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Commission submissions: Presley et al

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IN THE CORONERS COURT
OF THE NORTHERN TERRITORY INQUEST INTO THE DEATHS OF

KUMANJAY PRESLEY

KUMNANARA COULTHARD

KUNMANARA BRUMBY

SUBMISSIONS BY THE
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

A Introduction

  1. This is an inquest into the circumstances of the deaths of two Aboriginal men (approximately 37 and 21 years old) in Mutitjulu and one Aboriginal boy (approximately 14 years old) in Willowra. Without seeking to pre-empt any findings by the Coroner, the deaths all appear to be related to the sniffing of petrol.

  2. These written submissions are made by the Human Rights and Equal Opportunity Commission (‘the Commission’) pursuant its functions relating to human rights under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘HREOC Act’), to assist the Coroner in the conduct of this inquest. In particular, the submissions seek to set out the human rights principles that are relevant to the conduct of the inquest and the issues that seem likely to arise in it. They also provide some information that may assist the Coroner on the issue of petrol sniffing.

  3. The Coroner is empowered to receive such submissions pursuant to s 39 of the Coroners Act which provides that a coroner may be informed ‘in a manner the coroner reasonably thinks fit’. The Commission further submits that it has, by reason of its functions relating to human rights, a ‘sufficient interest’ in the inquest to have a right to make submissions pursuant to s 40(3) of the Coroners Act.

B The Human Rights and Equal Opportunity Commission and the Aboriginal and Torres Strait Island Social Justice Commissioner

  1. The functions of the Commission as set out in section 11(1) of Part II Division 2 of the HREOC Act include:

    1. to promote an understanding and acceptance, and the public discussion, of human rights in Australia: s 11(1)(g);
    2. where the Commission considers it appropriate to do so with the leave of the court hearing the proceedings and subject to any conditions imposed by the court, to intervene in proceedings that involve human rights issues: s 11(1)(o); and
    3. to do anything incidental or conducive to the performance of any of the preceding functions: s 11(1)(p).

  2. The Commission also has functions under the HREOC Act specific to Aboriginal and Torres Strait Islander persons, including ‘to promote discussion and awareness of human rights in relation to Aboriginal persons and Torres Strait Islanders’ (s 46C(1)(b)). These functions are performed by the Aboriginal and Torres Strait Islander Social Justice Commissioner (‘the Social Justice Commissioner’) on behalf of the Commission.

  3. Relevant to the present matter, the expression ‘human rights’ is defined in s 3 of the HREOC Act to mean the rights and freedoms recognised in the International Covenant on Civil and Political Rights (‘the ICCPR’)1 and the Convention on the Rights of the Child (‘the CRC’)2. The Social Justice Commissioner is also required to have regard to a broader range of ‘human rights’, including the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’).3The human rights relevant to the present inquest are set out in part D of these submissions, below.

  4. The Commission and the Social Justice Commissioner have carried out a range of other work relevant to the present matter, including:

    1. Appearance before the inquest (ongoing) before the Queensland Deputy State Coroner into the death of Mulrunji on Palm Island to make submissions human rights issues, especially relating to the human rights of Indigenous people.
    2. Appearance by the Commission before the Western Australian Coroner in the Inquest into the Death of Nurjan Husseini and Fatimeh Husseini (Ashmore Reef) Ref No 29/02) to make submissions about systemic issues related to the deaths the subject of that inquest.
    3. The publication by the Social Justice Commissioner of the Social Justice Report (annually since 1993), to report on the enjoyment and exercise of human rights by Aboriginal peoples and Torres Strait Islanders. Chapter 4 of the 2003 Social Justice Report is entitled ‘Responding to petrol sniffing on the Anangu Pitjantjatjara Lands: a case study’. A copy of that chapter is annexed to these submissions at annexure ‘A’.
    4. Submissions to the United Nations Committee on the Rights of the Child relating to the rights of Indigenous children: http://www.humanrights.gov.au/social_justice/croc/sub1.htm.

C Relevance of Human Rights to the Inquest

  1. The Commissioner submits that the Coroner should have regard to relevant human rights principles in the conduct of an inquest. Such an approach follows from the accepted principle of the common law that ‘a statute of the Commonwealth or of a State is to be interpreted and applied, as far as its language permits, so that it is not in conflict with the established rules of international law’: Kartinyeri v Commonwealth (1998) 152 ALR 540, 599 (Gummow and Hayne JJ).

  2. The Commission submits that human rights principles are relevant both to the conduct of an inquest and to the scope of recommendations that may be made by a Coroner. In the present context, it is the Commission’s submission that human rights principles support the taking of a broad, systemic approach to the inquest and the making of broad, systemic recommendations that may prevent future deaths in similar circumstances.

D Human Rights Relevant to the Inquest

  1. The following human rights are relevant to the present inquest:
  • a) The right to life

Article 6(1) of the ICCPR provides that:

    Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

The protection of this right requires positive measures to be taken to prevent death. Joseph, Schultz and Castan note that ‘Article 6 has both a negative component, as in a right to not be arbitrarily or unlawfully deprived of life by the State or its agents, and a positive component, in that the State must adopt measures that are conducive to allowing one to live.’4 Such approach has been confirmed by the Human Rights Committee in General Comment 6 which provides that ‘the protection of this right requires that States adopt positive measures’.5

Such a requirement for positive measures extends further in relation to children, the CRC imposing a specific obligation to ensure the survival and development of children. Article 6 of the CRC provides:

    1. States Parties recognize that every child has the inherent right to life.
    2. States Parties shall ensure to the maximum extent possible the survival and development of the child.
  • b) Protection and care of children

An obligation to protect and care for children also arises in the following articles of the CRC.

