Indigenous Deaths in Custody

Part D - Implementing the Recommendations

Chapter 11. Accountability and the Reporting Process
Chapter 12. Alternative Mechanisms to Ensure Implementation

We are deeply dissatisfied with the performance to date by various government agencies... there does not appear to be any process beyond monitoring to ensure that effective implementation takes place...

We seek clarification on whether: a) the recommendations bind governments in any way; or b) the recommendations agreed to by governments bind them in any way; or c) either a) or b) might be worth testing in a Court of law as to whether their performance in implementation is adequate.

Correspondence to the Social Justice Commissioner from Hewitt Whyman, Chairman, Binaal Billa
Regional Council, 13 December 1995

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Chapter 12. Alternative Mechanisms to Promote Implementation

Summary

12.1 Recommendations which require legislation, such as those on the principle of custody as a last resort, public drunkenness, the sentencing powers of justices of the peace, prisoners' rights and legally enforceable custodial health and safety rules, have not been implemented. This indicates that a co-ordinated program is required, necessarily involving the Commonwealth and State Law Reform Commissions.

12.2 The recommendations are not mere suggestions. They can have legal implications under the common law relating to negligence, misfeasance in a public office and, potentially, other actions. If a custodial authority breaches recommendations, and that contributes to a death in custody, the custodial authority may be liable in damages.

12.3 The need for accountability in custodial and police settings is greater than ever. Deaths in custody have not decreased, despite the resources that went into the Royal Commission. The Wood Royal Commission in New South Wales has amply illustrated the need for police to be more accountable. Private prisons are being introduced, which must be made accountable for the treatment of prisoners in their charge. The role of the courts in improving accountability must be pressed.

12.4 The first two successful negligence actions by families of persons who died in custody, taken against police and medical authorities, were concluded in 1995 and 1996. As this Report was published a confidential settlement was achieved in favour of the plaintiffs in relation to the profile 39NSW.

12.5 The threat of liability in damages, including exemplary and aggravated damages, is a potentially powerful means of ensuring that prison and police officials have adequate regard for the recommendations of the Royal Commission into Aboriginal Deaths in Custody.

12.6 Various administrative remedies are available to prisoners who are treated in a manner inconsistent with the recommendations. Anti-Discrimination complaints are also possible.

12.7 The Ombudsman or equivalent body must play a greater role in enforcing and monitoring implementation of Royal Commission recommendations in the States and Territories, as well as at Commonwealth level.

12.8 Threats to the funding of Aboriginal Legal Services could set back the process of implementation of Royal Commission recommendations significantly. The Legal Services are virtually the only organisations with the incentive and resources to pursue the legal avenues outlined in this chapter.

12.9 The failure to implement certain recommendations could be pursued in the international arena, particularly the Human Rights Committee.

Introduction

The questions asked by Hewitt Whyman which appear at the beginning of this chapter have been echoed by Aboriginal groups around Australia. In the aftermath of the Royal Commission positive initiatives have emerged from some police, custodial authorities and other agencies. However, studies such as this one support the view that the mere commonsense and moral authority of the recommendations have not led to full implementation. Police and prison cultures are traditionally resistant to what are regarded as 'soft options.' The previous chapter noted the deficiencies in the reporting and monitoring processes initially adopted and used to date.

Alternative mechanisms for the improvement of the justice system are needed. There have been many suggestions of ways to achieve more effective implementation, several of which are discussed in this chapter. One proposal is that the recommendations should be carried into legislation. Another proposal is that various legal remedies should be more widely used, at both domestic and international level. Other suggestions involve the establishment of new structures, institutions or dialogues to secure the goals sought in the recommendations.

The first section of this chapter deals with reforms to the existing institutions and laws which may reduce the destructive impact of the criminal justice system on Aboriginal people. The recommendations are divided into three categories. Section 12.1.a examines the implementation of recommendations which expressly call for legislation. It looks at what is required of legislation implementing a recommendation if it is to have practical effect. Legislative provisions which are not yet implemented despite government commitments are noted. Section 12.1.b addresses the issue of recommendations which are able to be effectively implemented through legislation. Legislative backing for these recommendations is highly desirable. Section 12.1.c addresses the remaining category of recommendation. It would be impractical to implement some recommendations through legislation. Section 12.1.d examines the potential for the implementation of recommendations through the development of a model Commonwealth Criminal Code.

Section 2 contains a fairly detailed examination of the means by which the courts can be utilised under the present law to provide remedies when deaths in custody occur or where Royal Commission recommendations are breached. This part examines possible actions in negligence, assault and battery, breach of statutory duty, false imprisonment, judicial review, misfeasance in a public office, and habeas corpus. Victims' compensation legislation and anti-discrimination laws are discussed briefly. The part concludes with a brief outline of the right to a stay of proceedings, if the right to a fair trial has been denied.

Section 3 examines existing structures. Even where recommendations do not necessarily reflect what is unlawful under the current law, it is possible to enhance the use of existing structures where behaviour in breach of the recommendations is improper, unjust, oppressive or discriminatory. Section 12.3.a considers the Office of the Ombudsman or its equivalent in the various jurisdictions. Section 12.3.b recommends an expansion of the role currently played by coroners. Section 12.3.c briefly discusses the Aboriginal Justice Advisory Committees as an important structure for ensuring that Aboriginal perspectives are taken into account in criminal justice matters. Section 12.3.d looks at the role of visiting justices, who hear charges against prisoners. Section 12.3.e addresses issues relating to Aboriginal Legal Services.

Section 12.4 discusses potential remedies available for Aboriginal people in international law flowing from breaches of the recommendations of the Royal Commission into Aboriginal Deaths in Custody.

Section 12.5 covers new mechanisms to ensure implementation. Section 12.5.a canvasses the proposal for a national summit to address issues leading to Aboriginal deaths in custody. Section 12.5.b addresses the proposal for a national custodial authority which would monitor standards for all forms of custody.

