Joint Standing Committee on the Corruption and Crime Commission — Eighth Report

Joint Standing Committee on the Corruption and Crime Commission — Eighth Report —
“The More Things Change...: Matters arising from the Corruption and Crime Commission’s Report on Operation Aviemore: Major Crime Squad Investigation into the Unlawful Killing of Mr Joshua Warneke” — Motion

Resumed from 13 March on the following motion moved by Hon Jim Chown —

That the report be noted.

Hon ALISON XAMON: I rise because I wish to make some comments about this report. I began discussing this matter the last time we considered committee reports, but I did not get a chance to conclude my comments. I just want to confirm how much time there is remaining for debate on this report and that there is potentially another 56 minutes.

The CHAIR: Yes, we have that amount of time available to us today on this report.

Hon ALISON XAMON: Thank you, Mr Chair. I suspect I will not require all that time, but thank you for that guidance.

The CHAIR: In the first instance, you have the balance of eight minutes, which is a bit over seven.

Hon ALISON XAMON: Thank you, Mr Chair.

I rise because I want to specifically discuss the minister’s response to this report. The quick overview is that the Corruption and Crime Commission originally conducted an investigation into the circumstances surrounding the charging of Mr Gene Gibson with the murder of Mr Josh Warneke. Mr Gibson was subsequently exonerated of the charges because it was found that there had been a gross miscarriage of justice. Indeed, grave concerns were raised about the way that the police conducted the original investigation. Tragically, as a result, Mr Gene Gibson ended up serving years in prison that he never should have served. Equally heartbreaking, the killer of Mr Josh Warneke is still unknown, so there is still no closure for Mr Josh Warneke’s family, if there can ever be said to be closure on the death of a child.

Subsequent to the initial investigation, the CCC followed up on the initial recommendations that arose from that investigation. It found that there had been some movement in addressing the original recommendations but that, unfortunately, there was still quite a bit that needed to occur. This was of great interest to the Joint Standing Committee on the Corruption and Crime Commission, which oversights the CCC. The committee conducted a hearing with the CCC on the follow-up of the original investigation. It has been said, and I concur, that this is one of the most important inquiries that the CCC committee has ever undertaken. As a result, the committee came up with a number of findings and recommendations in its eighth report, “The More Things Change...: Matters arising from the Corruption and Crime Commission’s Report on Operation Aviemore: Major Crime Squad Investigation into the Unlawful Killing of Mr Joshua Warneke”, which has been tabled in this Parliament. Recommendation 1 was —

The Western Australia Police Force should routinely work with local groups and Aboriginal elders when inducting regionally and remotely stationed officers.

Recommendation 2 was —

Cognitive impairment and foetal alcohol spectrum disorder are areas of emerging challenges and there is growing expertise around these issues. Given this, the Western Australia Police Force need to prioritise internal policies and increase training of frontline officers in order to keep in step with ongoing developments.

Recommendation 3 was —

That the Western Australia Police Force commit the time and resources necessary to the ongoing education and training of police officers in cultural awareness.

Twelve findings arose from the committee’s investigations.

We have finally received the ministerial response to this report, and it was tabled last year. As I recall, Parliament had already risen, so we had not had the opportunity to explore fully the government’s response to this. However, I have gone through the government’s response, all three pages of it. “Underwhelmed” is probably the word that comes to mind when I look at the minister’s response to these recommendations. I remind members that this is a problem on so many fronts. It is a problem because of what happened to Mr Gene Gibson. As I said, it is a problem in terms of the lack of justice for Mr Josh Warneke and his family. The inquiry exposed very serious systemic concerns about the way in which the police conduct these investigations and interact with, in particular, Aboriginal Western Australians who live in remote areas and come from the lands, sometimes have cognitive impairments and often have a limited grasp of English due to English being their second or even their third language. Personally, I am impressed when anyone can speak more than one language. We need to recognise that if English is not someone’s first language, it creates particular challenges. We also need to remember that this is their country and that the languages spoken by Aboriginal people in the regions are the languages of those regions.

The committee acknowledged that policing needed to change the way that it addressed basic issues of justice and undertook interrogation techniques.

The chair of the committee is Ms Margaret Quirk, MLA, the member for Girrawheen, and she has done a very good job as chair. In her foreword, she pointed out that there are —

... ongoing concerns around systemic issues identified with police and Aboriginal interaction. At page 5 of the report, the committee found —

The findings of the Commission highlighted failings of the Western Australian justice system more widely in relation to Aboriginal people, particularly for those who may have a form of cognitive impairment.

