tag:theconversation.com,2011:/uk/topics/royal-commission-into-aboriginal-deaths-in-custody-16324/articlesRoyal Commission into Aboriginal Deaths in Custody – The Conversation2023-01-30T04:50:37Ztag:theconversation.com,2011:article/1985072023-01-30T04:50:37Z2023-01-30T04:50:37Z‘Discriminatory impact on First Nations people’: coroner calls for urgent bail reform in Veronica Nelson inquest<figure><img src="https://images.theconversation.com/files/506976/original/file-20230130-217-ape5bb.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5139%2C3423&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Indigenous community members outside the Victorian coroners court ahead of the release of a report into the death of Veronica Nelson.</span> <span class="attribution"><span class="source">Tamati Smith/Getty Images</span></span></figcaption></figure><p><strong><em>Aboriginal and Torres Strait Islander readers are advised this article contains names and/or images of deceased people.</em></strong></p>
<p>A Victorian coroner has called for swift reform of bail laws when <a href="https://www.theage.com.au/national/victoria/watch-coroner-hands-down-findings-into-death-of-veronica-nelson-20230127-p5cfy1.html">handing down his findings</a> into the death of 37-year-old Aboriginal woman Veronica Nelson. </p>
<p>Nelson was suffering from an undiagnosed medical condition when she was arrested on suspicion of shoplifting and alleged breach of bail in January 2020. She was later found dead in her cell at the <a href="https://www.corrections.vic.gov.au/prisons/dame-phyllis-frost-centre">Dame Phyllis Frost Centre</a>, despite using the intercom system about 40 times to alert staff to her deteriorating condition.</p>
<p>Coroner Simon McGregor found “cruel” and “degrading” treatment of Nelson caused her preventable death. Of the system, he said</p>
<blockquote>
<p>A person in custody is not only deprived of their liberty [but also] deprived of the ability and resources to care for themselves. In short, the state’s control over the person is nearly complete.</p>
<p>[…] I find that the Bail Act has a discriminatory impact on First Nations people, resulting in grossly disproportionate rates of [First Nations people] remanded in custody, the most egregious of which affects alleged offenders who are Aboriginal and or Torres Strait Islander women.</p>
</blockquote>
<p>McGregor found the bail decision-maker in Victoria Police failed to consider Nelson’s vulnerability, a provision afforded her under current bail legislation and the <a href="https://www.humanrights.vic.gov.au/legal-and-policy/victorias-human-rights-laws/the-charter/">Victorian Charter of Human Rights and Responsibilities</a>.</p>
<p>In his report, McGregor also makes adverse findings against the custodial healthcare provider, Correct Care Australasia (CCA). He found Nelson’s death could have been prevented if CCA staff had provided adequate medical screening and recommended hospitalisation. Instead, she was sent from the prison’s health centre to a cell, where she died.</p>
<p>McGregor <a href="https://www.theage.com.au/national/victoria/watch-coroner-hands-down-findings-into-death-of-veronica-nelson-20230127-p5cfy1.html">has referred CCA</a> to the Director of Public Prosecutions, who may consider charges for breaching relevant health and safety laws.</p>
<p>The Andrews government <a href="https://www.theage.com.au/national/victoria/cruel-and-inhumane-coroner-s-urgent-demand-on-bail-reform-20230123-p5cesq.html">has not renewed its contracts with CCA</a>. </p>
<p>Corrections Victoria (CV) doesn’t escape McGregor’s excoriation. The coroner said the actions of CV employees and their inadequate processes led to a failure to provide appropriate healthcare to Nelson.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1619799154959749120"}"></div></p>
<h2>The legacy of tough bail laws</h2>
<p>We need to understand Nelson’s death in the broader context of reforms that have made it less likely that people charged with an offence – who are all entitled to the presumption of innocence, until proven guilty – will receive bail. Put simply, they are now more likely than ever before to be remanded in custody, as Nelson was. </p>
<p>The decision to bail a person accused of an offence has been progressively restricted across Australia. As a result, the number and proportion of prisoners who have yet to be convicted and sentenced has jumped significantly. <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/corrective-services-australia/latest-release">Since 2017</a>, the number of people in prison who are unsentenced has risen 17%, and almost four in ten prisoners in Australia today are unsentenced. </p>
<p>Current bail regimes often require a defendant to demonstrate a “compelling reason” why bail should be granted, reversing a system where bail is presumed unless there are good reasons to deny it.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/number-of-women-on-remand-in-victoria-soars-due-to-outdated-bail-laws-165301">Number of women on remand in Victoria soars due to outdated bail laws</a>
</strong>
</em>
</p>
<hr>
<p>Restrictive bail laws have been expanded in each jurisdiction across Australia. This is particularly the case in Victoria, where the laws were tightened after the <a href="https://www.abc.net.au/news/2019-11-19/bourke-street-driver-james-gargasoulas-nearly-handed-himself-in/11716892">Bourke Street murders in January 2017</a>. The killer, James Gargasoulas, had already breached bail <a href="https://www.abc.net.au/news/2019-11-25/bourke-street-inquest-hears-bail-justice-who-bailed-gargasoulas/11733788">eight times</a> when he was again granted bail a week before his rampage. </p>
<p>The changes that followed were designed to keep repeat violent offenders out of the community. However, they have led to the incarceration of large numbers of Victorians, many charged with less serious offences. According to Australian Bureau of Statistics data, over the past decade, the unsentenced imprisonment rate <a href="https://www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/4512.0September%20quarter%202017?OpenDocument">in Victoria</a> has increased by 210%. Notably, <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/prisoners-australia/latest-release">56% of women in prison</a> in Victoria are unsentenced, compared with 42% of men.</p>
<p>What’s more, <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/prisoners-australia/latest-release">51% of Indigenous people</a> in Victorian prisons are unsentenced, compared with 42% of non-Indigenous people. This is a shameful statistic that reflects once again the <a href="https://theconversation.com/factcheck-are-first-australians-the-most-imprisoned-people-on-earth-78528">dramatic over-representation of First Nations people in the justice system</a>.</p>
<p>In its report on this issue, the <a href="https://www.alrc.gov.au/publication/pathways-to-justice-inquiry-into-the-incarceration-rate-of-aboriginal-and-torres-strait-islander-peoples-alrc-report-133/">Australian Law Reform Commission</a> found Indigenous people may be disadvantaged when applying for bail due to irregular employment, previous convictions (often for low-level offending) and a lack of secure accommodation.</p>
<p>Even if bail is granted, cultural obligations may conflict with commonly-imposed bail conditions. This can in turn lead to breach of bail and consequent imprisonment. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1171202954142998528"}"></div></p>
<h2>It’s time to rebalance our bail laws</h2>
<p>Strategies to address <a href="https://www.indigenousjustice.gov.au/wp-content/uploads/mp/files/publications/files/the-growth-in-remand-13-08-2.pdf">the growth in remand and Indigenous over-representation</a> include: </p>
<ul>
<li>requiring explicit consideration of Indigenous status in bail decisions (this is already in place in Victoria, but not in most other jurisdictions)</li>
<li>ensuring bail conditions are culturally and socially appropriate</li>
<li>removing breach of bail as an offence</li>
<li>adopting alternative measures for dealing with breach of bail</li>
<li>providing accommodation and other support.<br></li>
</ul>
<p>According to a <a href="https://theconversation.com/giving-ex-prisoners-public-housing-cuts-crime-and-re-incarceration-and-saves-money-180027">range of evidence</a>, investing in such initiatives will make the community safer. For example, <a href="https://www.mcv.vic.gov.au/sites/default/files/2018-10/CISP%20tackling%20the%20causes%20of%20crime.pdf">an evaluation of a Victorian bail support program</a> found it reduced reoffending, and every dollar spent on the program saved the community between $1.70 and $5.90.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/victorias-prison-health-care-system-should-match-community-health-care-180558">Victoria’s prison health care system should match community health care</a>
</strong>
</em>
</p>
<hr>
<p>The coroner’s report is a clarion call not only for the Andrews government, but all governments. Our correctional focus should ensure the treatment of people remanded in custody respects their basic human rights, protects their dignity and keeps their health needs front of mind. This is especially important for First Nations people and is in line with recommendations from the <a href="https://www.commongrace.org.au/339_recommendations_from_the_rciadic">1991 Royal Commission into Aboriginal Deaths in Custody</a>.</p>
<p>More broadly, governments need to reconsider the framework for making bail decisions. The <a href="https://www.natsils.org.au/">National Aboriginal and Torres Strait Islander Legal Services</a> recently called for all jurisdictions with “<a href="https://nit.com.au/26-01-2023/4820/closing-the-justice-gap-indigenous-legal-peak-body-sets-out-plan-of-action">dangerous and discriminatory bail laws</a>” to repeal those laws and instead create a presumption in favour of bail. </p>
<p>People who have not been convicted shouldn’t be unnecessarily deprived of their liberty. <a href="https://theconversation.com/we-need-to-consider-granting-bail-to-unsentenced-prisoners-to-stop-the-spread-of-coronavirus-134526">Over 160 people</a> enter our adult prisons every day, and over three-quarters of these people are unsentenced. Many <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/criminal-courts-australia/latest-release">won’t be convicted of any offence</a>, and even those who are may not receive a prison sentence. They should certainly not face a death sentence, as Veronica Nelson did.</p><img src="https://counter.theconversation.com/content/198507/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre is affiliated with the Bragg Subbranch of the SA Labor Party. He is a South Australian patron of the Justice Reform Initiative (JRI) and a Fellow of the Australian and New Zealand Society of Criminology (ANZSOC).</span></em></p><p class="fine-print"><em><span>Lorana Bartels receives funding from the ACT Government and Australian Institute of Criminology. She regularly provides advice to the ACT Government on justice issues and is a member of the Tasmanian Sentencing Advisory Council. She is a patron and board director of the Justice Reform Initiative.</span></em></p>Arrested on suspicion of shoplifting and denied bail, Veronica Nelson died alone in a cell. A Victorian coroner has called for urgent reform of the state’s tough bail laws.Rick Sarre, Emeritus Professor of Law and Criminal Justice, University of South AustraliaLorana Bartels, Professor of Criminology, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1910052022-11-08T19:39:38Z2022-11-08T19:39:38ZThe criminal legal system does not deliver justice for First Nations people, says a new book<p><em>This article contains information on deaths in custody and the violence experienced by First Nations people in their encounters with the Australian carceral system. It also contains references to and the names of people who are now deceased.</em></p>
<hr>
<p>Early in Russell Marks’ book, <a href="https://www.blackincbooks.com.au/books/black-lives-white-law">Black Lives, White Law</a>, he tells us that while he was writing it, at least 37 First Nations people died in Australia’s criminal justice system.</p>
<p>During the time I’ve been writing this review, we have listened to the coroner’s inquiry into <a href="https://theconversation.com/the-kumanjayi-walker-murder-case-echoes-a-long-history-of-police-violence-against-first-nations-people-179289">the killing of</a> Warlpiri teenager Kumanjayi Walker and seen (again) the racism and violence of police: from <a href="https://theconversation.com/police-texts-in-kumanjayi-walker-case-another-sordid-example-of-systemic-racism-in-australias-legal-system-190833">casual text messages</a> commending physical assaults, to the use of deadly force against a young man, when there were multiple other options available. </p>
<p>And then came the death of Noongar 15-year-old Cassius Turvey who was fatally attacked in Perth last month. The immediate police response was to evade claims of racism in his alleged murder. “It may be a case of being in the wrong place at the wrong time,” speculated Western Australia’s police commissioner, saying he was “not operating on any principles of racism or motivation at this point”.</p>
<hr>
<p><em>Review: Black Lives, White Law: Locked Up and Locked Out in Australia – Russell Marks (La Trobe University Press)</em></p>
<hr>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/493751/original/file-20221107-25-zdiljt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="book cover (yellow with text): Black Lives, White Law: Locked Up and Locked Out in Australia - by Russell Marks" src="https://images.theconversation.com/files/493751/original/file-20221107-25-zdiljt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/493751/original/file-20221107-25-zdiljt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=917&fit=crop&dpr=1 600w, https://images.theconversation.com/files/493751/original/file-20221107-25-zdiljt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=917&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/493751/original/file-20221107-25-zdiljt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=917&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/493751/original/file-20221107-25-zdiljt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1153&fit=crop&dpr=1 754w, https://images.theconversation.com/files/493751/original/file-20221107-25-zdiljt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1153&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/493751/original/file-20221107-25-zdiljt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1153&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<p>We continue to bear witness to the visceral hatred of Aboriginal people by too many non-Aboriginal people – and the sheer indifference of too many others. The collective trauma borne by First Nations families and communities throughout Australia is palpable. </p>
<p>Russell Marks is not a First Nations person, and nor am I. Marks is, among other things, a criminal defence lawyer who has worked for Aboriginal legal services in the Northern Territory and Victoria. I have been writing on policing in Aboriginal communities since the 1980s. Our experiences and understanding of the world are not those of Aboriginal individuals, families and communities, whose lives are heavily impacted by racism and violence – both within the criminal legal system and without. But we can contribute to the struggle for justice. And Marks’ book does that. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-kumanjayi-walker-murder-case-echoes-a-long-history-of-police-violence-against-first-nations-people-179289">The Kumanjayi Walker murder case echoes a long history of police violence against First Nations people</a>
</strong>
</em>
</p>
<hr>
<h2>Nothing to do with justice</h2>
<p>Justice. If Black Lives, White Law does nothing more, it shows the hollowness of a set of institutions and practices called the “criminal justice system”. In too many cases, these collective institutions of policing, courts and prisons have little to do with justice, but a great deal to do with perpetrating and legitimating profound injustice. My preferred term is “the criminal legal system” – because this wording doesn’t pretend these institutions offer justice.</p>
<p>Many Australians might prefer to see <a href="https://theconversation.com/not-criminals-or-passive-victims-media-need-to-reframe-their-representation-of-aboriginal-deaths-in-custody-158561">Aboriginal deaths in custody</a> and the appalling rates of Aboriginal youth and adult imprisonment as the result of First Nations people’s failings. But Marks’ book aims to understand the contemporary situation by turning the gaze back onto Australia’s criminal legal system. </p>
<p>It does so through a series of chapters that explore how the criminal legal system disempowers, criminalises and incarcerates Aboriginal people. The chapters span the historical roots of colonialism and settler law, to the contemporary question of what needs to be done to change our institutions of policing, courts and prisons. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/494003/original/file-20221108-22-in7txw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/494003/original/file-20221108-22-in7txw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/494003/original/file-20221108-22-in7txw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/494003/original/file-20221108-22-in7txw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/494003/original/file-20221108-22-in7txw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/494003/original/file-20221108-22-in7txw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/494003/original/file-20221108-22-in7txw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/494003/original/file-20221108-22-in7txw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Leetona Dungay, the mother of the late David Dungay Jr, announces she will go to the United Nations to hold the federal and NSW governments to account for their failure to stop First Nations deaths in custody.</span>
<span class="attribution"><span class="source">Dan Himbrechts/AAP</span></span>
</figcaption>
</figure>
<p>During the period from the initial invasion of Australia through the 19th century, “the sheer brutality of the frontier violence by the invading British” was difficult to believe. And, like today, the concept of justice itself “meant remarkably different things to a Supreme Court Judge in a capital city [compared to] an Indigenous person who had survived a massacre of their family and community”. </p>
<p>The denial of Aboriginal experiences of colonisation has been compounded by a select reading of the colonial reality: that the legal story of Australia was one of British settlement, and Aboriginal people were neither recognised as sovereign, nor permitted to exercise their own laws.</p>
<p>Black Lives, White Law follows a fairly well-trodden historical path of settler-colonial interventions into Aboriginal life. It includes the more recent history of the <a href="https://www.naa.gov.au/explore-collection/first-australians/royal-commission-aboriginal-deaths-custody">Royal Commission into Aboriginal Deaths in Custody</a>, and the <a href="https://theconversation.com/ten-years-on-its-time-we-learned-the-lessons-from-the-failed-northern-territory-intervention-79198">Northern Territory Intervention</a> and beyond. And it traces <a href="https://www.theguardian.com/australia-news/2019/aug/26/australia-entering-second-convict-age-as-imprisonment-rates-soar">the growth</a> in incarceration rates from the late 1980s onwards.</p>
<p>Australian governments have often rhetorically committed to reducing Aboriginal imprisonment. But in real terms, over the past few decades, imprisonment in general has increased, thanks to punitive laws and policies: a 130% increase (<a href="https://www.theguardian.com/australia-news/2019/aug/26/australia-entering-second-convict-age-as-imprisonment-rates-soar">measured</a> from 1985 to 2018). For First Nations people, imprisonment rates have increased drastically – they’ve more than doubled during that same period.</p>
<p>And they’re now <a href="https://www.theguardian.com/australia-news/2019/aug/26/australia-entering-second-convict-age-as-imprisonment-rates-soar">proportionally higher</a> than Black American imprisonment rates. In 2007, the Black American incarceration rate in the United States was 75% higher than the Indigenous rate in Australia. But ten years later, in 2017, Australia’s Indigenous incarceration rate for the first time exceeded the Black American rate.</p>
<p>Marks discusses the limitations of imprisonment as a crime control strategy. He notes, “it is an extraordinarily expensive and inefficient way of controlling crime”. I would have preferred to see this argument pushed beyond the pragmatic rationale of money and inefficiency, to question whether locking children, young people and adults in cages is ever justified.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/494005/original/file-20221108-20-red8my.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/494005/original/file-20221108-20-red8my.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/494005/original/file-20221108-20-red8my.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/494005/original/file-20221108-20-red8my.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/494005/original/file-20221108-20-red8my.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/494005/original/file-20221108-20-red8my.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/494005/original/file-20221108-20-red8my.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/494005/original/file-20221108-20-red8my.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A Melbourne rally on 18 June 2022: a national day of action calling for justice for Aboriginal deaths in custody.</span>
<span class="attribution"><span class="source">Diego Fedele/AAP</span></span>
</figcaption>
</figure>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/friday-essay-not-for-me-amy-thunig-on-the-stigma-of-having-a-dad-in-lock-up-and-the-embrace-of-indigenous-academia-193527">Friday essay: 'not for me' – Amy Thunig on the stigma of having a dad in 'lock-up', and the embrace of Indigenous academia</a>
</strong>
</em>
</p>
<hr>
<h2>Carceral feminism and youth imprisonment</h2>
<p>In the final chapters, Marks explores some of the major issues in the criminalisation of First Nations people. He turns his attention to the matter of <a href="https://theconversation.com/carceral-feminism-and-coercive-control-when-indigenous-women-arent-seen-as-ideal-victims-witnesses-or-women-161091">carceral feminism</a> – that is, the approach to solving the problem of violence against women through an increasing reliance on the criminalisation and incarceration of men. </p>
<p>Examples of carceral feminism include <a href="https://www.justice.qld.gov.au/initiatives/end-domestic-family-violence/our-progress/strengthening-justice-system-responses/legislative-changes">increasing penalties</a> for domestic violence orders (DVOs), the <a href="https://theconversation.com/australia-is-not-ready-to-criminalise-coercive-control-heres-why-146929">criminalisation of coercive control</a>, and current suggestions of <a href="https://theconversation.com/womens-police-stations-in-australia-would-they-work-for-all-women-165873">“women only” staffed police stations</a>.</p>
<p>Marks argues the criminal legal system is incapable of solving the problem of violence against First Nations women for various reasons, and its current approach has resulted in the increased imprisonment of both men and women. He cites <a href="https://www.crimejusticejournal.com/article/view/915">figures from Queensland</a> that show two-thirds of women sentenced to prison for breaches of domestic violence orders are Indigenous. </p>
<p>Marks also takes aim at the youth legal system, which continues to incarcerate and brutalise children – but particularly First Nations children, who <a href="https://www.pc.gov.au/closing-the-gap-data/dashboard/socioeconomic/outcome-area11">comprised around 50%</a> of all children locked up at the time he was writing the book.</p>
<p>He draws on the <a href="https://www.royalcommission.gov.au/child-detention">Royal Commission into the Protection and Detention of Children</a> in the Northern Territory to understand the violence and harm caused by the juvenile carceral system, which traumatises children who are often already traumatised (before they were imprisoned). This is exemplified by the experiences of <a href="https://theconversation.com/young-peoples-voices-are-all-but-invisible-in-the-don-dale-royal-commissions-interim-report-75618">Dylan Voller</a> and others in Darwin’s Don Dale Youth Detention Centre – including violent assaults by staff, teargassing, and solitary confinement. </p>
<p>Marks also uses the NT royal commission to demonstrate the government’s failure to act on recommendations to remedy clearly identified problems. It continues to incarcerate young people in substandard conditions, and fails to seriously consider options that could substantially reduce youth imprisonment. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/carceral-feminism-and-coercive-control-when-indigenous-women-arent-seen-as-ideal-victims-witnesses-or-women-161091">Carceral feminism and coercive control: when Indigenous women aren't seen as ideal victims, witnesses or women</a>
</strong>
</em>
</p>
<hr>
<h2>Community safety</h2>
<p>The book explores what First Nations people are doing in the struggle to ensure safety within their communities. These include community (or “night”) patrols, law and justice groups, community justice groups and various <a href="https://theconversation.com/the-role-of-re-storying-in-addressing-over-incarceration-of-aboriginal-and-torres-strait-islander-peoples-163577">community-generated approaches</a> – from <a href="https://theconversation.com/as-indigenous-incarceration-rates-keep-rising-justice-reinvestment-offers-a-solution-107610">justice reinvestment</a> to individual programs for helping young people in the community. And there’s the development of <a href="https://www.alrc.gov.au/publication/pathways-to-justice-inquiry-into-the-incarceration-rate-of-aboriginal-and-torres-strait-islander-peoples-alrc-report-133/10-access-to-justice/specialist-aboriginal-and-torres-strait-islander-sentencing-courts/">Aboriginal sentencing courts</a> (such as the <a href="https://www.courts.qld.gov.au/courts/murri-court">Murri court</a> and <a href="https://www.mcv.vic.gov.au/about/koori-court">Koori court</a>), where First Nations people play a role in advising the court on criminal matters. </p>
<p>These initiatives have received inconsistent support (at best) from the state, and are often undermined by the scepticism of police, magistrates and other state officials. Marks questions the power of these courts to change the dominant Western legal system, when the law ultimately enforced is still the law of the settler state.</p>
<p>Yet Indigenous people continue to fight for their right to control community safety. After the fatal shooting by police of Kumanjayi Walker, the elders of Yuendumu released a statement demanding greater power to make decisions. They unambiguously stated that their night patrol and community police should be at the forefront of ensuring their community’s wellbeing. </p>
<p>They demanded Warlpiri law be recognised and respected. They demanded a role in assessing and evaluating every police officer who comes to work in their community. And they demanded police in their community not be armed with guns and other lethal weapons. </p>
<p>These are radical demands, but they are completely consistent with the localised control over policing that First Nations peoples have insisted on for decades. After Rolfe’s acquittal for the murder of Kumanjayi Walker, Ned Tjampitjinpa Hargraves, a Yuendumu Elder and Lawman, <a href="https://jumbunna.institute/2022/03/11/walker-family-yuendumu-elders-condemn-rolfe-not-guilty-verdict/">stated</a>:</p>
<blockquote>
<p>The court didn’t take action, so we need to take action on the ground in our communities to protect ourselves … We have waited for too long. </p>
</blockquote>
<h2>Aboriginal justice</h2>
<p>There is some discussion of Aboriginal justice agreements in the book, although it’s relatively short. A more nuanced discussion of their role would have been useful. It’s especially relevant for the Northern Territory, where the current <a href="https://justice.nt.gov.au/attorney-general-and-justice/northern-territory-aboriginal-justice-agreement/the-agreement">Aboriginal Justice Agreement (2021-2027)</a> is being implemented. (I note this particularly in the context of Hargraves’ comments, and the Yuendumu demands.) </p>
<p>One of the core principles underpinning the agreement is a commitment to local decision-making on a range of matters concerning law and justice. No doubt it will be a struggle for communities to ensure this principle is acted on in practice. </p>
<p>The outcome of First Nations struggles for recognition and autonomy from the settler-colonial state are not predetermined – and the end result is far from certain. The settler-colonial state is not a finished product. </p>
<p>The conflict between Indigenous governance and the settler state may result in new legal and administrative spaces: neither completely decolonised nor completely colonial, but reflecting a point in time. Incomplete in themselves, in an enduring political and historic conflict.</p>
<p>In the conclusion of Black Lives, White Law, Marks acknowledges the book is not about solutions; it’s about identifying the problems. This book certainly does that, comprehensively. </p>
<p>Marks does not pretend to have all the answers – unlike so many whitefellas before him, all too anxious to push their own barrows of policies and programs. And there are multiple different ways the future may unfold. </p>
<p>What’s clear is that mass criminalisation and incarceration is not justice and it is not a solution for First Nations people. Though it appears a convenient way for the settler state to avoid coming to terms with its own history of dispossession, genocide and racism.</p><img src="https://counter.theconversation.com/content/191005/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Chris Cunneen is working on the implementation of the Aboriginal Justice Agreement with the Aboriginal Justice Unit in the NT Department of Attorney-General and Justice</span></em></p>Russell Marks’ Black Lives, White Law is not about solutions; it’s about identifying the problems with Australia’s criminal legal system, and the injustice it does to First Nations people.Chris Cunneen, Professor of Criminology, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1764532022-02-15T18:47:28Z2022-02-15T18:47:28ZRacism is a public health crisis – but Black death tolls aren’t the answer<figure><img src="https://images.theconversation.com/files/446178/original/file-20220214-23-dxdpu5.jpg?ixlib=rb-1.1.0&rect=37%2C18%2C6193%2C4128&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/members-of-the-indigenous-community-march-towards-flinders-street-a-picture-id1311740388?s=2048x2048"> Diego Fedele/Getty Images</a></span></figcaption></figure><p>Last month the British Medical Journal <a href="https://www.bmj.com/content/376/bmj.o213">published an editorial</a> calling for racism to be listed as a leading cause of death among Black people in the United States. </p>
<p>The authors argue reporting excess deaths by race and ethnicity will “galvanise action and promote accountability”. They write:</p>
<blockquote>
<p>There is no biological reason, independent of social context, that Black people should die younger than White people. The excess premature deaths are the cumulative difference in death between Black and White people across every specific cause of death.</p>
</blockquote>
<p>This call echoes the global shift to <a href="https://www.apha.org/topics-and-issues/health-equity/racism-and-health/racism-declarations">declare racism a public health crisis</a>, after the confluence of COVID and the Black Lives Matter movement showed how it affected the lives of Black and Indigenous peoples. </p>
<p>We commend these calls. But measuring the impact of racism by the number of excess deaths raises concerns about how we deal with the racialised health disparities Aboriginal and Torres Strait Islander people <a href="https://systematicreviewsjournal.biomedcentral.com/articles/10.1186/s13643-020-01480-w">continue to experience</a>. </p>
<p>If racism is only understood in terms of excess death, it risks perpetuating racialised imaginings of Indigenous peoples as “destined to die”. </p>
<p>The findings of the Royal Commission into Aboriginal Deaths in Custody and the failure to implement recommendations, shows Indigenous deaths don’t galvanise action or promote accountability in this country.</p>
<p>Measuring racism via excess deaths also fails to account for the ways race <a href="https://www.mja.com.au/journal/2020/213/6/now-we-say-black-lives-matter-fact-matter-we-just-black-matter-them1">bears down heavily</a> upon the lives of Indigenous peoples from birth to death. This is the problem with seeking to measure something that remains poorly defined and only measured by its worst possible outcome: death. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/not-criminals-or-passive-victims-media-need-to-reframe-their-representation-of-aboriginal-deaths-in-custody-158561">Not criminals or passive victims: media need to reframe their representation of Aboriginal deaths in custody</a>
</strong>
</em>
</p>
<hr>
<h2>Clarity is needed, not more data</h2>
<p>Race operates as a structure of power. Our understanding of it is not well served by only telling the statistical story of death. What is needed is not “more data”, but a better understanding of power. The refusal to pursue a deeper understanding of race sustains the existing power structure – even in efforts that claim to improve it. </p>
<p>For instance, despite the investment in Indigenous health research in recent decades, there has yet to be a focused investment in studies examining the operation of race and racism in this realm. This is disturbing given the efforts of Closing the Gap are intended to remedy a range of disparities marked by race. </p>
<p>Perhaps this explains why Closing the Gap is widely considered a <a href="https://www.smh.com.au/politics/federal/bid-to-close-the-gap-on-indigenous-benchmarks-has-failed-20200211-p53zug.html">policy failure</a>. Each year the account of Indigenous ill health is reported on in the floors of parliament. Yet this tragic failure is often attributed to Indigenous peoples as though they haven’t taken “proper responsibility” for their health and <a href="https://pubmed.ncbi.nlm.nih.gov/26599355/">used as justification to maintain power</a> over Indigenous peoples’ lives. </p>
