Two more Aboriginal deaths in custody as Inquiry investigates proportion of Indigenous Australians in gaol

A Black Lives Matter march, Town Hall to Belmore Park, Sydney, Australia on Saturday, 6 June, 2020. Photo: Alec Smart.

BY ALEC SMART

Australia’s disproportionately high rate of Aboriginal deaths in custody increased in the first months of 2021 as two more Indigenous Australians were found lifeless in prisons, within a few days of each other, on 2 March and 5 March, respectively.

Their tragic demise brings the national figure to at least 444 fatalities in police cells and prisons in the three decades since the Royal Commission into Aboriginal Deaths in Custody released its sobering report in April 1991.

Six Indigenous deaths in custody have taken place in the last year, since the global Black Lives Matter demonstrations reminded people of the vulnerability of dark-skinned people to the lethal force of the state – after the 25 May 2020 police public suffocation of George Floyd in Minnesota USA.

Although Aboriginal and Torres Strait Islander people make up approximately 3.3 per cent of the Australian population of 25,360,000 people (around 798,400, according to the 2016 national Census), they account for 28 per cent of the adult prison population.

Since the Royal Commission released their findings in 1991, including 339 recommendations ranging from providing safe, humane conditions in detention to supporting self-determination for Indigenous people, in order to alleviate the causes of Indigenous deaths in custody, the rate of imprisonment of Indigenous Australians has nearly doubled.

Several of the Commission’s recommendations have yet to be implemented.

In December 2017, the then Indigenous Affairs Minister, Nigel Scullion, commissioned independent auditors Deloitte Access Economics to undertake an independent review of the implementation of the Royal Commission’s recommendations.

In August 2018 Deloitte reported: “64 per cent have been implemented in full, 14 per cent have been mostly implemented, 16 per cent have been partially implemented and 6 per cent have not been implemented … The lowest proportion of fully implemented recommendations relates to self-determination [of Aboriginal peoples].”

Black Lives Matter rally in Central Sydney, 6 June 2020. Photo: Alec Smart.

Hanging points

The first of the latest two casualties, a 35-year-old man found ‘unresponsive’ in a cell in the medical wing of Long Bay Correctional Complex in Malabar, is believed to have had a pre-existing medical condition, and the second, a 44-year-old woman inside Silverwater Women’s Correctional Centre, allegedly took her own life.

Greens MP David Shoebridge criticised the apparent ease at which inmates can still hang themselves in NSW gaols.

“Thirty years after the Royal Commission, it is astounding that First Nations inmates are being placed in cells with known hanging points,” Shoebridge said.

The head of Corrective Services NSW, Commissioner Peter Severin, insisted new cells were built without the points on which to attach sheets and shoelaces to facilitate suicide, however, they still exist in older gaols across NSW and Australia.

“There is no dedicated budget for removing hanging points,” he explained. “It is part of risk-based approach to modifying cells where it is necessary, and that is being done proactively.”

Neither the first nor the second casualty were publicly announced by Corrective Services NSW, although they later confirmed the deaths in a media statement, adding that formal inquires will be held.

“Corrective Services NSW and NSW Police are investigating … All deaths in custody are subject to a coronial inquest.”

Commissioner Severin has since defended his department’s decision not to announce the deaths publicly, stating, “We don’t publicise deaths in custody now.”

Responding to a Parliamentary Question on 9 March by Mr Shoebridge on when Corrective Services’ policy to withhold information on Indigenous deaths in custody was implemented, Commissioner Severin replied, “We don’t have a policy that proactively informs the public on deaths in custody.

“I would suggest that it is not appropriate for us to simply advise the public in the absence of any detail that we can provide and cause a lot of anger, a lot of angst, and a lot of grief … [and replace it] with a non-specific simple message that somebody has passed away.”

In August 2020, a coronial inquiry was held into the September 2017 death in custody of 22-year-old Gumbaynggirr and Wakka Wakka man Tane Chatfield, who was found unconscious in his cell at Tamworth Correctional Facility on 20 September, where he had been on remand for two years.

The Inquiry found his death was ‘self-inflicted’, despite the likelihood that he was to be acquitted in Court the following day. Chatfield’s sceptical family refused to accept the inquiry’s finding.