Article 3(1) of the CRC provides that:

States parties undertake to ensure the child such protection and care as is necessary for his or her wellbeing, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

Article 19(1) of the CRC provides:

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the case of parent(s), legal guardian(s) or any other person who has the care of the child.

  • c) Economic, Social and Cultural Rights

Article 12 of ICESCR provides for a right to health. It states, relevantly:

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

…

(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

E Scope of the Inquest

  1. The Commission has received a copy of a submission to the inquest by the manager of the Mutitjulu Working Together Project, dated 20 June 2005. That submission provides detail of the nature of the problem of petrol sniffing in Mututjulu including, importantly, an analysis of its causes and proposals for addressing the problem.

  2. The Commission understands from communications with counsel assisting the Coroner that the submission raises many of the issues which will be considered at the inquest and that more statements are being obtained that provide further detail of those issues. In particular, it is understood that material is being obtained from the NT and Commonwealth governments outlining their current strategies in the area of petrol sniffing.

  3. The Commission submits, with respect, that such a broad approach to the inquest is both appropriate and necessary.

  4. The approach is appropriate as it will enable the Coroner to be properly informed about the broader causes and circumstances of the deaths under investigation and so be able to make comment and, if appropriate, recommendations to the Attorney-General on matters going to public health and safety, pursuant to ss 34(2) and 35(2) of the Coroners Act.

  5. The approach is necessary as it is only through a broad and thorough inquest that the human rights protections identified above can be given effect. The Commission submits that the right to life can only be adequately protected if systemic causes of deaths are comprehensively investigated and recommendations made that will prevent future deaths in similar circumstances.

  6. Such an approach is also required by the CRC to ‘ensure to the maximum extent possible the survival and development of the child’. Furthermore, the obligations imposed by the CRC require all appropriate legislative, administrative, social and educational measures to be taken ensure the wellbeing of children and their protection from  all forms of harm. Similarly, the right to health contained in ICESCR requires the taking of positive steps, such as ensuring access to medical services, to achieve the full realization of that right.

  7. The Commission submits that these human rights obligations can only be adequately met if systemic problems relating to the deaths are fully investigated, enabling recommendations to be made as to the measures that may be taken to avoid future deaths and lesser forms of harm.

  8. The Commission therefore submits that the Coroner should continue to seek and receive material that will enable the underlying social causes of the present deaths to be adequately investigated and understood. While it may be that the issues are substantially similar for the Mutitjulu and Willowra communities, the Commission would encourage the Coroner to seek information similar to that provided for Mutitjulu for Willowra to ensure that any needs specific to that community can be addressed.

  9. The Commission notes that the September 2002 inquest by the South Australian Coroner into the deaths of Kunmanara Ken, Kunmanara Hunt and Kunmanara Thompson provided a comprehensive analysis of issues relating to petrol sniffing in the Anangu Pitjantjatjara lands and other Aboriginal communities in Central Australia. The Coroner made a range of detailed findings and recommendations.6

  10. In September 1998, the Northern Territory Coroner handed down his findings following an inquest into the death of a child from petrol sniffing, which included a recommendation relating to rehabilitation facilities for petrol sniffers in Alice Springs.

  11. The Commission submits that it may be appropriate for the Coroner in the present inquest to review the findings and recommendations of those inquests and consider the extent to which progress has been made in dealing with the problem of petrol sniffing in Central Australian Aboriginal communities.7

  12. The Commission also submits that in conducting the inquest, it is appropriate to seek to ensure that Indigenous people are involved in the process of identifying matters that might be recommended by the Coroner to address substance abuse and enhance community primary health care education. The Commission further submits that, in formulating any such recommendations, it would be appropriate to consider how Indigenous people might be involved in their implementation. Such an approach would be consistent with the right to self-determination (see, for example, article 1(1) of ICESCR which provides ‘[a]ll peoples have the right of self-determination’).

  13. Annexure A to these submissions is chapter 4 of the Social Justice Commissioner’s 2003 Social Justice Report which examines the 2002 recommendations of the South Australian Coroner and their implementation in the year following their release, to assist the Coroner in the present matter.

F Scope of Recommendations

  1. The Coroner is empowered to comment and/or make recommendations to the Attorney-General on matters including public health or safety (ss 34(2) and 35(2)). The prevention of death and other harm from petrol sniffing falls clearly within the scope within which the Coroner is able to comment.

  2. Consistent with the approach outlined in part E above, the Commission submits that the Coroner should seek to make comprehensive recommendations pursuant to these powers. It is through such comprehensive recommendations that the right to life and the rights of children to survival and development can best be protected. Such recommendations may provide the basis for concrete action to be taken by governments and service providers and may also provide the basis for monitoring the extent to which action is being taken to address these issues.

Human Rights and Equal Opportunity Commission Legal Section

4 August 2005

Endnotes

  • [1] Opened for signature 16 December 1966, 999 UNTS 171 (generally entered into force 23 March 1976, article 4 entered into force 28 March 1978).
  • [2] Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
  • [3] Opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).
  • [4] Joesph, Schultz and Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, 2nd edition, 2004, 155 [8.01].
  • [5] Human Rights Committee, General Comment 6, para [5]. Examples given by the Committee are measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics.
  • [6] Findings of the South Australian State Coronial Inquest into the Deaths of Kunmanara Ken, Kunmanara Hunt and Kunmanara Thompson, 6 September 2002:  http://www.courts.sa.gov.au/courts/coroner/findings/findings_2002/kunma…
  • [7] Finding of the Northern Territory Coronial Inquest into the Death of Esky Muller, 2 September 1998.

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