1. Implementation Through Legislation

The state usually demonstrates its commitment to a particular norm or a standard of behaviour by embodying it in a legislative provision. After a controversial death in police custody in Brisbane in 1993 (53QLD), the Brisbane Aboriginal Legal Service submitted a petition containing hundreds of signatures to the Minister Responsible for Aboriginal Affairs 'calling on the Government to immediately legislate into law those 339 recommendations.' 1

In examining the possibility of converting the recommendations into legislation, the recommendations can be divided into three basic categories. First, some recommendations specifically call for legislation to be passed or amended. In some cases these recommendations have not been implemented. If legislation has been passed or amended, the question arises as to whether this is adequate to achieve implementation. Second, some recommendations which do not specifically call for legislation could be implemented by legislative means. The third category consists of recommendations which are difficult or impractical to implement through legislation.

The Commonwealth, states and territories could potentially pass co-operative legislation to implement Royal Commission recommendations in the first two categories. If states did not wish to honour commitments by legislating, the Commonwealth Parliament could exercise its power to make special laws for the benefit of Aboriginal people, 2 or its external affairs power to pass domestic legislation to ensure that it complies with international obligations to guarantee certain civil and political rights and eliminate racial discrimination. 3 Section 109 of the Constitution would have the effect that state laws contravening such Commonwealth legislation would be invalid to the extent that the laws are inconsistent.

Realistically, widely varying state crimes legislation, sentencing legislation, police legislation and prisons legislation will perpetuate a patchwork of criminal justice systems for some time to come. Uniform reform in conformity with the Royal Commission recommendations has proved to be a tall order. The Commonwealth has not taken an adequate leadership role to date.

An analysis of the three categories of recommendations addresses weaknesses in the methods used so far to implement Royal Commission recommendations. The deficiencies bolster the case for specific legislation to implement many of the recommendations.

1.a Implementation of Recommendations which Expressly Call for Legislation

While some legislation passed in response to the Royal Commission recommendations has been valuable, much has been cosmetic, ineffective and inept in achieving the desired outcomes.

i. Custody as a Last Resort

The issue is canvassed in the discussion of the implementation of recommendation 92 (see p for an outline of the responses to this important recommendation).

Uniform criminal and sentencing laws passed with the co-operation of the states may provide one theoretical solution in the long term - see section 12.2.2. In the meantime, the Commonwealth must emphasise the futility of increasing imprisonment rates in the face of stable reported crime rates in forums such as the Standing Committee of Attorneys General. The Commonwealth should take a leadership role to advocate against State and Territory law and order campaigns which produce a contrary result to this recommendation.

The issue of the rising number of Aboriginal people in custody is on the agenda in New South Wales, where the Law Reform Commission is to prepare a report into the sentencing of Aboriginal people in 1997. The review is relevant to recommendation 92. It is crucial that concrete shifts are achieved, and that other states also focus carefully on the problem of Aboriginal over representation in prisons.

ii. Public Drunkenness

One of the foremost recommendations for legislative change was recommendation 79, the decriminalisation of public drunkenness. The Commonwealth does not have the power, or seemingly the will, to induce Queensland and Victoria to decriminalise public drunkenness as such, or to induce Western Australia to decriminalise drinking in public (see chapter 8).

However, the Commonwealth does have the power to intervene to the extent that the laws impact in a discriminatory way upon Aboriginal people. The race power or the external affairs power could in theory be used to prevent the discriminatory impact on Aboriginal people of the offence of public drunkenness. This would satisfy the Commonwealth's obligations under the Convention on the Elimination of All Forms of Racial Discrimination. Realistically, this is not a likely short term development. But again, the Commonwealth must at least take a firmer leadership role at the Standing Committee of Attorneys General to advocate changes to state laws.

iii. Justices of the Peace

Recommendation 98, that Justices of the Peace should not be allowed to determine charges or impose prison sentences, does not specifically call for legislative amendment. Legislative amendments are required if magistrates and judges are to be the only officials with the power to imprison. Justices of the Peace with little training are still sentencing Aboriginal people in Western Australia, South Australia, and Queensland. Research shows that they are more likely to impose sentences of imprisonment than magistrates or judges, especially when sitting alone. 4

In Western Australia, South Australia and Queensland they also determine bail applications, which is tantamount to sentencing in many cases where there are long delays before a court appearance. 5 The case of the man who died in the Ceduna Lockup (1SA) featured a refusal of bail by Justices of the Peace. The Western Australian government recently committed itself to Justices of the Peace retaining this function on cost efficiency grounds. 6 A concession that Magistrates can review sentences is limited by logistical difficulties, 7 but traditionally the original exercise of discretion to impose a sentence is not lightly disturbed on appeal. The current legislation must be changed. Provision for giving judicial officers exclusive powers in these areas should be a feature of a Commonwealth Model Criminal Code - see below.

iv. Prisoners' Rights

Recommendation 329 has not been implemented. It states:

That the National Standards Body comprising ministers responsible for corrections throughout Australia give consideration to the drafting and introduction of legislation embodying the Standard Guidelines and in drafting such legislation give consideration to prisoners' rights contained in Division 4 of the Victorian Corrections Act 1986.

This is a very important recommendation. Specified rights to a safe custodial environment would increase the force of the custodial health and safety recommendations (122-187). At present there is Australian authority that prison rules do not confer private rights of action for breaches, 8 although this is only a general rule (with important exceptions). 9 This issue will be discussed in section 12.1.6.

The above recommendations do not form an exhaustive list of proposals that are inadequately implemented. 10 The examples merely illustrate the lack of will to reform properly the criminal justice system in line with the findings of the Royal Commission. In the sense that legislation was the intended mechanism for implementation of these recommendations, a more comprehensive and effective legislative strategy (rather than an alternative strategy) is needed.