Deputy State Coroner Harriet Grahame recommended Corrective Services NSW conduct a comprehensive audit of all cell hanging points at the Tamworth Correctional Centre and urgently remove any that might make it easier for an inmate to hang him/herself – or be hung by persons unknown.

Ms Grahame added: “If we are to reduce the number of Aboriginal deaths in custody we need to grapple with the underlying problem of over-representation.” This was the same conclusion the Royal Commission reached in April 1991.

The 1991 Royal Commission recommended Indigenous people oversee their own community justice. (Woven art by Yvonne Koolmatrie). Photo: Alec Smart.

Overrepresentation in gaols

The term “death in custody” was defined by the Royal Commission to encompass the deceased who were not only already incarcerated – whether in police cells or prison – but those placed under arrest (but not yet in gaol) by police officers, including alleged offenders who avoided being taken into custody.

The Royal Commission, announced by the Hawke Government in August 1987, was initially tasked to investigate 44 specific cases, but expanded their remit to examine the deaths of 99 Indigenous people who had died in custody across Australia between 1 January, 1980 and 31 May, 1989 (Western Australia 32, Queensland 27, South Australia + Northern Territory 21, and an additional 19 across NSW, Victoria and Tasmania).

The Commission also investigated social and legal issues surrounding the incarcerations including allegations of mistreatment of prisoners, which may have been contributory factors in their deaths.

The Royal Commission concluded that “glaring deficiencies existed in the standard of care afforded to many of the deceased …

“Aboriginal people died in custody at the same rate as non-Aboriginal prisoners, but they were far more likely to be in prison than non-Aboriginal people.”

The Royal Commission determined that in thirteen cases, the victims may have survived had custodial authorities not been negligent, unsympathetic or ignored procedures. A further five deaths were of Indigenous people who shouldn’t have been detained.

The Royal Commission’s 339 recommendations spanned a wide range of policy areas relating to policing, criminal justice, incarceration and deaths in custody.

Recommendation # 339 (initiate a formal process of reconciliation between Aboriginal people and the wider community) led to the foundation of the Council for Aboriginal Reconciliation, which was established by the federal government (with unanimous cross-party support) as a statutory.

In December 2000, the Council for Aboriginal Reconciliation ceased operating and was succeeded by Reconciliation Australia, to provide a continuing national focus for reconciliation.

Among the most important recommendations were the following three, which, arguably, are the primary issues affecting Indigenous people overrepresented in the Australian custodial system:

#87 – Arrest people only when no other way exists for dealing with a problem.

#92 – Imprisonment should be utilised only as a sanction of last resort.

#161 – Police and prison officers should seek medical attention immediately if any doubt arises as to a detainee’s condition

According to Creative Spirits, the online resource for Aboriginal and Torres Strait Islanders, “At the time of the commission’s final report in 1991, Aboriginal people were eight times more likely to be imprisoned than non-Aboriginal people. A decade after the report was handed down they were 10 times more likely to be imprisoned. In the 2010s, they were 15 times more likely. In Western Australia, which has the highest Aboriginal imprisonment rate in the country, Aboriginal people are close to 20 times more likely to be jailed than non-Aboriginal people.”

Indigenous youth are also much more likely to be placed in detention than non-Indigenous youth. Although the over-representation of Indigenous youth in custody is slowly declining, in a May 2020 media release, the Australian Institute of Health and Welfare reported: “Indigenous young people aged 10–17 were 16 times as likely to be under supervision as non-Indigenous young people in 2018–19.

“Although only about 6 per cent of young people aged 10–17 in Australia are Aboriginal or Torres Strait Islander, half (2,448) of the young people under supervision on an average day in 2018–19 were Indigenous.”

Indigenous Australians make up 3.3 per cent of the general population but account for 28 per cent of the adult prison population. Graphic: Alec Smart.

New inquiry underway

A NSW Upper House Inquiry is currently looking into the continuing high rate of incarcerations and deaths in custody among Indigenous Australians.

Formed in June 2020 and launched on 26 October, the Inquiry will submit its final report on 15 April, 2021 – the 30th anniversary of the findings of the original Royal Commission into Aboriginal Deaths in Custody.

