can say nearly anything and get

away with it.

While the examples which came to my notice related mainly to New South

Wales, the tolerance, even the requirement, of untruthfulness, has been

commented on in relation to many police services. Commissioner Fitzgerald

observed in his report on the Queensland police (1987-89:202) that 'the police

code effectively requires that it be assumed that whatsoever is done by a police

officer legitimately occurs in the course of his duty’.

Police reluctance to criticise police

Another obvious element of police culture that has come to the surface in a

number of cases is the great reluctance of police to criticise other police, at all

events publicly. This goes to the extent of unwillingness to conceive the

possibility of misconduct by police, an attitude reflected in the repeated failure of

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investigators to consider whether police acted properly in the care of prisoners.

It is also reflected in the fact that, as appeared in several inquiries, even if an

investigating officer or senior officer forms an opinion adverse to the conduct of

police, he is often most unwilling to express it. All this is understandable, but is

an obstacle to public confidence, and in particular Aboriginal confidence, in

police investigations.

A related matter is the difficulty, illustrated in many of the deaths inquired into by

the Commission and discussed elsewhere in this report, which many police have

in investigating the conduct of other police with thoroughness, objectivity and

impartiality.

Changing police culture

As I have said, matters which are embedded in the culture of a group are highly

resistant to change. Obviously it is important that Police Instructions and training

should endeavour to combat unacceptable elements in the police culture, and that

when examples of misconduct come to light, there should be no equivocation in

dealing with them.

However, exhortation, training and punishment are not necessarily effective. In

the long run it would seem important that the existence and nature of police

culture should be thoroughly studied and publicly discussed and examined so

that police will realise that the public is looking at it critically and they must do so

too. In this there is obviously a valuable role to be played by academic and other

researchers, journalists and publicists. Such study and examination already

occurs to some extent within the police force and outside it. The increased

reflection on their own practices which is occurring in some services is a most

encouraging sign.

One hopeful sign at the present time is that there is an increasing number of

enlightened senior officers in police forces who are willing to acknowledge the

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existence of the police culture, the problems associated with it and the difficulties

of change. No doubt often with the feeling that they are banging their heads

against brick walls, they are working for desirable changes. It requires real

courage to challenge a culture from within. At the Police/Aboriginal Conference

which I attended in Victoria, a police officer commented that other officers

looked on police who took an interest in Aboriginals as 'soft', and would taunt

them when they went back and said that they had spent three days talking to

Aboriginals.

Policing the western towns

A breakdown of the figures in the National Police Custody Survey of August

1988 40 for New South Wales shows very sharp differences between regions.

The starkest contrasts may be seen in the levels of over-representation in police

custody, the level in Sydney being 7 - that is, Aboriginal people are seven times

more likely to be in police custody than non-Aboriginal people. In the North­

West, this figure is 67 times, and, in the Far West, 223 times.

I have made some general observations about this area earlier in this report. In

the R e p o r t o f the Inquiry in to the D e a th o f C la ren ce A le c N ea n , I commented:

'The North West of New South Wales has the largest

concentration of Aboriginal population in New South Wales

outside of Sydney. There are a number of towns of which

Walgett is one in which there is a high proportion of Aboriginals

in the population. These have a number of problems in common

as well as specifically local problems.

'Collectively they form a group of towns which are the source of a

large number of Aboriginals in custody in New South Wales and a

40 RCIADIC, Criminology Research Unit, D. McDonald, Criminology Research Unit, Research Paper No. 13

299

significant proportion of the deaths in custody. They have high

numbers of police and what is felt by many Aboriginals to be

oppressive policing. There are many indications of racism that

make life unpleasant for Aboriginals'.

The nature of that racism was vividly documented in the R e p o r t o f th e In q u iry

in to th e D e a th o f M a rk A n th o n y Q u a y le , which related to Wilcannia. In the

R e p o r t o f th e In q u iry in to th e D e a th o f L lo y d B o n e y , which occurred in

Brewarrina, I wrote of some of the tensions which surround policing in such

towns, and commented on the great tendency to stereotype and to classify people

as 'goodies' or 'baddies'. I remarked:

'Confronted by the operational solidarity of the Police Force, it is

not always easy to remember that it too is the site of battles

between conflicting attitudes and philosophies. Individual human

reactions are often hard to express under the conflicting pressures.

From within come demands for loyalty and conformity. From

outside the force come irreconcilable claims for harsh law and

order policies on the one hand and social engineering on the other.

But in night to night work police stand alone to face the bitter

resentment and anger of the dispossessed and frustrated when

alcohol releases their inhibitions'.

Wilcannia, the western town in which Mark Quayle died, illustrates the

contradictions that exist in a police service in the midst of a cultural revolution in

which officers are tom between conflicting responses to tensions in the town. In

the past the local police and courts in Western New South Wales have often been

perceived as heavily identified with the concerns of the white community,

frequently voiced through councils and their committees. This has served to

exacerbate the alienation from the justice system of the Aboriginal population,

which is in some centres in a majority. As the white population controls the

media in the area, and most of the social and recreational outlets, it requires

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courage and independence of mind from police and courts to resist identification

with its attitudes and demands. The traditional 'law enforcement' response is

more police, more weapons and more surveillance. This response is evident in

the town, as is the problematic result.

Wilcannia, with a population of 1,000 of whom some 800 are Aboriginal, is

serviced by 11 police, a police population ratio nearly six times that of the State

as a whole. Aboriginal people often ask 'Why are there so many police?'. The

facts are that the State-wide police/population ratio is 1:432. In Chatswood it is

1:926, in Redfem 1:353, in Bourke 1:142, and in Wilcannia 1:77. The bill for

policing in Wilcannia was $816,581.00 for 1989-90, with other costs, including

the cost of the court, bringing the cost of 'justice' in Wilcannia conservatively to

$1,143,381.00 per annum. Some observers see this massive police presence as a

cause of, rather than a limitation on crime. A major offence in Wilcannia is

swearing at the police. Arrests for swearing at police often arise as police

constantly drive up and down the main streets of the town obviously scrutinising

the Aboriginal population. Eventually some Aboriginal calls abuse at the police,

who seek to make an arrest. Charges of resisting arrest and assaulting and

hindering police are likely to follow.

The other response is community policing, with an attempt to identify the sources

of the problems and do something about them. The two responses were mixed

together in the events after Mark Quayle's death. There was a turnover of police

as those whose conduct had aroused hostility were transferred and a new officer

in charge was appointed, who had a reputation for interest in Aboriginal issues.

He told the Commission that his policy was to

'try and adopt a standard - I would accept certain things and

couldn't accept certain things - the aim was to break down the

barrier. To have the police more visible - if offences were

committed then we had to take appropriate action'.

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This was a 'law enforcement' policy, which led to an increase in the charge rate

in the months following his arrival. The stringent law enforcement policy on the

part of the police has continued, and recently has led to obvious conflict between

police and a new magistrate who sees room for a more humane approach to law

enforcement. But on the other hand there have been police initiatives which

reflect the ideas of constructive community policing, among them the

encouragement of young police to take part in sport with Aboriginals and the

appointment and intelligent use of two Aboriginal Community Liaison Officers. I

observed that in contrast to some other towns, no attempts had been made by the

police to make the officers dress and look and act like policemen. They

continued to dress appropriately for the climate and informally, very much like

other Aboriginals. They had obviously retained community confidence, and this

enabled them to be very successful in defusing problems, and for example,

persuading intoxicated Aboriginals to go home. They could also relate well to

young Aboriginals. They were accountable directly to the officer in charge, and

were not subjected to pressures to act as informants or to assist in general police

work. They were initially handicapped by lack of an office and lack of transport,

but the sergeant later succeeded in getting funds to purchase a second-hand car

for their use.

A recent initiative has been the holding of a police seminar at Wilcannia,

involving local, Broken Hill and Wentworth Police, at which various members

of the Aboriginal community were invited to attend and speak. The object was to

promote an understanding by Aboriginals and police of each other's viewpoints.

A more unusual initiative demonstrates that senior police officers responsible for

Aboriginal relations are sensitive to the problems of towns such as Wilcannia.

The Commission was informed that with a view to ultimately achieving a

reduction in police numbers, the Police Service was providing money for an

economic survey to find ways of increasing the employment of Aboriginals in

Wilcannia and to initiate some of the proposals. I commented in the Quayle

Report that this was well motivated, but it remains to be seen whether it is a role

302

which police can play successfully. There have in recent times been a number of

economic surveys of Wilcannia by other agencies, none of which has so far led

to any impact on the unemployment situation. It is not a role which should be left

to police.

Use of para-militarv groups

A particular source of tension in the west and elsewhere in New South Wales has

been the use of special units police units such as the Tactical Response Group

(TRG) and the Special Weapons and Operations Squad (SWOS). Some

observers believe that there has been a significant and provocative involvement of

these units with Aboriginal people over several years. It was in this context that

many Aboriginals saw the death of David Gundy in a SWOS raid on his home.

In Brewarrina, the Western Regional Command responded to the disturbance on

the night of Lloyd Boney's funeral by deploying members of the TRG to the

town.

This was not the first contact of Aboriginal people with the TRG, which became

operational in May 1982. In 1986 they had been used in Bourke in response to

demonstrations of Aboriginal anger over police delay in arresting a white man

who was alleged to have deliberately reversed his car over a young Aboriginal

man. TRG riot control equipment has subsequently been increasingly located at

Bourke, and TRG police intervened in an Aboriginal family dispute there in

January 1988. The TRG was subsequently used openly in Redfem (there had

been a number of previous allegations of covert use), in August 1988 and again

in February 1990. They have also been used in the policing of the Aboriginal

communities in Walgett, Dubbo, Wilcannia, and Cobar.

This increased use of special police units in areas that already suffer from already

intensive policing parallels the development of particular law and order

campaigns also in the last decade. Two of these originated specifically in the

northwest in 1985 and 1987. They were organised by members of local

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government bodies in Bourke and Dubbo, by politicians, and by local and

regional police officers. The campaigns were supported by the Police

Association and by police officers speaking from the Law and Order platforms.

The use of such units in relation to Aboriginals can reinforce the historical view

of police as a para-military force suppressing dispossessed Aboriginals, and

seriously undermine other police initiatives to develop better relations with

Aboriginals. Police who planned and executed the SWOS raid on the home of

David Gundy were obviously quite insensitive to the implications of their actions

for Aboriginals, and did not consult with those in the service responsible for

Aboriginal relations.

SWOS and its culture

In the R e p o r t o f th e In qu iry in to th e D e a th o f D a v id G u n d y I noted that. SWOS

has a culture of its own, which in some ways might be seen as an example of

police culture in an extreme form.

It is natural that para-military bodies like SWOS should develop a particular

culture of their own of very great strength, and it is in the nature of things that in

a democratic country there will be real problems in ensuring that the body fully

accepts the rule of law and the paramountcy of civil authority. In numerous other

countries, particularly newly established democracies without a strong tradition

of parliamentary control, we have seen the difficulty of keeping military authority

under civilian control. Typically the military in such countries has a conviction

of its own purity and righteousness, an impatience with values which fall outside

its normal sphere of operation, and a tendency to see the controversy and

disputation which are the essence of democracy as a lack of national discipline.

However in Australia there is a very well established tradition that the military

responsibility is confined to dealing with external enemies under the control of

civil authority in wartime.

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Para-military police bodies tend to share the tunnel-vision of military authorities,

but as their work is continuous and directed at internal rather than external

enemies, the problem of keeping their activities under adequate scrutiny, subject

to civil control, and obedient to the law, is an ever present one.

It would be difficult to argue against the need for a para-military body such as

SWOS in the circumstances of today's world. Although Australia has been

relatively free from terrorist activities, there are far too many examples of

international terrorism for any country to assume that 'it cannot happen here'.

There is a strong case for having appropriate forces in readiness to nip any such

activity in the bud. Moreover with the power of modem firearms, the laxity of

gun laws and the availability of explosives, it is possible for hardened criminals,

or people who are temporarily mentally disturbed, to present a very great threat to

life. Hence there are bodies such as SWOS and their counterparts in other

Australian States and other countries. Indeed a very apparent feature of the

current situation is that SWOS is part of a national and international culture of

bodies engaged in such para-military activity.

The work obviously presents a great challenge which appeals only to a certain

type of person. It calls for great physical courage, for high physical fitness, for

acutely developed skills in personal combat and in the use of certain weaponry,

and for a command of some specialised psychological and tactical techniques. It

is of its essence that it is the activity of a small elite group who constantly train

together, are completely dependent on each other in operation, and in operation

must have complete confidence in themselves and in each other. They must also

have complete commitment to what they are doing and complete faith in the

superiority of their cause over that of those against whom they pit themselves.

While this produces qualities of bravery, loyalty and dedication to duty which are

admirable within their context, it also produces a high degree of self­

righteousness which easily progresses to arrogance, and a tunnel-vision which

leaves little room for respect for dissent or conflict of opinion, or for political,

305

legal or moral restraints which stand in the way of what is seen to be the task in

hand.

All this, and the memories they revive of frontier warfare, make the use of para­

military bodies in Aboriginal communities problematic - they are not likely to be

acutely sensitive - but easily perceived as provocative by Aboriginals. There is a

widespread belief that special police units like to practise on socially vulnerable

groups like Aboriginals. Police Services should be alert to ensure that there is no

avoidable use of such units in circumstances affecting Aboriginal communities.

THE CHANGING SCENE

Cultural revolution in New South Wales

New South Wales is a State in which the metaphor of trying to turn the battleship

around is particularly apt. The Police Service has traditionally had a very bad

image with Aboriginals, and a series of recent incidents has reinforced this

image, overshadowing the fact that, in the words of Superintendent Ure, whose

responsibilities include Aboriginal relations, the Service has under Commissioner

John Avery 'been undergoing a cultural revolution'. There has been an attempt

to broaden the philosophy of the Service from the traditional role of simple law

enforcement to a developing concept of 'community policing'. As a step towards

greater responsiveness to local communities, the Service has been regionalised, a

process which itself has meant a major upheaval to which the Service is still

adjusting.

The transitional stage which the Service has reached is reflected in its relations

with Aboriginals, which vary enormously from place to place. This was

apparent to me in my own visits to a number of centres and was confirmed by the

Aboriginal Issues Unit. Some communities hold a very adverse view of local

police, their complaints going as far as physical bashing, and some have praise

306

for them. The praise is often by comparison with a fairly recent past. An

example was the statement of Peter Williams' father about police in Lismore:

The Aboriginal/police relations have been reasonable in this area,

and it is not like the 1980 days when it was very bad. The police

are now talking to the young kids whereas before they would grab

them.

A large number of communities are ambivalent, pointing to good and bad

features, or a fairly even mix of sympathetic and unsympathetic officers,

although it is not unusual for these communities to concede that relations were

improving, but usually emphasising that there is a long way to go. Some people

in these communities articulated the burden of history, saying how hard it was

for both police and Aboriginals to overcome their stereotypes and traditional

reactions.

Community policing

The idea of 'community-based' policing has been developing in the Service for

some years, although it did not become organisational philosophy until the

second half of the 1980s. Indeed regionalisation, which is seen as a necessary

concomitant, was introduced in August 1987.

In describing the change, Superintendent Ure wrote:

'The prevention of crime, and the detection and prosecution of

offenders, is still our number one priority, however the theme has

now been expanded beyond just taking preventive and/or remedial

action, to developing programs which take into account the

reasons for anti-social behaviour and therefore have a more

realistic base, as well as encouraging police to implement local

programs and initiatives to divert people, particularly young

307

people, away from the criminal justice system. These programs,

many of which are investments in the future, will of course lead to

preventing the type of behaviour which we have been dealing with

in a reactive manner for so many years'.

It should be made clear that the 'community' referred to in these developments is

not the Aboriginal community but a general community which is assumed to

include the Aboriginal community.

What happens in a particular place to implement the community-based policing

philosophy depends very much on local police, and in particular on the patrol

commander. To quote Superintendent Ure again:

'With the advent of regionalisation and the focus on the patrol for

the delivery of policing services, opportunities have been created

for Patrol Commanders to introduce programs which will suit

their local community. Decisions can be made by those best

qualified to make them - the police who are actually working in the

community. Patrols are supported by their district, region and

headquarters, however the accountability for the delivery of

policing services to the community lies with the Patrol

Commander.

'It is quite possible that this accountability would not have

succeeded under the old promotion system, where a police officer

was promoted to a rank and then allocated a duty or location. In

saying this I do not in any way denigrate the thousands of police

(myself included) who progressed through the ranks under the

seniority system. However, it is true to say that in earlier years

some of the least-qualified officers were sent to the places of

greatest need, including Aboriginal communities.

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'The opportunity, and the reward, was just not there for a

talented, committed officer to seek the challenge of working in a

particular town, with the added responsibility of command.

Under the current system of positional promotion, an officer must

compete for a position, such as Patrol Commander in a specific

location, and if successful will be appointed to the rank that goes

with the position. Although not perfect, this system should

identify the person best qualified to fill the position and accept that

accountability.'

There are a number of initiatives which illustrate the support of senior officers for

efforts to improve police/Aboriginal relations. They include Aboriginal

Community Liaison Officers, the appointment of a senior Aboriginal Consultant

at Head Office, the recruitment of Aboriginals as police officers, components in

the training of new recruits, and the holding of police/Abo riginal workshops.

There are also initiatives introduced in relation to the general community which

have a potential to impact on Aboriginal Police Relations. They include

Community Consultative Committees (which have already been mentioned),

Community Aid Panels ('Wyong panels'), Visitor Schemes and the search for

better ways of dealing with juvenile offenders.

Changes in Victoria

The philosophy of community policing has permeated all States in varying

degrees. In Victoria, as in New South Wales, there have been considerable

endeavours at a senior level to turn round a situation now recognised to have

been very unsatisfactory over many years. Activity has been centred on a State­

wide committee, the Victorian Aboriginal/Police Liaison Committee. The view

that has been officially adopted is stated in a history of the Committee:

'Police and Aboriginal people have come into conflict due to the

role that each has traditionally undertaken within the Community.

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This conflict has resulted in both Aboriginal people and the Police

being stereotyped by the others. This stereotyping has acted only

to exacerbate the conflict, and is bom predominantly out of

ignorance which results in an identified lack of understanding and

communication between them'.

In conjunction with the work of this Committee, Victoria has an Aboriginal

Liaison Unit which includes an Aboriginal Liaison Officer, and some members

of the Force allocated as Liaison Officers at various centres, but the most

important developments are centred on the Community Justice Panels.

Tasmania lags behind

Despite the denial for so long of the existence of Aboriginal people in Tasmania,

the level of their over-representation in police custody is still, ironically, quite

high: 5 times that of non-Aboriginal people in the National Police Custody

Survey of Augusty 1988. Mark Revell, Glenn Clark, and many other Aboriginal

people in Tasmania have lived with the contradiction that, on the one hand, the

very existence of any Aboriginal people in Tasmania has been denied while, on

the other, they have suffered the same disadvantages as Aboriginal people in

other parts of Australia. Yet the Tasmania Police, like Tasmanian Government

generally, have been grudging in their recognition of an Aboriginal identity, and

slow to realise that Police/Aboriginal relations are a problem in that State as in

other States.

The grudging attitude is illustrated in the response to this Commission's

Underlying Issues Paper by the former Police Commissioner, Mr Herman, who

commented that observations about the vulnerabilities of persons taken into

custody applied to 'the tribal Aboriginal' and went on to downplay the

suggestion that Tasmanian Aboriginals had special needs. He related any high

level of incarceration simply to socio-economic factors, and after conceding that

this might lead to depression, added: 'Depression is recognised as the greatest

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factor leading to suicide, and this is true for both the Aboriginal and non-

Abo riginal'.

Mr Horman stressed that there were no areas or suburbs within Tasmanian cities

which specifically had ethnic groups living as communities in contrast to Redfcm

in Sydney, for example. He said that in Tasmania 'Aboriginals are so integrated

with the European population that their lifestyles do not differ to any marked

degree from that of the general population' and that the law was enforced equally

on community members regardless of their being Aboriginal or non-Aboriginal.

He went on

'What might be described historically as the "sins of yesteryear",

which required the Police to enforce laws which discriminated

against the Aboriginal people, are now seen to have resulted in the

Aboriginal people being suspicious and resentful of the Police and

the law themselves. With the passing of the years, the application

of the laws in the same manner, particularly in this State, no

longer applies. The enforcement of laws where anti-social

behaviour is detected, is carried out totally, regardless of the

cultural background of the offender and is enforced for the

purpose of preserving the peace and safety of general public. The

public are entitled to, and in fact demand, protection from anti­

social behaviour, regardless of the ethnic background of the

perpetrator'.

He suggested that because Tasmanian Aboriginals in the main had European

features, there was hot the pressure felt by them as with tribal Aboriginals and

few cases of racial discrimination had been reported. In his view Tasmanian

Aboriginals had the same employment opportunities as non-Aboriginals and had

the opportunity to attend University to enhance their career choices. He asserted

the view that Aboriginals should simply be treated equally.

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'No one group in the community should be given privileges over

and above any other community group, as that in itself creates

disunity and prejudice. Studies would no doubt show that non­

Aboriginal people also face being the victims of prejudice and are

also the victims of racist attitudes from Aboriginal people.

Suggestions have been made that the alienation and high degree of

drunkenness and high degree of self harm are, in some Aboriginal

context, indicative of psychological and spiritual damage and

suffering associated with the dispossession of land and the

spiritual processes that were lost with it.

'It is accepted that, where tribal Aboriginals have had their land

taken from them and their sacred areas desecrated, psychological

and spiritual effects may be evident. With the passing of time,

however, in the integration of Aboriginals into the non-Aboriginal

society, one must question whether or not those same damages

would continue generation after generation. It must also be

recognised that non-Aboriginal persons who become dispossessed

of their homes or family properties would also suffer

psychological difficulties which could lead to anti-social

behaviour. Love of land and heritage is not confined to

Aboriginal persons.'

His suggested solution to the problem of over-representation of Aboriginals in

custody was the implementation of 'a long term ongoing education program'.

The Commission's AIU representative raised with the present Police

Commissioner the question of tackling the problems caused by the attitudes of

police officers.

'His initial response was to state that he did not believe there was

a problem between police and Aborigines in Tasmania, referring

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to the relatively greater problems experienced in other States. To

stress this he phone conferenced a number of Regional

Superintendents and Officers in Charge in a "candid manner" to

emphasise his pc:::L O ie Officer made the comment that he didn't

think there were any Aboriginals in his area (George Town).'

The continuing problems which Aboriginals face in gaining recognition and

understanding of Aboriginality in Tasmania were highlighted by a revealing

answer given by Assistant Commissioner Johnston in evidence in the inquiry

into the death of Glenn Clark. Asked whether a person involved in an attempted

suicide had been Aboriginal, replied 'Yes, I think when we traced it out he was

l/64th of Aboriginal'. There is still only gmdging acknowledgment that there is

a large number of persons in Tasmania for whom identification as Aboriginal is

important, and who form a community of people who have suffered similar

historical disadvantages to Aboriginals elsewhere in Australia and have a similar

claim for the rectification of injustice. This often tempers attempts to take a

sympathetic attitude to Aboriginals.

It is clear that although they have started to acknowledge the issue, the Tasmania

Police are lagging behind most other Australian Police Services in their

understanding of Aboriginals, in the recognition of Aboriginals as a people, in

entering into dialogue with the Aboriginal community, and in seeking

constructive ways to improve relations between Aboriginals and police and

reduce the numbers of Aboriginals coming into custody. This will appear from

the following discussion of developments in the three States.

Mechanisms for change

A variety of approaches have been tried in the three States for improving

Aboriginal/Police relations and I will review the major steps here. There are also

interesting innovations in other States of Australia, which will be brought

together in the National Report. There is no magic formula; States may leam

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from each other but must always work out what is suitable locally. This must be

on a basis of negotiation with local Aboriginal communities and have their full

support if it is to succeed. Schemes imposed by well-meaning officers who

believe they know best are doomed to fail.

The Victorian Aboriginal/Police Liaison Committee

Only Victoria has established a permanent mechanism for ongoing consultation at

the State level. In Tasmania, according to the former Police Commissioner,

'management has met with Aboriginal spokespersons as and when problems

have been identified', but this can mean little or nothing in the face of denials that

problems exist.

The Victorian Aboriginal/Police Liaison Committee was established in 1983 to

act as a mechanism for improving understanding between the police and

Aboriginals, and also as a practical forum in which solutions to specific problems

could be formulated. The Committee originally comprised ten members - five

police and five Aboriginal. In 1990 the membership was expanded to twenty-

four and constituted in a way that took into account new Police District

boundaries and the regional boundaries of State-wide Aboriginal organisations.

From each of nine geographical areas there is one Aboriginal and one police

member, and the Victorian Aboriginal Legal Service (VALS) and the Victorian

Aboriginal Community Services Association Incorporated (VACSAI) are

represented on the Committee as are the two people attached to the Victorian

Police/Aboriginal Liaison Unit. There are two Co-chairpersons, one Aboriginal

and one police, and each member of the Committee has a nominated deputy.