<p>The BMJ editorial authors claim biological understandings of race have been abandoned by medical science. We argue such understandings have been replaced with a behaviouralist explanation <a href="https://theconversation.com/bad-news-negative-indigenous-health-coverage-reinforces-stigma-24851">that is also racist</a>.</p>
<p>Both approaches – the biological and the behavioural – focus on blaming the Black body. It is to be measured, monitored and ultimately controlled. The individual behavioural approach in public health has been widely criticised in global efforts as <a href="https://www.jstor.org/stable/45130420">a form of victim-blaming</a> because it doesn’t address the structural conditions that create health disparities. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1490500573485047811"}"></div></p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/bad-news-negative-indigenous-health-coverage-reinforces-stigma-24851">Bad news: negative Indigenous health coverage reinforces stigma</a>
</strong>
</em>
</p>
<hr>
<p>Public health researchers and policymakers can no longer claim to be neutral observers to this reality.</p>
<p>The “<a href="https://www.mja.com.au/journal/2020/212/5/more-refresh-required-closing-gap-indigenous-health-inequality">new paternalism</a>” of Indigenous affairs has led to increased controls over Indigenous peoples in the name of public health. Some of these measures have needed the <a href="https://www.theguardian.com/australia-news/2017/sep/02/northern-territory-intervention-violates-international-law-gillian-triggs-says">suspension of the Race Discrimination Act</a> to enact them.</p>
<p>Over the past few months, the Australian Human Rights Commission’s (AHRC) Race Discrimination Commissioner has invited public submissions surrounding the formation of a <a href="https://humanrights.gov.au/our-work/race-discrimination/projects/national-anti-racism-framework">National Anti-Racism Framework</a>, and <a href="https://humanrights.gov.au/sites/default/files/document/publication/ahrc_cp_national_anti-racism_framework_2021_.pdf">put forward</a> a “concepts paper” detailing eight national outcomes. </p>
<p>Included was a call for better data which describes the nature, prevalence and incidence of racism. But the AHRC provides no conceptual clarity around the very thing they wish to measure and eradicate. What is clear, is that more of the same is not enough to address racism in this country. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/yLvunE5hCmk?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Chelsea Watego: ‘I think of myself as a Black speed bump of the capital B kind. A cautionary disruption to an otherwise smooth ride.’</span></figcaption>
</figure>
<h2>Indigenous lived experience is the answer, not death</h2>
<p>Recognising the public health crisis of racism, and the formation of a national anti-racism framework demands a richer understanding of how racism “<a href="https://www.lowitja.org.au/page/services/resources/Cultural-and-social-determinants/justice/partnership-for-justice-in-health-scoping-paper-on-race-racism-and-the-australian-health-system">originates in the operation of established and respected forces</a>” of society and the ways it impacts lives.</p>
<p><a href="https://www.theguardian.com/australia-news/2017/sep/02/northern-territory-intervention-violates-international-law-gillian-triggs-says">Canada’s Anti-Racism Strategy</a> prioritises an “increased awareness of the historical roots of racism and discrimination, and their impacts on communities and Indigenous peoples”. This centres the expertise of Indigenous peoples and communities.</p>
<p>While excess Black deaths may tell a certain truth about the ongoing violence of racism, it is in Black living that a richer understanding of how race works materialises. It is also in the expertise and actions of Aboriginal and Torres Strait Islander people that we can see more meaningful anti-racist efforts emerge that <a href="https://www.abc.net.au/news/2021-02-19/victorian-parliament-decriminalises-public-drunkenness-tanya-day/13172136">attend to the structural nature of racism</a>. </p>
<p>Sadly, we’ve a long way to go in this country for there to be a foregrounding of the lived experiences and expertise of Aboriginal and Torres Strait Islander peoples in developing an understanding of the realness of race. This is what speaks so clearly to how big the racism crisis really is in this place.</p><img src="https://counter.theconversation.com/content/176453/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Chelsea Watego is affiliated with Inala Wangarra. She receives funding from the Australian Research Council. She is a Director of the Institute for Collaborative Race Research.</span></em></p><p class="fine-print"><em><span>Lisa J Whop receives funding from the Australian Research Council and the National Health and Medical Research Council.</span></em></p>There has been a global shift to declare racism a public health crisis. But we need to drill deeper to understand racism, rethink health data and listen to lived experience.Chelsea Watego, Professor, Queensland University of TechnologyLisa J Whop, Senior Fellow, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1621642021-06-24T20:12:05Z2021-06-24T20:12:05ZThe sentencing of George Floyd’s killer has lessons for policing in Australia and New Zealand too<figure><img src="https://images.theconversation.com/files/408060/original/file-20210624-23-wvomaq.jpg?ixlib=rb-1.1.0&rect=25%2C8%2C5582%2C2833&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">www.shutterstock.com</span></span></figcaption></figure><p>The imminent <a href="https://www.mprnews.org/story/2021/06/23/what-you-need-to-know-about-this-weeks-sentencing-of-derek-chauvin">sentencing</a> of former Minneapolis police officer Derek Chauvin for the 2020 murder of George Floyd will be closely watched around the world. While the crime happened in the United States, its <a href="https://www.cbsnews.com/news/george-floyd-black-lives-matter-impact/">resonance in the Black Lives Matter movement</a> has been truly international.</p>
<p>In New Zealand and Australia, the June 25 sentencing offers an opportunity to take stock of racial disparities in their own criminal justice systems. They may be geographically distant, but we shouldn’t imagine the underlying cultural problems are exclusive to the US.</p>
<p>Floyd’s death was not just brutal and outrageous, but also distressingly routine. While some high-profile police killings of Black people have made the news and triggered protests and rioting, countless others have gone without the same coverage or impact.</p>
<p>For every <a href="https://www.theguardian.com/us-news/video/2014/dec/04/i-cant-breathe-eric-garner-chokehold-death-video">Eric Garner</a> (suffocated in 2014 by the NYPD while saying “I can’t breathe”) or <a href="https://www.bbc.com/news/world-us-canada-32400497">Freddie Gray</a> (who died of a broken spine after his arrest in Baltimore in 2015), there have been multiple other cases.</p>
<p>The conviction of Chauvin is therefore to be welcomed, not least because it shows such prosecutions can be successful. But it’s also important to remember that US policing itself has not necessarily changed very much, despite the past year’s protests and ongoing advocacy for reform.</p>
<p>At heart, the police remains a brutal institution. Some US police forces can be traced back to <a href="https://time.com/4779112/police-history-origins/">slave patrols in the 1700s</a>, established to chase down escaped slaves or quell revolts. The culture of an institution built by one race for the subjugation of another is hard to change without some kind of radical reinvention.</p>
<h2>Policing in a post-colonial era</h2>
<p>Again, this is not something confined exclusively to the US. The police forces of New Zealand and Australia were established as component parts of a colonial project that clearly harmed and disadvantaged their respective Indigenous populations.</p>
<p>This foundational fact is reflected in the reality of policing today. Police forces built to enable colonial subjugation will not change simply because sections of modern society have developed a more progressive racial outlook.</p>
<p>Even if you argue the history of colonial policing does not actively inform contemporary police cultures in Australia and New Zealand, there is no denying the outcomes for Indigenous people in their criminal justice systems are lamentable.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/australias-news-media-play-an-important-role-reminding-the-country-that-black-lives-still-matter-161412">Australia's news media play an important role reminding the country that Black lives still matter</a>
</strong>
</em>
</p>
<hr>
<p>It is now just over 30 years since the landmark report of Australia’s <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/">Royal Commission into Aboriginal Deaths in Custody</a>. In that time, 474 Aboriginal and Torres Straits Islander people <a href="https://www.theguardian.com/australia-news/2021/apr/09/the-474-deaths-inside-rising-number-of-indigenous-deaths-in-custody-revealed">met their deaths following police contact</a>. That equates to more than one such death each month.</p>
<p>In New Zealand, Māori are <a href="https://www.nzherald.co.nz/nz/police-use-of-force-report-maori-seven-times-more-likely-than-pakeha-to-be-on-receiving-end/F4WELSYC2KGHMPZF35NSCDNLM4/">seven times more likely</a> than Pākehā to be at the receiving end of police violence. If the outcomes are not fatal as often as in Australia, deaths in custody still reflect a serious racial disparity.</p>
<p>In 2012, the Independent Police Complaints Authority <a href="https://www.ipca.govt.nz/site/publications-and-media/2012-media-releases/2012-june-30-deaths-in-custody.aspx">reviewed the 27 deaths in custody</a> from the previous decade. Almost half were Māori. If this is a small sample, it still mirrors the disproportionately <a href="https://www.corrections.govt.nz/resources/statistics/quarterly_prison_statistics/prison_stats_march_2021#ethnicity">high number of Māori in the prison system</a>: Māori <a href="https://www.stats.govt.nz/news/new-zealands-population-reflects-growing-diversity">make up 16%</a> of the country’s population but 52% of prisoners.</p>
<figure class="align-center ">
<img alt="People listening to speeches at a Black Lives Matter rally in Auckland" src="https://images.theconversation.com/files/408061/original/file-20210624-19-146a92b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/408061/original/file-20210624-19-146a92b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/408061/original/file-20210624-19-146a92b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/408061/original/file-20210624-19-146a92b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/408061/original/file-20210624-19-146a92b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/408061/original/file-20210624-19-146a92b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/408061/original/file-20210624-19-146a92b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Black Lives Matter movement went global: Aucklanders listen to speeches during a rally in 2020.</span>
<span class="attribution"><span class="source">GettyImages</span></span>
</figcaption>
</figure>
<h2>A long way to go</h2>
<p>These discrepancies are hard to explain away. There is clearly a race problem in criminal justice in Australia and New Zealand, just as there is in the US.</p>
<p>The conviction and sentencing of Derek Chauvin may signal change, but it will take time. President Joe Biden supports proposed laws around police misconduct and racial profiling, but <a href="https://edition.cnn.com/2021/05/26/politics/black-leaders-demand-police-reform/index.html">advocates are frustrated</a> by the slow pace of reform.</p>
<p>Calls to “<a href="https://www.theguardian.com/us-news/2020/aug/15/defund-police-movement-us-victories-what-next">defund the police</a>” in the US, and growing disquiet at the increasingly paramilitary nature of US policing, may not yet have direct echoes in Australia and New Zealand.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-united-states-is-at-risk-of-an-armed-anti-police-insurgency-159003">The United States is at risk of an armed anti-police insurgency</a>
</strong>
</em>
</p>
<hr>
<p>But if and when George Floyd’s killer is sent to jail himself, we should take the opportunity to reflect on how far our own criminal justice systems have to go. </p>
<p>The Black Lives Matter movement demonstrates there is a global appetite for meaningful change to policing practices, as the protests in Australia and New Zealand highlighted.</p>
<p>This year, New Zealand has begun a government process of <a href="https://www.mpp.govt.nz/about-us/dawn-raids-apology/">apologising</a> for the dehumanising “dawn raids” of the 1970s, when Pasifika people deemed to be overstaying their visas were dragged from their homes by police and deported. </p>
<p>The history of colonial policing is something we are still processing — moving beyond those colonial (and often racist) mindsets towards a system that values rights, accountability and the rule of law. The moment is ripe for reform.</p><img src="https://counter.theconversation.com/content/162164/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>James Mehigan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It’s tempting to see the sentencing of Derek Chauvin for the murder of George Floyd as an American phenomenon. But that is to ignore past and present injustice much closer to home.James Mehigan, Senior Lecturer in Law, University of CanterburyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1614122021-06-03T03:31:33Z2021-06-03T03:31:33ZAustralia’s news media play an important role reminding the country that Black lives still matter<p><em>Aboriginal and Torres Strait Islander readers are advised this article contains names of people who have passed away, and descriptions of these deaths.</em></p>
<p>One year has passed since George Floyd’s death under the knee of a Minneapolis police officer. Floyd’s name is imprinted upon our consciousness, as it should be. </p>
<p>However, in Australia we know less about the <a href="https://newsroom.unsw.edu.au/news/business-law/black-lives-matter-movement-australia-first-nations-perspectives">more than 474 Indigenous people who have died in police or prison custody</a> in the 30 years since the Royal Commission into Aboriginal Deaths in Custody.</p>
<p>While Floyd’s death and the Black Lives Matter movement sparked extensive media attention, Australian Indigenous deaths in custody have had a harder time attracting sustained coverage, particularly from mainstream news outlets. Media attention on the issue has been episodic and too often absent.</p>
<h2>The Great Australian Silence continues</h2>
<p>As Darumbal and South Sea Islander journalist Amy McQuire <a href="https://7ampodcast.com.au/episodes/black-witness-white-witness">says</a>, there is a national apathy in response to First Nations deaths in custody. McQuire, who consistently reports on deaths in custody as an independent journalist, says: “When Aboriginal people die in custody there is a national silence”. Some deaths in custody break through, but many more pass unnoticed.</p>
<p>The royal commission stated that to reduce Aboriginal deaths in custody it is critical to reduce imprisonment rates (which have <a href="https://www.ceda.com.au/NewsAndResources/Opinion/Indigenous-affairs/Costs,-consequences-and-alternatives-to-imprisonin">doubled</a> since 1991), and to improve the exercise of the duty of care owed to people in custody. </p>
<p>Two Indigenous deaths in custody, 20 years apart, demonstrate the failure to achieve both.</p>
<p>In 1994, 30-year-old Aboriginal woman <a href="https://communityyarns.com/wp-content/uploads/2016/05/The-girl-in-cell-4.pdf">Ms Beetson</a> died of treatable heart disease in Sydney’s Mulawa women’s prison. </p>
<p>She was admitted to prison unwell; previous open-heart surgery and other concerns were highlighted on her admittance form. She was given a cursory medical examination and her symptoms were put down to drug withdrawal. Over a week, she became weaker and sicker, received no effective medical attention and died alone in a cell.</p>
<p>In 2014, Yamatji woman Ms Dhu, 22, was arrested for unpaid fines, against royal commission recommendations. She was held in a South Hedland, WA, police watch house for three days in intense pain and growing sicker. </p>
<p>The usual assumptions were made about drug withdrawal and that she was “<a href="https://www.theguardian.com/australia-news/2016/dec/16/ms-dhu-endured-inhumane-treatment-by-police-before-death-in-custody-coroner">faking it</a>”. She died of staphylococcal septicaemia and pneumonia.</p>
<p>Twenty years apart, the circumstances around Ms Beetson’s and Ms Dhu’s deaths reflect the same inadequate medical treatment, inhumanity, lack of professionalism and failures. Both medical conditions were treatable and both deaths preventable. </p>
<p>But the story of Ms Dhu’s case broke through, due to local and effective activism, and because the media landscape had started to change.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/not-criminals-or-passive-victims-media-need-to-reframe-their-representation-of-aboriginal-deaths-in-custody-158561">Not criminals or passive victims: media need to reframe their representation of Aboriginal deaths in custody</a>
</strong>
</em>
</p>
<hr>
<p>The year before Ms Dhu’s death, The Guardian began publishing an online Australian edition. Guardian journalist <a href="https://www.walkleys.com/spotlight-on-calla-wahlquist-and-lorena-allam/">Calla Wahlquist</a> reported at least one story every day from the inquest into Ms Dhu’s death. </p>
<p>The Guardian’s sustained deaths in custody reporting and its “<a href="https://www.theguardian.com/australia-news/series/deaths-inside">Deaths Inside</a>” database have made a difference to deaths in custody coverage.</p>
<h2>Australian media needs to keep addressing deaths in custody</h2>
<p>Media attention was important in helping to <a href="https://wendybacon.com/2021/Deaths">create the conditions</a> for the royal commission’s establishment. Among the more influential and agenda-setting stories were those by Western Australian freelance journalist <a href="https://www.icij.org/journalists/jan-mayman/">Jan Mayman</a> reporting on Roebourne teenager John Pat’s 1983 death for The Age, and a <a href="https://www.abc.net.au/4corners/black-death---1985/2835060">1985 Four Corners program</a> presented by David Marr.</p>
<p>In its report and <a href="https://theconversation.com/not-criminals-or-passive-victims-media-need-to-reframe-their-representation-of-aboriginal-deaths-in-custody-158561">recommendations</a>, the royal commission recognised the important role of the media as a form of “collective conscience”, contributing to the possibility of increased justice for Aboriginal people. </p>
<p>The <a href="https://www.naa.gov.au/sites/default/files/2020-02/research-guide-aboriginal-deaths-in-custody.pdf">release</a> of the royal commission’s final report was a Black-lives-just-could-matter moment in Australia. </p>
<p>Here was the blueprint for transforming the life chances of Aboriginal people, and the relationship between Aboriginal and non-Aboriginal Australians. Implementing the report’s 339 recommendations could reduce imprisonment rates, deaths in custody, inequality and disadvantage.</p>
<p>When the <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/">report</a> was released, the media was again <a href="https://wendybacon.com/2021/Deaths">interested and engaged</a>. Aboriginal people’s points of view were heard, and Aboriginal deaths in custody became an important story that put individual deaths into context. However, this kind of reporting soon fell away.</p>
<p>Four years after the report, governments were claiming successful implementation of the royal commission’s recommendations. However, the <a href="https://www.aic.gov.au/publications/sr/sr21">Australian Institute of Criminology</a> was reporting deaths in prison at record levels. </p>
<p><a href="https://wendybacon.com/uploads/appendix-c_reportage-article.pdf">Research</a> by the Australian Centre for Independent Journalism found the media uncritically reported government implementation claims as if they were true.</p>
<h2>Non-Indigenous journalists need to step up</h2>
<p>While First Nations journalists, such as Amy McQuire, Gamilaraay and Yawalaraay woman <a href="https://www.theguardian.com/profile/lorena-allam">Loreena Allam</a> and Muruwari man <a href="https://www.abc.net.au/news/2020-06-28/covering-black-deaths-in-australia-led-me-to-a-breakdown/12390416">Allan Clarke</a>, are telling stories of injustice meted out to Aboriginal people, non-Indigenous journalists must also keep telling stories about the injustices caused by colonisation.</p>
<p>It took an event in the US to spark the Indigenous lives matter response across Australia. Journalists must continue to report on the chain of events that lead to Black deaths at the hands of the state. </p>
<p><strong>How we can do this:</strong></p>
<p>We can report the facts, for instance, Indigenous adult and youth apprehension and imprisonment rates, Aboriginal youth and adult suicide rates, coronial inquest findings and recommendations.</p>
<ol>
<li><p>We can interview witnesses, family members and representatives, police and prison officers, and other experts and report what they and other informed commentators say about the facts, consequences and causes of those deaths. </p></li>
<li><p>We can investigate and discern the patterns emerging from these deaths; the similar facts and <a href="https://www.theguardian.com/australia-news/2020/jun/11/the-story-of-david-dungay-and-an-indigenous-death-in-custody">common factors</a>, the same systemic failures, the ongoing evidence of institutional racism.</p></li>
<li><p>Through our journalism we need to honour each person who has died, and try to bring some comfort to their affected families and communities.</p></li>
</ol>
<p>As investigative journalist Allan Clarke <a href="https://www.abc.net.au/news/2020-06-28/covering-black-deaths-in-australia-led-me-to-a-breakdown/12390416">says</a>:</p>
<blockquote>
<p>Australia, we can do better and we must do better.</p>
</blockquote>
<p><em>See <a href="https://jeraa.org.au/listen-reporting-black-lives-matters/">here</a> for resources and guides for what we as journalists can do.</em></p><img src="https://counter.theconversation.com/content/161412/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bonita Mason does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>George Floyd’s death and the US Black Lives Matter movement sparked extensive media attention. Why aren’t Australian Indigenous deaths in custody getting the same amount of media coverage?Bonita Mason, Senior Lecturer in Journalism, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1581312021-05-20T04:38:36Z2021-05-20T04:38:36ZComprehensive Indigenous health care in prisons requires federal funding of community-controlled services<figure><img src="https://images.theconversation.com/files/398225/original/file-20210502-21-ltaw9c.jpg?ixlib=rb-1.1.0&rect=71%2C369%2C9333%2C5947&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Prisons need to improve services for chronic conditions, mental health, and palliative care.</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/">Andrew Mercer/ Wikimedia</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p><a href="https://apo.org.au/node/30017">The Royal Commission into Aboriginal Deaths in Custody Report</a> made over 200 directives about improving the health of people in prisons in its 339 recommendations in 1991. One of these recommendations included additional funding to provide better health services for Aboriginal and Torres Strait Islander people in prison. </p>
<p>Aboriginal and Torres Strait Islander people are over-represented in prisons. They are <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/prisoners-australia/latest-release">15.6 times more likely to be incarcerated than non-Indigenous Australians</a>.</p>
<p>Yet, there are virtually <a href="https://www.racgp.org.au/running-a-practice/practice-standards/standards-for-other-health-care-settings/health-services-in-australian-prisons">no staff skilled in engaging with cultural protocols</a> in health services in prisons. And current policies and procedures do little to extend cultural care to families when the death of an Aboriginal or Torres Strait Islander person in prison has occurred. </p>
<p>The royal commission and the United Nations recommend people in prisons have access to health care equivalent to what is available in the community. However, the system is still strained, as the multiple deaths of Aboriginal people in custody in recent months, <a href="https://indigenousx.com.au/daily-reporting-wayne-fella-morrison-inquest/">inquests</a> revealing gaps in health care, and a <a href="https://www.parliament.nsw.gov.au/la/papers/Pages/tabled-paper-details.aspx?pk=79426">health report tabled to NSW Parliament</a> make clear. </p>
<p><a href="https://apo.org.au/node/311817">A critique of the royal commission’s implementation of recommendations</a> also highlights several areas for urgent attention.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/heres-why-the-planned-ndis-reforms-discriminate-against-aboriginal-and-torres-strait-islander-people-160183">Here's why the planned NDIS reforms discriminate against Aboriginal and Torres Strait Islander people</a>
</strong>
</em>
</p>
<hr>
<h2>National frameworks silent on prisoner health</h2>
<p>The restructure of prisoner health care from state correctional services to state health departments in the last two decades in most Australian jurisdictions has been touted as one positive reform after the royal commission. </p>
<p>But it failed to recognise that state health departments make miniscule allocations to health care for Aboriginal and Torres Strait Islander people – the commonwealth largely has responsibility for this.</p>
<p>And because prisons fall under state and territory responsibility, prison health is also rarely mentioned in national frameworks. <a href="https://www.health.gov.au/resources/publications/national-strategic-framework-for-chronic-conditions">The National Strategic Framework for Chronic Conditions</a> makes no mention of prisons, despite people in prison disproportionately experiencing chronic conditions.</p>
<p>The <a href="https://www1.health.gov.au/internet/main/publishing.nsf/Content/natsih-plan">National Aboriginal and Torres Strait Islander Health Plan</a> acknowledges the over-representation of Aboriginal and Torres Strait Islander people in prison and their greater risk of suicide and drug overdose after being released, but it offers no leadership on state and territory action.</p>
<p>The recent inclusion of a justice target in the <a href="https://apo.org.au/node/311463">Closing the Gap framework</a> is likewise not focused on improving health services in prisons. It only aims to reduce Indigenous adult prison numbers by 15% and youth detention by 30%. </p>
<p>Currently, over 140 Aboriginal and Torres Strait Islander community-controlled health organisations operate across Australia, with membership to the <a href="https://www.naccho.org.au/">National Aboriginal Community Controlled Health Organisation</a>. </p>
<p>Data indicate Aboriginal and Torres Strait Islander people have low levels of access to mainstream government services compared to community-controlled health services. These health services are also allocated <a href="https://www.researchgate.net/publication/283728861_Indigenous_health_expenditure_deficits_obscured_in_Closing_the_Gap_reports">disproportionately less funding</a> than mainstream services.</p>
<p>And since the royal commission, there have been few funding schemes to support these health services to work in or with prisons. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-families-of-indigenous-people-who-die-in-custody-need-a-say-in-what-happens-next-159127">The families of Indigenous people who die in custody need a say in what happens next</a>
</strong>
</em>
</p>
<hr>
<h2>Indigenous health care barriers in prisons</h2>
<p>There are other barriers to Aboriginal and Torres Strait Islander people receiving adequate health care in prison settings.</p>
<p>Prison health organisations <a href="https://www.researchgate.net/publication/349283966_Strengthening_Indigenous_Australian_Perspectives_in_Allied_Health_Education_A_Critical_Reflection">rarely meet Aboriginal and Torres Strait Islander staff targets</a>, or retain them in leadership roles. Members of the prison workforce have often acknowledged they “need cultural competence training”. </p>
<p>It is little wonder Aboriginal and Torres Strait Islander people <a href="https://vimeo.com/431642089">report frequent experiences of racism in mainstream services</a>.</p>
<p>Aboriginal and Torres Strait Islander health services also rely on fee-for-service income via payments from Medicare. But prisoners do not have access to Medicare. </p>
<p>As Professor Peter O’Mara, the chair of the Royal Australasian College of General Practitioners Aboriginal and Torres Strait Islander Health Council, <a href="https://www1.racgp.org.au/newsgp/clinical/expert-backs-racgp-calls-for-access-to-specific-me">explains</a>, </p>
<blockquote>
<p>If you’re a prisoner, you lose your right to Medicare. That means if an Aboriginal health service wants to provide support, they can’t bill Medicare.</p>
</blockquote>
<p>This essentially locks Aboriginal and Torres Strait Islander community-controlled health services out of delivering health care in prisons. A change has repeatedly been sought, but has not occurred.</p>
<p>In addition, prisons face new challenges due to Australia’s ageing prisoner population. Research highlights a <a href="https://journals.sagepub.com/doi/10.1177/1039856219891525">long-term shortage of mental health clinicians in prisons</a>. Palliative care specialists and nurses with palliative care training are <a href="https://www.caresearch.com.au/caresearch/TabId/3781/ArtMID/6000/ArticleID/1686/National-Palliative-Care-in-Prison-PiP-Project.aspx">almost entirely missing</a>.</p>
<h2>Aboriginal community-controlled organisations in prisons</h2>
<p>Reducing the over-representation of Aboriginal and Torres Strait Islander people in prisons is one part of addressing health inequity. </p>
<p>Another is improving people’s overall health and wellbeing in the community, which could potentially reduce their contact with the criminal justice system. Recommendation 188 of the royal commission said the self-determination of Aboriginal and Torres Strait Islander people is key to this.</p>
<p>The royal commission also outlined how Aboriginal health services could deliver self-determined improvements in prison health services. </p>
<p>It recommended governments invite Aboriginal health services to deliver care in areas where they already operate, or where Indigenous people are particularly over-represented in the prison population. That hasn’t happened.</p>
<p>The royal commission also recommended Aboriginal health services be included in health planning decisions, including:</p>
<ul>
<li><p>recommendations 127 and 252: examining delivery of medical services to people in police custody and hospitals</p></li>
<li><p>recommendation 152: assisting with reviews and guiding prison health standards, including on cultural matters</p></li>
<li><p>recommendations 154 and 133: training prison health staff and police</p></li>
<li><p>recommendation 265: integrating Aboriginal health care with mental health and psychiatry</p></li>
<li><p>recommendation 283: operating early intervention programs to reduce the numbers of Indigenous people incarcerated</p></li>
</ul>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/400888/original/file-20210516-23-o8n0q9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A person applying pressure to their arm where blood was taken." src="https://images.theconversation.com/files/400888/original/file-20210516-23-o8n0q9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/400888/original/file-20210516-23-o8n0q9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=335&fit=crop&dpr=1 600w, https://images.theconversation.com/files/400888/original/file-20210516-23-o8n0q9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=335&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/400888/original/file-20210516-23-o8n0q9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=335&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/400888/original/file-20210516-23-o8n0q9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=421&fit=crop&dpr=1 754w, https://images.theconversation.com/files/400888/original/file-20210516-23-o8n0q9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=421&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/400888/original/file-20210516-23-o8n0q9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=421&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The National Strategic Framework for Chronic Conditions makes no mention of prisons, despite people in prison disproportionately experiencing chronic conditions.</span>
<span class="attribution"><a class="source" href="http://www.unsplash.com/">nguy n hi p ufwC cmbaaI unsplash</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<h2>Prisons need culturally safe care</h2>
<p>I’ve come to know an Aboriginal family whose loved one was diagnosed with a terminal illness in prison. The process for his release was under way, but there were gaps in communications and decisions between prison officials and his family. </p>
<p>He was so immobile and frail it was hard to believe he was still ultimately seen as a threat to community safety. He died alone in prison, despite his family having community-based end-of-life care arrangements approved on the traditional Country of his ancestors, according to their protocols. </p>
<p>His case notes were minimal, and there was no evidence of cultural care. The autopsy report still causes major confusion and trauma for his family, and they have had no support. </p>
<p>The family has lost all trust for governments, who they believe <a href="https://www.aihw.gov.au/reports/indigenous-australians/cultural-safety-health-care-framework/contents/background-material">betrayed their own policies</a> about culturally safe care.</p>
