Wilkinson, D. --- "Vampire Rules, OK! Customary Law Relevance in Legislative Reform" [1994] AboriginalLawB 23; (1994) 3(68) Aboriginal Law Bulletin 7

• Vampire Rules, Ok! Customary Law Relevance In Legislative Reform

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Vampire Rules, OK! Customary Law Relevance in Legislative Reform

by D. Wilkinson

The Commonwealth had proposed a Model Bill for Forensic Procedures for presentation eventually to State and Territory Attorneys-General. The procedures deal with "the taking of a sample from any part of a suspect's body", ie., blood, hair, anal and genital swabs etc., by compulsion if necessary, for forensic investigations.

Quite apart from the civil liberties question of violation of the integrity of an individual, not yet convicted and therefore enjoying the presumption of innocence, and subjecting them to practices analogous to enforced confessions,, the proposals have particular implications for Aboriginal and Torres Strait Islander people.

It is implied that the procedures intended as Model Forensic Procedures may in time be adopted in all State and Territory criminal jurisdictions. If this is intended, then insufficient regard has been taken of possible sensitivities within Aboriginal Customary Laws.

Aboriginal and Torres Strait people would be most concerned that when a suspect under the proposed new Model Forensic Procedures does not consent, body samples including hair and blood may, upon the granting of an application by the Police pursuant to clause 7 (Magistrate's order provision), be obtained by force.

It is felt that, in such cases, some account must be taken by a Magistrate of bona fide customary law beliefs and sensitivities, particularly of Aboriginal and Torres Strait Islander people living in remote locations. It should also be a rule of administrative practice that any newly proposed Commonwealth legislation or schema affecting civil liberties orr imposing penalties should take account of the Government's renewed consideration of the Australian Law Reform Commission's Report No. 31 of 1986 ("the Customary Law Reference").

Some right must also be conferred on persons holding such bona fide customary law beliefs to refuse such forensic invasion of their persons. This right should be incorporated in the proposed Model Legislation, so that a suspect may truly give 'informed consent', with true legal weight being given to that term, when the procedure is explained to a suspect. 'Informed consent' should also encompass the suspect's right first to consultr their legal representative or solicitor, or in case of an Aboriginal suspect, the local Aboriginal Legal Service or prisoner's friend.

Courts should also be instructed in the Model Forensic Procedures that no adverse inference is to be drawn by reason of a suspect's refusal to permit invasive forensic sampling, pursuant to clause 3(1)(g), when refusal is based on bona fide customary law belief. The same evidential principles should apply, as formerly existed in the common law of various Australian states, where no adverse inference could be taken if a suspect or an accused exercised the right to silence, or chose to give an unsworn statement in evidence. A proviso containing such principles should be added at the end of the proposed clause 3(3), (the 'informed' consent provisions).

When police orders are sought, the Magistrate should be instructed to inquire if customary law beliefs, taboos or prohibitions are held which militate against the invasive taking of bodily samples for forensic purposes. He/she may verify any such claim by reference to persons learned in the relevant customary law system claimed by the suspect.

As proposals for the taking of blood and hair, particularly by compulsion, would be in violation of some customary laws and would be viewed with abhorrence by some traditional groups within the Northern Territory, Central and Western Australia, and as it would undoubtedly offend thee sensibilities of some ethnic and religious groups, the Model Forensic Procedures should be modified. There may be instances where touching by persons of the wrong 'skin group' or sex would be offensive.

A Magistrate or a Court should, before granting a compulsion order to police, for instance, be required at clause 7(2)) to have regard, amongst the relevant indicia (perhaps by way of a new sub-clause at 7(2)(d)) to "bona fide indigenous customary law sensitivities and beliefs".

As the recent study of Mr C. Cunneen of the Institute of Criminology, Sydney University Faculty of Law reveals, in only one of the 55 (or 58 according to the Australian Institute of Criminology) deaths in custody since publication of the findings and Recommendations of the Royal Commission into Aboriginal Deaths in Custody, were those Recommenations followed. (See this issue of the AboriginalLB'at pp4-6.)

The study found, and this is confirmed by the findings of the Queensland Criminal Justice Commission into the death in custody of Daniel Yock, that although new 'caring' provisions were written into State and Territory Police manuals, very few Police enforcers, if any, are familiar with, or indeed have read or know the detail of, their new procedural obligations.

These findings confirm the fears of Aboriginal and Torres Strait Islander people in their encounters with the Police and the criminal justice systems of the States and Territories. Because of continuing power inequalities, and the difficulties many Aboriginal people have in understanding police processes or their rights, which evidence shows are easily suborned, the proposed Model Forensic Procedures, if adopted as they now stand, would tend to confirm what the RCIADIC termed 'structural racism' within the criminal justice systems.

Adoption of a new instrument of coercion, given the fears and inequalities in power relationships between police and'Aboriginal people, would not sit well with the commitment of all State and Territory Governments to implement the Recommendations of the RCIADIC.

It might be appropriate for all State and Territory Attorneys-General to refer the new Model Forensic Procedures to their recently established Aboriginal Justice Advisory Committees or their equivalents. These bodies were given official recognition and status pursuant to Recommenations 2 and 3 of the RCIADIC, with clear mandates to advise their respective Governments of Aboriginal perceptions of their local criminal justice systems.