The purpose of the Committee is 'to initiate, plan, develop and implement

programs that will improve Koori/Police Relations'. Its objectives are:

'(a) To establish policies in connection with Aboriginal/Police

relations.

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(b) To co-ordinate the development of Aboriginal/Police liaison

committees throughout Victoria.

(c) To advise Aboriginal/Police liaison committees throughout

the State of policies and agreements which have been made

at State level.

(d) To consider and attempt to resolve problems referred to it by

Aboriginal/Police liaison committees throughout the State.

(e) To consider and implement initiatives in order to resolve

problems affecting Aboriginal/Police relations.

(f) To consider ways and implement action designed to improve

communication and facilitate understanding between

Aborigines and Police'.

The Committee's current activities include the establishment of a comprehensive

networking system between Aboriginals and police throughout Victoria,

publicising the work of the Committee, maintaining and establishing local

Aboriginal/Police Liaison Committees, encouraging Aboriginals to consider the

Police Force as a career and 'ensuring continual progress is made in the

production of programs to train and develop both Aboriginal and Police persons

in understanding the respective role and history of each other'.

Funds to cover the expenses of the Committee including travel to meetings, are

provided by the Government through the Ministry for Police and Emergency

Services. The Committee meets every second month at different venues

throughout the State. The intention is that after each meeting the local

Aboriginal communities and police personnel have access to the members to

canvass relevant local issues. However members of the Baimsdale community

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complained to the Commission's Aboriginal Issues Unit that, when the

Committee was to meet in their area, their suggestion that the meeting be held at

Baimsdale where the local community would have access was ignored, and

instead it was held twenty kilometres from Baimsdale, which effectively

excluded any local Koori input. The Committee was regarded as an organisation

controlled by the Police, who organised the agenda, the venue and took the

minutes. It was not seen as a neutral fomm, indeed it was suspected that police

tried to get information from these meetings, either directly or indirectly, in

relation to Koori offenders. I have no doubt that this is all quite contrary to the

intentions of those who work with the Committee, but it shows how far the

Committee has to go in establishing its credentials with the Aboriginal

community.

Central Liaison or Consultant Staff

Victoria and New South Wales have both taken steps in this direction. In June

1988 a Senior Sergeant at the Tasmania Police Academy was nominated as

Liaison Officer for the Tasmania Police and the Tasmanian Aboriginal

Community. Instructions were given that actual or attempted suicides in custody

or incidents involving the Aboriginal community were to be reported to him. The

Tasmanian Liaison Officer is a non-Aboriginal senior officer and was not

mentioned to the Commission by Aboriginal sources, and does not appear to play

any significant role.

In New South Wales an Aboriginal Liaison Unit was established in 1980 as a

component of the New South Wales Police Community Relations Bureau. It

was designed to promote awareness of and consultation with Aboriginal groups

and was involved in the establishment of some Community Consultative

Committees. An Aboriginal Client Group Consultant is a relatively recent

appointment and the potential of the role is still being explored. It appears that

she is concerned with Aboriginal issues throughout the Service, both central

policy and local application. Regional! sation means that she has to convince a

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number of regional commanders to adopt her recommendations, and these

officers inevitably vary in their experience and understanding of Aboriginal

issues. Only one region now maintains an Aboriginal Police Liaison Unit and it

has only one officer. The Consultant is also involved with education in the

Police Academy and with local educational initiatives.

The Aboriginal Client Group Consultant position is of great importance and is

difficult and demanding. It needs to be adequately resourced, including the

provision of research assistance, and staff in regional offices and regular contact

with Aboriginal Community Liaison Officers. It also needs continuing support

from senior officers, and indeed officers at all levels, who should not feel that

they can now reduce their input into Aboriginal matters and leave it all to her. A

desirable adjunct to the position would be an Aboriginal Advisory Committee to

ensure that there is adequate support and input from the Aboriginal Community.

The Victoria Police has an Aboriginal Liaison Unit with two officers, one of

whom is an Aboriginal. The current Aboriginal member, Mr Ken Saunders,

formerly worked with VALS and is widely respected in the Aboriginal

Community. His duties include giving lectures to cadets at the Police Academy,

although the time devoted to Aboriginal issues is very small.

Aboriginal Community Liaison Officers

New South Wales has develpoed a staff of Aboriginal Community Liaison

Officers (ACLO). Four were appointed and stationed at Bourke and Walgett in

December 1986. This number had risen by the end of 1988 to sixteen Liaison

Officers through the "State. From the Aboriginal point of view the result has been

very mixed. Some are tmsted by the Aboriginal community and seen as doing a

valuable job. Others are not. A great deal depends on the good sense of the local

patrol commander in how he selects and how he uses the Liaison Officers. A

number of Aboriginal communities complained of lack of involvement in the

selection of the officer for their community. If the officer is to carry out his work

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successfully he must have the confidence of the community, and it is essential

that the community be involved through its representative organisations in his

selection. Unfortunately there are still too many police officers who believe that

they know best and are not willing to listen to and act on the advice of

communities. It is not good enough for police officers to select someone whom

they believe to be acceptable to the community, or to involve in the selection only

hand-picked Aboriginals with whom they get on.

The other major concern is about the role of the Liaison Officers. In the first

place it is essential that police recognise the special function of the Liaison Officer

and do not seek to involve him or her in law enforcement duties, publicly or

privately. They should not be wasted or demeaned by being given routine police

tasks, such as serving documents or finding witnesses, or compromised by

involvement in investigation. In one community the fact that a Liaison Officer

had been involved in the enforcement of an eviction notice had a continuing effect

on the community's attitude to him. The Liaison Officer has to walk a tightrope,

being accountable in some degree to both the police service on the one hand and

the community on the other. Fortunately most police officers seem to recognise

this and do not seek to use the Liaison Officers as informers. Some do however

seek to make the Liaison Officer conform to many police practices, including

standards of dress. I refer to the particular instance of Wilcannia, where a

relaxed police attitude on this issue has paid dividends.

Experience shows that Liaison Officers can be very valuable in defusing

situations which might otherwise lead to conflict between police and Aboriginals.

However a number of communities complained that Liaison Officers were used

exclusively in this way, and were not used to play a general liaison role directed

to improving understanding and co-operation between Aboriginals and police.

Obviously in these areas the potential of the Liaison Officers is not being

realised, and their role should be rethought. However there is a point to be

emphasised: the role is to improve Aboriginal police relations, not to replace

them. While the work of Liaison Officers should reduce the amount of

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adversarial contact between regular police and Aboriginals, it should increase,

not decrease, the amount of dialogue and constructive interraction.

Non-Aboriginal Police Liaison Officers

At a number of police stations in New South Wales and Victoria general duty

officers have been allotted a special responsibility for liaison with the Aboriginal

communities. The role is what the officer makes it, and in few cases does it

appear to have become important. In Swan Hill the Commission met a sergeant

who had taken his role very seriously and worked hard over a long period to

improve relations. A considerable amount of co-operation had developed with

the Aboriginal co-operative, but there were special problems of divisions within

the Swan Hill Aboriginal community which limited what could be achieved.

In one New South Wales town visited by the Commission, in which there was

no ACLO, a young police officer was appointed to be a liaison officer between

the community and the police. Difficulties arose because he was an officer who

on a daily basis was involved in performing duties which required him to arrest

Aboriginal people, he was relatively junior and carried no real authority within

the police station, and he lacked understanding and knowledge of Aboriginals.

He thought that he could establish a means of communication with the

community by arranging formal meetings at fixed times and attending in uniform.

The experiment was a failure.

Police Community Consultative Committees

In a number of towns in New South Wales where there is a large Aboriginal

population, an endeavour has been made to include one or more Aboriginal

members on a Police Community Consultative Committee. While these

Committees have varied in their effectiveness, on the whole they do not appear to

have been successful in involving people who are representative of the

Aboriginal community as a whole, and in particular that part of the Aboriginal

319

community which feels itself at odds with the police. Too often the Aboriginals

on the Committees are not only in a considerable minority but have been

effectively selected by police or local council officers, rather than the Aboriginal

community. They are often highly assimilated people with whom the police find

it easy to get on, and who find it difficult to assert themselves against the

members of the local white establishment who make up most of the committee.

While useful work may be done by such committees, they are rarely effective

means of involving the Aboriginal community. If, as occurs in at least one

centre, the representatives see themselves as real representatives , and discuss

issues at Aboriginal Community meetings before attending the Committee, their

contribution can be greatly strengthened. However at this stage at least there is a

need for A b o rig in a l Police Liaison Committees.

Such Committees have been established with limited success in some Victorian

towns. During the inquiry into the death of James Moore, the Commission was

told something of the work of the Police/Aboriginal Liaison Committee in Swan

Hill, a town with particularly difficult policing problems arising out of sometimes

violent conflict in the Aboriginal community. Informal contact by police with the

Swan Hill and District Aboriginal Co-operative was initiated in 1984 and was

formalised into the Committee at the end of 1985. However many Aboriginals

saw the Committee as a police instrument, meeting at the police station, having

its records kept by police, and involving the white administrator of the Co­

operative and Aboriginals who had no conflict with police, instead of those who

had real problems to work out with police. It is not enough for police to have

goodwill; they need a degree of understanding and sensitivity which does not

come easily, and a willingness to deal with Aboriginals on their own terms rather

than in the authoritarian manner to which they are accustomed.

The situation underlines the importance of strong Aboriginal organisations for

successful police/Aboriginal co-operation. Representatives who have the

backing of a strong organisation are better able to deal with Police on equal terms

320

and there can be no suspicion that police have chosen the Aboriginal

representatives to suit themselves.

Operation Bacchus

An interesting informal local initiative was the development of "Operation

Bacchus" in Mildura, a Victorian town which I visited during the inquiry into the

death of Malcolm Smith, who was bom at Dareton just across the Murray River

border. At the time there was a very strong Aboriginal Co-operative with a

number of activities, including a successful building company. The Co-operative

had negotiated an arrangement with the Mildura police when an Aboriginal was

arrested and was immediately able to go to the police station, see the person

arrested and discuss the situation with police. This often resulted, for example

in a case of dmnkenness, in the person being released into the care of the

representative. The representative was able to assist with matters such as bail,

and notification of relatives. A very good working relationship had developed

between the police and the Co-operative.

Community Justice Panels

A panel in action

Operation Bacchus was a precursor to the Community Justice Panels (CJPs), in

which some remarkable successes have been achieved in Victoria. I described

the success of the Echuca CJP in the R e p o r t o f th e In q u iry in to th e D e a th o f

H a rriso n D a y .

'Looking back over the years, including the time of

Harrison Day's death, Echuca Aboriginals were highly critical of

police conduct, but when the concept of Community Justice

Panels was advanced they moved rapidly to explore its

possibilities. While most of Victoria was still talking about setting

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up Community Justice Panels, Echuca had had one operating

strongly for a year. The basic concept was of a panel of

Aboriginals who were on roster and would be called on by the

police when an Aboriginal was arrested or in trouble. The panel

member would come to the police station and might be able to

resolve the matter without a charge being laid, for example by

taking a drunken person home or to hospital, or by taking a young

person home or to a supportive environment. A person who was

arrested could be helped with bail and comforted if distressed.

Potentially difficult situations between police and Aboriginals

might be mediated so as to avoid the escalation of conflict and

arrests.

The result was a very much improved relationship between police

and Aboriginals. Police, under the encouragement of Chief

Inspector Mai McKay of Shepparton, had sought to make a

success of the panel and were pleased with the results, which

assisted them in carrying out their duties, and allowed them to do

so in a much more pleasant environment. While Aboriginals still

chafed under past grievances, they acknowledged the very great

improvement that has taken place. One panel member proudly

said to me recently 'We have decriminalised drunkenness in

Echuca'.

'The Echuca Community Justice Panel had not only carried out

these basic functions, but had through its meetings established

contact with magistrates, probation staff, and child welfare

officers. It was able to contribute to intelligent sentencing of

convicted Aboriginals, to the placement of children who were in

trouble, to the administration of community service orders and in

other ways.'

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The Echuca CJP has continued to flourish and one of its members has been

appointed State Co-ordinator of CJPs. He told the Commission late in 1990 that

no Aboriginal had been locked up in Echuca (a town with some 400 Aboriginals)

since November 1988, a striking contrast with the previous position. At the end

of 1990 there were approximately 20 panels throughout Victoria, although not all

were fully operational. There was an average of 5 panel members on each. The

panels in Echuca, Mildura and Ballarat were particularly well established

History of CJPs

CJPs were officially recognised in July 1988, when the Victorian Government

announced the funding of CJPs as part of measures to improve the treatment of

Aboriginals in the Victorian justice system. The CJP proposal had been

developed in 1987 as an initiative of the Victorian Aboriginal Legal Service

which had received strong support from the Government, particularly the Office

of Corrections and the Victoria Police. The concept was developed within the

Koori community in response to the growing awareness of the over­

representation of Kooris in the criminal justice system. Consultations were

conducted with Koori communities throughout Victoria where there was a

general feeling that the criminal justice system in its present form was not only

failing to meet the needs of Kooris but was positively discriminatory in its

operation. The aim of the Community Justice Panels was to provide a service to

Aboriginal communities, to the Community Based Corrections and other

components of the criminal justice system, and to reinforce social control

mechanisms based on traditional Aboriginal values. It was hoped that the

establishment of Aboriginal panels might provide acceptable solutions to reduce

the numbers of Aboriginals entering the system. In addition the Office of

Corrections which administered community service orders, and Aboriginal

communities both desired to provide a more culturally relevant and supportive

service to Aboriginal offenders and members of the offenders' family clan group.

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The goals of the project were:

1. To encourage and enable Aboriginal Community Justice Panel members

to play an active and positive part in police procedures, legal aid services

and court proceedings.

2. To recognize and reinforce those traditional social control mechanisms

within Aboriginal communities as a means of lowering the rate of

Aboriginal offences and recidivism.

3. To allow for a thorough canvassing of all sentencing and rehabilitation

options appropriate to both the nature of the offence and the

circumstances of the offender.

4. To ensure that justice is seen to be done by the whole community.

5. To act as a resource for the local Aboriginal community and any other

groups which may have involvement with Aboriginal issues.

Panel members would:

• caution Aboriginals who draw the attention of Police but who have not

committed an offence;

• be involved with the defence briefing to a solicitor who will defend the

Aboriginal offender at Court;

• provide a character witness at the court, and in the assessment offering

an outline of the responsibilities the panel is prepared to undertake in

relation to the offender, eg

- supervision

- direction community work assignments

- co-ordinate personal development and/or educational programs

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- provide progress reports on individual offenders

- provide disciplinary action when required

Some Aboriginals see the involvement of Aboriginal people in the social control

of Aboriginal community members as the return of the elder system which

regulated community behaviour in accordance with traditional Aboriginal values.

A permanent position has been created in the Ministry for Police and Emergency

Services to assist CJPs, and following a recent review it is planned to provide

funding separately and directly to each CJP. It is likely that DEBT will fund a

training course for panel members which has been developed by TAPE. It is

intended to improve upon the skills of the participants so they are better equipped

to take on the duties of a panel member, including the provision of court advice

and assessment reports, co-ordinating community work supervision and personal

development programs. Panel members will become gazetted community

corrections volunteers after completing this Community Based Corrections

volunteers training program.

Problems of CJPs

While the Aboriginal communities acknowledged the enormous potential of the

CJP's, they told the AIU that there is still much room for improvement. They

said that, generally, a CJP has made the police more accountable and has

resulted in less Kooris being locked up. Some said that a potential conflict can

be defused by a CJP member and the need for police involvement removed.

However police attitudes and community resources can also have a great bearing

on the success or otherwise of the CJP.

The CJP scheme places a considerable load of responsibility on the local Koori

communities. They pointed out that CJP members work as volunteers to cany

out the important aims and objectives of the scheme. The work involves

dedication and persistence on the part of community members, however, many

325

cases have needs for which the community is not equipped or resourced. For

some community members of the CJP, involvement is an additional burden to

their everyday lives. Some are stmggling to survive themselves. All have a big

area to cover and there is no remuneration for petrol or vehicle costs, bus or rail

fares for clients, food or other costs associated with their duties. The CJP

members make an indeterminate committment of their time and effort. As was

said in one community and endorsed in many others,

'... some people don't like going out at midnight. The

government and police want us to do it and Kooris want it too, but

we have families and homes and jobs. It is stressful, there is

burnout ...'

One member said 'The CJP is needed and can play a very important role but they

expect us to operate with nothing.'

Community members do not always have transport to go to the police station,

sometimes in another town, to do their job. Community members do not always

have phones or beepers. In some communities this has resulted in the panel

members relying on the police to come and get them. Members in this situation

worry that the police will come and get them only when it suits them to do so.

They would prefer not to be dependent upon the police. This may also provide

an excuse for the police not contacting them immediately (although it is not

mandatory that they do). The provision of beepers would increase the

contactability of community members at all times without inconveniencing the

members by requiring them to be near their phones unnecessarily.

Many communities identified the pressure which is placed on a member when

they are expected to take a stranger into their home. Communities said that many

of the Kooris they come into contact with are from other places and not

necessarily known to them. While this does not happen often, communities said

that it placed the member in a difficult position in which they make their family

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vulnerable to the risk of violence on the part of the offender. The need to make a

bed available is also a problem for some. This situation may be somewhat

alleviated by the recent establishment of nine Sobering Up Centres (which

operate in conjunction with the CJP's) throughout Victoria which cater for people

who are intoxicated. But this would not be so in all communities nor in all cases.

The members often pay the cost of food, cigarettes, bus or rail tickets and other

personal needs of those in their care and there is no reimbursement for this.

Another source of stress for panel members is the latent fear that a person may

die while in their care. If the need for medical attention is obvious, the

Community member is expected to see to it that the person receives medical

attention. This includes doing all that is necessary to get them to a hospital or

doctor, with or without a phone or vehicle, and at their own cost.

While police co-operation has been excellent in some areas, the communities'

experience is that not all police agree with the CJP structure. Those who do not

agree are unwilling to co-operate with the local CJP. Several communities

indicated that the relations between the community and police had not improved

and that continuing poor relations were hampering the establishment of the the

CJP. From what communities said, it would appear that meetings and good

communications between the police and community are crucial to the successful

operation of a CJP.

If police do not choose to contact the CJP member, and several incidents of this

were cited to the AIU, it is difficult for the CJP to be effective. In some places

communities have been in a position to take the initiative to make the scheme

work. This includes ringing the police station periodically to see if anyone has

been arrested or come into contact with police in any way, and insisting on and

arranging regular meetings between the police and the CJP. Smaller

communities, with less resources were not in a position to be so active. Some

still felt intimidated by the police and were reluctant to attend at the police station

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for fear of being 'talked down' by the police. Furthermore, many feared

reprisals by the police if they 'talked up' to them.

The AIU recommended that the requirement that the police contact the CJP

should be mandatory, as while it remains discretionary the onus is on the

prisoner to insist if the police choose not to do so. Kooris who have been

arrested and were held by police have not insisted on the CJP member being

contacted because, they claimed, the police have threatened harsher treatment if

they did.

It is obvious that CJPs have the potential to work best where there is a strong and

cohesive Aboriginal Community. No doubt for that reason difficulty has been

found in establishing CJPs in the metropolitan area of Melbourne. However, in

Melbourne, VALS, which is centralised in that city, is better able to look after the

interests of arrested persons.

It cannot be expected that Aboriginals will shoulder the burden placed on them

indefinitely unless they receive reasonable remuneration and reimbursement.

On purely financial grounds this can be justified by the reduction in police and

prison custody. Unless adequate resources are provided, the Panels are likely to

founder in the same way that many other initiatives have foundered, by placing

excessive demands on the small number of people involved and giving them no

support.

Aboriginal police officers

It is often suggested that the recruitment of Aboriginals into the Police Service

would be a solution to many of the problems with Aboriginals. The reported

reaction of Aboriginal communities in New South Wales and Victoria to the

experience of Aboriginal police officers was mixed. The Victorian AIU report

said that there was little enthusiasm for the recruitment of Aboriginals to the

Police Force, a common feeling being that it would not make a difference unless

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there were a large number of Aboriginals in the Service. However, one such

officer was credited with having improved the situation.

It is obvious that such appointments will achieve little if the Aboriginal police are

expected to and do absorb the general police culture and identify with it against

Aboriginals. The hope must be that their presence will broaden and help to

change the police culture. A revealing story was told at the community

conference in Wilcannia of an Aboriginal police officer who was involved in the

organisation of touch football games. When some Aboriginals argued with him

about the payment of dues he charged them with offensive behaviour. An

Aboriginal said at the conference: 'If you are going to play the sport, play it as a

man and don't hide behind the uniform'. The Aboriginal police officer, who was

present at the conference responded: Ί acted as anyone would act on the day. I

was abused and I served a Court Attendance Notice for offensive manner'. To

suggest that 'anyone' would take such action against others involved in a

sporting argument shows an extraordinarily authoritarian attitude which would

not improve Aboriginal/police relationships, whatever the ancestry of the police

officer.

The difficulties which Aboriginal police officers have with the conflicting

pressures on them is reflected in the high turnover rates. Several Aboriginal

police or former police spoke to me of unpleasant experiences of racism amongst

other new recruits at the Police Academy, many of whom did not react positively

to attempts to instruct them in Aboriginal culture and history. Perhaps the

situation might be improved by the recruitment of Aboriginals in groups, so that

they can give each other mutual support.

Training of police

Both New South Wales and Victorian Services have set considerable store on

initial education in their Police Academies as a means of improving police

attitudes. The generally bad reputation of young police amongst Aboriginals

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shows that the education is missing its mark. Obviously it is a difficult task, and

if not carefully handled may produce a backlash rather than improvement.

Attitudes of serving police encountered at the Academy are likely to be a more

potent influence than those expounded in lectures. As there are severe

constraints in time at the Academies, and as only a minority of recruits will go to

Aboriginal areas, there is obvious merit in special additional courses for those

who do. A frequent suggestion from Aboriginal communities is that new recruits

posted to their area should spend some time getting to know the Aboriginal

community before commencing work. It would be salutary for those recruits to

get their first experience of Aboriginals with those who are living peaceably and

engaged in constructive work in their communities rather than with a resentful

drunk in the streets.

In Tasmania a component relating to Aboriginal issues is being prepared for

inclusion for the first time in Police Training Courses, and the responsibility of

the development of this has been given to an Aboriginal person. It is to be hoped

that this will lead to a better understanding of the long term historical

disadvantages of Aboriginals than was displayed in the Police Commissioner's

comments.

Unfortunately police do not appear to have taken the opportunity which the

proposal for such a course would have given to initiate constructive dialogue

with the Aboriginal community and build better relations. This Commission's

Aboriginal Issues Unit Report indicated that its discussions with community

members have indicated little support for the proposal. The lecturer was chosen

without consultation with the Aboriginal community and was told that before

delivering any lectures he would have to spend some time 'getting the other side

of the story' by spending some time in the back of a patrol car as an observer.

The Report gave a community view that 'it is all very well to provide Rookie

Police Officers with some sensitivity to Aboriginal people, however, this will do

little to stop bashings in the interview room, which are carried out by more senior

officers'.

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Aboriginal/police workshops and seminars

A number of workshops have been held in Aboriginal areas in New South Wales

in which Aboriginals and police speak and take part and share their viewpoints.

This too is a valuable initiative.

This approach of joint discussion has been successfully taken further by an

initiative of the Victorian Aboriginal Police Liaison Committee which the

Government has funded. This is the holding of 'live-in' Aboriginal/police

seminars, in which an equal number of Aboriginals and police take part in a

residential seminar. Two were held in the year 1988-1989 and two in the year

1989-1990, and a further seminar is planned in the first half of 1991.

I had the privilege of spending some time at one of these live-in conferences at

the Dhamya Centre near Echuca which was attended by Aboriginals and police

from all over Victoria. Police/Aboriginal problems generally were discussed and

particularly the establishment of Community Justice Panels. It was heartening to

see the frank discussions and the breaking down of barriers and development of

mutual understanding and respect during the conference. I noted one Aboriginal

rebuking another for referring to police as 'pigs', saying 'That's like them calling

us coons'. One can see in such interchange the potential for breaking down some

of the negative police attitudes towards Aboriginals. Conversely Aboriginal

attitudes to police can be softened.

Community Aid Panels

The Community Aid Panel program is a police initiative in New South Wales,

developed without a statutory basis. A Panel comprises a police officer, a

solicitor, community members and young persons who assist the court by

providing opportunities for offenders (paicularly young offenders), to perform

community service prior to being dealt with by the court. The program exists in

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about 15 courts, including some in western New South Wales, and in the

opinion of police has shown positive results in diverting young people from

crime. For such panels to establish ready rapport with Aboriginal offenders, or

to develop useful proposals, there is need for a strong Aboriginal presence when

Aboriginal offenders are dealt with. As with Community Consultative

Committees, Aboriginal members may have difficulty asserting themselves

against the kind of people who mostly make up the panel. It is important too that

they should have the support and backing of the Aboriginal community, who

should nominate Aboriginal members. The Commission was told of one town in

which the Aboriginal community felt that the panel was reasonably successful.

The Panel aimed to have the offender perform some kind of service for the

person against whom the offence was committed.

