From Halloween, October 31, ACT citizens will get a chance to evaluate how well one of the options for an ACT integrity commission works in practice. What will be on display is the closed inquiry, in which the public gets scarcely a look, where it must take the inquiry's findings of fact more or less on trust, and where it is told only as much as the person conducting the inquiry deems to be in the public interest. Or, once politicians get it, whether they decide to let the public in on the secret.
Philip Moss, probably best known for his critical report on (mis)management of Nauru's concentration camp but who was also for seven years commissioner for law enforcement integrity, is looking at how Canberra's jail managed its first Aboriginal death in custody this year.
This will be the first look the public will have had into the death of Steven Freeman, 25, an Indigenous Canberra man, in a prison cell on May 27. By conscious political and bureaucratic decision, the public has been told almost nothing about his death or about an earlier near-fatal bashing in April 2015. Even the Northern Territory could shame the ACT over transparency and accountability for prison safety.
Eighteen months ago, Freeman arrived at the Alexander Maconochie Centre, not for the first time, after a theft and burglary spree associated with (but not excused by) heavy abuse of drugs, mostly ice. Within hours, this remand prisoner had been bashed into a coma by four men. He suffered serious brain damage.
Although the bashing was recorded on closed-circuit television, detectives have been unable to progress their inquiry to a prosecution. No doubt this is because of the fate awaiting prisoners and warders who dob. It's been 15 month since the first calls for an inquiry into the bashing, resisted by the minister, the prison and police because police investigations were said to be ongoing.
Even now it's unclear the public will ever be told much about the bashing. The coroner doesn't think it's relevant to the death. Moss, who is not allowed to investigate the "manner and cause" of the death, (apparently the exclusive province of the coroner) was asked to look at how the prison manages with people like Freeman, but not specifically to look at the bashing. He certainly has no power to look at the police investigation. He may end up seeing his function as conducting some sort of management review.
After a long bout in hospital, Freeman came before the courts. His mother begged the magistrate that he be freed on bail, saying she feared he would be further bashed in the jail. But the DPP called police and prison evidence to argue that he would be safer in jail than outside. And back he went, for a year until he died.
One assumes he was physically segregated inside the jail from those from whom he was in continuing danger. Less care seems to have been taken to protect him from himself or his drug problems, new or ongoing.
Despite keen media and political interest, there was a complete media blackout from police, prison staff and the relevant minister, Shane Rattenbury, about the investigation into the bashing. Apparently, it could compromise an ongoing investigation. After the death, there was a fresh excuse: it might prejudice the inquest. Asked for information, ACT Policing demanded an FOI request. It then peremptorily rejected the FOI request, saying it would be in contempt of the coroner. That same excuse has been trotted out even in respect of matters the coroner has chosen not to investigate.
Even Freeman's family could not get basic information about how and why he died for months. Not even basic facts are yet on the public record.
I understand that most probably Freeman died of an overdose of methadone. Although he was, by repute, a prolific user of other drugs, particularly ice, he was not thought to have been using narcotics before he went into prison. He apparently sought methadone maintenance not long before his death. His sister died when Freeman was about 12, and his mother attributes his distress about this not only to his going astray but also to his persistent denial to her that he used narcotics, as opposed to other illegal drugs.
We don't know if the coroner or Moss will look over drugs and drug treatment at the prison. It could be both, or neither, with the particular facts, as opposed to the principles of the procedures, falling between the cracks. I shouldn't be surprised if it's the latter. There's never been, apparently, a successful investigation anywhere into the easy availability of drugs in jail. Some say that this is because it's industrially inconvenient to speculate about the role that warders play. I am told the prison has a problem, too, with a high drug mortality among relatively recently released prisoners.
Even the Northern Territory could shame the ACT over transparency and accountability for prison safety.
Moss may have a limited power to look at the bashing, but he has none to look what happened in court after the bashing, or the complete failure of the police investigation. ACT Policing itself, of course, has no gift, or yen, for introspection. Perhaps the death allows everything to be swept under the carpet.
It seems very unlikely that the narrow and confined inquest being planned will allay concern by Freeman's family, among Indigenous folk, by busybodies, such as Amnesty, worried about the treatment of Aborigines by the criminal justice system, or the wider community.
The coroner, Robin Cook, may have already convinced himself, based on evidence the public can't know about until December, that there's no connection between the bashing and the death.
The narrow inquiry typically favoured by ACT coroners follows an ACT Supreme Court decision that reined in an overambitious inquest into the 2003 Canberra fires.
The Royal Commission into Aboriginal Deaths in Custody wanted far more extensive and obviously independent inquiries. But, despite the political promises, it doesn't happen here.
Britain and Canada always have major independent inquiries every time there is a death in custody. The courts say their human rights laws (worded identically to the ACT's) require it. One reason why is a history of officious coroners denying a voice to people, including experts and representative groups, expressing concerns about system failures or inadequacies.
Only rarely in an ACT inquest can counsel assisting coronial inquiries be seen to be independent of the police and prosecutors, even when they have an interest. Counsel are moreover, under the direction and control of the coroner, who decides, in advance, what evidence will be called.
By contrast, in the NSW inquest into the Lindt Cafe siege, counsel assisting were from the bar and at large, and the solicitor assisting, though a public servant, was not from the DPP stream. The inquest looked at how, why and by whose decisions Man Haron Monis, facing serious charges, was given bail and free in the community. Police, security agents and lawyers were asked about a long pattern of interaction with Monis. In the good old ACT, all this would be thought irrelevant or unnecessary.
