God’s law and the law of the State

What happens when you have a particular group in society who are not minded to follow the law of the State, but prefer to follow God’s law as they interpret it?

Recently this question has come up in relation to Sharia law, particularly after the Archbishop of Canterbury said that some aspects of sharia law would inevitably be adopted in Britain. But the question doesn’t just arise in relation to Islam. Many religions have a group within who prefers the laws of God to the laws of the State. For example, orthodox Jews in Australia may take some disputes between one another to the Beth Din, a religious court where rabbis hand out judgment. And some indigenous Australians may prefer that a dispute be dealt with under traditional law rather than “whitefella law”.

My personal opinion is that as long as the law of God does not transgress fundamental human rights, then parties can consent to that particular law binding their actions. It is rather like an agreement to arbitrate in a contract where any disputes are referred to a mutually agreed arbitrator. The problem occurs when a particular practice or punishment which is said to be required by the law of God or tradition is illegal under the laws of the State: eg, stoning, spearing through the leg, promise of child brides etc. My personal opinion is that such things should not be allowed. The issue is slightly more vexed with indigenous tradition than it is with other religious laws because indigenous people didn’t “choose” to move here and to be subject to our laws, they were imposed upon them from colonisers. Nonetheless, as I have explained in one of my very early posts, as a feminist, I just cannot countenance the assault and rape of a teenage “promised bride” by her tribal husband, for example. Cultural relativism be damned.

It is a difficult question however, because it is a balance between religious tolerance and universal human rights (which should apply to all, regardless of race or religion or anything else).

Consequently, I was really interested to read this article in Slate about the American legal system and the Amish and the Mormons. I hadn’t really thought deeply about the conflict that would arise between State law and the traditions and laws of these two groups.

Amish are Anabaptists of Swiss-German origin who live in separate communities. They dress in conservative dress, do not use much modern technology and do not educate their children beyond 8th grade because of the “worldly values” they might learn. Study is focussed on the Bible, and children are expected to work in the fields with their parents once they leave school. They do not believe in Social Security, and do not either make payments or accept payments from the government. The educational practices and expectation that children will work in the fields has brought them in to conflict with US education and child labor rules. In Wisconsin v. Yoder 406 U.S. 205 (1972) three Amish parents were fined by the Wisconsin authorities for taking their children from school before the age of 16, but the US Supreme Court ultimately upheld the right of the parents to do this. Amish refuse to participate in wars, and their conscientious objection has also gotten them into trouble. As the article in Slate observes, the Amish have been given a fair degree of latitude, in part because they are peaceful and because they have managed to broker compromises with the State.

Mormons are members of the Church of Jesus Christ of the Latter Day Saints. They believe in the Book of Mormon. The Church of the Latter Day Saints officially abandoned polygamy after pressure from law enforcement in 1890, but some other fundamentalist groups continue to practice polygamy. The practice of taking multiple wives and taking child brides has brought the Fundamentalist Mormon Church into conflict with the law. In the last few weeks, Texan authorities raided a Fundamentalist Mormon compound after a 16 year old girl called authorities to say that she had recently borne a child to her 50 year old husband. Other US States are concerned that this raid may ruin their efforts to make Fundamentalist Mormons trust them and cooperate with them. As the Slate article outlined, a large raid on a Short Creek Fundamentalist Mormon community in 1953 was ultimately counterproductive. The Slate article concludes that the Mormon groups are in a different situation to the Amish:

But the fundamentalist Mormons groups are in a state of evasion. The ban on bigamy functions as a zoning ordinance: Plural marriage is fine in isolated communities, but not in Salt Lake City, and certainly not on TV talk shows, as Tom Green found. So long as the fundamentalists remain in hiding, the extreme ugliness of conducting raids creates a form of tolerance. They are thus in a “don’t ask, don’t tell” state of legal limbo that could break open at any time. They are outside the law in a different way.

It will be interesting to see whether the Texan raid is counterproductive or forces the Fundamentalist Mormon church into submission.

These situations remind us that the conflict between God’s law and the law of the State has many facets, and there are different ways of resolving the issue. Have a read of the Slate article and see what you think.

Rights or wrong?

When I was younger, I was very taken with the idea of a Charter of Rights for Australia. I simply couldn’t fathom the fact that Australia didn’t have certain rights in its Constitution. But now that I’m older, I’m not so sure that a Charter of Rights is the panacea for all ills in society. I know that human rights are malleable, and that one human right can conflict with another.

For a particularly thorny and controversial case, see The Queen v GJ [2005] NTCCA 20, a case involving an Aboriginal elder and a young Aboriginal girl aged 14 or 15. The girl had been “promised” to the elder when she was a baby, but did not want to marry him, but her grandmother sent her to his house. In the event, the elder was charged of offences including assault (with a boomerang) and sexual intercourse with a child under the age of 16. The trial judge sentenced the elder to one month imprisonment (with a suspended sentence) because he found that the elder was behaving in accordance with customary indigenous law. However, on appeal, this sentence was overturned. 