Lay Visitors Schemes

The Commission heard little of Lay Visitors Schemes. One New South Wales

community, which enjoyed a generally good relationship with local police,

expressed satisfaction with the working of such a Scheme. There were about six

Aboriginal members and one of them was contacted when an Aboriginal was

arrested, and they were allowed to visit Aboriginals in custody.

Co-operation with Aboriginal Legal Services

Co-operation between the Victoria Police and VALS has been extensive, and is

reflected in joint work on the Aboriginal/Police Liaison Committee, the

establishment of CJPs, and the fact that for years there has been a practice that

any police officer in Victoria who arrests an Aboriginal must notify the Missing

Persons Bureau, which in turn notifies VALS.

Tasmania Police have adopted the policy of advising the Tasmanian Aboriginal

Legal Service when an Aboriginal person is detained in custody. In New South

Wales this is a matter of local discretion and depends very much on the attitude of

332

the local Patrol Commander and his relations with the representatives of the local

ALS, there being several ALSs in different parts of the State. The New South

Wales Police Service would do well to negotiate a protocol of relations with each

ALS.

Juveniles

Another encouraging development in the New South Wales Police Service has

been the active interest in finding policies which will reduce the number of

juveniles passing through the justice system. Given the disproportionate

representation of Aboriginals in juvenile institutions, and the high rate of

graduation from those institutions to gaols, this is of great relevance to the overall

reduction of the numbers of Aboriginals in custody. These matters are dicussed

in the chapter on Juveniles.

In Victoria some Community Justice Panels have played an important role in

relation to juvenile offenders.

Local police initiative

The devolution of authority to the local level is obviously one of the factors

underlying the great diversity in the quality of police/Aboriginal relations around

the State. While room for local police initiative is important, there is a need for

the development also of systematic policies suitable for racially divided

communities, which will be implemented with full support from senior officers,

so that local tensions can be by-passed and appropriate professional practices

established. Police are sometimes under great pressure from racially prejudiced

or short-sighted local non-Aboriginal communities.

With local initiative a great deal depends on the personality of the patrol

commander and his ability to relate to Aboriginals, on his understanding and

recognition of the distinctive Aboriginal community, its organisations and

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spokespersons, and above all on his ability to listen to Aboriginals and take

seriously what they say. There is no more common (and well-justified)

complaint by Aboriginals about those with whom they have to deal than that they

'will not listen'. This is not peculiar to police; few white Australians find it easy

to escape the assumptions of racial superiority that have been built into their

culture and which lead even people of goodwill to proceed on the unconscious

assumption that they know better than Aboriginals, and that although one must

listen courteously to Aboriginals, the important thing is what one tells them. Not

surprisingly Aboriginals are very sensitive to this treatment. Certainly many

attempts by police officers to establish relations with Aboriginals founder on this

obstacle. An officer in a New South Wales country town told how hard it was to

do anything with Aboriginals in his town; they would not even come to meetings

or respond to his various initiatives. The Aboriginals in the town explained

how frustrated they were in their dealings with the police. If there was to be a

meeting, they were simply summoned at a time and to a place fixed by the police.

The inspector assumed that he would take the chair and then proceeded to

harangue them about the situation as he saw it. When they spoke, they

immediately felt 'put down'; there was no serious interest in what they said,

which was assumed to be wrong or based on misunderstanding. They were not

willing to go to any more meetings.

A sad thing is to see how much well-intentioned effort by police is wasted for

lack of the humility to listen and the ability to establish rapport. In one town an

officer in charge who does not appear to have been particularly active in his role

is remembered fondly by many Aboriginals because he used to talk in a relaxed

and friendly way to old Aboriginals drinking in the park. His successor worked

with great energy and devotion for several years to bring to pass his own ideas of

what was good for the town, but departed a tired and disappointed man who had

remained at odds with much of the town's Aboriginal population.

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POLICE ACCOUNTABILITY

One of the deep-seated and debilitating feelings expressed by many articulate

Aboriginals is powerlessness. They illustrate it in reference to police, with whom

they have a grotesquely disproportionate amount of contact, by saying that police

are not 'accountable'.

Police investigating police

In my R e p o r t o f th e In q u iry in to th e D e a th o f M a r k W a y n e R e v e ll I examined

three forms of police accountability, namely routine internal investigation,

accountability to the coroner, and accountability to the Ombudsman, and found

that they had all failed in the object of making police accountable for their

conduct. Following Mark's death in the police station, responsibility for

investigation devolved on an inspector as the senior officer, and on a detective

sergeant who was alloted the task by the inspector and who, also had the job of

investigating the matter for the purposes of the coronial inquiry. The inspector

seems to have done nothing except speak briefly to the officers concerned shortly

after the body was discovered, and leave them to prepare written reports. The

detective sergeant's attitude was a classic example of the reluctance, if not

paralysis, that seems to descend on many police officers when called on to

investigate other police officers.

A different response was shown by another inspector who was given the task of

investigating the conduct of the detective sergeant on another aspect of the matter.

When the Ombudsman required an investigation under the P o lic e R e g u la tio n

(A lle g a tio n s o f M isco n d u ct) A c t the inspector suffered only partial paralysis; his

critical investigative facilities were suspended so that he was unable to notice

glaring contradictions and implausible statements in what the detective sergeant

told him. In other ways he was most active and became a strong and imaginative

advocate for the officer he was supposed to be investigating. His attitude was

shared by Police Headquarters, which put some effort into inventing for the

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detective sergeant legal defences which he had not thought of himself, namely

that it was really the coroner's job and not his to inform next of kin, and then,

when it was pointed out that there was a quite specific obligation placed on him

by the Police Instructions, to rationalise away the breach of Instructions by

saying that they were only guides anyway.

Police accountability to Minister

The Kearney case demonstrated an equal failure of two other forms of

accountability, that is the consideration of disciplinary action by the Internal

Affairs Branch, and accountability to the responsible Minister. The Minister's

attempts to call the police to account in relation to the strange event of two deaths

in the same cell on the same night, and then in response to strong statements by

the coroner, came to no avail. First the Police Department set out to defend itself

rather than to examine the issues, and then took advantage of the change of

Government to avoid any response at all.

The Atkinson case provided another example, with further implications.

Responsible government depends greatly upon the ability of a Minister of the

Crown to be able to report to Parliament fully and accurately on matters raised in

relation to his portfolio. The Parliament may have been inaccurately informed, if

not seriously misled, as to the true circumstances of the death of Shane Atkinson

by the Minister's reply to a question in Parliament but for the fortuitous

establishment of this Royal Commission and its consequent effect on the answer

given by the Minister for Police and Emergency Services.

Given the findings in the inquiries, it is not surprising that one encounters a

widespread lack of confidence amongst Aboriginals in police investigative

processes. In relation to the investigation of deaths, this well justified lack of

confidence had a great deal to do with producing the discontent that led to the

establishment of this Commission.

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Complaints against police

In relation to the investigation of misconduct of police officers, the lack of

confidence is a quite fundamental difficulty in improving relations between

Aboriginals and police. Again and again in talking to people in Aboriginal

communities one encounters general and specific allegations of police harassment

and mistreatment of Aboriginals. The usual police response to such allegations is

that they should be put in writing and given to the appropriate police officer who

will investigate them. The regular Aboriginal response to this is that it is a waste

of time to do so because there will be not a genuine investigation but a

whitewash. Usually it will be one Aboriginal's word against a number of

policemen, and the Aboriginal has no hope of being believed. In the long run the

unsuccessful complaint is only likely to lead to further victimisation of the

complainant or his or her family.

Police often argue that avenues of complaint are adequate. A glimpse of the

reality at the grassroots level was given in an answer by a non-Aboriginal

prisoner cross-examined about evidence in the Leslie inquiry of hearing sounds

consistent with somebody being roughly handled. When questioned as to

whether he reported the matter to a police officer who asked if he had any

complaints, he replied:

Ί mean, you don't run to the police after something like that has

happened ... and complain about it. I mean, you're sort of

stepping on red hot stones if you do. You've got to be placed in

that position to be able to understand what, you know, the

situation is. I mean, we had hoses turned on us once because

there was too much noise. I mean, so you don't go running back

to them and saying, you know, whinging about this, because

they'd retaliate and do - lock you in the cells earlier or leave the

lights on all night. So they'd retaliate some way. I mean it

wouldn't go past the ears of the beholder that you'd spoken to'.

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If the very disproportionate arrest rate of Aboriginals is to be overcome, one

important step is the improvement of their relations with the police. One

important ingredient in doing that is building up confidence in Aboriginals that

they can make complaints about police conduct, have them genuinely investigated

and not suffer victimisation as a result.

A clean police service

Under its present administration the New South Wales Police Force has attained

a very high public reputation for investigating corruption amongst police officers

and producing a 'clean' Police Force. This is of vital importance and one can

only applaud enthusiasm in pursuing this objective. However there can be

'down-sides' to a single-minded concentration on this issue. One problem has

been apparent in a number of my inquiries, in particular that into the Gundy

death.

In cases where the challenged conduct arises out of the attempted performance of

duties as a police officer, rather than deliberate wrongdoing or criminal conduct

under cover of or unrelated to the performance of duties, there is often a

defensive or protective, rather than a rigorous, probing approach. The problem

may in part be that if criticism is to be made, and wrongdoing uncovered, arising

out of an officially sanctioned police operation, then it is not merely a matter of

the reputation of individual police officers suffering, but the reputation of the

service generally. This was particularly so in the Gundy matter, where the Police

Force was confronted with widespread media criticism, including some

outrageously inaccurate statements and comments about what happened, which

inevitably placed the Police Service on the defensive.

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CHAPTER 19 - DOMESTIC VIOLENCE

THE IMPORTANCE OF DOMESTIC VIOLENCE

The complexity of Aboriginal/police relations is underlined by the fact that the

general Aboriginal call is for less policing and less police interference in

Aboriginal life and lifestyles. In one area there are complaints at least by

Aboriginal women of insufficient police intervention. Domestic violence is a

community-wide problem and police reluctance to involve themselves in

domestic disputes has also been community-wide and indeed is a pattern

observed in other countries as well.

The community-wide nature of domestic violence is illustrated by the fact that in

1986-87 25% of all offences against the person reported to police in New South

Wales occurred in private dwellings. Between 1968 and 1981 in New South

Wales 43% of homicides were within the family; 23% of these occurred between

spouses, in many cases following previous domestic violence; almost half

(47%) of female victims of homicide were killed by their spouse compared with

10% of male victims. Domestic violence occurs in all classes and ethnic groups

but little is known about its distribution.

There has been little assessment of domestic violence in Aboriginal communities

in south-eastern Australia, but it is clearly a serious problem. Dubbo police

estimated to the Commission that about 37% of the domestic violence cases

which they dealt with in 1989 were Aboriginal, a figure which would be well

beyond the proportion of Aboriginals in the community. Aboriginals expressed

concern to the Commission's Aboriginal Issues Unit about this matter in New

South Wales in Bourke, Broken Hill, Wilcannia, Menindce, Dareton, Walgett,

Moree, Tamworth, Gilgandra and Momya, and concern was also expressed at

the Dubbo and Wilcannia Community Conferences.

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POLICE PERSPECTIVES

The Commission encountered disturbing evidence that it is a common police

reaction to stereotype Aboriginals as violent towards women and indeed to treat it

as a racial or cultural difference. This is ironic as many Aboriginals hold a

similar sterotype of police. In fact most Aboriginal violence is associated with

alcohol, a commodity introduced by Europeans as part of their culture, and

appears to be associated with other social issues flowing from dispossession,

including unemployment, poverty and the frustrations created by racism. Some

police of course are sensitive to this. Indeed police attitudes generally reflect to a

considerable extent those of the white communities in which they work, and

often include a similar variety.

Domestic violence has always produced difficult problems for police in whatever

community, occasioned in part by the ambivalence of women who, on the one

hand want protection from violence but on the other hand, from affection for

their spouses or fear of retribution, are reluctant to see them penalised.

Community attitudes are by no means generally enlightened, recent surveys

showing suiprisingly wide support for the view that a man's violence against his

wife can be justified, and that violence within the family is a private matter to be

settled there. There are additional problems in policing violence within

Aboriginal communities because the emphasis on extended rather than nuclear

families widens the class of people who feel that they have an interest in a

domestic dispute, and because of the widespread historically-based antagonism

of Aboriginals to police and to police intervention in Aboriginal affairs. Thus

police intervening in good faith in a domestic violence situation have at times

found themselves confronted by large numbers of hostile Aboriginals. These

experiences as well as stereotypes of Aboriginal culture, increase the general

reluctance of police to intervene in domestic violence matters, and are reflected in

widespread complaints from Aboriginal women about police dilatoriness and

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unco-operativeness in laying charges and in taking out and enforcing

Apprehended Domestic Violence Orders (ADVO's).41

Since 1983 there have been significant attempts in New South Wales to increase

the legal support for victims of domestic violence, including new instructions to

police in April 1988. The New South Wales Police Department has made a

significant effort to overcome police resistance to enforcing the law in these

matters with the result that a far higher number of assault charges in relation to

domestic violence are being taken to court, and a far higher proportion of both

these charges and the ADVO's are being initiated by police.

ABORIGINAL PERSPECTIVES

However the response has been uneven and wide disparities exist between

different police patrols. This was reflected in reports from the Aboriginal Issues

Units in Mogo, Broken Hill, Tamworth and Dareton where Aboriginals spoke

well of police co-operation on domestic violence matters; indeed in the latter

town it was the only positive comment which police conduct attracted. In

Bourke, Gilgandra, Eden, Menindee and Wilcannia, on the other hand,

Aboriginals were very critical.

In Moruya Aboriginal women complained that police merely transported victims

of domestic violence to the women's refuge and left them to decide whether they

would charge the offender. Many of the women would not press charges, and

returned to their homes only to be brought back to the refuge within a short time.

The Aboriginal Community Liaison Officer in Walgett said that police had

adopted a policy of avoiding arresting people and instead endeavoured to separate

the parties by taking offenders to the house of some other family member or

friend. This was seen as a way of avoiding confrontation with other members of

the family or community which was likely to occur if police made arrests. In any

41 Orders which restrain a perpetrator of violence from approaching a person under threat.

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event they felt that charging was a waste of time because so few complainants

attended court to give evidence.

The latter experience is of course not peculiar to the Aboriginal community. As

Pat O'Shane, the Aboriginal Stipendiary Magistrate has pointed out, there is

evidence to suggest that a significant majority of women victims do not want

these matters to be dealt with through the processes of the criminal justice

system. In particular, they do not want their men to be classified as 'criminal'

and taken off to gaol. Nevertheless, they do want some help from some quarter

in restraining the violence against them, but in a form which will allow

reasonably amicable family relationships to continue. She ascertained that the

complex psychological and emotional aspects of their relationships are not to be

dismissed simply in terms of their economic dependence on men, or in terms of

male domination. These women are aware that they have a right not to be

assaulted; but they are unhappy about the fact that the criminal justice system is

their only recourse. It is disturbing to hear that recently in Dubbo an Aboriginal

woman who attempted to withdraw from a domestic assault case was charged

with laying a false complaint.

Community and Aboriginal services

It is therefore very important that while police should give the assistance to

victims of domestic violence which policing can provide, and should do this in a

non-discriminatory fashion, society should not leave domestic violence to be

dealt with simply by policing. In recent years there has been some distance in

development of support services for women, including women's refuges. It has

been a common experience however that mainstream services and those run

independently of government are not notably successful in catering for the needs

of Aboriginal women. To some extent this is an almost unavoidable result of the

history and continuing structural limitations of Aboriginal interaction with

bureaucracies, as manifested, for example, in widespread Aboriginal mistrust of

FACS as the inheritor of the Welfare Board mantle, and as the body which

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currently polices family life and is responsible for the removal of children.

However in some cases it arises from the racism or cultural insensitivity of non­

Aboriginal staff and from the failure of the organisations to recruit Aboriginal

staff into positions of responsibility and power. There is need for active

strategies for recruiting Aboriginal staff to responsible positions.

Even more important is the support of Aboriginal initiatives in this area.

However there must be a willingness to support appropriate Aboriginal

initiatives, and not merely to avoid necessary police intervention by dumping the

problem on agencies designed for other purposes. Thus while there may be

situations in which ACLOs can defuse situations, the ACLOs are part of the

police department and not community organs. It is important that police should

not seek to absolve themselves of their responsibility to take necessary legal steps

to protect women victims by charging perpetrators or taking out ADVOs, by

burdening ACLOs with responsibilities which they do not have the power to

enforce.

Similarly in Victoria there is a tendency to see Community Justice Panels as

solutions for problems which they do not have the resources to deal with. The

situation of CJPs is discussed elsewhere in this report. It would be quite

inappropriate to regard them as bodies that can take over the general solution of

problems of domestic violence in the Aboriginal community.

Solutions in terms of conferring powers on Aboriginal local governments which

have been put forward in other parts of Australia are difficult to apply in south­

eastern Australia, where Aboriginals are rarely a majority of town residents and

do not hold significant land areas. However there have been a variety of relevant

Aboriginal initiatives in south-eastern Australia over the last decade. One

example is the Wyrraway Women's Housing Co-operative established in Moree

in 1986, which offers short-term housing for women seeking to leave violent or

unsatisfactory relationships and assist women to find permanent public housing.

It has seven houses and four two-bedroom flats, has placed about 200 clients

343

since it began, employs three Aboriginal women, and is funded by the New

South Wales Department of Housing and FACS. It has survived some

opposition from the white community. Moree Aboriginal community also has a

women's refuge, Ngala.

The Mygunyah Committee, a regional committee in Dubbo, composed of

representatives of local committees now existing in Bourke, Brewarrina,

Lightning Ridge/Walgett and Dubbo, is seeking to establish safe accommodation

in each town. Each of the local committees has both women and men as

members, although in each women predominate. Mygunyah has now received

funding to employ a women's support worker in each of the four towns who is

counselling women about ADVOs and other legal and social options and

attempting to arrange counselling for both men and women involved in violent

relationships.

The first State-wide meeting of Aboriginal women, in Dubbo in June 1990,

made a number of recommendations on domestic violence, many of which were

general ones concerning adequate recognition and resourcing of workers in the

field. Amongst other things they call for:

• a strategy for setting up safe houses for Aboriginal women and children

in all relevant towns, to be developed by a team of skilled Aboriginal

workers in consultation with community women;

• a holistic strategy for the provision of services to the victims and

perpetrators of domestic violence;

• a program to be developed to employ and train Aboriginal women as

interviewers/investigators in situations of family violence and trained

female Aboriginal police to be employed to deal with Aboriginal women

in cases of abuse.

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CONCLUSIONS

It is important that the Police Force continues its efforts to ensure that police

officers take active steps to protect the victims of domestic violence by the laying

of charges and seeking of ADVOs where appropriate, and to ensure that this is an

active and non-discriminatory policing which extends to the Aboriginal

community. It is important too that magistrates, in dealing with such cases,

recognise that non-custodial orders, which are generally desirable may not be

appropriate where it is necessary to give some protection to women victims.

However there must not be an exclusive reliance on policing. Existing services

such as FACS and women's refuges which cater for Aboriginals need to

continue their efforts to promote awareness of issues of cultural sensitivity and to

employ Aboriginal women as staff in responsible roles. Most important of all is

government support for Aboriginal-controlled organisations, concerned in

supporting and counselling women and child victims, or in developing

community-controlled intervention and counselling strategies. Such Aboriginal

initiatives deserve support because of the more effective role they can play and

because of the general importance of developing Aboriginal independence and

giving Aboriginals more power in relation to their lives. They can thus form part

of a wider strategy which hopefully will lead to a reduction in alcoholism and

other destructive influences on Aboriginal communities.

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CHAPTER 20 - JUVENILES

A MAJOR ISSUE

In all States the number of Aboriginal juveniles held in custody is alarming and

holds very disturbing implications for the future. I have already referred to the

fact that Aboriginal juveniles are 25 times more likely to be in detention than non­

Aboriginals in New South Wales, and 20 times in Victoria.

A major national effort is necessary to attack this problem. It is a national crisis

by any standard, as the continuation of the present situation means compounding

human suffering, social disturbance and economic cost.

While only one of the deaths which I investigated, that of Thomas Carr, was a

juvenile, 8 were of persons who had been first charged when they were under

14, and 9 others were first charged when they were less than 19 years old. At

least 8 had spent time in juvenile institutions. Generally the cases demonstrate

the failure of the juvenile justice system to achieve any success in dealing with

children and youths who come to the attention of the juvenile welfare or justice

systems.

The over representation of Aboriginal juveniles in maximum security units is

even higher than in other institutions. The proportion of Aboriginals in

Endeavour House at times before it was closed reached 60%, a figure attributed

to their propensity to abscond. It is clear that, if the involvement of Aboriginal

boys and men with police can be reduced then the rate of incarceration of

Aboriginals can be generally reduced.

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POLICE AND JUVENILES

The way in which police treat juveniles is of critical importance, as early

experiences may be determinative of their subsequent attitude to the law. There

is disturbing evidence of their being alienated by inhumane, often racist

treatment, both before and during custody. In a study by Cunneen for the Human

Rights Commission, 82% of Aboriginal juveniles in institutions in New South

Wales reported being either hit, punched, kicked or slapped by police. In

addition 80% said that they were the subject of racist abuse by police. Violence

by police may often be an attempt to address the non recognition of their

authority. This is especially so if the encounter between police and Aboriginal

juveniles and any challenge to authority involved were to happen in a public

arena such as on the street. Research shows that the major factor in whether

juveniles get arrested is their demeanor towards the police. Police officers

themselves admit that if they are shown deference they are likely to be more

lenient.42 If their authority is challenged they assert it more forcefully and even

punitively.

The complaints of harassment and ill-treatment were forcefully voiced by

Aboriginals at the juvenile justice conference in Sydney. An ALS officer said

that he had found 'blatant outright discrimination against young Aboriginal kids

from the Police Department - once they do become known to the police they tend

to be hounded’. An Aboriginal FACS worker gave a dramatic example of a boy

who was grabbed and beaten, charged and convicted by police, although it was

someone else who had thrown something at the police. A Redfem woman said

Ί dont think we take into consideration the police harassment. In the police

station there were two big boards with [photos of] nearly all the kids in Redfem

and grown-ups — its put there for the trainee police to come into Redfem and sort

out these kids and they really harass them ... You know the police harassment

there is unbelievable and we’re going to have more of our kids die if they dont

get off their backs'.

42 G Cowlishaw B la c k W h ite o r B r in d le (1988)

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An Aboriginal health worker told of cases of police harassment. 'Since David

Gundy was shot, we've got Aboriginal kids being pulled up in the streets and

being hassled and being told would they like to end up like David Gundy. That's

not very nice. With this sort of thing going on how can Aboriginal kids respect

the police ... I'm not saying it's just one sided. It's both sides but we can say

this, we never went out and shot someone because someone else got shot. An

adolescent got bashed up on Blacktown railway station. This child was a member

of the Gundys ... These two coppers that are bashing you say "We should get

SWOS in too'.An ALS solicitor said that his clients constantly complain of police

calling them 'black bastards', but this is never accepted as part of the events

being dealt with in court.

On the other hand, there is much evidence of a constructive approach to the

problems of juveniles being taken by the New South Wales Police Service. The

Service has a permanent position for a civilian Youth Client Group Consultant,

and has conducted a seminar specifically on Aboriginal youth problems. There is

a General Duty Youth Officer Program under which a number of young police

officers around the state have the opportunity to work with young people within

their patrol and to develop strategies for dealing with youth problems. There has

been some encouraging success. No Aboriginal juvenile appeared before the

courts in Wagga for over six months after such an officer was appointed. In

Kempsey such an appointment saw a 10% drop in the number of Aboriginal

juveniles charged. Such successes are of course not easy to achieve. They

depend on finding officers who have the appropriate personalities to establish

productive relations with juveniles, and the dedication to work with them over

long periods. So great are the dividends, however, in human terms and the

reduction of present and future demands on police, that when such officers are

located, that they should be given every opportunity to stay in the work, and

should receive proper recognition, including a career structure.

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Through Police Youth Clubs police have initiated a youth exchange program in

which young people from such areas as Wilcannia, Brewarrina, Kempsey and

Redfem have recreational and development exchange visits to Sydney and other

locations. In some places police conduct Blue Light Discos for young people in

which Aboriginal Youth took part. In one town the Patrol Commander put great

effort into a boxing club in which many young Aboriginals took part.

Late in 1990 the Consultant, together with Inspector Ireland of the Policy and

Planning Branch prepared a proposal for change in the juvenile justice system for

submission to the New South Wales Parliamentary Standing Committee on

Social Issues. The proposal was based on an on-the-spot study of the working

of the New Zealand C h ild r e n , Y o u n g P e r s o n s a n d th e ir F a m ilie s A c t, 1989,

which promises to divert a high percentage of juvenile offenders from the court

system and contribute imaginatively to their rehabilitation. Given the high

proportion of Aboriginals entering the New South Wales system, it is a pity that

the Working Party of four which went to New Zealand did not include an

Aboriginal. Nevertheless the report is a very positive attempt by the New

South Wales Police Service to tackle a major issue, and does recognise to some

extent the role that may be played by Aboriginal communities. In discussing the

provision for the supervision of community work orders, the report notes:

'This aspect would have relevance to the very large number of

aboriginal [sic] young people who find their way into the juvenile

justice system in New South Wales. State funded community

based supervision could be provided at considerably less cost than

government supervision and would contribute towards a transfer

of responsibility for offending and responses to offending, to the

community'.