1.b Recommendations able to be Effectively Implemented through Legislation

Not all recommendations expressly call for legislation. However, it is possible that legislation would provide an effective means of implementing certain recommendations which the case profiles indicate have not been thoroughly implemented. When they are considered in light of recommendation 329, which generally calls for legislative rights of a type which other recommendations address, some of the examples which follow about custodial health and safety fall into the category of recommendations requiring legislative implementation.

i. Legislation Setting Out Custodial Health and Safety Standards

Rules for custodial health and safety and other matters usually take the form of prison rules or internal policies. The Royal Commission called for enforceable guidelines and policies. This study reveals that many deaths which have occurred since the Royal Commission involved breaches of the guidelines in these recommendations. Probably the only way that they can be properly enforced is to enshrine them in legislation, which would make agencies liable for their breach when injury occurs as a result.

Recommendations 60, 123, 132, 134, 137 and 138 stipulate that the official policies of corrections agencies and prison medical services, or police standing orders, should reflect minimum standards of conduct and minimum safety requirements. Recommendation 123 calls for policies or standing orders to be in mandatory terms. If these orders or policies are not adhered to, disciplinary provisions in the legislation governing the agency are theoretically available. For example, if police standing orders prohibit placing 'at risk' prisoners alone in a cell, disciplinary proceedings can follow if the order is breached. In practice this rarely happens. The time has come for more substantial legislative support - all custodial staff should be personally accountable.

The establishment of private prisons in Australia increases the public interest in the accountability of custodial bodies and their employees. Agencies currently face the pressure of damaged industrial relations if action is taken, and custodial agencies have internal cultures that inhibit disciplinary action against staff. For example, powerful unions often threaten industrial action if disciplinary action is contemplated. Institutional forces combine to frustrate accountability.

Recommendation 60 requires disciplinary proceedings against police who use rough treatment or offensive language against Aboriginal people. Police standing orders reflect this recommendation, so breaches theoretically lead to disciplinary action.

The implementation reports of states and territories do not reveal the numbers of disciplinary actions actually taken. 11 Agencies use their discretion and bring disciplinary charges sparingly. Even recommendations by the relevant Ombudsman do not guarantee disciplinary proceedings.

In light of the inadequate enforcement of internal policy guidelines, compliance must be enhanced with the imposition of statutory duties on police, prisons and other custodial authorities and their employees.

1.c Recommendations Unsuited to Implementation through Legislation

Legislation is not directly relevant to the implementation of some of the Royal Commission's recommendations. For instance, recommendation 227 calls for a review of a police school-based programme in the Northern Territory to consider its adoption by other jurisdictions. Others call for state-based programmes, such as 95 (Aboriginal driver training courses where driving offences are a significant reason for incarceration). Rather than legislation, these recommendations call for changes to administrative priorities, adequate funding and well designed programmes. This category is arguably the most vulnerable to poor implementation.

Pressure for the implementation of these recommendations must be sustained by the Aboriginal Justice Advisory Committees in each state, community groups and inter-governmental forums such as the Council of Australian Governments (COAG).

The next section examines a possible vehicle for enactment of the first two of the three categories of recommendations. The proposal involves translating the principles of the Royal Commission recommendations into a national Model Criminal Code.

1.d A Commonwealth Model Criminal Code Reflecting Royal Commission Recommendations

The Standing Committee of Attorneys-General (SCAG) is an important forum of Commonwealth and State Attorneys General. It meets to consider working co-operatively on legislative proposals. The forum established a Model Criminal Code Officers Committee within the Commonwealth Attorney-General's Department in 1990. The Committee's role is to develop a model Criminal Code for the Commonwealth by the year 2001. The Criminal Code Act 1995 (Cth) was enacted to set out uniform principles of criminal responsibility. According to the Explanatory Memorandum it was the beginning of a new era for the criminal law of Australia, and the 'first stage in the progressive development of a Commonwealth criminal code which will contain a complete and revised criminal law for the Commonwealth.'

Such legislation could be a vehicle for the implementation of Royal Commission recommendations. A report on Theft, Fraud, Bribery and Related Offences, and more recently a discussion paper on Non-Fatal Offences to The Person, have now been prepared. The code could provide an example to states and territories of effective laws designed to reduce inappropriate Aboriginal incarceration. Part 1C of the Commonwealth Crimes Act, which regulates conditions for the detention of suspects for questioning, is an example of a law which currently provides such an example.

The Model Criminal Code is simply a model. Its completion is a long way off, let alone its adoption by the states and territories. In the meanwhile, the federal system dictates that Aboriginal groups must agitate for change with each state legislature, in the face of law and order campaigns antagonistic to the Royal Commission recommendations. It is clear that the problems identified by the Royal Commission remain matters of grave concern in 1996. Commitment must be reinforced. It is essential that Aboriginal Justice Advisory Committees in the states and territories, as well as the National Aboriginal Justice Advisory Committee, are given the research support they need to provide adequate Indigenous input into the review and drafting of state criminal laws, and at the same time participate in the process of preparing a Criminal Code for the Commonwealth.

2. Implementation through Common Law Actions

The need for accountability in custodial and police settings is greater than ever. Despite the resources that went into the Royal Commission, deaths in custody have not decreased. The Wood Royal Commission into the New South Wales Police Force has amply illustrated the need for police accountability. Private prisons are being introduced, which must be made accountable for the treatment of prisoners in their charge. The United States experience, where there are over one million prisoners, and where media proprietors hold significant share holdings in prisons and therefore have an incentive to push law and order issues beyond the dictates of justice, is alarming. The role of the courts in improving accountability must be pressed.

Many of the Royal Commission recommendations merely formulate what is required by law. This section examines the civil liability of the various custodial agencies which may flow from inadequate implementation. It is possible that more successful utilisation of existing remedies can improve adherence to the recommendations.

A survey of the legal requirements governing custodial health and safety procedures indicates that many of the deaths which have occurred since the Royal Commission not only involved breaches of recommendations, but also unlawful acts under common law or statute. 12 There may be a range of actions available to prisoners if they suffer as a result of inadequate implementation. This part examines possible actions in negligence, assault and battery, breach of statutory duty, false imprisonment, judicial review, misfeasance in a public office, and habeas corpus. Victims' compensation legislation and anti-discrimination laws are discussed briefly. The part concludes with an examination of ex-gratia payments, and a procedure by which criminal proceedings may be stayed if the recommendations concerning the right to a fair trial are not followed. The following should not be seen as a comprehensive list of legal avenues.

