The ABC, in reporting "Clash of laws over Indigenous autopsy", highlights questions about legal pluralism and cultural diversity in Australia.
Prominent Indigenous artist Banduk Marika has unsuccessfully sought an injunction against the Northern Territory coroner's authorisation of an autopsy on her son, who was run over on 20 December. Marika reportedly argues that an autopsy is inconsistent with traditional law. She had told police after her son's death that she did not want an autopsy. She was told by the coroner during the next day that an autopsy would be carried out in 48 hours.
Marika was one of the participants in the landmark 'Carpets Case' (aka Indofurn Case) - George Milpurrurru, Banduk Marika , Tim Payunka and the Public Trustee of the Northern Territory v Indofurn Pty Ltd, Brian Alexander Bethune, George Raymond King and Robert James Rylands [1994] FCA 1544 - regarding intellectual property.
During the injunction hearing Marika reportedly told the court that her family felt "disfigurement" of her son's body was unnecessary, that the family had not seen any evidence from police to justify it and that when a body is interfered with by a foreign hand the dead person's spirit is prevented from moving forward into the next world.
Disquiet about autopsies (or more broadly about delays in burial/cremation of a body) is not restricted to Indigenous people. Most Australian jurisdictions make some allowance for cultural sensitivities, for example under ss 20 and 28 of the Coroners Act 1997 (ACT) and ss 25, 88 and 96 of the Coroners Act 2009 (NSW). (Note associated sanctions such as those under s 83 of the ACT Act.)
Coronial powers to order autopsies reflect the authority of the state (and rationales such as serving justice through fact-based criminal investigation and protecting public health through research in disease or injury). They also reflect the notion - articulated for example in Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406 and Leeburn v Derndorfer [2004] VSC 172 - that there are typically no property rights in a cadaver or - as noted in R v Sharpe (1856-57) Dears & Bell 160; 169 ER 959 - comprehensive rights of possession.
Your survivors thus do not own your bones and other "stuff". Once you are dead you are no longer in a position to claim torts of assault, false imprisonment, defamation and so forth. (In circumstances where a coroner is not involved you might, however, have made an 'advance direction' under for example s 25 of the Human Tissue & Transplant Act 1982 (WA) that your body may be 'anatomised' after death and provision is made in Australian jurisdictions, through for example s 22(5) of the Transplantation & Anatomy Act 1978 (Qld), for authorisation of post-mortem organ harvesting.)
The record of Australian courts in approving or rejecting applications to prevent autopsies or simply order that a deceased person be buried, burned or exposed for transmutation by vultures is mixed.
Riley J in Wuridjal v Hand [2001] NTSC 99 thus rejected an application by members of the Yolngu community. Coroners' decisions have been overturned in for example Green v Johnstone [1995] 2VR 176, Re Death of Simon Unchango (Jnr); ex parte Simon Unchango (Snr) (1997) 95 A Crim R 65 and Abernethy v Deitz (1996) 39 NSWLR 701.