It is to be hoped that any development of the proposals will allot a major role to

Aboriginal communities at a much earlier stage than the supervision of orders.

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Police guidelines regarding the cautioning of juveniles, which are part of the

New South Wales Police Service Youth Policy, direct the maximum use of

diversionary mechanisms and the minimum use of arrest and charge procedures.

The local patrol commander is responsible for this, and the success will depend

on the way police respond at senior and junior levels. Police officers at the

Commission's conference recognised that problems exist and that police have to

be sensitised to special needs of Aboriginal communities and have to learn to

resist the white majorities which often exhibit unproductive racist tendencies. It

requires a major change in ideas and practices embedded in police culture, and

steps must be taken to avoid the possibility of the intention of the policy being

subverted at the local level. There is reported lack of co-operation by many police

when Aboriginal people make an attempt to assist the young people. For instance

when a phone number was given to police in Redfem to call if they picked up an

Aboriginal juvenile, the police said there were too many phone numbers to ring a

contact person.

The Commission was informed by the Tasmanian Commissioner of Police that

juveniles are wherever possible, dealt with in the presence of their parents,

guardians, welfare officers, or some other responsible person, and that as a

general rule they were brought before the court by summons rather than by

arrest.

COMMUNITY SERVICES INITIATIVES

While all possible co-operation of police is needed, it cannot be left to them to

solve juvenile problems. Police are saying that in some places 'there's been a

disintegration of the community itself, and that's due to all the social things, such

as unemployment, lack of education etcetera etcetera, which manifest in

alcoholism, which manifests in crime and all those issues ... Other government

agencies are not really picking up the tab ... so that we put extra people in,

basically to use law enforcement to police what shouldn't be law enforcement

issues'.

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In Victoria the Department of Community Services has committed itself to

establishing target numbers of Aboriginals in Youth Training Centres as a focus

for endeavours to reduce the present numbers. Mention has already been made

of the efforts to ensure that wherever possible juveniles are released on bail,

rather than held in institutions awaiting the hearing of charges.

In New South Wales the recently released Departmental Strategy for Juvenile

Justice sets specific diversionary objectives to decrease the rate of committal of

Aboriginal juveniles in each region by 20% in 1990-91 as compared to the

previous year. FACS employs 111 Aboriginal people and involves them in the

development of policies. Considerable success was achieved by Gullama, a

specialised Aboriginal unit within the department, which engaged in preventative

and educational programmes. The truancy rate in Redfem dropped dramatically

while its 'Streetbeat' programme was in place. In this programme two district

officers patrolled the streets of Redfem and spoke to the kids on a one-to-one

basis.

Officers spoke of the need for greater and more flexible use of resources to

enable more involvement of Aboriginals and communities with youth work at the

grassroots level. In many cases the communities have the human resources but

not the financial resources to reverse the processes whereby young people are

criminalised.

Aboriginals complain of bureaucratic secrecy which keeps the family distant from

the young offender, and of a lack of communication generally. The difficulties in

visiting children in institutions are enormous, with the distances from centres of

Aboriginal populations and lack of accommodation available for families. The

way children get 'shuffled round the system', and shifted from one institution to

another, are also barriers to family ties being maintained. As one Abriginal

woman worker said 'Why bring them from Moree and Bourke to these places

down here? Surely to God there's enough money within the Aboriginal business

351

today to keep those kids near their families?'. Funding Aboriginal communities

to provide local care would in many cases be less expensive and reduce the risks

of criminalisation and institutionalisation.

SEPARATING JUSTICE AND WELFARE

One experienced speaker at the Juvenile Justice conference said 'If you have two

kids, one white and one black and they both come up for the same offence in the

same town, but because the black kid's parents aren't available, say, at this time,

or he's a bit surly and responds to police not as positively as the white kid does,

the black kid goes to court and the white kid gets a caution. Then the next time

they come up before the police they'll say "he's had a court appearance before —

he's got less right to another caution than the other kid'". In this way the

'deviation amplification' process ensures that those with the most troubled home

and community backgrounds are most likely to be treated punitively by a system

which confuses social and psychological problems with criminality.

Several speakers said that the welfare system should be far more clearly

separated from the courts. It was argued that as 95% of cases are decided before

they go to court, and the court is really only for sentencing, courts should not be

dealing with kids welfare problems. That is, the roles should be separated and

the courts should retain only a legal role. Such a separation would allow for a

breaking of the nexus between poverty, race and criminality.

The New Zealand C h ild ren , Young P e rso n s a n d th eir F a m ilie s A ct, 1989, which,

as I have described, has been the subject of study by New South Wales police,

may offer a useful model, provided it is adapted to give a major role to

Aboriginal communities, so that they can take a large measure of responsibility

for their young people.

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BAIL

There are many indications of deficiencies in the working of the present justice

system. Problems with legal representation and with bail are numerous. Unreal

conditions are regularly broken meaning that young people are recycled through

the courts. Breaches are common because often the kids were elsewhere and

either could not get to the court or got there late, and would then be arrested for

another series of offences. There is also a problem with communication. 'Kids a

lot of the time do not understand what is going on at the police station - - they

will nod their heads and say they understand but they don't.'

Available evidence shows that police are more likely to refuse bail to an

Aboriginal than to a non-Aboriginal in similar circumstances. Police argue that

this is due to the criteria in the B a il A c t concerning residence, employment,

family situation and prior criminal records. WALS has suggested amendments to

the Act, and it appears, in view of what police say, that there is need for a review

of its appropriateness for Aboriginals, particularly juveniles.

I have earlier noted that in Victoria no young person may be refused bail on the

grounds that they do not have adequate housing, that a Remand Advocacy

Program has been established, and that Youth Officers at Training Centres

assess the incoming juveniles and endeavour to find appropriate community

placements. When such placements are found the juvenile is returned to the court

for approval and release.

INSTIT1JTION ALLS ATION

Virtually everyone associated with the criminal justice system seems to agree that

putting children into detention centres tends to amplify their difficulties, or at

least to increase their propensity to criminal behaviour. This is certainly

consistent with the life histories of many of those whose deaths I investigated.

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The effect of the 1989 S en ten cin g A c t in New South Wales, designed to provide

'truth in sentencing' has been to double the period of dentention for juveniles.

Young people are spending about 190 days in custody, which is almost double

what they were previously spending on average. FACS is given no flexibility as

to the length of time juveniles are kept in custody. Under the Act the median

duration of a term of committal has increased from 98 days to 182 days. Thus it

appears that a consequence of the legislation is turning out to be more

criminalisation of juveniles, which will lead to a higher rate of Aboriginals in

custody and thus more deaths in custody.

The philosophy of harsher and more punitive treatment of offences against the

law contrasts with the pattern in other States and overseas where there has been a

recognition that the costs of crime to society is not reduced by these means. The

creation of a hardened criminal class out of unhappy and troublesome youth by

incarceration and inhumane treatment will in the end cost society dear both in

economic terms, in social disruption and in human misery. Those policies

directed at rehabilitation of young offenders must in the end be of greater value

than any other investment the government might make with the funds for

corrective services.

The immediate consequences of taking children from their families or

communities are various. According to the HREOC many Aboriginal children

become homeless upon release because of lengthy periods spent without contact

with their families. Juveniles who have minimal contact with family tend to have

problems identifying themselves as Aboriginal and tend to think of themselves as

outsiders. The effects of institutionalisation on Aboriginal children is particularly

destructive because Aboriginal culture and 'institutional' culture are virtually

direct opposites, the former being permissive, egalitarian, strongly interactive,

and kin based while the latter is authoritarian, punitive, hierarchical,

individualistic and impersonal.

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The restricted access to children in detention is destructive. A senior Aboriginal

woman public servant found that she was refused access to her nephew at a

detention centre. Ί was told there was no way in the world I was allowed to

speak to him, nor was he allowed to speak to any of my children who are his

first cousins.' Unlike most Aboriginals, she had friends in high places so the

authorities quickly changed their minds.

Families have problems visiting because of limited money: sixty percent of

parents of those in institutions are Social Security recipients. FACS gives one

way fares, which sometimes leads to people being stranded. It is pleasing to

hear that new FACS procedures emphasise Aboriginal children's rights to contact

with other Aboriginals and access to Aboriginal welfare and legal services when

in institutions.

EMPLOYMENT AND LEISURE ACTIVITIES

The evidence in the Carr case brought out the contrast in the circumstances in

which Thomas Carr's father grew up, and the world in which Aboriginal youths

are growing up today, especially in country towns. Aboriginals and non­

Aboriginals alike in these towns recognise the destructive effects of

unemployment and limited leisure activities. Boredom and lack of self-esteem

are commonly seen as predisposing reasons for the abuse of alcohol and drugs

and the occurrence of many of the relatively petty offences which commonly

bring Aboriginals into custody.

The Commission encountered a number of initiatives to provide leisure activities

for juveniles, some initiated by Aboriginal organisations and some by police. In

some areas the two were co-operating constructively; in others the Aboriginals

felt that police were authoritarian and allowed no proper role to the community.

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MULTIPLE CHARGES AGAINST JUVENILES

The complaint has frequently been made that young Aboriginals are

unnecessarily or deliberately made the subject of trivial charges or multiple

charges, with the result that the appearance of a serious criminal record is built up

at an early age. This follows them through life, is a handicap against defending

themselves or seeking mitigation if they are charged again, and also handicaps

them in relation to employment and other ways. The issue was brought to the

surface in the Carr inquiry by the multiple charges, no less than five over a single

hot-tempered action by a 17 year old Aboriginal. It is important that steps be

taken to dispel the concern that exists among Aboriginals on the issue of trivial

charging and multiple charging.

PARENTAL CONTROL OF ABORIGINAL CHILDREN

An officer of the Department of Family and Community Services said that a lot of

the problems he had in dealing with Aboriginal youths in Dubbo were mainly

because of the degree of freedom allowed to them. There is a very strong belief,

which I have found widespread in Aboriginal communities in south-eastern

Australia, that parents are forbidden by law to chastise their children, and that if

they do they will be prosecuted or the children taken away. On a number of

occasions there has been reference to children being able to 'divorce' their

parents. That particular phrase no doubt comes from newspaper reports of a case

in Victoria, but where the general belief comes from I cannot say. However it is

firmly held and has been expressed to me in Walgett, Dubbo and Wellington, and

also in Victoria, in meetings of Aboriginals. It may in part be a legacy of the

feelings of powerlessness built up by the oppressive supervision and control of

Aboriginal families in the past.

The matter was raised in each case on the initiative of Aboriginals, who

expressed great concern and gave it as a reason why children were found

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wandering the street at night and taking up drinking. There seems to be a clear

need for some kind of carefully worked out program, involving the police and

the Department of Family and Community Services, but mainly implemented by

Aboriginal organisations, to explain the true position. It will be difficult, as it is

not easy to explain the limits of reasonable use of force under the law, and there

may be differing cultural as well as individual views as to what is reasonable.

For example, reference is often made approvingly by Aboriginals to the

traditional disciplining of children by holding them in the smoke of fires, and this

must have been done in a way which did not harm children.43 Yet it is likely to

produce a disapproving reaction from non-Aboriginals who are unfamiliar with

the practice, and in whose domestic culture fire has long played a less significant

role.

43 I have been told that in traditional society holding a child in smoke was not for the purpose of punishment but to affect its spirit.

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PART SEVEN - SOCIAL CONDITIONS

CHAPTER 21 - EDUCATION

THE ABORIGINAL EXPERIENCE

As an instrument for transmitting culture from one generation to the next,

education can be a powerful force either for assimilation or for the preservation

of cultural identity. From the point of view of an indigenous people, such as the

Australian Aboriginals, the education system of the dominant community

presents a catch 22 situation. If their children take part in it fully, accepting its

values, they will be alienated from their parents and their culture. If they do not

participate in it, they will have no opportunity to acquire the skills on which

financial and vocational success in the wider community depend, or which are

necessary if the indigenous communities are to develop their own professionals

and other skilled individuals so as to be independent of the experts of the

dominant culture.

Of course the indigenous people are not likely to have a free choice in the matter.

Until relatively recent times in much of Australia Aboriginal children were

effectively excluded from the opportunity to attend the State schools, in some

cases because of remoteness or the itinerant lifestyles of their parents, often

because of the objection of white parents to the presence of Aboriginal children in

the schools which their children attended.

In more recent times the situation has been reversed and attendance has become

compulsory. By and large however the schools which Aboriginal children have

been forced to attend have been culturally hostile environments. The schools and

their curricula and teaching methods had naturally been developed, and their

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staffs trained, to be effective instruments for passing on the culture of the

invaders. Indeed it rarely occurred to anyone that the schools, or for that matter

Australian society at large, did reflect a particular culture and set of values. It

was assumed that schools simply taught the truth, in the language, and inculcated

th e values of civilised society. Hackneyed as it is, there is still no better example

than the long unquestioned teaching of Australian history, with Tasman

discovering Tasmania, Torres being the first to sail through Torres Straits, Cook

being the discoverer of eastern Australia, and the brave settlers being set upon by

treacherous blacks who lacked any respect for property. When it came to

manners, there was no thought that there could be legitimacy in other attitudes to

time than that expressed in the punctuality of an industrial society, or in other

attitudes to language and clothing than that of middle-class decorousness. Nor

was there tolerance of differences in values which placed ceremonial or kinship

obligations above those of school and industrial timetables, sharing above

individual accumulation of property, and co-operation above competitive

individual achievement.

The alien character of schools designed to socialise children into a different

culture inevitably made schooling a bewildering and unpleasant experience for

most Aboriginal children. This was commonly exacerbated by the arrogance of

those who accepted the dominant culture as unquestionable - impatient and

dismissive teachers who saw in cultural difference only delinquency or stupidity,

and cruel and prejudiced fellow students imbued at home and in their own

communities with the certainty of their own racial, cultural, intellectual and moral

superiority.

A widespread result has been that schools have given Aboriginal children neither

pride and confidence in their own culture nor the training in marketable skills that

would facilitate their participation in the wider economy. Instead many young

Aboriginals have been left with neither employment nor a richness of cultural and

leisure pursuits, often in surroundings where even sporting activities are limited.

In such circumstances the pull of alcohol is strong, drinking providing them with

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an escape from boredom, a basis of sociability, and sometimes an expression of

defiance of the dominant community which they feel has rejected them and

despises them. Truancy and drinking, and associated with them petty crime,

often are the means by which Aboriginal children are criminalised and start to

spend much of their life in custody.

Some Aboriginal children succeed at school despite these obstacles, and other

handicaps such as overcrowded housing and ill-health, although atelling

comment from an Aboriginal community to the Victorian AIU was that Kooris

who do not identify with their communities 'don't seem to have any trouble

getting through school'.

There are teachers who make great efforts to help Aboriginal students achieve.

In recent years there have been increasing awareness of the problems and varied

attempts to improve the position, but overall the results have been disappointing,

whether one measures them by the desire of Aboriginal children to remain at

school or their achievements by orthodox educational measurements, or by the

view of Aboriginal communities. Endeavours which do not seriously involve the

Aboriginal community, but are directed at Aboriginal children simply as

individuals are not likely to be productive.

ABORIGINAL CONCERNS

New South Wales

The New South Wales AIU reported that the lack of success for Aboriginal

people within the general education system is becoming a mounting concern for

many members of Aboriginal communities and organisations throughout the

State. It is commonly believed that in excess of 60% of Aboriginal children in

New South Wales are not completing Year 10 of high school, the bulk of

children leave school between 14 and 16 years of age, and many fail to complete

the first year of high school. The only exceptions were in centres where there

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had been reasonably good community relationships over a period of time, or

where there was a strong religious influence.

Aboriginal community members saw the failure of children to remain at school as

contributing to the increase of young people who are using alcohol and drugs at

an early age and then committing offences to provide money to supply

themselves with alcohol or drugs. They saw the reasons for the children's lack

of interest in education as including the fact that they perceived the type of

education provided as having no relevance to their position in the community, the

negative attitude of many teachers and principals in country towns, and the fact

that many Aboriginal parents had a negative attitude towards education because

of their own experiences.

In view of the history of Aboriginal education it is not surprising that many of the

present generation of Aboriginal parents have this negative attitude to schools.

Many Aboriginal parents are unwilling to attend a school under any

circumstances, even when there is a problem about one of their children. The

only time they attend in numbers was when there is an Aboriginal Week or other

similar celebration. Even when there were Aboriginal Education Assistants

(AEA) employed in schools, such parents would use this as an excuse for not

going so that saying that the AEA was employed to look after the children at

school. The one exception encountered by the Aboriginal Issues Unit was in

Menindee. Aboriginal people made up the bulk of the members of the Parents

and Citizens Association and held most of the offices.

Victoria

In Victoria the AIU reported that while the number of Koori students reaching

and completing form 6 (Year 12) is gradually increasing, the rate of student

expulsion is also increasing at a much faster rate. In addition, many Kooris are

leaving school at or prior to the legal age. There is a growing sense of

disillusionment among young Kooris, with many not attending school because

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they do not see any hope of becoming employed in their home town even if they

were to receive an education and become qualified. Educational standards in

Victoria are still very poor by comparison to other states, Victoria having the

worst educational outcomes for the general population.

The education system is seen as inappropriate and unfair. School is made more

difficult by various factors including lack of understanding on the part of teachers

and staff, racist remarks from other students, receiving detention or 'time out' for

trivial things such as failing to be in proper uniform, not wearing a dress, not

having an apron for class or wearing red, black and yellow beads. Punishment

for these things is discriminatory, in that it is the poor who cannot always afford

uniforms and aprons, etc., and demoralising. It distracts students from their

studies and interest is soon lost. This has a significant impact on the level of

acheivement and educational outcomes of Koori students.

A major problem perceived by Aboriginal community members was the fact that

the teachers who came to a rural area had mostly been trained in urban areas with

little or no contact with Aboriginal children or people. Many of them were

inexperienced teachers taking up their first posting. Such teachers had little

understanding of the cultural and historical differences between Aboriginals and

non-Aboriginals and how this was reflected in the behaviour of children. It was

felt that many of these teachers had latent racist attitudes or had little or no idea of

how to deal with racism within the classroom. Often when there were disputes

between Aboriginal and non-Aboriginal children, action was taken only against

the Aboriginal children and the children generally felt they were subject to

discrimination. When such action was taken against children who were leaders

in the Aboriginal community in the school, there was a very negative attitude

from other Aboriginal children who might adopt a similar method of behaviour.

Aboriginal children rapidly fell behind in the general learning standard and this

had a bad cumulative effect. They tended to be placed in particular groups and

receive less attention than other children who were assumed to be brighter.

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While statistics were not available, it was believed that a disproportionate number

of Aboriginal students were expelled or suspended from school. Teachers who

were unfamiliar with Aboriginal behaviour tended to interpret the behaviour of

children as a direct challenge to their authority and to react accordingly. The

sensitivity of Aboriginal children to racial comments or slights was not

appreciated and complaints were often ignored, as a result of which violent

incidents occurred between children, and the Aboriginal child was blamed. All

this is very disillusioning for children who may have behaved well.

The Victorian AIU reported that the Koori Educators based at schools throughout

Victoria play an important role in encouraging Koori students in their studies,

providing support and ensuring that they are not subjected to any differential

treatment by the staff. Inevitably, in the ordinary course of events, their job

sometimes involves education of non-Aboriginal staff about Koori culture.

Lack of resources, including time and transport, effectively restricts Koori

educators from covering their entire area. Some Educators work in several

schools and are required to use their own cars for work. However, they cannot

get any travel allowance because their cars are not comprehensively insured.

This, as in the case of administrators of Koori organisations, puts the Educator in

a position of having to work for their community without the full entitlements. It

also affects the delivery of this service to Koori students.

I attended a meeting in Swan Hill of these Koori educators and school

principals, and also a meeting of an Aboriginal Education Committee, which

works with the Aboriginal educators. As at Echuca, I was very impressed with

the development of Aboriginal educators, and the co-operation existing between

the Aboriginal community and the teacher appointed to assist and supervise the

work of Aboriginal educators. Clearly there is room for a very great contribution

by these educators, both to the educational development of Aboriginal students,

and to the enhancement of understanding between teachers and white students on

the one hand and Aboriginal students on the other. What they can achieve is

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greatly affected by the attitudes of other teachers, and particularly of principals. I

was told that a recurring problem was that, due to the low rate of pay for

Aboriginal educators, they were frequently enticed away to other employment

once they acquired some experience. In view of the great potential contribution

they have to the future of the young Aboriginals in the schools, this is a most

unsatisfactory situation.

According to Commonwealth Employment Service representatives, two major

problems in increasing Aboriginal employment are that young Aboriginals lack

confidence in seeking employment, and lack basic education which, for example,

handicaps them in taking up block release study at TAPE as required for

apprenticeships. There is widespread concern in the Aboriginal community that

many Aboriginal children are promoted in the course of their schooling

irrespective of whether they have achieved basic standards, even skills in reading

and writing.

Asked to nominate the principal circumstances that were holding back the

progress of Aboriginal education, the meeting of Aboriginal educators and school

principals nominated the absence of role models; discrimination in schools,

particularly amongst children; crowded homes that provided no quiet place for

children to work; and lack of parental support and encouragement. Underlying

many of these problems is an acute shortage of housing. I was told of one home

where 19 people resided in a four-bedroom house.

HEARING PROBLEMS

Permanent hearing defects, from which Garrie Nean suffered all his life, remain

a serious issue for education. A permanent hearing defect becomes a permanent

learning defect. 55% of Koori children in Victoria in 1979 had permanent

hearing defects by the time of entering school and this has affected their learning.

These children are now facing the prison system in their twenties. School does

not cater for children with hearing defects. As a consequence, children are called

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'dumb' because they are unable to leam. Otitis media (middle ear infection) is

most common in children of pre-school ages. This sets the pattern for drop out

at an early age.

SELF-DETERMINATION AND EDUCATION

The attempts to make schools less ethnocentric, and their curricula more relevant

to Aboriginal experience and needs, should be encouraged, but basic to success

and to justice in the area of education, as in other areas, is the extension of the

control of Aboriginal communities over the education of their children. This may

produce different results in different places, as there are differences of many

kinds between different Aboriginal communities. It will no doubt also produce

results different from those that would have been sought by white educators and

white parents, but that is to be expected and welcomed once there is a genuine

acceptance of cultural difference. There are few human rights more precious than

the right of parents to have their children brought up in the culture of their choice.

The giving of control to Aboriginal communities does mean that the dominant

white community must do what it finds so difficult, that is, give up the confident

belief that it knows best what is good for Aboriginals and has the right to impose

its views on them. This policy has been pursued with varying degrees of

brutality over the years, but if anything should have been learnt by now it is that

the attempts to separate Aboriginal children from their parents and communities,

whether by forcible removal or by educational assimilation, simply does not

succeed. For the most part it simply produces great anguish and social

dislocation amongst children and parents alike.

How effective a voice Aboriginal communities can be given in the education of

their children will depend largely on where they live. Those who form

substantial Aboriginal communities can obviously hope to achieve greater control

than those where their children are a minority of school-age children. They may

be able to establish their own schools, with their own curricula, if that is their

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wish, or follow State curricula with whatever modifications they consider

appropriate.

Those who live away from Aboriginal communities will no doubt find that that

they are confronted with the choice of sending their children to schools in which

the school process will be very assimilationist in tendency, or themselves moving

or sending their children back to Aboriginal communities. If they make the

former choice they may, of course, like other people who bring up their children

in another cultural environment, work out their own individual or community

methods of passing on their cultural heritage to their children.

But in all schools, whether there are significant numbers of Aboriginal children

enrolled or not, there should be a real attempt to bring students to understand the

fact that Australia is a country where an immigrant community lives alongside an

indigenous community which it dispossessed, and to sensitise them to the

problems to which that situation has given rise, historically and at the present

time. They should be led to appreciate the long perspective of Aboriginal life in

this country, and the international context in which Australian Aboriginals face

similar problems to many other indigenous peoples, including the Maoris of New

Zealand, the Indians and Inuit of Canada and the United States. Hopefully with

this greater understanding, respect will replace prejudice and a willingness will

grow to see justice done.

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CHAPTER 22- EMPLOYMENT AND ENTERPRISE

EMPLOYMENT HISTORY OF THOSE WHO DIED

O f the 18 Aboriginal persons whose deaths I investigated only one was in

regular employment at the time of his death. That one was David Gundy, who

did not come into custody as the result of any act of his own or of any allegation

against him, but as a result of an illegal police raid on his home. Hence he may

be put to one side in considering the relevance of employment to custody, except

to the extent that he illustrates the negative correlation between employment and

conflict with the law. As five of the deceased, Campbell, Saunders, Williams,

Smith and Murray died in prison, there was no question of their employment

immediately before their death. However for the purpose of the present

discussion I will note their employment history prior to their last imprisonment.