Human rights do not provide a clear answer to a case like this. On the one hand, the elder could be said to have a right to continue to practice his own culture in a society where he made up an ethnic minority. On the other hand, the girl could be said to have a right to be free of inhuman and degrading treatment, and to have her rights treated as equal to any other child, regardless of her race or religion, and not to suffer because of her status as a woman.

I’m thinking about these issues because the Charter of Human Rights and Responsibilities Act 2006 (Vic) comes into force in Victoria today. Do I believe in human rights? Of course I do. I think that there should be a certain amount of freedom of speech (whether I agree with what is said or not), and that there should be freedom of religion, and so forth. But I can see that in some circumstances it is not easy. Say there is a group who argue that a certain religious group controls society and that they should be banned from Australia. This is something to which I have a very deep seated revulsion on a personal level. Obviously there is a right on the part of the group to freedom of speech, but there is also a right of the people of that particular religion to be free from vilification and discrimination. How to balance it? I can never quite make up my mind.

Peter Faris QC has written a piece which is extremely critical of the Charter of Rights. He sees it as a gravy train for lawyers, with little real practical benefit for the people.

I am not quite sure that the scenario is quite as dire as Faris QC portrays it. I went to a site for Conservative Lawyers in the UK (a scary concept). There I found a paper by two barristers which outlined the benefits and detriments of the Human Rights Act 1998 (UK) in the United Kingdom. (I had to overcome a personal prejudice – a lifelong dislike of Tories arising from my schooling in England). I found it to be a fair paper. The lawyers made five provisional conclusions:

• There was more uncertainty in the outcome of litigation where public authorities were concerned, particularly concerning the liability of public authorities in tort.
• More time and expense is incurred in arguing Human Rights Act points than is probably justifiable, although this is likely to settle down.
• There has been some “refreshing” of the common law with arguable benefit in some areas although the common law was generally regarded as being sufficiently dynamic to bring about changes absent the Human Rights Act.
• There is greater freedom for judges to make new law in areas where the law is either uncertain or possibly antiquated. 
•  Some cases where claimants would have failed before the Human Rights Act can now succeed. What success means however is still somewhat uncertain. The actual remedies available under the HRA are still a matter for development.

At [50] of their paper, the barristers conclude:

The approach of the Courts to the Human Rights Act has not perhaps been as radical as some feared. But we do venture to suggest that the effect of the Human Rights Act has been considerable in terms of the way in which public authorities organise their affairs. Whilst much of the evidence is anecdotal and perceived, sometimes, through the possibly unreliable medium of the popular press, there nevertheless seems to us to be a significant body of evidence that in a number of areas public bodies fearful of human rights violations are being unnecessarily elaborate and defensive in their response. This is very much a mirror of what was covered by the all party parliamentary enquiry into the so-called Compensation Culture. There it was concluded that the perception of a compensation culture affected the way people behaved notwithstanding the fact that there was no real evidence of an increase in compensation claims.

I am not against human rights per se, but my fear is that incorporating human rights into legislation may actually mean that governmental bodies try to obfuscate their actions from a fear of potential legal action. I would not be as negative as Faris QC, and I can see some benefits in human rights legislation. However, I cannot help thinking of freedom of information legislation, which has led to governmental bodies trying to increase the amount of material which is “off-limits” and exceptional. The case of McKinnon last year (about which I wrote a post) is an example of the way in which FOI can be manipulated to hide information. Similiarly, I worry that the net effect will be an unsavory one: governmental institutions will attempt to circumlocute human rights rather than upholding them.

Stolen Generation Success

I was interested to read the recent case of Trevorrow v State of South Australia (No. 5) (2007) SASC 285. Put briefly, the plaintiff was taken from his parents as an infant, and consequently had a troubled childhood and adolescence. He succeeded in his efforts to sue the South Australian government. I think that this was a just result.

It’s a sad story. The plaintiff was cared for by his mother and his father. His mother separated from his father, and left three of the children with the father over Christmas. When he was a little over a year old, the plaintiff contracted gastroenteritis and his father did not have transport by which to get him to hospital. The police could not help. So the father got the local garage proprietors to take the boy to hospital.  The plaintiff was cured, but instead of being returned to either parent, he was then fostered out with a non-indigenous family. Neither parent knew what had happened to the boy. The mother tried to get the boy returned to her, but was told that there was nothing she could do. Meanwhile, the plaintiff was fostered out to a non-indigenous household and brought up as a child of the house. Once the plaintiff found out that he was not related to his family, he began to act up and steal things. He was returned to his mother when he was 10 years old, but found it extremely difficult as he did not know his family and did not know Ngarrindjerri language or customs. He then got into trouble with the law, and became an alcoholic. In comparison, his brothers and sisters who were not taken from their parents seem to have overcome childhood difficulties and poverty. One brother of the plaintiff is a respected Ngarrindjerri elder.

The Court was prepared to extend the limitation of actions period in the circumstances.  Gray J found that the plaintiff was not removed from his parents in accordance with prescribed statutory processes. There was a foreseeable risk of harm to the plaintiff. Accordingly, the South Australian government was liable for a number of claims:

• tort of misfeasance in the public office;
• tort of false imprisonment;
• tort of negligence
• possible breach of fiduciary duty (for which damages would be the same as for common law actions;

The plaintiff was awarded $450,000 damages for the breaches of the duties above, and $75,000 in exemplary damages.

