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Episode 92
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Professional Skills Substantive Law
The Culture Compass: Navigating Aboriginal and Torres Strait Islander Perspectives in Court
Law as stated: 14 July 2023
What is this?
This episode was published and is accurate as at this date.
Join Queensland barristers Avelina Tarrago and Melia Benn as they dial into Curiosity to share their knowledge and expertise on the intersection of culture and coronial work.
Professional Skills
Substantive Law| What area(s) of law does this episode consider? | The interaction of culture and the Coroner’s Court. |
| Why is this topic relevant? | Where deaths in Aboriginal and Torres Strait Islander communities are reportable and intersect with the jurisdiction of Coroners Act 2003 (Qld) (Act) – or any other State’s equivalent – it is important to recognise the culture and customs of the deceased and to incorporate and contextualise them under the processes set out under the Act. That includes everything from mourning practices to recognising the deceased’s connection to Country. It is crucial for lawyers to be aware of culture and customs in practice. |
| What legislation is considered in this episode? | Coroners Act 2003 (Qld) (Act) |
| What cases are considered in this episode? | Wotton v Queensland (No 5) [2016] FCA 1457
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| What are the main points? |
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| What are the practical takeaways? |
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| Show notes | Queensland Courts, Sorry Business: A guide to cultural competency and engagement between the Coroners Court of Queensland and Aboriginal and Torres Strait Islander people (2019) |
David Turner = DT; Avelina Tarrago = AT; Melia Benn = MB; Ross Davis = RD
| 00:00:00 | DT: | Hello and welcome to Hearsay the Legal Podcast, a CPD podcast that allows Australian lawyers to earn their CPD points on the go and at a time that suits them. I’m your host David Turner. Hearsay the Legal Podcast is proudly supported by Lext Australia. Lext’s mission is to improve user experiences in the law and legal services and Hearsay the Legal Podcast is how we’re improving the experience of CPD. Today on Hearsay we’re talking about how culture and customs interact with practice in the Coroner’s Court, especially Aboriginal and Torres Strait Islander culture and customs. Where deaths in Aboriginal and Torres Strait Islander communities are reportable and intersect with the jurisdiction of the Coroners Act 2003 in Queensland – or any other state equivalent – it’s important to recognise the culture and customs of the deceased and to incorporate and contextualise them under the processes that the Act sets out. Now that includes everything from mourning practices to recognising the deceased’s connection to their country. Joining me today are two experts in the field of coronial enquiries and cross-cultural communication, Avelina Tarrago and Melia Benn. Avelina and Melia are both barristers at the Queensland Bar. Avelina was called to the bar in 2017 and practices out of North Quarter Lane Chambers in Brisbane. She’s a former president of the Indigenous Lawyers Association of Queensland and a Wangkamadla woman from Central West of Queensland. Melia was called to the bar in 2018 and has a dual practice in Cairns and Brisbane at Endeavour and Griffith Chambers respectively. Formerly she was a senior lawyer in the Office of the Director of Public Prosecutions and worked as counsel assisting the Coroner for the Office of the State Coroner. Melia is a Mamu and Gunggandji woman Thanks so much for joining me today on Hearsay, Avelina and Melia! |
| AT: | Thanks for having us. | |
| MB: | Thanks, David. Thanks so much for having us. | |
| DT: | Now before we kick off, we’re recording remotely. So, here, where I’m recording; I’m in Sydney, New South Wales, and I’d like to firstly acknowledge the Gadigal people of the Eora Nation, the traditional owners of the land that I’m recording on today. | |
| AT: | And I’m in Meanjin, which is known as Brisbane to many people. And on Yuggera and Turrbal country. | |
| MB: | I’m in Cairns at the moment, also known as Gimuy and I acknowledge the Gimuy Walubara Yidinji people and I always acknowledge that it is a privilege to be able to work on these grounds and I acknowledge that they never ceded sovereignty. | |
| DT: | Thanks very much. Now before we get into our topic for today around culture and customs in the Coroner’s Court, I want to talk a little bit about your careers and both of your journeys to the Queensland bar. Did you always want to practice law? Did you always want to practice at the bar and kind of what got you to where you are today? | |
| AT: | So for myself, David, I have recently just done some self-reflection about my journey and I was looking at some of my memory books from high school and I’d actually written in there that I wanted to come to the bar. But yeah, it’s interesting. I had forgotten about that. So obviously as a 16 year old, being able to project forward was pretty accurate and driven, but it’s definitely been a journey and I’ve just been very lucky that I’ve had a lot of supportive people along the way. But I’m not sure, sis, whether you’ve had the same journey? | |
| MB: | No, I actually had in my yearbook that I was going to be a flight attendant! Which was because my aunt worked with Qantas and she had this really glamorous life working internationally and all that sort of thing. But my mum does tell the story of me telling people that I wanted to be a lawyer from a young age. But I don’t think that’s because I had some admirable social justice pursuit that I was aiming towards. It was more because I used to be obsessed with Jim Carrey and he had that movie Liar Liar, which was him being a family law lawyer. And he just seemed to be having the most outrageous time doing that, driving a convertible, all the things that just isn’t a part of lawyering whatsoever. So that’s where I got the idea from, I think. And then in high school, weirdly, I actually was only quite good at legal studies as opposed to anything else. I didn’t really enjoy other subjects. But the flight attendant dreams came to a quick end because our family circumstances changed and I needed to not be sort of flying around internationally. I needed to be at home with my family and looking after my siblings. And then the uni contacted me really randomly and said; “you never took up your preferences. What if you did a bridging course now and you can do law?”. So I thought I may as well do that. I had obviously let go of the Jim Carrey idea of driving a convertible and being crazy in Court and things like that. So yeah; don’t have that admirable reason for coming to the law, but weirdly now pretty much all I do is social justice type of matters. So it’s kind of done a full circle, which is really nice. | |
| 00:04:56 | DT: | I don’t think I’ve ever heard someone have Jim Carrey in Liar Liar as their kind of paragon of lawyering or their role model for a lawyer. That’s amazing. I mean, he had a very nice home and a very nice convertible… it’s true. He lived it very well. |
| MB: | That’s right. And I didn’t have lawyers in my family to look up to, or even we didn’t know lawyers or anything like that. It was only what you saw in the movies. So yeah, I think that’s where it came from. | |