All three Victorian deceased were invalid pensioners, as were Bruce Leslie and

Peter Williams in New South Wales. Arthur Moffatt was receiving a pension

for a combination of disabilities - leg injuries, epilepsy and diabetes,

James Moore for blood pressure and Harrison Day for epilepsy.

Bmce Leslie also received his pension by reason of epilepsy and Peter Williams

for a psychiatric condition suggested to be chronic paranoid schizophrenia.

Three of these pensioners, James Moore, Harrison Day and Bruce Leslie, were

men who had worked for substantial periods in their younger years in the

pastoral industry. It was probable in that work that two of them received injuries

giving rise to epilepsy for which they received pensions. It is also noteworthy

that the three of them gave up work and accepted pensions about the time of the

considerable contraction o f employment in the pastoral industry as a result of

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mechanisation and closer settlement. In some areas the availability of rural work

was also considerably affected by immigration.

Rural employment was the main niche for Aboriginal employment in most of

New South Wales and Victoria for many years up to the 1960's. A number of

the deceased in New South Wales were men who were bom into families and

communities where mral work had once been the mainstay of Aboriginal

employment, but by the time they came of working age that employment was no

longer available and there was nothing to take its place. These men included

Lloyd Boney who was bom in 1960, Shane Atkinson bom in 1963 and

Mark Quayle bom in 1964. Substantially they had never known employment, at

least of any regular or continuous nature. Clarence Nean, bom into a similar

community in 1948, managed to follow mral work for some years and the

increasing difficulty of getting such work may have contributed to his alcoholism

towards the end of his life.

Another significant source of employment for Aboriginals over the years was

unskilled work with governmental bodies of various kinds. Arthur Moffatt

worked for years with the State Electricity Commission in Victoria until he

received his invalid pension. Thomas Carr's father had been in such

employment but young Thomas was to die at the age of 17. As he had spent

most of the previous year in juvenile institutions he had had little opportunity to

test the employment market. Peter Williams was another whose father had

worked in such areas but, as already noted, he became a psychiatric pensioner.

Three of the deceased had spent most of their lives in custody in one form or

another - juvenile institutions, homes or gaols - and had had little experience of

employment in the community. These included Malcolm Smith who was taken

from his family at the age of 11, Max Saunders who was sent to an institution at

the age of 14 and Glenn Clark who was made a State Ward at the age of four.

None of them achieved satisfactory adaptation to life in the general community

before they met their deaths. Shane Atkinson also spent a substantial period of

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his youth in institutions, but the Victorian authorities who were responsible for

him appeared to be much more anxious to give him opportunities to grow up out

of institutions than the authorities who dealt with the others in New South Wales

and Tasmania.

Paul Kearney worked regularly until he finally succumbed to his addiction to

alcohol and prescription drugs. Mark Revell also worked for a substantial

period until he was disabled by alcoholism. Peter Campbell, in his wanderings

through the eastern States, found a niche of employment in outdoor work such as

parks for several years before he was disabled by a growing mental illness. It is

interesting that he had succeeded in returning to regular work for a number of

years, notwithstanding that at an earlier period of his life he appears to have lived

simply from the proceeds of criminal activity.

The only one of the 18 deceased who does not appear to have evinced any desire

to work was Tim Murray. As he died at the early age of 19 one does not know

what would have happened had he matured. He was in gaol studying to acquire

clerical skills which would have fitted him for employment on release. In his

teenage years he had fallen into a homosexual drug-dominated sub-culture and he

supported his needs by what can only be described as professional criminal

activity. He grew up in the suburbs of Newcastle, not within any Aboriginal

community. His situation is not in any way typical, both because of the nature of

the white urban community in which he lived and his own problems of sexual

identity.

A general review of the persons who died suggests that they were willing

workers, and indeed a number of them gave considerable years of service to the

rural industries until their avenues of employment dried up. Unemployed or

pensioned, they became the victims of alcohol addiction. Others grew up in

communities where their natural careers would once have been in rural industries

but there was simply no employment available. Others had their lives so

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disrupted by institutionalisation at an early age that they effectively never had any

normal introduction to employment.

ABORIGINALS AND EMPLOYMENT

The stereotype so often put forward of Aboriginals as unwilling to work is

negated not only by the life stories o f these 18 individuals but by a study of

history and by a look at contemporary Aboriginal communities. It is clear that

unemployment is a very important factor in the complex of circumstances which

keep Aboriginals in a disadvantaged position in the community in south-eastern

Australia. I heard from Aboriginals, police and from other members of the white

community that drinking and conflict with the law increased considerably in

Aboriginal communities with unemployment, and markedly decreased when

programs to provide employment were introduced. Indeed even unpaid activity

like sport was seen as having a significant effect so that during the football

season in areas where there was a competition drinking and conflict with the law

decreased.

THE HISTORICAL BACKGROUND

A consideration of the history of Aboriginals in south-eastern Australia shows

that unemployment is not a problem for which Aboriginals can be blamed. It is a

problem created for them by the dominant white community. Before

dispossession by white invaders Aboriginal societies had a smoothly working

economy in which everybody contributed in accordance with community

expectations to what was needed to sustain the community.

When their traditional economy was disrupted Aboriginals sought new ways to

support themselves as pastoral workers in the pastoral areas, as seasonal workers

in agricultural areas, and by seeking in those agricultural areas to obtain access to

land for farming. In coastal areas there was a considerable history of Aboriginal

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farming until they were dispossessed from those areas by bureacratic bloody-

mindedness or by the envy of white farmers wanting their land. Opportunities

for employment in pastoral and rural industries dried up with mechanisation,

closer settlement and development of properties and in some areas, as in the

irrigation areas, as a result of competition from immigrants. Another niche of

employment in governmental bodies such as local councils and railway

authorities employment has also contracted. In the country towns in which

Aboriginals are concentrated there is usually relatively little private employment

in the towns and what there is remains within families or amongst a white

network and is rarely available to Aboriginals.

Aboriginals have never been accepted as equals in the wider community and they

have always looked to their own extended families and communities for the

respect, warmth and basis for self-esteem which is not available elsewhere. This

together with their strong ties to land and places of past association makes them

understandably reluctant in search of employment when they find that the places

in which the APB and the AWB and other pressures from the white community

have concentrated them are areas of declining employment. A number did accept

the opportunity to 'relocate' or 'resettle' in urban areas when offers of housing or

employment were held out to them. Many remain in urban areas, but many on

the other hand moved back to rural areas when unskilled and semi-skilled

employment dried up in the city and the pressures of inflation made life difficult.

A RURAL EXAMPLE

Many Aboriginal communities have been faced with the fact that the niches of

employment which they once filled are gone. New niches have not appeared and

they have been under very considerable handicap for reasons of geography,

education, experience and prejudice in competing in other fields. A typical

picture is Swan Hill, a city on the Victorian side of the Murray River. In a city of

some 10,000 people, there is a population in the vicinity of 500 Aboriginals,

who either permanently reside in Swan Hill and satellite areas, or use it as a

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primary centre for travelling in the region. At the time of the Commission's

hearing, there was not and had not been an Aboriginal member of the City

Council; there was no Aboriginal employed on the white collar staff of the

Council and only one on its outdoor staff; and there were only two Aboriginals

known to be employed by private enterprise in Swan Hill, one being a girl in a

shop and the other a long standing permanent employee on the printing staff of

the local newspaper. Almost all Aboriginal employment was of fairly recent

origin in government bodies, usually in specially designated positions servicing

Aboriginals, or in Aboriginal organisations funded by government and servicing

Aboriginals.

CDEP PROGRAMS

Nevertheless there is very strong evidence of the continuing desire of Aboriginals

for economic independence. It is simply untrue to paint a stereotype of

Aboriginals as 'dole bludgers'. There is tremendous enthusiasm for CDEP

schemes under which program many Aboriginals have deliberately chosen to

work for their unemployment benefit or other pension. The basic concept of

CDEP is to make the welfare payments received by members of Aboriginal

communities, including in particular unemployment benefits and supporting-

parents' pensions, into a fund from which participants are paid wages for work

on a chosen project. The scheme is available where ten or more persons wish to

participate and it can continue indefinitely. Participants can enter and leave the

project at any time and, if they leave, return to the normal receipt of their pension

or benefit.

The fund for the payment of wages is formed by pooling all the benefits and

pensions currently received by participants including their child allowance

supplements. To this fund can be added income earned by work under the

scheme, training supplements and other grants, or other money which may

become available from other organisations. In addition to these funds ATSIC

gives an untied grant to the group equal to 20% of the combined value of their

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pensions and benefits each year. This is called a CDEP Administration Grant

and is in recognition that the scheme will incur significant administrative costs for

bookkeeping, paying wages, insurance and perhaps management.

These sources of funds make it certain that all those participating can receive in

wages at least as much as they receive as pensioners or beneficiaries.

A very important feature is the CDEP Capital Support Grant ATSIC provides for

equipment and materials. Moreover projects undertaken through CDEP are

eligible for training support programs conducted by DEET and ATSIC and for

funding by ADC.

Although CDEP communities can and do undertake income-earning projects, eg

by hiring out equipment or performing work for local government councils, they

are not under pressure for commercial viability. The CDEP activities so far have

largely been involved in cleaning up and landscaping Aboriginal community

areas and performing 'local government' functions in relation to them.

There are a number of issues that arise in relation to CDEP projects, but it is clear

that they have proved very popular and show that Aboriginals are more than

willing to work in what they see as constructive tasks for their communities.

They have been extremely valuable in providing what has sometimes been the

first employment experience for young people who have grown up in times

where there has been no practical availability of regular employment for them.

WORKING IN ORGANISATIONS

The other very considerable proof of Aboriginal willingness to undertake

constructive work and to advance their communities can be found in the activities

of many Aboriginal organisations. In the chapter on land rights I discuss the

activities of Aboriginal Land Councils and in particular the employment

providing enterprises that have been established by a number of RALCs and

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LALCs. But there are many other Aboriginal organisations which have shown a

like initiative even though they have often faced considerable frustration in

getting access to the necessary resources and in getting recognition of their right

to decide and implement what they want. This is a matter to which I return in the

next chapter.

I found an outstanding example of Aboriginal achievement in the town of Echuca

which I visited in the course of the inquiry into the death of Harrison Day in that

town, and I have described it in detail in the final chapter of this report as an

inspiration for the future. But in many many communities organisations have

been formed and are carrying out all kinds of community work, and increasingly

looking to enterprises in which their people can find employment.

FUTURE DEVELOPMENT

The examples to which I have referred indicate very clearly that there is a great

deal of Aboriginal initiative and energy which if allowed to blossom can go a

long way to solving problems which 'mainstream' services have been

unsuccessful in dealing with. Success is much more likely if Aboriginals are

able to set their own priorities and work in accordance with their own cultural

values and control resources and their use.

Certainly there will be difficulties although, as I suggest in the next chapter, these

are not necessarily or even primarily all on the Aboriginal side.

One difficulty and a continually increasing one is that there is a generation of

young Aboriginals who have grown up in communities and in circumstances

where traditional fields of employment have been cut off and no others have been

substituted. They have grown up without experience of work and in many cases

have developed a sub-culture in which alcohol has a destructive role and

individual achievement is not respected. In some places dmgs other than alcohol

are becoming a problem.

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The rapidly growing population means that this generation without experience of

employment or achievement is growing very quickly in numbers. It is urgent

that opportunities for constructive work be provided. The greatest opportunity

for this particularly in mral areas is in Aboriginal enterprises and the success of

these depends on a real transfer of resources into Aboriginal hands. I later

discuss the New South Wales Aboriginal Regional Land Rights legislation as an

example of the imaginative way in which that problem can be tackled in south­

eastern Australia.

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CHAPTER 23 - HEALTH AND HOUSING

ABORIGINAL HEALTH

I will not attempt to review the notoriously bad state of Aboriginal health. It is

illustrated in all the lives of those I investigated, and directly implicated in the

three Victorian deaths and a number of those in New South Wales

The implications for children and for the future are very serious. The experience

of Clarrie Nean is a reminder of how much many young Aboriginals have been

handicapped by health problems. All his life he suffered from ear problems

which are notorious as possible reasons for poor performance of children at

school. The Superintendent of the Aborigines Welfare Board wrote in 1958 that

many children were brought to Sydney repeatedly for treatment of a similar

condition and very little if any success had been achieved in any of the cases.

Many Aboriginal children are still handicapped in this way.

Heart disease

The deaths of two very young men from heart disease, Thomas Carr at the age of

17 and Max Saunders at 27, reflect one of the staggering statistics of Aboriginal

health, or lack of it. Commenting on Max Saunders' death, DrTorzillo, a

consultant thoracic physician with considerable experience of Aboriginal

communities, said:

'Whilst death from coronary heart disease at such a young age is a

rare event, it does highlight the high incidence of coronary artery

disease amongst Aborigines. In fact, the most recent report of

mortality in New South Wales Aboriginal adults demonstrates a

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greatly increased chance of dying of coronary artery disease for

Aborigines compared to the whole New South Wales population.

The data suggests that young Aboriginal adults have

approximately 40 times the chance of dying from coronary artery

disease compared to the overall population risk. In many of these

individuals this disease will not produce any symptoms until the

first heart attack occurs. This markedly increased risk needs to be

brought to the attention of any staff who are responsible for the

care of young Aboriginal adults. It may be that more detailed

medical evaluation of Aboriginal prisoners should be undertaken

when they first enter the prison system. This more detailed

evaluation could be justified on the basis of current

epidemiological data about their increased risk of death from

certain conditions'.

It should be stressed that the high incidence of heart disease is not genetic, but

reflects the lifestyle of a minority population living under conditions of stress and

poverty, characterised by, amongst other things, poor diet and heavy cigarette

smoking.

Alienation from mainstream services

The extremely bad health status of Aboriginals has been well known for many

years, as has the very deficient state of medical services in the remote towns

where many Aboriginals are concentrated. As the events following

Mark Quayle’s death show, even such health services as exist are white-

dominated and close their ranks rapidly on a racial basis. A very disturbing

feature was the action of the Regional Director of Health, who not only took no

responsibility for the situation that caused Mark's death, but actively tried to stop

the investigation by the Complaints Unit of the Department. His reaction that an

inquiry should not take place because 'the whole town is stirred up' and 'the

white residents are afraid' showed that he attached less importance to the

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investigation of factors which threatened the very lives of Aboriginal people in

the town, than to pandering to the fears and prejudices of the white residents.

Aboriginal discontent with the health services available to them was strongly

voiced at a community conference held by the Commission in Wilcannia. There

were complaints of insensitive and even insulting treatment. Lack of transport,

poor telephone services and other conditions make the Aboriginal people

dependent on help from hospital and health workers who they feel do not respect

them. The matron said that nurses had an abrupt manner because they had been

trained in a white system where there was no time. However persons providing

professional health care services must accept an obligation to proceed with

understanding of their patients and to make them feel welcome and respected.

The need for Aboriginal Medical Services

These problems underly the very great importance of Aboriginal medical or

health services, and of the use of Aboriginal support and liaison staff. Some

examples from the cases are instructive.

The difficulties in getting Peter Williams to comply with treatment regimes while

free in the community may also have been a matter in which a community based

Aboriginal Medical Service could have helped. In his statement to the

Commission, Peter's father said:

'An Aboriginal Medical Service is a must in this area as we are

using taxis in some areas to get patients to the hospital. The

hospital waiting list is very big here, especially at outpatients, and

a lot of people just don't bother going because of that factor.

There is no other clinic in the area. The medical facilities for

Aboriginal children are certainly very limited and there is a big

need for our people'.

379

Dr Jane McKendrick commented:

'Peter Williams' life history is not unique. Many Aboriginal

families struggle to survive and live in poverty faced with

unemployment, poor housing and so on. Service agencies are

often ineffective in helping Aboriginal families because they are

not culturally appropriate.'

Health is linked to so many factors in Aboriginal society that it provides an

important fulcrum for efforts to advance self-determination. In southeastern

Australia Aboriginal Health Services, notably the longstanding services based in

Redfem and Fitzroy, have been amongst the most successful of Aboriginal

organisations. They provide examples of Aboriginal control of non-Aboriginal

professionals that have developed into partnerships not only successful in

technical terms, but forming major contributors to community strength and self­

esteem, and they should be an inspiration to similar action all over Australia, not

only in the health field, but in many others.

Aboriginal Health Services and prisons

In a number of reports I commented on the valuable contribution that Aboriginal

Health or Medical Services could make to the care of Aboriginals in prison. In

reviewing the history of Peter Williams Dr McKendrick commented that Peter

would have benefited from regular visits by an Aboriginal health worker or field

officer attached to an Aboriginal Medical Service. It was apparent also that the

doctors and psychiatrists who treated Peter while in gaol had no special expertise

in dealing with Aboriginals such as is acquired by those who work for the

Aboriginal Medical Services. Dr McLeod, the Director of the Prison Medical

Service, made it plain to this Commission that he is more than willing to co­

operate with Aboriginal Medical Services and make use of their expertise. In

Sydney at least the Redfem Service makes a significant attempt to attend some

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gaols. The obstacle to further involvement seems to lie in the limited resources

of the Aboriginal Services themselves.

Aboriginal health professionals

My visits to Health Services and hospitals underlined how few Aboriginal people

have attained professional status in the health system or even sub-professional

status or unskilled employment.

This problem has complex causes, including the failure of schools generally to

hold and train Aboriginal students, the unwillingness of Aboriginals to leave

home for training which is often available only in distant places, the isolation of

those Aboriginals who do achieve skills and employment, and a general

perception that Aboriginals are not welcome in many white institutions. Some

changes in the tertiary sytem have probably worked against Aboriginal

participation, particularly the conversion of nursing to a graduate career.

However there are tertiary institutions trying hard to increase Aboriginal

enrolment in this and other fields, encouraged by equity program funding from

the Federal Government.

Community services for sexual offenders and victims

The provision of services within the community for the care and treatment of

sexual offenders is obviously a very difficult subject and one that is not in any

way particularly related to Aboriginals. However it came to my attention in the

inquiry into the de.ath of Peter Williams. The evidence in that case showed that

the community seems to have little to offer sexual offenders by way of treatment

and care. Locking them up in gaol ensures the protection for the time being of

persons who might otherwise have been victims of their offences, but there

seems to be nothing offered to the prisoners in gaol to reduce the likelihood of

their reoffending when released.

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Peter Williams was a victim before he was an offender. His experience did not

become known and he received no help or counselling. This is another area in

which there is a need for culturally appropriate services.

HOUSING

Inadequate housing has long been a major issue for Aboriginals, as the history

chapter shows, and still is today. In Wilcannia housing remains not only a

problem in itself but a source of considerable frustration. There are said to be

64 houses for 654 Aboriginal people. Since 1974 Aboriginals' attempts to do

something about housing has been frustrated by bureaucratic processes. There

were many complaints about lack of consultation by officials involved in housing

and other government administration.

Inadequate housing has many repercussions, in health, education, alcoholism,

employment, to name some areas. Until adequate housing is available, other

programs are difficult to carry out.

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CHAPTER 24 - ALCOHOL AND DRUGS

RECOGNITION OF THE ALCHOI. PR OBI .F.M

There are few topics on which it is more difficult to have an unemotional

discussion than that of alcohol amongst Aboriginals. There are various reasons

for this, chief amongst which is the fact that drunkenness has been one of the

cruellest and most denigratory stereotypes imposed on Aboriginals. The

stereotype has been used to paint Aboriginals as a depraved group whom it is not

worth helping. It is based on ignorance and prejudice, as it leaves out of account

the large numbers of Aboriginals who are teetotallers or drink in moderation; the

many individuals who have courageously broken free from the grip of alcohol;

the historical context in which Aboriginal drinking habits were formed; the abuse

of alcohol by large sections of the white population, if not always so visibly; the

attempts by many Aboriginal communities to rid themselves of alcohol, attempts

often frustrated by greedy white interests; and the fact that other dispossessed

indigenous peoples encapsulated in an unsympathetic dominant community have

had similar destructive experiences with alcohol.

The unfairness of the way in which alcohol problems have been used to belittle

Aboriginals has made many Aboriginals and their sympathisers reluctant to

acknowledge or discuss the destructive effects of alcohol on many Aboriginal

individuals and communities. However today Aboriginals are speaking out

about the seriousness of the alcohol problem, and also voicing concern at the

increasing use of other drugs in some areas.

Alcohol is of enormous importance in bringing Aboriginals into custody, and in

many cases has been closely involved in the occurrence of deaths in custody. It

is also heavily implicated in widespread violence in many communities, not least

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violence against women and children. It is an issue that has to be openly faced,

discussed and dealt with in whatever ways are most effective.

Some people shy away from openly speaking about alcoholism amongst

Aboriginals for fear of being labelled as racist. It is racist to stereotype

Aboriginals as alcoholics or drunks, or to imply that it is not also a major

problem in the white Australian community. There are many Aboriginal

teetotallers and moderate drinkers, and many non-Aboriginal alcoholics. But it

does no service to Aboriginals to ignore the immense, deadly and widespread

effect of alcohol on many Aboriginal communities. Thoughtful Aboriginals do

not do so; indeed they increasingly speak of the potentially genocidal effects of

alcohol and other drugs.

To point out that alcohol is a part of contemporary Aboriginal culture is to offer a

truism that is of little assistance. It is also a part of the general Australian culture

(although perhaps occupying a different place) but it is often individually and

socially destructive there also. It is important to recognise that alcoholism should

be regarded not as mere individual weakness or aberration, but as part of a

reaction to the situation in which Aboriginal people have found themselves as a

result of historical processes of dispossession, oppression and racist

discrimination. By the same token, it reflects the high degree of unemployment,

overcrowded housing, lack o f community resources, and prejudice and

discrimination suffered today by many Aboriginals. But recognition of these

facts makes the consequences of alcoholism no more desirable to Aboriginals or

the rest of the community.

It does however emphasise the need to look beyond therapy for individuals

already enmeshed in alcoholism to fundamental social changes that will liberate

Aboriginals from the pressures that have made alcohol such a marked and

destructive feature of Aboriginal life. What these changes could be and how they

may be achieved are fundamental issues for anyone who seeks an equal place for

Aboriginals in Australian society, including a reduction in the grossly

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disproportionate arrest and imprisonment rates which carry with them the risk of

deaths in custody. Whatever they are, they cannot be imposed but must come

from Aboriginal community initiatives, or from genuine and effective

consultation with Aboriginal communities which is satisfying to them.

There are no easy solutions to alcohol abuse, which like the rate of

imprisonment, has its roots deep in the history and social situation of Aboriginals

and their relation to the rest of the community. It is not likely that widespread or

lasting success will be achieved without changes in the factors leading to low self

esteem, high unemployment and under-achievement in education. It has to be

recognised that these factors include a pervasive and often unconscious racism

towards Aboriginals in the rest of the community, some of it embedded in

attitudes, practices and institutions which are assumed to be neutral.

TREATMENT OF INTOXICATF.D PERSONS

The search for fundamental measures to change the circumstances of Aboriginal

life which are conducive to widespread alcohol dependence does not remove the

need to ameliorate the position of those already entrapped in such dependence.

The first step is to decriminalise drunkenness, as a punitive approach to the

condition is pointless, and only results in drunks being put at risk to their life and

health in unsuitable police cells where they cannot be properly cared for.

Alternative sobering up shelters are necessary, and then facilities for

detoxification and rehabilitation.

For over a decade drunkenness has been decriminalised in New South Wales,

and where it is necessary to detain an intoxicated person for his or her own

safety, use is made of a 'proclaimed place'. While police cells are legally

'proclaimed places', intoxicated persons may not be detained there if it is

possible to take them to a civilian proclaimed place. These are Government

funded, and administered by charitable or community organisations. Some are

managed and staffed by Aboriginals.

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The material put before me in cases in New South Wales, where I have visited a

number of police cells and proclaimed places, has convinced me of the value of

civilian proclaimed places to which intoxicated persons can be taken, rather than

to the totally inappropriate atmosphere of police cells. It is clear that a civilian

proclaimed place can provide more human interaction, counselling, safe

supervision, and health, hygiene and dietary care, than is possible in police cells.

While taking an intoxicated person home may be the best solution in some cases,

in others the person has no real home, or by returning home will impose

intolerable burdens on others, including children and those caring for them.

INTOXICATED PERSONS AND PROCLAIMED PLACES

Grafton, where Mark Reveil died, may be taken as an example of the value of a

civilian proclaimed place. In 1982 there was no proclaimed place under the

provisions of the Intoxicated Persoas Act in the Grafton area other than the police

cells, so that had Mark Revell been dealt with under that Act he would still have

been in the cells. That situation changed in 1984 with the establishment of the

Matthew Talbot Hostel in Grafton as a proclaimed place. The property is owned

by the St Vincent de Paul Society, but all the running expenses are funded by the

Department of Family and Community Services. The manager is a member of

Alcoholics Anonymous. Those who promoted the scheme originally wished to

establish a home for homeless people and were sceptical of the value of a

proclaimed place if it meant that a person with an alcohol problem was given a

bed for eight hours and then put out with no on-going assistance. However, the

only funds available were for the establishment and running of a proclaimed

place.