It seems to me that this case is a fair one. As I’ve outlined in a past post, I don’t take a hard and fast attitude towards the Stolen Generation. There are at least two conflicting motives at play. I’m sure that some probably did have the best interests of children at heart. But there was also an explicit desire to “Westernise” indigenous children and a racist aim of “wiping out” indigenous culture. Both motives were often combined.

As I have also explained, I have known indigenous people who were taken from their parents or had relatives who were taken from their parents. Their stories lead me to believe that great pain has been visited on these people, but that in some cases there were valid reasons for them being taken from their parents. The scenarios are complicated and not well suited to the adversarial arena of the court room.  In one instance, a student’s mother was taken from her tribe because the majority of the tribe wanted to kill the baby (a “half-caste” child who was the product of a rape). The mother of the child did not want her to die, and so she relinquished the child to authorities after it transpired that she could not protect the girl. Another friend was taken from her mother because her mother was physically abusive. Her mother lacked parenting skills, in part presumably because she herself had been taken from her parents. However, unfortunately, my friend was also abused in the foster homes in which she was subsequently placed. She has suffered lasting psychological damage.

I agree with Julian Burnside QC that there can be no blanket response to this issue: it all depends on the facts of each case. For example, in the Cubillo case, the plaintiffs failed in large part because their factual allegations could not be made out.  In comparison, in this case, the plaintiff succeeded because he could point to the fact that his removal was not authorised, and he could also establish that his psychiatric problems arose because of his placement in a foster home. I presume that it was highly relevant that his siblings seem not to have had these kind of problems, even though they also had a difficult upbringing.

Is Germaine germane?

Germaine Greer has written an article criticising John Howard’s plan for intervention in indigenous communities. I like the second half of the article better than the first. But, as far as I can judge, Greer’s article suffers from the “critic’s malaise”. She criticises, but doesn’t offer an alternative. Greer says:

The name of the game, as usual, is bad faith. Everything Howard does is calculated to win him votes. The suffering of Aboriginal women and children at the hands of their deranged menfolk has been going on all Howard’s life. For most of that time whitefellas made a joke of it. At this late hour, on the eve of a general election, he is suddenly taking it seriously. It is of no consequence that what he is doing is illegal. His treatment of asylum seekers and boat people is just as illegal, and it is widely admired by Australians and people who should know better.

As a lawyer, I must hone in on her claim that Howard’s action is “illegal”. What does she mean by this? What laws has the Federal government breached? They may have breached some international law norms…but I don’t like hyperbole like this which is not backed up with proper analysis.

My own experience is that, unfortunately, indigenous people do not get much joy out of the law. Its rhetoric is grand, but the reality is not so good. As I have argued before, native title as it is currently conceived is barely proprietary anyway, and the rights given to indigenous people are extraordinarily limited and fragile.

As for human rights law – I get depressed with it. It always shuts the door after the horse has bolted. How does it actually balance the competing rights of an indigenous women who have been abused with the rights of indigenous men who has committed the abuse? One has a right to protection, a right to safety, a right to be free of physical, verbal and sexual abuse. The other has a right to a defence, a right to a fair hearing, a right to a presumption of innocence. These are difficult questions to answer.

I think Greer’s point about insufficient policing of bootleg alcohol sales is well made. Her comment that the unintended consequence of banning alcohol in communities may be to drive people off the land is also important to take into consideration.

But at the end, I am still left with the question: what then would she do? What solutions does she have? How does she respond to Noel Pearson, Wesley Aird, Warren Mundine and John Moriarty, who are asking for radical intervention? Does she ignore them entirely? Does she concede that some sort of radical intervention may be desirable? Does she only take on board the opinions of indigenous leaders who agree with her particular point of view? In which case, isn’t that a bit patronising? (“I know what’s best for you, indigenous people, don’t worry yourselves about that, I don’t want to hear what you have to say”…)
It’s oh-so-easy to criticise, so much harder to come up with constructive criticism. I’d find her article more convincing if she had come up with real alternatives.

What to do? The indigenous crisis

I’d like to unravel the Howard Government’s new plan with respect to indigenous welfare. There are a couple of different issues there.

First, I’m not happy with the use of the word “crisis”, because that suggests something that suddenly crops up. It’s not sudden – it’s more like a chronic problem that has now snowballed to the extent that it can’t be ignored any longer. It has been known for a long time that there are massive problems in some indigenous communities. I’ve written about these issues before.

I’ve been inspired to write this post after reading two posts, one by my lovely friend RG and another by Miss Politics. They were food for thought, because it made me realise that I had a different point of view, but each had good points to make. I was commenting on their blogs, but I then realised I’d be better off writing my own post, as the comments were turning into mini-posts.

1. Political opportunism

The indigenous welfare plan was described in The Age headline yesterday as a “black children overboard” stunt, designed to increase the Howard government’s popularity before a Federal election where they are facing some serious competition. Obviously, this headline produced some controversy.