| DT: | And it’s interesting because, you know, you say; “well, I didn’t have that social justice motivation there”. But I think a lot of us, when we go to law school, don’t necessarily. Whether it’s Jim Carrey or something else, a lot of us are attracted to the glamour of law. And sometimes that passion comes later. And your work in the ODP and in the Office of the State Coroner, clearly that has come through, not just in your work at the bar, but before that. Avelina, you were called to the bar in 2017, but you started practising in 2009. What sort of work did you do before coming to the bar? | |
| AT: | Yes, I was fortunate to get a cadetship with the Commonwealth Office of the Director of Public Prosecutions. And so I started that in my first year and sort of progressed up the ranks after being admitted. And I was really social justice driven from a young age and rights-based approach in seeking the truth of things and arguing with people, I think as a three and four year old. But in terms of my career after the Commonwealth DPP, I did a few secondments. So I went to the Australian Security Investment Commission. I did some policy and project work for the Department of Justice in Queensland around Murri Court and drug diversion Courts and those rehabilitative and diversion projects for community, as well as moving on in 2015 to the Office of the Health Ombudsman in a quasi-prosecutorial role. So the regulatory prosecutions. And I really found an interest in the health space and understanding the different aspects of it. So that passion has now extended to the work I’m doing now. And just before coming to the bar, I did an eight month stint at the Coroner’s Office, similarly to Melia as counsel assisting. And I think I found my true calling in that sort of personality of mine where it’s that truth seeking and rehabilitative and cathartic process for families to go through. So that’s really been my journey so far. | |
| 00:07:22 | DT: | And such a diverse journey in terms of the experience you’ve had. And I guess that feeds into the really diverse practices both of you have in terms of the areas that you work in, but not just in terms of the areas you work in, also in terms of the geographic areas that you cover. Can you explain for our listeners what kind of impact that diversity both in terms of subject matter and geography can have on your practice? You know, it’s really the challenge of being a generalist, I suppose, in having so many different areas to look after and stay across. |
| AT: | Yeah, I know for myself that it, especially having been in a public service for so long before coming to the bar, it is nice to have autonomy to choose what kind of matters that you do. And to really challenge yourself and expand your skills. And I think at the end of the day, whilst we might focus on particular areas of practice, there’s that responsibility of being a good advocate regardless, and demonstrating those skills in whatever jurisdiction that you’re in. And that’s the role of the barrister is the advocates and the art of persuasion. So I think even being a generalist in terms of the types of work, the ultimate goal is to be a good advocate and strive for those skills. But my practice, especially recently on the disability Royal Commission has taken me Australia wide as well. So working with remote and very remote communities, especially, and elevating the voices of those who are the most vulnerable. So you don’t often get to focus on that when you’re in those urban settings. And I guess that goes to my purpose in supporting community and taking on those matters for the most vulnerable people. But being in an urban setting in the capital city also allows me to work up those other hours so that I have more time for the pro bono sort of settings as well. | |
| DT: | And Melia, you manage a practice across two cities. How do you find that? | |
| MB: | It’s actually been fine, especially since COVID. No one sort of expects you to be in chambers or in your office at all, like how we’re able to do this podcast today via Zoom. And really, I’m never really in one place for too long anyway. And that’s because we do the Stolen Wages Class Actions in Western Australia, Northern Territory. And then I also do a lot of work for the State Coroner in deaths and custodies and also the Northern Coroner. So we’ve got a matter in Kowanyama, in the Cape. And then, like I said, I’ve been in the Northern Territory a lot in the last year. It can be quite a stretch sometimes, but I think I’ve finally got the right balance now. When I first came to the bar, I was doing a lot of criminal defence because that’s where I had experience in that sort of criminal law, going to Court and being an advocate there. And I had a particular passion in youth justice and representing our young kids. The only problem with that was I was expected to be in Court. There’s limited Court dates. You don’t really get a choice of when you need to be there. And sometimes things can be brought on quite quickly, especially if a child’s being put into custody and you need to sort that out as soon as possible. But you can’t really do that when you’re already on the other side of the country and things like that. So I don’t do criminal defence work anymore. I have streamlined my practice to pretty much only doing the class action work and the coronial work and some regulatory prosecutions and things like that here and there. But I love being at the bar for that exact reason. Like Avelina said, that autonomy, of course, there’s the rules of the bar, the cab rank rules and things like that. But once you’ve got your momentum going and you love the types of work that you’re doing, there’s no nine to five. You can really engage in your passion and be a part of something bigger than you. So the cases that Avelina and I work on, you know, every time you’re really worried about representing community and we have particular obligations to community being First Nations women, the thing that gets you through is that you’re just a part of something so much bigger than you. And for me, that really keeps me going. | |
| 00:11:29 | DT: | So we’re talking today about the Coroners Act and the processes under that Act. And those are usually enlivened in the circumstances of a reportable death. Our listeners who might not know what a reportable death is, can you give us a little bit of a definition? |
| MB: | Sure. Maybe I’ll start with the objects of the Act because that’s sort of where the reportable deaths come in. Section 3 of the Act sets out the Objects of the Act. And that’s really how they achieve what they put themselves out there to do. And that is to prevent deaths from happening in similar circumstances in the future. And that is by allowing Coroners at inquest to comment on matters that are connected with the death. And that can include matters relating to public health or safety or the administration of justice. And yes, it’s only in relation to reportable deaths. And those deaths are ones that are considered to be in circumstances or acts that are unnatural or violent deaths or deaths that happen in suspicious circumstances. It can also be in relation to some healthcare related deaths, not in the sense that someone maybe had terminal cancer and then they end up dying in hospital. It’s more if it was unexpected, if someone was going in for routine surgery and then they’ve died from something that wasn’t expected in that course. It also of course includes things like deaths in custody. TIP: You can find the statutory definition of reportable death in section 8 of the Act. Subsection 3 defines the circumstances in which a death is a reportable death, and paragraphs (a) through (h) provide the specifics of each circumstance. Other than the ones Melia has just touched on, a death is also a reportable death when it is not known who the person was or, for example, when the death happened in the course of a police operation. The examples given for the latter are things like a motor vehicle pursuit or an evacuation. So, unfortunately, the whole thing around Coroner’s Court is that someone has died or a group of people have died and an investigation needs to be conducted to figure out why and how they died. And so that the Coroner can make meaningful recommendations to prevent that from happening in the future. | |