The manager's way of operating is to sit down and talk to people who come into

the Hostel and if they admit to having a problem and request help, he will keep

them in the Hostel for several days. He had tapped into the health network and is

readily able to get the assistance of the hospital and doctors or to arrange

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admission to the Detoxification Unit at Grafton Base Hospital. On many

occasions he has sat with people going through the detoxification process at the

Hospital and can use other volunteers from Alcoholics Anonymous for this

purpose.

It is apparent that such a place can offer both immediate and long term assistance

which is not normally available if a person is locked in a police cell, whether as a

prisoner or as an intoxicated person. The human contact, the opportunity to talk

with a sympathetic person instead of being alone in a cell, and the ready

availability of other assistance, as well as the more homely atmosphere, all tend

to reduce the risk, which is high in a police cell, that an intoxicated person may

seek to do acts of self-harm as blood alcohol concentration falls.

The Hostel has a good relationship with the local police, including a sergeant on

the management committee. The manager believes that police bring nearly every

Aboriginal person affected by liquor, whom they arrest, to the Hostel.

However, the Aboriginal people in the area mainly live out of town at places like

Baryugil and they do not often come to the Hostel.

The manager sees great value in the conferences organised four times a year by

the Department of Family and Community Services for the staff of proclaimed

places. He suggests that there would be value in the Department employing a

travelling instructor to visit all the centres, and give on the spot advice.

ALCOHOL IN A RURAL TOWN

Wilcannia may be taken as an example of the destructiveness of alcohol, and of

the need for facilities to deal with the problem. The town has been described as a

place 'committing slow suicide through alcohol'. Figures collected by police

showed that in January 1990 over $128,000.00 was spent at the four alcohol

sales outlets in Wilcannia. In a population of roughly 1,000 people that meant

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that $128.00 for every man, woman and child was spent on alcohol, perhaps

double that per adult.

A lot of arrests for street offences arise out of the Aboriginal practice of drinking

in public. Tremendous conflict is engendered in the town by the barring of

people from hotels and this has a considerable effect on the number of

Aboriginals in custody. In February 1989 the proprietor of the Wilcannia Hotel

had barred 70 people, 60 of whom were Aboriginal, 'for 99 years', although in

fact a small number had been reinstated. The ability of a licensee to impose a

'life sentence', excluding individuals from participating in one of the very few

opportunities for social contact in the town, causes great resentment. It is

unacceptable that such power, with such potential for causing suffering,

humiliation and conflict in a small town, should be exercised without

accountability.

There is clearly need for finding ways to reduce the consumption of alcohol and

to assist those affected by it. There is also an urgent need to address the

consumption of alcohol in very young people. Community members stressed the

need for a detoxification centre, as well as a rehabilitation centre, in Wilcannia.

The coroner made a recommendation in the Quayle inquest for a proclaimed place

but it was dealt with by bureaucratic buckpassing. It was addressed to the

Department of Health, which washed its hands of it because it was a matter for

the Department of Family and Community Services (FACS). However the

Department of Health did not pass the recommendation on to that Department.

When the Commission drew it to the attention of FACS, that Department decided

that what was needed was not a proclaimed place but a detoxification centre and a

rehabilitation unit, which was a matter for the Directorate of the Drug Offensive.

If that body was informed, it does not appear to have done anything. Meanwhile

local endeavour has been directed, so far unsuccessfully, at obtaining funds for a

rehabilitation unit from ATSIC.

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The figures for charges of alcohol related offences, for detentions of intoxicated

persons, and for expenditure on alcohol, make it plain that there is in Wilcannia a

desperate need for assistance which has not been treated seriously by

governments. Until the underlying causes responsible for alcoholism can be

dealt with by long term measures, there is a very urgent need to provide both a

proclaimed place and a rehabilitation unit.

Local opinion has placed priority on a rehabilitation unit because of its potential

to provide a cure for alcoholism for some people, in contrast to the 'band-aid'

character of a proclaimed place. This is a commendable long term view if a

choice has to be made, but clearly Wilcannia requires a proclaimed place as well.

Despite the statement in a FACS letter of 10 October 1989 that intoxicated

persons are generally taken home and are usually only detained when they pose

management problems, the detention of intoxicated persons in the unsuitable

conditions of Wilcannia police cells continues. In the first four months of 1990,

190 people were so detained. In one sense all proclaimed places are band-aid

measures, but they are recognised as important elsewhere. To refuse Wilcannia a

proclaimed place on the basis that a rehabilitation unit would be more valuable,

while not providing the unit in its place, is a deplorably cynical approach.

COMMIJNITY ACTION

While measures to assist and rehabilitate individuals are important for reasons of

humanity, and to divert intoxicated persons from police cells which are totally

inappropriate for their treatment, it is at the community rather than the individual

level that one may hope to make some real impact on the problem. Many

Aboriginal communities have shown their willingness to tackle the issue

constructively and their efforts should receive every support. Their efforts are

much more likely to be successful than those of mainstream or external agencies,

however well-intentioned.

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It is significant that destructive use of alcohol is a common feature of many

communities amongst indigenous peoples in other countries. It is reasonable to

see it as linked to the situation of peoples who have been dispossessed and never

restored to a tolerable position in society. It is in the working out of an

acknowledged and respected place for Aboriginals in Australian society, with

reasonable control over their own affairs, that the best hope of overcoming

alcohol problems lies.

Following the Lloyd Boney inquest the coroner recommended:

'That the government, Aboriginal Health Services, and other

medical resources combine as soon as possible to examine the

social and health problems in Aborigines created by alcohol

abuse.'

The Minister for Health responded on 30 November 1989, recognising the

ineffectiveness of current programs due primarily to unrealistic and inappropriate

expectations. He outlined departmental consideration of a community

Development model, with stronger emphasis on addressing the environmental

issues with a holistic approach, in line with the National Health Strategy. He

wrote:

'It is well recognised by Aboriginal people, Aboriginal health

service providers, and experts in drug and alcohol services (e.g.

Directorate of Drug Offensive) that alcoholism within the

Aboriginal community is a symptom of the broader issues that

affect health and well being. These include poor housing,

unemployment, inadequate education, loss of land etc. This is the

underlying reason for health services taking a community

development approach to management of alcohol abuse in

Aboriginal communities'.

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The approach is encouraging, but it remains to be seen how effectively the

measures mentioned by the Minister will be carried out, and what the result will

be.

CULTURAL REVIVAL

In the Kearney case I received a statement of an Aboriginal singer who has been

engaged in rehabilitation work. He came from Nowra and is now 42 and has

been sober for the last seven years. His problems with alcohol began at the age

of 15. His father and all his uncles died before they reached the age of 50

because of the effect of alcohol. His statement described the effect of withdrawal

and DT's while locked up. His view was that the most important thing for an

Aboriginal person in such circumstances was to have another Aboriginal whom

he could tmst with him.

He believed that most rehabilitation centres and Alcoholics Anonymous groups

were unsuccessful with Aboriginal people because:

'... they haven't got the cultural thing to give to you ... Alcoholics

Anonymous is good as a half-way house in that it gets people

sober enough to start thinking for themselves, but it still doesn't

push them into their cultural theme which you need'.

He rejected the notion that Aboriginal culture was dead in New South Wales, and

described in some detail the relevance he saw between his culture and

overcoming alcoholism. He described a method which he had applied to himself

and to three other people successfully, and commented that the nearest thing he

had seen to it was a drug and alcohol rehabilitation program amongst Indians in

Alberta. He spoke of cultural programs provided for Indians in gaol in Canada.

One thing that has become clear to me is that there are many different Aboriginal

experiences in breaking free from alcohol addiction. For some people Alcoholics

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Anonymous programs are suitable, for others they are not. Some people break

free as part of a change in life style associated with the adoption of religious

beliefs. For some involvement with Aboriginal political or social advancement

is the catalyst. Some break free unaided. There may well be many for whom a

making or renewal of contact with Aboriginal culture will give strength to break

addiction.

SUPPLY OF DRUGS BY GENERA!, PRACTITIONERS

Tim Murray died by an overdose of prescription dmgs he had accumulated from

attending the Prison Medical Service. The evidence relating to Paul Kearney

showed that, although he was occasionally refused, he found it remarkably easy

to maintain an addictive habit by obtaining prescriptions from general

practitioners. Asked by the Commission to review the material available, Dr Jurd

of the Royal North Shore Hospital said:

'It was pleasing to see that this man's desire to obtain drugs from

doctors had been thwarted, at different times, at three levels,

bureaucratic, medical and at the pharmacy. The only appropriate

response to the requests for drugs from a fulminant polydrug

abuser is "No". Detoxification, counselling, rehabilitation and

Alcoholics Anonymous should be offered. All of these were

offered to Mr Kearney. At the same time it is obvious that a

number of the general practitioners are too ready to prescribe

benzodiazepines and antidepressants'.

He said that, surprisingly, it is relatively difficult to obtain information on how

many doctors a patient has seen or how many prescriptions are written for that

patient. The usual means are to ask the patient where else he has been treated and

gain extra information from that colleague or institution. He said:

392

'When benzodiazepine dependence is uncomplicated (by alcohol

dependence, social disarray or lack of compliance) then outpatient

withdrawal is preferable. Clearly Mr Kearney needed to be an

inpatient'.

OTHER DRUGS

As in the white community, narcotic drugs are assuming a threatening role in

some Aboriginal communities. This is the judgment of Aboriginals and

Aboriginal organisations, as well as police and others. The problem has become

particularly acute in capital cities, where one frequently hears stories of tragic

deaths in the Aboriginal community. Aboriginals are becoming involved as

dealers as well as consumers.

Aboriginals are looking for their own ways to combat drugs in their

communities, but they also expect police action. The gathering of evidence on

drug trafficking presents special problems to police, and actions taken by police

have sometimes led to sharp conflict between police and Aboriginals. Clearly

there is need for dialogue between Aboriginals and police, to increase

understanding of the problems, and to explore the acceptable limits of police

methods.

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PART EIGHT - SELF-DETERM INATION

CHAPTER 24 - WHAT AND WHY

THE DEMAND FOR SELF-DETERMINATION

The demand for self-determination is a demand not only to have the management

of service delivery to Aboriginal communities, but to have the opportunity to

make decisions about policies affecting Aboriginals so that Aboriginals may have

some real control over what happens to them. It is a step beyond self­

management.

There is also an increasing demand for 'sovereignty', although often an

unwillingness to define what is meant. Here I will talk of self-determination in

the sense of Aboriginals through their communities achieving a high degree of

control over their lives and decisions affecting them. This is not a fixed or

defined concept. It relates to an indigenous people who have been dispossessed

of their land and resources, and encapsulated in the dominant society which

dispossessed them. It is unreal to think that that situation can be reversed, but

justice and harmony demand that Aboriginals should be accorded recognition as a

people, albeit an encapsulated indigenous people, and as much control over their

affairs as is possible in that situation, and resources to make that control a reality.

Self-determination is a developing concept, and its limits are being expanded all

the time as indigenous people in various countries and in international bodies

push their claims. What did not seem feasible yesterday may be acceptable today

and commonplace tomorrow. It is not for this Commission to pre-empt the

negotiation which must come by seeking to say what should happen. But it is

important, if custody and deaths in custody are to be reduced, that the frontiers of

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self-determination should continue to expand, so that Aboriginals, and

particularly young Aboriginals, can build self-esteem and see a future of dignity,

independence and opportunity.

During the inquiry into the death of Lloyd Boney in Brewarrina 'Tombo'

Winters, who is the senior Field Officer of WALS in Brewarrina, and also the

State representative of the North-Western Regional Aboriginal Land Council,

was asked by counsel whether he thought there was anything that Aboriginal

people needed to do to improve the relationship between Aboriginals and the

police. He replied:

Well, I am one of the blokes that feel that Aboriginal people are

always asked to be the improvers. We have to be the improvers.

We are the most looked after people in Australia. Everyone seems

to know what's good for us, and we don't seem to know what's

good for ourselves. I feel that through the land rights movement -

and if it's left alone - that the Aboriginal people of New South

Wales at least after 1998 will have sufficient self determination -

and will be able to become self sufficient - without being given

handouts by government, and without white people going around

saying what's good for us and what's not good for us. It is about

time we were left alone to say what's good for ourselves. You

know, people have been telling us for a long time as I can

remember - I grew up on a mission. I was told what was good

for me from the day I was bom, and they are still telling us what's

good for us'.

ABORIGINAL ORGANISATIONS

Aboriginal society had no widespread political structures, as it did not have to

deal with national or international issues, or with more than the local problems of

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a hunter gatherer society. One of its great challeges in cultural adaptation is to

find ways through which community self-determination can be expressed.

All over Australia there are great experiments in organisation building going on.

To illustrate by a modest example, in Walgett, the home of Clarrie Nean, I noted

in my report on his death that a very positive feature is the growth of Aboriginal

controlled organisations, through which Aboriginals are gradually increasing

their participation in decisions and activities affecting their own lives, and

reducing the debilitating feeling of powerlessness so widespread in the

Aboriginal community. There is an Aboriginal Legal Service and an Aboriginal

Health Service. The Barwon Aboriginal Community Limited has a considerable

range of interests and now operates a hire car business. It has acquired the

freehold of a hotel which will shortly reopen. The Namoi Aboriginal Co­

operative owns 22 houses in Namoi Village (as the Namoi Reserve has been

renamed). Other organisations cater for a pre-school and for housing on the

Gingie reserve, and there is a Land Council. All these provide opportunities for

self-determination, in the sense of Aboriginals exercising a greater degree of

control over some aspect of their lives, and increase the self-esteem, skills and

independence of Aboriginals. No fewer than three CDEP projects (Community

Development Employment Programs) are in operation amongst Aboriginals in

Walgett - one in the town proper, one in Namoi Village, and one in Gingie.

Through them Aboriginals have voluntarily chosen to 'work for the dole', that is

to receive their unemployment benefits only in return for organised work in their

communities or in community enterprises. It is also interesting to note that 40%

of the clients of the Aboriginal Medical Service are non-Aboriginal. The Service

has its own doctor, bulk-bills patients, and turns no-one away. Elsewhere in my

report I have descibed the remarkable developments around the Warma Co­

operative in Echuca, and the achievements of Regional Land Councils in New

South Wales.

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OBSTACLES TO SELF-DETERMINATION

Although for a considerable time there has been an acceptance of the objectives of

self-management or self-determination in Aboriginal affairs, and there have been

notable successes, the landscape of Aboriginal affairs is littered with proposals

and initiatives that never came to fruition, with disenchanted Aboriginals who

have worked hard for community projects which they believe were thwarted by

official action and white opposition, and officials who are puzzled and

disappointed that Aboriginals did not co-operate with their plans.

There is still a very great tendency, at least in the white community, to assume

that the problems frustrating advancement are the limitations of financial

resources or problems in Aboriginal communities. However the real situation

often is that the white officials and white communities are trying to pluck the

mote out of Aboriginal eyes without regard to the beam in their own. It makes a

mockery of notions of self-management or self-determination if Aboriginals are

always expected to conform to the norms of the dominant culture.

ORGANISATIONAL FORMS

A constant tension in many Aboriginal communities exists between the natural

forms of association in the community and the legal structures which are seen by

officialdom in the white society as natural, reasonable and democratic. It is not

surprising that Aboriginal housing companies, LALCs and other bodies have

often failed to conform to legal and bureaucratic requirements, particularly when

those who imposed them did not bother to explain them as they considered them

so natural and normal.

Aboriginal communities are densely interacting kin-linked groups with shared

histories, but they do not for that reason function in terms of a homogeneous,

impersonal community interest which all should follow. Such concepts are

characteristic of modem mass liberal democratic societies but they are not

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universal. They have a historical development in western civilisation where they

have emerged over centuries by painful processes of fighting privilege and

overcoming what was seen to be parochial and regional interests. Aboriginal

communities do not have a similar history behind them. Traditionally Aboriginal

societies functioned mainly as small kin-based hunting groups which came

together only for specific purposes and otherwise minded their own business.

They did not find the need to elect leaders or make decisions acceptable to a large

number of people. Many of the Aboriginal communities that now exist in south­

eastern Australia have not developed by any processes internal to Aboriginal

culture but have been created for white convenience by bureaucratic decisions of

protection boards and welfare boards or as the result of local government

restrictions and decisions. For most of the last 100 years Aboriginals lived

under quite despotic control of managers, police and other bureaucrats and had

little opportunity to take responsibility for decisions affecting their communities.

The election of representatives to act on behalf of a community and to bind its

individual members by their decisions does not seem a natural process, nor does

the binding nature of constitutions, rules and bureaucratic requirements.

Looking back over the history of many self-management projects it appears

almost as if they were set up to fail. To gain access to resources Aboriginal

groups have been required to set up certain kinds of organisations with certain set

rules. In the wider society with its experience of electing parliaments, local

councils, committees for clubs, trade unions, parents and citizens associations

and so on, rules about electing representatives, about representing one's

constituency, about the making of binding decisions, about adhering to a

constitution and to meeting practices, about looking to interests of the whole

community rationally and impersonally and avoiding nepotism, and about

accountability to funding bodies are all taken for granted. The fact that they are

not automatically taken for granted by Aboriginal people should come as no

surprise; that is what cultural differences are all about. Not only are such

practices often not understood by Aboriginals but in some cases there are other

taken for granted practices in conflict with them such as kinship structures.

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Much of the resistance to the apparently logical and democratic structure of

ATSIC can be understood in these terms.

No culture, least of all Aboriginal culture which has been subject to such stresses

and pressures, is static. It has evolved to meet many challenges and pressures

and will continue to do so, but it is important that those dealing with Aboriginal

communities should recognise cultural differences, should respect them as far as

it is humanly possible, and where different norms have to be insisted on, should

explain them and provide appropriate training in them rather than simply taking

them for granted.

CONFLICTS OVER HOUSING

Problems of conflicting values may be illustrated by looking at housing, an area

in which white officials have frequently been insensitive to differing cultural

values. Aboriginal wishes about the siting of houses, the design, family size, the

spreading of resources through the committee by staging construction and many

other matters have been ignored and simply treated as irrational proposals by

people who do not understand. If consultation does take place, results are

ignored or 'rational' requirements are laid down as a condition of funding or the

provision of houses or services. Because of such decisions imposed on them

Aboriginal housing companies cannot make decisions acceptable to their

members. There often comes to be conflict, not so much about what people

want, as about how far they should resist pressures from outside to have

something different from what they want. They may be told, in effect, 'If you

don't accept what we are offering, you won't get any houses. Other towns are

waiting'. If in the end the community ends up with something that is not rational

or fair from its point of view, there may be no acceptable basis for allocating

what is available and it will become the source of or the subject of factional

conflict.

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BUREAUCRATIC REQIJIREMENTS GENERALLY

Many other requirements, such as rules of meeting and voting, and minutes,

create similar problems. They seem obviously rational to people who are used to

them, often so obvious that they do not require explanation. But they may be

extremely puzzling and make little sense to people from a different cultural

background. The requirements may simply end up making people who have

formal self-government the hostage of white people on whom they are dependent

for guidance and advice.

The manifold requirements of form-filling and preparation of submissions

operates in a similar way. One often meets Aboriginal people wearied by the

continual work of making submissions that come to nothing and for which they

have little skills and resources. If they go to officials for assistance they often

feel that they are pushed into adapting their proposals towards what makes sense

to officials, although it may not be what they really want.

Three things are important here. One is that formal requirements should be kept

to a minimum and be as flexible as possible. The second is that those dealing

with Aboriginal people should be made sensitive to the different perspectives,

needs and cultural values of Aboriginals and to the importance of not dismissing

ideas and proposals just because they are different to what is usual. The third is

that where there are requirements, it should be carefully explained to the

Aboriginals involved what those requirements are, what the reasons for them are,

and how they can be fulfilled. There needs to be provision of training, not only

of individuals to carry out the task, but of the community generally so that the

need for the requirements will be understood, and those who are trying to

implement them will have community support.

Policies of self-management and self-determination are undermined simply

because bureaucrats function in ways that they deem to be appropriate and

normal. That is they act within their own cultural priorities which are those of

401

the wider society. When the rules of bureaucratic practice are broken, whether

the fault of the local organisation or not, a bureaucratic take-over often occurs

rather than a process of offering assistance, advising, or seeking clearer direction

from the community.

ECONOMIC VIABILITY

Particularly in this era of economic rationalism, great importance is attached to

'economic viability', the ability to make as big a financial profit as possible, or at

least avoid a financial loss. This evaluation can be crippling to Aboriginal

projects, which are commonly established for other reasons than profit. The

reasons may include the healing of a fractured community, cultural revival, the

bringing of delinquent adults or juveniles back into a constructive way of life, the

re-establishment of ties with the land, the provision of employment, or many

other matters which do not figure in narrowly focused balance sheets.

This is well illustrated in the experience of the Cummeragunja community on the

New South Wales side of the Murray River not far from the town of Echuca.

Since the Yota Yota Land Council gained title to what remained of the

Cummeragunja Reserve in 1985, the people have been attempting to find ways to

use the land productively for the benefit of the whole community. There are a

substantial number of Aboriginal people living on the reserve and others who

would like to return to it. It is a very beautiful area to which the people are

greatly attached. Their priorities have been to develop some kind of agricultural

production which will provide food and employment involving the maximum

number of people, reducing dependence and building pride and initiative. When

they sought assistance from ADC it engaged an agricultural consultant at a cost of

$10,000. He advised that the most profitable use of the land would be achieved

by clearing many of the trees, laser-levelling the ground and planting the whole

area as a wheat farm. An expensive permanent irrigation system would be

installed and there would be extensive use of chemicals. As the development of

the property would be a highly mechanised and technical operation there would

402

be no role for the Aboriginal residents in it and after the property had been

developed, with a large capital loan to be repaid, it would provide regular

employment for one and a quarter people. The ADC insisted that this rational

expert advice should be followed if it was to advance money to the community.

In fact the proposal was the negation of everything that was important to the

people. What was highly efficient and economically viable from an economic

point of view was absurd in terms of community development, opportunities for

productive employment and development of skills, the building of self-esteem

and independence, the values which were important to the Aboriginal

community. Fortunately the Cummeragunja community has had the courage to

adhere to its values, but no doubt it will be regarded officially as a group of

irrational people who do not wish to advance and refuse to be helped.

Apparently, as is referred to elsewhere in this report, similar ideas are creeping

into the administration of claims under the A b o r ig in a l L a n d R ig h ts A c t in New

South Wales. Economic viability is being regarded as an important criterion for

granting a claim when land may have much more important values for

Aboriginals.

THE CLASH OF VALUES OR PRIORITIES

Many problems arise from the fact that officials and governments and others

dealing with Aboriginals take for granted and as indeed unarguable values which

may be totally inappropriate to the circumstances of Aboriginal communities.

While the great value attached to economic viability by the dominant society is

one of the most destructive obstacles to the advancement of many Aboriginal

communities, the clash of values occurs in many areas and these relate not to the

needs of people at a particular stage of development, as was the case in the

Cummeragunja conflict, but to cultural differences. For example different forms

of sociality are expressed in the spacing of houses. In Aboriginal communities

outside space is a crucial aspect of social relations. Not only do people live

outside their houses to a considerable degree but the reduction of stress is not

403

achieved by retiring inside, but by moving away, so that space between houses is

an important reducer of tensions and facilitates preferred patterns of

communication.

White people also have cultural values but they are different. For instance

houses are typically the private areas of nuclear family life, while outside the

house is public space. Culture is not something which Aboriginals have while

the rest of society has normalcy. The cultural peculiarities of bureaucratic

practice which reflect the priorities of the wider society should be seen as a major

source of continuing racial inequality. It is not always necessary for bureaucrats

to understand precisely how Aboriginals see things. What is needed is that they

should accept that if Aboriginals think something is important, then it is

important. Any other approach makes a mockery of ideas of self-management or

self-determination.

THE RECOGNITION OF ABORIGINAL CULTURE

What is at stake then is a recognition that Aboriginal people have a distinct

culture. They are not people who simply share the values of the rest of the

community but are too backward or irrational to appreciate how to achieve them

so that they must be guided by experts. If they are to be accorded self­

determination this must mean a recognition of cultural differences and an

acceptance of its validity. If Aboriginal people are simply regarded in the same

category as other members of the community, apart from the fact that they have

special 'social problems', the specific historical, social and cultural differences of

Aboriginal existence will be ignored. The identity of Aboriginals as a people will

be denied. The solution of 'Aboriginal problems' will be seen simply as altering

the Aboriginal community so that its members conform statistically and in other

ways to the members of the general community. What is needed is a recognition

that the dominant community itself may have to change to recognise the rights of

the Aboriginal community.

404

The mainstreaming of services to Aboriginals disempowers Aboriginal

communities and denies them self-determination because they see change as a

one-way process of bringing Aboriginals into conformity with the rest of the

community. Aboriginals are expected to be malleable and to change and the

assistance that they are offered is to help them assimilate.

