The UN Human Rights Council may recommend Australia abandons police investigating police.
The UNHCR is expected to adjudicate within weeks on a dispute involving a boy being impaled on a fence in Sydney…and the outcome could end police ‘self-surgery’ investigations in Australia.
TJ Hickey, a 17-year-old Aboriginal youth, was impaled on a fence post during a police operation – allegedly a close chase – in the ‘Aboriginal quarter’ of Redfern in 2004.
On 14 February 2010, his mother Gail Hickey lodged a ‘communication’ with the UN Human Rights Council (UNHRC) arguing that Australia breached her son’s right to life by permitting NSW police to investigate his death, rather than an independent body doing the investigation. She argued that the need for independence in the investigation of her son’s death was even more important in the contest of an Indigenous death in custody, given the history of police and state involvement in such deaths in Australia.
In April 2013, Australia submitted its second reply to Ms Hickey’s communication – this time arguing that even if the police got it wrong in investigating deaths involving police, NSW has a system of checks and balances that ensures that failures in investigation are rectified.
Flawed response from Australia
In a media release explaining the latest developments, the Indigenour Social Justice Association says there are two problems with Australia’s submission. “Firstly failures in the initial investigation critically impact on the capacity of a death in custody investigation to establish the truth. No amount of oversight can fix these initial failures in the investigation,” President of the ISJA, Ray Jackson, says.
“Secondly it is clear that the police investigations are failing and that the public does not have confidence in them to adequately investigate deaths in custody.”
The Police Integrity Commission (PIC), in its 2013 review of the investigation of Adam Salter’s death states, that independent investigations would both improve quality and increase public confidence. It says:
“[NSW Police] Guidelines to which reference has been made in this report clearly recognise the risk that there will be a doubt in the minds of members of the public about whether investigations conducted by police officers into the actions of a fellow police officer will be conducted properly, that is, rigorously, thoroughly and with complete impartiality.
“Furthermore, there will be cases where it happens that critical incident investigations by police officers into the actions of a fellow police officer are not in fact properly conducted.
“If critical incidents were investigated by a body that was independent of the NSWPF, then there would be greater public confidence in the integrity of the investigations and less risk of the investigations failing to be properly conducted.”
The PIC report clearly indicates that independent investigation of deaths in custody is preferable, but that NSW has not funded it properly to carry out these investigations, Mr Jackson said.
“The UNHRC should not be forced to consider whether the NSW State Government has sufficient money to fund independent investigation. It only needs to rule on whether lack of independence breaches the Right to Life,” said Tamar Hopkins, solicitor for Ms Hickey.
“The fact is that numerous countries fund independent bodies to investigate police related incidents involving death and serious injury, including New Zealand, Ontario Canada, England UK and Northern Ireland. Indeed Adam Salter’s death investigation would have been much cheaper and less traumatic for NSW and Adam’s family had the investigation been carried out independently,” Ms Hopkins said.
Compromised from the beginning
Mr Jackson said the Hickey case was compromised from the outset.
“TJ Hickey’s tragic death should have been investigated by an independent body from the start. His family and community will never have faith in the outcomes of inquiries into his death based on an initial flawed NSW Police Force investigation” Mr Jackson said.
In 2013, the mother of Tyler Cassidy a 15 year old boy shot dead by police in Victoria also made a submission to the UN arguing that Australia breached his human rights by failing to independently investigate his death.
“Families will continue making submissions to the UNHRC until Australia ensures deaths in custody investigations are independent from the police,” said Ms Hopkins, who works for the Flemington & Kensington Community Legal Centre in Melbourne.
Ms Hickey will respond to Australia’s further reply in August 2013. The UN Human Rights Committee will then make its decision.
http://www.communitylaw.org.au/flemingtonkensington/cb_pages/uncommunication.php
http://www.hrlc.org.au/un-communication-lodged-by-shani-cassidy
Further information: Tamar Hopkins, Flemington Kensington Community Legal Centre, 0400 990 663 or (03) 9376 4355