Appointment of Commissioner for the commission of inquiry into deaths of Aboriginals and Torres Strait Islanders in custody

Administered by Department of the Prime Minister and Cabinet

Legislation au C2004Q00973 Not in force Prerogative Instrument

Legislation content

 

COMMONWEALTH OF AUSTRALIA

ELIZABETH THE SECOND, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth:

TO:

THE HONOURABLE ELLIOT FRANK JOHNSTON, QC

GREETING:

We DO by these Our Letters Patent issued in Our name by Our Governor-General of the Commonwealth of Australia on the advice of the Federal Executive Council and pursuant to the Constitution of the Commonwealth of Australia, the Royal Commissions Act 1902 and every other enabling power, appoint you to be a Commissioner to inquire into:

(a) deaths:

(i) in the States of Western Australia and South Australia and the Northern Territory; and

(ii) where in a particular case, or any particular cases, you are so requested by the Honourable James Henry Muirhead under the existing Commission - elsewhere in Australia;

 since 1 January 1980 of Aboriginals and Torres Strait Islanders (including any such death that may occur after the date of these Our Letters Patent) whilst in police custody, in prison or in any other place of detention, but not including such a death occurring in a hospital, mental institution, infirmary or medical treatment centre unless injuries suffered while in police custody, in prison or in any other place of detention caused or contributed to that death; and

(b) any subsequent action taken in respect of each of those deaths including, but without limiting the generality of the foregoing, the conduct of coronial, police and other inquiries and any other things that were not done but ought to have been done:

AND We direct you:

(c) to consult generally with the Honourable James Henry Muirhead with regard to the methods and procedures to be followed in relation to his and your inquiries; and

(d) to conform with any guidelines issued or recommendations made by the Honourable James Henry Muirhead under the existing Commission in relation to those methods and procedures;

for the purpose of establishing a uniform approach in relation to those inquiries:

AND We further direct you if so requested by the Honourable James Henry Muirhead under the existing Commission:

(e) to undertake inquiry into a particular death specified in the request; or

(f) not to undertake inquiry, or further inquiry, into a particular death, as specified in the request:

AND We further direct you, when so requested by the Honourable James Henry Muirhead under the existing Commission, whether before or after the submission of your reports but not later than 31 December 1989, to consult with him in relation to the preparation of his report or reports and recommendations under that Commission:

AND We declare that you are authorised to conduct your inquiry into any matters under these Our Letters Patent in combination with any inquiry into the same or related matters that you are directed or authorised to make by any Commission issued, or pursuant to any order or appointment made, by any of Our Governors of the States or under the law of the Northern Territory of Australia:

AND We further declare that in these Our Letters Patent, the expression “existing Commission” means the commission of inquiry issued on 16 October 1987 by Our Administrator of the Government of the Commonwealth of Australia by Letters Patent (as subsequently varied on 21 December 1987) to the Honourable James Henry Muirhead:

AND We require you as expeditiously as practicable to make your inquiry and, not later than 30 June 1989 or such later date as We may be pleased to fix, to furnish to the Honourable James Henry Muirhead for his consideration and for furnishing by him to Our Governor-General of the Commonwealth of Australia under the existing Commission:

(g) as soon as practicable after the completion of your inquiry into a particular death, a report of your findings in relation to that death; and

(h) upon completion of your inquiry into the several deaths in accordance with these Our Letters Patent, a report of any other findings of your inquiry and such recommendations (if any) as you consider appropriate.

WITNESS His Excellency the Right Honourable Sir Ninian Martin Stephen, a member of Her Majesty’s Most Honourable Privy Council, Knight of the Order of Australia, Knight Grand Cross of The Most Distinguished Order of Saint Michael and Saint George, Knight Grand Cross of The Royal Victorian Order, Knight Commander of The Most Excellent Order of the British Empire and Governor-General of the Commonwealth of Australia.