After the new Inquiry was launched, the NSW Aboriginal Land Council on 3 November 2020 called for an urgent overhaul on the management of Indigenous Australians in custody:

“NSW CAPO (Coalition of Aboriginal Peak Organisations) calls on the NSW Government to end deaths in custody and the over-incarceration of our people. Urgent priorities for action include the immediate establishment of a Walama Court; independent investigations of all deaths in custody and police misconduct; raising the age of legal responsibility to at least 14; and the creation of ambitious state-based justice targets.”

Walama Courts

The Royal Commission into Aboriginal Deaths in Custody recommended: “It is critical to include Aboriginal and Torres Strait Islander people and their perspectives in the development of policies, in undertaking research, and in the operation of programs and institutions to ensure they are culturally and socially appropriate.”

The obvious solution to this quandary are the Walama Courts.

According to O’Brien’s Solicitors in Central Sydney, “The Walama Court is a proposed court that would involve Aboriginal and Torres Strait Islander Elders in sentencing discussions, rehabilitation, and monitoring of Indigenous offenders. Walama means ‘come back’ in Dharug language, the language of Sydney. The proposed court has backing from the NSW District Court.

“Offenders wishing to utilise the Walama Court must plead guilty to participate. Any sexual offences are excluded from the program. The program is based on intensive supervision of participants, within a culturally appropriate mechanism.”

In May 2020, Tim Game, the president of the NSW Bar Association, the professional association for practising barristers, clerks and judges, repeated his organisation’s calls for the implementation of Walama Courts to help address the over-representation of Indigenous Australians in the NSW criminal justice system.

Referring to “encouraging results” revealed in new research by the NSW Bureau of Crime Statistics and Research on the effectiveness of the Walama system, Mr Game said: “The Walama Court involves a hybrid model incorporating aspects of the Victorian Koori Court and the NSW Drug Court and would operate at a District Court Level.”

However, if the current NSW Upper House Inquiry makes new recommendations for the improved management of Indigenous Australians in custody, including Walama Courts, they are unlikely to be implemented while the Liberal-National Party coalition dominate the Federal Government.

On 16 February, 2021, a union of Greens and Labor senators submitted a motion in the Senate requesting the Federal Government fully implement the 339 recommendations made by the Royal Commission in April 1991.

They added that Prime Minister Scott Morrison should agree to meet with the families of those who died in custody.

Senator Patrick Dodson, a Labor MP and former commissioner on the Royal Commission, supported the need to include families of the deceased to determine the implementation of progressive policies to deal with the high rates of Indigenous incarceration.

“It’s important that the leadership of the Prime Minister meets with people to hear what they’ve got to say,” Senator Dodson told NITV News.

“They need to understand their grief and anger and frustration and to reassure them that whatever the government is doing, so they can make a judgement about what the government’s doing… [otherwise] we’re just going to see this ongoing tragic sad record.”

The motion was unsuccessful with the Federal Government voting against it and neutering it as a 29-29 votes tie.

Roxanne Moore, executive officer of the National Aboriginal and Torres Strait Islander Legal Service (NATSILS), told NITV News, “It’s really deeply upsetting and disappointing that the government has voted against this motion to meet with the families ahead of the 30 year anniversary of the Royal Commission. This is an ongoing injustice for our people and it’s one of the greatest human rights’ injustices in this country.

“It should be above politics.”

In a Twitter post after the deadlocked vote, Senator Dodson wrote: “Disappointing that 30 years after the Royal Commission into Aboriginal Deaths In Custody, the Government voted against this motion calling for the PM to meet with families and work with First Nations communities to implement the recommendations. Where is basic compassion?”

Indigenous Senator Patrick Dodson’s 16 February Twitter post. Image: Patrick Dodson/Twitter.

Truth and reconciliation in Victoria

Meanwhile, on 9 March, 2021, the Victorian Government under Premier Dan Andrews launched a Truth and Justice Commission – modelled on the commission established by Nelson Mandela in post-apartheid South Africa – to investigate the ongoing effects of colonisation on Victoria’s Indigenous community.

Backed by Royal Commission powers and intended to “chart a path to reconciliation”, the pioneering Commission will host public hearings into economic, social, and health disadvantages affecting Indigenous Victorians.

It is expected that the Commission will recommend reforms to improve Indigenous people’s quality of life and reduce the role discriminatory government policies have in sustaining any disadvantages, including the over-representation of Australians and Torres Strait Islanders in the custodial system – at least in Victoria.