Response to Victorian Practice Direction on Deaths in Custody

8 Oct 2020

On the 22nd September Victorian State Coroner Judge John Cain released a practice note outlining changes in the conduct of coronial investigations into Aboriginal deaths in custody in Victoria.

On the 22nd September Victorian State Coroner Judge John Cain released a practice note  outlining changes in the conduct of coronial investigations into Aboriginal deaths in custody in Victoria. This practice note will affect several key action periods, for example the actions to be taken immediately following a death in custody: where practical, the State Coroner will now attend the scene of the death in custody of an Aboriginal person in Victoria, in consultation with the Coroners Koori Engagement Unit. The investigating Coroner is also directed to hold a meeting with the Coroners Koori Engagement Unit within 48 hours of receiving the death notification.

Importantly, the Victorian Aboriginal Legal Service (VALS) must now be contacted within 48 hours of the death to facilitate legal advice being provided to next-of-kin. While this is a welcome change, there is no mention of the extra funding VALS will require in order to deliver this service, or any indication that this vital funding will be allocated in the near future.

The practice note also makes reference to a previous note, Practice Direction 5 of 2020, which instructs the Court to hold a Directions Hearing within 28 days of the death of an Aboriginal person being reported.

Again, while a welcome change, this does nothing to address the lengthy, systemic, and often traumatic delays that can only be addressed by a significant increase in funding.

There is also a shift in the way hearings will be held – they are to be ‘convened in a culturally appropriate manner’; the practice note goes on to list smoking ceremonies, the display and use of possum skin cloaks and didgeridoos, and acknowledgement of country. That the Court is willing to think outside of its Western-centric box to list these as official considerations is fantastic, however these things mean next to nothing if the reasons why so many Aboriginal people are dying reportable deaths is not addressed. And without addressing the systemic institutionalised racism that is inherent in so many of these systems, coronial and otherwise, these considerations could be (mis)construed as tokenism.

Of course, this is not to dismiss or discredit the incredible work that Troy Williamson and others have done and continue to do to make this system a safer one for mob. The other states and territories should sit up and take notice of the work that Victorian Coroners Court is doing in this space. These changes, however flawed, must be applauded and recognised as a step in the right direction, changes that have real potential to change interactions with the Coroners Court for the better.

But it just isn’t enough.

Police should not be investigating deaths in police custody. The full recommendations of the Royal Commission into Aboriginal Deaths in Custody must be implemented. Racism in healthcare settings must be addressed. There must be accountability, at all levels and in all areas. Not only accountability to the recommendations that arise out of an inquest, but accountability in a legal, prosecutorial, sense. Better yet, we need to be keeping mob out of this system to begin with.

And until this happens, these changes just aren’t enough.

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