And although the NSW Police were (in my opinion, rightly) criticised for managing an investigation in which the judgment of many of its officers was bound to come into question, the coroner made arrangements for external, independent and, as it happened, very critical reviews of police actions from British police experts.
Some months ago, I used a case of Darwin cronyism to comment on arguments about having to be "understanding" of the inevitable problems of a political, bureaucratic, judicial, business and social environment in which players know each other well, constantly run into each other, and have much the same circles of friends. The ACT is somewhat similar.
Did this, I wondered, mean we must make allowances, and ignore obvious conflicts of interest, cronyism or the appearance of government of, by and for insiders and mates? Must our systems be second-rate and less accountable? Or should a capital city, one claiming to specialise in government, be able to meet higher standards – indeed, to set the standard?
It's a question as important when it's about the death in jail of an Aboriginal man as when top politicians are in bed with their mates.
Even the Moss inquiry is open to criticism for failing to be seen to be at complete arm's length from its subjects. Moss' integrity can be taken for granted. But it doesn't look good that it was arranged that he be "supported" by a small secretariat of public services from just the directorate under review. Isn't Canberra's government better than that? (Moss and his office failed to respond to questions I asked on Tuesday about his working methods.)
No doubt entirely by coincidence, ACT Corrective Services decided only this week to issue a two-year-old report giving itself a big tick for the procedures it had adopted in response to the Aboriginal deaths in custody inquiry. Virtually every recommendation was said to be implemented. It seems unlikely Moss will be as smug.
Here, for example, is recommendation No.19 from the royal commission, adopted as a good idea by all Australian jurisdictions, and marked by the ACT Corrective Services Directorate as "implemented":
"Immediate notification of death of an Aboriginal person be given to the family of the deceased ... Notification should be the responsibility of the custodial institution in which the death occurred; notification wherever possible, should be made in person, preferably by an Aboriginal person known to those being so notified. At all times notification should be given in a sensitive manner respecting the culture and interests of the persons being notified and [my emphasis] the entitlement of such persons to full and frank reporting of such circumstances of the death as are known."
The corrective services review said it had implemented this. It hadn't and hasn't. Instead, it laid down a procedure, even before its first death, of leaving it to the cops; a procedure deeply at odds with the recommendation's intent. And, on the one occasion so far required (why do I expect there will be more, given that the proportion of Indigenous prisoners is about 25 per cent and growing?), the cops didn't enlist the help of Indigenous officers.
After Freeman's death the prison organised all manner of debriefs and group-hug sessions for prisoners and warders. But, again contrary to recommendation 19 (and others, too), it failed completely the relatives, the wider Aboriginal community and the public. Indeed, it was eight weeks before there was a limited explanation of what was thought to have occurred to the family. Nor was the minister, nor the police, nor the coronial system more forthcoming. The wider Aboriginal community and the public is still in the dark.
Julie Tongs, chief executive of the Winnunga Nimmityjah Aboriginal Health Service, has repeatedly complained of the complete silence.
"Not a single request by Winnunga Nimmityjah or by his mother ... over the 14 months between Steven Freeman's vicious bashing and his tragic death for information about the bashing, its investigation, his treatment or care has been met," Tongs told Moss.
"It is unconscionable that it was more than eight weeks after Steven's death that his distraught and grieving mother and family were finally advised how he died. The universal unanswered question in the Canberra Aboriginal and Torres Strait Islander community is: 'What are they trying to hide?' "
She quoted a 2011 speech by Hal Wootten, one of the royal commissioners, which might have provided the police, prison, directorate and minister with their 2016 script:
"Wootten said: 'Again and again [during the 1987-91 inquiry] one found that the system of ... investigations operated not to make custodial officers accountable but to protect them from scrutiny. Inadequate police investigations were commonly rubber-stamped by ritualistic coronial inquiries in which the adequacy and competency of the police inquiry went unquestioned and custodial practices went unscrutinised.'
"Wootten cited a submission noting that: 'There is a very great temptation on the part of custodial officers to be secretive. Instead of regarding relatives and their legal representatives, such as the Aboriginal Legal Service, as genuinely concerned people who want to know what happened, there is a tendency to treat them as trouble makers to be denied knowledge in case they misuse it, or (patronisingly) as people who should not be told things that might upset them.'
"Mr Wootten concludes that 'a particularly undesirable practice is the use of the coroner or a pending inquiry as a shield behind which investigative officers hide', " Tongs said.
The ACT can do better than this. The triumphant Chief Minister, Andrew Barr, has committed himself to an anti-corruption mechanism, if in terms that made some critics fear he had in mind only a body that might investigate bureaucrats but not ministers.
Yet the references he gave to interstate bodies imply that his commissioner, however named, must have wide jurisdiction, complete independence of action, and the capacity to decide what to investigate and how. This is what Rattenbury has said he will demand.
In some jurisdictions, commissions hold public hearings, at least after investigations reach the point that there is smoke and fire. In others, the assumption is that investigations will be behind doors, though commissioners can decide to hold open hearings and can issue public reports.
Barr is not on the record as expressing a view. But Green representatives, on whom a Barr government must depend, have said they want as open a system as possible. After all, the very germ of the problem that has led to demands for an anti-corruption commission has been about secrecy, secretiveness and a indisposition to be open, transparent or subject to critical review.
That describes the Freeman death as much as any of the eyebrow-raising development initiatives of recent times.
Jack Waterford is a former editor of The Canberra Times.