Dated this 6 day of May 1988

Governor-General

By His Excellency’s Command,

Prime Minister

Overview

The Commonwealth of Australia enacted Letters Patent on 6 May 1988, appointing a Commissioner to conduct a comprehensive inquiry into the deaths of Aboriginal and Torres Strait Islander individuals in custody across Australia since 1 January 1980. This initiative was introduced to address the significant gap in understanding and addressing the deaths of Indigenous people in detention, aiming to provide a thorough investigation into these tragic incidents. The enactment was overseen by the Federal Executive Council, with a clear policy objective to ensure a uniform approach in examining such deaths and to offer recommendations for any necessary changes to prevent future occurrences. The appointed Commissioner was tasked with reporting findings and recommendations to the Honourable James Henry Muirhead, who would then present these to the Governor-General for consideration.

Scope and Application

The Letters Patent establish the appointment of a Commissioner to conduct an inquiry into the deaths of Aboriginal and Torres Strait Islander individuals in police custody, in prison, or in any other place of detention since 1 January 1980, excluding deaths in hospitals, mental institutions, infirmaries, or medical treatment centres unless caused or contributed to by injuries sustained while in custody or detention. This inquiry applies to deaths in the States of Western Australia, South Australia, and the Northern Territory, and potentially elsewhere in Australia if requested by the Honourable James Henry Muirhead. The Commissioner is directed to investigate any subsequent actions taken regarding these deaths, including coronial, police, and other inquiries, as well as any omissions. The Commissioner is required to consult with the Honourable James Henry Muirhead and conform to any guidelines or recommendations issued by him for a uniform approach in conducting these inquiries. The Commissioner may be requested to undertake or refrain from investigating specific deaths and must report findings to the Honourable James Henry Muirhead for consideration and submission to the Governor-General by 30 June 1989 or a later date determined by the Queen. The Commissioner is authorised to combine this inquiry with any related inquiries conducted under state or Northern Territory laws.

Key Provisions

The main operative sections of the Letters Patent (sections (a) to (h)) outline the scope and purpose of the inquiry to be conducted by the Commissioner. Specifically, the Commissioner is appointed to investigate deaths of Aboriginals and Torres Strait Islanders in police custody, prison, or other detention facilities since 1 January 1980, excluding those occurring in hospitals or medical treatment centres unless caused or contributed to by injuries suffered in detention. The Commissioner is also tasked with examining any subsequent actions taken in relation to these deaths, including coronial, police, and other inquiries, and any omissions that should have been addressed. The Commissioner must consult with the Honourable James Henry Muirhead regarding methods, procedures, and guidelines for these inquiries, and may be directed to either undertake or refrain from investigating specific deaths at Muirhead's request. Furthermore, the Commissioner must collaborate with Muirhead on report preparation and submit findings and recommendations by 30 June 1989, or another specified date. The obligations imposed on the Commissioner under the Letters Patent include conducting thorough and expeditious inquiries into the designated deaths, consulting with the Honourable James Henry Muirhead, and adhering to any guidelines or recommendations provided by Muirhead. The Commissioner must prepare and submit detailed reports on the findings of each inquiry, including any other relevant findings and recommendations. These reports are to be submitted to Muirhead for further consideration and eventual presentation to the Governor-General. Additionally, the Commissioner is authorised to combine this inquiry with any related investigations directed by other commissions or authorities. In terms of offences, penalties, or consequences for breach, the Letters Patent do not explicitly outline specific penalties for non-compliance or failure to meet the obligations set forth. However, the nature of the Letters Patent, being a prerogative instrument issued under the authority of the Crown, implies a significant degree of legal obligation and accountability. Non-compliance or failure to meet the mandated deadlines and procedural requirements could potentially result in legal repercussions, although the exact consequences would depend on the context and any relevant jurisdictional laws or regulations. The Commissioner’s duty to act expeditiously and in accordance with the guidelines provided underscores the seriousness of the inquiry and the importance of fulfilling the assigned tasks.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.