<p>This case illustrates why Aboriginal people with health issues should be diverted from police custody into health services where possible. This is vital because so many deaths in custody have been as a result of preventable health issues. </p>
<p>A nationally coordinated scheme is also required that funds prisons to work with Aboriginal and Torres Strait Islander community-controlled health services. These services could also provide relevant data in health planning for prisons. </p>
<p>The federal government must lead change; it is not interference in state and territory criminal justice systems when the focus is on Aboriginal and Torres Strait Islander people’s health and wellbeing.</p><img src="https://counter.theconversation.com/content/158131/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Megan Williams receives funding from the Medical Research Futures Fund, the National Health and Medical Research Council, the NSW Aboriginal Land Council, Cancer Australia and Commonwealth Health. She is affiliated with Croakey.org and Deadly Connections. </span></em></p>Despite the disproportionate numbers of Aboriginal people in prisons, there are near to no cultural protocols in place, and chronic illness is often not addressed.Megan Williams, Associate Professor, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1591272021-04-28T02:15:09Z2021-04-28T02:15:09ZThe families of Indigenous people who die in custody need a say in what happens next<figure><img src="https://images.theconversation.com/files/396955/original/file-20210426-15-d8erbh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Many of the royal commission's recommendations concerning families primarily regard the circumstances of their loved one's death rather than inclusion in decision-making processes.</span> <span class="attribution"><span class="source">Supplied by Latoya Aroha Rule</span>, <span class="license">Author provided</span></span></figcaption></figure><p>Aboriginal and Torres Strait Islander deaths in custody are often given as statistics. But behind those numbers are real people and an indescribable impact on the families and communities who loved them. They are the strongest advocates for those who have died in custody, and in reform of the system.</p>
<p>The 1991 Royal Commission into Aboriginal Deaths in Custody <a href="https://apo.org.au/node/30017">report</a> — whose 30th anniversary was observed on April 15 — makes recommendations that address the necessity of self-determination for Aboriginal families and communities. </p>
<p>However, acts of self-determination, such as calls for community-led changes to the justice system, have been ignored.</p>
<h2>Indigenous-led solutions</h2>
<p>Only a handful of the 339 recommendations of the royal commission relate to Aboriginal and Torres Strait Islander families and communities grieving a death in custody. </p>
<p>Many of these are concerned primarily with consultation between families and relevant authorities regarding the circumstances of their loved one’s death. Recommendation 188 of the royal commission’s report requested:</p>
<blockquote>
<p>that governments negotiate with appropriate Aboriginal organisations and communities to determine guidelines as to the procedures and processes which should be followed to ensure that the self-determination principle is applied in the design and implementation of any policy or program or the substantial modification of any policy or program which will particularly affect Aboriginal people.</p>
</blockquote>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/not-criminals-or-passive-victims-media-need-to-reframe-their-representation-of-aboriginal-deaths-in-custody-158561">Not criminals or passive victims: media need to reframe their representation of Aboriginal deaths in custody</a>
</strong>
</em>
</p>
<hr>
<p>Despite this, and the ongoing leadership Aboriginal and Torres Strait Islander families have shown, families continue to report their frustration with a lack of consultation by governments. This was exemplified recently by Prime Minister Scott Morrison refusing to see the families of <a href="https://www.theguardian.com/australia-news/2021/mar/14/when-will-we-have-peace-grief-and-outrage-at-three-indigenous-deaths-in-custody-in-a-week">people who died in custody</a>. </p>
<p>Calls from the community and their allies for the government to meet with Aboriginal and Torres Strait Islander families have become louder. One example is the recent open letter by 15 families working in conjunction with the National Aboriginal Torres Strait Islander Legal Service. </p>
<p><a href="https://www.natsils.org.au/wp-content/uploads/2021/04/Media-Release-Families-National-Day-of-Action.docx.pdf">In this document</a>, they outline ten goals to address the deaths of Aboriginal and Torres Strait Islander people in custody. These include reallocating public funds away from violent punitive policies including prisons (especially for-profit prisons) and focusing on Aboriginal and Torres Strait Islander-led, grassroots solutions.</p>
<h2>A history of families fighting for justice</h2>
<p>The royal commission itself was the result of continual campaigning by the families of those who died in custody and the Aboriginal and Torres Strait Islander community. </p>
<p>The Dixon family in Adelaide, led by Kaurna mother and grandmother, the late Alice Dixon, were among the families to call for systemic change. In July 1987, Ms Dixon <a href="https://www.abc.net.au/news/2020-06-06/indigenous-deaths-in-custody-problem-despite-royal-commission/12325286#:%7E:text=In%20July%201987%2C%20the%20untimely,for%20all%20the%20wrong%20reasons.&text=He%20was%20found%20dead%20in,custody%20in%20that%20year%20alone.">lost her 19-year-old son, Kingsley Dixon</a>, whose case was one of the 99 deaths investigated by the royal commission. </p>
<p>After her son’s death, Ms Dixon joined the National Committee to Defend Black Rights, established in 1983 by Helen Corbett, a Yinggarda and Bibbulman woman. Together Ms Dixon, Ms Corbett, and others from the national committee spoke at the United Nations on human rights and justice for Aboriginal and Torres Strait Islander people. </p>
<p>It is because of their efforts and the strategic calls of many other families the government was forced to establish the royal commission in 1987.</p>
<p>Over time, more Aboriginal and Torres Strait Islander families experienced the tragic deaths of their loved ones at the hands of police and prison officers. Communities like Redfern continued to organise against the police brutality of young Black people, such as <a href="https://www.abc.net.au/news/2014-02-14/tj-hickey-death-tenth-anniversary-march/5258958">17-year-old TJ Hickey</a>, who died following a police pursuit in 2004. </p>
<p>Their resistance contributed to the establishment of Aboriginal and Torres Strait Islander-led justice programs and reflected the strong will of the community to govern their own affairs.</p>
<p>In October 2016, the first of the Australian Black Lives Matter rallies against Aboriginal deaths in custody was organised in <a href="https://time.com/5853380/george-floyd-australia-aboriginal-deaths/">Adelaide on the steps of the South Australian parliament</a>. The national rallies were sparked by the death of Wayne Fella Morrison a month earlier. Morrison died in the Royal Adelaide Hospital as a remandee after being restrained by multiple South Australian correctional officers with a <a href="https://search.informit.org/doi/10.3316/informit.035911440431138">spithood and flexicuffs</a>. </p>
<p>Warriors of the Aboriginal Resistance, an Aboriginal activism group, brought together families of those who had died in custody, those who were calling for the release of their loved ones and those who had suffered through state-sanctioned brutality themselves — including police shootings — and lived to share their stories.</p>
<p>By June 2020, following the death of George Floyd in the US, there was increased momentum in the Black Lives Matter movement across Australia, with rallies attracting hundreds of thousands of supporters. </p>
<p>Throughout this time, the families of many others, including David Dungay Jr, Nathan Reynolds, Tanya Day, Tane Chatfield and Sherry Fisher have continued advocating for justice in their cases and for systemic transformation.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-backlash-against-black-lives-matter-is-just-more-evidence-of-injustice-85587">The backlash against Black Lives Matter is just more evidence of injustice</a>
</strong>
</em>
</p>
<hr>
<h2>Advancing ‘Blak space’</h2>
<p>Ngāti Awa and Ngāti Porou iwi woman Linda Tuhiwai Smith, professor of Indigenous education at University of Waikato, <a href="https://nycstandswithstandingrock.files.wordpress.com/2016/10/linda-tuhiwai-smith-decolonizing-methodologies-research-and-indigenous-peoples.pdf">explains</a> </p>
<blockquote>
<p>imperialism and colonialism are the specific formations through which the west came to ‘see’, to ‘name’ and to ‘know’ Indigenous communities.</p>
</blockquote>
<p>If Aboriginal and Torres Strait Islander people are seen as empowered, self-determining experts, this inherently disrupts the perception they need to be governed by external bodies.</p>
<p>Mx Rule, the sibling of Wayne Fella Morrison, brings an important standpoint to their research and advocacy in this area. They conceptualise what they and many other Aboriginal people work to open up through resistance to police and corrections violence, particularly as family members of those who have passed in custody. They name this “Blak space”, </p>
<blockquote>
<p>where Aboriginal people exist, survive and thrive. It is itself counter-discourse of Aboriginal peoples as displaced; non-belonging; non-sovereign</p>
</blockquote>
<p>The articulation and analysis of “Blak space” is something Mx Rule is continuing to develop through their doctoral studies at the University of Technology Sydney.</p>
<p>When will families be heard as constituents with long-standing experience and solutions to ending the deaths of community members in custody? </p>
<p>The role of government in supporting self-determination efforts by Aboriginal and Torres Strait Islander families toward ending deaths in custody continues to be an important aspect of inquiry. Especially because Aboriginal and Torres Strait Islander people are dying more frequently now than at the time of the royal commission.</p>
<p>However, the labour of thousands of Aboriginal and Torres Strait Islander families continues to be denied. The state refuses to provide space to Aboriginal and Torres Strait Islander people - to grieve, heal, organise, advocate and overcome.</p>
<p>Much lip service is given to the idea of self-determination, especially by government. It is not enough. </p>
<p>Instead, self-determination needs to be conceptualised as “Blak space”, a place where the voices of Aboriginal and Torres Strait Islander people are central and privileged for their lived experience and knowledge. </p>
<p>The families of those who have died in custody, and the communities who are supporting them, need to be at the table. It is time for governments to listen.</p><img src="https://counter.theconversation.com/content/159127/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Larissa Behrendt receives funding from The Australian Research Council. </span></em></p><p class="fine-print"><em><span>Latoya Aroha Rule does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The government continues to refuse collaboration with Aboriginal and Torres Strait Islander families on addressing Aboriginal deaths in custody.Latoya Aroha Rule, PhD Candidate, University of Technology SydneyLarissa Behrendt, Professor of Law and Director of Research, Jumbunna Indigenous House of Learning, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1592312021-04-20T20:10:53Z2021-04-20T20:10:53ZWe studied 50 years of royal commissions — here’s how they make a difference<figure><img src="https://images.theconversation.com/files/395936/original/file-20210420-21-ijbbub.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Joel Carrett/AAP</span></span></figcaption></figure><p>On Monday, Scott Morrison <a href="https://www.9news.com.au/national/scott-morrison-announces-royal-commission-into-death-by-suicide-for-veterans/a03ee04a-1600-4cc0-a9e8-97804c45ce0f">announced</a> a royal commission into veteran suicides — the fourth royal commission set up under his prime ministership.</p>
<p>But while Morrison says he hopes this will be a “<a href="https://www.abc.net.au/news/2021-04-19/australian-veteran-suicide-government-announces-royal-commission/100078292">healing process</a>” and it comes after sustained community lobbying, we know royal commissions don’t always fix problems. </p>
<p>Only last week, we marked <a href="https://www.abc.net.au/news/2021-04-15/deaths-in-custody-30-years-since-royal-commission/100068872">30 years</a> since the 1991 Royal Commission into Aboriginal Deaths in Custody. Far from a celebration, much of the commentary about the anniversary has emphasised the <a href="https://theconversation.com/indigenous-deaths-in-custody-inquests-can-be-sites-of-justice-or-administrative-violence-158126">lack of progress</a> since the commission’s final report.</p>
<p>We have a long tradition of royal commissions in Australia — dating back before federation. And their powers and capabilities for scrutinising evidence mean they can have an impact for decades to come. But royal commissions can also fail to generate policy change. </p>
<p>In a <a href="https://onlinelibrary.wiley.com/doi/epdf/10.1111/1467-8500.12441">recent study</a>, we reviewed royal commissions from January 1970 to December 2019 to identify the factors that can increase policy influence. </p>
<p>We found royal commissions that had major influence used three key strategies: a clear and useful definition of the problem, working together with advocates, and making recommendations that can work in the real world. </p>
<h2>Framing the problem</h2>
<p>Policy problems — such as the quality of aged care or responses to disasters — are often extremely complex, with many different attributes. So framing exactly what the problem is and how the royal commission looks at it is important. </p>
<p>Another component here is the royal commission also needs to develop a compelling narrative around how to address the problem.</p>
<figure class="align-center ">
<img alt="Prime Minister Scott Morrison holding a copy of the aged care royal commission report." src="https://images.theconversation.com/files/395942/original/file-20210420-23-4a5s0r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/395942/original/file-20210420-23-4a5s0r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/395942/original/file-20210420-23-4a5s0r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/395942/original/file-20210420-23-4a5s0r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/395942/original/file-20210420-23-4a5s0r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/395942/original/file-20210420-23-4a5s0r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/395942/original/file-20210420-23-4a5s0r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Royal commissions need to tell a story, both in terms of the problem it is addressing and how to fix it.</span>
<span class="attribution"><span class="source">Dean Lewins/AAP</span></span>
</figcaption>
</figure>
<p>For example, the Aboriginal Land Rights Commission was established by the Whitlam government in 1973. In the <a href="https://apo.org.au/node/36136">final report</a>, commissioner Edward Woodward framed his land rights recommendations as the natural progression of an earlier commitment that needed to be honoured by Australia — rather than a radical break from existing policy. The historic <a href="https://www.nma.gov.au/defining-moments/resources/aboriginal-land-rights-act">Aboriginal Land Rights (NT) Bill 1976</a> followed on from these recommendations. </p>
<p>Here, Woodward successfully defined a potentially political problem as a practical issue with a natural fix. </p>
<h2>Building a support base</h2>
<p>Although members of royal commissions cannot be expected to establish or lead social movements, they do have opportunities to engage with stakeholders, advocates and policymakers. If they do this well, they will have a ready-made coalition of experts and interested parties to support the implementation of the report recommendations. </p>
<p>This also makes it much harder for governments to ignore important recommendations. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/next-months-federal-budget-is-the-time-to-stop-talking-about-aged-care-and-start-fixing-it-158951">Next month’s federal budget is the time to stop talking about aged care and start fixing it</a>
</strong>
</em>
</p>
<hr>
<p>An example is provided by the 2009 <a href="http://royalcommission.vic.gov.au/Commission-Reports/Final-Report.html">Victorian Bushfires Royal Commission</a>. Here, the royal commission kept the affected communities and broader public engaged and involved, holding 26 community consultations and 55 days of hearings that were live-streamed and open to the public and media. It then developed its recommendations reflecting the theme of ongoing shared responsibility. Among the commissioners, there was <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1467-8500.2010.00702.x">similar importance</a> placed on cohesion.</p>
<p>As a result, the government of Victoria accepted all but one of the recommendations and committed more than <a href="https://www.cfa.vic.gov.au/documents/20143/202133/royal_commission_implementation_plan.pdf/fbe16664-6aad-985f-0964-b1b922b58384">A$900 million</a> to implement them. </p>
<h2>Looking ahead to implementation</h2>
<p>Policy change needs recommendations that are feasible and politically acceptable. </p>
<p>The final report of the <a href="https://www.childabuseroyalcommission.gov.au">child abuse royal commission</a> made 409 recommendations in 2017. These recommendations were directed at Commonwealth and state governments, but also at institutions such as churches, schools, local governments, and the criminal justice system.</p>
<p>Since then, the commission has been regarded as having a strong and ongoing impact — for example, the National Redress Scheme is <a href="https://www.nationalredress.gov.au">securing compensation</a> for victim-survivors. The federal government also <a href="https://www.childabuseroyalcommissionresponse.gov.au">reports annually</a> on progress.</p>
<figure class="align-center ">
<img alt="Commissioners at the final hearing of the child abuse royal commission." src="https://images.theconversation.com/files/395944/original/file-20210420-21-1gswx2m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/395944/original/file-20210420-21-1gswx2m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=402&fit=crop&dpr=1 600w, https://images.theconversation.com/files/395944/original/file-20210420-21-1gswx2m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=402&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/395944/original/file-20210420-21-1gswx2m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=402&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/395944/original/file-20210420-21-1gswx2m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=505&fit=crop&dpr=1 754w, https://images.theconversation.com/files/395944/original/file-20210420-21-1gswx2m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=505&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/395944/original/file-20210420-21-1gswx2m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=505&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Australia has seen more than 130 royal commissions since 1970.</span>
<span class="attribution"><span class="source">Royal commission/ AAP</span></span>
</figcaption>
</figure>
<p>This can be attributed to the commissioners’ careful planning and their efforts to strike a balance between what needed to be done and what was politically feasible. For example, they held a series of review hearings that followed up with institutions to assess what, if any, measures had been taken since the initial hearings. This allowed them to avoid duplicating recommendations and provided a chance to reflect on previous suggestions. </p>
<p>In an example of what to avoid, the <a href="https://agedcare.royalcommission.gov.au">aged care royal commission</a> made 148 wide-ranging recommendations for the fundamental reform of the aged care system. However, the commissioners disagreed on a number of recommendations and this undermines their influence. It also gives governments far more leeway to adopt policies that suit them, and ignore those that don’t.</p>
<h2>No guarantees</h2>
<p>As the federal government moves to set up a new royal commission, our research shows royal commissions can have significant policy influence. But this is not guaranteed. </p>
<p>Royal commissions have long served as vital contributors to policy-making and continue to serve a significant role. So it is extremely important those who lead them and those who observe them appreciate the strategies they can use to raise the odds they will leave enduring legacies of public value.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/one-veteran-on-average-dies-by-suicide-every-2-weeks-this-is-what-a-royal-commission-needs-to-look-at-157582">One veteran on average dies by suicide every 2 weeks. This is what a royal commission needs to look at</a>
</strong>
</em>
</p>
<hr>
<img src="https://counter.theconversation.com/content/159231/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>We have a long tradition of royal commissions in Australia — dating back to before federation. But we know from bitter experience they can fail to generate change.Michael Mintrom, Professor, Monash UniversityDeirdre O'Neill, Associate Professor, School of Social Sciences, Monash UniversityRuby O'Connor, Research Officer, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1585612021-04-20T02:35:03Z2021-04-20T02:35:03ZNot criminals or passive victims: media need to reframe their representation of Aboriginal deaths in custody<p><em>Cultural warning: This article contains names and images of deceased Aboriginal and Torres Strait Islander people. This article also contains links to graphic footage of police violence.</em></p>
<p>This month marks 30 years since the <a href="https://apo.org.au/node/30017">final report of the Royal Commission into Aboriginal Deaths in Custody</a>. The report consists of five volumes, several regional reports and 339 recommendations. It included 99 individual death reports of Aboriginal deaths in custody that occurred between January 1 1980 and May 31 1989. </p>
<p>Numbers 205-208 of these recommendations address ethical ways the media should report on Aboriginal affairs. The way Aboriginal deaths in custody are reported can cause distress for affected families and communities, and fuel racial biases and prejudices among non-Indigenous Australians.</p>
<p>The Black Lives Matter movement has highlighted the media’s <a href="https://theconversation.com/the-black-lives-matter-movement-has-provoked-a-cultural-reckoning-about-how-black-stories-are-told-149544">tendency to frame Indigenous stories through a deficit lens</a>. However, misrepresentation of Indigenous people in the media also has potential to influence acts of harm. As the National Inquiry into Racist Violence in Australia <a href="https://humanrights.gov.au/sites/default/files/document/publication/NIRV.pdf">was told</a> three decades ago, </p>
<blockquote>
<p>the media may generate a climate which provides legitimacy for racist violence.</p>
</blockquote>
<p>Earlier this month, <a href="https://www.smh.com.au/national/thirty-years-on-from-the-royal-commission-let-s-set-the-record-straight-on-deaths-in-custody-20210405-p57gp8.html">the Sydney Morning Herald published an article</a> by commentator Anthony Dillon. It illustrated how prevalent misinformation and inaccuracies still are in the way the media discuss Aboriginal deaths in custody. </p>
<h2>Myth: Aboriginal deaths in custody rates are not high</h2>
<p>Some in the media tend to downplay the rate at which Indigenous people are dying in custody. Examples of this include Dillon taking issue with Senator Pat Dodson’s characterisation of Aboriginal deaths in custody as a “festering crisis.” Another is Herald Sun columnist Andrew Bolt stating Aboriginal deaths in custody claims are “<a href="https://www.heraldsun.com.au/news/opinion/andrew-bolt/andrew-bolt-menacing-abc-playing-with-the-fires-of-race-resentment/news-story/8a654702735c8a95fa0a065255696ae1">wildly exaggerated</a>”.</p>
<p>The reality is the rate of Aboriginal deaths in custody remains a source of national shame, with <a href="https://www.theguardian.com/australia-news/2021/apr/09/the-474-deaths-inside-rising-number-of-indigenous-deaths-in-custody-revealed">474 deaths</a> since the Royal Commission into Aboriginal Deaths in Custody handed down its final report in 1991. </p>
<p>Aboriginal and Torres Strait Islander people are also <a href="https://theconversation.com/factcheck-qanda-are-indigenous-australians-the-most-incarcerated-people-on-earth-78528">among</a> the <a href="https://www.booktopia.com.au/arresting-incarceration-don-weatherburn/book/9781922059550.html">most incarcerated people in the world</a>. </p>
<p>This is especially true for Aboriginal people in <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/corrective-services-australia/latest-release">Western Australia and the Northern Territory</a>. Aboriginal people make up <a href="https://arena.org.au/the-aboriginal-gulag-the-northern-territory-criminal-legal-system/">over 85% of the NT’s prison population</a> and <a href="https://justice.nt.gov.au/__data/assets/pdf_file/0004/599107/2016-17-ntcs-annual-statistics.pdf">90% of police detention</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/indigenous-deaths-in-custody-inquests-can-be-sites-of-justice-or-administrative-violence-158126">Indigenous deaths in custody: inquests can be sites of justice or administrative violence</a>
</strong>
</em>
</p>
<hr>
<h2>Myth: Aboriginal people die in custody ‘due to natural causes’</h2>
<p>In his piece, Dillon argues the majority of Aboriginal deaths in custody are “due to natural causes”.</p>
<p>The term “natural causes” is deeply political. It is a term used to mitigate the responsibility of police and corrections staff for deaths in custody.</p>
<p>Some prominent examples of this:</p>
<ul>
<li><p>the Derek Chauvin trial in the United States. Police officer Chauvin’s legal team stated George Floyd did not die because <a href="https://www.nytimes.com/video/us/100000007159353/george-floyd-arrest-death-video.html">Chauvin pressed his knee on his neck for eight minutes</a>. Instead, they argued, Floyd died because <a href="https://www.baltimoresun.com/news/nation-world/ct-aud-nw-derek-chauvin-trial-20210405-keezas2utbex7gizyo2otpwxsm-story.html">he used drugs and had preexisting medical conditions causing his heart to fail</a></p></li>
<li><p><a href="https://www.smh.com.au/national/aboriginal-man-david-dungay-hills-death-in-custody-suspicious-family-20160119-gm95o7.html">a NSW corrections official claiming</a> that 26-year-old Dunghutti man David Dungay Jr. died of natural causes. Mr. Dungay death was captured on <a href="https://www.theguardian.com/australia-news/2018/jul/16/david-dungay-inquest-told-inadequate-resuscitation-may-have-contributed-to-death">CCTV footage</a>, depicting five officers restraining him while he said 12 times, “I can’t breathe”</p></li>
<li><p>the death of 36-year-old Nathan Reynolds, who suffered an acute asthma attack in a prison cell which a coronial inquest found was due to <a href="https://www.sbs.com.au/nitv/article/2021/03/11/confused-uncoordinated-delayed-coroner-finds-failures-contributed-nathan-reynolds">the failure of correctional staff to adequately respond to a medical emergency</a></p></li>
<li><p>the death of 29-year-old Wayne Fella Morrison, whose <a href="https://www.theguardian.com/australia-news/2018/aug/27/indigenous-prisoner-restrained-by-14-officers-before-death-in-custody-footage-shows">death due to positional asphyxia</a> was captured on CCTV footage</p></li>
</ul>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/four-aboriginal-deaths-in-custody-in-three-weeks-is-defunding-police-the-answer-157879">Four Aboriginal deaths in custody in three weeks: is defunding police the answer?</a>
</strong>
</em>
</p>
<hr>
<h2>Myth: Aboriginal people are less likely to die in custody than non-Indigenous people</h2>
<p>The royal commission found Aboriginal people do not die at a greater overall rate than non-Indigenous people in custody. </p>
<p>However, it makes an important distinction, saying Aboriginal people die in custody at a <a href="http://classic.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol1/12.html">significant rate comparable to their proportion of the whole population</a>. </p>
<p>The report goes on to say this occurs not because Aboriginal people in custody are more likely to die, but because they are incarcerated more frequently.</p>
<h2>Myth: there is no evidence of mistreatment or racism towards Aboriginal people by police or corrections staff</h2>
<p>There is plenty of video evidence to demonstrate a pattern of excessive violence and unnecessary force when police arrest Aboriginal people. For example:</p>
<ul>
<li><p>a NSW police officer <a href="https://www.abc.net.au/news/2020-10-21/footage-shows-police-officer-assaulting-indigenous-man-custody/12797886">assaulted an Indigenous man in custody</a> at Goulburn Police Station last year</p></li>
<li><p>a 16-year-old Indigenous boy <a href="https://www.theguardian.com/australia-news/2021/jan/20/enough-is-enough-video-of-police-slamming-indigenous-boy-face-first-to-ground-rekindles-fathers-rage">was assaulted by police</a> during an arrest last year in NSW</p></li>
<li><p>an Aboriginal teenager <a href="https://www.abc.net.au/triplej/programs/hack/nsw-police-slammed-following-callous-arrest/13286724">was dragged across the pavement while experiencing an anxiety attack</a> in Sydney this year.</p></li>
</ul>
<p>There have been numerous investigations into mistreatment and racism towards Indigenous people, such as <a href="https://humanrights.gov.au/sites/default/files/document/publication/NIRV.pdf">national inquest on racist violence</a> and a coronial inquest into unconscious racism playing a role in the <a href="https://www.abc.net.au/radionational/programs/lawreport/day-and-williams-inquests-find-unconscious-racism/12839116">death of Aunty Tanya Day</a>. </p>
<p>And many other reports and studies such as:</p>
<ul>
<li><p>Larissa Behrendt’s [reporting] and <a href="https://www.abc.net.au/radio/programs/speakingout/speaking-out/12979974">research</a> on state violence and harm toward Indigenous people </p></li>
<li><p>Alison Whittaker’s research on <a href="https://www.abc.net.au/radionational/programs/awaye/12362310">race and the language of coronial inquests</a></p></li>
<li><p>Amy McQuire and Martin Hodgson’s sustained reporting on the <a href="https://curtainthepodcast.wordpress.com/">violence of prisons and policing</a>. </p></li>
</ul>
<h2>These myths and further misinformation cause harm</h2>
<p>Misinformation about deaths in custody has the potential to retraumatise the families and communities of people who have died in custody. Bereaved families often have to live through the pain of losing loved ones knowing they were innocent, <a href="https://www.coronerscourt.wa.gov.au/I/inquest_into_the_death_of_ms_dhu.aspx">did nothing wrong</a> and in some cases <a href="https://coronial.com/Rebecca-Maher/">should never have been arrested</a>. </p>
<p>This grief is compounded by the knowledge that many of these deaths were preventable, and there is little chance anyone <a href="https://www.thesaturdaypaper.com.au/news/law-crime/2020/06/06/there-cannot-be-432-victims-and-no-perpetrators/15913656009926">will be held accountable for them</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/kumanjayi-walker-murder-trial-will-be-a-first-in-nt-for-an-indigenous-death-in-custody-why-has-it-taken-so-long-148922">Kumanjayi Walker murder trial will be a first in NT for an Indigenous death in custody. Why has it taken so long?</a>
</strong>
</em>
</p>
<hr>
<p>Families and communities are also expected to carry the grief of losing someone in horrific circumstances. Examples include <a href="https://www.abc.net.au/news/2020-06-13/katherine-aboriginal-baby-death-nt-police-investigate/12349444">a baby dying</a> after her mother was arrested and the baby separated from her, and an Elder <a href="https://www.sbs.com.au/nitv/nitv-news/article/2018/01/31/cooked-death-ten-years-after-shocking-death-custody-has-anything-changed">dying of heat stroke</a> after travelling in a prison van for four hours in 56 degree heat.</p>
<p>Recommendation 208 of the Royal Commission into Aboriginal Deaths in Custody says because Aboriginal people have been disappointed by the portrayal of Indigenous people in the media, media outlets should form relationships with Aboriginal organisations. The recommendation <a href="http://classic.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol5/5.html#Heading5">states</a>,</p>
<blockquote>
<p>The purpose of such contact should be the creation of a better understanding, on all sides, of issues relating to media treatment of Aboriginal affairs. </p>
</blockquote>
<p>Honest and ethical reporting on Aboriginal people is not being undertaken with <a href="https://www.smh.com.au/national/thirty-years-on-from-the-royal-commission-let-s-set-the-record-straight-on-deaths-in-custody-20210405-p57gp8.html">claims such as</a> this one by Dillon:</p>
<blockquote>
<p>simply diverting Aboriginal people from prison will only likely change where they die, given their poorer health status. </p>
</blockquote>
<p>And <a href="https://www.michellerowland.com.au/news/transcripts/transcript-sky-news-alan-jones-30-july-2020/">this statement</a>, by Sky News’ Alan Jones:</p>
<blockquote>
<p>Aboriginal Australians were far more likely to die at the hands of other Aboriginal Australians than at the hands of white people.</p>
</blockquote>
<p>These statement are plainly false and deeply unethical. There are <a href="https://www.deathscapes.org/case-studies/indigenous-femicide-and-the-killing-state-in-progress/">countless examples of Indigenous women and children</a> who have been the victim of violent crimes at the hands of non-Indigenous people.</p>
<p>33-year old Aboriginal woman Lynette Daley was <a href="https://independentaustralia.net/australia/australia-display/the-lynette-daley-story-a-failure-in-the-justice-system-for-indigenous-australians,13989">brutally murdered by non-Indigenous men Adrian Attwater and Paul Maris</a>.