Since 1978, the English common law has supported the proposition that a convicted prisoner retains all civil rights which are not taken away expressly or by necessary implication. 13 Prisoners in Australia generally have a right to sue for damages. An extremely conservative High Court decision in 1978 held that the antiquated doctrine of attainder, or 'corrupt blood,' was part of Australian law. The doctrine denies the right of prisoners who are serving sentences for serious offences to sue in the civil courts. 14 This anachronism has been removed from the law in a number of states. 15

A number of potential problems in framing such actions have not stifled a growing number of successful civil actions for wrongful or negligent acts against prisoners. First, there have been conflicting decisions on the appropriate party to sue. 16 It would seem safest to sue an officer or officers, the Department of Corrective Services and/or the Police Department and the Crown in right of the state or territory. 17 Another potential problem results from a controversial decision that the Crown is not vicariously liable for the tortious act of an employee who exercises an independent discretion by virtue of his or her office. 18 However, this principle has never been extended to prison officers.

Provisions excluding liability represent another potential problem. For example, section 46 of the Prisons Act 1952 (NSW) excludes any person from liability for damages for any act done or commanded to be done for the purpose of carrying out the provisions of the Act, unless it was done maliciously and without reasonable and probable cause. 19 Although it appears to be a wide exclusion, section 46 has been interpreted to protect a person doing or commanding an act, but not as protecting a Prison Authority. 20 It has alternatively been interpreted as protecting the Governor but not the State from vicarious liability for false imprisonment. 21 It does not protect a person from liability if something is done for a purpose other than carrying out the provisions of the Act.

A Melbourne barrister wrote recently that 'by and large, damages awards in police cases in Australia are of such low dimensions that they have had minimal impact on the police culture.' 22 The force of his calls for the courts to adopt a more realistic attitude to civil suits, as a spur to police accountability, is demonstrated by a number of cases in this report, and the events uncovered by the Wood Royal Commission in New South Wales. Justice Wood has demonstrated that enormous impediments are placed in the way of permanant bodies whose role it is to ensure that police are accountable. The trend has not been favourable of late in New South Wales, with a 1996 decision that the Police Service is not vicariously liable when its officers assault members of the public (in this case an Aboriginal man). 23 That case may go to appeal.

2.a Negligence

Many cases have now established the principle that custodial authorities owe a duty of care to detainees in their charge. 24 A breach of this duty can result in an award of damages in negligence if there is harm to the detainee, 25 or to a person related to the deceased detainee. 26 The standard of proof in relation to a civil claim is the balance of probabilities. In 1995, in the first case involving an award of damages for an Aboriginal death in custody, it was stated that 'when the liberty of a citizen is constrained by the community, then the community assumes a heavy burden to ensure his or her safety.' 27

Generally, the duty of care for persons in custody extends to protection against risks which are reasonably foreseeable. The terms of particular recommendations adopted by governments may give assistance in establishing what is a reasonable standard of care and what risks are reasonably forseeable. The standard of care is that which a reasonable person would regard as reasonable in all the circumstances of a case. 28 The Royal Commission indicated that the duty attaches primarily to the custodial authority, although the individuals involved are liable if they do not put in practice precepts of their training, observe their orders or directions, or otherwise act unreasonably. 29 The potential liability is significant and is a strong incentive for State governments and custodial agencies to comply with the Commission's recommendations. Lew Wyvill QC concluded that five of the Queensland Royal Commission deaths 'would not have occurred if the custodial authorities had adequately attended to their responsibilities.' 30 Successful negligence actions have concluded in relation to two deaths examined by the Royal Commission, and at least four more have been commenced in relation to post-May 1989 cases. 31

Australian courts have over the past few decades been far more amenable to using the remedy of exemplary damages than English courts. Litigants may seek exemplary damages for wrongs, whether intentional or otherwise, which arise out of behaviour which can be described as wanton, malicious, gross, outrageous, and demonstrating a disregard for another's rights. 32

The following discussion contains a survey of some Anglo-Australian cases in this area, and their applicability to Aboriginal deaths in custody.

i. Quayle v State of NSW 33

The first case involving an award of damages to the family of an Aboriginal person who had died in custody was heard in 1995. 34 Medical officers and police were found to have breached their duty of care in the circumstances in which 23 year old Mark Quayle was transferred from hospital to Wilcannia Police Station. 35 His mother was found to be suffering a 'pathological grief reaction,' and was awarded $56,000 damages. His brothers were awarded $44,800 each.

The facts of that case are not dissimilar to at least two cases outlined in this report. 36 On 23 June 1987 the deceased was depressed and hallucinating, and suffering from alcohol withdrawal. He was, however, sober. His brother took him to Wilcannia Hospital, aware that people experiencing 'the horrors' had been treated there in the past. After his brother left, the nurse spoke to the doctor and decided to call police to take the deceased to the police lock up, where he was detained without lawful arrest. The police had collected him from the hospital and placed him in a totally dark cell, unsupervised and out of earshot. He hanged himself. The next day the police put the body in a bag and drove to find the brothers so they would identify the body.

The claim was based primarily in negligence. Such an action required the plaintiffs to establish a duty of care by the police and the nurse, a breach of that duty and injury to the plaintiffs. Damages can only be awarded for injuries in the nature of a recognised psychiatric illnesses, 37 and the pathological grief reactions suffered by the family members were found to satisfy that requirement. The trial judge allowed an award for nervous shock precipitated by hearing of the death.

