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Australia Day recalls matters of life, death ... and justice
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| By Fr FRANK BRENNAN SJ
28 January, 2007 |
REFLECTING on Australia Day 2007, I recall two significant Australian events 40 years ago. I was 12 years old, having just been promoted to the large dining room at my country boarding school at Downlands College, Toowoomba. The school was conducted by the Missionaries of the Sacred Heart. It was February 3, 1967. Breakfast started at 7.45am. The din of 300 boys at table was always deafening once the supervising priest declared, “Deo Gratias”. For the first and only time in my five years at the school, a handful of senior boys called for a minute’s silence at 8am to mark the hanging of Ronald Ryan in Melbourne Jail.
As Ryan dropped, you could hear a pin drop in faraway Toowoomba, Queensland. The recollection still brings goose bumps. This was wrong. It should never happen again. How could a nation do this? All Australian jurisdictions then abolished the death penalty. Thank God, Pope John Paul II updated the Catholic Catechism just prior to his own death to provide:
“The traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor. If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and are more in conformity to the dignity of the human person.”
The ambivalence of many Australian Catholics about the imposition of the death penalty on Saddam Hussein shows just how infected we are by consequentialist reasoning about moral questions. The practical, hands on, Aussie approach often plays fast and loose with moral reasoning about what is right and wrong.
We think it is wrong for foreign states to impose the death penalty on Aussie drug traffickers and drug mules. But we apply different reasoning to non-Australians facing death at the hands of the state. Sure, Saddam Hussein was a murderous thug. The death penalty is either right or wrong. Could innocent human lives be effectively defended in Iraq by keeping Hussein in prison rather than killing him? If so, it was wrong to kill him, no matter what positive political consequences apologists thought might come from the execution, whether televised or not. It is very regrettable that Alexander Downer, the Australian Foreign Minister, claimed that Saddam’s “death marks an important step in consigning his tyrannical regime to the judgment of history and pursuing a process of reconciliation now and in the future”. The televised images of his death may yet undermine such reconciliation. The execution was wrong regardless of its consequences.
The second event in 1967 was the constitutional referendum of May 27 when Australians voted overwhelmingly to amend our constitution so that the Commonweatlh Parliament could make laws for the benefit of Aborigines and Torres Strait Islanders. There was a strong expectation that the discrimination and exclusion of the past would be put behind us and that indigenous Australians would see themselves as having an assured place at the table, especially when their own interests were at stake.
In May 1997, Patrick Dodson presided at the Australian Reconciliation Convention which honoured those pioneers who worked for the 1967 referendum change. At the celebration dinner, Archbishop John Bathersby observed to me that there were very few Catholics involved in that 1967 campaign. On the stage, there were retired Anglican and Uniting Church clergy but no Catholic clergy.
Now in 2007, the nation waits while Sir Lawrence Street reviews the decision by the Queensland Director of Public Prosecutions not to prosecute a Queensland police officer for the death of an Aboriginal man whose liver was split asunder as he was taken into the Palm Island Police Station.
Mulrunji Doomadgee died in police custody inside the Palm Island police station on November 19, 2004. Riots erupted a week later when the coroner released the initial autopsy reports indicating that Mulrunji had died from a ruptured liver. Within another week, 28 Palm Islanders had been apprehended and charged with offences relating to the rioting and arson which had gone on unchecked on Palm Island.
On July 30, 2006, Mulrunji’s 18-year- old son committed suicide. It was all too much for him. On September 27, 2006, the Acting State Coroner delivered the findings from her inquest.
Another drunken Aboriginal had died in the police cells. He weighed only 74kg, being 181 cm tall. His blood alcohol reading was 0.292. And the police who came across from the mainland to conduct the inquiry after the death were good friends of the police involved in the incident. The local police picked them up at the airport and took them back home for a meal even though they were then to be questioned by these same investigating officers. As the coroner noted: “It is reprehensible that the initial police investigations into the death were so obviously lacking in transparency, objectivity and independence.”
The cause of death was “intra-abdominal haemorrhage, due to the ruptured liver and portal vein” caused by “severe compressive force applied to the upper abdomen, or possibly the lower chest, or both together”. The force was undoubtedly applied after Mulrunji arrived at the police station. The force was applied at or after the moment when the burly, 200.66 cm tall Senior Sergeant Christopher Hurley fell on him or near him. The force could have been applied only by Hurley or some other person within his view and under his authority.
The Director of Public Prosecutions, Leanne Clare, announced that neither Hurley nor any other person would be prosecuted for causing the death. Having read the inquest findings and pursued further lines of inquiry, she concluded that the “admissible evidence suggests that Mr Doomadgee’s death was a terrible accident”.
Some have cried: “Racism most foul.” Others have bemoaned the institutional incompetence which produces such a compromised result in charged political circumstances. Others claim that due process can still occur with Hurley being charged, the matter of his intent or recklessness in applying the deadly force at or after the time of the fall being the sole concern of a jury. Sir Lawrence can review the DPP’s file but he cannot conduct a new police investigation.
In his poem The Steel, Les Murray writes:
The poor man’s anger is a prayer
for equities Time cannot hold
Justice is the people’s otherworld.
My prayer for Australia this Australia Day is that we can honour the stands we took 40 years ago as a nation, seeking justice rather than short term answers to big questions.
*Fr Frank Brennan SJ is professor of law at Australian Catholic University and professor of human rights at the University of Notre Dame. His latest book is Acting on Conscience (University of Queensland Press, 2007)
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