| DT: | Now, the Coroner’s Court in Queensland has a guide to cultural competency that should be applied when dealing with Aboriginal and Torres Strait Islander reportable deaths that fall under the Coroners Act. Avelina, you actually worked on this guide. You helped to write it. Tell us a little bit about it. | |
| AT: | Yes, thanks, David. I did write the guide and that was out of one of the inquests that I had worked on. And the guide is actually attached to the findings of that inquest. And it was really because I had identified a few of the sort of procedural issues in terms of how an investigation progresses and the workflow, the touch points of engagement, for the office and had raised concerns and also identified ways that we could do things better as an internal employee. I then went to the private bar and was fortunate enough to be allowed to continue that work. And so I was able to consult with community members who I had a connection with, who had been through the coronial process, to workshops for Aboriginal people and for Torres Strait Islander people. Those different cultural issues that arise when there’s Sorry Business and the process of death and dying. And that guide now is being used by the staff at each level – including the Coroners in a culturally safe and sensitive way – engage with community as they’re grieving and as they’re taking on this foreign process during that grief. | |
| 00:15:15 | DT: | So this guide actually came out of your experiences with a particular inquest? |
| AT: | Yes. Yeah. And I just saw that there was a lot of goodwill and not a lot of guidance. So this was a point where there’s a written tool that’s able to assist people within the Office. And sometimes you don’t know what you don’t know. And whilst we’re not a homogenous group of people as Aboriginal and Torres Strait Islander people across the country, there are some generalised things that are well accepted within community around death and dying principles and protocols. So this was a way to focus some of those discussions and identify those key elements. So for example, how to refer to somebody once they’ve died. There’s different practices in different areas, but at least some guidance to the staff and the Coroners about how to address people in an inquest as well, how to deal with concerns about autopsies, examinations and those important key dates around, for example, in the Torres Strait, they have tombstone unveiling, which is part of the grieving process and identifying some of those mourning practices so that the Court was aware and can create a safer place for people to participate. | |
| DT: | Now you mentioned just now “Sorry Business” – that’s a term that a lot of our listeners might not have heard before. And I imagine even some judicial officers who might be hearing matters that relate to this sort of subject matter might not be completely familiar with Sorry Business. What does that term mean and how does it sort of come into play in the Coroner’s Court? | |
| MB: | So Avelina has touched on quite a few of the ones that, like she said, are quite general and that are accepted by most communities. But essentially it is the general term for, and used to describe, customs that Aboriginal and Torres Strait Islander people observe during their mourning time. And it’s important – and what’s probably not given enough significance – is that that type of practice and those observations take precedence over everything else that’s going on in community at the time. So it’s very important that people are aware of particular dates because you shouldn’t be going into the community without special permission around those dates and things like that that need to be observed by the Court. Because the Court – whilst it obviously can do what it wants – it sets dates, it just will book its flight to go up to community. It’s going to get a better reaction, a better response from the community, if those sorts of things are abided by. But yes, so some of the things are not saying the person who’s deceased name. In some communities that name is actually replaced by a traditional name. So you say if their name was Fred, every person called Fred in that community will have to use that traditional name until that mourning period is over. Other things are like what is done with the deceased house. Sometimes in community everyone will stay in the house for a particular amount of time or on the flip side you won’t go into that house at all until the mourning period is finished. So there’s just a few things like that. Like Avelina said, it’s not the same in every community but the best way to find out is to ask. And there is an obligation on counsel assisting the Coroner to be aware of certain things like that. But we also rely on the legal practitioners representing the family to inform us of particular things that are in relation to that community or that family. So one of the first things that we do when we are contacting the next of kin and their legal practitioners is to ask how would their clients like their deceased person to be referred to. A lot of the time it is just by Ms and then their last name, so never their first name. And other times it can be a particular traditional name. It’s all about communication really and I’ve not come across one Coroner who’s; A not willing to learn, or, B will say “no, it has to be done a certain way”. Because as Avelina said earlier this jurisdiction can be quite cathartic especially if it’s the type of matter where you might not have some groundbreaking revelation that will come out through the inquest. At least the family felt like they were respected and they can use that process for a cathartic purpose. In terms of what legal practitioners can do there is a lot of information online. A lot of communities have their own website, they have their own Sorry Business tab, you can click on that and there will be some pointers as to how they observe Sorry Business. And like I said otherwise the only thing you can do is to ask and you just need to have that open communication between your clients. But also that communication needs to go back up to the Coroners and like I said every time the Coroners have been more than happy to use the right reference to the name. I’ve also seen Coroners direct media to say; “if you’re going to be reporting on this matter we’ve been asked by the family to refer to her as Ms so-and-so, Mr so-and-so” and I’ve always seen that to be observed. That’s something that can be re-traumatising for people. So when you’re going through the coronial process it is reported in media and for family to sit there before Court to see a paper or to see something online using photos that haven’t been approved of and using their name it really goes against what the Coroner’s Court is trying to do which is to provide some answers for this family but also to be a part of a cathartic process. | |