The report highlights the need to improve criminal justice for the most vulnerable people.

The CHAIR: Hon Alison Xamon.

Hon ALISON XAMON: Finding 6 says specifically —

... more needs to be done in the area of dealing with vulnerable people.

The report found that the current cultural diversity training is neither appropriate nor sufficient. There is a problem in the way that police interviews are conducted; the necessary training and adherence to requirements is, unfortunately, sporadic. A big thing that came out is that police need to learn to ensure that a suspect is aware of the nature of the caution given to them. The committee also noted that identifying cognitive impairment is, of course, particularly difficult. Members would be aware of this. Even when we strongly suspect someone has a cognitive impairment or has FASD, it takes quite a lot of diagnosis to get to the point of confirming that. I imagine that if a police officer with absolutely no clinical training whatsoever is dealing with someone who may speak English as a third language, that can be particularly difficult. Nevertheless, it was found that this is a necessary skill or requirement as we move forward.

Of course, although police are not expected to make a diagnosis—to suggest that they would be able to is absurd— they should be able to form a view about understanding around interview processes and the right to silence. This, of course, requires training. We need to equip our police officers with these skills. These fundamental flaws are not new but they still have not been acted upon, and everyone should be particularly concerned about that. The committee questioned whether WA police were taking these issues as seriously as they should be, especially considering the damning findings that came out of the initial report and indeed the damning findings of the court that ultimately released Mr Gene Gibson.

The ministerial response was tabled, as I mentioned, late last year. In this response, the Minister for Police has assured Parliament that WAPOL takes the report seriously and provides some examples of programs that are in place that apparently address the committee’s recommendations. When Isay that they address the recommendations, I am talking about almost two pages of dot points that are broken down into regions. The Aboriginal Police Advisory Forum—APAF—has apparently been established and comprises police executives plus eight Aboriginal leaders. However, there is no more detail about this forum. It would be interesting to know how often the group meets, how many members of the police executive turn up to the meetings, and what, if any, initiatives have arisen from the work. There is no detail about this in the minister’s response. I would have thought that if APAF was an initiative that was starting to make some inroads and have some success, at the very least we would have had an update on what will be produced out of this forum. I would be very concerned if I discovered that it is just another committee that has been established that will not produce anything or go anywhere, and especially if it is simply going to be presented to Parliament as evidence that something is happening if that has not been the case. Having said that, I could be completely wrong. This could be an innovative, amazing and extraordinary forum that is on the cusp of achieving great things—in which case, I would have expected more detail to be provided about exactly what it is doing. I am always of the view that if there is an opportunity to showcase our great successes, as Parliament has effectively presented, that surely would have been an opportunity that would have been taken advantage of, particularly considering the significant time that existed between when this report was tabled and when we finally got the minister’s response. I am talking about a period of over two months. There was certainly ample opportunity to elaborate on that. Nevertheless, we did not get that.

The response also provided examples of programs that are currently in place in order to respond to the report’s recommendations. I am specifically talking about recommendation 1, which is that the Western Australia Police Force should routinely work with local groups and Aboriginal elders when inducting regionally and remotely stationed officers. The response is broken up into regions and I want to talk about a few of them.

In relation to the Kimberley programs, in Broome, a full-day induction is facilitated by elders; in Fitzroy Crossing, new staff spend two days with a local female leader; and in Wyndham, a range of work is occurring with local Aboriginal groups. That is what has been put forward as the work that has been done in those areas to deal with the recommendations. But, according to the WAPOL website, there are 12 police stations or police facilities across the Kimberley. The question I have is: what, if anything, is happening in the eight other police posts? On my reading of it, without having the advantage of the minister giving me a more fulsome response, I am concerned that two-thirds of the posts in the Kimberley are still not getting the sort of training that the Corruption and Crime Commission identified was necessary to avoid a miscarriage of justice. It has raised more questions than it has answered.

Moving on to the Pilbara programs, the minister’s response refers to initiatives at Newman, where Aboriginal rangers provide cultural training. I say at the outset that I am a huge fan of the work that Aboriginal rangers are doing; I think it is extraordinary. In Roebourne, the tour company provides cultural inductions and in South Hedland, officers join industry in a local induction. On the face of it, they are not particularly overwhelming initiatives. Similar to my concerns about the problems in the Kimberley, there are 15 police posts in the Pilbara, yet the programs that have been described cover only three. What, if anything, is happening in the 12 other posts in the Pilbara? Again, that raises very big concerns.