The question of whether persons who do not actually witness an event such as a death in custody, and who are not present at the immediate aftermath, are eligible for common law damages has yet to be decided by an appellate court in Australia. It would, of course, be unusual if a relative were physically present in the prison or lockup at the time of a death. The Australian High Court has left the question open. 38

In a recent case in the New South Wales Court of Appeal 39 Justice Kirby expressed the opinion that Australian law allows recovery for nervous shock when news is communicated after the event. Awards in negligence for deaths in custody would be rare under English law, which does not allow damages for nervous shock by report. 40

The mother in Quayle's case relied upon a law peculiar to NSW, the ACT and the Northern Territory which allows a parent or a spouse of a person 'killed, injured or put in peril' by 'the act, neglect or default of another,' to claim for nervous shock irrespective of whether the accident occurred within the sight or hearing of the person suffering the shock. 41 This legislative provision explicitly extends the common law. It does not require that the nervous shock suffered was reasonably foreseeable. The plaintiff's damages are not reduced by contributory negligence or the legal defence that the accident victim voluntarily assumed the risk that the accident would occur. 42 Under the statutory provision any other family members would have had to be in the vicinity of the accident to claim for nervous shock, although they also have the option of suing under the ordinary law of negligence. 43

The case bears significant similarities with case 8VIC, which involves an Aboriginal man who was taken to hospital in an ambulance and was subsequently taken while semi-conscious to a police station.

A second case relating to the death of Lloyd Boney was settled in 1996. 44 Counsel for the NSW Department of Corrective Services was instructed to admit liability, and did so. However, other details of the settlement are confidential.

ii. Howard v Jarvis

In a relatively early Australian case involving a death in custody, the widow of a man who died in a fire in a police cell sued police for failing to make regular checks of his cell, and for failing to confiscate the deceased's matches. 45 It was established that a custodial officer owes a duty of care to prisoners in his or her charge. Although a jury awarded damages, the High Court allowed an appeal because of the nature of the particular facts of the case. The High Court warned against imposing too high a duty of care when the absence of a small precaution, such as failing to search a prisoner for matches, leads to a calamity.

On the facts of the case the Court found that regular checks through the night were not possible because the cell was at a one man police station. The State of Tasmania was not joined as a defendant, so issues of vicarious liability did not arise. If the station had been adequately staffed by several officers but they had not performed regular cell checks, and the State joined as a defendant to the action, the jury's decision could have been upheld against the State on the grounds of vicarious liability. If the police station was inadequately staffed, and this was unreasonable in the circumstances, that fact could form the basis of the State's primary liability as opposed to vicarious liability.

The Royal Commission into Aboriginal Deaths in Custody has put governments and custodial authorities on notice of the importance of adequate staffing and regular checks. 46 Such notice must affect a prudent mind.

The High Court also stated that a reasonable man in the position of the defendant officer might well not advert to the possibility that a fire might be caused by a failure to check for matches. The same could not be said about the failure to, say, remove the means to create a noose from a prisoner known to be at risk of suicide, especially in light of the publicity surrounding the Royal Commission and commitments by state and territory governments to put in place rigorous procedures for the custodial health and safety of prisoners.

The more well known the profiles of deaths become, the greater is the foreseeability of harm arising from similar causes. The circumstances of many deaths in custody have the quality of deju vu. This highlights the critical importance of systems to communicate coronial findings and recommendations. The more deaths in custody occur the higher is the standard of care which may be reasonably expected to safeguard against future deaths.

iii. Kirkham v Chief Constable of the Greater Manchester Police

Damages were awarded against the police in a recent English case for a death in prison custody. An alcoholic with suicidal tendencies told police that he had recently attempted suicide. Bail was refused, and he was placed alone in a prison cell in a remand centre, where he hanged himself. Police had failed to complete a form for prisoners at exceptional risk, and thereby convey to the remand centre information relating to the deceased's suicidal tendencies. 47 Because the deceased had been suffering from clinical depression it was held that his suicidal act was not truly voluntary. It was therefore found that he did not voluntarily assume risk, a defence which was relied upon by the police.

The case was also notable because it considered the maxim ex turpi causa non oritur actio, meaning 'an action does not arise from a base cause.' The maxim had prevented damages actions arising from a suicide. The majority of the Court of Appeal held that, in light of the changing public attitude to suicide, the defence no longer applied.

The police duty of care can continue after sentencing. Responsibility arises from the custodial setting rather than the technical status of the detainee as a sentenced prisoner or as a person held under arrest. Case 39NSW involved a prisoner who had been sentenced, but was still in police cells. The case profiles in the appendix provide examples of cases in which a duty of care may continue even though police or prison custody has been terminated.

iv. Knight v Home Office

Another English case involved an action for damages in negligence when a mentally ill prisoner committed suicide in a prison hospital. 48 Custodial authorities were alleged to have failed to heed the suicide risk, or keep the deceased under observation, or institute an adequate system of care to prevent the suicide, or to provide proper staff and facilities. The deceased committed suicide in the fifteen minute interval between checks. A single judge held that the action failed because the argument was based purely on the fact that breach of duty lay in staffing ratios at the prison hospital - described as grossly and comprehensively inadequate - were not the same as those in certain named psychiatric hospitals. The judge emphasised that it was never argued that an intermediate standard somewhere between the two staffing ratios could have satisfied the duty of care. 49 It was held that there was a duty to prevent suicide in a mentally ill patient, 50 but that the action failed because standards of care differed in different situations. The case is not authority for the proposition that inadequate staffing ratios in prison hospitals do not represent a breach of a duty of care.

An example of a case which might support a claim for negligence for an inadequate standard of psychiatric care can be found in 73SA.

v. Marshall v Osmond

Many of the case profiles in this report outline the deaths of young Aboriginal people killed as a result of accidents following police pursuits. In a recent English case, the Court of Appeal held that the duty owed by a police driver to a suspect is the same duty as that owed by anyone else, namely to exercise such care and skill as was reasonable in the circumstances. 51 Police pursuing a suspected criminal cannot rely on the defence that the suspect has voluntarily assumed the risk of an accident.

The assessment of what is reasonable in the circumstances must take into account the age of the suspect being pursued. Experienced police drivers have a higher standard of care when pursuing young children (see discussion in chapter 6.1).

vi. Dixon v The State of Western Australia

Prison authorities also owe a duty to use reasonable care and take reasonable precautions to prevent prisoners from harming each other. 52 Prisoners can be awarded damages in negligence if they are assaulted by other prisoners and prison authorities should have reasonably foreseen the danger. A Western Australian case involved an award of damages in negligence when one prisoner was assaulted by a mentally ill prisoner. 53 A prison rule imposed a duty to ensure that prisoners are examined by a medical officer upon admission. The court found that the mentally ill prisoner would have been sent to an appropriate institution had he been medically examined in accordance with this rule. The prisoners in 87NSW and 92NSW died when they were bashed or stabbed by other prisoners. A cause of the distress in case 72NSW was the fact that the prisoner had been previously bashed by other prisoners and was fearful that measures were not being taken to prevent this recurring.