| 00:20:49 | DT: | Absolutely. Thanks so much for that explanation and it’s a bit like you said, Avelina, it sounds like everyone’s more than happy to follow that guidance. I think it was a great point that you made, Melia, that well the Court could do what it likes. It could fly in when it wants to fly in, it could conduct its processes the way it wants to conduct them using the names it wants to use but as a process that’s not about an adversarial win or lose case – as a cathartic process as you described – and in a way as an inquisitorial process that’s concerned with truth and discovery more than win or lose. I suppose the best means to arrive at that point of truth and discovery is to do the thing that’s going to get you the best reception as you said, Melia, and that is be respectful of those practices. And I suppose Coroners are particularly well placed to have that curious and questioning mind to really ask the right questions, aren’t they? Their whole job is to ask the right questions and inform themselves. |
| MB: | Yeah and I think like when I talk about that reception and reaction from the community it’s not to avoid a protest happening down the main street. It’s more if the family feels like they’re going to be respected and listened they are going to come to Court and they’re going to give their evidence in the most wholesome way and they might even think of things that you haven’t thought of because you don’t know what you don’t know. And we learn a lot going through the process from a witness sitting in the box. You’ll ask a question that triggers a memory of theirs and they’ll provide a story that’s able to really inform your next questions. Or sometimes it’s come up with a whole new issue to be added to the list of issues that is to be answered by the Coroner at the end. So yeah it’s something that is probably just not given enough thought to when conducting it ordinarily. But in my experiences and I know Avelina and I talk about this all the time, particularly the state Coroner in Queensland, he is very receptive and he’s always even prompting us; “is there anything else that we need to be doing”. Things like that. So yeah it’s not just to avoid those protests on the streets that people see on the news because it’s actually just that real nitty-gritty stuff that’ll come out from a witness only if they feel safe – safe enough to provide that evidence. | |
| DT: | Absolutely. I think we talk a lot as officers of the Court about respect for the process, respect for the Court process, respect for the Court but this really is about how the Court can engender respect in itself about the steps that it can take to maximise respect for the coronial process. | |
| AT: | Yeah definitely David. I think it’s also important to identify that like you said it is an inquisitorial process and it is different from the way we conduct proceedings in other jurisdictions and I think because of that it garners that need to create safe spaces for the people who participate. And at least in Queensland there has been experience – and not just in a First Nation setting – but where the pressure has been so great as to impact witnesses who have appeared in the inquest fatally. And so there is this responsibility to ensure that it is a safe space for people to participate in the process. And what Melia and I identify is that yes there are generally across the board but especially for Aboriginal and Torres Strait Islander people because there are particular protocols and processes that affect our communities a lot more and we want everyone to participate in a meaningful process. So that truth seeking of what happened to that deceased person and being part of the solutions for that it doesn’t happen again which is the whole purpose of the jurisdiction is to prevent deaths from occurring in the first place. | |
| 00:24:46 | DT: | Yeah absolutely and look it sounds like, although everyone who’s listening should read the guide especially for practicing in the Coroner’s Court, and it does sound like there are some practices about which we can generalise, really the key takeaway from the guide seems to be that it’s about asking the right questions and making sure that you’re informed about the approach to Sorry Business in the community before taking those steps beginning that process. |
| AT: | Yes because relationships once they’re destroyed are very hard to rebuild. So it’s really important that you know what you’re working with and I don’t see it any different to other areas of the law. There is officers of the Court to assist the judicial member, and if you don’t understand Sorry Business and the way it affects that particular family when that is within the scope of issues that we’re dealing with in that inquest, you need to skill yourself up on it. It’s your obligation as the practitioner to assist the Court and if you don’t have that understanding you need to obtain it. And this is one way of assisting because there isn’t a lot on the nitty-gritty. So that’s where I identified that gap. This is a way that we can do things better and we can assist the Court and knowing these things is going to assist the Court. | |
| DT: | Absolutely and I suppose one of those topics about which to some extent we can generalise and then to some extent practice can vary greatly is connection to country. We know that that’s going to be profoundly important wherever we go but how that manifests can be quite different. Where the deceased in a reportable death has to be transported across or out of country for example how do you handle that process in a way that respects their connection to country and what their definition of country is? | |
| AT: | So a lot of these processes are operational – at least the Queensland experience. So actually having forensic pathologists. There’s not a lot in Australia. And so at least in Queensland that people are more likely to be transferred to Brisbane, to the facility in Brisbane, to be able to have those examinations take place. But the question will always be asked of the family; “do you consent to having an examination or an autopsy?” – so they’re interchangeable references – for that to happen. And if there is no consent given by the next kin then it has to be a very good reason and ultimately that decision sits with the Coroner. But again that guide steps through that process of; “how do you have those difficult conversations with people where it is extremely necessary to have an autopsy done?”. And it can be very difficult because I know for my own family, as a Wangkamadla people, we want to be buried whole. As a whole person; and not have parts here and there floating around for want of better phrase. So it’s really important to identify that in terms of country and some of the inquests that I’ve been part of there’s always that acknowledgement of connecting that person back. So for example the inquest might be opened where that person was from in community. So most recent example in Doomadgee. So actually going and having the first day there and then relocating to Cairns. So you can acknowledge that connection. TIP: We dive into the Doomadgee case in depth with Joshua Creamer, who was one of the barristers representing the applicants in that case. Joshua is an expert in human rights class actions and native title litigation and his episode is a really great exploration of that burgeoning area of law. So after you’ve finished with this episode definitely have a listen to Joshua’s. That one is episode 84, Voicing History: Wotton and the Continuing Development of Human Rights Class Actions. I know from my own familial experience in my family where someone in our family was very transient and moved into the state and sadly passed away interstate and there are a lot of issues trying to get the person repatriated back to Queensland and that sits outside of certain processes of what the Coroner can do once a deceased person has been released from the jurisdiction of the Coroner. So it can be a very difficult process to navigate when someone is interstate and trying to get that person home for burial. | |