Hence these issues can be seen as part of the major issue of the recognition of

Aboriginals as a people, the indigenous people of the country. Like the

indigenous people of other countries they are concerned with the struggle to

retain or gain 'traditional lands, to cope with government management of their

affairs and to survive as culturally distinct people within nation-states'.44

N Dick, ‘Aboriginal Peoples and Nation-States: An introduction to the analytical issues’ in ‘Indigenous Peoples and the Nation-States' (1985)

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CHAPTER 26 - LAND RIGHTS

THE SIGNIFICANCE OF LAND RIGHTS

Earlier in this report I expressed the view that fundamental to securing the real

changes in the position of Aboriginals in this country that are necessary if

disproportionate custody rates are to be reduced is the recognition that

Aboriginals are the dispossessed people of this country, the reaching of some

real reconciliation with them, and the development of real opportunities of

independence and self-management. Fundamental to the latter process is

securing the transfer of land, or, failing land, other resources into Aboriginal

hands in a significant degree.

In some parts of Australia, notably the Northern Territory, it has been possible to

make progress in these directions by the recognition of the traditional ownership

of land by groups still living on or near that land. In south-eastern Australia the

long-standing and almost complete settlement of land precludes such a program.

Nevertheless in New South Wales there has been a very important experiment in

land rights legislation which has gone a not inconsiderable distance to achieving

some of the objectives which I have outlined, and has at least indicated ways in

which the process might be carried further. For that reason and particularly

because of the value it may have in lessons for other States, I describe the New

South Wales legislation in this report.

My attention was particularly drawn to the relevance and potential importance of

this legislation during the inquiry into the death of Lloyd Boney in Brewarrina.

I have quoted in the chapter on 'Self Determination' a statement by 'Tombo'

Winters, in which he linked the land rights legislation to self-determination and

to escape from dependence on the white welfare system. This is perhaps part of

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the argument for land rights that white people can readily appreciate, but far from

a full statement of what land means to Aboriginals.

A CONTINT JTNG SENSE OF PLACE

In recent times there has been a growing appreciation of the great significance,

spiritual as well as economic, which land has for indigenous people in many

parts of the world including the Aboriginals of Australia. Its taking during the

white invasion of Australia not only set the stage for social disintegration, it

deprived Aboriginal people of their land and material livelihood, setting the stage

for their economic deprivation and continuing poverty in a community where

many of their values were rejected and their skills in limited demand.

For most white people of industrialised western civilisation, deep relationships

with land lie in the distant past and the pangs of separation from land which are

keen and recent to Aboriginals are cast out of collective memory. For many

Aboriginals their traditional land retains a deep significance. While in south­

eastern Australia specific ceremonial and ritual ties have been lost in the aftermath

of dispossession, compulsory movement, concentration and dispersal of local

groups, most Aboriginals still strongly identify with a traditional area. It remains

an important part of their identity.

Reviewing the lives of Aboriginals who died in custody in south-eastern

Australia in the last ten years one is struck by the very strong sense of place and

of attachment to a traditional piece of country which survived dispossession,

forced movement, dispersion and concentration that Aboriginals have suffered.

The territories to which Aboriginals feel attachment do not of course necessarily

correspond with boundaries recognised by Europeans. To Aboriginals the

Murray River is not a boundary but a feature of a territory which extends on

either side. Harrison Day, James Moore and Shane Atkinson moved freely

amongst kinsfolk and communities on both sides of the great river.

407

Most of the other Aboriginals whose deaths were investigated also had a strong

connection with a particular area, sometimes centred on one town as with

Clarence Nean in Walgett, sometimes on a number, as with Lloyd Boney who

ranged between Goodooga, Brewarrina and Bourke, or Peter Williams who

moved between Lismore and Grafton. Young Thomas Carr had spent his life in

Dubbo and Wellington, and Mark Quayle in Wilcannia and Broken Hill.

Although Bruce Leslie moved in to live in Tamworth when he became a

pensioner, he retained his affection for Forked Mountain Reserve near

Coonabarrabran where he had been bom and wanted to be buried. The two

Tasmanian bom Aboriginals whose deaths were investigated had grown up

outside of traditional communities and without attachment to particular land, and

spent substantial time wandering on the mainland. Both became alcoholic at an

early age and both hanged themselves in a police cell shortly after arrest. The

two New South Wales Aboriginals who grew up cut off from traditional lands or

communities, Tim Murray and Paul Kearney, both died in custody from self-

inflicted dmg overdoses.

Of all the deaths there was only one who had deliberately cut himself off from his

community and his traditional area. That was Peter Campbell who had not been

in touch with his home in South Australia for seven years. He was suffering a

mental illness and ended up taking his own life in Long Bay Gaol.

A CONTINUING DEMAND

Those who are tempted to dismiss the land rights movement as a modem political

artifact would do well to look at the historical continuity which lies behind it.

The protection and, after dispossession, the restoration of their relations with

their lands has been a demand of Aboriginal communities since the invasion

began in 1788. The most violent conflicts of the invasion were battles about

access to land as an economic resource and as a social and cultural base. Defeats

in military conflicts did not end Aboriginal aspirations to regain some of their

408

land. Rapidly incorporated into the rural workforce in pastoral and agricultural

areas, Aboriginals soon began to demand recognition of their land rights. By the

1860s some Aboriginals in the south east of the continent had begun to squat on

small areas of their traditional country, to reassert their ownership over their

lands and to farm them, often with great success, against the opposition of

surrounding white land holders. In the early 1880s a number of these pieces of

land became the first Crown lands reserved for the use of Aboriginals in New

South Wales: 63% of the lands reserved by the Aborigines Protection Board in

its first decade of existence were these fertile, independently farmed or settled

Aboriginal lands.

Aboriginal people's petitions spelled out what it was they wanted from these

lands and from the Government. Groups claimed lands in theirtraditional areas,

which they hoped would provide them with an economic basis, with enough land

to use their skills in farming to become self sufficient. They asked for

inalienable title, saying quite specifically they wanted the lands never to be sold.

The fundamental intertwining of economic and cultural values was repeated in

petitions and demands made into the 1900s.

While Aboriginal people had hopes that these lands would allow them economic

independence, many of the available pieces of land were simply not large enough

or fertile enough to support the extended Aboriginal families living on them. The

areas where Aboriginal people were able to fulfil their hopes were the fertile

coastal areas from the Burragorang Valley west of Sydney up through the Hunter

River into the Macleay and Nambucca River areas. Here Aboriginal people had

been able to secure areas of between 30 and 80 acres of fertile land and began

farming maize, pumpkins and other vegetables, crops which were labour

intensive and which did not require high amounts of capital to begin farming.

These independent farms continued to support Aboriginal families through into

the 1920s. They were lost not because of any lack of skills or persistence. The

lands were lost instead by a new push for closer settlement from surrounding

white farmers from the 1910s into the 1920s.

409

In the less fertile areas of the State, and on the coast in the far north, where

Aboriginal people had not been able to secure the most fertile land against a

higher pressure of white settlement, they had less access to land to farm

independently. Many people were employed in the pastoral industries of the

hinterland of the far north coast, the sheep properties along the northern slopes,

and across down the course of the Darling River. Aboriginals here retained a

high degree of association with their traditional lands, working on pastoral

properties from camps where whole communities were encouraged by

pastoralists to live permanently, in order that their labour could be recruited

through the busy seasons of the industry's year.

Right through to the 1930s Aboriginal people in many areas of the pastoral

regions were able to continue to associate relatively freely with their own lands

for social and cultural purposes, while they earned either wages or rations from

working within the industry. Reserves were created in these areas far more on

white demand, from the desire by white settlers to ensure an accessible work

force when pastoral properties were divided, or to isolate and contain Aboriginal

residence. Only in the early years of the 20th century was increasing pressure

placed on Aboriginals in the pastoral areas to move away from their traditional

country. Wherever possible Aboriginals in these areas attempted to retain their

links with their lands. They resisted enforced movements away from their

country, and where they came under pressure because of lack of employment or

lack of housing or education to do so, they moved into towns which were

situated at the closest point to their traditional language area.

THE SECOND DISPOSSESSION 1915 TO 1927

It was the people of the coast who suffered the first and most intense pressure on

their land holding in the 1910s. As the white population increased, so demands

intensified for Aboriginal people to be forced off the fertile patches where their

farming had demonstrated the richness of the lands. From 1917 when soldier

410

settlement added to the pressure of closer settlement until the onset of the

depression in 1927, Aboriginals all the way along the coast began to be forced

off their farms. They were often evicted at gun point and under threat of arrest,

turned away from farms where their crops were ready to be harvested, and

forced to take their families and their belongings to the few remaining reserves,

from which they launched a campaign to demand their land back.

In the early 1920's the Australian Aboriginal Progressive Association was

demanding an end to all revocation of reserves and enough land for economic

independence for each Aboriginal family in New South Wales in areas of

significance to them. Although the Association gained press publicity and

embarrassed the Government towards making changes to its removal of children

policy, it had no success in stemming the loss of lands. Thirteen thousand acres

were lost between 1917 and 1927. Seventy five per cent of those lost lands were

from the North and Central coast of New South Wales and they included

virtually all of the independently settled farming reserves. But the Aboriginal

demand for land did not disappear.

CHANGING ECONOMIC CONDITIONS 1930-1970

The unemployment of the depression greatly increased the pressure on

Aborigines Protection Board funding and resources, because Aboriginal workers

were denied unemployment benefits through the normal government channels.

The rapid increase in numbers on Board stations and reserves led the Board to

decide to concentrate the Aboriginal population in a series of centralised

supervised stations. The platforms of the Aboriginal parties in the 1930s show

that while by force of this pressure equal civil rights had become their most

urgent political demand, their underlying and long term demands continued to be

land settlement with the aim of acquiring economic independence for Aboriginal

people across the State.

411

The boom years of the 1950s created enough opportunities for unskilled

labouring to allow Aboriginal people to escape the concentration policies on the

Welfare Board's managed reserves. Through the 1950s and into the 1960s

Aboriginal people continued generally to be associated with the areas they

regarded as their traditional country. Changes continued however in the structure

of the rural economy throughout New South Wales, and increases in

mechanisation and immigration led to the disappearance of the places of unskilled

labourers which Aborigines had consistently filled in most rural industries.

These pressures forced many Aboriginal families to make decisions about

moving to the urban industrial areas where jobs were offering, and where it

seemed possible to escape some of the more suffocating discrimination of small

country towns. The people who went to the cities tended to be young people

who were able to break into the labour market, although families with children

went also, seeking non-discriminatory schooling. Yet there were many

Aboriginal people who continued to demand the right to live in the town closest

to the areas which were of significance to them. Their tenacity in asserting their

rights to live in those areas despite the persistent pressure of white prejudice and

segregation was grudgingly recognised even by the Welfare Board's District

Officers. They criticised Aborigines as deeply conservative because they were

reluctant to disassociate themselves from the communities and extended family

networks within traditional country.

In the 1960s pressure also increa ed on the last of the pastoral areas on the far

north coast of New South Wales. For the first time, the inland Bandjalung faced

removal from the pastoral camps which had ensured their continued association

with land of significance. Forced into small towns like Kyogle and Stony

Gulley, they met intensifying discrimination and the loss of their jobs as well as

loss of access to their land. With their coastal relations, they organised to

regenerate the calls for Aboriginal rights to land and for recognition of their

cultural distinctiveness, and to develop strategies for an economic base on the

lands they then held. Despite frustrations, these communities persisted, and

412

were joined both in calls for land and in plans for enterprises by Aboriginal

communities on the south coast.

The emphasis in public campaigns for land shifted around 1966 to supporting the

Northern Territory struggle of the Gurindji people and the continued demands of

those at Yirrkala for recognition of their rights to land, but the New South Wales

activism of the early 1960s continued throughout that decade and formed the

basis for the renewed calls in the south east for land rights from 1970. This

movement resulted in political pressure being exerted on the State Government in

attempts to stop the sale of remaining Aboriginal reserves in 1969 and 1970,

including the Drews' land at Kinchela which had for many years formed the site

of the Boys Home.

THE LANDS TRUST 1973 TO 1983

The New South Wales initiated Tent Embassy in 1972 on the lawns of

Parliament House in Canberra dramatised demands for land as compensation for

dispossession, for land as a social and cultural resource and for land as an

economic base, and had a role in pushing the Federal Labor Government, elected

later that year, to mount an enquiry into Northern Territory land rights. In New

South Wales the mobilisation of opinion in relation to land led the State

Government in 1973 to establish the Lands Trust.

The Lands Trust was an elected body of 10 Aboriginal people from various areas

of New South Wales, whose brief was to advise the Minister for Aboriginal

Affairs. The Trust was unsatisfactory to Aboriginals calling for recognition of

their rights to land for a number of reasons. It had no power independent of the

Minister, who could override its decisions and indeed sell land without its

permission; the ten members of the Trust were isolated from their communities

by the centralised structure; and the amendments to the Act allowed no transfer

of title from the Crown and its holding body the Lands Trust to Aboriginal

communities themselves.

413

INSECURITY GROWS IN THE 1970S

Aboriginal dissatisfaction with the Lands Tmst intensified through the mid 1970s

as Aboriginal communities around the State faced increasing pressures. In the

mid-1960s, the Department of Housing decided not to build new Housing

Commission homes in the country towns where Aboriginal populations were

highest but to transfer housing planned for these populations to urban areas

because employment prospects were believed to be better there. The

Government-sponsored 'voluntary family resettlement scheme', known as

r e lo c a tio n , added to this pressure. Aboriginals believed to be leaders of social

networks were targeted in order to stimulate chain migration. They were often

encouraged to move to an urban industrial area by the offering of a house and

job, even when these individuals already held jobs in their rural town.

The new cotton industry provided significant numbers of jobs for Aboriginal

people, but they were arduous and lasted only for a few months of the year.

Towns profiting from the cotton industry did not wish to attract large permanent

Aboriginal populations, but wanted them to move on rapidly at the end of the

season's work. Councils refused to supply anything more than the most basic of

services and amenities to seasonal workers, who consequently lived under very

poor conditions.

In 1975 the manufacturing industries in urban areas began to be affected by the

recession, with loss of the unskilled and semi-skilled factory work to which

Aboriginal people had often come in the decade before. Rising inflation

increased the cost of living in the cities, particularly for families with a number of

children, and the trend which had been apparent through the 1960s for

Aboriginal people to move towards urban industrial areas began to reverse. This

led to a heightening of the concern about loss of Aboriginal lands in rural areas.

In 1976 this concern among a wide range of Aboriginal communities led to the

formation of the New South Wales Aboriginal Land Council. The most active

414

members of this independent organising body were from the south coast and the

north west and far west of the State. These communities were facing increasing

hostility and conflict with mral white townspeople, with resulting residential

insecurity, as they attempted to break down the segregation of the towns'

services and residential areas. Unlike the movements throughout the early 1970s

to establish service organisations such as the legal and medical services, which

tended to have been initiated in the cities, the major thrust for the land rights

movement tended to emerge in the late 1970s from rural areas which were under

continuing or increasing pressure.

LAND RIGHTS IN THE 1970S

The years from 1976 to 1980 saw a series of meetings of the New South Wales

Land Council in various areas, often at sites from which Aboriginal people had

been forcibly removed. The meetings represented a symbolic confrontation with

all of the policies which had sought to separate Aboriginal people from residence

on lands of significance to them. The restoration of significant areas of land was

proposed as the essential foundation of just and sound future development. Land

was not seen as the only need of Aboriginals, nor were rights to land believed to

be the immediate or total solution to the economic and other disadvantages which

Aboriginals faced. Rather land was seen as a precondition for effective

programmes in specific areas such as housing and health.

A series of land claims from various parts of the State were presented to the New

South Wales Government from around 1978. These claims called for land as

compensation for effects of the invasion on their original ownership, their

population and independence, and as a path to economic and social

independence.

Each of the claims focussed on defined and small areas of land for which a form

of title was sought which would be inalienable, to be held in perpetuity by

415

representatives of the Aboriginal community and never to be sold or otherwise

lost.

Despite the alarm of white landholders at the emergence of these claims, they

were all relatively small-scale, pragmatic demands, with strong indications of

interest in negotiation and accommodation with white neighbours. The claims

were, however, demands for recognition of separate Aboriginal rights, as well as

for Aboriginal rights to participate equally in the political processes of the

European system which would inevitably shape their lives.

SELECT COMMITTEE RECOMMENDS LAND RIGHTS

In 1979 the Wran Government agreed to enquire into a number of aspects of

Aboriginal conditions through a joint Parliamentary Committee and, under

Aboriginal pressure, agreed to make land the priority area for the inquiry. The

Committee recommended in 1981 that land rights should be implemented in New

South Wales, as a just response to demands by Aboriginal people, which could

provide an economic base to enable Aboriginal people to escape from dependence

on Government funding permanently, and could be achieved with little detriment

to white citizens of the State.

The Select Committee did not recommend that Aboriginals should be able to

claim land alienated previously, either by freehold or leasehold. For available

Crown land it recommended a claims process, in which Aboriginal communities

could claim on the basis of their need for a project which would provide either

economic resources or cultural or social resources; on the basis of long term

association, that is as an area where people had lived and developed a strong

sense of significance in terms of that place, such as an old reserve; or on the

basis of traditional rights that is, that Aboriginal people demonstrated their

associations in traditional terms with pieces of land. All Aboriginal people were

seen as entitled to compensation for the intense pain and suffering which had

occurred since 1788.

416

As only limited areas would be available for claims, the Committee recognised

that purchase would be the main means by which Aboriginal people would

acquire a significant share of the land of the State. It proposed an innovatory

scheme to fund the purchase of land from a percentage of the land tax revenue

gained by the State Government. It was argued that this would be an equitable

and just means to fund an Aboriginal land acquisition programme: the taxpayers

who funded Aboriginal land acquisition would only be those who were already

profiting from substantial holdings of land.

A crucial recommendation was that the title of land acquired by claim or purchase

was to be held in a new form of title, called Aboriginal land, which would be

held communally and in perpetuity: the land was to be inalienable. This

recommendation fulfilled the Aboriginal demand voiced from at least the 1880s

for land which could not be sold.

Finally the Select Committee proposed a structure for organising the

administration and acquisition of Aboriginal lands which reflected the view put to

it strongly by many Aboriginal people in evidence, that centralised bodies like the

Lands Trust were inadequate to represent their interests. Aboriginal submissions

had called for the recognition of culturally appropriate bodies, by which they

meant not romanticised approximations to 'traditional' organisation, but the

historically and contemporarily demonstrated preference of New South Wales

Aborigines for organising primarily in regional bodies, usually reflecting

developments on traditional culture areas, which then enter coalitions with other

regional bodies.

The Committee recommended a three-tiered structure. Local Aboriginal Land

Councils (LALCs) would be the bodies which held title to land and which

ultimately made the decisions about acquisition and use of that land. All

Aboriginal people with an association with land in the area of the LALC could be

members. The major organising bodies were to be Regional Aboriginal Land

Councils (RALC), made up of two representatives from each LALC within the

417

region. The RALC would co-ordinate the LALCs' administration and would

enable them to organise regionally to make decisions about distribution of funds,

strategies for land purchases and sharing of machinery and other resources. The

regions were felt to be units large enough to allow economies of scale and unity

of political organisation, but still accessible geographically and socially, which

would make the RALCs tmly accountable to their constituents at a local level.

Finally, there was to be a greatly reduced State body, made up of one

representative of each RALC, who would convey regional opinion and be bound

by regional decisions. The State Land Council was envisaged as doing little more

than liaising with the State Government.

WHITE OPPOSITION TO LAND RIGHTS

There was considerable opposition to the proposals, particularly among white

residents in rural areas. Much of this was based on ignorance or

misunderstanding, and was sharpened by campaigns conducted by sectional

interests. Worth noting here is one widespread response which reflected the

development of an ideological reaction to what had been, after all, only a minimal

transfer of resources to Aboriginal peoples since 1972, including for example

Abstudy and other benefits earmarked for Aboriginal people to compensate for

decades of educational disadvantage. Such benefits were portrayed by the mid

1970s as an attack on the fundamental principles of 'equality'. Hypocritically

previous discrimination against Aboriginal people was ignored in this argument

in which it was asserted that all people were now 'equal'. To 'give' Aborigines

land or other special benefits would, it was argued, undermine democracy. Fear

within the Labor Party that opposition to the land rights proposals would cost the

party its little remaining rural support led to delays in implementing the

Committee's recommendations.

418

THH LAND RIGHTS A C T 1983

When a draft bill was produced, little time was allowed for consultation with

Aboriginal communities about the changes from the original recommendations.

These included reducing the amount of land which could be legally claimed to the

barest minimum and modifying the proposed administrative structure by

removing Regional Land Councils. Only vocal Aboriginal resistance stopped this

ill conceived attempt to cut expenditure at the expense of effective Aboriginal

organisation.

As it eventually went to Parliament, the Bill retained the concept of inalienable

freehold title45 and the structure of maximum representation and decision making

power at the local and regional levels, the LALCs and RALCs. It maintained

also a commitment to facilitating Aboriginal purchase of land, in recognition of

the inadequacy of the claims process to return land to Aborigines. Purchasing

was to be funded by 7.5% of land tax revenue which would pass to the State

Land Council each year for 15 years. One half of this was to go immediately

into a fixed deposit fund which would accrue interest each year for 15 years.

The other half of the funding was to go into an account which could be drawn on

each year to purchase land. At the end of 15 years funding would cease, by

which stage the interest generated by the investment fund would provide an

ongoing and permanent source of funding for Aboriginal land acquisition and

indeed for Aboriginal community support. This has emerged as an innovative

and important area of the Act, producing the only Land Rights legislation in the

country which has a substantial and pragmatic funding mechanism.

The Act as finally passed reflected the contending forces outside and inside

Parliament. The Minister for Lands was given virtually unlimited rights to defeat

any claim by issuing a certificate which asserted that the land was required for an

essential public purpose, and which was not open to judicial review in any way.

This was achieved not by creating a new form of title, but by vesting land in land councils which did not have power to sell or mortgage,

419

In the months prior to the Bill's introduction to Parliament, it had become public

that in 1979 the Crown Solicitor had advised that revocation of the majority of

Aboriginal reserves since 1913 had been illegal. Given the Government's

intention to pass land rights legislation, Aboriginal people argued that injustice it

ought to regard this old Aboriginal reserve land as still being the property of

Aboriginal people, particularly as so many land claims related directly to lost

reserve lands. The Government however argued that as much of the fertile

reserve land on the coast had been alienated to freehold, to support the restoration

of these lands to Aboriginal people would be to undermine the basis of real

property in the State. Although the Solicitor-General advised in late 1982 that the

revocations were effective, the Government was not willing to allow the matter to

be determined by the courts. It insisted that it would pass the A b o r ig in a l L a n d

R ig h ts A c t only if there was concurrent and associated legislation which would

retrospectively validate the revocation of all of the lost reserves.

The A b o rig in a l L a n d R ig h ts A c t 1983 transferred to Aboriginal land councils the

lands held by the Aboriginal Lands Trust, which amounted to around 6,000

acres. The retrospective validating legislation passed in the same session

validated the revocation of 20,000 acres of Aboriginal reserve lands. The

amendments and the retrospective validating legislation ensured that initial

Aboriginal response to the Act was suspicious and negative. However despite

their severe criticisms, a number of the activists who had been most consistently

involved in land rights organisations since the mid 1970s believed that the Act

provided at least a basis from which to work towards a more satisfactory

organisation and so they agreed to participate in the Interim New South Wales

Land Council, the first body established by the Act, with a brief to begin the

process of setting the Act in motion. This body was not empowered to acquire

land, but to assist local communities to establish their organisational base.

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THF. WORKING OF THE I A N D R I G H T S A C T

Despite difficulties, some of them genuine but many of which have been

magnified out of all proportion by opponents of the legislation, the A b o r ig in a l

L a n d R ig h ts A c t of New South Wales can be seen in retrospect as one of the

most important and constructive experiments in bringing a measure of justice to

the dispossessed people of south-eastern Australia. It holds a promise for

increasing Aboriginal independence, self determination and well-being in a way

that mainstream welfare-orientated services have failed to do. I will note some of

the problem areas, although it is not appropriate to attempt here to discuss them

in detail.

Housing has been a difficult area for Land Councils. With the remaining

Aboriginal reserves they inherited from the Lands Trust old and poor quality

housing stock, and historically based opposition to rental collection and

disputation with local councils about previously accumulated rates bills. The

ADC refused to fund housing on Land Council land and the New South Wales

Housing Commission had a long-established assimilationist policy of refusing to

build on reserve land despite Aboriginal preferences. The only exception was a

program called Homes On Aboriginal Land (HOAL) which operated under a

sympathetic Minister for a few years.

Aboriginal housing companies often held 99 year leases on such land. These

companies had developed a corporate identity and were often associated with

particular family or factional interests and functioned as vehicles for those

interests. The leases ensured their continued existence, often as rivals of the

LALC.

The LALCs were expected to be land holding, relatively 'transparent' or neutral

organisations. They remain the most open and democratic of all organisations

operating in Aboriginal communities, in that every single Aboriginal person can

hold membership of at least one Land Council. However the dispersal of funds

421

to LALCs which has allowed the development of administrative infrastructure

such as office rental, cars, telephones etc, has produced the unsurprising result

of the LALCs emerging in some communities as an organisation in competition

with others such as the housing companies. The LALCs, in other words, have

sometimes become administratively associated with one group within Aboriginal

communities and thus have added to the issues of organisation within

communities which relate to family and factional interest, as well as contributing

simply to the overburdening of many Aboriginal communities with numbers of

organisations which appear to be duplicating some of each other's functions.