A non-Indigenous man was under investigation for the death and molestation of <a href="https://www.theaustralian.com.au/subscribe/news/1/?offerset=ta_4for4_premium&sourceCode=TAWEB_WRE170_a_GGL&dest=https%3A%2F%2Fwww.theaustralian.com.au%2Fnation%2Fmothers-undying-fight-for-justice%2Fnews-story%2Fb01ee435a89d7ab1a65298f84b7c427e&memtype=anonymous&mode=premium&adobe_mc_sdid=SDID%3D66749BC65FB0357F-7001CF6DF4D89BBB%7CMCORGID%3D5FE61C8B533204850A490D4D%40AdobeOrg%7CTS%3D1618865015&adobe_mc_ref=https%3A%2F%2Fwww.google.com%2F">Mona-Lisa and Cindy Smith</a></p>
<p>Misinformed and insensitive reporting can cause additional pain for families and communities. It also spreads misinformation about Aboriginal people, fuelling racial prejudices, stereotypes and hatred towards Black people.</p>
<p>Rather than allowing victim and criminal narratives to dominate media representation of Aboriginal people, mainstream media outlets need to centre the work of <a href="https://dhadjowa.com.au/">families</a> and <a href="https://www.tangfamilyviolenceprevention.com.au/program/tangentyere-womens-family-safety-group">communities</a> who are doing the work to end Black deaths in custody.</p>
<p>The royal commission recommendations 205-208 were written for Australian media outlets. They require action and leadership from editors, journalists and managers. Journalists and editors would do well to read the recommendations and to act on them.</p><img src="https://counter.theconversation.com/content/158561/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Royal Commission into Aboriginal Deaths in Custody made recommendations to ensure ethical reporting of these deaths. Despite this, harmful and inaccurate reporting still abounds.Amanda Porter, Senior Fellow (Indigenous Programs), The University of MelbourneEddie Cubillo, Senior Fellow Indigenous Programs, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1581262021-04-14T20:10:15Z2021-04-14T20:10:15ZIndigenous deaths in custody: inquests can be sites of justice or administrative violence<p><em>Aboriginal and Torres Strait Islander readers are advised this article contains names and/or images of deceased people.</em></p>
<hr>
<p>Five Aboriginal people have died in custody <a href="https://www.theguardian.com/australia-news/2021/apr/09/the-facts-about-australias-rising-toll-of-indigenous-deaths-in-custody">in the last month</a> in Australia. </p>
<p>It’s been 30 years since the <a href="https://apo.org.au/node/30017">1991 Royal Commission into Aboriginal Deaths in Custody</a> examined 99 deaths between 1980 and 1989 and made over 30 recommendations into how deaths in custody should be investigated.</p>
<p>A government-commissioned <a href="https://www.niaa.gov.au/sites/default/files/publications/rciadic-review-report.pdf">review</a> of the royal commission’s recommendations declared many had been implemented — but critics <a href="https://www.theguardian.com/australia-news/2018/dec/20/indigenous-deaths-in-custody-report-largely-worthless-academics-say">reject</a> that characterisation as “misleadingly positive”.</p>
<p>On the ground, little has changed — <a href="https://www.theguardian.com/australia-news/2021/apr/09/the-474-deaths-inside-rising-number-of-indigenous-deaths-in-custody-revealed">474 Indigenous people have died in custody</a> since the report was handed down.</p>
<p><a href="https://www.sbs.com.au/nitv/article/2020/09/10/wayne-fella-morrison-damning-report-highlights-failures1">Wayne Fella Morrison</a> and <a href="https://www.smh.com.au/national/nsw/no-more-deaths-in-custody-family-speak-outside-danny-whitton-inquest-20210226-p57639.html">Danny Whitton</a> were babies when the royal commission conferred its report. <a href="https://www.theguardian.com/australia-news/2019/apr/15/its-time-for-this-to-stop-aboriginal-woman-dies-in-custody-20-years-after-her-father">Cherdeena Wynne</a> was not yet born. All died in custody and have inquests that are expected to sit later this year.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/kumanjayi-walker-murder-trial-will-be-a-first-in-nt-for-an-indigenous-death-in-custody-why-has-it-taken-so-long-148922">Kumanjayi Walker murder trial will be a first in NT for an Indigenous death in custody. Why has it taken so long?</a>
</strong>
</em>
</p>
<hr>
<h2>Deaths in custody and inquests</h2>
<p>The royal commission report issued 339 total recommendations aimed at preventing and addressing Aboriginal deaths in custody. </p>
<p>This included that families be involved at every stage of the inquest into a loved one’s death. Aboriginal families continue to drive that advocacy, including with the recent launch of the <a href="https://dhadjowa.com.au/">Dhadjowa Foundation</a>, which provides support to families whose loved ones have died in custody. </p>
<p>Every death in custody is mandatorily <a href="https://www.abc.net.au/news/2021-03-09/two-indigenous-deaths-in-custody-in-sydney-last-week/13229962">investigated</a> through a coroner to determine how and why it occurred. </p>
<p>Recent inquests over the past year have occurred after: </p>
<ul>
<li><p>two young Aboriginal men <a href="https://www.abc.net.au/news/2021-03-15/inquest-examines-swan-river-drowning-deaths-after-police-chase/13248502">died in the Swan River</a> in 2018 during a police chase</p></li>
<li><p>a 36-year-old Aboriginal man named <a href="https://www.theguardian.com/australia-news/2021/mar/11/aboriginal-man-died-from-asthma-attack-after-unreasonably-delayed-response-from-prison-staff">Nathan Reynolds</a> died in 2018 on a prison floor from an asthma attack (the NSW coroner found he was denied “at least some chance” of surviving due to an “unreasonably delayed” response from prison and health staff)</p></li>
<li><p>Yorta Yorta woman Aunty Tanya Day died in a prison cell; the inquest into her death was the first <a href="https://indigenousx.com.au/inquest-into-the-death-of-aunty-tanya-day-how-did-we-get-here/">to consider systemic racism</a></p></li>
</ul>
<p>So, how effective are these inquests in preventing future deaths in custody, or getting justice for those we have lost?</p>
<h2>Inquests can enable injustice</h2>
<p>Inquest processes have been criticised in some quarters as <a href="https://humanrights.gov.au/our-work/indigenous-deaths-custody-part-c-profiles-analysis">enabling injustice</a>. The royal commission <a href="https://humanrights.gov.au/our-work/indigenous-deaths-custody-part-c-profiles-analysis">found</a> inquests: </p>
<blockquote>
<p>merely reflected the inadequacies of perfunctory police investigations and did little more than formalise the conclusions of police investigators.</p>
</blockquote>
<p>In inquests, coroners are unable to suggest civil or criminal liability. They are also expected to rely on police and corrections personnel for their evidentiary briefs, while overseeing matters where police and corrections staff are parties with a stake in the case.</p>
<p>In some states, family statements at the end of an inquest are not considered evidence, but are reduced to commentary or personal information about the deceased. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-the-black-lives-matter-protests-must-continue-an-urgent-appeal-by-marcia-langton-143914">Why the Black Lives Matter protests must continue: an urgent appeal by Marcia Langton</a>
</strong>
</em>
</p>
<hr>
<p>While families can be closely involved in inquests, in many circumstances they cannot directly represent the legal interests of a person in the same way a custodial officer’s lawyer might. This is because they are represented as next of kin, not as representatives of legal interests outside the inquest. They are not given standing for some of the most critical parts of accountability-seeking.</p>
<p>Some families report being <a href="https://www.sbs.com.au/nitv/article/2019/11/21/david-dungay-inquest-coroner-finds-inadequate-medical-attention-main-factor-death1">sidelined</a> by court procedures when they want more than a memorialising role.</p>
<p>Despite the royal commission’s recommendation to investigate deaths in custody as potential homicides, the predominant narratives that now surround these deaths <a href="https://www.theguardian.com/commentisfree/2018/sep/07/dragged-like-a-dead-kangaroo-why-language-matters-for-deaths-in-custody">range from suicides to mysterious ill-health</a>. This is the case with Indigenous deaths in custody in <a href="https://utorontopress.com/us/dying-from-improvement-4">other countries</a>, as well.</p>
<p>An example of this is the initial investigation of the death of David Dungay Jr. The <a href="https://www.abc.net.au/news/2016-01-19/david-dungay-aboriginal-death-custody-family-wants-information/7098604">implication</a> that he died of natural causes in unsuspicious circumstances, despite him being pinned down until he was unconscious by five officers who ignored his panic about being unable to breathe, was <a href="https://www.abc.net.au/news/2016-01-19/david-dungay-aboriginal-death-custody-family-wants-information/7098604">rejected</a> by his family.</p>
<h2>A system that fails Indigenous people</h2>
<p><a href="https://lsj.com.au/articles/police-silence-and-aboriginal-deaths-in-custody/">Both weaknesses and the institutional design of the inquest system</a> continue to fail Indigenous people. Some of these today were not even in the realm of contemplation for the royal commission 30 years ago.</p>
<p>Take, for example, the case of a South Australian deputy coroner looking into the death of Wayne Fella Morrison. The Supreme Court has ruled the deputy coroner will not, as one media <a href="https://www.adelaidenow.com.au/truecrimeaustralia/police-courts/supreme-court-rules-that-deputy-coroner-jayne-basheer-did-not-infect-the-wayne-morrison-inquest-with-bias/news-story/979dd9eb6795256e4d352e9f4178cf93">report</a> put it, “be able to make a finding of misconduct against corrections staff who restrained him, or compel them to give evidence.”</p>
<p>This has potential to affect other inquests, and set a damaging precedent for other state agencies.</p>
<p>In the case of Ms Wynne, who died after losing consciousness while handcuffed, police have previously said <a href="https://www.theguardian.com/australia-news/2019/jun/10/family-of-aboriginal-woman-who-died-while-handcuffed-say-lack-of-answers-adds-to-grief">they did not consider her death</a> to be a “death in custody” and would not refer it to the coroner for the requisite inquest. </p>
<p>While the inquest is expected to proceed, establishing the obvious fact of a death in custody to get an inquest in the first place is a sizeable barrier that no family should have to face. The long-standing practice of mandatory referral risks being undermined by emboldened state agencies.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/despite-432-indigenous-deaths-in-custody-since-1991-no-one-has-ever-been-convicted-racist-silence-and-complicity-are-to-blame-139873">Despite 432 Indigenous deaths in custody since 1991, no one has ever been convicted. Racist silence and complicity are to blame</a>
</strong>
</em>
</p>
<hr>
<p>New tensions are also emerging in the role of coroners and when matters can be referred to prosecutors. At the time of the royal commission, coroners in some jurisdictions were able to directly set prosecutions in motion. Now, however, complex procedures and evidentiary thresholds govern when matters are referred to prosecutors to make that decision. </p>
<p>There has also been a <a href="https://www.lawreform.justice.nsw.gov.au/Documents/Current-projects/Court%20information/CP%20submissions/CI23.pdf">surge in the use of suppression and non-publication orders</a> in some jurisdictions, preventing evidence and names linked to an inquest or death in custody from being published.</p>
<p>Families of people who have died in custody are still pushing for <a href="https://theconversation.com/seeing-ms-dhu-how-photographs-argue-for-human-rights-69044">CCTV footage, audio and photos linked to loved ones’ deaths</a> to be released publicly, having seen their potential in exerting public pressure and truth-telling as alternative paths to justice. </p>
<h2>Inquests can be sites of justice or of administrative violence</h2>
<p>Inquests are central to the violence of deaths in custody. For some who lose their loved ones in custody, they are a site of justice and change; for many, they are a site of fresh administrative violence. </p>
<p>Communities and families continue to push for justice, despite the immovable barriers placed in their path and even when, 30 years on from the royal commission, accountability for any death in custody seems distant or almost impossible</p>
<hr>
<p><em>Update: The piece was amended to remove descriptions of one of the cases currently before an inquest.</em></p><img src="https://counter.theconversation.com/content/158126/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alison Whittaker does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Investigations and inquests that follow a death in custody can offer insight into what happened. But much work is still needed to make these processes transparent and effective.Alison Whittaker, Research Fellow, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1578792021-03-30T00:23:03Z2021-03-30T00:23:03ZFour Aboriginal deaths in custody in three weeks: is defunding police the answer?<p>In the lead-up to the 30th anniversary of the royal commission into Aboriginal deaths in custody report, there have been <a href="https://www.sbs.com.au/nitv/article/2021/03/25/barkindji-man-dies-after-police-chase-fourth-indigenous-death-custody-3-weeks">four Indigenous deaths in custody in three weeks</a>. </p>
<p>The royal commission report presented 339 recommendations to ensure the safety of First Nations people in custody. If all these recommendations had been implemented, there could have been lives spared, including perhaps these recent deaths in custody. </p>
<h2>Too many lives cut short</h2>
<p>The latest deaths bring the number of Aboriginal people who have died in custody since the royal commission to <a href="https://www.theguardian.com/australia-news/2021/mar/14/when-will-we-have-peace-grief-and-outrage-at-three-indigenous-deaths-in-custody-in-a-week">over 450</a>. </p>
<ul>
<li><p>On March 2, an <a href="https://www.theguardian.com/australia-news/2021/mar/09/nsw-had-two-indigenous-deaths-in-custody-last-week-parliament-told">Aboriginal man</a> in his mid-30s died in his cell at the hospital within Long Bay prison in NSW. However, there were many preexisting medical issues that may have contributed to his early death.</p></li>
<li><p>On March 5, at Silverwater Women’s Prison in NSW, an <a href="https://www.theguardian.com/australia-news/2021/mar/09/nsw-had-two-indigenous-deaths-in-custody-last-week-parliament-told">Aboriginal woman</a> in her mid-50s died in her cell. Peter Severin, Corrective Services Commissioner said he believed the woman had “killed herself”. </p></li>
<li><p>On March 7, in Victoria, an <a href="https://nit.com.au/third-indigenous-death-in-custody-in-one-week/">Aboriginal man</a> held in Ravenhall medium security prison died in custody. His death is being investigated, after Corrections Victoria made a public statement four days after his death.</p></li>
<li><p>On March 18, Barkindji man <a href="https://www.sbs.com.au/news/another-precious-life-lost-a-fourth-indigenous-person-has-died-in-custody-in-just-three-weeks">Anzac Sullivan</a> suffered a medical episode during a police pursuit in NSW. Despite attempts by police to resuscitate him, he was declared deceased at Broken Hill Hospital.</p></li>
</ul>
<p>The <a href="https://www.abc.net.au/news/2021-03-09/two-indigenous-deaths-in-custody-in-sydney-last-week/13229962">news</a> of two deaths this month in New South Wales came as the state’s corrective services defended the decision not to make a public statement to announce the deaths in custody.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/392408/original/file-20210329-17-tuw8tw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Only hands visible; hands are in chains. The person wears all black." src="https://images.theconversation.com/files/392408/original/file-20210329-17-tuw8tw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/392408/original/file-20210329-17-tuw8tw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/392408/original/file-20210329-17-tuw8tw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/392408/original/file-20210329-17-tuw8tw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/392408/original/file-20210329-17-tuw8tw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/392408/original/file-20210329-17-tuw8tw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/392408/original/file-20210329-17-tuw8tw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">First Nations people continue to be overrepresented in Australian prisons.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/brisbane-australia-november-14-unidentified-aboriginal-233505988">https://www.shutterstock.com</a></span>
</figcaption>
</figure>
<h2>Recommendations ignored</h2>
<p>April 15 marks the <a href="https://www.amnesty.org.au/nsw-deaths-in-custody-when-will-someone-be-held-accountable/">30 year anniversary</a> of the <a href="https://apo.org.au/node/30017">Royal Commission into Aboriginal Deaths in Custody report</a> tabled in parliament in 1991. The report recorded 99 deaths in custody between 1980 and 1989, and made <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol5/5.html">339 recommendations</a> to prevent further Aboriginal deaths in custody. The report also addressed other issues leading to the over-representation of Indigenous people within Australia’s legal system.</p>
<p>The recommendations in the royal commission report could have prevented the four deaths this month, had they been implemented. </p>
<ul>
<li><p>The Long Bay man in this mid-30s who died due to pre-existing conditions could have been saved if <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol5/5.html">recommendation 154</a> had been in place. There would have been appropriate cultural health services available for him, and other Aboriginal people in custody.</p></li>
<li><p>It’s possible the woman who died in Silverwater Prison could have been safer if <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol5/5.html">recommendation 165</a> had been implemented (if she did in fact take her own life). This recommendation suggests police and corrective services carefully assess equipment and facilities to eliminate or reduce the potential for harm. An example of this is the removal of hanging points in police and prison cells. Peter Severin has said removing hanging points from cells <a href="https://www.abc.net.au/news/2021-03-09/two-indigenous-deaths-in-custody-in-sydney-last-week/13229962">is a budget issue</a>.</p></li>
<li><p><a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol5/5.html">Recommendation 133(a)</a> addresses the necessity for police to undertake training to know when someone is in distress from their presence. This training could have assisted the police when approaching Anzac Sullivan.</p></li>
</ul>
<h2>What needs to be done?</h2>
<p>There are no words to describe the loss suffered by families of those who die in custody. This is especially so amid the knowledge justice will never be served — there has not been one person ever held <a href="https://theconversation.com/despite-432-indigenous-deaths-in-custody-since-1991-no-one-has-ever-been-convicted-racist-silence-and-complicity-are-to-blame-139873">criminally responsible for the death</a> of an Aboriginal and/or Torres Strait Islander person in custody, despite there being <a href="https://thewest.com.au/politics/fresh-calls-to-stop-indigenous-jail-deaths-c-2442816">450 such deaths</a>.</p>
<p><a href="https://indigenousx.com.au/defunding-the-police-and-abolishing-prisons-are-not-radical-ideas/">Police brutality</a> has been the centre of debates relating to the treatment of Aboriginal people in this country since colonisation began. However, since the Black Lives Matter (BLM) movement gained momentum in Australia and globally, we have seen a shift in the way wider society perceives police and their interactions with the public. </p>
<p>A recurring suggestion is the idea to <a href="https://link.springer.com/article/10.1007/s10612-018-9400-4">defund and abolish</a> the police and divert funds to First Nations community-led solutions. An ANROWS (Australia’s National Research Organisation for Women’s Safety) <a href="https://apo.org.au/node/306658">report</a> highlights the importance of community-led solutions that are culturally safe, but community law efforts are often undermined by settler law and forms of government. Academic <a href="https://theconversation.com/defunding-the-police-could-bring-positive-change-in-australia-these-communities-are-showing-the-way-140333">Chris Cunnen writes of </a> community-based justice reinvestment projects in First Nations communities, which have seen reductions in offending and and incidences of domestic violence. </p>
<p>Unfortunately, although the BLM movement has caused people to see the ways police can abuse power, some people remain so <a href="https://www.theguardian.com/australia-news/2020/jun/09/three-quarters-of-australians-biased-against-indigenous-australians-study-finds">detached</a> from what is happening to Indigenous people they have no desire to question or <a href="https://d1wqtxts1xzle7.cloudfront.net/59709186/deficit_discourse_report20190613-34013-1ubjl8o.pdf?1560469440=&response-content-disposition=inline%3B+filename%3DDeficit_Discourse_and_Indigenous_Health.pdf&Expires=1616737423&Signature=ZGcEtdEUJURgvvLu7oE67QiQYZHg7vg2LhSfUjSehXkoS8plui7V7msDB4bv0bkcym9vFXBIjKiTkwBY%7EuPMEkEFl5kW%7Eqhz-w4FcQVDqqXOGHuGLZIZPxwqMPz3ce4y5N1NnrahjenuYEoX1ibVbT7qHWZ4S9GuerTJtvOOOLPhHLLPU6QUJ2XEAK-Vpy7MiBq0wCv9Dsj2uOIAH3mVV9qkfGxrasXvpUf4mlK7XIg%7EJpSy9i9Rv9dV4YJuV6l2K4%7EH3u4TZQ1BXlFHTgNnICTdfoHb%7ET-9sAKEO21Tmrbr-fcOuo3UaC9aMJuLfNsV4SdjvxJHojtTAlNqOHOp6Q__&Key-Pair-Id=APKAJLOHF5GGSLRBV4ZA">challenge</a> the dominant government paradigm for achieving safer communities. It speaks volumes regarding the public’s perceived value of Aboriginal lives, despite being the <a href="https://www.theguardian.com/commentisfree/2016/sep/22/indigenous-australians-know-were-the-oldest-living-culture-its-in-our-dreamtime">oldest, continuing living culture</a> in the world. </p>
<p>Police brutality and lack of adequate knowledge on medical issues has become a <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1739351">common theme</a> in Aboriginal deaths in custody, and something must be done to remedy this.</p>
<p>This government needs to take action to protect the lives of Aboriginal and/or Torres Strait Islander people. This can be done by <a href="http://classic.austlii.edu.au/au/journals/IndigLawB/2001/37.html">implementing</a> the 339 recommendations from the 1991 royal commission report.</p>
<p>Another option is to <a href="https://theconversation.com/defunding-the-police-could-bring-positive-change-in-australia-these-communities-are-showing-the-way-140333">defund the police</a> and institute community-led solutions. Both of these options are viable and easily achievable in order for Australia to stop the <a href="https://www.jstor.org/stable/26423245?seq=1">racist, dehumanising and degrading</a> treatment of Aboriginal and/or Torres Strait Islander people.</p><img src="https://counter.theconversation.com/content/157879/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robyn Newitt does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In the wake of four Aboriginal deaths in custody in three weeks, the government needs to reassess the police and corrections systems in Australia.Robyn Newitt, Lecturer, Criminology, Western Sydney UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1489222020-10-28T02:35:38Z2020-10-28T02:35:38ZKumanjayi Walker murder trial will be a first in NT for an Indigenous death in custody. Why has it taken so long?<figure><img src="https://images.theconversation.com/files/365962/original/file-20201027-19-i70ppv.jpg?ixlib=rb-1.1.0&rect=342%2C19%2C3789%2C2929&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">DAVID CROSLING/AAP</span></span></figcaption></figure><p><em>Aboriginal and Torres Strait Islander readers are advised this article contains names and images of deceased people.</em></p>
<hr>
<p>The Northern Territory court decision this week to commit Police Constable Zachary Rolfe to <a href="https://www.abc.net.au/news/2020-10-26/nt-zachary-rolfe-murder-trial-kumanjayi-walker/12812480">stand trial</a> for the shooting death of 19-year-old Warlpiri man Kumanjayi Walker marks a historic moment in accountability for First Nations deaths in custody. </p>
<p>It is the first time a police officer <a href="https://www.smh.com.au/national/nt-police-officer-to-face-murder-trial-over-death-of-kumanjayi-walker-20201026-p568rx.html">will face a murder trial</a> in a First Nations death in custody case in the Northern Territory since the Royal Commission into Aboriginal Deaths in Custody in 1991.</p>
<p>The decision was handed down months after another policeman <a href="https://www.abc.net.au/news/2020-09-18/murder-trial-for-police-shooting-death-jc-held-in-perth/12679314">was charged with murder</a> in the shooting death of an Indigenous woman in Western Australia. He has pleaded not guilty and is expected to face trial next year. </p>
<p>The cases are moving ahead amid a global reckoning on police and prison violence as part of the Black Lives Matter movement, which has focused new attention on <a href="https://www.theguardian.com/commentisfree/2020/sep/03/without-accountability-there-is-no-justice-for-my-mothers-death-in-australian-police-custody">First Nations families</a> fighting for justice for the deaths of their loved ones.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-the-black-lives-matter-protests-must-continue-an-urgent-appeal-by-marcia-langton-143914">Why the Black Lives Matter protests must continue: an urgent appeal by Marcia Langton</a>
</strong>
</em>
</p>
<hr>
<h2>Circumstances of Walker’s death</h2>
<p>Late on the evening of November 9 2019, <a href="https://www.theguardian.com/australia-news/2020/oct/26/nt-police-officer-zachary-rolfe-to-stand-trial-for-over-death-of-kumanjayi-walker">police officers</a> entered Walker’s family home in Yuendumu, central Australia, to try to arrest him. This set in motion the events that led to Rolfe firing the <a href="https://arena.org.au/three-shots-by-melinda-hinkson-and-thalia-anthony/">three shots</a> that killed the teenager.</p>
<p>Murder charges were laid against Rolfe days later, and <a href="https://www.abc.net.au/news/2020-03-08/yuendumu-residents-question-grant-of-bail-to-zachary-rolfe/12035990">bail was granted</a> the same day. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/365966/original/file-20201027-13-1bpbwzb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/365966/original/file-20201027-13-1bpbwzb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=747&fit=crop&dpr=1 600w, https://images.theconversation.com/files/365966/original/file-20201027-13-1bpbwzb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=747&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/365966/original/file-20201027-13-1bpbwzb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=747&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/365966/original/file-20201027-13-1bpbwzb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=939&fit=crop&dpr=1 754w, https://images.theconversation.com/files/365966/original/file-20201027-13-1bpbwzb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=939&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/365966/original/file-20201027-13-1bpbwzb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=939&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Kumanjayi Walker.</span>
<span class="attribution"><span class="source">PR handout</span></span>
</figcaption>
</figure>
<p>The NT Criminal Lawyers Association described the granting of bail over the phone for a serious homicide as “<a href="https://www.abc.net.au/news/2020-03-08/yuendumu-residents-question-grant-of-bail-to-zachary-rolfe/12035990">very unusual in the extreme</a>”. It also raised <a href="https://www.sbs.com.au/nitv/article/2020/09/02/kumanjayi-walker-elders-call-officers-bail-be-revoked">concerns</a> among Yuendumu elders that justice was being compromised in Walker’s death. </p>
<p>The <a href="https://apnews.com/article/australia-police-canberra-australian-capital-territory-trials-5e624936014d4e9a91d9225282577c17">freedom</a> that Rolfe enjoys on bail contrasts with the high remand rates for First Nations people <a href="https://www.indigenousjustice.gov.au/wp-content/uploads/mp/files/publications/files/the-growth-in-remand-13-08-2.pdf">(85%)</a> in the NT. </p>
<p>Rolfe has also been stood down from the police force while on bail, but is <a href="https://www.abc.net.au/news/2020-10-26/nt-zachary-rolfe-murder-trial-kumanjayi-walker/12812480#:%7E:text=Constable%20Rolfe%20appeared%20in%20court,Court%20for%20the%20first%20time.">still receiving pay</a>.</p>
<h2>Sufficient evidence to stand trial</h2>
<p>Before a trial for a serious crime can proceed to the NT Supreme Court, the local court must determine whether the prosecution’s evidence is “<a href="https://legislation.nt.gov.au/en/Legislation/LOCAL-COURT-CRIMINAL-PROCEDURE-ACT-1928">sufficient to put the defendant</a> on trial”. This occurs through a committal hearing. </p>
<p>Rolfe’s <a href="https://www.abc.net.au/news/2020-09-05/nt-committal-hearing-zachary-rolfe-what-happened/12631574">three-day committal</a> occurred in early September in Alice Springs. His lawyer made a “<a href="https://www.abc.net.au/news/2020-09-25/nt-zachary-rolfe-kumanjayi-walker-committal-hearing-final-day/12701972">no-case submission</a>” that the charges be dropped on the grounds of self-defence.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/365970/original/file-20201027-19-1k9k5ed.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/365970/original/file-20201027-19-1k9k5ed.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=425&fit=crop&dpr=1 600w, https://images.theconversation.com/files/365970/original/file-20201027-19-1k9k5ed.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=425&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/365970/original/file-20201027-19-1k9k5ed.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=425&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/365970/original/file-20201027-19-1k9k5ed.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=534&fit=crop&dpr=1 754w, https://images.theconversation.com/files/365970/original/file-20201027-19-1k9k5ed.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=534&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/365970/original/file-20201027-19-1k9k5ed.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=534&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Relatives of Kumanjayi Walker outside Alice Springs Local Court in December.</span>
<span class="attribution"><span class="source">CHLOE/AAP</span></span>
</figcaption>
</figure>
<p>This week, the presiding local court judge, John Birch, determined there was sufficient evidence for <a href="https://www.theguardian.com/australia-news/2020/oct/26/nt-police-officer-zachary-rolfe-to-stand-trial-for-over-death-of-kumanjayi-walker?fbclid=IwAR2VHF6Q5UF67PPVYPhmRH25fpOMpAQLxFJ8cV0IliYbB7WTeHD1b7ReOxE">Rolfe to stand trial</a>. </p>
<p>Birch indicated the case will proceed in Alice Springs <a href="https://www.sbs.com.au/nitv/article/2020/10/26/nt-police-officer-stand-trial-murder-over-death-custody-kumanjayi-walker">next year</a> unless an application is accepted by the court to move the trial to Darwin.</p>
<h2>434 deaths in custody since 1991</h2>
<p>There have been at least <a href="https://www.theguardian.com/australia-news/2020/jun/06/aboriginal-deaths-in-custody-434-have-died-since-1991-new-data-shows#:%7E:text=Today%2C%20Guardian%20Australia%20has%20published,in%20Custody%20ended%20in%201991.">434 First Nations deaths in custody</a> since the Royal Commission into Aboriginal Deaths in Custody handed down its final report in 1991.</p>
<p>The commission followed years of community outrage and <a href="https://theconversation.com/deaths-in-custody-25-years-after-the-royal-commission-weve-gone-backwards-57109">protests</a> over mounting Aboriginal deaths in custody. It put forward <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol5/5.html#Heading5">339 recommendations</a> that called for the use of arrest and imprisonment as a last resort, safer police and prison practices, independent investigations into deaths in custody and Aboriginal self-determination. </p>
<p>Yet, First Nations deaths in custody have continued in violent, reckless and negligent circumstances, reflecting the <a href="https://openresearch-repository.anu.edu.au/handle/1885/154725">failure</a> of governments to implement and enforce the recommendations. </p>
<p>Gomeroi scholar <a href="https://theconversation.com/despite-432-indigenous-deaths-in-custody-since-1991-no-one-has-ever-been-convicted-racist-silence-and-complicity-are-to-blame-139873">Alison Whittaker</a> has argued colonial violence in custody has been institutionalised through the lack of accountability in First Nations death in custody cases. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/despite-432-indigenous-deaths-in-custody-since-1991-no-one-has-ever-been-convicted-racist-silence-and-complicity-are-to-blame-139873">Despite 432 Indigenous deaths in custody since 1991, no one has ever been convicted. Racist silence and complicity are to blame</a>
</strong>
</em>
</p>
<hr>
<p>This lack of accountability is pronounced in the NT, where deaths in custody and police violence rarely proceed to charges or prosecutions. </p>
<p>The <a href="https://www.abc.net.au/news/2007-12-03/family-urges-law-change-after-wadeye-death-finding/976236">2002 killing</a> of 18-year-old Robert Jongmin by <a href="http://netk.net.au/Aboriginal/Aboriginal59.asp">Senior Constable Robert Whittington</a> resulted in murder, then manslaughter, charges being brought against the officer, which were eventually dropped.</p>
<p>The constable was then charged with the downgraded offence of “<a href="https://www.abc.net.au/news/2006-08-11/charges-against-wadeye-police-officer-quashed/1236180">dangerous act causing death</a>”, which was quashed by the NT Supreme Court on statutory grounds in 2006.</p>
<p>The royal commission also <a href="https://nla.gov.au/nla.obj-1940942794/view?partId=nla.obj-1949281937#page/n23/mode/1up">investigated the 1980 killing</a> of an Aboriginal man, Jabanardi, who was shot during a fight with police following a traffic stop in the NT. The constable was <a href="http://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2018/09/GRAY-Advance-Access.pdf">put on trial</a> for Jabanardi’s murder in Alice Springs in 1981 and was acquitted. </p>
<h2>Trials against police in other states</h2>
<p>Outside the NT, two well-publicised manslaughter trials in First Nations deaths in custody cases have resulted in not guilty verdicts. </p>
<p>The first was in the trial of <a href="https://www.sydneycriminallawyers.com.au/blog/john-pats-death-in-custody-the-impetus-for-the-royal-commission/">four police officers and a police aide</a> for the the death of 16-year-old Yindjibarndi man John Pat in Roebourne police lock-up (Western Australia) in 1983. The second was <a href="https://www.abc.net.au/news/2014-11-19/palm-island-community-still-struggling-after-death-in-custody/5901028">Senior Sergeant Chris Hurley</a> for the death of Mulrunji Doomadgee in Palm Island watch house (Queensland) in 2004.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/365972/original/file-20201028-23-1997d6g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/365972/original/file-20201028-23-1997d6g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=443&fit=crop&dpr=1 600w, https://images.theconversation.com/files/365972/original/file-20201028-23-1997d6g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=443&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/365972/original/file-20201028-23-1997d6g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=443&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/365972/original/file-20201028-23-1997d6g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=557&fit=crop&dpr=1 754w, https://images.theconversation.com/files/365972/original/file-20201028-23-1997d6g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=557&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/365972/original/file-20201028-23-1997d6g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=557&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Tracey Twaddle (left), Doomadgee’s partner, reacting to the not guilty verdict passed down at the Townsville Supreme Court in 2007.</span>
<span class="attribution"><span class="source">DAVE HUNT/AAP</span></span>
</figcaption>
</figure>
<p>The empanelment of <a href="https://www.smh.com.au/national/an-island-death-20090618-clzx.html">all-white juries</a> to try the officers in both cases has been questioned by justice advocates. The <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/individual/brm_jpp/118.html">Royal Commission</a> asked in 1991 in relation to Pat’s death,</p>
<blockquote>
<p>How does it come about in the Pilbara that a very important trial was conducted before a jury without Aboriginal representation, given the number of Aboriginal people in that region?</p>
</blockquote>
<p>Another perceived factor behind the not guilty outcome in the Doomadgee case was the campaign run by the <a href="https://nit.com.au/blak-lives-betrayed-mulrunji-doomadgee/">Queensland Police Union</a> in support of Hurley. The defence of Hurley and his characterisation as a <a href="http://www.austlii.edu.au/au/journals/AltLawJl/2009/71.pdf">victim</a> — demonstrated at <a href="https://newmatilda.com/2015/05/22/palm-island-death-custody-cop-chris-hurley-investigated-queensland-police/">police rallies and on wrist bands</a> — received widespread media attention. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/365973/original/file-20201028-21-1xydz8u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/365973/original/file-20201028-21-1xydz8u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=320&fit=crop&dpr=1 600w, https://images.theconversation.com/files/365973/original/file-20201028-21-1xydz8u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=320&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/365973/original/file-20201028-21-1xydz8u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=320&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/365973/original/file-20201028-21-1xydz8u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=402&fit=crop&dpr=1 754w, https://images.theconversation.com/files/365973/original/file-20201028-21-1xydz8u.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=402&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/365973/original/file-20201028-21-1xydz8u.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=402&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Queensland police vote to march on state parliament in response to a decision to charge Hurley in Doomadgee’s death.</span>
<span class="attribution"><span class="source">Dave Hunt/AAP</span></span>
</figcaption>
</figure>
<p>The <a href="https://www.abc.net.au/news/2019-11-22/police-federation-of-australia-condemns-charge-against-rolfe/11730078">Police Federation of Australia</a> and <a href="https://www.smh.com.au/national/thousands-attend-rally-in-alice-springs-after-fatal-shooting-of-young-aboriginal-man-20191114-p53ajx.html">NT Police Association</a> have similarly defended the legitimacy of Rolfe’s actions in Walker’s death.</p>
<h2>Accountability and justice</h2>
<p>From the outset, Warlpiri people in Yuendumu have been strident in their demands for justice for Walker and protections from ongoing police violence. They have also called for police there to be <a href="https://www.wsws.org/en/articles/2019/12/07/yued-d07.html">disarmed</a>. </p>
<p>Yuendumu Elder Harry Jakamarra Nelson deplored the recent $7 million spent on the local police station. He also <a href="https://www.sbs.com.au/nitv/article/2020/06/25/guns-not-our-law-it-not-our-culture-calls-systemic-change-kumanjayi-walker-matter">implicated</a> the lasting effects of the <a href="https://theconversation.com/ten-years-on-its-time-we-learned-the-lessons-from-the-failed-northern-territory-intervention-79198">Northern Territory Intervention</a> in the oppression of First Nations people by taking power out of the hands of locals. </p>
<p>This policy has contributed to the mass imprisonment of Indigenous people in the NT — described by many as a “<a href="https://arena.org.au/the-aboriginal-gulag-the-northern-territory-criminal-legal-system/">gulag</a>” — and the allegations of <a href="https://arena.org.au/three-shots-by-melinda-hinkson-and-thalia-anthony/">systemic racism</a> in NT police practices. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/instead-of-demonising-black-lives-matter-protesters-leaders-must-act-on-their-calls-for-racial-justice-143269">Instead of demonising Black Lives Matter protesters, leaders must act on their calls for racial justice</a>
</strong>
</em>
</p>
<hr>
<p>Yuendumu community members, nonetheless, recognise they have made <a href="https://www.smh.com.au/national/northern-territory-policeman-charged-with-murder-over-shooting-of-indigenous-man-20191113-p53aei.html">history</a> as a result of the murder trial. </p>
<p>Ned Jampijinpa Hargraves, a senior Warlpiri man and chairperson of the Warlpiri Parumpurru [Justice] Committee, said the case provides the community with “<a href="https://www.smh.com.au/national/northern-territory-policeman-charged-with-murder-over-shooting-of-indigenous-man-20191113-p53aei.html">relief</a>”. </p>
<p>Meanwhile, other families continue their fight for justice. This week, the NSW coroner is <a href="https://www.theguardian.com/australia-news/2020/oct/27/nsw-prison-officer-who-fatally-shot-indigenous-man-as-he-tried-to-escape-may-face-charges">hearing arguments</a> about whether a corrective services officer who shot and killed Wiradjuri man Dwayne Johnstone as he tried to escape should be referred for prosecution. Like Walker, Johnstone was killed by an officer who fired three shots at him. </p>
<p>A coronial inquiry is also investigating the death of Anaiwan man Nathan Reynolds from an untreated asthma attack at a Sydney prison in 2018.</p>
<p>And the NSW Parliament has <a href="https://www.theguardian.com/australia-news/2020/oct/27/deaths-in-custody-david-dungays-mother-tells-nsw-parliament-the-system-is-broken">commenced hearings</a> in an <a href="https://www.parliament.nsw.gov.au/committees/listofcommittees/Pages/committee-details.aspx?pk=266">inquiry</a> into the high rate of Aboriginal incarceration. </p>
<p>Walker’s cousin, Samara Fernandez, <a href="https://www.sbs.com.au/nitv/article/2020/06/25/guns-not-our-law-it-not-our-culture-calls-systemic-change-kumanjayi-walker-matter">raised concerns</a> earlier this year about the unequal application of the law and the lack of procedural fairness for First Nations people. She said,</p>
<blockquote>
<p>You’d think it’s common sense to have a system that works equally for all populations … we want the system to be reinvented in a way that doesn’t have those stereotypes towards our people.</p>
</blockquote>
<p>The dignity of procedural fairness and impartiality is the minimum First Nations families should expect when their loved one is taken by the law enforcement system.</p>
<hr>
<p><em>Correction: The story has been updated to add details of a police officer who stood trial for murder in the shooting death of an Aboriginal man in the NT in 1980. It also removes reference to the number of officers at Walker’s house.</em></p><img src="https://counter.theconversation.com/content/148922/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thalia Anthony receives funding from the Australian Research Council.</span></em></p><p class="fine-print"><em><span>Eddie Cubillo does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Warlpiri people in Yuendumu have been strident in their demands for justice for Walker and protections from ongoing police violence.Thalia Anthony, Professor of Law, University of Technology SydneyEddie Cubillo, Senior Fellow Indigenous Programs, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1398482020-06-02T07:50:24Z2020-06-02T07:50:24Z‘I can’t breathe!’ Australia must look in the mirror to see our own deaths in custody<figure><img src="https://images.theconversation.com/files/339055/original/file-20200602-95024-pj5u57.jpg?ixlib=rb-1.1.0&rect=61%2C76%2C5007%2C3121&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Brendan Esposito/AAP</span></span></figcaption></figure><blockquote>
<p>I can’t breathe, please!
