Patrick Dodson (WA, Australian Labor Party, Shadow Minister for Indigenous Affairs and Aboriginal and Torres Strait Islanders (Senate)) Share this | Link to this | Hansard source

I wish to make some comments in relation to a duty of care for those in custody and particularly first nation peoples. The Royal Commission into Aboriginal Deaths in Custody, after considering what happened in the lives of 99 first nation peoples, recommended that governments ensure that police services, correctional services and authorities in charge, particularly of juvenile centres, recognise that they owe a legal duty to the persons in their custody. But the standing instructions to the officers in those authorities specify that each officer included in the arrest, incarceration or supervision of a person in custody has a legal duty of care to that person and may be held legally responsible for the death or injury of the person caused or contributed to by the breach of that duty. They also specify that those authorities ensure that such officers are aware of their responsibilities and are trained appropriately to meet them, both on recruitment and during their service.

A duty of care is an obligation of officials who have another human being in their legal custody. It is a heavy burden and requires great diligence in its execution. The Crown has a duty of care to its citizens, and that's to all its citizens. Citizens generally reciprocate through their responsibilities and obligations in a civil society. In our modern democratic society, this balance is essential to its quality and to the essential ethics by which it behaves.

When people come into contact with the justice system, particularly the criminal justice system, through some form of custody, the state has a responsibility to keep them safe, because their normal freedoms are removed or severely restricted. But it seems that this is not always made clear to public servants in the domain of criminal justice—police officers, custodial offices, nurses and other agents—and it's not kept in the front of their minds.

Whilst the Royal Commission into the Protection and Detention of Children in the Northern Territory did not deal with deaths in custody, it had much to say about the lack of duty of care and the breaching of human rights standards. Let me highlight a couple of tragic, reprehensible, recent incidents where death in custody has occurred. I apologise in advance to the families and friends who may be watching this or hearing about this for raising the names and the circumstances of their loved ones.

On August 2014, Ms Dhu, 22-year-old Aboriginal woman, was taken into police custody and detained at the South Hedland police station because she hadn't paid some fines. In two days time she would be dead. When she sang out in pain, begging for medical help, the people in charge said they thought she was faking it. She was taken to hospital. The hospital sent her back to the cells. Footage showed her being dragged across the floor of the cell, apparently unconscious and then into a corridor where she was then carted by her arms and legs into the back of a police van and locked inside. At the Hedland Health Campus, one hour later she was pronounced dead. She died of septicaemia—a preventable death.

In January 2012, 28-year-old Kwementyaye Briscoe was arrested for being drunk and taken to the Alice Springs watch house. A few days later he was dead. Footage showed Kwementyaye thrown across the floor by an officer, falling on the floor and bleeding to death from his head. The court was told he did not receive any medical treatment. The coroner found the police officers were utterly derelict in their duty and the death should never have happened. Kwementyaye had committed no crime and did not deserve to die like this.

Again, a lack of duty of care was highlighted in Western Australia, my home state, in 2008 in the death of Mr Ward, who died locked in the back of an unair-conditioned security van in extreme temperatures in the desert lands of the state. Mr Ward suffered third-degree burns; his skin blistered from the heat. He died a horrible death—another Aboriginal life that authorities or their agents could not be bothered with.

Earlier this year, 35-year-old Eric Whittaker lay dying in a bed in Westmead Hospital after being taken into custody. There are conflicting views as to how he sustained a head injury which led to a brain haemorrhage. Despite being declared brain dead for nearly 15 hours, the custodial officers kept his ankles in chains while the family grieved beside the bed. Do any of these examples sound like those individuals understood their duties of care? It tells me that the common law concept of duty of care is in need of greater attention and that responsibilities and penalties need to be spelt out more clearly and more often. Back in 1994, after the death of an Aboriginal man in the East Perth lockup in Perth, Western Australia, the police union secretary said:

It is totally unreasonable for police who catch the crooks to then be accountable for their welfare.

I hope that this attitude has changed.

The recent Northern Territory royal commission tells us of human rights abuses and the complacency of governments and officials that underpin the abuse of youth whilst they are in the justice detention system. The issues highlighted do not begin and end at the Northern Territory borders. The light has been shone on the darkness of Don Dale. Now it has to shine on the jurisdictions across Australia. I would just remind this chamber that, since the Royal Commission into Aboriginal Deaths in Custody, over 340 first nations people have died in custody. Those in custody have no freedom and are subject to the powers of the state under the name of the Crown. I would hope Her Majesty, if she was appraised of these circumstances, would demand something be done to at least bring honour to her name and her position, if not for the first nations peoples.

The royal commissions have made it clear that not only have authorities with power neglected their duty of care but, in many cases, it would seem they have acted in opposition to it in a culture of bullying, brutality and lack of honour. The lives Ms Dhu, Mr Ward, Kwementyaye Briscoe, Eric Whittaker and many others demand better of us. The youth identified in that horrible footage and in that horrible place—Don Dale, the subject of the royal commission—certainly demand better of us. Whether it is the police, nurses, custodial services or prison officers, anyone who has control over the lives of first nations people in custody have to have a clear understanding of what their obligations are, how to fulfil their roles and be held accountable if their duties are not exercised to the highest standards of diligence and duty.

It is high time we recognise that we are facing, yet again, a national crisis in the juvenile justice domain and more generally in the criminal justice domain as far as first nations people are concerned. The time has come to consider seriously the need to legislate the common law notion of a duty of care to set out what is required and what penalties there will be for its breaches. Like the royal commission's findings and the recommendations in the Northern Territory royal commission, the way a duty of care is being exercised in custodial circumstances needs to be placed urgently on the COAG agenda.

I urge the government to take a leadership role with regard to this and to also honour its obligations in implementing and responding to the recommendations of the Northern Territory royal commission into juvenile justice. These are matters of great weight. They are concerning. They go to the reputation and heart of us as a nation. We should respond accordingly and ensure that our jurisdictions across Australia have higher standards than what we are seeing with this duty of care.