Inquest into the death of Tanya Day

Outline of submissions of the Victorian Equal Opportunity and Human Rights Commission
Indigenous incarceration deaths in custody Human rights Aboriginal Australians legal status and laws Victoria

The Human Rights Commission made a submission to the Coroners Court in its process of determining if the scope of the inquest into Tanya Day's death of should include consideration of whether systemic racism contributed to the cause and circumstances of her death.

This inquest is important because it’s the first time the Victorian Coroner’s Court has ruled that all the evidence before it can be scrutinised through the lens of systemic racism. It is now open to the Coroner to find that systemic racism played a part in Tanya’s death and make broader recommendations about how to address it. Tanya’s family believe Tanya’s treatment on the day of her arrest up until her death was a result of her being an Aboriginal woman.

This inquest also shines a light on the offence of public drunkenness. At the time Tanya died, Aboriginal women were 10 times more likely to be arrested for being drunk in public than non-aboriginal women.

Key Findings:

  • The deceased’s family contends that systemic racial discrimination (that is, discrimination on the basis of race) should be within the scope of the inquest and requests the Coroner to investigate whether it contributed to the cause and circumstances of Tanya’s death. The Commission supports this submission. The Commission submits that investigating whether systemic racial discrimination contributed to Tanya’s death is compatible with the application of the Charter to this inquest.
  • The third limb of section 8(3) of the Charter of Human Rights and Responsibilities 2006 (Vic) provides a right to equal and effective protection against discrimination. This right extends beyond merely requiring that the law protects people equally and without discrimination – it also gives every person a separate and positive right to be effectively protected against discrimination. Tanya was entitled to the protection of these rights during her life. Whether a denial of their protection was a cause or circumstance of her death is a matter that this Court should investigate.
  • Associate Professor Anthony identifies in her report several indicia of systemic racism (that is, discrimination on the basis of race) in the treatment of Tanya, including allegations ofracially discriminatory treatment of Tanya in the police cells and by paramedics,15 including the failure to check and attend to welfare and health needs,rough handling of Tanya and the pervasive view of intoxication between police and paramedics leading to delayed medical assistance and Tanya’s transfer to hospital.
  • As a matter of international law, the right not to be treated in a cruel, inhuman or degrading way includes a right to have credible allegations of such treatment effectively and independently investigated. This implied procedural right is recognised in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which Australia is a party, which expressly requires an impartial investigation of allegations of cruel, inhuman and degrading treatment.
  • As an Aboriginal woman, Tanya faced particular psychological challenges while in police custody due to Indigenous inter-generational trauma, including by reason of the death of her family member in custody, Harrison Day. For example, there is evidence in the Coronial Brief that Tanya was highly distressed about being placed in police custody and felt unsafe and agitated while in custody. While in custody, Dr Anthony identifies the failure of Victoria Police to properly attend to Tanya’s health and welfare in the holding cell owing to adherence to dominant views of Aboriginal women as “intoxicated” and “troublesome”
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