| DT: | You just mentioned the autopsy or the post-mortem there and that there might sometimes be a tension I suppose and a difficult tension to resolve between a reticence to do that process to conduct the post-mortem for cultural reasons but then obviously a very persuasive weight that the results of that examination might have in resolving the inquiry or reaching findings in the inquiry. How does the Coroner’s Court weigh those countervailing objectives there? Because as we’ve been saying throughout the episode there are objectives that typically go very well together. It’s a cathartic process for the family. It helps the family to understand what’s happened. We can understand the process better from the perspective of preventing deaths like this in the future as well and that usually that cathartic and inquisitorial role go hand in hand. But this is one of those moments rare enough as they might be where those two roles actually come into conflict where there might be one objective that has to be kind of placed before the other. How does the Coroner’s Court go about that where there is some objection to the examination of the autopsy being done? | |
| 00:30:22 | AT: | Ultimately it comes down to the Coroner’s judicial discretion. So that is ultimately a matter for the Coroner. So I can’t really speak to what goes through the minds of the Coroner in that sense. But the views of the family are always taken into consideration regardless of what nationality they are and there are coronial counselors within the framework to support families through that process and having those difficult discussions. So there are mechanisms to support it. It’s not just asking the question and leaving the trauma behind. There are mechanisms there to support those families in making those really difficult decisions or if ultimately the Coroner has decide; “well, I understand that there are objections but it is in the best interest to undertake a post-mortem examination or autopsy” that the coronial counselors are there to support the family in understanding why. |
| MB: | I think it’s also important to note that the Coroners I’ve worked closely with, they really care about making sure that the family are educated as to why they want to. And the Coroners usually have a pretty good relationship with their local pathologist. So it’s not the case of the Coroner getting a phone call saying; “this has happened”, because the Coroners are informed by the police of the death in most circumstances. And they will only get a certain snapshot of information from that police officer. What a lot of the Coroners will usually do is they will contact the forensic pathologist and they can usually do a workshop; “does this need to be the full-blown autopsy or can we do a partial autopsy?” And there’s a lot of back and forth like Avelina said. There’s the counselors who are sort of the conduit between; “here’s all this scientific information. But this is what it means to you as a human being who is grieving who needs to understand why this needs to happen”. So there’s a lot of back and forth. There’s a lot more information seeking. What do we think might have happened? And therefore why do we need to have an autopsy? And that’s because at the end of the day once, like Avelina said, that deceased person is ultimately released. So there’s no going back to after you’ve had another thought after you’ve got some more information. Those decisions are made with as much information as you can get out of the time and with as much consultation. And it’s also I think important for people to understand that Coroners – and it’s an operational thing like Avelina was talking about – they can’t be available 24/7 for their area that they’re assigned to. So sometimes there are Coroners who are on call and like – as all strange, unnatural deaths happen – they always happen on weekends, they happen over night time, they happen on public holidays. So another Coroner is actually on call and they’re the ones who will make the decision about the autopsy. And that person who’s made the decision or that Coroner is not necessarily the same person who’s going to run the inquest down the track. So the decision for an autopsy needs to be made with as much information as possible and as much consult as possible. | |
| DT: | Last season of the show we talked to Mary Jerram, a former Coroner here in New South Wales and she talked about the challenge in coronial work of translating the technical into the interpretable and being that conduit between experts, medical experts, mental health experts, pathologists and the community and families. And it sounds like, again just in terms of the process you’ve described there, Melia, in consulting with the family. It really is all about that isn’t it? In the Coroner’s Court, having that ability to communicate as we’ve been saying, but communicate between such a range of different audiences in a way that’s kind of universally understood. | |
| MB: | Yeah and it needs to be understood too by people making those decisions because there can be massive delays in people’s ability to complete Sorry Business. So like Avelina said her mob have a preference or very strong sense of having to bury your loved one whole. And that is because it has – and I won’t speak for Avelina’s family – but in most families it’s because you have to set up that spirit so that it can go into the Dreamtime as a whole so that it’s not going to be lingering around. It needs to be at peace. So for someone to be at peace they need to be whole. And so if a family has been told they need to have an autopsy they might get through that step and be; “okay, we will let an autopsy occur”. That delays funerals, delays Sorry Business. But what sometimes can happen is that a brain might need to be retained because that needs further testing. So that can have massive impacts because that particular specialised testing of a brain is not done necessarily by the forensic pathologist who’s conducted the autopsy. That’ll be done by another special team who specialise in the testing of brains. Families do not want to bury someone without all of their loved ones parts and that specialised testing can take months. And in some communities – I know of a particular community, say in Kowanyama in the Cape where I’m doing an inquest at the moment – for a long time everyone’s funerals were delayed because whoever has just passed they are the first person to be buried. It has to be done in order because that’s how they conduct their Sorry Business. I mean they did end up changing it because there was going to be such a delay. But those are the sort of consequences that people need to be aware of when they’re making decisions about someone’s body parts. So delaying funerals has a massive impact on the community because like I said Sorry Business takes precedent over everything in most communities. So until that is understood by people, and people making those decisions, like I said before you don’t know what you don’t know. In every experience I’ve had in the Coroner’s Court, once that sort of thing is explained to people and explained to people making those decisions it’s taken into account and it’s taken into account very seriously. | |