Damages in negligence may also be awarded for detention in intolerable conditions, even if no physical injury results. 54 The potential liability could have forced the earlier closure of Endeavour House in case 65NSW, or prevented the use of the segregation cell in the dilapidated and condemned C wing of Townsville prison in 43QLD.

Prisons are more involved in industry than they were a few years ago. A prisoner may sue in negligence if he or she is injured while working in a prison industry and can establish that a duty of care was owed, and the negligence caused the damage. 55 There is some debate about the extent to which occupational health and safety legislation applies in prisons. The issue of the application of industrial relations legislation in custody needs further examination, and is one aspect of litigation currently before the Supreme Court of Queensland. 56

2.b Assault and Battery

Prisoners can sue for damages if they are assaulted by prison officers. A prisoner sued the custodial authority for assault in a recent English case, although the report does not indicate whether he was eventually successful. He was unsuccessful in the House of Lords on an alternative argument of false imprisonment, but the reported case only addresses the issue of whether he could sue under this alternative. 57

An action for assault can also be laid against police. In a 1994 Victorian case $116, 000 of ordinary damages were awarded to a psychiatric patient shot by police.58 In New South Wales, an Aboriginal man who was originally charged and convicted of offensive conduct, resisting arrest and assaulting police managed to have that conviction overturned in the District Court. He later successfully sued the police officer who had broken his jaw. The court found that excessive force was used in the arrest. 59 Damages awarded, however, were low at $12,500. The judgement does not reveal the fact that the Aboriginal man had suffered brain damage in a motorcycle which occurred during the period between the accident and the hearing.

The question of vicarious liability of the Police Service or the State or Territory Government is not clear cut. An early High Court case involving a wrongful arrest established that the Crown in right of a state or territory was not vicariously liable for the acts of public officials performing an independent discretion conferred upon them by statute. 60 However, by statutory amendment, the Crown in right of New South Wales and South Australia are vicariously liable for the tortious acts of public officials, including police officers, regardless of whether or not they are performing an independent function conferred upon them by statute. 61 Vicarious liability for the acts of police has been legislatively established in some of the other jurisdictions. 62

A recent New South Wales case provided a finding that the crown in right of the state was not vicariously liable for the acts of its police officers where they bashed an Aboriginal man. To use the legal term of art, they were found to be engaging in a 'frolic of their own' rather than performing duties connected with their employment. 63 However, the case may go to appeal. This argument could not be relied upon where the state ratifies the acts of the police officers, which the state could do by proceeding with a prosecution arising out of circumstances in which police assaulted someone. 64 There may also be direct liability if policies can somehow be demonstrated to have encouraged or tolerated assaults.

The need for courts to forgo their reluctance to award damages against Australian police is illustrated most graphically by a 1989 Queensland case. 65 Police gratuitously punched, kicked and jumped repeatedly on an Aboriginal man who had been taken into custody for using offensive language.

A constable then urinated on him while two sergeants passively watched the 'cowardly and unseemly assault' (in the words of the court). Instead of accepting responsibility, the police used taxpayers money to appeal (unsuccessfully) against the very modest amount awarded - $5,000 ordinary damages, $10,000 aggravated damages, and $10,000 exemplary damages.

Assault charges can also be used to remedy rough police behaviour, such as the inappropriate use of handcuffs. The power of the police carries with it the implied power to handcuff the arrested person, but only when justified in order to prevent the person escaping, or endangering the safety or property of others. Those who are unnecessarily handcuffed are entitled, at common law, to bring an action for damages for the indignity and embarrassment suffered. 66 Cases such as 8VIC demonstrate possible circumstances in which such an action could be pursued.

2.c Breach of Statutory Duty

To maintain an action for breach of statutory duty, it is necessary to show that the legislature intended to confer a civil right of action for the breach. This can be done by establishing that:

1. a statute was passed for the benefit of an ascertainable class of persons, so that members of the class can sue (when passed for the benefit of the community as a whole, there is no right of action to individuals);
2. the statute makes express provision for its enforcement, an action for damages being more likely if it does not;
3. the common law grants a remedy, the action for breach of statutory duty operating to supplement it; and
4. the statute creates a public right and a particular member of the public suffers damages other than, and different from, that which was common to the rest of the public.

Attempts have been made to sue prison officials for breach of statutory duties contained in prison rules. 67 The trend so far has been discouraging for those seeking to use this tort to enforce the recommendations of the Royal Commission.

There is a line of authority which states that a breach of the prison rules creates no civil liability on policy grounds. 68 The basis of this policy is 'that if prisoners could resort to legal remedies to enforce gaol regulations, responsibility for the discipline and control of prisoners in gaol would be in some measure transferred to the courts administering justice.' 69 The rules were therefore 'merely regulatory.'

i. Hague v The Home Office; Weldon v The Home Office

A recent case from the United Kingdom considered liability for breach of statutory duty in the context of a breach of prison rules. The facts involved the segregation of a prisoner serving a 15 year sentence, who was described as a 'trouble maker.' The decision to segregate him was made in good faith, but was technically in breach of the prison rules because the governor at the prison which formerly held the prisoner made a decision which should have been made by the governor at the prison to which he was transferred. 70 The facts were not ideal for a test case. Lord Jauncey, in a conservative judgment, held that prison rules were merely regulatory and never give rise to damages for breach of statutory duty. 71 He noted that prison rules cover a wide range of matters - central administration, prison officers, confinement and treatment of prisoners, release of prisoners on licence, and the provision and maintenance of prisons and offences. He felt that the rules were not intended to protect prisoners against loss, and that even those dealing with the safety of prisoners did not give prisoners any private legal rights for breaches of statutory duty. 72 Lord Goff agreed with him.

