New research from Dr Laura Griffin, published in the University of New South Wales Law Journal, has explored the often-overlooked area of civil liability in addressing Indigenous harms in custody.
“While calls for criminal or disciplinary accountability for police are common, less well understood is the use of civil liability – that is, suing the police,” she says.
“The use of civil claims against police is also less visible, because claims are usually brought by specific individuals or their family members and claims often end in private settlement.”
Dr Griffin says that while civil claims against police can be an effective pathway to compensation for some Indigenous victims of police misconduct, it can involve many technical and logistical challenges.
“Most of these barriers are particularly difficult for Indigenous would-be plaintiffs, given patterns of over-policing and repeated incarceration, socio-economic disadvantage, health vulnerabilities and institutional racism.”
“Such claims are typically hard-fought by the state's specialist legal teams, and the complexities of state liability for individual police officers' wrongdoing can undermine effective accountability or access to redress.”
Despite this, Dr Griffin says there are specific reforms which would unlock the greater potential for civil claims to help address the crisis of Indigenous harms in custody.
“These include guaranteed access to legal assistance and representation for claimants against police; enshrined vicarious liability to ensure claimants access an appropriately resourced defendant; clear disciplinary consequences so that police officers do not remain untouched by successful claims; and a requirement to publicly release information about claims and their outcomes, including settlements.”
Dr Griffin’s research is particularly timely with Treaty negotiations have recently commenced in Victoria.
“The state arguably owes a significant debt to Indigenous families and communities in Victoria, given their historical and ongoing mistreatment by police,” Dr Griffin says.
“As Aboriginal Community Controlled Organisations have insisted, such reparations must involve not only payment of debts and compensation for harms, but also systemic change to ensure a changed relationship between Indigenous communities and the state.”
Dr Griffin’s research will also contribute to a submission to the Yoorrook Justice Commission, the first formal truth-telling process into historical and ongoing injustices experienced by First Peoples in Victoria.
