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THE WARD CASE AND LESSONS FOR THE WA GOVERNMENT: System-Wide Dysfunction Requires A System-Wide Approach
1. Introduction: “A Litany of Errors”
The chain of tragic neglect and flawed decisions that led to the death of Mr Ward in January 2008 is, amongst other things, evidence of institutional or systemic failure in the corrective and custodial systems, especially as they relate to Aboriginal peoples.
This report makes recommendations in a number of areas including the implementation of the Bail Act, the practices of the Office of the Inspector of Custodial Services, the prisoner transport system and WA Coronial Law.
It critiques the current incremental approach to change and argues for a more inclusive approach which is more directly accountable and responsive to the community for the provision of just, fair and inclusive outcomes.
The State Coroner, Mr Hope, accepted the observation of Mr Ward’s family, submitted via counsel, that:
While his loss was and is profound, the realization of what led to and caused his death – as evidenced during the course of the Coronial Inquiry – has caused substantial despair. Accordingly the family can only conclude that Mr Ward could be here today had it not been for the litany of errors that followed the detention at Warburton on 26 January 2008 coupled with a refusal by the Department of Corrective services and its various contractors to deal with an accept that the fleet of vehicles transportation of persons in detention in remote areas was wholly inadequate.
While his basic human rights appeared invisible to the day-to-day providers of custodial services involved in Mr Ward’s death, they were visible both to the Ward family and the Coroner as the evidence in the horrific tragedy at the hands of the state unfolded.
1.1 Social Costs and Implications
The cultural and community loss associated with Mr Ward’s death is enormous. As well as being a central and supportive figure for his family, Mr Ward, the Coroner found, was “a central figure in his community at Warburton and in the surrounding lands with a unique knowledge of culture, land and art; and a central figure who played a crucial role in forging relationships between his own community and non-Aboriginal communities in Western Australia and overseas.”
A civil society expects that all people are subject to dignified treatment at the hands of the State. The “substantial despair” caused by the state’s failure to protect its citizens can only be compounded for Aboriginal peoples, who have also historically endured racism at the hands of the state and who continue to suffer the effects of this legacy and with whom trust desperately needs to be restored.
The “litany of errors” identified in Mr Ward’s case clearly points to an endemic invisibility of human rights and dignity in the delivery of services in the custodial system. Aboriginal peoples are disproportionately represented within that system in WA and their voices have been, and continue to be, the most disenfranchised in the justice system. This imbalance is a cause of grave concern and needs to be acted upon immediately through action on many fronts.
There need to be greater accountability mechanisms in the provision of custodial services to the whole community along with special measures that must be put in place in recognition of the important role Aboriginal communities have to play in delivering relevant, safe and effective services. The WA Government must examine this issue and re-examine services in this area.
Indeed, on what basis are Aboriginal peoples presently expected to feel safe in custody? Lack of faith is a substantial yet largely unquantifiable cost to society requiring a fundamental change of attitude and actions by government to dismantle. It requires the system to re-evaluate the score card in the delivery of custodial services.
Trust is an essential requirement in any partnership and requires positive actions. The WA Government must come to terms with the intrinsic value of restoring trust with Aboriginal peoples and lead the nation by example. Blindness to this value is evidenced by an inability to do little more than tinker with a dysfunctional system, in a knee-jerk response to each new crisis.
Evidence pointing to systemic failings in the system becomes largely invisible when incidents are predominantly categorized as isolated incidents requiring narrowly framed solutions within narrowly framed budget parameters.
A dysfunctional system of custodial care tends to adopt a piecemeal approach to change primarily resulting in a reorganization of the dysfunction instead of its eradication. The system is tinkered with over time in response to further deaths and other incidents.
Evidence from around Australia suggests that an incremental approach has not solved endemic issues. Piecemeal changes have tended to result from isolating incidents and the failure to draw systemic links and ask hard questions. Deferral tactics such as constant requests for more evidence coupled with a lack of responsibility by the state in the internal reporting and identification of racial issues operate to manufacture the foundations of invisibility.
1.2 The Royal Commission into Aboriginal Deaths in Custody
We acknowledge the vast array of work and evidence that has been accumulated around Australia that points to a national problem in the justice system for Aboriginal peoples. The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) was established in October 1987, following public agitation led by members of the Indigenous community, amid growing public concern that there were just too many black deaths in custody. Between 1 January 1980 and 31 May 1989, ninety-nine Aboriginal and Torres Strait Islander people died in the custody of prison, police or juvenile detention institutions.
In its national report, handed down in 1991, the Commission concluded that the high Aboriginal custodial death rate resulted, not from any special propensity of Aboriginals to die in custody, but from their gross over-representation in custody. This finding led the Commission to explore the underlying causes of Aboriginal overrepresentation in custody and to consider means for reducing the disproportionate incarceration of Indigenous people. The Commission addressed the disadvantaged and unequal position in which Aboriginal people find themselves in socially, economically and culturally and offered practical suggestions to reduce the risk of Indigenous incarceration and deaths in custody.
Many of the recommendations of the Royal Commission into Aboriginal Deaths in Custody yet remain to be implemented. These are still highly relevant and should be reconsidered as part of a review of the system of delivery of custodial services.
Based on the foregoing, the DICWC makes the following general recommendations:
RECOMMENDATION 1:
There must be a framework and mindset for broader consultation and accountability in the delivery of custodial services.
RECOMMENDATION 2:
Parliament should re-examine the merits of many of the recommendations of the Royal Commission into Aboriginal Deaths in custody that have not been implemented, as part of a review of the system of delivery of custodial services.
RECOMMENDATION 3:
There need to be greater accountability mechanisms in the provision of custodial services to the whole community along with special measures that must be put in place in recognition of the important role Aboriginal communities have to play in delivering relevant, safe and effective services.
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