Reflections on a Royal Commission

NATIONAL: It’s 20 years since the Royal Commission in Aboriginal Deaths in Custody. One of the men who help run that Commission – HAL WOOTTEN QC – believes the lessons of that exhaustive inquiry have never been properly learnt.

Reflecting today on the Royal Commission into Aboriginal deaths in Custody, and the criticism it has attracted, I realise that we lawyers who innocently accepted commissions were getting involved in something we had not anticipated – the shaping of the Australian narrative.

Every people has a narrative, a national story that makes sense of its past and present and shows a way forward.

For a long time white Australians told a triumphant story of hardy pioneers taming a harsh continent, a narrative in which the Indigenous people barely figured.

Stanner called it the ‘Great Australian Silence’.

Aboriginals could be relegated to footnotes — terra nullius denied them any serious connection with the land; the dying pillow metaphor cast them as an inferior race, doomed to die out; assimilation offered a cultural cleansing that would make them modern people.

In the post-war era of anti-racism and decolonisation, Australia struggled to find a new inclusive narrative based on racial equality and self-determination, acceptable to Indigenous people, whites and a watching world.

A new generation of historians came up with a story of white people taking land with which the very being of Indigenous people was intimately entwined; this had not only destroyed their sources of food and shelter but critically damaged their social structure and norms, indeed their whole concept of who and what they were and how they fitted into the universe.

In 1987, as the Bicentennial approached and the telling of the Australian narrative assumed special significance, newspaper headlines presented a new challenge.

In just 6 weeks between 24 June and 6 August 1987 there were five Aboriginal deaths in custody, all by hanging, and four in police cells.

This followed 11 deaths earlier in the year, five by hanging.

Two narratives at opposite ends of the political spectrum were ready to accommodate these events.

In one, the deaths were a continuation of the genocide police had practised for two hundred years.

In the other, they were part of the burden placed on a benign white Australia by a good-for-nothing primitive people unable to adjust to the modern world or cope with alcohol.

Neither story was suitable for the Bicentenary.

Bewildered governments, federal, state and territory, hastily united to announce on August 10 a Royal Commission which would inquire into every Aboriginal death in custody since January 1, 1980.

The date was arbitrarily selected; no one knew how many deaths had occurred, the circumstances in which they had occurred, whether the statistics for non-Indigenous prisoners were different, or whether death by hanging was suspicious.

Had Governments known that they were committing to 100 royal commissions, that hanging was a very common method by which prisoners everywhere took their lives unassisted, that Indigenous prisoners were not dying at a greater than other prisoners, and that the recent spike in deaths was not peculiar to Indigenous prisoners, they would no doubt have acted differently.

The question implicit in the terms of reference was: Has misconduct of custodial officers caused the deaths of Indigenous prisoners, and if so why has this not been detected?

The question should have been: Why are Aboriginals taken into custody at such stunningly higher rates than non-Aboriginals?

By the time this was realised, it was politically impossible to call the death inquiries off.

A hundred or so Aboriginal families and communities were convinced or highly suspicious that a loved one had been the victim of foul play or neglect.

Governments’ response was to appoint additional commissioners. Three years later there were five, of whom I was one.

The rest of us reported to Elliott Johnston QC, who, as National Commissioner, had the final responsibility of writing a national report covering deaths, investigations and underlying issues Australia wide.

His national report had its 20th anniversary this year.

We came to see our work in three streams:
1. The circumstances of each death, including issues of responsibility.
2. The subsequent investigations of each death by police and coroners.
3. The issues underlying the extraordinary rates of Aboriginal arrest and imprisonment.

On the first issue, Commissioners did not find deliberate violence or brutality, but they did find a general poor standard of care of prisoners that sometimes led to deaths.

As a result of the Commission there has been greatly improved care of all prisoners, or so I thought until I read of the cruel death of a
Western Australian prisoner transported hundreds of kilometres across desert in an uninsulated van.

On the second issue, nearly all the investigations, police and coronial, had been derisory.

There was a widespread attitude, perhaps unconscious but embedded, that a death in any form of official custody was by definition above suspicion, to be given only the most perfunctory examination, carried out by your mates.

The significance lay less in failure to uncover misconduct than in failure to bring closure to grieving families and communities.

The Royal Commission led to rigorous protocols, or so I thought until I read with incredulity of the police investigation of Mulrunji Cameron’s death.

The Commission’s work in the third area, underlying issues, has attracted harsh invective.

We were guilty of public racial vilification of the white community, of intellectual failure, of an entire wasteful exercise, say the voices of angry critics.

How did we deal with underlying issues?