On the other hand, Lord Bridge held that a particular provision of the rules may be examined to determine whether it gives rise to an action. He found that the particular rule governing segregation did not give rise to an entitlement for damages for acts performed in good faith, albeit invalidly. He specifically rejected the proposition upon which Lord Jauncey relied - that parliament did not give the Secretary of State the power to confer a right on prisoners when it allowed him or her to make the prison rules. Lord Bridge gave the example that rules to protect prisoners working in prison workshops could give rise to claims for breaches of statutory duty. 73 He also noted that unlawful segregation could give rise to one of the other actions outlined in this chapter. Lord Ackner agreed with him. 74 Lord Lowry did not indicate his views.

There are indications that Australian courts will no longer follow the policy preferred by Lord Jauncey and Lord Goff. The policy was once also the basis of a blanket crown immunity. 75 This immunity has diminished in many areas, and is now seen as antiquated and contrary to the public interest in accountability and fairness. Extremely restrictive reasoning was evident in earlier Australian cases, 76 but has been criticised or not followed in subsequent cases. 77 Important recent cases adopt less restrictive reasoning, similar to that of Lord Bridge and Lord Ackner in Hague. 78 That prison rules do not confer private legal rights is a fair generalisation, but rules for the custodial health and safety of prisoners which satisfy the above criteria may in all probability do so. The decision may well have been different if the prison officer had not acted in good faith.

Another basis for suggesting that the position in some Australian jurisdictions might be different is that prisoners' rights have been set down in legislation in the Victorian Prisons Act. It is much more likely that breaches of provisions expressly granting rights give rise to actions for breach of statutory duty. The 'experiment' has not resulted in massive liability, but rather in safer custodial conditions. The Victorian record in relation to Aboriginal deaths in prison custody has been comparatively good. Compared to the circumstances of deaths in other jurisdictions, the two Victorian prison deaths in the seven year period were not obviously avoidable.

2.d False Imprisonment

Prisoners or detainees in police cells may sue for damages for false imprisonment if they are detained unlawfully. A right to damages is recognised by the common law and under international instruments to which Australia is a party. 79 The remedy would have arguably been available in two Queensland cases involving Aboriginal women removed from private homes and charged with public drunkenness (32QLD, 38QLD). An Aboriginal man died after having been fined and discharged but not released (See 65WA). An Australian case in which damages were awarded for false imprisonment proceeded on the basis that prison rules governing the calculation of remissions gave rise to private rights. 80

It is possible that prisoners can legally enforce recommendations 180 and 181, which require that Aboriginal prisoners are not unlawfully or unnecessarily segregated. The issue has not been litigated in Australian courts.

Recent English cases have considered whether a prisoner can sue for damages for false imprisonment if he or she is improperly put in segregation. The courts initially indicated that a prisoner has 'residual liberty' despite his sentence, and also that intolerable conditions of incarceration could change a legal imprisonment to actionable false imprisonment. 81

In two subsequent cases, it has been held that a prisoner's residual liberty does not render a custodial authority liable if a prisoner is detained in good faith by a person given a broad power under the Prisons Act. 82 In one of the cases, a prisoner was allegedly taken without cause to a strip cell by three officers, assaulted, and left naked for a night in the cell. It was held that he could not sue the custodial authority for false imprisonment because the conditions in segregation were intolerable. 83 The court reasoned that false imprisonment concerns only the lack of lawful authority to justify imprisonment - an invalid exercise of a power to arrest, or an invalid warrant - although the prisoner could pursue other causes of action.

First, a prisoner could sue the prison officer if the power to segregate was exercised in bad faith by a prison officer. This is significant. In Weldon, counsel for the prisoner did not argue that the pleadings disclosed bad faith. 84 It has subsequently been recognised that a custodial authority can be vicariously liable if a prison officer engages in a misguided and unauthorised method of performing authorised duties. 85

Second, where the original incarceration was lawful but the segregation was unlawful a prisoner can seek judicial review of the decision to segregate, or seek damages for negligence, assault, or misfeasance in the exercise of a public office. 86 The prisoner allegedly beaten in the strip cell in Weldon was able to pursue a claim in damages for assault, despite the House of Lords holding that false imprisonment should be struck from the pleadings.

The reasons given for not allowing an action for false imprisonment are open to criticism. The argument that improper segregation in a prison is not actionable because a sentenced prisoner would then have to be released has been criticised as unconvincing. 87 The prisoner would merely have to be released from segregation.

The reasoning that allowing actions for false imprisonment for breach of prison rules in undesirable because it amounts to allowing an action for breach of statutory duty through the back door (where that action is unavailable) has superficial attraction. 88 However, if the segregation was in bad faith an action for false imprisonment may lie against a prison officer. 89 In that case, a custodial authority would be vicariously liable irrespective of whether this is equivalent to an action for breach of statutory duty. 90

Neither prisoner had a remedy in false imprisonment against the custodial authority on the facts of Weldon or Hague. Prisoners have a residual liberty if they are falsely imprisoned by a fellow prisoner or an officer acting in bad faith. 91 However, Weldon has already been distinguished by the House of Lords, and its reasoning is open to criticism. 92

It is likely that an action for false imprisonment could lie in Australia where a prison officer has segregated a prisoner in bad faith. A partial deprivation of liberty, requiring intent, may be the subject of an action on the case on proof of damage. 93

The breadth of the power of a prison governor to do anything required for the discipline and good order of a prison may mean it is very difficult to prove that segregation amounts to false imprisonment, particularly against a governor rather than a prison officer.

2.e Judicial Review

Prisoners can seek judicial review of administrative decisions made by prison governors and other decision makers under state legislation governing prisons or police. 94 It is possible that a court would find, in light of the bipartisan Commonwealth, state and territory commitment to the Royal Commission recommendations, that a decision could be challenged for unreasonableness if a relevant recommendation was not considered in reaching an administrative decision.

