Coronial inquests, on which many tens of millions of dollars are spent each year, should be saving lives. But throughout Australia, their considered recommendations are being ignored in more than 50% of cases.
Coronial recommendations should be saving lives
A detailed national study – Coronial Recommendations and the Prevention of Indigenous Death – by three academics explores the implementation of coronial recommendations in relation to Aboriginal and other deaths throughout the community over the past 30 years.
The three researchers are Ray Watterson, Adjunct Professor, School of Law, La Trobe University; Penny Brown of Aboriginal Legal Services; and John McKenzie, Chief Legal Officer of the Aboriginal Legal Services of NSW and the ACT.
As a starting point, the study concentrates on the recommendations of the Royal Commission into Aboriginal Deaths in Custody, established in 1987 and completed in 1991. In a nationwide, thorough enquiry into 99 deaths from 1980 to 1989, the Commission listed 339 recommendations. Some of these recommendations focused on the coronial structure in every State and Territory.
In his National Report containing an overview and recommendations, Commissioner Elliott Johnston QC said:
“For example, in every State and territory, there is in place a coronial structure. That structure did not supply the critical analysis which is needed of the reasons for custodial deaths. In the few cases where coroners did pursue these matters the issues raised were frequently not brought to the notice of the relevant authority and certainly not to the notice of the public. I make a large number of recommendations directed to the better use of the coronial structure”.
The authors of the study refer in particular, to recommendations 14,15,16,17 and 18 in the Royal Commission National Report. Their reason for doing so is explained when they quote from this report, the following:
“Thoroughly conducted coronial inquires hold the potential to identify systemic failures in custodial practices and procedures which may, if acted on, prevent further deaths in similar circumstances . In the final analysis adequate post death investigations have the potential to save lives”.
In this regard, the authors state:
“Revealed by the Royal Commission was the pervasive and troubling failure of the coronial structure in every State and Territory to supply the critical analysis needed to uncover the reasons for Aboriginal deaths in custody and to recommend remedial action had contributed to the nation`s massive failure to prevent many Indigenous deaths”.
Furthermore, they add:
“The Royal Commission recommended an expansion of coronial inquiry from the traditional narrow and limited medico-legal determination of the cause of death to a more comprehensive, modern inquest; one that seeks to identify underlying factors, structures and practices contributing to avoidable deaths and to formulate constructive recommendations to reduce the incidence of further avoidable deaths”.
Looking at the scene about 15 years later (from 1991 to 2006), the authors found little to show that coronial recommendations are being heeded by government agencies; nor were there uniform national schemes in place. In fact, they found only three jurisdictions – the NT, SA and ACT – with legislation requiring some response to coronial recommendations by government agencies. They noted that a review of the Coroners Act 1985 in Victoria by the Law Reform Committee of the Victorian Parliament in September 2006 recommended reforms of the coronial legislation.
The reforms suggested by the Victorian Committee were along the lines that it would be a wasteful exercise if recommendations by coronial investigation were ignored; that a mandatory response regime be introduced and placed on the public record, and an annual report by the State Coroner`s Office be tabled in Parliament,featuring a monitoring system of compliance with coronial recommendations.
In a comprehensive, nation-wide study of 185 coronial matters which produced 484 recommendations, the authors sought information about the implementation of the recommendations. The results were disappointing, showing a compliance rate as follows:
27 per cent in Victoria;
41 per cent in Tasmania;
48 per cent in NSW;
50 per cent in WA;
52 per cent in SA;
65 per cent in the NT; and
70 per cent in the ACT.
Reasons given for non-implementation by relevant authorities were that the recommendations were not soundly based or practicable or that the authorities were not required to respond.
The study reveals that the NT is the only jurisdiction in Australia that requires government agencies to respond to all coronial recommendations and for the tabling of such responses to Parliament. It offers the benchmark for all.
Further in their research paper, the authors noted that media attention and public advocacy were factors influencing the likely implementation of recommendations and that the cumulative effect of a number of similar recommendations can prompt action in relation to implementation.
In the absence of mandatory schemes, government agencies had no or inadequate follow-up systems. In some cases coroner`s recommendations were lost or otherwise neglected. This ignored the fact that:
“A coronial inquest represents a significant investment of public and private resources, both human and financial. Inquests bring individuals, families and communities into contact with the administration of justice at the most stressful of times. They provide government with an opportunity to pay their respects to the dead and those left behind. Inquests are lessons , hard-learned from the loss of individual lives, to benefit the whole community”.
The researchers end their paper by stating:
“Introduction of a uniform and universal reporting scheme, evolving from the recommendations of the Royal Commission into Aboriginal Deaths, could also mean that lessons hard-learned from Aboriginal adversity had finally come to benefit the whole Australian community. Many lives could be saved”.
– review by Keith McEwan, CLA member, 9 March 09
For this and associated papers: http://www.ilc.unsw.edu.au/publications/ailr/current.asp