Let me up, please! I can’t breathe! I can’t breathe!</p>
</blockquote>
<p>These words are not the words of <a href="https://www.abc.net.au/news/2020-06-02/george-floyd-died-asphyxiation-family-autopsy-finds/12310104">George Floyd</a> or <a href="https://www.nytimes.com/2019/07/16/nyregion/eric-garner-case-death-daniel-pantaleo.html">Eric Garner</a>. They weren’t uttered on the streets of Minneapolis or New York. </p>
<p>These are the <a href="https://www.theguardian.com/australia-news/2018/jul/16/harrowing-video-footage-shows-death-in-custody-of-aboriginal-man">final words</a> of a 26-year-old Dunghutti man who died in a prison in south-eastern Sydney. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-fury-in-us-cities-is-rooted-in-a-long-history-of-racist-policing-violence-and-inequality-139752">The fury in US cities is rooted in a long history of racist policing, violence and inequality</a>
</strong>
</em>
</p>
<hr>
<p>David Dungay Jr was killed when prison officers<a href="https://www.smh.com.au/national/nsw/david-dungay-screamed-for-help-said-he-couldn-t-breathe-minutes-before-death-inquest-told-20180716-p4zrs3.html"> restrained him,</a> including with handcuffs, and pushed him face down on his bed and on the floor. One officer pushed a knee into his back. All along, Dungay was screaming that he could not breathe and could be heard gasping for air. </p>
<p>Dungay’s death in custody occurred in Long Bay prison during the 2015 Christmas season. It happened a short drive from an elite university, next to affluent, waterside suburbs. </p>
<p>But his horrific death did little to pierce this white bubble of privilege. The media barely blinked. The politicians did not emerge from their holiday retreats. None of the officers involved were disciplined or called to account.</p>
<h2>Australia’s glass house</h2>
<p>It is comfortable for us in Australia to throw stones at racist police violence in the United States. It is comfortable because we do not see our own glass house. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/339081/original/file-20200602-95024-1ah9lk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/339081/original/file-20200602-95024-1ah9lk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/339081/original/file-20200602-95024-1ah9lk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/339081/original/file-20200602-95024-1ah9lk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/339081/original/file-20200602-95024-1ah9lk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/339081/original/file-20200602-95024-1ah9lk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/339081/original/file-20200602-95024-1ah9lk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Protests have broken out in the United States over the death of George Floyd.</span>
<span class="attribution"><span class="source">Erik McGregor/AAP</span></span>
</figcaption>
</figure>
<p>This is evident in Prime Minister Scott Morrison’s <a href="https://www.pm.gov.au/media/interview-ben-fordham-2gb-020620">comments to 2GB</a> on Monday: </p>
<blockquote>
<p>And so as upsetting and terrible is the murder that took place, and it is shocking … I just think to myself how wonderful a country is Australia. </p>
</blockquote>
<p>It is “wonderful” because we do not see the horror inflicted by the criminal justice system on First Nations people. </p>
<p>It is “wonderful” because we do not ever call their deaths in custody “murder”, using instead the euphemisms of “<a href="http://classic.austlii.edu.au/au/cases/qld/QDC/2008/323.html">accident</a>” or “<a href="https://www.crikey.com.au/2011/06/22/deaths-in-custody-why-are-more-prisoners-dying-from-natural-causes/">natural causes</a>”.</p>
<p>It is “wonderful”, because we have so normalised the passing of First Nations people that we are never shocked when they are killed. </p>
<p>It is “wonderful”, because we have a vocabulary to defend police officers responsible for racist violence, including people doing an “<a href="https://justice.nt.gov.au/__data/assets/pdf_file/0009/208962/d00752015-perry-langdon.pdf">extremely difficult job</a>”.</p>
<p>The official response to the killing of Dungay has wide ripples in the white Australian community and the legal community. His family maintain that the killing of their son, brother and uncle, who was unarmed, was <a href="https://www.theguardian.com/australia-news/2019/mar/08/nsw-corrections-apologises-to-family-of-david-dungay-for-custody-death">murder</a>. No criminal charges have been brought and the <a href="http://www.coroners.justice.nsw.gov.au/Documents/DUNGAY%20David%20-%20Findings%20-%20v2.pdf">coroner in November 2019</a> blamed Dungay’s pre-existing health conditions. His comments minimised the responsibility on the part of the officers: </p>
<blockquote>
<p>it is most likely that the cause of David’s death was <a href="https://www.mayoclinic.org/diseases-conditions/heart-arrhythmia/symptoms-causes/syc-20350668">cardiac arrhythmia</a>. It is noted that David had a number of comorbidities, both acute and chronic, which predisposed him to the risk of cardiac arrhythmia … However, the expert evidence also established that prone restraint, and any consequent <a href="https://www.mayoclinic.org/symptoms/hypoxemia/basics/causes/sym-20050930">hypoxia</a>, was a contributing factor although it is not possible to quantify the extent or significance of its contribution.</p>
</blockquote>
<h2>First Nations people are the most incarcerated in the world</h2>
<p>The deaths in custody of First Nations Australians are not hidden. As a nation, we are choosing not to look at them. In 1991, the Royal Commission into Aboriginal Deaths in Custody documented <a href="https://theconversation.com/deaths-in-custody-25-years-after-the-royal-commission-weve-gone-backwards-57109">99 deaths in custody</a>. </p>
<p>Since then, 432 Indigenous Australians have died in custody, according to Guardian Australia’s <a href="https://www.theguardian.com/australia-news/2020/jun/01/deaths-in-our-backyard-432-indigenous-australians-have-died-in-custody-since-2008">Deaths Inside project</a>. </p>
<p>First Nations people are the <a href="https://theconversation.com/factcheck-qanda-are-indigenous-australians-the-most-incarcerated-people-on-earth-78528">most incarcerated in the world</a>, surpassing the rates of African American people in the United States. In 2019, for every 100,000 First Nations adults, <a href="https://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0%7E2018%7EMain%20Features%7EAboriginal%20and%20Torres%20Strait%20Islander%20prisoner%20characteristics%20%7E13">2,481 are in prisons</a>, compared with 164 non-Indigenous people. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/factcheck-are-first-australians-the-most-imprisoned-people-on-earth-78528">FactCheck: are first Australians the most imprisoned people on Earth?</a>
</strong>
</em>
</p>
<hr>
<p>Despite comprising 2% of the general adult population, First Nations Australians are <a href="https://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0%7E2019%7EMain%20Features%7EAboriginal%20and%20Torres%20Strait%20Islander%20prisoner%20characteristics%20%7E13">28% of the prison population</a>. For First Nations women, the rate is 33% and they are <a href="https://www.abc.net.au/news/2020-03-31/urgent-action-needed-over-indigenous-women-in-jails/12103372">21 times more</a> likely to be imprisoned than non-Indigenous women. This is a product of systemic racism that also contributes to disproportionate deaths in custody.</p>
<p>Yet the deaths are only the tip of the iceberg. Everyday occurrences of police brutality against First Nations people, frequently filmed and uploaded on <a href="https://www.facebook.com/FISTTmovement/">social media platforms</a>, have even less formal oversight. The casual complacency about the harm inflicted on First Nations people means we do not know the true extent of its occurrence. </p>
<p>On Tuesday, a NSW police officer was put on restricted duties after a video emerged on social media of him appearing to <a href="https://www.abc.net.au/news/2020-06-02/nsw-police-investigate-officer-over-arrest-of-indigenous-teen/12310758">kick an Aboriginal teenager</a>.</p>
<h2>Protesting deaths in custody in our backyard</h2>
<p>In the wake of Floyd’s death, Dungay’s nephew, Paul Silva pointed to the <a href="https://www.solidarity.net.au/highlights/the-video-of-george-floyd-took-me-back-to-when-i-saw-my-uncles-death/">lack of response</a> to First Nations deaths in Australia:</p>
<blockquote>
<p>We don’t get the same big response in Australia as they do in the United States with the <a href="https://blacklivesmatter.com">Black Lives Matter</a> movement, but we have had many people, both First Nations and non-Indigenous people standing with us. We can build on that – we need many more to join us. We can take inspiration from the United States and get back out on the streets in our own backyard, where there is so much brutality against Black people too, that’s the only way to get justice.</p>
</blockquote>
<p>While the spotlight has been shone on the protests in the United States, most Australians would be unaware that each year on the anniversary of Dungay’s killing, there has been a protest, mostly at Long Bay jail. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/339067/original/file-20200602-95032-19obb2r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/339067/original/file-20200602-95032-19obb2r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/339067/original/file-20200602-95032-19obb2r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/339067/original/file-20200602-95032-19obb2r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/339067/original/file-20200602-95032-19obb2r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/339067/original/file-20200602-95032-19obb2r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/339067/original/file-20200602-95032-19obb2r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Leetona Dungay continues to protest about her son’s death.</span>
<span class="attribution"><span class="source">David Moir/AAP</span></span>
</figcaption>
</figure>
<p>This week in cities around Australia, <a href="https://www.sbs.com.au/nitv/article/2020/06/01/i-cant-breathe-indigenous-rallies-planned-solidarity-george-floyd">protests are planned</a> in the name of First Nations people who have died in custody. The numbers of those who converge on the streets is a litmus test of national tolerance for racial violence against First Nations people in the criminal justice system. </p>
<h2>Where does racial violence against First Nations people end?</h2>
<p>Despite more than 500 First Nations deaths in custody since 1980, there has never been a <a href="https://theconversation.com/scales-of-justice-still-tipped-towards-police-who-harm-people-in-their-custody-57125">successful homicide prosecution</a> in the criminal courts. Indeed, only a handful have resulted in charges being laid in manslaughter or, less frequently, murder. </p>
<p>A police officer has been <a href="https://www.theguardian.com/australia-news/2020/apr/09/kumanjayi-walker-yuendumu-court-postpones-case-of-nt-police-officer-charged-with">charged with murder</a> following the shooting death of a 19-year-old Warlpiri man last year. The officer intends to plead not guilty. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/three-years-on-from-uluru-we-must-lift-the-blindfolds-of-liberalism-to-make-progress-138930">Three years on from Uluru, we must lift the blindfolds of liberalism to make progress</a>
</strong>
</em>
</p>
<hr>
<p>The Victorian Coroner this April also referred the <a href="https://www.abc.net.au/news/2020-04-09/tanya-day-coronial-finding-into-death-in-custody/12134398">death of Yorta Yorta woman Tanya Day</a> to prosecutors for further investigation. </p>
<p>Without accountability, justice will not flow for the families and the chain of racial violence will not be broken. </p>
<p>The danger of expressing outrage towards African American deaths in custody is that we deflect our own agency and responsibility. We legitimise the violence at our doorstep that is in our control. </p>
<p>It allows us to walk past racist police interventions on the false assumption that the problem is with the First Nations person rather than the police and Australian culture.</p>
<p>The only response to racism is resistance. This must take place not simply in passive solidarity with African Americans, but in our active support, protest and sacrifice for the lives of First Nations Australia.</p><img src="https://counter.theconversation.com/content/139848/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thalia Anthony receives funding from the Australian Research Council. She has participated in the protests discussed in this article. </span></em></p>As the US continues to protest the death of George Floyd, Australia is choosing not to look at the hundreds of Indigenous deaths in custody here.Thalia Anthony, Professor of Law, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1224712019-08-28T06:05:04Z2019-08-28T06:05:04ZAboriginal woman Tanya Day died in custody. Now an inquest is investigating if systemic racism played a role<p>If you haven’t yet heard of systemic racism — you’re about to. This week is the first ever inquest into an Indigenous death in custody to consider systemic racism. It has begun to take evidence of the role of systemic racism in the death of Aunty Tanya Day, a Yorta Yorta woman. </p>
<p>Day was taken into police custody from a regional Victorian train in 2017, despite being unconscious and in need of medical attention, under the offence of public drunkenness. While in the lock-up, she suffered a traumatic brain injury. She died <a href="https://www.hrlc.org.au/tanya-day-overview">seventeen days later</a>, without regaining consciousness.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/explainer-what-is-casual-racism-30464">Explainer: what is casual racism?</a>
</strong>
</em>
</p>
<hr>
<p>Although public drunkenness is now set to be <a href="https://www.premier.vic.gov.au/new-health-based-response-to-public-drunkenness/">decriminalised in Victoria</a> (leaving Queensland as the only state with the crime on its books), its criminalisation at the time of Day’s death, and how it set in motion a chain of events that caused her death, illustrates how systemic racism can operate. </p>
<h2>Public drunkenness is an antiquated, racialised offence</h2>
<p>Why? Because public drunkenness, since long before the <a href="https://www.humanrights.gov.au/our-work/indigenous-deaths-custody-report-summary">Royal Commission</a> into Aboriginal Deaths in Custody almost 30 years ago which recommended its decriminalisation, was a highly racialised offence. </p>
<p>The literature suggests its growing enforcement since the middle of last century <a href="https://www.magabala.com/eddie-s-country.html">operated to control a mobile Indigenous populace</a> after the protection policy era that saw Indigenous people put on reserves, and their <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol3/5.html">behaviours controlled by state government bodies</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/factcheck-are-first-australians-the-most-imprisoned-people-on-earth-78528">FactCheck: are first Australians the most imprisoned people on Earth?</a>
</strong>
</em>
</p>
<hr>
<p>In places where the offence remains, its enforcement is highly-discretionary. This is because it’s a crime most people have committed, or commit regularly, <a href="https://www.liv.asn.au/Staying-Informed/LIJ/LIJ/April-2019/Public-drunkenness-law-should-be-abolished">yet 29.6% of all people</a> imprisoned for public order offences, including public drunkenness, are Aboriginal or Torres Strait Islander. </p>
<p>Yet, once the crime is “off the books”, we know policing and protective practices can still produce similar outcomes. </p>
<p>For instance, Rebecca Maher, a Wiradjuri woman, was placed under protective custody in NSW, a state which has decriminalised public drunkenness. When officers did not call an ambulance for her overnight and failed to adequately care for her in their custody, she died. </p>
<p>How do we explain these divergences? </p>
<p>Systemic racism offers us some answers — not only on how Day died in a prison system, but also on how that prison system comes to be and behave in a way that targets Indigenous women like her. </p>
<p>Indigenous women are the fastest growing <a href="https://www.humanrights.gov.au/about/news/imprisonment-rates-indigenous-women-national-shame">incarcerated demographic</a> on the continent, and Indigenous peoples are <a href="https://www.alrc.gov.au/publications/disproportionate-incarceration-**rate">12.5 times more likely</a> to be incarcerated than non-Indigenous people.</p>
<h2>So what is systemic racism?</h2>
<p>At its most simple level for the purposes of this short article, systemic racism is a way of thinking about racism as a system, rather than just as an individual’s bias or prejudice. </p>
<p>It is distinct from forms of racism like <a href="https://theconversation.com/explainer-what-is-casual-racism-30464">casual racism</a> (normalised, but explicit, racist gestures) and unconscious or implicit biases (unintended judgements and actions based on long-standing perceptions and power). But still, it is related to them. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-short-unconscious-bias-programs-arent-enough-to-end-racial-harassment-and-discrimination-95422">Why short 'unconscious bias' programs aren't enough to end racial harassment and discrimination</a>
</strong>
</em>
</p>
<hr>
<p>Systemic racism <a href="https://theconversation.com/why-short-unconscious-bias-programs-arent-enough-to-end-racial-harassment-and-discrimination-95422">creates the architecture</a> around which other forms of racism are enabled, supported and justified. </p>
<p>The Royal Commission defined systemic racism as: </p>
<blockquote>
<p>rules, practices and habits which systematically discriminate against or in some way disadvantage Aboriginal people.</p>
</blockquote>
<p>It can be helpful to think of systemic racism as having two parts that work together to create conditions of marginalisation and oppression for Indigenous people and people of colour, and advantage for white people and ethnic majorities. </p>
<p>Those two parts are institutional racism and structural racism. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/legal-and-welfare-checks-should-be-extended-to-save-aboriginal-lives-in-custody-121814">Legal and welfare checks should be extended to save Aboriginal lives in custody</a>
</strong>
</em>
</p>
<hr>
<p>Institutional racism is expressed in institutions — their policies, procedures and preferences — like in <a href="https://www.sbs.com.au/nitv/nitv-news/article/2018/03/14/institutional-racism-evident-australian-justice-system">courts</a>, <a href="https://theconversation.com/racism-citizenship-and-schooling-why-we-still-have-some-way-to-go-99373">schools</a> and <a href="https://www.mja.com.au/journal/2014/201/1/different-kind-treatment#panel-article">hospitals</a></p>
<p>Structural racism is concerned with how a society organises itself around race. </p>
<h2>Why this inquest is the first to consider systemic racism</h2>
<p>Confused yet? I am — systemic racism is necessarily complicated. One of the reasons Day’s inquest is the first to consider systemic racism in deaths in custody is, perhaps tellingly, that systemic racism is good at making itself seem neutral, or at the very least, hard to perceive and express.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1165753243881758721"}"></div></p>
<p>This is sometimes called <a href="https://www.tandfonline.com/doi/abs/10.1080/08164649.2011.621175">epistemic</a> and ontological racism, and because of this and their own institutional racism, Coroners Courts have <a href="https://www.theguardian.com/commentisfree/2018/sep/07/dragged-like-a-dead-kangaroo-why-language-matters-for-deaths-in-custody">historically been silent</a> on or complicit with systemic racism. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-imagination-declaration-young-indigenous-australians-want-to-be-heard-but-will-we-listen-121569">The Imagination Declaration: young Indigenous Australians want to be heard – but will we listen?</a>
</strong>
</em>
</p>
<hr>
<p>Thanks to the tireless work of the family and their vision of justice for Day, the inquest <a href="https://www.hrlc.org.au/tanya-day-overview">will consider</a>:</p>
<ul>
<li><p>whether the actions and behaviours of those who interacted with Day were influenced by her status as a Yorta Yorta woman</p></li>
<li><p>whether racism played a part in their decision-making</p></li>
<li><p>the policies, procedures and training of the organisations involved.</p></li>
</ul>
<p>While this is, of course, not enough to understand the full range of systemic racism that may have led to Aunty Tanya Day’s death, it’s a crucial starting point to understand racism against Indigenous peoples as lethal and endemic.</p><img src="https://counter.theconversation.com/content/122471/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alison Whittaker is attending the inquest into the death of Aunty Tanya Day at the family's request.</span></em></p>Systemic racism creates the architecture around which other forms of racism are enabled, supported and justified.Alison Whittaker, Research Fellow, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1072682018-11-21T03:20:44Z2018-11-21T03:20:44ZColonial Australia was surprisingly concerned about Aboriginal deaths in custody<figure><img src="https://images.theconversation.com/files/246596/original/file-20181121-161630-tivuii.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Of 19 Aboriginal men transported to Cockatoo Island, Sydney between 1845 and 1850, 12 died in custody. </span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>When the Royal Commission into Aboriginal Deaths in Custody’s <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/">report</a> was tabled in 1991, it was not the first official inquiry into this tragic phenomenon. The disproportionately high rate of mortality among Aboriginal convicts in colonial New South Wales had triggered an earlier investigation in 1850.</p>
<p>The problem is, of course, still with us. This year a <a href="https://www.theguardian.com/australia-news/2018/aug/28/the-147-dead-indigenous-leaders-demand-action-over-unacceptable-deaths-in-custody">Guardian investigation</a> found 147 Indigenous people have died in custody over the past ten years, and 407 since the end of the Royal Commission. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/deaths-in-custody-25-years-after-the-royal-commission-weve-gone-backwards-57109">Deaths in custody: 25 years after the royal commission, we've gone backwards</a>
</strong>
</em>
</p>
<hr>
<p>In my research into the transportation of Aboriginal convicts in the 19th century, I uncovered a government circular, a formal letter, written in 1851. It set out detailed instructions about watching and reporting on the health of Aboriginal prisoners. And it recommended that if an Aboriginal prisoner’s life was in danger, he might be released from gaol. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/246608/original/file-20181121-161641-wtl6i6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/246608/original/file-20181121-161641-wtl6i6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/246608/original/file-20181121-161641-wtl6i6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=919&fit=crop&dpr=1 600w, https://images.theconversation.com/files/246608/original/file-20181121-161641-wtl6i6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=919&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/246608/original/file-20181121-161641-wtl6i6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=919&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/246608/original/file-20181121-161641-wtl6i6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1154&fit=crop&dpr=1 754w, https://images.theconversation.com/files/246608/original/file-20181121-161641-wtl6i6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1154&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/246608/original/file-20181121-161641-wtl6i6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1154&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A portrait of Musquito, who was hanged in Hobart in 1825.</span>
<span class="attribution"><span class="source">National Library of Australia</span></span>
</figcaption>
</figure>
<p>When Aboriginal convict Jemmy died in custody in 1850 soon after being transported to Cockatoo Island in Sydney, the Native Police Office wrote to let the colonial secretary <a href="http://adb.anu.edu.au/biography/thomson-sir-edward-deas-2732">Edwards Deas Thomson</a> know. Thomson reacted by asking for a report of the number of Aboriginal convicts who had died on the island over the past five years. </p>
<p>It revealed that of the 19 Aboriginal men transported there between 1845 and 1850, 12 (63%) had died there or in Sydney’s general hospital.</p>
<p>Jemmy, along with at least 60 other Aboriginal men from NSW (which at the time included Queensland and Victoria), was transported following his involvement in Australia’s 19th century frontier wars. Some of these Aboriginal convicts were sent to Norfolk Island and Van Diemen’s Land. </p>
<p>Others languished on Goat Island, Sydney, and, later, Cockatoo Island. The most high profile Aboriginal captive was <a href="http://adb.anu.edu.au/biography/musquito-13124">Musquito</a> who was banished from NSW to Norfolk Island in 1805 and later hanged in Hobart in 1825.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/soldiers-thieves-maori-warriors-the-nz-convicts-sent-to-australia-86133">Soldiers, thieves, Māori warriors: the NZ convicts sent to Australia</a>
</strong>
</em>
</p>
<hr>
<h2>Why the deaths?</h2>
<p>Most Aboriginal convicts simply did not survive for very long in captivity. In their first year of incarceration, Aboriginal convicts died at ten times the rate of male convicts shipped to Van Diemen’s Land from Britain. Speculation about this at the time mostly hinged around the idea that they died from pining for country. </p>
<p>Other contributing causes included untreated injuries following violent arrests and crowded, unsanitary living conditions, which led to chest infections. Aboriginal poor health in custody was exacerbated by colonial diets and hard labour.</p>
<p>The disturbing trend of high death rates amongst Aboriginal prisoners is evident in archival records from the early decades of the 19th century. Yet until the 1840s Aboriginal convicts were spread out across a range of different probation and penal stations. </p>
<p>When Thomson heard how many Aboriginal convicts were dying in custody at Cokatoo Island, he set up a board of enquiry to consider alternatives to confining them there. This board comprised the medical adviser to the government Dr Patrick Hill, the surgeon at Cockatoo Island Dr O’Brien, and the island’s visiting justice, H. H. S. Browne.</p>
<h2>The response</h2>
<p>The most significant outcome of the inquiry was a remarkable document that went beyond the 339 recommendations of the Royal Commission almost 150 years later. An official circular instructed surgeons visiting colonial gaols to report to justices any cases involving Aboriginal prisoners whose lives could be endangered by longer confinement.</p>
<p>The upshot of this was that, providing it was not considered contrary to the public interest, the suffering prisoner might be released from custody. With the restoration of his freedom, it was hoped he would return to full health.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/246575/original/file-20181120-161615-11i0drc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/246575/original/file-20181120-161615-11i0drc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/246575/original/file-20181120-161615-11i0drc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=618&fit=crop&dpr=1 600w, https://images.theconversation.com/files/246575/original/file-20181120-161615-11i0drc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=618&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/246575/original/file-20181120-161615-11i0drc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=618&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/246575/original/file-20181120-161615-11i0drc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=777&fit=crop&dpr=1 754w, https://images.theconversation.com/files/246575/original/file-20181120-161615-11i0drc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=777&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/246575/original/file-20181120-161615-11i0drc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=777&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A detail from the circular that was sent around gaols.</span>
<span class="attribution"><span class="source">NSW State Archives and Records</span></span>
</figcaption>
</figure>
<p>While this initiative arose out of the convict system, the instructions were circulated more widely and applied to Aboriginal prisoners generally. </p>
<p>The gaol at Bathurst, a town north west of Sydney, was among the institutions to which the circular was sent in March 1851. In the early 1850s, <a href="http://adb.anu.edu.au/biography/mundy-godfrey-charles-2490">Godfrey Charles Mundy</a> visited Bathurst Gaol as part of a tour of NSW with his cousin, Governor <a href="http://adb.anu.edu.au/biography/fitzroy-sir-charles-augustus-2049">Charles FitzRoy</a>. </p>
<p>Mundy wrote about a man known as “Fish-hook”, who had been locked up for cattle stealing and showed signs of reduced mental function. Returning a month later, Mundy noted a marked deterioration in Fish-hook’s mental and physical wellbeing. </p>
<p>FitzRoy ordered Fish-hook’s immediate release. When Mundy saw Fish-hook a third time, after the Aboriginal man had become a colonial servant, he wrote how the former prisoner’s mental health had been perfectly restored.</p>
<p>Despite the transformative outcome for Fish-hook, it seems unlikely many Aboriginal prisoners were freed. To the contrary, some were considered too sick to be released, as it would almost certainly lead to their death.</p>
<p>The 1851 Circular and the 1991 Royal Commission into Aboriginal Deaths in Custody shared a common concern, to reduce the mortality rate of Aboriginal prisoners. The 19th century solution was to initiate, where possible, their early release. By the end of the 20th century, the Royal Commission’s focus was on strategies to lower Aboriginal incarceration rates. However, 27 years later, many of its recommendations are yet to be implemented.</p><img src="https://counter.theconversation.com/content/107268/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kristyn Harman does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The 1991 Royal Commission into deaths in custody was preceded by an 1850 inquiry, which recommended that Aboriginal people be released should their health deteriorate in gaol.Kristyn Harman, Senior Lecturer in History; Graduate Research Coordinator, School of Humanities; Course Coordinator, Diploma of History, University of TasmaniaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/785282017-06-06T04:27:31Z2017-06-06T04:27:31ZFactCheck: are first Australians the most imprisoned people on Earth?<figure><img src="https://images.theconversation.com/files/171568/original/file-20170531-25689-1gdbddm.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Cape York Partnership founder Noel Pearson, speaking on Q&A.</span> <span class="attribution"><span class="source">Q&A</span></span></figcaption></figure><p><strong>The Conversation fact-checks claims made on Q&A, broadcast Mondays on the ABC at 9.35pm. Thank you to everyone who sent us quotes for checking via <a href="http://www.twitter.com/conversationEDU">Twitter</a> using hashtags #FactCheck and #QandA, on <a href="http://www.facebook.com/conversationEDU">Facebook</a> or by <a href="mailto:checkit@theconversation.edu.au">email</a>.</strong></p>
<hr>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/2-9VqFpyz4M?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Excerpt from Q&A, May 29, 2017. Quote begins at 1:49.</span></figcaption>
</figure>
<blockquote>
<p>We’ve made progress in the last 50 years but some of the profound indicators of our problems – children alienated from parents, the most incarcerated people on the planet Earth, and youths in great numbers in detention – obviously speak to a structural problem. <strong>– Cape York Partnership founder Noel Pearson, <a href="http://www.abc.net.au/tv/qanda/txt/s4655309.htm">speaking on Q&A</a>, May 29 2017</strong></p>
</blockquote>
<p>During a Q&A episode marking the <a href="https://theconversation.com/right-wrongs-write-yes-what-was-the-1967-referendum-all-about-76512">50th anniversary of the 1967 referendum</a>, Cape York Partnership founder Noel Pearson outlined some of the problems Indigenous Australians continue to face, including high incarceration rates. Pearson said Indigenous Australians are “the most incarcerated people on the planet Earth”. </p>
<p>Is that right?</p>
<h2>Checking the source</h2>