In the goldfields and Esperance region, officers in Kalgoorlie, Esperance, Laverton, Leonora, Wiluna and Warakurna are in discussions with organisations and local groups to provide cultural inductions. So, they are just having discussions! All this time later, apparently, we have not got beyond talking about doing stuff! Wiluna police have an informal induction conducted by community elders.

Members, this does not fill me with any confidence. If, in response to the two CCC reports and a joint standing committee report, and following some damning court proceedings, the best we can do in Kalgoorlie, Esperance, Laverton, Leonora, Wiluna and Warakurna is to be in discussions, this does not strike me as being at the forefront of ensuring that we have actual action. What is happening? Why has it not moved beyond that? Why is this not being dealt with?

The CHAIR: Members, the question is that the report be noted.

Hon ALISON XAMON: Why is this not being dealt with with the screaming urgency that I think it deserves? Is there a suggestion that perhaps they do not need to do anything? Is this just not considered to be a problem, because the CCC would say otherwise?

I move to the midwest and Gascoyne. In Mullewa, new officers are involved in a personal introduction to local elders and are taught the importance of culturally significant periods such as lore and sorry time and the local importance of NAIDOC Week. Again, the minister has provided information about one out of 19 police stations in the midwest and Gascoyne, so we have heard absolutely nothing from 18 stations. Nothing has been presented to Parliament as evidence that anything is happening to initiate reform in this space. Wonderful things may be happening, but, if so, why has this not been presented to Parliament as part of the minister’s response to this report?

Moving on to the wheatbelt, the district office is recruiting an Aboriginal senior constable who will assist in developing formal induction processes in collaboration with local Aboriginal groups. The wheatbelt is one of the areas that I tend to go to a fair bit; I am able to mainly because of its proximity to Perth. Members are aware that that is a huge district and has a significant Aboriginal population, particularly in Northam. I want to know what else, if anything, is happening in that area. The police are talking about fairly minimal activity. They are recruiting an Aboriginal senior constable, and that is meant to deal with the whole of Northam. This does not strike me as treating it with the urgency that is absolutely required.

The great southern district office is currently working with local Aboriginal people to develop local reference groups specific to the area. That is it! Again, conversations are occurring to establish something, but nothing has been established yet. So there are just discussions occurring about all this incredibly important work that we should be seeing on the ground.

Finally, the south west district office is currently in discussions to determine what services can be utilised to provide culturally appropriate inductions across the district. That is it! Discussions with whom? What sorts of discussions? Out of these incredibly important reports that deal with serious issues about the way that the police administer justice for Aboriginal people in this state, apparently the most we have for the entire south west region is that they are “currently in discussions”. Are they in discussions amongst themselves? Are they talking to non-government organisations? With whom are they in discussions? I would have thought that the minister, at the very least in an answer to Parliament, would have been keen to emphasise with whom they were in discussions and what was coming out of that. All I can take from such a woolly answer is that perhaps nothing much is happening at all, in which case I am gravely concerned.

Although some of these programs of course sound positive, and I am glad that something can be reported, the response in its entirety is not particularly compelling reading. According to the ministerial response, detective training courses now include the Anunga guidelines. I repeat: detective training courses now include the Anunga guidelines, which is great, but given that the guidelines were developed in the 1970s, I am not quite sure why, in 2018, we are finally celebrating their inclusion. Why is this training only for detectives?

Overall, the ministerial response lacks detail. There is no indication at all that any of the initiatives referred to in the report are being evaluated in any way to see whether they are successful. How are we determining how those initiatives are operating? Are the initiatives evidence-based or has someone in an office somewhere developed an idea and said, “Let’s go and get so-and-so to talk to the Aboriginal people, and whatever. Let’s see what comes out of it. Then we can say that we have signed off on it”? I do not know whether that has happened, because there is no detail in this response. Maybe the initiatives have been comprehensively developed—I would not have a clue. Again, if I were the minister and I was doing lots of wonderful work in this space, I would be proud to put that detail into the response and present a massive document to this Parliament to assure people that this issue is being taken as seriously as it should be. We do not know how often police training is updated because that detail is completely missing from this very short response. We know that some broadbrush training occurs initially. We have been told that some people are now getting a bit of a refresher on elements of that training. But other than that, overall, what do we know about updated training? If we can find out about that, what does that training consist of? What is included in that training? How much has the content of this training now been altered as a direct result of having a far more comprehensive understanding of the challenges of working with suspects who are cognitively impaired or do not speak English as a first language? How much time is spent on each training module; for example, on training modules that aim to improve the way in which police identify and work with people with cognitive impairment? Who is delivering the training? Is it someone who is qualified to do this or is it some sort of training package that has been cobbled together? I do not know. The minister has given us no additional information about what is happening in this space.

