Significance of Funeral Attendance and Sorry Business for Aboriginal and Torres Strait Islander Peoples

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It is widely recognised that ‘attendance at funerals is an important aspect of Aboriginal culture. Failure to attend the funeral of a relative may cause great distress and possibly lead to consequences for the [incarcerated person] and/or [their] family’. Recognition has also been given to the special kinship and family obligations of Aboriginal and Torres Strait Islander peoples, ‘which extend beyond the immediate family’. Kinship and cultural obligations ‘may require Aboriginal people to attend funerals even where it is necessary to travel long distances and the deceased person would be considered a distant relative in a Western context’.

Sorry Business is ‘a very important part of Aboriginal culture’ and funerals can involve entire communities. It is ‘an important time of mourning, and it involves responsibilities and obligations to participate in cultural practices, protocols, ceremonies and rituals associated with bereavement and funerals for a deceased person’. The ‘“sorry time” of the funeral and mourning takes precedence over all other matters’. There is no set time period for Sorry Business, and periods of mourning can last for weeks or months beyond the funeral.

Inability to participate in Sorry Business and attend burial ceremonies ‘can cause great stress’ for Aboriginal and Torres Strait Islander people experiencing incarceration. Failure to attend a funeral ‘can be damaging to mental wellbeing. It may also be seen as a sign of disrespect for which there may be cultural consequences’.

Research concerning the impacts of bereavement, grief and loss within Aboriginal and Torres Strait Islander communities has found that ‘the experience of bereavement itself means a higher risk for a range of negative physical, mental and social outcomes’. Inability to participate in Sorry Business is one aspect of disconnection from culture for Aboriginal and Torres Strait Islander women who are incarcerated, and may have a negative impact on reintegration following release. Research has also found that ‘[g]rief associated with suicide adds to the complexity of Aboriginal grief and loss because of the traumatic nature of suicide and its relative frequency as a cause of death in Aboriginal communities … Suicide “clusters” in communities sometimes develop as a result of this experience’.

In the context of bail, ‘[c]urfews, exclusion zones and non-association orders can “restrict contact with family networks and prevent Aboriginal people from maintaining relationships, performing responsibilities such as taking care of elderly relatives or attending funerals”.’ The Australian Law Reform Commission has acknowledged that such conditions ‘rarely address a risk and can be “especially problematic” for Aboriginal people’. The NSW Judicial Commission’s Equality before the Law Bench Book (2022) observes: ‘Reporting and residential conditions need to be realistic and not unduly oppressive — for example, a condition banning residence in a particular town, or requiring court permission to change, may be ruled as unduly oppressive if there is a death in the defendant’s family requiring their immediate attendance in that town.’

The desirability of in-person attendance at funerals, where appropriate, has been recognised by both custodial authorities and the courts, with a recent bail decision of the NSW Supreme Court finding that the ‘alternative of attending by way of an audio visual link is a very poor substitute’.