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Charles, Christopher --- "The 2004-05 South Australian Coronial Inquests into Deaths on the Anangu Pitjantjatjara Yankunytjatjara Lands: An Opportunity for Forthright Government Action" [2005] AUIndigLawRpr 73; (2005) 9(4) Australian Indigenous Law Reporter 77

THE 2004–05 SOUTH AUSTRALIAN INQUESTS INTO DEATHS ON THE ANANGU PITJANTJATJARA YANKUNYTJATJARA LANDS

AN OPPORTUNITY FOR FORTHRIGHT GOVERNMENT ACTION

Christopher Charles*

I Introduction

The role of a coroner resembles that of an ombudsman for the dead. By the force of his or her findings, a coroner identifies precisely what occurred in the individual cases of deaths under inquest and can make recommendations to Government authorities. Successful Government implementation of coronial recommendations reduces the likelihood of further deaths from similar causes.

The coronial process is a vital medium through which public awareness on critical issues, such as petrol sniffing in Aboriginal communities, may be enhanced. Coronial Inquests held on the Anangu Pitjantjatjara Yankunytjatjara (APY) Lands in South Australia in 2002 and 2004–05 exposed such issues and laid bare the failure of the South Australian Government to take effective action.

II Background: The 2002 Inquests

In 2002 the former State Coroner of South Australia, Wayne Chivell,¹ undertook the daunting task of investigating the causes and circumstances of the deaths of three people who died on the APY Lands as a result of sniffing petrol. Upon conclusion of the inquests, the Coroner published detailed findings and a comprehensive set of recommendations to Government.²

These three Inquests, which comprised findings of some 84 pages, contained a detailed analysis of living conditions on the Lands, and articulated the Anangu’s need for assistance to deal with intractable problems that lead to endemic sniffing, with its consequent toll of social disruption, family distress and community grief that results from the death of a sniffer. Upon consideration of the evidence before him,³ the Coroner concluded that primary, secondary and tertiary interventions were necessary to deal with the varying degrees of disability that flowed from petrol sniffing. Significantly, he found that only the joint operation of a number of programs would result in a lasting impact.⁴

III The 2004–05 Inquests

It was a cause of some distress to the Coroner that in late 2004 he was obliged to hold further inquests on the APY lands into the sniffing-related deaths of four people. In the Inquest findings, handed down in March 2005, the Coroner noted specific failings in the Government’s response to his earlier findings:

13.1. In the 2002 findings, I made a number of recommendations which I thought may prevent, or reduce the likelihood of, a recurrence of an event similar to the deaths being considered (see Section 25(2) of the Coroners Act, 1975). Tragically, with the exception of Kunmanara Ryan, the deaths now being considered are so connected with petrol sniffing that they must be considered ‘similar’ to the deaths being considered in the 2002 inquests. Indeed, since the 2002 findings, the problem of petrol sniffing has become worse, not better.
13.2. To that extent, either the recommendations I made in 2002 were inappropriate, or they have not been effectively implemented. With the exception of the secure care/correctional facility recommendation, it has not been suggested in this inquest that the 2002 recommendations were inappropriate. It has therefore been necessary to consider the extent to which they have been implemented.⁵

In his Executive Summary, Mr Chivell noted the apparent failure of high levels of Government to come to grips with the actions necessary for effective implementation:

22. On 30 September 2002, the South Australian Cabinet transferred responsibility for APLIICC to the Department for Aboriginal Affairs and Reconciliation (‘DAARE’). In retrospect, this was a mistake. DAARE did not have sufficient resources, power and authority to drive major change in key government agencies. Political instability in the Anangu Pitjantjatjara Executive, the body with which the Government had decided to deal in relation to service delivery, also hindered effective action.
23. In February 2004, it became apparent that the 2003/2004 budget allocation of $12m, to be spent over four years, remained largely unspent.⁶

Mr Chivell further stated:

28. It is very unfortunate that the optimism expressed by South Australian Government representatives during the 2002 inquests did not translate into the ‘prompt, forthright, properly planned, properly funded action’ which was called for, until March 2004. I received similarly optimistic evidence this time, and it is to be hoped that better results will be achieved. The early signs are good. The impetus achieved thus far must be maintained in the medium and long-term. If these efforts ‘run out of steam’ again, further deaths and misery can be expected.
29. It is a great pity that, even after the 2002 inquests during which the failure of similar programs was considered, youth worker programs were set up on such an adhoc and unplanned basis, without regard to previous experience, and with insufficient training and supervision of the workers. It is to be hoped that the review of these programs will result in a more coordinated and professional youth worker program being established. It is also to be hoped that the review will enable the Department of Families and Communities to avoid the mistakes of the past being repeated again.⁷

The 2004–05 inquest findings and recommendations are therefore significant as an example of a Coroner utilising the inquest process to prompt the Government to implement earlier coronial recommendations. As such, these Inquests represent a high point in Coronial practice in relation to judicial monitoring of Government action. It was therefore no mere rhetorical gesture that, as urged by Counsel for the Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council, the Coroner repeated his 2002 recommendations in 2005.⁸

IV Mental Health Issues

Mr Chivell also made numerous further recommendations to Government, which were consequential upon the evidence he had received in 2005. The themes of these recommendations were similar to those of 2002, with additional emphasis placed upon the mental health issues that had arisen as evidence in the 2004–05 Inquests.

