Part Twenty-four of a history of European occupation, rule, and brutal imperialism of Indigenous Australia, by Dr George Venturini.
Going around in circles
On 26 May 2017, the same day of the closing of Uluru gathering, a group composed of five organisations, PricewaterhouseCoopers – PwC, PwC’s Indigenous Consulting – PIC, Change the Record, the Richmond Football Club and the Korin Gamadji Institute – KGI, published a report titled Indigenous incarceration: unlock the facts.
It was an old theme, but one played on more recent data. And it caused a feeling of déjà vu.
In March 1987 the Committee to Defend Black Rights began counting Indigenous deaths in custody as part of a national campaign. It found one Indigenous person died while incarcerated every 11 days.
The sixteenth person to die after that date – also the last death before the Royal Commission was announced – was Mr 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 Indigenous deaths in custody.
On 6 August 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. 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 ‘collusion and reconstruction.’
The local Indigenous 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.
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. (Thalia Anthony, Death in custody: 25 years after the royal commission, we’ve gone backwards, The Conversation).
On 10 August 1987 Prime Minister Hawke announced the formation of a Royal Commission to investigate the causes of deaths of Indigenous People who were held in state and territory gaols. The Royal Commission was established in response to a growing public concern that deaths in custody of Indigenous People were too common and poorly explained. The Letters Patent formally establishing the Commission were issued by the Governor-General on 16 October 1987. Similar Letters Patent were issued by the states and the Northern Territory.
The Commission was asked to examine 99 deaths which took place between 1980 and 1989.
The total included 63 people who had died in police custody and 36 in prison, including three in juvenile detention; 88 males and 11 females; of an age range of 14 to 62 years. Half of these people had been removed in childhood from their families by child ‘protection’ agencies.
The Commission’s terms of reference enabled it to take account of social, cultural and legal factors which may have had a bearing on the deaths under investigation.
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.
The Commission produced a number of reports, including individual reports for each death investigated. These were presented separately as they were completed. The Commission also produced an Interim Report, which was presented on 21 December 1988. The final report, signed on 15 April 1991, made 339 recommendations, mainly concerned with procedures for persons in custody, liaison with Indigenous groups, police education and improved accessibility to information.
The Commission’s final report found that Indigenous People were more likely to die in custody because they were more likely to be in custody. Their over-representation in police and prison custody was described as “grossly disproportionate.”
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.
The reason many Indigenous People come into contact with the criminal justice system – as identified by the Commission itself – was and remains due to how that system defines crime, polices Indigenous People and seeks ‘to protect’ them by placing them in custody – for intoxication, for instance.
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.
In its first task, the Commission examined each stage of the criminal justice system. It found Indigenous disadvantage arose from:
1) prejudicial policing, especially for minor crimes relating to public order;
2) the police tendency to caution, charge and arrest Indigenous People, rather than issue warnings or court attendance notices;
3) police and courts not granting bail to Indigenous people; and
4) courts sentencing Indigenous people to prison rather than handing down non-prison sentences.
Accordingly, a series of the Commission’s recommendations sought to de-criminalise minor offences, uphold the right to bail and ensure arrest and imprisonment were sanctions of last resort.
The Commission also found incidents of a lack of care of Indigenous People in custody, as well as police mistreatment and abuse.
The Commission found sufficient evidence to instigate disciplinary or prosecutorial processes against officers for eight of the investigated deaths. It recommended these cases for referral to the police commissioner to determine appropriate action. But no prosecutions ensued.
The Commission collected about 200 shelf metres of records. These deal with the investigation of individual cases – the ‘case files’, which include exhibits and findings, underlying issues, submissions, research material, the records of counsel assisting the Commission and the administrative records of the Commission.
Some cases required more than one file for each of the 99 deaths investigated by the Commission. The amount of documentation varies from case to case. Some cases have only a few files, while other cases can have thousands of pages of transcripts of investigations by the Commission and thousands of additional pages from the original Coroner’s Report and from welfare files, Social Security files and medical records.
After investigating the individual deaths the Commission tried to find larger social and economic factors to explain Indigenous deaths in custody. The Commission noted that there were differences between Indigenous groups. For example, it noted a higher rate of alcoholism, gaoling, larger families and lower than average education in certain groups, but not in others. This led to an investigation into the wider underlying issues. The records of these investigations include public submissions and hearings, research papers of the Commission’s Criminology Research Unit and other specially commissioned historical, social and economic research papers. Many of the underlying issues papers have been published. (Royal Commission into Aboriginal Deaths in Custody – Fact sheet 112).
The first prosecution of a police officer was for the one-hundred-and-forty-seventh death in custody after the Royal Commission. Sixteen years after the tabling of the Royal Commission report, in 2007, Queensland’ s Police Sergeant Chris Hurley was charged with causing the death of Mulrunji Doomadgee on Palm Island. Mulrunji Doomadgee died of massive internal injuries in a cell of the Palm Island police station.