Yes, I think there is definitely a giant dollop of political opportunism. The Howard government has been in power for 10+ years, and they finally decide to act now, just before an election? Forgive a girl for being a little cynical.

But the next question is: if it saves women and children from abuse, does it matter what the government’s motives are? I say that it does not. Anyone who reads my blog regularly will know that I am not a fan of the Howard government. But if they manage to do something good, I’m not going to gainsay them just because I dislike many of the things they do. I wonder if there’d be nearly so much outcry from the Left if Prime Minister Rudd had instituted this plan? Forgive me yet again for my nasty cynicism. I can only echo the words of Noel Pearson:

Quite frankly, I couldn’t care less whether John Howard or Kevin Rudd ruled this world. My priority is to take advantage for immediate intervention for the protection of children…

I’m not going to reject this initiative without having a closer look at it. On the other hand, I’m not just going to swallow it whole either.

2. A change is needed

Welfare payments have been poured into indigenous communities for the last 30 years in an effort to alleviate poverty, but if anything, paradoxically, conditions have become worse. Perhaps the money isn’t getting down to the grass-roots – but surely if the system was working, we’d be seeing some sort of improvement by now?

Some of the responses to Howard’s plan infer that the problems of the indigenous community will be cleared up if we address the underlying social issues. I presume that this refers in part to the need to recognise native title, the need for reconciliation and for saying “sorry”. Yes, I agree, it is important to acknowledge that some terrible things have been done to indigenous people in the past.

I am a very strong supporter of native title, although unfortunately, as presently conceived of by the Courts and the Native Title Act, it is such a weak property right so as to be non-existent.

However, I think that these issues should be part of a long term strategy, not something that can be used to fix problems here and now.

Terrible things are happening to indigenous people now. It is important to tackle them head on, decisively. I’m all for the long term plan mentioned above, but it is not the priority. Let me quote from a newspaper article in The Age from last year:

In the western desert community of Papunya the cultural notion of “secret men’s business” has taken on a particularly sinister interpretation for at least four under-age girls, the youngest being just seven.

Seven months ago the girls were found to have serious sexually transmitted infections — some of the worst in the medical books — but health workers claim child welfare authorities are yet to send anybody to the community to investigate.

In the meantime it is believed that at least one of the girls was reinfected by her abuser.

…

Not only is it claimed that officials from the Territory’s Family and Child Services Department (FACS) have not travelled the 280 kilometres to Papunya, health care workers at the community have told colleagues in Alice Springs that they have been reprimanded for not first consulting with parents and community elders about the spate of infections.

A health care worker who regularly visits Papunya told The Age by way of background: “The situation is astonishing. What the medical staff were being told to do was consult the potential perpetrators of abuse. Where else in Australia would this happen?”

Because the infections include resilient strains of gonorrhoea and syphilis, there are suspicions that the abusers are more likely to have been men, rather than teenage boys.

“FACS should have sent out a team of experts as soon as the infections were detected who could talk to the children and parents in their own language while the issue was immediate and before anybody could put pressure on the girls to remain silent,” the health care worker said.

We have to deal with the practicalities of this now. As the mother of a young girl, the above extract makes me feel sick to the core.

I believe that just focusing on reconciliation as a solution is problematic. Yes, I have marched on reconciliation marches and the like. Of course I want indigenous and non-indigenous Australians to live together in mutual respect. However, the “sorry” campaign can carry an inference that the problem is the fault of non-indigenous Australians, and once we apologise, the problem will go away. I don’t think it will. It’s a bit like those child abusers who say, “I couldn’t help it, my family was poor, my father abused me, my mother was a drunkard.” It may be an explanation, but it is not an excuse. The perpetrator of the abuse has a choice.

One of the examples raised by Nanette Rogers, Crown Prosecutor for the Northern Territory, when she blew the whistle on this issue last year, was that of a 6-year-old girl who drowned while being raped by an 18-year-old man, while other children watched on helplessly. I don’t think colonisation provides an excuse for that kind of behaviour. And it is not the fault of the non-indigenous community that he did this terrible deed. Yes, the young man might be poor and disadvantaged, but that doesn’t mean he is excused from raping and killing small children. It was his choice, and his responsibility.

I believe that one of the important pieces of the puzzle to true self-determination is taking responsibility for your own actions, and being aware that you can change the way in which you behave. To this end, I agree with Noel Pearson that there has to be an end to the “victim” mentality – that of blaming others for your troubles. I believe in empowerment of indigenous people; that they can control their own destinies. It should all be about teaching people to stand on their own two feet.

One of the main things which stops indigenous people from taking control of their own destiny is the endemic drinking, drug use and petrol sniffing which afflicts communities. It is very hard to control your own actions if you are totally trashed. Your brain and body are literally destroyed. Further child abuse is far more likely to happen when parents are “out of it”, and don’t notice what is going on with their kids. Even if adequate educational facilities are provided, if your parents don’t care whether you go to school or not, you are unlikely to attend.