| 00:36:22 | DT: | Yeah I suppose as you were saying Avelina this is a judicial discretion to be exercised and a good thing that it is because the circumstances in which that decision had to be made and the factors that might weigh on it are multitudinous. But in a case involving a reportable death of an Aboriginal or Torres Strait Islander person this is one of those factors the impact on the community as a whole that might have a very long ranging and an impact over time. That’s one of these factors to be considered in that judicial discretion. I want to talk now about where there might be gendered cultural practices around death because that is something that can occur in different communities. But everyone who we’ve described today in terms of the people that play a role in the Coroner’s Court the Coroner themselves, the forensic pathologists, counsel assisting the Coroner, all of these people come in different genders. And so there are going to be circumstances in fact it’s almost certain to be the case that someone involved in the coronial inquest or the process, the operational parts of the coronial process, is going to be a different gender to the deceased. So how does that work? How do gendered cultural practices around death impact on the coronial process in the coronial Court? |
| AT: | Yeah thanks, David. I think acknowledging that for most Aboriginal people that we have men’s and women’s business. So there are particular protocols and that’s obviously going to change depending on the group in which you might be engaged with. And also I’m not a Torres Strait Islander person but there are particular practices for Torres Strait Islander people as part of the mourning process of how a person’s spirit is to be rested. So you have the Koey Marb which is the spirit hand. And that’s describing the journey of the deceased person doing the long journey home to their resting place. And the role of the Marigeth which is the responsibility of particular members in the family. So it’ll be the in-laws of the person who has passed on who are responsible for preparing food and inviting people around and responsible for ensuring that the tombstone unveiling happens and all of those processes. So they’re those particular roles and that might be male or female as well depending on who might have passed away. But I always like to speak from my own experience. So some of the gender issues that my community has, particularly if someone might have died in quite traumatic way, and there might be sexual assault that’s formed part of that process or even just viewing the body or talking about the body in certain ways will be inappropriate or even if there’s particular familial relationships. So if witnesses have to give evidence and you’re referring to the son-in-law and the mother-in-law, they might not be able to talk directly with one another due to cultural protocols that are gender specific. So understanding the complexities of how those cultural practices exist in order to have a successful inquest. And when I mean successful, it’s that you’re getting to the heart of the issues and addressing the concerns. So these are very complex ideas that have existed since time immemorial and are still practiced but not necessarily known amongst the wider community. So being really mindful of how gender plays a part in community. And obviously, for our older people, who might not understand the difference of what a pronoun is as well. So we’re trying to be mindful of inclusive language in society now. And some of these concepts are not understood. I know, by the older people in my family, that’s the case – and it might not be the same elsewhere – but talking through some of these issues and understanding, if you’re female counsel assisting talking to a male next of kin there might be some concerns there in terms of being able to speak directly or vice versa. So really asking the question of the community; “who’s the right person for me to talk to? How am I going to be able to facilitate this process?”. And understanding the concept of family within the Aboriginal and Torres Strait Islander context. And the Queensland experience that the Act actually talks about how broad that definition is amongst Aboriginal and Torres Strait Islander people – I haven’t looked at the other jurisdictions – but at least the Queensland experience talks in that sense. And being mindful that it might not be a blood relative that might facilitate that process but for the purpose of that family that is family and it might be that person’s responsibility so that there aren’t these gender issues that might come up. | |
| 00:41:25 | DT: | Something that I find so interesting about what we’ve covered so far is often when you think of a Court setting and especially the Coroner’s Court you think of it really in imperative terms; what can the Court require? What can the Court order? What must the participants do? But here there’s so much discretion and so much decision making to do on the part of everyone involved in terms of how to approach what can be quite uncertain ground or decisions that don’t have an easy answer. In what you’ve described around gendered practice it sounds like there’s sort of two situations broadly that you might be dealing with. There’s a lot of people you’re working with and you might have – you know, again, we often think in imperative terms – but the Court might have very little control over the extent to which those people in the community are unable to communicate directly or have to communicate in a particular way. And then on the other hand you have circumstances like the one you described Avelina where you have female counsel assisting speaking to a male next of kin where – look there are steps you can take to manage that – but there are going to be times where that’s just unavoidable and again you can’t control that. But you have to try and manage that dynamic within the interaction to try and get the best result in terms of those inquisitorial and cathartic outcomes. So I just find that so interesting that this is one of those areas where the kind of force and imperative nature of the Court reaches its limit and we have to take a more cooperative more culturally informed but also a more consent-based approach where we’re really trying to find common ground rather than saying well you must do it this way. |
| AT: | And I think I find that practitioners who are in this space tend to be more collaborative and so it really is the responsibility of those at the bar table to help facilitate that process. And I think I call on my colleagues to build their cultural safety capacity in understanding these issues so that they are part of the process and facilitating good relationships, so that at the end of the day we’re not re-traumatising these families through a very difficult grieving process that they’re already undertaking and compounding that because intergenerational trauma is a major issue for our community from the colonial experience that we’ve suffered from. And so at least my legacy that I’d like to leave in the profession is for us to be culturally intelligent and safe in the way that we do our work, especially if they wanna work in black spaces. | |
| DT: | And doing that work in that way, I suppose often it’s that last mile that makes all the difference – that last 10%. And when you’re able to accommodate, or be aware of cultural practices 90% of the way, when there is one of those moments – like the ones we were describing female counsel assisting speaking to a male next of kin for example – that there has to be some accommodation of the Coroners Court’s process. I suppose for lack of a better term where it’s just unavoidable that it’s going to have to be done this way – where the Coroner might order a post-mortem examination, for example – the fact that the balance of the process has been culturally informed that you’ve been able to have those conversations about the reason why this is taking place I suppose because it is that last mile that makes all the difference. That same outcome might have happened in two different coronial inquests, a post-mortem examination happening when a family would rather it not have happened. But what happened up to that point could mean all the difference between an extremely traumatic experience and a difficult one, but one that that family can get through. | |