Sergeant Hurley was controversially acquitted. Subsequently, allegations that Sergeant Hurley punched Mulrunji three times, lied about what happened in the watch-house and that he and two other officers colluded on evidence came under investigation. The state’s anti-corruption agency found that there was insufficient evidence to pursue allegations of assault, lying and collusion.
After two autopsies, three coroner’s inquests and a manslaughter trial, (now Senior) Sergeant Hurley would not be charged again. (No charges in Mulrunji Doomadgee case, SBS, 11 November 2010).
In the twenty-six years since the report of the Royal Commission into Aboriginal Deaths in Custody was tabled in Parliament, the proportion of the prison population which is Indigenous has doubled.
In 1991 Indigenous People constituted 14 per cent of the prison population – 1,100 for every 100,000 persons in the national population. Today they make more than 27 per cent – 2,300 for every 100,000. There has been an equivalent increase in un-sentenced Indigenous prisoners in remand.
Despite the misconception among some criminologists that the Royal Commission’s recommendations were implemented – and failed, its suggestions regarding decriminalisation of minor offences and self-determination were never realised.
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.
In relation to self-determination, the tendency of the Australian government since the mid-1990s has been: increasingly to mainstream services for Indigenous People; to defund Indigenous-run organisations which have expertise in Indigenous safety and well-being; to impose top-down policies; and to penalise vulnerable Indigenous People – by removing children from their families, criminalising youth and women victims of family violence, and locking up the mentally ill.
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 have had negligible overall effect on reducing deaths in custody.
Nothing less than a paradigm shift will ensure that there will be another significant anniversary with even more Indigenous deaths in custody. (Thalia Anthony, Deaths in custody: 25 years after the royal commission, we’ve gone backwards, The Conversation, 13 April 2016; Reema Rattan and Wes Mountain, Indigenous incarceration at a glance, The Conversation, 15 April 2016; Thalia Anthony, Infographics: Indigenous incarceration in Australia at a glance, SBS, 15 April 2016).
As the Report Indigenous incarceration: unlock the facts concluded, Indigenous People are dramatically over-represented in the criminal justice system, in each state and territory. While Indigenous People represent only 3 per cent of Australia’s total population, they make up more than 27 per cent of prison population and 55 per cent of the youth detention population. (ABS (2013). Estimates of Aboriginal and Torres Strait Islander Australians, June 2011. Canberra: ABS; ABS (2016). Prisoners in Australia, 2016. Canberra: ABS; AIHW (2017). Youth justice in Australia 201516. Table S75a: Young people in detention on an average day by sex and Indigenous status, states and territories, 2015–16. AIHW Bulletin no. 139. Cat. No. AUS 211. Canberra: AIHW).
Purpose of the 26 May 2017 Report has been the subject of many thorough and well evidenced reports and reviews over the past three decades. The five partners’ Report contributes new economic modelling to the evidence base. It estimates the costs of Indigenous incarceration and the potential savings if Indigenous incarceration rates were no different from those of the non-Indigenous population. The high, and growing, rates of Indigenous incarceration has a heavy impact on individuals, families, communities and the Australian economy but it does not have to be this way. The five partners’ modelling suggests that implementing a holistic suite of initiatives would contribute significantly to closing the gap between Indigenous and non-Indigenous rates of incarceration, but this alone would not be enough. Closing the gap requires systemic change, as well as smarter investment in programmatic solutions with Indigenous People having ownership and control over programme settings. (Closing the Gap is the Australian Government’s formal commitment to address Indigenous disadvantage. The Government committed to Closing the Gap in 2008. By the year 2030, this commitment seeks to: 1) to reduce Indigenous infant mortality, 2) to improve Indigenous life expectancy, 3) improve Indigenous early childhood development, education, and employment outcomes. The Closing the Gap strategy emphasises intergovernmental cooperation and engagement and partnership with Indigenous communities).
The Report seeks to raise awareness of, and calls for action to address, the disproportionate rates of Indigenous incarceration across Australia.
This gap between the rates of Indigenous incarceration and non-Indigenous incarceration is fundamentally unfair. On any given day, there are around 10,000 Indigenous adults in prison – including roughly 1,000 women, 500 Indigenous youth in detention and many more Indigenous People in custody in police cells. (ABS (2016). Corrective Services, Australia, June Quarter 2016. Canberra: ABS; AIHW (2017). Youth justice in Australia 2015–16. Table S85a: Young people aged 10–17 in detention on an average day by Indigenous status, states and territories, 2006–07 to 2015–16 (rate). (AIHW Bulletin no. 139. Cat. no. AUS 211. Canberra: AIHW).
Continued Friday with: Going around in circles (Part 2)
Previous instalment: The greener grass (somewhere) (Part 2)
Dr. Venturino Giorgio (George) Venturini, formerly an avvocato at the Court of Appeal of Bologna, devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. He may be reach at George.Venturini@bigpond.com.au.