3. The proposed plan of action

Pros of the plan

I think that indigenous communities do need drastic action at least in the short term to break the cycle of despair (including banning alcohol on reserves, and making support payments dependent upon children attending school). I would be much more worried about the banning of alcohol if it were not for the fact that many indigenous leaders are asking for it to be done. I must take this into account.

I also think that the fact that someone is actually doing something about this issue is good, whatever the motives behind it. I note that some indigenous leaders have given support to the plan. If some think it is a good idea for their communities, or are prepared to give support to a modified version of the plan, who am I to gainsay them, as a white city gal? On the other hand, I think it’s also really important to listen to those leaders who criticise the plans, as they may have good points.

Cons of the plan

The downside of Howard’s plan is the very hasty, aggressive nature of it. As much as I say that I’d like something to be done now, I would have preferred a little more thought and consultation to go into it. Personally, I like to take a deep breath and think through the implications before I do something. Paradoxically, this is because I am a very emotional person, and so I need to think in case I shoot from the hip and end up hurting someone without intending to do so.

If a thing is worth doing, it’s worth doing well. In this sense, I tend to agree with Lowitja O’Donohue:

Ms O’Donoghue, a former ATSIC chairwoman, said her opposition was based on a fear the intervention was too draconian.

“The people who are speaking out now welcome the intervention but we do not support the draconian intervention,” she said.

“Army trucks rolling in is pretty frightening for a community that’s been demonised. Governments should listen to a proper strategic plan in how they go about tackling this emergency. Of course it’s a national crisis.”

I note also that Rex Wild QC, the joint author of the report Little Children are Sacred has also criticised the plan, saying that the Federal Government should have been trying to build up a relationship of trust with indigenous people. Wild said on Lateline Business

“Well, the first problem is that people’s backs are immediately up. We didn’t have that problem when we arrived. …[W]hen we did our work, we were well-received because we spent some time preparing the people for what was coming. The troops didn’t arrive. We didn’t arrive with a battle ship. We arrived gently…”

Scaring people is not a helpful way to try to get them on board. But then, on the other hand, if it stops little kids from being raped or women from being beaten, it’s a lesser evil to prevent a greater evil. Perhaps it’s a start to a greater focus on these issues. I hope so.

4. Conclusion

One of the problems with indigenous welfare is the lack of coordination between Federal, State and Local governments. For this reason, I agree with the proposal last year by Noel Pearson, Patrick Dodson and Marcia Langton that a body such as the Productivity Commission be set up to coordinate indigenous welfare reforms.

I do hope that some positive things come out of the plan. I also hope that it will be ensured that communities have adequate services, such as fresh water, health care, educational facilities, mental health facilities, housing and the like. Proper services are vital to improving living conditions and living a healthy life.
I do not think that the plan will work without getting a majority of indigenous people on board. It is crucial that any process which is to have long-lasting beneficial effects on indigenous people be seen to have indigenous input and support. I know from my own experience that unless you have an internal desire to change yourself, there’s no hope of anyone else forcing you to change. Change must come from within. And realising that you have the capacity for positive change and growth will lead to real self-determination.

The radical centre

Noel Pearson has written a great article on taking the “radical centre”, a synthesis between rights and responsibilities. It delves into African American politics and other issues.

It’s long, so if you want a potted version, check out Nicholas Gruen’s summary at Club Troppo.

If the Price is Right?

Like many lawyers, I find the behaviour of the US government and the Australian government in relation to Guantanamo Bay detainees to be inconsistent with the operation of the rule of law, the doctrine of habeas corpus and the notion that one cannot be charged retrospectively with crimes. As I have explained in previous posts, I think that no matter what someone has done, they deserve to be treated fairly, with due process. As Emma Toms pointed out in a piece in The Australian earlier this week, justice must be “one size fits all”:

But giving Arrestee A access to a turbo drive and road service while insisting that Arrestee B battle along with dodgy brakes and a smoking head gasket raises some serious issues. The first is that – like aeroplane oxygen masks, hospital gowns and disposable bikini waxing briefs – the guiding principle of a good legal system is that one size fits all.Chopping and changing depending on the case is problematic because it requires making extrajudicial assumptions in advance of a court hearing (that is, David Hicks is obviously a terrorist, therefore he deserves only terrorist justice). It also grants enormous power to those who are allowed to make such decisions.

I couldn’t agree more. However, as I have said previously, I detect a certain amount of “bandwagoneering” on the topic of David Hicks. All this attention and effort in relation to one person! I do hope that the man doesn’t end up profiting hugely from the whole affair. He strikes me as a stupid and unpleasant person. In a letter to a former flatmate, Louise Fletcher, Hicks responded to her suggestion that she write a book about him as follows:

“Don’t try to write about my adventures because you don’t know that information.

Nobody does, so it would be inaccurate. I would prefer if you wrote nothing about anybody, for that matter. S***, I would have no chance to make any money when I got home, otherwise.“

A few of the excerpts from the letter give an unattractive picture of the man. Well, the Taliban were an unattractive mob – perhaps like attracts like? Certainly, his former father-in-law doesn’t seem think much of him, saying that he would not allow Hicks to see his children.

