Date: 4 December 2020 (hearing date); 7 December 2020 (delivered ex tempore)
Court: Supreme Court of Queensland
Judicial Officer: Henry J
Human Rights Act 2019 (Qld) Sections: ss 28, 48
Rights Considered: Cultural rights of Aboriginal and Torres Strait Islander peoples
Other Legislation: Succession Act 1981 (Qld), s 6(1); Uniform Civil Procedure Rules 1999 (Qld), r 610
Keywords: Cultural Rights

This case concerned an application for orders regarding a family dispute over the burial location of a deceased Indigenous man. Justice Henry noted that section 28 of the Human Rights Act 2019 (Qld) (cultural rights of Aboriginal and Torres Strait Islander peoples) did not affect the Court’s usual approach to resolving these types of cases as Aboriginal and Torres Strait Islander customs have always been considered.

This case concerned a dispute between the family members of a deceased Indigenous man regarding his burial location. After a failed mediation, the deceased’s mother (‘the applicant’) applied to the Court seeking orders which included, inter alia, that pursuant to section 6 of the Succession Act 1991 (Qld), the deceased should be buried in Mareeba, Queensland; the funeral expenses were to be paid by the applicant; and there was to be no order as to costs: at page 2, lines 10 - 18.

While Justice Henry noted that neither section 6 nor any other section of the Succession Act 1991 (Qld) provided for decision-making as to burials, he held that section 6(1) was of particular relevance to the present case. More specifically, His Honour linked section 6(1)’s ‘conferral of power to grant letters of administration and determine all matters relating to administration’ to the common law rule that the ‘person entitled to administration is usually the person responsible for arranging the funeral and burial of the deceased’: at page 3, lines 4 - 15. Furthermore, rule 610 of the Uniform Civil Procedure Rules establishes the priority of persons to whom the court may grant letters of administration. As the deceased’s mother was the applicant, it followed from the common law rule that her application was to be favoured, although it should be noted that past case law has held that this rule is not to be ‘“rigidly applied”’: at page 3, lines 30 - 35.

Regarding human rights, Justice Henry noted that ‘it was uncontroversial in Queensland before the enactment of the Human Rights Act 2019 (Qld) that Aboriginal custom, including cultural and spiritual beliefs, are a relevant consideration in a case like the present’. As a result, His Honour held that neither the application of section 28 of the Human Rights Act 2019 (Qld) (Cultural rights of Aboriginal and Torres Strait Islander peoples), nor section 48 (interpretation) would ‘produce a different approach than that already taken by this [Court]’: at page 4, lines 10 - 17.

The applicant and the deceased’s aunt both presented arguments as to why the deceased should be buried in either Mareeba or Croydon, respectively, the latter being where the deceased had spent a significant part of his life. In response to the evidence related to Aboriginal culture, Justice Henry noted that ‘if the outcome of Aboriginal custom in this case were clear cut and yielded a singular result, I would readily honour it,’ however, ‘the reality [was] that there [was] a difficult mix of custom related considerations in play’: at page 4, lines 21 - 23.

The application was ultimately granted as the deceased’s ‘cultural connections’ to Croydon were not ‘so exclusive or so compelling as to trump the mix of other considerations, including practical considerations and the common law starting point, trending to favour a burial at Mareeba’: at page 8.

Visit the judgement: Accoom v Pickering [2020] QSC 388