<p>When asked for sources to support his statement, a spokesperson for Pearson referred The Conversation to data from the US Bureau of Justice Statistics and the Australian Bureau of Statistics (ABS), and said: </p>
<blockquote>
<p>The US has the <a href="http://www.prb.org/Publications/Articles/2012/us-incarceration.aspx">highest rate of imprisonment</a> (in number and by percentage of population).</p>
<p>In the US, the African-American people <a href="https://www.prisonpolicy.org/graphs/raceinc.html">are the most incarcerated</a> by percentage of their population (2,207 per 100,000).</p>
<p>Indigenous Australians <a href="http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0%7E2016%7EMain%20Features%7EAboriginal%20and%20Torres%20Strait%20Islander%20prisoner%20characteristics%7E5">are the most incarcerated</a> by percentage of their population (2,346 per 100,000).</p>
<p>Therefore, the statement that Indigenous Australians are the most incarcerated people in the world is true.</p>
</blockquote>
<h2>What do the data say?</h2>
<p>It depends a bit on what you mean by “people”, which is a tricky term to define and will mean different things to different audiences. </p>
<p>For the purposes of this FactCheck, I have confined myself to checking Pearson’s statement on Indigenous Australian incarceration rates with the best available data on national incarceration rates in other countries. </p>
<p>I have also checked Indigenous Australian incarceration rates against the rate at which Indigenous populations are imprisoned in other countries, as well as the rate for African-Americans.</p>
<p>Let’s look at the facts.</p>
<h2>Which country has the world’s highest adult imprisonment rate?</h2>
<p>We can compare rates of incarceration in countries around the world using the <a href="http://www.prisonstudies.org/world-prison-brief-data">World Prison Brief</a>, an international database hosted by the Institute for Criminal Policy Research at Birbeck, University of London. It reports the number of adults incarcerated per 100,000 of the total population in 223 jurisdictions.</p>
<p>Pearson’s spokesperson was accurate to say the US had the highest overall rate of imprisonment in 2010, but things have changed since then.</p>
<p>The World Prison Brief now <a href="http://www.prisonstudies.org/country/seychelles">names Seychelles</a> as the country with the <a href="http://www.prisonstudies.org/highest-to-lowest/prison_population_rate?field_region_taxonomy_tid=All">highest adult imprisonment rate</a>. That’s based on data from 2014, which showed Seychelles had an imprisonment rate of 799 adults per 100,000 people.</p>
<p>The US is currently in second place, having reported <a href="http://www.prisonstudies.org/country/united-states-america">666 adult prisoners per 100,000 people</a> in 2015.</p>
<p>As a total population – including both Indigenous and non-Indigenous Australians – Australia currently ranks 93rd on the World Prison Brief list, with an imprisonment rate of 162 adults per 100,000 of the total population in 2016.</p>
<p>But, as Pearson highlighted on Q&A, we get a very different result when we look at the incarceration rate for Indigenous Australians.</p>
<h2>Comparing Indigenous Australia’s imprisonment rate to the World Prison Brief rankings</h2>
<p>The World Prison Brief <em>doesn’t</em> report the adult imprisonment rate for Indigenous Australians as a subset of the Australian population. But it is possible to calculate an estimate to compare to the international figures, using ABS data and population estimates. </p>
<p>In 2015, the Indigenous population in Australia was <a href="http://stat.data.abs.gov.au/Index.aspx?DataSetCode=ABORIGINAL_POP_PROJ">approximately 729,000 people</a>. In that year, there were <a href="http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0%7E2015%7EMain%20Features%7EAboriginal%20and%20Torres%20Strait%20Islander%20prisoner%20characteristics%7E7">9,885 Indigenous adult prisoners</a>. That’s an imprisonment rate of roughly 1,356 adults per 100,000 of the total Indigenous Australian population.</p>
<p>So, Pearson’s statement that Indigenous Australians are “the most incarcerated people on the planet Earth” is correct if considering Indigenous Australian incarceration rates alongside incarceration rates in countries listed by the World Prison Brief.</p>
<iframe src="https://datawrapper.dwcdn.net/feru1/5/" scrolling="no" frameborder="0" allowtransparency="true" allowfullscreen="allowfullscreen" webkitallowfullscreen="webkitallowfullscreen" mozallowfullscreen="mozallowfullscreen" oallowfullscreen="oallowfullscreen" msallowfullscreen="msallowfullscreen" width="100%" height="400"></iframe>
<h2>Indigenous and marginalised groups’ incarceration rates in Canada, NZ and the US</h2>
<p>But how does Australia’s Indigenous imprisonment rate compare with those of other Indigenous and marginalised communities around the world?</p>
<p>Data on Indigenous imprisonment rates are not consistently measured or reported in many countries. So it’s difficult to gauge how Australia’s Indigenous imprisonment rate compares with Indigenous people or marginalised groups internationally.</p>
<p>But credible data are available for a number of groups in several countries: Australia, Canada, New Zealand and the US.</p>
<p>(Note: the following figures are reported per 100,000 of the <em>adult</em> population, not the <em>total</em> population as used by the World Prison Brief.)</p>
<p>Starting with the US, Pearson’s spokesperson accurately quoted US Bureau of Justice Statistics that showed African-Americans were the most imprisoned racial group in the US in 2010, with an adult imprisonment rate of <a href="https://www.prisonpolicy.org/graphs/raceinc.html">2,207 per 100,000 African-American adults</a>. In the same year, Indigenous Australians were imprisoned at a higher rate – <a href="http://www.abs.gov.au/ausstats/abs@.nsf/Products/12CF5E952D0E70C6CA2577F3000F0AEC?opendocument">2,303 per 100,000 Indigenous adults</a>.</p>
<p>In 2015, the adult imprisonment rate of Indigenous Australians was still higher than that of African-Americans. In that year, <a href="https://www.bjs.gov/content/pub/pdf/p15.pdf">1,745 per 100,000 African-American adults</a> were incarcerated, compared to <a href="http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0%7E2015%7EMain%20Features%7EImprisonment%20rates%7E14">2,253 per 100,000 Indigenous Australian adults</a>.</p>
<p>(By 2016, the Indigenous Australian incarceration rate had risen another 4%, to <a href="http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0%7E2016%7EMain%20Features%7EAboriginal%20and%20Torres%20Strait%20Islander%20prisoner%20characteristics%7E5">2,346 adult prisoners per 100,000 adults</a>.)</p>
<p>The imprisonment rate for Indigenous Americans in the US in 2010 was <a href="https://www.prisonpolicy.org/graphs/2010rates/US.html">895 per 100,000 Indigenous American adults</a>. The imprisonment rate for Canada’s Aboriginal people in 2010-11 was estimated to be <a href="http://www.oci-bec.gc.ca/cnt/rpt/oth-aut/oth-aut20121022info-eng.aspx">1,400 per 100,000 Aboriginal Canadian adults</a>. </p>
<p>We can calculate the imprisonment rate for New Zealand’s Māori using statistics from the <a href="http://www.corrections.govt.nz/resources/research_and_statistics/quarterly_prison_statistics/December_2015.html">Department of Corrections</a> and <a href="http://www.stats.govt.nz/browse_for_stats/population/estimates_and_projections/MaoriPopulationEstimates_HOTPMYeDec15.aspx">Stats NZ</a>. In 2015, the Māori adult imprisonment rate was approximately 1,063 per 100,000 Māori adults.</p>
<p>So, Indigenous Australians were imprisoned at higher rates than Indigenous people in the US in 2010, in Canada in 2010-11 and in New Zealand in 2015, and than African-Americans in 2015. </p>
<iframe src="https://datawrapper.dwcdn.net/bJtOb/5/" scrolling="no" frameborder="0" allowtransparency="true" allowfullscreen="allowfullscreen" webkitallowfullscreen="webkitallowfullscreen" mozallowfullscreen="mozallowfullscreen" oallowfullscreen="oallowfullscreen" msallowfullscreen="msallowfullscreen" width="100%" height="250"></iframe>
<iframe src="https://datawrapper.dwcdn.net/Nv1LM/3/" scrolling="no" frameborder="0" allowtransparency="true" allowfullscreen="allowfullscreen" webkitallowfullscreen="webkitallowfullscreen" mozallowfullscreen="mozallowfullscreen" oallowfullscreen="oallowfullscreen" msallowfullscreen="msallowfullscreen" width="100%" height="200"></iframe>
<h2>Verdict</h2>
<p>Noel Pearson’s statement that Indigenous Australians are “the most incarcerated people on the planet Earth” is correct, based on the best available international data. <strong>– Thalia Anthony</strong></p>
<hr>
<h2>Review</h2>
<p>This is a sound FactCheck.</p>
<p>We do not have data for imprisonment rates of Indigenous, minority or marginalised groups in every country on Earth, so we cannot categorically state Indigenous Australians are the most incarcerated on the planet.</p>
<p>But for countries for which we do have data, this is an accurate statement. <strong>– Eileen Baldry</strong></p>
<hr>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/162128/original/image-20170323-13486-72k52f.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/162128/original/image-20170323-13486-72k52f.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/162128/original/image-20170323-13486-72k52f.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/162128/original/image-20170323-13486-72k52f.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/162128/original/image-20170323-13486-72k52f.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/162128/original/image-20170323-13486-72k52f.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/162128/original/image-20170323-13486-72k52f.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/162128/original/image-20170323-13486-72k52f.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Conversation FactCheck is accredited by the International Fact-Checking Network.</span>
</figcaption>
</figure>
<p><em>The Conversation’s FactCheck unit is the first fact-checking team in Australia and one of the first worldwide to be accredited by the International Fact-Checking Network, an alliance of fact-checkers hosted at the Poynter Institute in the US. <a href="https://theconversation.com/the-conversations-factcheck-granted-accreditation-by-international-fact-checking-network-at-poynter-74363">Read more here</a>.</em></p>
<p><em>Have you seen a “fact” worth checking? The Conversation’s FactCheck asks academic experts to test claims and see how true they are. We then ask a second academic to review an anonymous copy of the article. You can request a check at <a href="mailto:checkit@theconversation.edu.au">checkit@theconversation.edu.au</a>. Please include the statement you would like us to check, the date it was made, and a link if possible.</em></p><img src="https://counter.theconversation.com/content/78528/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thalia Anthony receives funding from the Australian Research Council.</span></em></p><p class="fine-print"><em><span>Eileen Baldry receives funding from the Australian Research Council.</span></em></p>Cape York Partnership founder Noel Pearson told Q&A that Indigenous Australians were ‘the most incarcerated people on the planet Earth’. Is that right?Thalia Anthony, Professor of Law, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/756182017-04-05T19:25:42Z2017-04-05T19:25:42ZYoung people’s voices are all but invisible in the Don Dale royal commission’s interim report<figure><img src="https://images.theconversation.com/files/163971/original/image-20170404-5702-14zq5fp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The royal commission has heard evidence from more than 60 witnesses, including those in youth detention in the Northern Territory.</span> <span class="attribution"><span class="source">AAP/Lucy Hughes Jones</span></span></figcaption></figure><p>It’s been just over eight months since <a href="http://www.abc.net.au/4corners/stories/2016/07/25/4504895.htm">the screening</a> of images of Dylan Voller shackled and hooded in a restraint chair, unprovoked bashing of children by prison guards, and young boys being gassed in Northern Territory youth detention. The national outcry prompted the announcement of <a href="https://childdetentionnt.royalcommission.gov.au/">a royal commission</a> to investigate the issues.</p>
<p>The commission’s <a href="https://childdetentionnt.royalcommission.gov.au/about-us/Pages/letters-patent.aspx">terms of reference</a> extended to the NT child protection system in recognition of the many kids who journey through both this <a href="http://www.aihw.gov.au/publication-detail/?id=60129554445&tab=2">and the youth detention system</a>. However, these did not make reference to the cultural needs of Indigenous young people, who make up <a href="https://theconversation.com/why-are-so-many-indigenous-kids-in-detention-in-the-nt-in-the-first-place-63257">the overwhelming proportion of children</a> in these systems.</p>
<p>Despite expectations, the commission’s much-anticipated <a href="https://childdetentionnt.royalcommission.gov.au/about-us/Documents/RCNT-Interim-report.pdf">interim report</a>, released last week, did not deliver any findings or make any recommendations. Nor did it reflect young people’s personal stories.</p>
<h2>Interim report lacks recommendations</h2>
<p>Since August 2016, the commission has heard evidence from more than 60 witnesses, including those in youth detention in the NT. Many were also in the child protection system. </p>
<p>It has also visited youth detention centres in the NT, held meetings with people from Indigenous organisations in remote communities, and looked to other jurisdictions for guidance on best practice.</p>
<p>The commission’s interim report was highly anticipated for two reasons:</p>
<ul>
<li><p>First, because of the concerns expressed by <a href="https://childdetentionnt.royalcommission.gov.au/public-hearings/Documents/evidence-2016/evidence12december/Exh-050-001.pdf">young people</a> appearing before the commission that <a href="https://childdetentionnt.royalcommission.gov.au/public-hearings/Documents/evidence-2017/evidence24march/Exh-159-001.pdf">detention centres</a> and out-of-home care facilities are <a href="https://childdetentionnt.royalcommission.gov.au/public-hearings/Documents/evidence-2017/evidence13march/Exh-068-001.pdf">traumatic</a> – and urgent action is needed to <a href="https://childdetentionnt.royalcommission.gov.au/public-hearings/Documents/evidence-2017/evidence13march/Exh-067-001.pdf">change practices</a> and <a href="https://childdetentionnt.royalcommission.gov.au/public-hearings/Documents/evidence-2017/evidence13march/Exh-065-001.pdf">remove children</a> from these institutions and <a href="https://childdetentionnt.royalcommission.gov.au/public-hearings/Documents/evidence-2017/evidence23march/Exh-139-001.pdf">into families and the community</a>. </p></li>
<li><p>Second, the since-elected <a href="http://www.skynews.com.au/news/top-stories/2016/12/15/young-offenders-need-action-sooner--gunner.html">NT Labor government</a> has refrained from making any substantive changes to youth detention or child protection until the commission’s findings are handed down. In the meantime, children in the NT continue to be sent to youth detention facilities <a href="http://www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=60129559053">at increasing rates</a>.</p></li>
</ul>
<p>The report’s failure to deliver any findings or make any recommendations is a far cry from the approach of the Royal Commission into Aboriginal Deaths in Custody. Notwithstanding ongoing investigations, its interim report outlined detailed recommendations that <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol1/2.html">precipitated immediate reforms</a>. </p>
<p>Even the recent visit of the UN special rapporteur on the rights of indigenous peoples, Victoria Tauli-Corpuz, produced a <a href="http://un.org.au/2017/04/03/end-of-mission-press-conference-and-end-of-mission-statement-by-the-un-special-rapporteur-on-the-rights-of-indigenous-peoples-victoria-tauli-corpuz-on-her-visit-to-australia/">preliminary report</a>. It had recommendations such as:</p>
<ul>
<li><p>increasing the age of criminal responsibility;</p></li>
<li><p>providing children with dignity and respect in detention;</p></li>
<li><p>supporting Indigenous community-led diversion; and </p></li>
<li><p>greater engagement with Indigenous families and communities in decision-making processes around child protection.</p></li>
</ul>
<p>The commission did outline some interim observations. These included that:</p>
<blockquote>
<p>There is a strong perception that the system of detention in the Northern Territory is failing.</p>
</blockquote>
<p>That youth detention is:</p>
<blockquote>
<p>… likely to leave children and young people more damaged than when they entered.</p>
<p>… punitive, not rehabilitative.</p>
</blockquote>
<p>That the centres are:</p>
<blockquote>
<p>… harsh, bleak and not in keeping with modern standards.</p>
</blockquote>
<p>And that:</p>
<blockquote>
<p>The youth justice and child protection systems in the NT are inextricably linked.</p>
</blockquote>
<h2>Children’s voices are missing</h2>
<p>The commission’s <a href="https://childdetentionnt.royalcommission.gov.au/public-hearings/Pages/transcripts-and-exhibits.aspx">transcripts and exhibits</a> are replete with young people’s experiences and recommendations for change – told in their own words. However, its interim report did not reflect this.</p>
<p>In contrast, the <a href="http://www.childabuseroyalcommission.gov.au/about-us/our-reports/interim-report-html">interim report</a> of the ongoing Royal Commission into Institutional Responses to Child Sexual Abuse had an <a href="http://www.childabuseroyalcommission.gov.au/getattachment/8fcb1078-a5ca-4750-ad24-052452f15a58/Volume-2">entire volume</a> dedicated to the personal stories and poetry of abuse survivors across various institutional settings. </p>
<p>Research by <a href="https://www.researchonline.mq.edu.au/vital/access/services/Download/mq:55401/SOURCE1">Holly Doel-Mackaway</a> demonstrates the importance of engaging Indigenous young people in decision-making on matters that affect them. Her research in relation to the NT Intervention found Indigenous young people had informed views about the policy, but that their voices were not included in the decision-making.</p>
<p>The NT royal commission’s interim report opens with coverage of statistics on rates of youth incarceration and child protection. These statistics may paint a picture of a systemic problem. However, they also run the risk of <a href="https://theconversation.com/why-we-should-honour-the-humanity-of-every-person-who-dies-in-custody-57272">dehumanising young people’s experiences</a>. </p>
<p><a href="http://www.alternative.ac.nz/content/who-are-experts-here-recognition-aboriginal-women-and-community-workers-research-and-beyond">Juanita Sherwood and others</a> emphasise the importance of storytelling in conveying the experiences of Indigenous people in the criminal justice system and in effecting change. The stories told to the commission convey the pain from:</p>
<ul>
<li><p>weeks spent in isolation cells;</p></li>
<li><p>young girls being forcibly stripped by male officers;</p></li>
<li><p>random attacks by officers;</p></li>
<li><p>punitive restraints; and </p></li>
<li><p>there being no avenues of support when these children were at the mercy of youth detention officers. </p></li>
</ul>
<p>Dylan Voller <a href="https://childdetentionnt.royalcommission.gov.au/public-hearings/Pages/hearings/2016/12-December-2016-Public-hearing.aspx">gave evidence</a> that while he was hooded in his restraint chair for hours he thought:</p>
<blockquote>
<p>… there’s no-one in there, no responsible person that could have – that would have said, “That’s enough”, that, “We need to get him out of that restraint chair, he has been in there for too long.”</p>
</blockquote>
<p>In addition to the harm in youth detention and child protection placements, stories have also expressed the benefits of cultural programs and the need for Indigenous community-run programs. </p>
<p>These stories, from both children and elders, are lost in a narrative that focuses on institutions. Yet they are critical for informing change that recognises the vital role of family, community and country in Indigenous young people’s lives.</p>
<p>Young people who have given evidence have expressed disappointment at the interim report’s limited scope, which Voller has <a href="http://www.sbs.com.au/nitv/nitv-news/article/2017/04/04/there-needs-be-criminal-investigation-voller-gives-first-interview-after-royal">publicly articulated</a>. For him, the detention conditions were not only punitive, as the commission’s report described them, but unjustifiably violent.</p>
<p>The final report, which is due on August 1, will be the next opportunity to dignify the young people whose suffering hastened the inquiry. </p>
<p>This report must not only make findings and recommendations that recognise the harm inflicted on them and promote reparations, accountability and a shift in the approach to youth detention and child protection in the NT, but also be a platform to convey the words of these young people whose voices were silenced for too long.</p><img src="https://counter.theconversation.com/content/75618/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thalia Anthony receives funding from the Australian Research Council. She has previously received funding from the Australasian Institute of Judicial Administration and the Criminology Research Council.</span></em></p>The NT youth justice royal commission’s interim report did not deliver any findings or make any recommendations. Nor did it reflect young people’s personal stories.Thalia Anthony, Associate Professor in Law, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/700592016-12-31T20:33:37Z2016-12-31T20:33:37ZCabinet papers 1992-93: Keating government fights for Indigenous rights on multiple fronts<figure><img src="https://images.theconversation.com/files/151218/original/image-20161221-14208-a2bfgq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Paul Keating recognised the significant opportunities – and political risks – the High Court's Mabo decision presented.</span> <span class="attribution"><span class="source">National Archives of Australia</span></span></figcaption></figure><p>Paul Keating’s first term as prime minister is often remembered for divisive debates over Indigenous affairs. He sought to pursue his vision of reconciliation between Aboriginal and non-Aboriginal Australians, negotiated passage of the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/nta1993147/">Native Title Act</a> and acknowledged the injustices and cruelties of Australia’s colonial history in his famous <a href="https://antar.org.au/sites/default/files/paul_keating_speech_transcript.pdf">Redfern Speech</a>. </p>
<p>However, economic priorities often overshadowed these events. Australia was <a href="http://www.abc.net.au/radionational/programs/boyerlectures/lecture-4-the-recession-of-1990-and-its-legacy/3353124">emerging from recession</a> with high unemployment and a growing budget deficit.</p>
<p>Cabinet documents from 1992 and 1993, released today by the National Archives of Australia, reveal the extent to which the government was torn between concern for fiscal responsibility and a desire to tackle Indigenous disadvantage and pursue meaningful reconciliation. </p>
<p>This tension was clear in the two major issues the government responded to in this period: the <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/">Royal Commission into Aboriginal Deaths in Custody</a> report, and the High Court’s <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/high_ct/175clr1.html?">Mabo decision</a>.</p>
<h2>Deaths in custody</h2>
<p>The response of the minister for Aboriginal and Torres Strait Islander affairs, Robert Tickner, to the royal commission unusually ranged across all aspects of Indigenous disadvantage. It recognised the commissioners’ strong argument that incarceration was a symptom of a long history of social, cultural and economic exclusion – one that demanded a more committed policy response. </p>
<p>Tickner had negotiated and co-signed policy measures with counterparts in the portfolios of employment, education and training, health, housing and community services, attorney-general, primary industries and energy, and others.</p>
<p>He proposed an expansion of the Community Development Employment Projects to provide both services and employment, particularly for Indigenous youth and women.</p>
<p>The package also proposed the appointment of an Aboriginal and Torres Strait Islander Commissioner in the Human Rights and Equal Opportunity Commission who would <a href="https://www.humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice/about-aboriginal-and-torres-strait">report annually</a> on social justice and human rights.</p>
<p>The policy package was slashed, however, from A$540 million to A$150 million over five years. This was in response to the demands of Treasury and Finance, which insisted that only the policies most obviously related to criminal justice be funded. The rest were to be reconsidered later if offsets could be found elsewhere.</p>
<p>This short-sighted response to the commission’s 339 recommendations is <a href="http://www.smh.com.au/federal-politics/political-news/patrick-dodsons-takedown-of-appalling-demonstration-of-ignorance-by-nigel-scullion-20161021-gs7vzu.html">still criticised today</a>. This is especially the case as Indigenous incarceration rates <a href="http://www.abs.gov.au/ausstats/abs@.nsf/mf/4517.0">continue to spiral</a> in response to profound and complex disadvantage.</p>
<h2>Mabo and native title</h2>
<p>The government’s response to Mabo was similarly contested. This time the enemies were outside cabinet.</p>
<p>Keating understood the significant opportunity the decision presented. However, it placed the government in an almost impossible position. It was caught between Indigenous expectations, mining industry demands, fiscal constraints and state government recalcitrance – in addition to heightened international scrutiny.</p>
<p>The Mabo decision was complex. The media and most MPs understood the issues poorly. It was also clear that legislative recognition of native title was more likely to lose the government electoral support than win it more votes. As Keating’s speechwriter, Don Watson, <a href="https://www.australianbookreview.com.au/about/61-november-2011/618-don-watson-recollections-of-a-bleeding-heart-second-edition">noted</a>:</p>
<blockquote>
<p>Designing a legislative response to Mabo was a moral imperative and a political death trap … [with] all the elements of political horror.</p>
</blockquote>
<p>Cabinet nominated a Mabo committee, which consisted of Keating and Tickner along with the attorney-general, Michael Duffy. At its meeting on October 27, 1992, cabinet noted the dangers of “uncertainty” for the mining industry and observed:</p>
<blockquote>
<p>… the importance of the threshold across which the High Court has taken the nation and the ultimate need for government decision.</p>
</blockquote>
<p>At the same time, cabinet prepared itself for potential political disaster. It was aware it could not satisfy all the competing interests, and that there was little chance of support from the Liberal opposition. </p>
<p>Negotiations extended through 1993, following the federal election in March. </p>
<p>Cabinet adopted Keating’s “principles for a response” to the Mabo decision on June 1, 1993, in anticipation of a <a href="http://webarchive.nla.gov.au/gov/20040709211354/http://www.coag.gov.au/meetings/080693/index.htm">very tense Council of Australian Governments meeting</a>. State premiers were keen to demonstrate their objections to Commonwealth intervention in their management of land and Indigenous affairs. </p>
<p>The states would test the Commonwealth’s patience throughout 1993. Queensland demanded the Commonwealth pay compensation for any invalidated mining leases. Western Australia passed its own pre-emptive legislation attempting to extinguish native title altogether.</p>
<p>When Keating presented a draft native title bill on September 1, the cabinet minutes hinted at nervousness about the potential political fallout. Ministers were encouraged to “be ready to discuss the proposals with interest groups”. Keating was exhorted to “take whatever action was necessary to advance and protect the Commonwealth’s interests”. </p>
<p>Cabinet saw fit to afford Keating “latitude” in his negotiations. This prime ministerial prerogative would prove critical to the legislation’s ultimate success. Its passage was based on delicate compromises made with state premiers, Greens and Democrats senators, the National Farmers Federation and Aboriginal leaders.</p>
<h2>ATSIC’s role</h2>
<p>Throughout the year, the Aboriginal and Torres Strait Islander Commission (ATSIC) repeatedly insisted in cabinet submissions that alternative forms of redress be provided for the majority of Indigenous people who no longer enjoyed an unbroken connection with traditional lands. </p>
<p>The government prepared a “social justice and economic development package” within the constraints of the ever-present “fiscal realities” the government faced. Both ATSIC and the Council for Aboriginal Reconciliation requested more time for consultation. The package was thus delayed and disconnected from the Native Title Act, which received royal assent on December 24, 1993.</p>
<p>One notable feature of this period is the role of ATSIC, which the Hawke government created in 1990 as a practical expression of self-determination. As an elected body with administrative responsibility for much of the portfolio of Aboriginal affairs, ATSIC fulfilled both <a href="http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/CIB/Current_Issues_Briefs_2004_-_2005/05cib04">representative and executive functions</a>. </p>
<p>Cabinet documents reveal ATSIC was assertive in advising its junior minister. It commented on all relevant cabinet submissions and made additional submissions on key issues. This ensured the senior ministry took Aboriginal perspectives into account. </p>
<p>The Howard government abolished ATSIC in 2004, amid controversy. The bureaucrats were folded into mainstream departments, and the government abandoned the representative function entirely.</p>
<h2>How much has changed?</h2>
<p>Cabinet records from this period reveal some constants in Indigenous politics. Indigenous interests confront many powerful adversaries – including state and territory governments, and industries with interests in Aboriginal land. </p>
<p>Proposed expenditure tackling Indigenous social and economic disadvantage remains subject to the hard-headed decision-makers inside cabinet representing Finance and Treasury. </p>
<p>Finally, the task of tackling Indigenous priorities is even more challenging today, given the absence of ATSIC or some other representative body engaging in cabinet-level co-ordination and negotiation.</p><img src="https://counter.theconversation.com/content/70059/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Diana Perche does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Cabinet papers reveal the extent to which the Keating government was torn between concern for fiscal responsibility and a desire to tackle Indigenous disadvantage and pursue meaningful reconciliation.Diana Perche, Lecturer in Politics and Public Policy, Macquarie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/630442016-07-27T02:53:50Z2016-07-27T02:53:50ZData gaps mean Indigenous incarceration rates may be even worse than we thought<p>Prime Minister Malcolm Turnbull has <a href="http://www.malcolmturnbull.com.au/media/interview-with-michael-brissenden-abc-am1">called for a Royal Commission</a> into abuse of youths in the Northern Territory corrections system after the ABC’s <a href="http://www.abc.net.au/4corners/stories/2016/07/25/4504895.htm">Four Corners</a> program aired footage of children being hooded, shackled and teargassed at a Darwin juvenile detention centre.</p>
<p>Cape York Institute senior policy adviser Shireen Morris <a href="http://www.abc.net.au/tv/qanda/txt/s4485530.htm">told</a> Q&A that the incarceration rate of Indigenous people has doubled since the Royal Commission into Aboriginal Deaths in Custody 25 years ago.</p>
<p>That statement is <a href="https://theconversation.com/indigenous-incarceration-in-australia-at-a-glance-57821">true</a> but gaps in the data suggest the problem may be even worse than the official statistics suggests. </p>
<h2>Official data show the rate has doubled in last 25 years</h2>