Terry Hicks has said in a recent report that David doesn’t intend to sell his story. However, the same article reports a PR expert saying Hicks could get over $1million if he “sells his story”. I can understand that he would be tempted by a million smackaroonies, but I can think of far more deserving recipients than Hicks. The whole thing just makes me feel ill. Ironically, the Federal government has contributed to the high value of Hicks’ story. It just proves that one can never know the consequences of actions! If the government had demanded him home in the first place, (a) it would have been the right thing to do from a principled point of view; and, (b) from a pragmatic point of view, he would never have reached a status where he could demand million dollar sums for his story.

I certainly won’t be buying Hicks’ book or watching his story. In saying this, I do not deny being incarcerated for years in a tiny cell, including being put in solitary confinement is a very unpleasant experience for any human being. It should not happen without due process being followed. But what about the many other Australians who live under terrible circumstances? For example, what about the problems in indigenous communities, including the endemic abuse of women and children? Noel Pearson describes a heart-breaking visit to his home town vividly here. Where are the lawyers, the high profile QCs and the law lecturers rallying to defend indigenous women and children who have been abused by their partners and families? It seems to me that the issue of indigenous problems just keeps getting pushed under the surface, bobbing up every few months. It’s just not a “sexy issue” – too morally complex, and mixed up with issues of cultural relativism – it’s easier just to put it into the “too hard” basket. So, let’s not get so worked up about Hicks that we forget other societal injustices. Although issues such as indigenous issues will not be easily solved, they shouldn’t be forgotten.

Update

As part of his plea bargain, Hicks has agreed not to profit from the sale of his story – any profits are to go to the Australian government. I’m glad.

(Via Tim Blair)

Former ATSIC Chairman liable

It seems that the verdict is out with respect to Carol Stingel’s claim against Geoff Clark – Clark is liable to pay Ms Stingel $20,000 damages in respect of post-traumatic stress suffered as a result of a 1971 gang rape which Clark is alleged to have led. Regular readers may recall reading a post on the High Court’s decision last year in July which allowed Ms Stingel to proceed with her claim.

It should be emphasised that Mr Clark’s liability is not criminal. He has not been found guilty of a crime, which would require him to be found guilty beyond reasonable doubt (the criminal standard). Rather he has been found liable to pay damages on the balance of probabilities, a lower standard of proof (the civil standard).

I had heard about allegations of rape and sexual assault against Clark in 2000 from an acquaintance of indigenous background (before any allegations had been publicised in The Age). When I questioned how a man could become head of ATSIC without these allegations being made public, my “source” said people were scared of Clark. Of course, this doesn’t prove anything whatsoever, and one must be very wary of believing gossip and scuttlebutt. However, it is interesting that such allegations were apparently “common knowledge” in the Victorian Aboriginal community at that time.

Palm Tree Justice – Part II

I see that Sir Laurence Street has concluded that it is worth pursuing charges against Chris Hurley, the officer who arrested Palm Island man Mulrunji. Mulrunji died very soon after he was placed in custody.

For a summary of the circumstances behind this decision, see my previous post here. I think that it is a good decision. It certainly seemed from my point of view that there was enough evidence to proceed to a prosecution. Now a jury can determine for once and for all whether Sergeant Hurley is guilty of any crime.

Palm Tree Justice?

Of course, I have been following the newspaper reports of outrage by members of the Palm Island indigenous community at the decision of the Queensland Director of Public Prosecutions not to prosecute Chris Hurley, a policeman involved in the death of Mulrunji, an indigenous man living on Palm Island. The decision will now be reviewed by former Chief Justice of the District Court, Pat Shanahan and Peter Davis, SC.

I don’t like to come to knee-jerk conclusions on matters like this. I like to look at all the information available and make up my mind. Consequently, this post will be reasonably in-depth, as I don’t think any of the news reports I have read went into enough detail.