| 00:45:02 | AT: | Yes definitely, and I think as a profession we need to do better because there are better ways of doing things. I’ve not experienced in many other jurisdictions the inclusiveness that I have experienced in the Coroner’s Court. I think probably the Disability Royal Commision in terms of the way that a hearing is conducted might be the only other experience. So again that inquisitorial setting. But I don’t think it is exclusive to that jurisdiction. I think that even in an adversarial setting that we can do things better. And particularly the experience of Aboriginal and Torres Strait Islander people – and Indigenous people around the world – is that we are a peoples that will have a higher engagement with all touch points of the legal profession, unfortunately. And even in terms of looking at Closing the Gap and international strategies and targets, our mortality rates are much higher pro rata. And also the types of deaths that our people suffer from are more likely to have engagement with the Coroner’s jurisdiction. There’s those unnatural deaths and traumatic deaths – or they’re compulsory, whether it’s a death in custody where an inquest must be held. So again looking statistically in the most recent census figures showing the types of death; you know healthcare related deaths for Aboriginal people, deaths in care, whether that’s as children in care or whether it’s as a result of a disability for a level three care facility, and of course just in custody the numbers will speak for themselves. So there’s a greater need for us to be aware of these issues and just do better be better advocates… |
| DT: | … across all jurisdictions, across all of our Courts. This is a little outside of our topic of the Coroner’s Court but I wanted to ask this because you made a really interesting point before, Avelina. That inclusivity or that sort of informed approach you see in the Coroner’s Court, you see in the Disability Royal Commission, but maybe less so outside of that jurisdiction. And I think this is a bit of a pattern where we see practices in our specialist Courts whether that’s the Coroner’s Court having a more culturally informed approach, whether we have the drug Courts that have a more interdisciplinary approach working with health professionals, our children’s Courts and juvenile Courts that have a more informed approach to development and community involvement. Why aren’t the lessons from our specialist courts filtering back to our sort of main line or our larger Courts? When our solicitors and barristers and judicial officers practice in specialist Courts; that knowledge isn’t feeding back into the legal profession. Can we do better work in our Local, District, and Supreme Courts? | |
| MB: | I think that people who are working in those areas it’s kind of like that echo chamber. So because you’re doing it and just you’re working so hard you got this case, the next case. You tend to think that everyone’s like that and so sometimes it’s quite a jarring experience when you find out that a family had a really bad experience in another Court and because you thought that’s how everyone was doing it. So I think people do get caught up in the everyday grind if you are doing it well. And I guess where it really should be filtering through is those sort of opportunities for professional development. So Avelina and I talk all the time about those sorts of topics; they should be mandatory when you’re going to the bar when you’re becoming a solicitor. There should be checks on people’s cultural competency throughout the year. It’s not just something that comes at the end after something bad has happened. And the people working in those specialist Courts usually have specialist training. So like again it just feeds back into that echo chamber of people doing the same sort of work. Which is amazing; you want that to happen but just making sure that there’s a check on everyone else is really an institutional problem that can be fixed by way of having that reference checking every so often just to make sure people are aware of the most up-to-date practices. And some of these things become not necessarily something you can find written down. It’s something that’s just become a practice over time and perhaps maybe those things need to be written down, they need to become practice directions and things like that. Like in Queensland, we don’t have a practice direction for the coronial Courts on how you are supposed to deal with Aboriginal Torres Strait Islander families. Victoria has one, and we have the protocol. But really we’re in the stage where we should be developing it as a practice direction so that when a Coroner who doesn’t necessarily always do deaths in custody, or things that affect First Nations people, when it’s not happening can say to the bar table; “you need to be referring to that particular practice direction and if things aren’t done in this way we can’t move forward”, things like that. | |
| 00:49:53 | DT: | Yeah, absolutely, systematising or creating some sort of organisational knowledge around some of these things rather than just; “this is the way things are done around here”, which is hard to pass on especially to new practitioners. |
| MB: | It just sort of also leaves that work to people like myself and Avelina. And then we end up carrying that whole burden or obligation to make sure that the Court is being run in a way that is safe. And that’s not really fair when we’re counsel assisting because we’re not representing the family. In fact we’re not representing anyone. We are there to assist the Court to come to the right or to the most evidence-based sound findings. So when practitioners are all aware of it, even if their particular party is in the spotlight because there’s some allegations that there were things that they missed along the way, or there’s some allegations of malpractice or things like that. They still need to be aware of how they fit in to making that place a safe place for First Nations people. TIP: If you want to know more about how to make court a safer space for First Nations Australians, a good place to start is the guide we talked about at the top of the episode – the one that Avelina helped write. That guide is “Sorry Business: A guide to cultural competency and engagement between the Coroners Court of Queensland and Aboriginal and Torres Strait Islander people”. We’ve left a link to that guide in the show notes. So for the coronial Courts example, I’m in a matter at the moment where there are two elders that sit next to the state Coroner throughout and they will sit throughout the inquest. So, technically, in an adversarial system that might be seen as a conflict of interest having two members of the community sitting up at the bench next to the judicial officer making sure that they feel the community is seeing this transparently and that they are able to contribute in the best way possible. Someone else at the bar table who’s representing another party other than the family technically might be able to stand up and say; “don’t like that. That’s not a good look for my client and I see that as a conflict of interest”. We didn’t have that objection and I think that’s because those particular people representing the other parties know when to object to things and know when this is a part of the process that the Coroner is allowing because that shows the community that this is a place where they can come along and they can give their evidence safely. And in other jurisdictions where things are