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Report on the NSW Government's Implementation of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody
Resolution of cultural objections to post mortems The Commission notes that whilst the conduct of a thorough autopsy is generally a prerequisite for an adequate coronial inquiry some Aboriginal people object, on cultural grounds, to the conduct of an autopsy. The Commission recognises that there are occasions where as a matter of urgency and in the public interest the coroner may feel obligated to order that an autopsy be conducted notwithstanding the fact that there may be objections to that course from members of the family or community of the deceased. The Commission recommends that in order to minimise and to resolve difficulties in this are the State Coroner or the representative of the State Coroner should consult generally with Aboriginal Legal Services and Aboriginal Health Services to develop a protocol for the resolution of questions involving the conduct of inquiries and autopsies, the removal and burial of organs and the removal and return of the body of the deceased. It is highly desirable that as far as possible no obstacle be placed in the way of carrying out of traditional rites and that relatives of a deceased Aboriginal person be spared further grief. The Commission further recommends that the coroner conducting an inquiry into a death in custody should be guided by such protocol and should make all reasonable efforts to obtain advice from the family and community of the deceased in consultation with relevant Aboriginal organisations. Government’s original position: Supported Revised government position: Qualified support Agencies responsible for implementation: Attorney General’s Department – State Coroner’s Office Implementation report The State Coroner’s Office tries to ensure that relatives of any deceased are dealt with in as sensitive and culturally appropriate a manner as possible. When the death of an Aboriginal person (whether or not a death in custody) is reported to a Coroner it is usual for the Aboriginal Legal Service to make contact and discuss the matter with the Coroner. Burials are permitted as soon as the post mortem is completed (which is usually within 48 hours of the receipt of the body by the pathologist). The State Coroner does not consider that a formal protocol is necessary in order to implement the substance of this recommendation. On occasions relatives object to a post-mortem examination on the basis of religious or cultural beliefs. To ensure that post-mortems are only conducted in these circumstances where the examination is necessary, the Coroners Act 1980 was amended in February 1998 to grant a deceased’s next-of-kin the right to appeal to the Supreme Court if the Coroner decides to proceed with a post-mortem examination despite the next-of-kin objecting. The Supreme Court will be able to order that no post-mortem examination be conducted if the Court is satisfied that is unnecessary. As a compromise, the Court will also be able to limit the extent of the post-mortem examination. Whilst a coroner has a discretion not to order an autopsy in a particular matter, this discretion has tended to be exercised infrequently. It is expected that this amendment will primarily assist relatives of a deceased by ensuring that the coroner gives serious consideration to a request that a post-mortem operation not be conducted and that the coroner will not proceed with a post-mortem examination in these circumstances unless it is necessary. In a 1998 coronial inquiry into an Aboriginal death in custody, the Coroner commended Ros Barker, an Aboriginal Court Liaison Officer (ACLO), for the role she played in the smooth running of the inquest. The Coroner was impressed with the assistance and support the Officer provided to the family of the deceased, witnesses and counsel, and for the advice she provided to the Coroner in relation to the relevant Aboriginal issues and the Aboriginal community. Consequently, the Coroner recommended that an ACLO attend all coronial proceedings involving Aboriginal people before, during and after an inquest, in order to more effectively liaise with all interested parties. Whilst the Department is supportive of the recommendation, funding restraints require that each matter be considered on a case by case basis and that ACLOs only attend particularly sensitive coronial inquiries into Aboriginal deaths, such as those which occur in custody. Implementation status Partially implemented Continued reporting
Protocol for resolving cultural objections to post mortems on all Aboriginal deaths That in developing a protocol with Aboriginal Legal Services and Aboriginal Health Services as proposed in Recommendation 38, the State Coroner might consider whether it is appropriate to extend the terms of the protocol to deal with any and all cases of Aboriginal deaths notified to the coroner and not just to those deaths which occurred in custody. Government’s original position: Supported Revised government position: Supported Agencies responsible for implementation: Attorney General’s Department – State Coroner’s Office Implementation report Section 13 of the Coroners Act 1980 governs the situations in which the Coroner has jurisdiction to hold an inquest. In relation to deaths in custody, this includes (section 13A) those situations where it appears to the coroner that the person has died or that there is reasonable cause to suspect that the person has died:
Inquests into such deaths are mandatory and must be heard by the State Coroner, or a Deputy State Coroner. Where it is not manadatory under the Act to hold an inquest, the Coroner may dispense with the inquest (section 14). Implementation status Not implemented Continued reporting |
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