1. Findings of the Coroner’s report
The Coroner’s report made the following findings:

• Mulrunji (also known as Cameron Doomadgee) was a 36 year old man who had never previously been in trouble with the police.
• Senior Sergeant Chris Hurley was in charge of the Palm Island police station. Hurley was called out to assist three sisters. The sisters had been assaulted by Roy Bramwell, the de facto partner of one of the women, Gladys Nugent. Hurley took Gladys Nugent to pick up her diabetes medication at a house in Dee Street. Outside the house in Dee Street was a young man called Patrick Bramwell, who was drunk and swearing at the police. His grandmother complained to Hurley about his behaviour, so Hurley arrested him and put him in the police van.
• Meanwhile, Lloyd Bengaroo, the Police Liaison Officer, was in the van when Mulrunji walked past. Mulrunji and Bengaroo knew one another. Mulrunji asked Bengaroo why he was helping to lock up his own people. He was apparently drunk. Bengaroo told Mulrunji he had better keep on moving or else he’d be arrested. Mulrunji walked off. When Hurley got back into the car, he asked Bengaroo what Mulrunji had said, and Bengaroo related the exchange to him. Hurley then said he’d better arrest Mulrunji. They drove after Mulrunji, who turned and swore at them. Hurley arrested Mulrunji and put him in the back of the police van with Patrick Bramwell.
• The police van arrived at the police station. Meanwhile, Seargeant Leafe had arrived at the police station with Roy Bramwell (the man who had assaulted his de facto partner and her sisters). Roy Bramwell was seated in the station awaiting questioning.
• There is conflicting evidence from the point where Hurley went to get Mulrunji out of the van. Mulrunji was protesting that he should not have been arrested, and was uncooperative when Hurley tried to shepherd him into the police station. Mulrunji swung a punch at Hurley, and hit him in the jaw. Some witnesses said that they saw Hurley hit Mulrunji back with a jab to the ribs, but Hurley denied this.
• Hurley was attempting to drag or grapple Mulrunji into the police station, when they both fell through the back door of the police station. In his initial statements, Hurley said that he did not fall on top of Mulrunji, but to the left of him, beside him. However, at the Inquest, Hurley gave evidence that he fell on top of Mulrunji.
• Roy Bramwell was sitting waiting to be interviewed. His evidence was that he saw Hurley and Mulrunji fall. Mulrunji was lying on the ground and his feet were protruding from behind a filing cabinet. He saw Hurley get up. His evidence was that he saw Hurley’s elbow rise and fall threee times above the filing cabinet in a punching action. He could not see the rest of Mulrunji’s body, so he thought that Mulrunji could have been punched in the head. He also alleged that Hurley said “you want more, Mr Doomadgee, you want more?” Another witness, Constable Steadman, said that he heard Hurley say something in an abusive tone to Mulrunji after they fell through the door. However, he did not see what happened inside the station, as he was waiting outside for things to “settle down”.
• Hurley gave evidence which directly conflicted with Roy Bramwell’s evidence. He said that he was trying to pick up Mulrunji by grabbing him by his shirt, and he had to try to grab him three times because Mulrunji’s shirt kept ripping in his hands. His evidence was that the movement of his elbow was as a result of his efforts to hoist up Mulrunji. The CCTV footage showed that Mulrunji’s shirt was indeed ripped. Hurley denied saying anything abusive to Mulrunji and denied that he punched Mulrunji.
• Mulrunji was dragged into the cell and left there. Patrick Bramwell was then put into the cell with him. According to the CCTV footage, Mulrunji was apparently in great distress and writhing with pain. He was calling for help. No one came to help him, but Patrick Bramwell attempted to comfort him.
• An hour later, when Leafe went to check on Mulrunji and Patrick Bramwell, he found that Mulrunji was unnaturally cold and not breathing. Hurley confirmed this. The police called an ambulance, who pronounced Mulrunji dead.
• An autopsy disclosed that Mulrunji had died as a result of intra-abdominal haemorrage. Specifically, Mulrunji’s liver had been almost totally cloven in two and the hepatic portal portal vein had been ruptured so that there was a hole measuring 1.5 x 0.7cm along it. Four of Mulrunji’s ribs (from the 6th rib to the 9th rib) were fractured.
• The doctors who completed the two autopsies on Mulrunji concluded that the injury to the liver was extremely unlikely to have been caused merely by a fall onto flat ground. The injury required significant compressive force. However, the doctors concluded that such an injury may have been caused by Hurley falling on top of Mulrunji with hard force, jabbing him in the abdomen with a knee or an elbow.
• The initial investigation by the police suffered from a perceived bias. Hurley picked up the two investigating officers, one of whom was a friend, and the officers stayed at his house and ate dinner with him. This was not appropriate. However, the later investigation by the Crime and Misconduct Committee was entirely appropriate.

The Coroner found that Hurley lost his temper after Mulrunji punched him and after they fell to the floor. She accepted Hurley’s initial statements that he did not fall on top of Mulrunji, but to the left of him. She also accepted Roy Bramwell’s evidence that Hurley appeared to have punched Mulrunji after they both fell to the floor. She found that Hurley punched Mulrunji and caused the damage to his liver. Therefore, she concluded that Mulrunji died as a result of the injuries caused by Hurley.

The standard of proof applied by the Coroner is, as she acknowledges, a civil standard of proof, that is “on the balance of probabilities”. However, although it is “on the balance of probabilities”, it is a higher standard (called the Briginshaw standard) than the usual civil standard because of the seriousness of the allegations. The Coroner is empowered to refer the matter to the Director of Public Prosecutions pursuant to s 48 of the Coroners Act 2003 (Qld), which she did in this case.

2. Discretion of the Director of Public Prosecutions

The Director of Public Prosecutions is empowered to prepare, institute and conduct criminal proceedings in Queensland pursuant to s 10 of the Director of Public Prosecutions Act 1984 (Qld).

The Director of Public Prosecutions in Queensland has published a Policy Statement, which says the following about the decision to prosecute for an offence:

“The criteria which are to be applied in deciding whether to prosecute fall into two categories. First, is the evidence sufficient to justify proceedings? Second, does the public interest require a prosecution? The prosecutor must be satisfied as to the first question before moving on to the second.”