The most common attack levelled at Aboriginals over land rights has been that

funds have been handled at least inappropriately and at worst dishonestly.

Problems concerning finances within the Land Council network have been

treated with blanket assertions of mismanagement and fraud, but there has been

little attempt to examine the details of such accusations or to clarify the changing

organisational methods for meeting what may be real problems.

The major problems of poor management occurred in the Land Councils in the

earliest two years of funding, 1984-85 and 1985-86.46. Despite the organising

attempts of the Interim Land Council in 1983-84, the Act unavoidably meant that

a large amount of money and a complicated piece of legislation were dropped

without adequate preparation on the sector of the population which had in some

areas been systematically excluded even from the public schools until the late

1960s. As the Auditor General commented, the Land Councils suffered from 'an

almost total lack of basic accounting knowledge by many Council office bearers

and employees'.47 There were no guidelines in the Act or regulations as to the

proper expenditure of the allocations, nor any indication of accounting

procedures. There was no action taken by Government to facilitate training in

accounting. In 1985 the Land Councils themselves began a series of training

NSW Auditor General’s Reports. 1985 [v 2]; 1986 [v 2]; 1987 [v 2]; 1988 [v 1]; 1988 [v 3]; 1989 [v 3]; 1990 [v 1], AG's Report. 1986:406.

422

workshops on bookkeeping and on the Act, conducted by Tranby College for

Land Council employees and members.48 Before this, however, many Land

Councils, particularly the LALCs, had made payments u ltra v ire s the Act. These

included 'donations and grants to sporting associations, funeral expenses, traffic

and parking fines, bail sureties, loans to individuals and welfare payments'.49

By 1988, the Auditor General was stating that such u ltra v ir e s payments were

'considerably reduced', but where they continued to occur they were for reasons

like 'emergency relief.50

In the first two years of funding, LALCs and RALCs could continue to receive

funding even if their audits were not clear. This confused practice ceased with

the 1986 Amendment to the L a n d R ig h ts A ct, and from then on, no allocations

could be made until clear and unqualified audits were shown for each of the years

for which funding had occurred. Not surprisingly, it took some years to sort

through the usually minor but confused problems in each of the 117 LALCs and

13 RALCs. By 1988, after training workshops and clarification of accounting

systems, the Auditor General was noting a 'marked improvement' in

organisation and 'some improvement in the financial management of Regional

Councils'.51 By 1989, the Auditor General was still unhappy with the level of

'effectiveness and efficiency' achieved, but explained: 'The Councils have been

very co-operative but their performance has reflected the dearth of experience and

accounting expertise within the Councils and their officers'.52 The majority of

the Auditor General's complaints concern poor, inconsistent documentation and

inappropriate formatting of Councils' returns.53

There have been .occasions where Aboriginal people's view of land rights

payments as being generally payments in compensation for the pain, suffering,

48 Ibid, 1987:201 49 Ibid, 1986: 406; 1988:32. 50 Ibid. 1988:14. 35. 51 Ibid, 1988:19.

52 Ibid, 1989:48.

53 Ibid, 1990:291.

423

depopulation and dispossession which has occurred since the invasion has meant

that they believed they were justified in using these funds as they chose fit for the

benefit of their communities. A number of examples emerged in the process of

clarifying procedures in 1985 and 1986, and they included most often situations

such as those where land rights funds had been used to fund funerals, or to pay

the cost of transporting bodies long distances back to the birthplace of that person

for burial. Such examples reflect differing priorities as well as differing pressures

on the part of Aboriginal communities. While such uses are not legally

appropriate under the terms of the Act they nevertheless do not represent

dishonesty but rather differing cultural practices and imperatives by people who

had not been trained in correct procedures.

Since the 1986 amendments, no Aboriginal Land Council, regional or local, can

receive an allocation of funding without a clear and unqualified audit, which

includes monitoring of detailed bookkeeping procedures. That is, there have

been no opportunities for mismanagement since 1986, let alone for dishonest

practices.

In general terms the 1986 amendments can be seen as a response to the

widespread white rural campaign against Aboriginal people, which included

criticism of the Land Rights Act but also included law and order campaigns

throughout western New South Wales. A significant clause in the amendments

was the clause which succumbed to the demands of local government councils

(major figures in Law and Order campaigns) that Land Councils must pay rates.

The 1986 amendments made the payment of rates compulsory one year after they

had fallen due, with 22% interest added to them. This made Aboriginal Land

Councils the only completely reliable rate payers in the State. The major

beneficiary of the 1986 amendments were local Government councils who had a

sure flow of rates at least from the Aboriginal land holders in their Shire even if

not from the white landowners.

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CLAIMING LAND

The process of claiming land has proved to be frustrating and almost futile. The

land available for claim is vacant Crown land not wanted for any essential public

purpose, that is, land that is left over after 200 years of settlement, free selection,

soldier settlement and development. It is scattered, small in size and often poor in

quality as an agricultural resource. There is now increasing competition even for

land previously regarded as 'waste' land in coastal areas where tourist

development is expanding. Locating these small pieces of land requires

significant research skills in order to find it on Lands Department maps.

Nevertheless, Aborigines have indicated their sustained interest in gaining land

by continuing to make claims: to August 1990, 3577 claims had been lodged

altogether. However the most recent statistics indicate that overall 16% of claims

have been granted; 24% are still under investigation and 60% have been rejected.

The process of claim is open to frustration, firstly because the unit within the

Lands Department which must process the claims and review the competing

interests in any piece of land has been under-resourced and has made only slow

progress in evaluating and deciding on claims. The opponents of claims have

usually been local government councils, surrounding white land owners or

developers. They can delay furnishing particulars of their own interests until very

late, thus delaying the whole process, and when they have furnished such details

they have often made ambit claims which require further questioning and

investigation to assess appropriately.

This Act is actually under the direct control of the Minister for Lands, not the

Minister whose portfolio oversees Aboriginal Affairs. It appears that the attitude

of the Minister can affect greatly the process of evaluation of claims. Of all the

claims granted until July 1988, 44% had been granted in the four months

beginning December 1987 during which the portfolio was held by a sympathetic

Minister.54

54 Aboriginal Law Bulletin: 32:6.

425

The Minister can also intervene directly to block a land claim by issuing a

certificate which states that the land is needed, or likely to be needed, for an

essential public purpose. There is no definition in the Act for this phrase, but

since the 1986 amendments it specifically includes the purpose of residential use,

despite the fact that Aboriginal people may be claiming land with the purpose of

themselves using it for residential development.

The claim process promised to recognise and fulfil Aboriginal land aspirations

but it has in fact added to the levels of frustration faced by Aboriginal people in

attempting to develop viable land bases for themselves. Lack of faith in the

process and this increasing sense of frustration has meant that a number of

Aboriginal Land Councils have made ambit claims for all the travelling stock

routes in their area for example, a process which has exacerbated the anxieties of

surrounding white land owners as well as adding to bureaucratic delays. Critics

have used such examples of the Aboriginal strategies bom out of fmstration, to

blame Aborigines themselves for the delays which caused them to develop such

strategies. The Lands Department is now insisting that Aboriginal people submit

not only land claims but a statement of their intentions for use of the land,

arguing that this will help to prioritise competing claims by allowing comparison

between Aboriginal plans for profit making development and those of local

councils or private white land owners.55 A fundamental principle of the L a n d

R ig h ts A c t was that it acknowledged the validity of non-profit-making social and

cultural uses for land, as well as profit-making enterprises. The Lands

Department has begun to narrow the focus by insisting that Aboriginal people

justify their claims in terms of profit-making enterprise. This shift away from the

recognition of non-profit-making uses for the land can only diminish in real

terms the land actually available for Aboriginal people to claim.

Rod Armour, Co-ordinator, Land Claims Unit, Dept o f Lands, 23/8/90.

426

BIIYING BACK THE LAND

The claims process has added to the sense of frustration felt by Aboriginal people

but the funding of Aboriginal Land Councils to purchase land has been a

substantial success, causing a real transfer of assets to Aboriginal people. The

funding is the equivalent of 7.5% of land tax coming into the State Government.

Contrary to initial Aboriginal fears, this tax revenue has actually risen in the years

since 1983. In 1984 the Land Council was allocated $15 million; in 1988 the

allocation was $34.6 million and in 1989 had fallen only slightly to $29.9

million. With half of these funds each year available to Regional and Local Land

Councils to administer their operations and acquire land by purchase it is clear

that there has been significant re-distribution of economic resources.

Under the Act, half of the yearly allocations must be invested to provide a base of

ongoing funding for the Land Council network. The fund currently amounts to

$88 million and is expected to rise to an investment base of between $400 and

$500 million in 1998. In that year allocations from the New South Wales

Government will cease. After that the interest from this investment will provide

the funding source by which Aboriginal people will be able to continue to

purchase land and to fund enterprises and other social and cultural needs relating

to land. This funding arrangement, with its far-sighted and effective plan for

economic independence for Aboriginal people, has been the most significant

change in the distribution of resources in New South Wales in the last decade.

It has been estimated that 40% of funds so far allocated have been spent on land

purchase, but complete figures are not yet publicly available. What is clear is that

some RALCs have spent a far higher proportion: the Far Western RALC has

used 67% of its funds on land, $3m out of an expenditure of $4.5m from 1984

to 1990.56

Far Western RALC, Annual Report. 1988-89.

427

The opportunities tend not to be as great as might be initially imagined. When

$17 million (to take the 1988 figure) is divided between 117 LALCs, and the

price of land in many areas of New South Wales is considered, it will be clear

that there are not huge amounts of land that can be acquired with the money

available. Nevertheless significant purchases have been made, and these have

invariably involved the strategy of pooling money at a regional level, further

emphasising the significance of the existence of RALCs. The first Regional

Aboriginal Land Council to do this was the Western RALC, whose area of

responsibility extends from Tibooburra near the Queensland border to Dareton on

the Murray River border with Victoria. Retaining allocations at the regional level

and using the accumulated funds to purchase large properties one at a time means

that some LALCs must wait some years before acquiring a property close to their

centres of Aboriginal population. The fact that this strategy has been

implemented in the West since 1984 reflects the high level of confidence placed

by local Aboriginal communities in the RALC, indicating the successful

negotiation of the complex and competing interests which local communities

have. Co-operation across wide areas of land and across a diversity of historical

experience and interest has been demonstrated in this strategic planning. Such

planning is even harder given that Aboriginal communities in the west of the

State are those which show the lowest levels of employment, the lowest levels of

education and health opportunity and overall the highest levels of poverty.

In the west the purchase of land has resulted in six substantial properties,

totalling 93,500 ha, being acquired. The titles of five of the six properties are

now held by the relevant Local Land Councils. These properties each employ 8

to 10 people permanently as well as seasonal workers at shearing and other busy

times. A number of enterprises have been established as well as training facilities

on Weinteriga and Auley stations, both of which are producing high quality wool

as well as training numbers of young Aboriginal people in management and land

care skills. Just as important for Aboriginal people of this region have been the

social and cultural uses to which they have put some of these areas of land. The

significance of successful claims to land at Winbar and to the acquisition of the

428

old mission site at Menindee, as well as land associated with the significant sites

at Lake Mungo, have been most important in reinforcing the movement towards

cultural regeneration which has been in evidence in this area for some decades.

The Western RALC argues that the benefits of its land go beyond the modest

profits of the enterprises which they are establishing or sustaining. They include

amongst the benefits of acquiring land:

i) the return of traditional country

ii) the freedom to camp and get bush food,

iii) the power to care for heritage

iv) the giving of choices of where to live,

v) income from sheep, wool and other farm enterprises

vi) employment on stations

vii) training in enterprise management and work skills

viii) a capital base to attract project funding

ix) a base from which to develop other enterprises

x) a greater equality with white people

xi) a share in the region's economy

xii) a feeling of pride and motivation.

Pooling funds at a regional level has also been successfully implemented in the

Wiradjuri and North-Western regions. In the Wiradjuri region, Land Councils

operate a grazing property at Euabalong, a motel at Leeton and a specialist motor

vehicle accessories workshop. While none are yet independent, they are making

modest profits with contributions from DEBT to training components in

employees' wages.57 In the North West region two properties known as

Kaituna-uno, comprising altogether 14,000 acres near Coonamble, have been

purchased by the RALC and are currently producing wool and 3000 acres have

been sown with barley. In the Bourke and Engonnia areas the RALC holds a

further two adjacent properties totalling 130,000 acres, on which they are

AG's Report. 1990:301.

429

running the bulk of their 25,000 sheep and 800 head of cattle. A total of 16

young Aboriginal men are enrolled in rural management courses run on these two

areas in Coonamble and Bourke, while a shearing course is being run

concurrently.

In the last 12 months the North-western RALC has made a profit of $1 million

from these properties. These profits have been used by the RALC to buy

enterprises, including the franchise for a Kentucky Fried Chicken shop in

Narrabri which has 10 employees. The RALC currently employs 57 Aboriginal

people and expects to employ a further 50 in the following 12 months. It is

about to purchase a funeral parlour business operating in the region, reflecting

the high level of tragic and early deaths among Aboriginal people and the

importance they attach to ensuring appropriate funeral services for their people.

The RALC has purchased farming equipment worth $150,000, as well as

housing and other materials for the properties around Coonamble and Bourke

worth $200,000, all from the profits generated by the properties. At a recent

public function at Kaituna-uno, local non-Aboriginal graziers acknowledged that

the Aboriginal Land Council had become a positive force for development in the

region, while stock and station agents congratulated the regional Land Council on

selling a higher wool yield than any other grazier in the area.58

During the hearing of the inquiry into the death of Lloyd Boney at Brewarrina,

the State representative of the North-Western RALC gave some idea of his vision

for the future. He said:

’We anticipate that by the year 1998 every community within the

North West Region will have a property that they can call their

own. There will be a property bought in every location of

communities within the North West Region, and those Aboriginal

people will be running those properties themselves'.

NWRALC Co-ordinator, Les Trindle, 24/8/90.

430

He foresaw that money would be coming back into the community to go into

better housing, better sporting facilities, and people would be able to get jobs

again. He hoped that such things as supermarkets would be bought or created

and would employ Aboriginals. He foresaw many opportunities for employment

that would take away a lot of the idleness that was now a cause of problems. He

said that on one small property they were planning to set up a shearing shed, and

get the older men to train young men for the shearing industry. On one of the

properties there was a farm technology course training 12 Aboriginal youths.

Although the flow of funds into regional and local councils has only recently

begun to show an effect, it is clear that there are significantly more resources in

the hands of Aboriginal people than there were 5 years ago. In the view of

Aboriginal Land Councils there are a range of priorities for enterprises and profit

making is only one of them. As Les Trindle, the co-ordinator of the North

Western Regional Land Council has argued, it is important to differentiate

between enterprises which will provide profits and those which will aim at

maximising employment opportunities for Aboriginal people. The North

Western RALC aims to acquire both types of enterprise so that one will develop

the capital base of the region's economy and the other will increase the access to

individual employment opportunities for Aboriginal people.

At the time of my visit Weinteriga, a pastoral property near Wilcannia, had been

purchased and was providing employment and income for Aboriginals as well as

a source of pride and a place for enjoyment of the river and the bush. This is a

small start, but a sign of considerable potential for the future.

There is extraordinarily little employment available in the Wilcannia area.

Pastoral properties no longer employ much labour, and the limited employment

in shops and service industries in town go almost exclusively to white people.

In the long run the control of resources and with it employment by Aboriginals

through the operation of the land rights legislation may make considerable

431

contribution to the restoration of Aboriginal independence and employment. In

western New South Wales the Regional Land Councils appear to have had a key

role in ensuring that resources of the region are brought together in a way

necessary to achieve purchases of substantial assets, including pastoral

properties.

THE 1990 AMENDMENTS

At the end of 1990 events occurred which placed a large question mark over the

bright picture of the land rights legislation which I have given. There has not

been an opportunity for me to investigate these recent events, but they have

caused great concern to many of those who were working most constructively

under the legislation. Some very fundamental changes have been made to the

legislation: land has been made relatively easily alienable, the powers of the

Minister have been considerably extended, the RALCs which have played such

an important role in planning and executing programs of major regional

importance are no more, and the State Land Council itself has been converted

into a body of full-time elected officials. Although the amendments were agreed

to by the State Land Council it was by a slender and transient majority, it was

under the threat of much more extensive amendments, and the amendments

carried potential benefit in the way of salaried office to some who agreed to it.

Whether the promise of the Act as an avenue to self-determination can now be

fulfilled remains to be seen.

432

CHAPTER 27 - HOPE FOR THE FUTURE

SOME REASONS FOR HOPE

It would be easy to conclude this report on a note of despondency and despair.

By most of the usual tests by which welfare is measured the Aboriginal

community fares badly - health, housing, employment, income, education,

alcohol and drug dependency, juvenile detention, arrest, imprisonment, violence

in the community and early death. All this is after 200 years of European

presence on the continent and 20 years of substantial effort under

Commonwealth leadership to improve the position of Aboriginals in the

community.

One thing that has impressed me greatly has been the number of occasions I have

met individual Aboriginals who have dramatically changed their lives from a self­

destructive course to a forward-looking constmctive one. Often this is associated

with giving up alcohol and sometimes giving up a life of crime. It often means

turning to constructive work in Aboriginal organisations. The Aboriginal woman

who narrated to me her uncontrollable impulse to hang herself while in custody,

which I quoted earlier in this report, told me how alcohol had played a big part in

her life for many years from the age of 15 or 16 but she and her family had given

it up. Her mother had been sober for six years and her father for eight. Ί don't

know, you just reach a decision.' One man related his change to religious

conversion. For some the motive was an insight into what their conduct was

doing to their family. For some it was an opportunity to pursue education in

prison. Some of them have become drug and alcohol counsellors. Most seem to

have found some role of taking responsibility and giving leadership in

organisations or in the community.

433

One moving piece of evidence came in the inquiry into the death of

Peter Campbell. His brother, Alan, who had shared with him an early life of

conflict with the law and brutalising experiences in a boys' home and in gaol,

told how he had come to hate white people but he went on:

it took me a long time to change. Around about in the - 75,

76, you know, because I thought that racial discrimination and

racial prejudice were just the one way - black way you know.

Then in 1975, 1976 through the Aboriginal Community College I

entered into a lot of debates there and I found out then racial

discrimination worked both ways ... for whites as well as other

ethnic groups, you know. But as for me, because I was black, I

thought it was just racial discrimination just one way, but it was a

two track sort of way'.

A striking feature going beyond individuals and expressing community reaction

has been the reception of CDEP (Community Development Employment

Programs). In a wide range of communities, confounding one of the popular

stereotypes of Aboriginals, many communities have with great enthusiasm

elected to 'work for the dole'. Young men who have never had a job have

welcomed the opportunity of regular and constmctive work for their community.

Often it has expressed itself in a pride in cleaning up, renovating and restoring

and beautifying their housing areas. Some have succeeded in taking their

resources and labour force into the market place and earning funds for their

communities.

In the chapter on land rights I quoted the vision for the future that had been

developed in the North-West Regional Land Council and the great enthusiasm for

the possibility of achieving some degree of Aboriginal economic independence.

While in Brewarrina I attended a ball organised by the Aboriginal community at

which some 500 Aboriginals were present. In moving ceremonies they

434

expressed their respect for the elders in their community and presented awards to

individuals and organisations working for community advancement. In Sydney

the long-standing Aboriginal College, Tranby, continues imaginative programs to

train Aboriginal individuals and to provide services for Aboriginal communities.

These are just a few of many observations which carry hope for the future.

There are many communities whose positive approach to the future could be

mentioned. I will refer in detail to one.

Echuca

My inquiry into the death of Harrison Day took me to the Victorian town of

Echuca on the Murray River. In recent years the local Aboriginal people have

responded strongly to the opportunities and funding available to them and built a

strong web of activities around their Co-operative. For those looking for signs

of Aboriginal communities standing up and seeking to take control of their affairs

and achieving success, Echuca is a heartening place.

Quite a number of Aboriginals in the town were employed in Government

services directed to Aboriginals or by the Aboriginal Co-operative and its

enterprises. However very few were employed in private enterprise, and

Aboriginals felt very strongly that they did not get 'real' or 'true blue' jobs from

private employers, but were mainly employed in subsidised work promotion jobs

where employment ceased when the subsidy ceased.

To meet this situation they had moved strongly to create employment in their own

enterprises. Building teams had been organised for the construction of homes

and buildings and for maintenance. A white supervisor was employed to help

with contracts and accounting, and a white builder was employed to head each

team, but the remainder of the staff were Aboriginal. After initial difficulties, a

number of Aboriginals had settled down to regular employment and study, and

were well into apprenticeships. One of the builders told me how the initial

reluctance to work regularly and stick with study had changed dramatically when

435

the first house was completed. There was great pride in achievement, and

enthusiasm to go on, and the team was now building houses competitively on the

open market.

As more houses were obtained for Aboriginals, there was a problem in

furnishing them. At the time of my visit, the Co-operative set up a workshop to

repair and renovate furniture. The workshop not only renovated furniture for

Aboriginals, but bought furniture at Government auctions, repaired it and resold

it on the open market, thereby providing employment for another group of

Aboriginals.

A course in sewing was organised through the Co-operative's education officer,

and, when a group of women completed it, a small factory was started making T-

shirts, windcheaters, track suits and the like. These were completely made from

the original cloth and elegantly screen-printed with the workshop's own designs,

and marketed widely under the Warma brand.

The Co-operative obtained a 99 year lease at a peppercorn rental of the beautiful

old court house at Echuca and obtained funds to restore it. It was developed to

house a museum and workshop where tourists could see artefacts being made,

and a shop where artefacts and souvenirs were being sold. The shop was

already operating selling the Warma clothes and a variety of Aboriginal artefacts.

With the assistance of an education officer provided by the Ministry of Education

to work with the Aboriginal educators, the Co-operative had developed strong

support for Aboriginal children in the schools. There had been a number of

programs to improve teacher awareness, and Aboriginal mothers took a strong

interest in school activities and supported the work of the Aboriginal educators

employed in the schools. An endeavour had been made to tackle the variety of

problems which commonly lead to Aboriginal children leaving school at an early

age, and to encourage them to remain and receive a good education.

436

The list of achievements goes on and includes child care and health work. Most

importantly it includes a flourishing Community Justice Panel. The panel itself

was a very considerable cause for hope, revealing as it did not only the great

capacity and willingness of Aboriginals to work for a better life for their

community, but successful co-operation between police and Aboriginals. In its

first year of operation not one Aboriginal went to gaol in Echuca.

The people of Echuca are not unique, although they are further down the track

than most. I have in Chapter 25 referred to the community of Cummeragunja,

which knows what it wants and courageously turned its back on funding which

carried unacceptable conditions. Wilcannia, a community with many

disadvantages, has amazed its critics with its use of the opportunities offered by

CDEP. There are many others.

On the other side of the divide

Although it will take a long time to fully break down Aboriginal suspicion of

police and police stereotypes of Aboriginals, there is heartening evidence of

attempts by the Victoria Police and the New South Wales Police to make major

breaks with the past. I have described these in Chapter 18. As police have often

been felt by Aboriginals to be a major adversary to their advancement, these

efforts are encouraging. Although it may take some time to seep through to the

grassroots, there is change on the way, and importantly it is supported not only

by senior police but by the Police Federation.

The New South Wales Probation and Parole Service is another body which has

been moved to undertake a major rethinking of its relations with Aboriginals with

constructive results. Many departments and agencies are endeavouring to

formulate new Aboriginal policies, and learning in the process to listen to

Aboriginals, and not to assume that the 'experts' know best.

437

Australia Day 1988

Amongst the many sad and discouraging things I came across as a Royal

Commission, there were occasions which gave hope. One of the most

remarkable was what happened on Australia Day 1988 in Sydney. There was

on the part of the Aboriginal people of Australia a tremendous demonstration of

pride and hope, of constructive attitudes and of solidarity as they came together

from all over Australia in large numbers. They expressed their pride in having

survived their last 200 years. They spoke without rancour or bitterness and

offered their hands to the white community in a spirit of brotherhood and co­

operation. It was a remarkable and encouraging event.

The sad thing is how little response there was on the part of the white

community. There was great relief and approval that Aboriginals had been so

well behaved, but little in the way of a positive response. Has this opportunity

been lost as its memory slips into the past? Hopefully not.

A process of reconciliation

An opportunity to recapture the spirit of that day is being provided by the

Minister for Aboriginal Affairs in announcing a Commonwealth initiative for 'a

process of reconciliation between Aboriginal and Torres Strait Island people and

the wider community'. It is proposed that 'the process would involve a co­

ordinated campaign to build better bridges between Aboriginal and non­

Aboriginal Australians'. It would be complemented by a decade-long national

commitment by Governments at all levels to work together to address Aboriginal

disadvantages. The endeavour is to unite all Governments and all political parties

in the process. If it succeeds it could be a fitting response to the Aboriginal

gesture of 1988.

438

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

PARLIAMENTARY PAPER No. 131 of 1991 ORDERED TO BE PRINTED

ISSN 0727-4181

= 1 7801=44 141bbb B91/20587 Cat. No. 91 0540 1