On 5 December 2017, Tanya Day, an Aboriginal woman, was removed from a train and arrested for public drunkenness, an offence that various inquiries and reports have recommended be abolished because of its discriminatory impact on Aboriginal and Torres Strait Islander people.
Tanya was taken into police custody, where she hit her head multiple times while in the holding cell. The most significant fall resulted in a brain haemorrhage. Tanya was eventually transferred to hospital and underwent surgery but did not regain consciousness. She died in hospital on 22 December 2017.
At the first directions hearing in December 2017, Coroner English said she would be recommending that the offence of public drunkenness be abolished and that she had already written to the Attorney-General.
Scope of the inquest
Tanya's family requested that the Coroner include within the scope of the inquest consideration of whether systemic racism contributed to the cause and circumstances of Tanya's death. Parties filed written submissions about the scope of the inquest, ahead of the third directions hearing on 30 April 2019.
The Commission intervened in the appeal under s 40(1) of the Charter of Human Rights and Responsibilities (the Charter) to make submissions on the application of the Charter to Coroners Court in making its decision around the scope of the inquest.
In summary, the Commission submitted the Charter rights engaged in determining the scope of the inquest are the equality rights (ss 8(2) and 8(3)), the right to life (s 9), and a person's right to enjoy their culture (s 19(2)(a)). Tanya's family also submitted that the right to be free of inhuman or degrading treatment (s 10(b)) was engaged.
As a 'public authority' the Coroners Court is bound by s 38(1) of the Charter to act compatibly with human rights and consider human rights when making decisions. The Commission argued that the Coroners Court should act compatibly with Charter rights by investigating whether systemic racism was a cause or circumstance of Tanya's death.
Further, to give effect to s 19(2) of the Charter, the Court should inquire into whether Tanya received culturally safe and trauma-informed care by the various agencies that engaged with her on the day of her arrest up until her death.
The Coroner's ruling on scope
At the directions hearing on 30 April Coroner English reserved her decision and informed the parties that she would deliver her ruling electronically in approximately four weeks' time (around the end of May).
The Commission's future role in the inquest
The inquest is scheduled to be heard in the Coroners Court from 26 August to 13 September 2019.
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