A South Australian case involved a successful challenge to the basis of decisions by prison governors to place a prisoner in segregation, 95 but the decision was overturned on appeal. 96 A prisoner in New South Wales successfully challenged a decision to refuse day leave on the grounds that irrelevant considerations were taken into account in a decision of the Director-General of Corrective Services. 97 The grounds for review of administrative action which have developed at common law are based on three fundamental principles. An administrator must not erroneously construe the law, must not act in 'excess or want of jurisdiction,' 98 and the procedure by which the administrator reaches a decision must be fair. 99

These doctrines are expressed in various grounds of review: illegality, 100 irrationality and denial of natural justice. 101 An additional ground, an error of law on the face of the record was considered in Craig v SA. In Craig, a case about a decision by a District Court Judge to grant a stay of prosecution until a defendant in a criminal matter obtained adequate legal representation, the High Court took a restrictive view of what constitutes an error of law on the face of the record, at least where the decision is one of an inferior court. 102 It is relevant to prisons in contexts such as decisions of visiting justices (although their role has been steadily wound back by parliament in New South Wales), bail decisions made by justices of the peace and magistrates, and perhaps the decisions of parole boards.

There is uncertainty about the extent to which damages are available as a remedy under administrative law. 103 The so-called 'Beaudesert Principle,' which protects one person's lawful activities from the deliberate, unlawful, and positive acts of another,' was recently overturned. 104 An action on the case is still available if a person intentionally compels a person, by means of a threat of an illegal act, to do some act whereby loss accrues to that person. 105

A number of remedies are available only in administrative law. Prohibition is issued to prevent a tribunal from proceeding to exceed its jurisdiction. Certiorari is only available in order to quash the relevant decision. The remedy of mandamus can be used to compel an administrator to exercise power or jurisdiction where there has been a failure or refusal to exercise power or jurisdiction. The equitable remedies of injunction and declaration are also available.

2.f Misfeasance in a Public Office

A prisoner can recover damages if a prison officer or a police officer abuses his or her office by acting with the object of harming a prisoner or suspect in some way, knowing the actions are invalid, and the prisoner suffers damage as a result. 106 A recent case has indicated that a custodial authority, as an employer, can be liable for deliberate and malicious acts of prison officers or police if the acts are an unauthorised way of doing something that is authorised. 107 The harm must have been foreseeable. 108

2.g Habeas Corpus and other Legislation

The English Habeas Corpus Acts of 1640, 1679 and 1816 require that prisoners illegally imprisoned must be released, and also provide for damages for false imprisonment. Prisoners in New South Wales, Victoria and Tasmania are protected by the Acts. 109 Case law indicates that the writ survives in Western Australia. 110

A High Court case involved an unsuccessful attempt to plead habeas corpus by a prisoner who was held despite accruing sufficient remissions to allow his release under the prison rules. The case failed. The rule allowing release was not in mandatory terms. 111 If it was, the case would have succeeded. The Habeas Corpus Acts are almost certainly still in force in Queensland, South Australia, and the Northern Territory, although not in the Australian Capital Territory. 112 In practice, the writ is used to secure the release of prisoners held without lawful arrest or without a valid warrant of commitment, but there has been little need to rely on the laws for damages because a civil action for false imprisonment is generally available.

The Bill of Rights 1688 (UK) 1 Will & Mar sess 2 c 2 provides that 'excessive baile ought not to be required nor excessive fines imposed nor cruel and unusual punishments inflicted'; words later incorporated into the eighth amendment to the US Constitution. The provision has been relied upon in dissent in a recent case, 113 and may yet be of use in improving conditions in the criminal justice system. Appalling conditions revealed by the New South Wales Royal Commission into Prisons, presided over by Justice Nagle, arose despite the existence of this remedy. 114

2.h Anti-Discrimination Actions

It is unlawful under the Racial Discrimination Act 1975(Cth) and the various State and Territory anti-discrimination enactments for police, prison employees or courts to treat people unfavourably because of their race. The Equal Opportunity Commissions in the states and territories and the Human Rights and Equal Opportunity Commission can accept such complaints.

In 1996, the NSW Equal Opportunity Tribunal heard a complaint by three inmates of Long Bay Prison in Sydney who alleged that they were placed in segregation because of their race. The inmates sought damages. A decision has yet to be handed down. Recommendations 180 and 181 call for proper procedures for the determination of charges in prisons, with no unnecessary segregation for Aboriginal inmates. Anti-discrimination legislation provides a potential means of enforcing the recommendations.

Anti-discrimination actions have also been utilised by Aboriginal staff employed within the police service and the prison system.

There are many other ways legislation such as the Racial Discrimination Act (Cth) 1975 or its state and territory equivalents can be used to enforce the recommendations. For example, there is allegedly a practice of police detaining one member of a group of Aboriginal people for public drunkenness, not for any particular action but merely to break up a group. Essentially the object is to remove Aboriginal people from the streets. This is a breach of recommendation 87.115 It is also a breach of section 9 of the Racial Discrimination Act 1975 (Cth) if Aboriginal people are targeted. Similar circumstances are described in the case of the man who died in the East Perth Lockup (65WA).

The prohibition of indirect racial discrimination could be used to remedy the refusal of bail on the basis of a criterion which applies to all (or is 'facially neutral' in the terminology of anti-discrimination law) but which impacts disproportionately on Aboriginal people. 116

2.i Victims' Compensation Legislation

The New South Wales government has recently moved to prevent prisoners from obtaining compensation when they are the victim of criminal assaults while serving their prison term. The restriction does not apply to fine defaulters, but applies to prisoners sentenced for minor crimes. 117

The media was fed with information about a person convicted of the murder of a child applying for victims compensation. The prisoner had suffered horrendous torture at the hands of fellow inmates. The use of such an extreme example to justify the termination of victims compensation to prisoners is misleading and deceptive. The highest over representation of Aboriginal prisoners in Australian prisons occurs not in the very serious categories, but for driving offences. 118 It is grossly unfair that these prisoners have this remedy denied to them if they are injured as a result of the criminal acts of another inmate or a prison officer.