<p>Australian Bureau of Statistics data show the Indigenous incarceration rate in 1991 was 14.4%. In 2015, it was <a href="http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0%7E2015%7EMain%20Features%7EAboriginal%20and%20Torres%20Strait%20Islander%20prisoner%20characteristics%7E7">27.4%</a>. In the March 2016 quarter, it was <a href="http://www.abs.gov.au/ausstats/abs@.nsf/mf/4512.0">28%</a>. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/131892/original/image-20160726-24908-1or4wo6.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/131892/original/image-20160726-24908-1or4wo6.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=1077&fit=crop&dpr=1 600w, https://images.theconversation.com/files/131892/original/image-20160726-24908-1or4wo6.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=1077&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/131892/original/image-20160726-24908-1or4wo6.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=1077&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/131892/original/image-20160726-24908-1or4wo6.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1354&fit=crop&dpr=1 754w, https://images.theconversation.com/files/131892/original/image-20160726-24908-1or4wo6.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1354&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/131892/original/image-20160726-24908-1or4wo6.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1354&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<p>For every 100,000 Indigenous people, 2,253 are in prison (up from 1,232 in 1991). For every 100,000 non-Indigenous people, 146 are in prison (up from 102 in 1991). This makes an Indigenous adult 15.4 times more likely to be in prison than a non-Indigenous person.</p>
<h2>But the real rate may be worse</h2>
<p>There are a number of limitations with prison data collections.</p>
<p>First, official prison measurements are point-in-time: they reflect the number of prisoners on a certain day (generally 30 June) in any given year. </p>
<p>They do not represent the through-flow of prisoners across a year. Indigenous people are <a href="http://www.alsnswact.org.au/media/BAhbBlsHOgZmSSJhMjAxMS8wOC8xNS8yM18yNF80Ml80NTRfSW5kaWdlbm91c19BdXN0cmFsaWFuc19JbmNhcmNlcmF0aW9uX2FuZF90aGVfQ0pTX09jdF8yMDEwX1NlbmF0ZS5wZGYGOgZFVA">more likely to receive shorter sentences</a>, and more likely to cycle in and out of prison. So it is likely that the over-representation of Indigenous people in prisons over the course of the year is greater than the official statistics suggest. </p>
<p><a href="http://www.lawcouncil.asn.au/lawcouncil/images/Professor_Stewart_Kinner.pdf">Research</a> by Professor <a href="https://www.griffith.edu.au/criminology-law/school-criminology-criminal-justice/staff/professor-stuart-kinner">Stuart Kinner</a>, a Griffith University expert on criminal justice, <a href="http://onlinelibrary.wiley.com/doi/10.1111/1753-6405.12346/abstract">found</a> that the annual “flow” of Indigenous people through Australian prisons significantly exceeds the daily number.</p>
<p>Before the Royal Commission into Aboriginal Deaths in Custody handed down its report in 1991, there were few statistics on numbers of Indigenous women in custody. We now have a more nuanced understanding of the prison demographic. The Royal Commission also made a special point about the <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol2/116.html">inadequate information</a> in relation to juvenile prisoners at the time. </p>
<p>Among prisoners, Indigenous children and Indigenous women are currently the most over-represented compared to their non-Indigenous counterparts. However, we are unable to compare changes across all demographics.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/131893/original/image-20160726-31178-1bd80d8.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/131893/original/image-20160726-31178-1bd80d8.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=663&fit=crop&dpr=1 600w, https://images.theconversation.com/files/131893/original/image-20160726-31178-1bd80d8.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=663&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/131893/original/image-20160726-31178-1bd80d8.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=663&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/131893/original/image-20160726-31178-1bd80d8.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=834&fit=crop&dpr=1 754w, https://images.theconversation.com/files/131893/original/image-20160726-31178-1bd80d8.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=834&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/131893/original/image-20160726-31178-1bd80d8.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=834&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<p>A blanket understanding of increases in prison rates does not reflect the prisoners who are sentenced and those on remand (having been denied bail after charged but before proven guilty or sentenced).</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/131894/original/image-20160726-26566-16g5734.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/131894/original/image-20160726-26566-16g5734.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=316&fit=crop&dpr=1 600w, https://images.theconversation.com/files/131894/original/image-20160726-26566-16g5734.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=316&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/131894/original/image-20160726-26566-16g5734.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=316&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/131894/original/image-20160726-26566-16g5734.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=397&fit=crop&dpr=1 754w, https://images.theconversation.com/files/131894/original/image-20160726-26566-16g5734.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=397&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/131894/original/image-20160726-26566-16g5734.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=397&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<p>It’s worth noting statistics can vary based on the agency collecting them and their methodologies, leading to small discrepancies whether we examine the statistics of the corrections system, Australian Bureau of Statistics or other research bodies.</p>
<p>And although data collection on police custody has improved, the information on detention in police custody and police vehicles remains more scarce than that for prisons. Generally when people refer to the “incarceration rate” they mean the number of people in prisons.</p>
<p>Finally, there is limited public information on the proportion of Indigenous young people in detention centres who are in state care or have previously been subjected to state child removal policies. We are aware that the rates are high, but the nexus between child protection interventions and the the criminal justice system requires further analysis. Similar shortcomings in information on the number of Indigenous people with a mental impairment or disability in juvenile detention exist.</p>
<p>Having a more accurate picture of the scale of Indigenous incarceration and its features will better equip us to find solutions. </p>
<p>Statistics don’t necessarily solve problems, but there is an adage: what gets measured gets done.</p><img src="https://counter.theconversation.com/content/63044/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thalia Anthony has received funding from the Australian Research Council, the Criminology Research Council and the Australasian Institute of Judicial Administration.</span></em></p>The official data show incarceration rates of Indigenous people have doubled since the Royal Commission into Aboriginal Deaths in Custody 25 years ago. But the problem may be even worse than that.Thalia Anthony, Associate Professor in Law, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/572722016-04-14T20:06:22Z2016-04-14T20:06:22ZWhy we should honour the humanity of every person who dies in custody<p>It’s now 25 years since the Royal Commission into Aboriginal Deaths in Custody <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/">tabled its final report</a>. The anniversary will undoubtedly be marked by analysis and commentary, as well as reflections on statistics, key trends and issues relating to Aboriginal and Torres Strait Islander incarceration and death.</p>
<p>But in the midst of all this, we mustn’t lose sight of the human dimensions of this important social justice issue. </p>
<p>Sometimes the language of statistics and level of analysis used to discuss deaths in custody make us lose sight of something more fundamental. We are talking about people – people with families and friends, people who loved and were loved, people who may have died prematurely or in brutal circumstances.</p>
<p>To start redressing this oversight, let me share with you the story of a beautiful 22-year-old Yamatji girl arrested for overdue fines two years ago, who died in police custody soon afterwards. She is just one of many hundreds, each of whom deserves our attention. </p>
<h2>Remembering Ms Dhu</h2>
<p>Ms Dhu was born in Geraldton, Western Australia, in 1991. Her family describe her as “happy-go-lucky” and “always with a smile on her face”. She was caring, full of love and cheer, with a fierce sense of loyalty to friends and family. In her spare time, she liked to paint and make artwork. She dreamed of travelling one day. </p>
<p>She is dearly missed by her parents, Della Roe and Robert Dhu, by her grandmother Aunty Carol Roe, by her uncle, Shaun Harris, her brothers, sisters and extended family.</p>
<p>Ms Dhu died on August 4, 2014, at 1.39pm of septicaemia and pneumonia while in police custody for outstanding fines of A$3,622. Under Western Australian law, <a href="http://search.informit.com.au/documentSummary;dn=992196902668096;res=IELIND">fine defaulters can be jailed</a> and “pay down” their fines at a rate of A$250 per day in custody. </p>
<p>Ms Dhu died because she was unable to convince those around her – largely officers of the law and medical staff – that she was in a state of medical emergency. She died not surrounded by loved ones but by people who, until her last breaths, didn’t believe her cries of pain were real. </p>
<p>You may have read about her death, but you probably haven’t read much about what kind of person she was in life. </p>
<p>When a non-Indigenous person dies, we might read something in the mainstream media about what this person was like – that she had an <a href="http://www.dailytelegraph.com.au/news/nsw/georgina-bartter-deadly-ecstasy-pill-takes-a-beautiful-girls-life/news-story/a7553b11783761ff898a59ea6f4d6725">infectious sense of humour</a>, for instance. But this honouring of the deceased is <a href="https://andrewjakubowicz.com/publications/race-media-and-identity-in-australia/">rarely afforded to someone who dies in custody</a>, especially <a href="http://www.austlii.edu.au/au/journals/CICrimJust/2015/2.html">when they happen to be Indigenous</a>. </p>
<h2>Changing the record, challenging the narrative</h2>
<p>You may have read about the circumstances of Ms Dhu’s death because it was recently the subject of a high-profile coronial inquest. </p>
<p>You may have read how the nurse on duty described her behaviour and symptoms as “unremarkable” and gave her a triage score of four, the second lowest. And how <a href="http://www.abc.net.au/news/2015-11-26/medical-staff-did-not-check-ms-dhu-vital-signs-properly-inquest/6977712">the medical notes tendered in the inquest</a> describe a patient who had presented for “behavioural gain”.</p>
<p>You may have read about how the doctor on duty described her physical symptoms, which included being hunched over and limping, as “<a href="http://www.theguardian.com/australia-news/2015/nov/26/ms-dhu-inquest-family-lose-battle-to-show-cctv-to-disprove-aggression-claims">a little bit attention-seeking</a>”. Or about how officers on duty thought Ms Dhu was “<a href="http://www.abc.net.au/news/2016-03-21/ms-dhu-inquest-no-compassion-for-dying-aboriginal-woman-custody/7265066">pretending to faint to get quicker medical treatment</a>”. </p>
<p>These are harsh indictments of how trained professionals perceived and reacted to a woman dying of what are largely preventable and certainly treatable illnesses. But, again, they tell us very little about Ms Dhu herself; they speak only of how others perceived her.</p>
<p>Such details are haunting not only because of the stark nature of their content, but for what they represent: a complete denial of human compassion and dignity, and a national failure.</p>
<p>They speak of a failure to learn from past mistakes, including a failure to implement the 339 recommendations of the Royal Commission into Aboriginal Deaths in Custody. That <a href="https://newmatilda.com/2014/11/07/barnetts-petty-law-and-order-policy-encourages-deaths-custody">could have prevented Ms Dhu’s death</a> (recommendation 120 explicitly called for an amnesty on warrants for unpaid fines) since these were based on the much longer history of Aboriginal deaths, <a href="http://connection.ebscohost.com/c/articles/11081781/deaths-custody-australia-untold-story-aboriginal-torres-strait-islander-women">each as tragic and as preventable</a>.</p>
<p>Indeed, reading through the reports of the 99 deaths investigated by the royal commission gives a damning sense of deja vu.</p>
<p>Consider the story of the <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/individual/brm_nb/">41-year-old mother of five</a> who was distressed, hysterical and crying before her death, unable to convince authorities that she needed medical attention. </p>
<p>The story of the <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/individual/brm_mgcb">38-year old mother of two</a> who died in a watch-house from pneumonia after being arrested for unpaid fines, for failing to lodge an income tax return ten years earlier. </p>
<p>The story of <a href="http://netk.net.au/Aboriginal/Aboriginal24.asp">a woman from Ceduna</a> who died while in police custody, arrested for outstanding fines. </p>
<p>The story of a <a href="http://trove.nla.gov.au/work/16415407?selectedversion=NBD6393205">22-year-old</a> found hanged in a single cell at Midland Police Station in Perth, shortly after being arrested on a warrant for outstanding fines. </p>
<p>The royal commission heard 95 other such stories. And then there are the dead whose stories we will never know, as well as <a href="http://www.abc.net.au/news/2016-04-09/near-deaths-in-australian-prisons-going-largely-uninvestigated/7310608">the many “near misses”</a>.</p>
<h2>Fighting for justice</h2>
<p>To <a href="https://changetherecord.org.au/">change the record</a> on Indigenous deaths in custody, we must first change the narrative. This starts with honouring the lives of those who died in custody.</p>
<p>Ms Dhu was arrested for unpaid fines. Was this crime worth her life?</p>
<p>We need to think about this so-called crime in light of the broader social context. We should remember not just how she was treated by medical staff who showed no compassion and by the state police who failed to follow procedure.
We need to ask what kind of society believes jailing fine defaulters is a humane policy. </p>
<p>We also need to consider why our fellow citizens continue to see Aboriginality not in terms of an identity of proud and diverse peoples, but in terms of criminality and <a href="http://ncis.anu.edu.au/research/representation_identity.php">deficiency</a>.</p>
<p>Most importantly, we should think about the families waking up every day, adjusting to life without their daughters, sons, brothers and sisters; without their granddaughters and grandsons; without their nieces and nephews. We must think not only of the grief and anger they feel, but of their strength in fighting this battle on the ground.</p>
<p>“<a href="http://www.army.gov.au/our-work/speeches-and-transcripts/message-from-the-chief-of-army">The standard you walk past is the standard you accept</a>.” A lot of people walked past Ms Dhu – and all the others who have died dreadful deaths while under the “care” of the state. And so on this day we must ask ourselves: what standard are we willing to accept?</p>
<p><em>This article is part of <a href="https://theconversation.com/au/topics/royal-commission-special-report">a special report</a> marking the 25th anniversary of the Royal Commission into Aboriginal Deaths in Custody. <a href="https://theconversation.com/au/topics/royal-commission-special-report">Check out the rest of the package</a>.</em></p><img src="https://counter.theconversation.com/content/57272/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amanda Porter conducts research with the Aboriginal Legal Service of Western Australia. </span></em></p>The statistics used to discuss deaths in custody can make us lose sight of the fact that it’s people we’re talking about. People with families and friends, who died prematurely – and often brutally.Amanda Porter, Postdoctoral Fellow, Jumbunna Indigenous House of Learning, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/571252016-04-14T20:05:45Z2016-04-14T20:05:45ZScales of justice still tipped towards police who harm people in their custody<figure><img src="https://images.theconversation.com/files/118660/original/image-20160414-4694-1crzph1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The royal commission was highly critical of police investigating other police officers, but police remain responsible for investigating deaths in custody in most Australian jurisdictions.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/raeallen/4442238548/">Rae Allen/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span></figcaption></figure><p>Accountability for the deaths of Aboriginal and Torres Strait Islander people at the hands of the state remains absent 25 years after the <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/">Royal Commission into Aboriginal Deaths in Custody tabled its report</a>. </p>
<p>Between January 1, 1980, and June 30, 2011, <a href="http://aic.gov.au/media_library/publications/mr/mr20/mr20.pdf">203 Aboriginal and Torres Strait Islander Australians died</a> in police custody or custody-related operations. But the state has only twice sought to bring criminal prosecutions against police officers linked to such deaths. </p>
<h2>Failed prosecutions</h2>
<p>The first attempt was in 1984, for the death of 16-year-old John Pat. He had been arrested after a fight between several Aboriginal youths and some off-duty police officers and a police aide. </p>
<p><a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/individual/brm_jpp/2.html">According to witnesses</a>, Pat was knocked to the ground and then thrown into a police van. Once he arrived at the police watch house, he and at least two other of the five arrested men were again assaulted by police. </p>
<p>Pat died from an internal head injury. He suffered a fractured skull, broken ribs, a torn aorta and severe bruising across much of his body. Following a coronial inquest, the police officers and aide were charged with manslaughter. All five were acquitted.</p>
<p>In June 2007, Senior Sergeant <a href="http://www.smh.com.au/news/national/palm-island-officer-not-guilty/2007/06/20/1182019160877.html">Christopher Hurley was tried and acquitted</a> in Townsville for manslaughter and assault after the death of Mulrunji Doomadgee in Palm Island on November 19, 2004. </p>
<p>And it’s not just criminal prosecution that’s inadequate. Over a year after the death of Miss Dhu in Western Australia in 2014, no officer involved in her – lack of – care has “<a href="http://www.watoday.com.au/wa-news/wa-death-in-custody-inquest-no-cops-sacked-after-ms-dhus-death-20151203-glevpo.html">suffered losses to their rank or salary</a>”. </p>
<p>The primary obstacle to effective criminal prosecution in these cases – as well as others where charges have never been laid – is that evidence is lost or corrupted during the investigation process.</p>
<p>Effective investigation requires rapid collection of evidence by professionals who prioritise the state’s obligation to investigate and prosecute crime. Whether police officers can impartially investigate one of their own is questionable.</p>
<p>This issue was raised – 25 years ago – by the Royal Commission into Aboriginal Deaths in Custody in its final report. The commission was highly critical of police investigating other police officers. Its report <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol1/">made a number of recommendations</a> relating to “thorough, competent and impartial” investigations.</p>
<p>But, in most Australian jurisdictions, <a href="https://changetherecord.org.au/resources/files/Chapter%2003_%20Post-Death%20Investigations.pdf">police remain responsible for the investigation of deaths</a> in custody.</p>
<h2>Flawed investigations</h2>
<p>Shortcomings of the practice are demonstrated starkly by the case of 36-year-old Mulrunji Doomadgee. Arrested for being drunk in public and swearing, Doomadgee was killed in an altercation with Senior Sergeant Christopher Hurley, as a result of massive internal injuries, including a liver almost “cleaved in two”, four fractured ribs and a ruptured portal vein. </p>
<p>The police officers who conducted the investigation into his death included Detective Sergeant Darren Robinson, who was known to the local community as Hurley’s friend. On the evening the investigative team arrived on Palm Island to conduct the investigation, they enjoyed a social dinner and beer with Hurley, their chief suspect. </p>
<p>Their work was criticised many times. </p>
<p>Delivering the findings of the first of two coronial inquiries into Doomadgee’s death in September 2006, <a href="http://www.courts.qld.gov.au/__data/assets/pdf_file/0008/86642/cif-doomadgee-mulrunji-20060927.pdf">Coroner Christine Clements called the investigation “compromised”</a>.</p>
<p>Hurley successfully appealed to the district court to challenge her findings. During the resulting second inquest, <a href="http://www.courts.qld.gov.au/__data/assets/pdf_file/0008/86858/cif-doomadgee-mulrunji-20100514.pdf">Coroner Brian Hines identified evidence of police collusion</a> aimed at protecting Hurley.</p>
<p>And a 2010 review of the circumstances surrounding Doomadgee’s death and the subsequent police investigation by the Queensland oversight body, the Crime and Misconduct Commission, found the investigation to be “<a href="http://www.ccc.qld.gov.au/research-and-publications/publications/police/cmc-review-of-the-queensland-police-service2019s-palm-island-review">seriously flawed, its integrity gravely compromised</a>.” </p>
<p><a href="http://www.lrc.justice.wa.gov.au/_files/P100-DP.pdf">Similar concerns were raised in Western Australia</a> in 2010 when the state coroner, noting that police tend to question other police differently, said:</p>
<blockquote>
<p>it is difficult to imagine a system which would favour police officers concerned more than the current one.</p>
</blockquote>
<p>But while oversight by integrity bodies may reveal flawed investigations, the absence of evidence remains a problem. Because without evidence, prosecutors have no way of putting anyone on trial. And the families and friends of those who die in police custody can expect no accountability.</p>
<h2>A clear solution</h2>
<p>The solution is to establish <a href="http://www.communitylaw.org.au/flemingtonkensington/cb_pages/files/VLF%20REPORT%20-Effective%20Investigation.pdf">an independent, nationwide police monitoring body</a> responsible for investigation of Aboriginal deaths in custody. Independence, in this context, means nothing less than genuine practical, political and organisational independence.</p>
<p>In particular, it needs:</p>
<ul>
<li><p>investigators who are trained civilians and neither active, seconded, nor ex-police to play any role as investigators;</p></li>
<li><p>where investigators and police are investigating related events (a suspected crime and an allegation of police violence during the arrest for that crime, for instance), the most severe allegation should take precedence. And the agency with responsibility for investigating that offence should collect the evidence;</p></li>
<li><p>investigators to use their own medical and forensic experts;</p></li>
<li><p>investigators to not uncritically rely on police versions of the event; and</p></li>
<li><p>real powers to investigate and adjudicate. Failures by police to co-operate with the body would become grounds for immediate dismissal.</p></li>
</ul>
<p>Until those investigating these Aboriginal deaths can do so without conflict, we can expect the rule of law to fall short for families seeking justice for the death of their loved ones while in custody.</p>
<p><em>This article is part of <a href="https://theconversation.com/au/topics/royal-commission-special-report">a special report</a> marking the 25th anniversary of the Royal Commission into Aboriginal Deaths in Custody. <a href="https://theconversation.com/au/topics/royal-commission-special-report">Check out the rest of the package</a>.</em></p><img src="https://counter.theconversation.com/content/57125/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Craig Longman acted as the solicitor in Lex Wotton's defence team. Wotton was charged with rioting
arising from events following Domadgee's death in custody. </span></em></p>Accountability for the deaths of Aboriginal and Torres Strait Islander people at the hands of the state remains absent 25 years after the Royal Commission into Aboriginal Deaths in Custody’s report.Craig Longman, Senior Researcher, Jumbunna Indigenous House of Learning, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/574912016-04-13T20:15:47Z2016-04-13T20:15:47ZHow ‘tough on crime’ politics flouts death-in-custody recommendations<p>Whatever might be said about its successes and failures, it’s clear that 25 years after the Royal Commission into Aboriginal Deaths in Custody <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/">tabled its final report</a>, Australia has become much less compassionate, more punitive and more ready to blame individuals for their alleged failings. </p>
<p>Nowhere is this more clear than in our desire for punishment. A harsh criminal justice system – in particular, more prisons and people behind bars – has apparently become a hallmark of good government.</p>
<p>This wasn’t always the case. But it just so happened that the royal commission handed down its findings at a time when the politics of law and order was rapidly changing. </p>
<h2>Reform to intolerance</h2>
<p>The 1970s through to the late 1980s was a period of criminal justice reform. Decriminalisation of certain types of summary offences, such as public drunkenness and prostitution; a commitment to reducing prison numbers through the introduction of community service orders and other non-custodial sentencing options; the development of mental health services for offenders; specific programs for women prisoners; and improved conditions for prisoners more generally: these were <a href="http://researchonline.jcu.edu.au/24468/">key parts of the political agenda</a>. </p>
<p>But, by the late 1980s and early 1990s, changing political conditions were <a href="http://www.austlii.edu.au/au/journals/AUIndigLawRw/2011/2.html">no longer conducive to effective reform</a> of the criminal justice system.</p>
<p>By the 1990s, state and territory governments no longer spoke of reducing prison numbers, but rather of <a href="http://researchonline.jcu.edu.au/24468/">the need to lock more people away</a>. </p>
<p>This move toward “law and order” responses manifested in:</p>
<ul>
<li><p>increased police powers, particularly in relation to public order;</p></li>
<li><p>“zero tolerance”-style laws that <a href="http://www.austlii.edu.au/au/journals/UWALawRw/1999/10.pdf">increased the use of arrest or detention</a> for minor offences;</p></li>
<li><p><a href="http://www.aic.gov.au/media_library/publications/tandi_pdf/tandi138.pdf">mandatory prison sentences</a> for various offences (particularly in the Northern Territory and Western Australia);</p></li>
<li><p>controls over judicial discretion through the introduction of mandatory minimum terms of imprisonment; </p></li>
<li><p>a growing use of remand and <a href="https://theconversation.com/not-for-punishment-we-need-to-understand-bail-not-review-it-28651">restrictions on bail eligibility</a>; </p></li>
<li><p>longer terms of imprisonment for a range of offences, most recently <a href="https://www.crimejusticejournal.com/article/view/145">New South Wales’ so-called “one-punch laws”</a>; </p></li>
<li><p>more people <a href="http://researchonline.jcu.edu.au/24468/">sentenced to prison than non-custodial options</a>; and </p></li>
<li><p><a href="http://researchonline.jcu.edu.au/24468/">changes to parole and post-release surveillance</a>, which have made parole more difficult to obtain and easier to revoke.</p></li>
</ul>
<p>There was <a href="http://researchonline.jcu.edu.au/24468/">both a judicial and political perception</a> of the need for “tougher” penalties, often based on political expedience and media-fuelled public alarm over particular crimes. </p>
<p>While these administrative, legal and technical changes contributed to increasing prison numbers, they also reflected a less tolerant and more punitive approach to crime and punishment. </p>
<p>Put bluntly, the last 25 years have seen a spectacle of punishment most graphically illustrated in climbing imprisonment rates. And these changes were directly in opposition to the fundamental findings of the royal commission, which advocated a reduction in Indigenous imprisonment rates. </p>
<h2>Self-fulfilling practices</h2>
<p>The Australian prison estate <a href="http://www.pc.gov.au/research/ongoing/report-on-government-services">now costs well over A$3 billion a year</a> to operate. And building a prison <a href="http://researchonline.jcu.edu.au/24468/">can cost between $500 million and $1 billion</a>, depending on its location, security level and size. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/118520/original/image-20160413-23623-r623yj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/118520/original/image-20160413-23623-r623yj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=365&fit=crop&dpr=1 600w, https://images.theconversation.com/files/118520/original/image-20160413-23623-r623yj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=365&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/118520/original/image-20160413-23623-r623yj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=365&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/118520/original/image-20160413-23623-r623yj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=459&fit=crop&dpr=1 754w, https://images.theconversation.com/files/118520/original/image-20160413-23623-r623yj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=459&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/118520/original/image-20160413-23623-r623yj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=459&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Imprisonment rates in Australia are not the result of increased levels of crime, since increases in imprisonment rates have continued while crime rates have levelled or fallen in many categories of crime from 2000.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/710928003/1254166079/">♪ ~/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span>
</figcaption>
</figure>
<p>Such is the financial cost of our commitment to <a href="http://netk.net.au/Prisons/Prisons2.pdf">a system that’s widely ineffective</a> in reducing re-offending, and significantly contributes to the further marginalisation of those who are incarcerated.</p>
<p>These increases in imprisonment in Australia have been paralleled in other countries such as the United Kingdom, the United States, New Zealand and, more recently, Canada. It is <a href="http://researchonline.jcu.edu.au/24468/">arguably their embrace of the neoliberal agenda</a> that has led these countries down the path of a harsher approach to crime and punishment. </p>
<p>In contrast, European jurisdictions that have more social democratic and corporatist forms of government have <a href="http://www.cambridge.org/au/academic/subjects/law/criminal-law/prisoners-dilemma-political-economy-and-punishment-contemporary-democracies?format=PB&isbn=9780521728294">sustained more moderate criminal justice policies</a> and have relied less on exclusionary and punitive approaches to punishment.</p>
<p>But states that experienced a decline in principles and policies reflecting the welfare state and embraced neoliberal notions had a realignment of values and approaches that emphasised “deeds over needs”. </p>
<p>Their focus shifted from rehabilitative goals to an emphasis on deterrence and retribution. Individual responsibility and accountability increasingly became the core of the way justice systems responded to offenders. </p>
<p>Privatisation of institutions and services; widening social and economic inequality; and new or renewed insecurities around fear of crime, terrorism, “illegal” immigrants and racial, religious and ethnic minorities have all impacted the way their criminal justice systems operate. </p>
<p>Completing the cycle, these changes, in turn, <a href="http://oro.open.ac.uk/4385/2/The_globalisation_of_crime_control.pdf">fuelled social demands for authoritarian law-and-order strategies</a>.</p>
<h2>Human warehouses</h2>
<p>In understanding the use of imprisonment, one of the most important points to grasp is that a rising imprisonment rate is not directly or simply related to an increase in crime. </p>