In determining whether there is enough evidence, the Policy Statement says that “the existence of a bare prima facie case is not enough. A prima facie case is necessary; however, a prosecution should not proceed if there is no reasonable prospect of securing a conviction before a hypothetical reasonable jury in jury trials.”

Of course, the Director of Public Prosecutions must consider that an offence is likely to be able to be proven beyond reasonable doubt (the criminal standard of proof), which is a higher standard than the civil standard. The Policy Statement lists a variety of factors to be taken into account, including admissability of evidence and whether there is any conflict between eyewitness accounts. The Director of Public Prosecutions must then move on to consider the public interest.

It should also be noted that the purpose of a Coroner’s report is quite different to a prosecution. A Coroner’s report is a fact-finding mission which is not subject to the laws of evidence, where as a prosecution is intended to apportion blame, and is thus subject to strict laws of evidence. Hurley’s evidence given at the Inquest could not be used against him in a criminal trial because of the privilege against self-incrimination: see also s 39, Coroners Act 2003 (Qld). Presumably Hurley’s various statements to police investigators would be inadmissible at trial because of the operation of the privilege against self-incrimination.

In her statement to the media, the Queensland Director of Public Prosecutions found that Mulrunji died as a result of a “complicated fall” and was a “terrible, terrible accident”. The press release regarding the finding is no longer available on the Internet.

3. Analysis of the decision of the Director of Public Prosecutions

Was the decision of the DPP not to prosecute a reasonable one? After reading the Coroner’s report in detail, I felt very strongly on a moral level that the decision of the DPP was unfair. Mulrunji was a man with a previously unblemished record who died because he offered a bit of cheek to a policeman. I note that the arrest of Mulrunji in those circumstances was exactly the kind of thing which the Report on Aboriginal Deaths In Custody said should be strongly discouraged. It was recommended by the Report that instead of arresting indigenous people for public drunkenness and like offences, some other kind of less punitive measure should be put in place to prevent precisely this kind of incident occurring.

From the Coroner’s report, it seems that there are two conflicting accounts as to how the injury of Mulrunji came about. On the one hand, Hurley says that it must have arisen from the fall through the door of the police station, and denies having punched or abused Mulrunji. His evidence is that he must have fallen on Mulrunji, despite the fact that he gave conflicting statements prior to the Inquest indicating that he did not fall on Mulrunji. On the other hand, Roy Bramwell says that after Hurley and Mulrunji fell through the door, Hurley got up and Bramwell witnessed a motion which looked like Hurley was punching Mulrunji. It is essentially a case where Hurley’s word is pitted against Roy Bramwell’s word.

However, at trial, Hurley would be entitled to claim the privilege against self-incrimination. As stated above, the evidence given at the Inquest could not be used against him at all. I am also presuming the statements made to various police investigations could not be used against him because of the privilege against self-incrimination. Thus the inconsistent evidence given by Hurley about the way in which Hurley and Mulrunji fell would not be admissible. Without this evidence, the case against Hurley looks a lot less strong. The prosecution would have to prove beyond reasonable doubt that Mulrunji’s death occurred as a result of punches administered by Hurley, but could not use Hurley’s prior inconsistent evidence that he fell beside Mulrunji rather than on top of him. Thus, they would have difficulty proving that the injuries could not have been caused by the fall. They would only have the account of Roy Bramwell to rely upon, and Bramwell did not actually see Hurley hit Mulrunji. They would have to ask the jury to draw an inference that Mulrunji’s injuries could not have been caused by a fall, and must have been caused by punches.

I must concede that I do not know the other evidence to which the DPP had access. Perhaps she had evidence which discredited the evidence given by Roy Bramwell? Perhaps she felt that Roy Bramwell’s evidence lacked credibility because he was in the police station for violence against his de facto wife and her sisters? Perhaps she had an account by an eyewitness who did not give evidence to the Coroner? The Coroner concludes that the evidence given by Bengaroo was unsatisfactory and lacking in detail, and that he probably saw more than he let on. I do not know. I am always wary of second guessing decisions where I have not been in the position of seeing all the evidence. As I have said in another post, there is a big difference between sitting on a jury and deciding a case based on detailed evidence and submissions, and reading a brief sensationalised article about a case in the paper.

Given what I have said above, I can understand how the DPP came to the decision that there was not sufficient evidence to prove beyond reasonable doubt that Hurley killed Mulrunji by a punch to the abdomen. The DPP must have considered that there was a prima facie case, but there was not a reasonable prospect of securing a conviction if the matter went to trial.

Nevertheless, I still think that I would have made a different decision based on the evidence I have read. I must acknowledge (as I have acknowledged before) that I am not a criminal lawyer, even less an experienced criminal lawyer like the DPP. But I would still think that the evidence of Roy Bramwell along with the evidence of the autopsy was strong enough to mean that Hurley should at least stand trial, and that this could be used as circumstantial evidence to prove that he caused Mulrunji’s death. I would also take into account the strong public interest in seeing that such alleged offences are prosecuted, and the necessity that the justice system not be seen to favour police officers and to disadvantage indigenous people.

It will be interesting to see what the conclusion of the review is.