I am one of the first people in this place to recognise how complex this issue of people with cognitive impairment is and the challenges associated with addressing foetal alcohol spectrum disorder. Of course, FASD has significant implications for criminal justice. I also recognise that individuals with FASD might present very differently from those who experience a range of other cognitive impairments. For example, when the Telethon Kids Institute undertook research on children in Banksia Hill Juvenile Detention Centre, it found that those children tended to have significant street smarts but had difficulty understanding right from wrong. It was a different type of intelligence—a survival type of intelligence, if you like—that had emerged in those kids born with FASD. Those complexities are precisely why we need to ensure that we are investing more in getting this right. It is the case that far too often it is our police who are at the forefront of dealing and working with people who have FASD and other types of cognitive impairment. I note finding 4 in the report states that not enough time is dedicated to cultural diversity during the WA Police Academy’s training of recruits. That finding led to recommendation 3.

The CHAIR: Hon Alison Xamon.

Hon ALISON XAMON: Thank you, Mr Chair. Recommendation 3 states —

That the Western Australia Police Force commit the time and resources necessary to the ongoing education and training of police officers in cultural awareness.

In the three thin pages of the minister’s response supplied to Parliament, the minister indicated that a new training module was being trialled, but more questions emerge as a result of the slight nature of that answer. Does this mean that more time will be spent on this topic? I do not know because we did not get that information from the minister. What outcomes are being measured in the evaluation of the trial? I do not know because that information did not come back in the minister’s answer. Assuming the trial has now finished, what were the results? I would really love to know what those results were. Given that recommendation 2 refers to the need for internal policies about cognitive impairment and FASD, I think it is particularly disappointing that the minister’s response did not address this issue. Again, recommendation 2 points out —

Cognitive impairment and foetal alcohol spectrum disorder are areas of emerging challenges ... In the future, this needs to be a priority moving forward.

Finding 9 states —

The Western Australia Police Force are progressing the implementation of pre-recorded cautions in 20 Aboriginal languages in spite of delays and difficulties inherent in identifying the right dialects and obtaining adequate services to progress this initiative. No time frame for completion of this work have been given.

This was referred to in the report. There was an opportunity for the minister to give an update on this initiative, but we did not get that. The question I have is: how many cautions in Aboriginal languages have been recorded?

Finding 10 of the Joint Standing Committee on the Corruption and Crime Commission’s report states —

The administration of a caution for a person unfamiliar with their right to silence when English is not that person’s first language, and the ability of the interviewee to properly understand that caution, remains an ongoing concern for the Corruption and Crime Commission and the Western Australia Police Force.

Unfortunately, the minister’s response has not alleviated that concern either. Those are just a few words that I wanted to say in response to the minister’s response to the joint standing committee’s response to the Corruption and Crime Commission’s response to the CCC’s original inquiry. These matters have arisen as a result of the court case. I am very disappointed that this far down the track we have seen very little progress. I am very disappointed that this issue does not seem to have been given the priority that it deserves. I think our police officers deserve better. I know that I am not the only person in this chamber who cares a lot about the wellbeing of our police officers who have been left on the forefront on this issue. We want to ensure that they get the best possible support and training so that they can do their jobs. Far too often, we are sending police officers out into our regions ill-equipped. The sorts of issues identified in the CCC report are the very serious challenges police officers are left to deal with on a day-to-day basis. The least we should be doing is ensuring that they are getting the best possible support and training to be able to do their job. We are also doing this so that we can ensure that when Aboriginal people come up against the police, and when they front the justice system, they are given every opportunity to have justice afforded to them as well. Judging by the minister’s response to the report, I have no confidence that this issue has been given the priority that it deserves. I am very concerned. I do not want to see another case like that of Mr Gene Gibson, but I wonder whether it will simply be a matter of time until another gross miscarriage of justice is uncovered, because we have not taken this issue as seriously as we should. This is something that every person in this place should be very concerned about. I will be asking the minister more questions about this matter. I certainly urge parliamentary members, particularly government members, to encourage the minister, the Premier and the cabinet to make this a priority area for reform.

Question put and passed.


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