<p>The use of prison is a function of government choices; it reflects government policy and legislation, as well as judicial decision-making. </p>
<p>Imprisonment rates in Australia are <a href="http://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4530.0Main+Features12013-14?OpenDocument">not the result of increased levels of crime</a>, since increases in imprisonment rates have continued while crime rates have levelled or fallen in many categories of crime from 2000. Similar patterns are <a href="https://en.wikipedia.org/wiki/The_Spirit_Level:_Why_More_Equal_Societies_Almost_Always_Do_Better">seen internationally</a>. </p>
<p>The growth of the law-and-order agenda has also resulted in far weaker ideological differentiation between major political parties on criminal justice policy. The most politically expedient response to crime is the promotion and implementation of the “toughest” approach. </p>
<p>While conservative political parties may have traditionally appeared to be “tougher” on crime and punishment, many Australian states and territories, such as New South Wales and <a href="http://www.app.unsw.edu.au/section-5-political-timeline-5">the Northern Territory</a>, have <a href="http://www.app.unsw.edu.au/nt-indigenous-imprisonment-rate-compared-australian-imprisonment-rate">sustained and large increases in imprisonment rates</a> under Labor governments.</p>
<p>In the process, prisons have become human warehouses for marginalised peoples, and most particularly Indigenous people. This point is graphically illustrated by the fact that Indigenous men are now <a href="http://www.abc.net.au/news/2015-12-03/fact-check-aboriginal-men-in-jail-and-university/6907540">more likely to be siting in a prison cell</a> than in a university classroom.</p>
<p><em>This article is part of <a href="https://theconversation.com/au/topics/royal-commission-special-report">a special report</a> marking the 25th anniversary of the Royal Commission into Aboriginal Deaths in Custody. <a href="https://theconversation.com/au/topics/royal-commission-special-report">Check out the rest of the package</a>.</em></p><img src="https://counter.theconversation.com/content/57491/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Chris Cunneen receives funding from the Australian Research Council competitive research grants scheme. </span></em></p>Australia has become less compassionate, more punitive and more ready to blame individuals for their alleged failings since the Royal Commission into Aboriginal Deaths in Custody.Chris Cunneen, Professor of Criminology, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/571092016-04-13T06:36:14Z2016-04-13T06:36:14ZDeaths in custody: 25 years after the royal commission, we’ve gone backwards<p>This week marks 25 years since the Royal Commission into Aboriginal Deaths in Custody <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/">tabled its national report</a>.</p>
<p>With five volumes of research, investigative accounts of 99 deaths in custody, and 339 recommendations, the report was meant to be a blueprint for reducing the disproportionate incarceration of Indigenous Australians and deaths in custody. </p>
<p>But a quarter of a century later, the situation is actually worse.</p>
<h2>The impetus</h2>
<p>In March 1987, the now-defunct <a href="http://archivescollection.anu.edu.au/index.php/aborigines-committee-to-defend-black-rights">Committee to Defend Black Rights</a> began counting Aboriginal deaths in custody as part of a national campaign. It found one Indigenous person died while incarcerated every 11 days. </p>
<p>The 16th person to die from that date – also the last death before the royal commission was announced – was Lloyd James Boney, a 28-year-old man from Brewarrina in northwest New South Wales. The circumstances of Boney’s death and its aftermath were consistent with the pattern of Aboriginal deaths in custody. </p>
<p>On August 6, 1987, Boney was violently arrested by three police officers for breach of bail. He was found dead 90 minutes later, hanging by a football sock in a police cell. </p>
<p>The Police Internal Affairs Branch conducted the investigation into Boney’s death. No attempt was made to separate Boney’s arresting officers between interviews, providing them opportunities for “<a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/individual/brm_ljb/62.html">collusion and reconstruction</a>”.</p>
<p>The local Aboriginal community was suspicious of the police for their role in the death. They believed it to be physically impossible for Boney to have killed himself the way he died due to his intoxicated state. </p>
<p>But the coroner found Boney had committed suicide with “no suggestion at all of foul play”. This led to widespread protests by the community in Brewarrina, as well as Aboriginal organisations nationally. </p>
<p>Four days later, the prime minister, Bob Hawke, announced a royal commission into the deaths of Aboriginal people in custody. The commission began its work in 1989 (after debates <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol5/6.html">defining its terms of reference</a>, including what constituted custody). </p>
<h2>The remit</h2>
<p>The commission was asked to examine 99 deaths between 1980 and 1989. It had to consider how and why each person died, including underlying social factors. </p>
<p>The total included 63 people who had died in police custody and 33 in prison, including three in juvenile detention; 88 males and 11 females; and an age range of 14 to 62 years. Half of these people had been removed in childhood from their families by child protection agencies. </p>
<p>The commission investigated each life and the circumstances of each death. It described previous police and coronial inquiries into the deaths as “perfunctory” and “narrow” in focus.</p>
<p>Its final report, tabled on April 15, 1991, found Indigenous people were more likely <em>to die</em> in custody because they were <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol1/5.html">more likely <em>to be</em> in custody</a>. Their over-representation in police and prison custody was described as “grossly disproportionate”.</p>
<p>The commission saw the issue as twofold: problems in the criminal justice system; and the reasons for Indigenous people coming into contact with that system. But its dichotomy is false.</p>
<p>The reason many Indigenous people <a href="http://www.naaja.org.au/wp-content/uploads/2014/07/IMPRISON-ME-NT-by-Jonathon-Hunyor.pdf">come into contact</a> with the criminal justice system – as identified by the commission itself – is due to how that system defines crime, polices Indigenous people and seeks to “protect” them by placing them in custody (for intoxication, as an example).</p>
<p>Nonetheless, the commission sought to explain Indigenous contact in terms of disadvantage and disempowerment. And many of its recommendations sought to promote Indigenous self-determination in order to strengthen communities and provide services more appropriate to the needs of Indigenous people.</p>
<h2>Prejudice and a lack of care</h2>
<p>In its first task, the commission examined each stage of the criminal justice system. It found Indigenous disadvantage arose from:</p>
<ul>
<li><p>prejudicial policing, especially for minor crimes relating to public order; </p></li>
<li><p>the police tendency to caution, charge and arrest Indigenous people, rather than issue warnings or court attendance notices;</p></li>
<li><p>police and courts not granting bail to Indigenous people; and </p></li>
<li><p>courts sentencing Indigenous people to prison rather than handing down non-prison sentences. </p></li>
</ul>
<p>Accordingly, a series of the commission’s recommendations sought to decriminalise minor offences, uphold the right to bail and ensure arrest and imprisonment were sanctions of last resort.</p>
<p>The commission also found incidents of a lack of care of Indigenous people in custody, as well as police mistreatment and abuse. </p>
<p>Commissioners found sufficient evidence to instigate disciplinary or prosecutorial processes against officers for eight of the investigated deaths. They recommended these cases for referral to the police commissioner to determine appropriate action. No prosecutions ensued. </p>
<p>The first prosecution of a police officer was for the 147th death in custody following the royal commission. In 2007, Sergeant Chris Hurley was charged with causing the death of Mulrunji Doomadgee on Palm Island. He was <a href="http://www.abc.net.au/7.30/content/2007/s1957282.htm">controversially acquitted</a>. </p>
<h2>Changing the paradigm</h2>
<p>Indigenous incarceration and police custody rates have actually increased since the royal commission tabled its report. </p>
<p>In 1991, Indigenous people constituted 14% of the prison population (1,100 for every 100,000 Indigeous people in the national population). Today they make up 27% (2,300 for every 100,000). There has been an equivalent increase in unsentenced Indigenous prisoners in remand.</p>
<p>Despite the <a href="http://www.childrenscourt.justice.nsw.gov.au/Documents/chcs16meeting14weatherburn.pdf">misconception among some criminologists</a> that the commission’s recommendations were implemented and failed, its suggestions regarding decriminalisation of minor offences and self-determination were never realised. </p>
<p>Minor public order offences, such as offensive language, continue to be punished. Police powers in relation to public drunkenness and arrest have been extended. The right to bail has been undermined with increasing exceptions (for property offences as an example). Maximum prison penalties and mandatory prison sentences have escalated. </p>
<p>In relation to self-determination, the tendency of the federal government since the mid-1990s has been to: <a href="http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/CIB/Current_Issues_Briefs_2004_-_2005/05cib04">increasingly mainstream services for Indigenous people</a>; defund <a href="http://www.theguardian.com/australia-news/2016/mar/19/indigenous-organisations-have-been-disadvantaged-by-grants-program?CMP=share_btn_link">Indigenous-run organisations</a> that have expertise in Indigenous safety and well-being; impose top-down policies; and penalise vulnerable Indigenous people (by removing children from their families, criminalising youth and women victims of family violence, and locking up the mentally ill). </p>
<p>The commission’s lessons are more pertinent today than they were in 1991 because the majority of its recommendations remain unimplemented. Its report called for a holistic and systemic approach, but there have only been ad-hoc and provisional piecemeal changes. Unsurprisingly, they’ve had negligible overall effect on reducing deaths in custody. </p>
<p>The 25th anniversary of the Royal Commission into Aboriginal Deaths in Custody reminds us that nothing less than a paradigm shift will ensure that we won’t be marking another anniversary with even more Aboriginal deaths in custody, as we do this one.</p>
<p><em>This article is part of <a href="https://theconversation.com/au/topics/royal-commission-special-report">a special report</a> marking the 25th anniversary of the Royal Commission into Aboriginal Deaths in Custody. <a href="https://theconversation.com/au/topics/royal-commission-special-report">Check out the rest of the package</a>.</em></p><img src="https://counter.theconversation.com/content/57109/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thalia Anthony receives and has received funding from the Australian Research Council, the Criminology Research Council and the Australasian Institute of Judicial Administration.</span></em></p>The Royal Commission into Aboriginal Deaths in Custody’s report was meant to be a blueprint for reducing the disproportionate incarceration of Indigenous Australians and deaths in custody.Thalia Anthony, Associate Professor in Law, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/390442015-06-17T20:21:10Z2015-06-17T20:21:10ZElectronic innovation can help fix an archaic, crowded prison system<figure><img src="https://images.theconversation.com/files/79014/original/image-20150423-29722-1fj56l4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Electronic monitoring typically involves fitting offenders with tamper-proof bracelets to monitor whether they are abiding by conditions imposed on them.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/chrisyarzab/6510121061/in/photolist-aVh5bz-4v83YW-4v3Sj4-4v3RJR-cMbU3w-nf2i45-4amGfd-8kpoGi-4HdDs8-aiAn2y-4v3YMT-bHhuYM-bkL9M5-p78PLA-gVPq7P-nWQez9-nEsz8y-9QQFWD-aEVK1S-aBAp5J-6V2B4u-cAxjXC-f5sd5J-8U32Zt-7kqRhR-gSYT95-hwPAnG-dpN58X-gfyrTF-p78PMN-p78PHu-p78PNu-bFa7fT-xB8uL-8v2EYn-aa42qS-dPW92n-drcKX2">Flickr/Chris Yarzab</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p><em>This article is part of the <a href="https://theconversation.com/au/topics/beyond-prison">Beyond Prison</a> series, which examines better ways to reduce re-offending, following the <a href="https://theconversation.com/au/topics/state-of-imprisonment">State of Imprisonment</a> series.</em></p>
<hr>
<p>Victoria’s prisons are reported to be <a href="http://www.abc.net.au/news/2015-03-15/victorian-prisons-the-most-violent-in-australia/6319186">the most violent in the country</a>, as an overcrowded system struggles to house a growing prison population. Prison officers are reportedly assaulted every three days and inmate fights occur daily. Prison guards are to trial capsicum spray in response.</p>
<p>This should not come as a surprise. The Victorian Auditor-General <a href="http://www.audit.vic.gov.au/publications/20121128-Prisons/20121128-Prisons.pdf">found in 2012</a> that the system was near capacity. Last year, the Ombudsman <a href="https://www.ombudsman.vic.gov.au/getattachment/2998b6e6-491a-4dfe-b081-9d86fe4d4921">warned</a> that violence was a natural consequence of overcrowding.</p>
<p>Imprisonment rates across Australia have risen dramatically in recent times. In the <a href="https://theconversation.com/state-of-imprisonment-victoria-is-leading-the-nation-backwards-38905">traditionally low-imprisonment state</a> of Victoria, the prison population grew by <a href="https://www.sentencingcouncil.vic.gov.au/publications/victorias-prison-population-2002-2012">38% in the ten years from 2002 to 2012</a>. The growth accelerated between 2009 and 2014, with the number of prisoners increasing by <a href="http://www.theage.com.au/victoria/victorian-prison-numbers-surged-under-napthine-20141211-1258jw.html">40% in five years</a>.</p>
<p>“Law and order” political agendas have reduced judicial sentencing discretion, <a href="https://www.sentencingcouncil.vic.gov.au/news-media/news/phasing-out-suspended-sentences-complete-today">phased out</a> suspended sentences and restricted the availability of bail and parole. We built more prisons, but even then <a href="http://www.theage.com.au/victoria/prisoners-moved-into-shipping-containers-20140106-30d23.html">shipping containers</a> and <a href="http://www.abc.net.au/news/2015-03-16/violence-and-escapes-in-victorian-prisons-linked-to-overcrowding/6322620">fold-out beds</a> were needed to warehouse the overflow.</p>
<p>Penal populism has trumped evidence-based policy. The previous Coalition government seemingly disregarded its own Sentencing Advisory Council’s conclusions about the <a href="https://www.sentencingcouncil.vic.gov.au/publications/does-imprisonment-deter">ineffectiveness</a> of prison in reducing crime.</p>
<p>Local statistics also run counter to encouraging international trends. These suggest that the world’s 200-year honeymoon with the prison may be ending.</p>
<p><a href="http://www.nytimes.com/2014/03/16/opinion/sunday/a-rare-opportunity-on-criminal-justice.html?_&_r=1">In the US</a>, the global financial crisis brought into sharp relief the costs of hyper-incarceration, especially of African-Americans. Suddenly, even conservatives questioned why housing felons should divert funds away from schools and roads. The mounting evidence that prison is ineffective in deterring and rehabilitating criminals, and that incarceration itself may increase the risk of re-offending, was finally heeded.</p>
<p>Even in states <a href="http://www.washingtonpost.com/opinions/best-state-in-america-texas-where-both-crime-and-incarceration-rates-are-falling/2014/12/05/e0a0f4a8-7b07-11e4-84d4-7c896b90abdc_story.html">such as Texas</a>, prison numbers fell. In 2011, that state <a href="http://www.statesman.com/news/news/state-regional/texas-first-prison-is-closing-1/nRdBp/">closed a prison</a> for the first time in its history.</p>
<p>The new Victorian Labor government has tentatively signalled the <a href="http://www.theage.com.au/national/investigations/jury-out-on-labor-prison-plan-20150123-12w1rn.html">need for change</a>. Yet it too clearly fears electoral backlash and has conceded that prison populations are likely to continue to rise.</p>
<p>Both sides of politics have invested huge political capital touting the prison as the solution to crime. The Australian public responded too well and the punitive cycle escalated. </p>
<p>How do we now un-sell this expensive, ineffective and cruel form of punishment?</p>
<h2>Punitiveness and the national identity</h2>
<p>The pull of punitivism is a legacy of Australia’s colonial history. As Robert Hughes argued in <a href="http://en.wikipedia.org/wiki/The_Fatal_Shore">The Fatal Shore</a>, in the early days of the colony any infraction of the rules was viciously punished, and this knee-jerk punitiveness maintains its hold in contemporary Australian discourse about punishment.</p>
<p>The <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/">Royal Commission into Aboriginal Deaths in Custody</a>, for instance, drew connections between Australia’s early dispossession of Indigenous people and their high levels of incarceration. Punitiveness is also evident in offshore processing of asylum seekers in prison-like conditions (perhaps not surprising, given the employment of former prison staff in the centres) <a href="http://unhcr.org.au/unhcr/images/2013-11-26%20Report%20of%20UNHCR%20Visit%20to%20Manus%20Island%20PNG%2023-25%20October%202013.pdf">deemed inhumane</a> by the United Nations.</p>
<p>In Australia, dubious utilitarian ideologies about general deterrence, with imprisonment its ready touchstone, prevail. In pandering to public punitiveness, politicians have forgotten a countervailing strand in Australia’s history and national identity: innovation.</p>
<h2>Australia and penal innovation</h2>
<p>The great English judge, Lord Denning, was once asked about innovative sentencing options. He noted that the last major innovation was probably “transportation”. That, he quipped, had worked out rather well.</p>
<p>In the 18th century, Australia was the great social experiment. The world watched to see if this society of convicts could fashion a new social order.</p>
<p>Acute labour shortages were the impetus for another innovative sentencing option, the <a href="https://books.google.com.au/books?id=oSBcAAAAQAAJ&printsec=frontcover#v=onepage&q&f=false">Ticket of Leave scheme</a>. This allowed convicts to complete their sentences working and living in the community. The scheme kept the fledgling colonial economy afloat and is reputedly the forerunner of parole and probation schemes internationally.</p>
<p>Australian contributions continue to be influential. John Braithwaite’s ideas about re-integrative shaming – a shift away from punitive social control to approaches that shame the offender but simultaneously offer re-integration into the community — have spawned an entire “alternative” system of restorative justice processes all over the world.</p>
<p>Appeal to Australia’s nationalist pride in its history as an innovator may untie the prison’s shackles. While far from perfect, the emerging technology of electronic monitoring may present a publicly acceptable alternative to prison.</p>
<h2>The rise of electronic monitoring</h2>
<p>Electronic monitoring was <a href="http://www.npr.org/2014/05/22/314874232/the-history-of-electronic-monitoring-devices">initially developed</a> as a behavioural-modification tool in experimental and clinical psychology. The technology has been applied to criminal justice since 1983, when a New Mexican judge, inspired by a Spider-Man comic, ordered its use to track probationers.</p>
<p>Nowadays, electronic monitoring takes various forms across the world. These typically involve offenders being fitted with tamper-proof bracelets. The devices monitor whether offenders are abiding by conditions, such as geographical constraints, curfews, attending work or study, or abstaining from drugs or alcohol.</p>
<p>Electronic monitoring can be used pre-trial, as a primary sentence or post-sentence. It operates in <a href="http://www.aic.gov.au/media_library/conferences/other/smith_russell/2010-07-brcss.pdf">each form in Australia</a>.</p>
<p>To date, however, electronic monitoring has not really been countenanced as a legitimate, large-scale alternative to divert offenders away from prison. Victoria’s brief use of home detention initially aimed to do this, but public criticism that it was “too soft” led to its removal from the statute books in 2012. It remains an optional condition that may be imposed under a <a href="http://www.austlii.edu.au/au/legis/vic/num_act/saossaoma201332o2013713/s25.html">community correction order</a>.</p>
<p>Any alternative to prison must be seen to satisfy sentencing’s twin <a href="http://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-process/sentencing-principles-purposes-factors">objectives</a> of punishing offenders and protecting the community. The research on electronic monitoring’s impact on crime is still inconclusive, but the indications are that, in many cases, it likely meets these purposes as well as, or even better than, prison. </p>
<p>In its <a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2014/342.html">first guideline judgment</a>, Victoria’s Court of Appeal recently recognised that even in cases of relatively serious offending, properly conditioned sentences served in the community can both appropriately punish offenders and protect the public.</p>
<p>On its face, electronic monitoring also has lower operational costs than prison. However, once rehabilitation services are factored in, savings are more properly couched as reducing the costs of re-offending.</p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/79024/original/image-20150423-10331-1cig2i0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/79024/original/image-20150423-10331-1cig2i0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=803&fit=crop&dpr=1 600w, https://images.theconversation.com/files/79024/original/image-20150423-10331-1cig2i0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=803&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/79024/original/image-20150423-10331-1cig2i0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=803&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/79024/original/image-20150423-10331-1cig2i0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1009&fit=crop&dpr=1 754w, https://images.theconversation.com/files/79024/original/image-20150423-10331-1cig2i0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1009&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/79024/original/image-20150423-10331-1cig2i0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1009&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Electronic monitoring technology isn’t foolproof but it is an advance on the ‘one size fits all’ punishment of prison.</span>
<span class="attribution"><a class="source" href="http://www.omnilink.com/electronic-monitoring/">From www.omnilink.com</a></span>
</figcaption>
</figure>
<p>Electronic monitoring, like all punishment, is imperfect. Failure is built into any system that tries to control and regulate human behaviour. </p>
<p>The technology is <a href="http://www.bbc.co.uk/news/world-us-canada-11491937">prone to failure</a>. There will be inevitable scandals when human cunning and system break downs lead to spectacular breaches. Electronic monitoring also presents significant net-widening and net-strengthening challenges (that is, more people are subjected to intensive forms of criminal justice control).</p>
<p>These negative effects are hard to overcome and any policy and research agenda must address these. But a “one size fits all” approach to punishment, like prison, is unacceptable. </p>
<h2>Is prison’s time nearly up?</h2>
<p>It is time for a more open dialogue about the risks and limitations of all forms of punishment. We need calibrated and nuanced community-based options to meet the specific circumstances of each offender and their crime. A bipartisan preparedness to raise the level of public debate about the full gamut of options should replace the invocation of prison as a “quick fix” for both crime and electoral popularity.</p>
<p>The days of the prison, an 18th-century industrial institution, as the dominant form of punishment are probably numbered. Electronic monitoring is one option more compatible with the 21st-century virtual age, in which containment and isolation need not be physical to be effective.</p>
<p>Jeremy Bentham, the architect of the prison and the great-grandfather of utilitarianism, understood that:</p>
<blockquote>
<p>… all punishment is mischief: all punishment in itself is evil. Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil.</p>
</blockquote>
<p>For better or worse, electronic monitoring probably is our best, albeit imperfect, opportunity to reframe a public dialogue about the purposes, risks and relative costs of punishment.</p>
<hr>
<p><em>You can read other articles in the Beyond Prison series <a href="https://theconversation.com/au/topics/beyond-prison">here</a>.</em></p><img src="https://counter.theconversation.com/content/39044/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The days of prison, an 18th-century industrial institution, as the justice system’s dominant form of punishment may be numbered. Electronic monitoring of offenders is one promising alternative.Kathy Laster, Director, Sir Zelman Cowen Centre, Victoria UniversityRyan Kornhauser, Research Assistant, Victoria UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/428112015-06-10T03:49:45Z2015-06-10T03:49:45ZNSW ditches another protection for Indigenous people in custody<figure><img src="https://images.theconversation.com/files/84304/original/image-20150609-8711-1r1fa8t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">For a modest amount, the Custody Notification Service provides NSW with one of the most effective strategies in curbing Indigenous deaths in police custody.`</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>The federal government is <a href="http://www.abc.net.au/news/2015-06-03/aboriginal-custody-phone-line-under-threat/6518184">poised</a> to abolish the Custody Notification Service in New South Wales through a funding cut on July 1 – for the sake of saving A$526,000 a year. For that modest amount, the service provides NSW with one of the most effective strategies in curbing Indigenous deaths in police custody.</p>
<p>The service is a telephone hotline that provides Indigenous prisoners in police custody with personal and legal advice. It also ensures that they receive adequate health care while monitoring their treatment by police. </p>
<p>NSW Aboriginal Legal Services CEO Kane Ellis has told me that the service is a “transparency measure” that “increases the professionalism of police”. It provides Indigenous people with assistance that is often:</p>
<blockquote>
<p>… as simple as getting a person essential medication that can save a life. </p>
</blockquote>
<h2>Why the service is essential</h2>
<p>At <a href="http://www.aic.gov.au/publications/current%20series/mr/1-20/20.html">last count in 2013</a>, Indigenous deaths in custody had spiked to all-time highs in other states and territories where the service has not been implemented, as well as among Indigenous prison populations. </p>
<p>However, since the service was implemented in NSW in 2007, the state has had <a href="http://www.aic.gov.au/media_library/publications/mr/20/mr20.pdf">no Indigenous deaths</a> in its police cells, watch-houses and during transport procedures. In that time, other states and territories have recorded 11 Indigenous deaths in police custody.</p>
<p>The <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/">Royal Commission into Aboriginal Deaths in Custody</a> in 1991 recommended the establishment of the Custody Notification Service. The reasons why the service must continue reflect the commission’s major findings. These are reasons that state and federal governments have mostly ignored since 1991.</p>
<p>The royal commission found that Indigenous people die in custody at much higher rates than non-Indigenous people. This is primarily because they are taken into custody at much higher rates than non-Indigenous people.</p>
<p>In NSW, <a href="http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0%7E2014%7EMain%20Features%7ENew%20South%20Wales%7E10015">rates of Indigenous imprisonment</a> are currently 24%. However, Indigenous people make up less than 2.9% of the <a href="http://www.abs.gov.au/ausstats/abs@.nsf/mf/3238.0.55.001">population</a>. This is a higher per capita rate than in the <a href="http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0%7E2014%7EMain%20Features%7ENorthern%20Territory%7E10021">Northern Territory</a>, where 86% of inmates are Indigenous. Indigenous people comprise 29.8% of the <a href="http://www.abs.gov.au/ausstats/abs@.nsf/mf/3238.0.55.001">population</a>. </p>
<p>Put differently, in NSW, Indigenous people are more than eight times more likely to be imprisoned than non-Indigenous people. In the Northern Territory, they are less than three times as likely to be imprisoned.</p>
<p>The Custody Notification Service helps prevent Indigenous deaths in both police and prison custody by addressing the problem of over-representation of Indigenous offenders in prison through the provision of legal advice. Such advice usually informs an Indigenous person in custody of their right to silence. This prevents false confessions and unreliable evidence, thereby reducing unfair and unsafe convictions.</p>
<p>The right to silence for Indigenous people remains intact despite recent legislative amendments in NSW <a href="https://theconversation.com/when-you-say-nothing-at-all-nsw-and-the-right-to-silence-12962">restricting the use</a> of this legal right.</p>
<h2>Background to its abolition</h2>
<p>The Carr government implemented the Custody Notification Service as a compulsory custody right in NSW across a range of criminal legislation. Section 33 of the <a href="http://www.austlii.edu.au/au/legis/nsw/consol_reg/learr2005542/">Law Enforcement (Powers and Responsibilities) Regulation</a> provides that when an Aboriginal or Torres Strait Islander person is detained in police custody, a custody manager must immediately notify a representative of the Aboriginal Legal Service and inform the prisoner accordingly. </p>
<p>In one <a href="https://www.caselaw.nsw.gov.au/decision/549fe7ad3004262463c33f26">case</a>, Justice Hidden of the NSW Supreme Court found confessional evidence from four Indigenous men was inadmissible as evidence in court because police failed to comply with the Custody Notification Service requirements under the legislation. </p>
<p>In 2013, former NSW attorney-general Greg Smith announced the O’Farrell government’s commitment to these laws. Accordingly, if the service is abolished in practice by funding cuts but remains on the statute books – as it almost certainly will – the NSW government will be faced with the absurd but very real proposition that most confessional evidence from Indigenous people in custody will be rendered inadmissible because police cannot contact an Aboriginal Legal Service representative. </p>
<p>The federal government has regularly contested funding to the Custody Notification Service since 2012. In that year, funding to the service was cut and Aboriginal Legal Service staff were forced to perform unpaid work. They continued to operate the service on a voluntary basis. In 2013, funding to the phone line resumed. </p>
<p>However, requiring the service to operate through the charitable goodwill of its already overworked skeleton staff is an unreasonable and untenable demand.</p>
<p>Rather than abolishing this successful program, governments both state and federal should be implementing and funding more like it nationwide. Without the Custody Notification Service in NSW, deaths of Indigenous people in police custody will almost certainly increase, along with their over-representation in prison.</p><img src="https://counter.theconversation.com/content/42811/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eugene Schofield-Georgeson has worked as a Solicitor-Advocate for the North Australian Aboriginal Justice Agency (NAAJA) and is affiliated with the New South Wales Council for Civil Liberties (NSWCCL).</span></em></p>Without the Custody Notification Service in NSW, deaths of Indigenous people in police custody will almost certainly increase, along with the over-representation of Indigenous people in prison.Eugene Schofield-Georgeson, PhD Candidate, Macquarie Law School, Macquarie UniversityLicensed as Creative Commons – attribution, no derivatives.