done a little bit differently, when people are informed – it’s like when I used to represent juveniles in their criminal proceedings. The judges in Cairns, particularly say Judge Fantin, she was very aware of how a kinship operates within Aboriginal and Torres Strait Islander families. So there was always the opportunity for family members whether it was your cultural mum, your biological mum, aunts, uncles, whoever is involved with raising that child is allowed to approach the bar table and speak to the judge directly and inform them of what’s really going on at home so that she can make a better decision that will suit that child in helping it rehabilitate from the reason they’re in the Court for. So certain rules are… they’re not written in words. They’re not in practice directions. But when things like that are happening all the time and there’s good outcomes from it then perhaps maybe we do need to start putting them into practice directions so that people who are wanting to inform themselves they’ve got something that’s connected straight to the Court. They know it’s legitimate information and they can add that to their toolkit when they’re representing people. | |
| DT: | Yeah absolutely. I find it interesting that we have these specialist Courts that are innovative in terms of their procedural approach but that innovation rarely feeds back into the rest of the profession. It’s a shame. A big part of that is that at the moment a lot of the work of maintaining that innovation, especially around cultural competency, is falling to the practitioners who are best able to do it. But that makes that difficult to; one, normalise within that Court, and; two, normalise outside of that Court as well. We’re nearly out of time today but before we go we have a lot of student listeners – a lot of listeners who are just starting their journey in the law – and we’ve talked today about how our more senior, our more experienced lawyers can upskill on cultural competency, how they need to add that to their already very well developed toolkit as advocates or lawyers, but for those who are just starting out who are really at the start of their journey in the law. How can they learn a bit more about the intersection of culture and the law in whatever field that they practice in coronial or not? | |
| 00:54:30 | AT: | I think the advice that I would give in terms of improving your cultural competency and knowledge and understanding is reflecting on your own relationship with Aboriginal and Torres Strait Islander peoples. So really we’re 3.2% of the national population and it’s very possible that people have never knowingly had a discussion with an Aboriginal and Torres Strait Islander person in their life – and they might not have any academic guidance either. So how can you be expected to work in any spaces where these issues arise, and do a good job, when you don’t know what you’re doing? And you don’t understand the 65,000 years of cultural protocols and practices that exist when you haven’t done the work, and you haven’t done that self-reflective tool of; “where do I sit in the picture?”. So I think first is asking yourself those questions. And if you have done some academic study; has it been authored by Aboriginal and Torres Strait Islander people or other indigenous experiences internationally? Or has it been authored by a non-indigenous person who has delivered that academic work through their own lens and not through the eyes of indigenous people? So really looking at the sources for us that matter – which is our community and our elders. I know for me, my authority is my elders who pass on knowledge and bestow that to me. And it’s a lifelong lesson. It’s not just a one hour cultural competency session. You need to undertake this as a lifelong lesson and that’s not the expectation that every Friday at 2pm every week I’m going to read this or watch this. It’s taking those steps throughout your lifetime to go into community and be immersed. And that’s part of that reconciliation journey for non-indigenous Australia to really embrace that. And then in terms of our young people, our other Aboriginal and Torres Strait Islander sisters and brothers who are coming into the profession, to call on us who are already in the profession for support. Because it is a lonely journey a lot of the time. I don’t know how many times Melia gets sick of me ringing every other day of the week. But it’s really important that we support one another and that we’re not in this alone and that there is space for everybody. There’s space to support and also succeed and excel. So that’s the advice that I would give. |
| MB: | Yeah I think Avelina’s just said it in a much better way; but to be interested and to know your limitations. So always be interested to know more. I’ve done a lot of work in the last few years in Northern Territory, in Western Australia, but I know that’s very different to my experience in Far North Queensland as an Aboriginal person. So just because I am Aboriginal, doesn’t mean I go into these communities expecting that I have any idea how they live their day-to-day lives or how they culturally have their own obligations to their own elders and things like that. I still do lots of research before I go into communities, always contacting justice groups; “what do you need us to do so that we can come at a good time that suits you” or even if you need to be doing that for your solicitors who are organising your trips. So just always understanding that your experience is only your experience. It doesn’t then transfer over to other communities and that’s a part of knowing your limits. So if I was thinking about it if I wasn’t an Aboriginal or Torres Strait Islander person, if I was someone from the wider community who was doing this work, knowing your limits. Knowing when you need to start consulting or like Avelina said, contacting people in the profession who have that experience so that they can give you the tips or just point you in the right direction of where you need to start doing the research. Because like we keep saying throughout this whole recording is that knowledge is power. So being interested in seeking that knowledge and then practicing that knowledge and always wanting to be better. It can only serve you in the best way and then therefore serve your clients and get an invite back into the community so you don’t get banished or something like that. | |
| DT: | Absolutely. Well, Avelina, Melia thank you both so much for those tips. And Melia, I love that “always be interested to know more”. I don’t think you can go wrong being curious. And thank you both so much for joining me today on Hearsay. | |
| MB: | Thank you, David. | |
| AT: | Thanks. | |
| 00:59:08 | RD: | As always, you’ve been listening to Hearsay the Legal Podcast. I’d like to thank our special guests, Avelina and Melia, for being a part of it. As you well know, if you’re an Australian legal practitioner, you can claim one Continuing Professional Development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is self-assessed, but we suggest this episode entitles you to claim a professional skills or substantive law unit. More information on claiming and tracking your points on Hearsay can be found on our website. Hearsay the Legal Podcast is, as always, brought to you by Lext Australia, a legal innovation company that makes the law easier to access and easier to practice, and that includes your CPD. Hearsay is recorded on the lands of the Gadigal People of the Eora nation and we would like to pay our respects to elders past and present. Thanks for listening and see you all on the next episode of Hearsay! |
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