A common and distressing feature of the deaths investigated in 2004–05 was that two of these deaths involved acts of self-harm at a time that the deceased was under the influence of petrol. This highlighted a further distressing aspect of the sniffing problem, and one that causes continuing distress to families of sniffers; impaired and distressed sniffers can, and frequently do, threaten self-harm if their most basics demands are not immediately met.

This was most eloquently expressed by Kawaki Thompson, the father of one of the deceased whose death was the subject of inquest in 2002. Mr Thompson was quoted by the Coroner as follows:

8.5 ‘Children and sniffers have become bosses over their parents. They are running the agenda by their behaviour. They are out of control and people have to react to the behaviour of sniffers rather than keeping to the law and keeping to the culture. Sniffers break their mother’s arms. There is violence against families. Sniffers threaten their parents that they will commit further acts of self-harm. They swear at their parents. They breach traditional secrets by speaking out of turn. They throw rocks at their parents. They break their parents’ arms. When I talk about these things I am talking about sniffers generally, I am not talking about the deceased.
We as older people are worried about the children and about the younger generation of parents having to bring up petrol sniffers. We have no sniffers now. We have lost our only son.’⁹

This stark statement illustrates well the enormous difficulties experienced by families of sniffers on the APY Lands. In addition, it exemplifies the great practical difficulties faced by medical practitioners required by legislation to take action upon encountering a sniffer who threatens to inflict self-harm.

Of particular concern here is the power of detention. Section 12 of the Mental Health Act 1993 (SA) provides that a patient may be detained on the APY Lands in South Australia and transported to Adelaide for treatment and further assessment. Yet treatment in the alien environment of an Adelaide Psychiatric Hospital can, and does, cause significant dislocation on the part of a distressed sniffer, and it would be more expedient for such a patient to be taken to Alice Springs in the Northern Territory, where family support may be more easily arranged. However, such a change is impossible while inconsistency remains in the operation of Mental Health legislation between states and territories.

V Opal Fuel

Given the emphasis currently placed upon the use of Opal Petrol by the Australian Senate,¹⁰ Mr Chivell’s 2005 observations regarding the use of Opal fuel are also pertinent:

32. While the development of ‘Opal Unleaded’ fuel is a welcome development, it should not be seen as a panacea for petrol sniffing. Action will be required to prevent the development of a black market in ‘sniffable’ petrol, and to develop adequate security measures to prevent theft of the new Avgas, which will be rendered ‘sniffable’ once it becomes unleaded.¹¹

VI The Way Forward

As the Coroner highlighted in the 2002 and 2004–05 Inquests, much concerted and coordinated Government action is still required in order to successfully combat petrol sniffing. The issues canvassed by the Coroner in the Inquest findings represent important areas upon which future legislative reform should be focused. In particular, effective uniform sanctions between WA, NT and SA that prohibit trafficking in petrol for the purpose of inhalation are required.

In the tri-state region, effective law reform can be expected to have significant impact on the operations of the Central Australian Aboriginal Legal Aid Service, the Aboriginal Legal Rights Movement and the Western Australian Aboriginal Legal Service in relation to mental health. Magistrates’ tri-state jurisdiction, general matters of criminal law and vexed questions of police powers in the region that encompasses the APY Lands, the Ngaanyatjarra Lands in WA and the Pitjantjatjara communities in the NT should also be the subject of future legislative change in order to reduce petrol sniffing.

Upon this, the former South Australian Coroner has the final word.

That such conditions should exist among a group of people defined by race in the 21^st Century in a developed nation like Australia is a disgrace and should shame us all.¹²

Endnotes

* Christopher Charles is General Counsel for the Aboriginal Legal Rights Movement. He represented the families of the Deceased in the 2002 and in 2004–05 inquests, and recently edited The Effects of Petrol Sniffing: Seminar Papers Presented by the Aboriginal Issues Committee, Law Society of South Australia (2005).

1 Now sitting on the South Australian District Court.

2 Wayne Chivell, SA State Coroner, ‘Inquest into the deaths of Kunmanara Ken, Kunmanara Hunt and Kunmanara Thompson’, Number 11 of 2002, 6 September 2002. Available online at <http://www.courts.sa.gov.au/courts/coroner/index.html> at 30 January 2006.

3 The 2002 coronial findings include an extensive bibliography. See, for example, Peter d’Abbs and Sarah McLean, ‘Petrol Sniffing in Aboriginal Communities – A Review of Interventions’ (2000).

4 Above n 2, [18].

5 Above n 2, [13].

6 Ibid.

7 Ibid.

8 Wayne Chivell, SA State Coroner, ‘Inquest into the deaths of Kunmanara Ward, Kunmanara Ken, Kunmanara Ryan and Kunmanara Cooper’, Number 17, 18, 19 and 20 of 2004, 14 March 2005. Available online at <http://www.courts.sa.gov.au/courts/coroner/> at 30 January 2006.

9 Above n 2.

10 Community Affairs Reference Committee, Commonwealth Senate, Inquiry into Petrol Sniffing in Remote Aboriginal Communities (2005). The Terms of Reference deal specifically with Opal Petrol and its use in Central Australia.

11 Above n 8.

12 Above n 2, [9] and above n 8, [30].

Excerpts of the 2004–05 findings made by Coroner Wayne Chivell are extracted in this edition at p 80.