Another inquiry in NSW, another missed opportunity for change

7 Dec 2022

In NSW the Coroner is crucial in determining cause of death whenever there is a sudden, unexpected or unnatural death in the community, including when the police are involved. A recent inquiry into this system has revealed an unwillingness on behalf of government to implement changes that could save countless Aboriginal families needless grief and suffering, Lindsay McCabe explains.

The Sydney Harbour bridge, with the Aboriginal flag on top.

On the 1st November 2022 the NSW Government published its response to the Legislative Council Select Committee on the Coronial Jurisdiction in NSW. The Select Committee members, chaired by Adam Searle, sought to inquire into and report on the coronial system in NSW, its successes and its failures. As Aboriginal peoples, this is yet another colonial system in which we are overrepresented. Because of this we are disproportionately affected by any failings within the processes and outcomes of the coronial system.

There is very little data available to really understand just how many Aboriginal families are actually having contact with the coronial system, which is a focus in my My PhD research. There are many reasons a person’s death might be reported to the coroner. These include things like sudden deaths (such as a heart attack), suspicious deaths (where it might appear to have been murder), and deaths that happen in police custody, during police operations (such as a car chase), or in prisons.

According to the State Coroner 37.2 percent of deaths that occur in custody or during a police operation are deaths of Aboriginal people. When a death happens in police custody or in a prison, the coroner has to then hold an inquest into the death. Too many of our mob are dying in the custody of police or in prisons, and so too many families are then having to go through an inquest.

In NSW, “the Coroner is required by law to investigate sudden, unexpected and unnatural deaths to determine the identity, date, place, circumstances and medical cause of death. In some cases, the Coroner can make recommendations following an inquest to improve public safety and prevent future deaths”.

Inquests are supposed to be inquisitorial. This means there aren’t supposed to be sides – everyone is supposed to be working together to find out how the death occurred. However it doesn’t always come across this way. As part of my research, I talked to a lawyer who told me about an inquest into a death in custody where about forty police officers showed up in uniform, filling half of the courtroom, in what can only be described as an attempt to intimidate the family of the person who had died.

Coronial inquests can also take place many years after the person has died. For the family of the person, this draws out Sorry Business for years, denying them a chance to grieve and to heal. Many families have told me that they don’t get enough information about what is happening, or why it is taking so long. Some families don’t hear from the Coroner’s court for months at a time, and so have no idea what is supposed to be happening or when. These are just some examples of how broken the coronial system in NSW is. The Legislative Council Select Committee on the Coronial Jurisdiction in NSW was set up to investigate these failings, and published a report in April 2022 outlining the issues, making thirty-five recommendations.

The recommendations they ignored

In their response, given on 1st November, the NSW Government Response addressed each of the 35 thirty-five recommendations put forward by the Select Committee. Despite receiving submissions from many Aboriginal families, professionals, and academics, only a handful of the recommendations applied to our experiences. These recommendations were ‘noted’ in the NSW Government response, not ‘supported’ – this means that the government has acknowledged the recommendations, but is not going to support them to actually happen.

Recommendation 12 proposed the government consider amendments to the current legislation, the Coroners Act 2009, to require coroners to examine whether systemic issues played a role in any death, including the requirement to ‘consider and report’ on whether or not implementing recommendations of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) could have prevented a death from occurring. This recommendation was noted by the government, the official response being the ‘NSW Government will continue to assess opportunities to strengthen the structure and operation’ of the coronial system. We know the failure of successive state governments across the nation to implement the recommendations of RCIADIC has resulted in the preventable deaths of too many of our people.

Recommendation 21 urged the government to increase funding for Legal Aid NSW and the Aboriginal Legal Service (ALS), two organisations that are bearing the financial costs of an appalling increase in mandatory inquests. Despite the crucial services these two organisations provide, assisting families throughout coronial matters in addition to providing legal advice, this recommendation was merely noted by the NSW Government, with no additional comment or reason given for not supporting its implementation. 

Recommendation 23 recognised the impact an increased workforce of Aboriginal professionals would have on the justice system, recommending the Aboriginal Coronial Information and Support Program (ACISP) Officer team be expanded, in addition to the creation of other identfiied First Nations roles. Currently, there are two identified positions for Aboriginal Coronial Information and Support Program Officers, created only last year. Since the filling of these roles, things have improved. Families are getting information much more regularly, and have a point of contact within the coroner’s court. However, these two positions bear the weight of an increasing number of inquests into the deaths of mob.

Further funding to expand these roles, and to create more identified roles across all areas, may mean that these two ACISP Officers wouldn’t be bearing this weight alone. The NSW Government noted this recommendation, while ensuring they gave themselves a pat on the back for funding the two positions by  highlighting the two existing ACISP Officer roles, and added that the Ministry of Health is ‘considering opportunities’ to include First Nations social workers in the Forensic Medicine branch of the coronial system, but no mention of additional roles in the ACISP Officer team.

Recommendation 26 asked the government to ‘appoint significantly more qualified First Nations people to the judiciary’ – in practice, this would mean having more First Nations solicitors, magistrates and coroners. The NSW Government noted this, commenting that ‘applications for judicial appointments are encouraged from qualified Aboriginal and Torres Strait Islander lawyers’. It went on to note the First Nations Protocol initiated by the State Coroner in May 2022. The protocol requires coroners to consider holding inquests on Country, and to ensure that families are regularly updated about coronial investigations.  While this is an important protocol, it applies in the first instance only to Section 23 deaths – deaths in custody – not the many deaths of Aboriginal peoples that occur outside of custody, even though these often still occur within the violence of the colony.

The protocol is then limited in its scope to adequately improve the system for all Aboriginal families. Although a senior coroner may recommend the protocol be applied in the deaths of any Aboriginal people, it is at their discretion. Recommendation 26 also asked for the position of First Nations Commissioner be created within the NSW coronial system. The Commissioner would sit with coroners investigating the deaths of Aboriginal peoples, informing their approach. This wasn’t even responded to by the government. 

A missed opportunity to change a system that is failing us

This is an extremely disappointing, but not surprising, response from the NSW Government. It has failed to acknowledge the overrepresentation of mob in this system, and in doing so has denied us the opportunity to inform changes to a system that continues to fail us. 

I have spent hours talking to advocates, lawyers, former coroners, and human rights interveners about the changes that need to be made in the coronial system. Most importantly, I have spent hours talking to Aboriginal families that have, through the loss of their loved ones, had contact with this colonial coronial system. I have witnessed the trauma inflicted on families when this system doesn’t get it right, which is unfortunately most of the time.

The Select Committee was an opportunity to change this, to get it right. I am so disappointed in the response from the NSW Government to the Committee’s findings. I am so disappointed for the families that went out of their way to share their experiences with the Committee in the hope another family wouldn’t have to go through what they did. And I’m tired. Tired of commissions and committees and inquiries that at the end of the day do nothing but produce more and more pages of recommendations that continue to go unimplemented.

Again, we are reminded nothing really changes in the colony. All I can hope for is that we can keep chipping away, until the foundations crack and crumble under the weight of our collective experiences, our collective knowledges. We are indeed the most resilient people on earth, but we shouldn’t have to be.

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