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Government’s institutional brutality (Part 3)

Part Twenty-eight of a history of European occupation, rule, and brutal imperialism of Indigenous Australia, by Dr George Venturini.

Amnesty is highlighting state and territory laws and policies which violate the rights of children, like mandatory sentencing in Western Australia. Amnesty has already successfully fought for changes to the law in Queensland which restores the detention of children to a last resort and ensure children are not held in adult prisons.

Each Australian state and territory is responsible for its own law and justice policies, but it is the federal government which is ultimately responsible for ensuring Australia protects the rights of Indigenous children.

Amnesty’s aim is to safeguard the rights set out by the United Nations in the Declaration on the Rights of Indigenous Peoples, which recognises the rights of Indigenous People and communities to control decisions affecting their own lives and futures. That is the foundation of our Community is Everything campaign – with research and plans developed under the guidance of Indigenous community members.

Amnesty is working with Indigenous peak organisations and other NGOs, as part of the Change the Record coalition, to close the justice gap.

The two main goals of Change the Record are:

  • to close the gap in rates of imprisonment by 2040; and
  • to cut the disproportionate rates of violence at least to close the gap by 2040 with priority strategies for women and children.

Change the Record is chaired by Indigenous experts in the justice field and draws on the combined expertise of Indigenous peak, community sector and human rights organisations.

In the view of Amnesty it is the Australian Government to be ultimately responsible for ensuring that Australia meets its obligations in protecting the rights of Indigenous children. Currently the Australian Government is not holding state and territory governments to account for failing Indigenous children.

This is despite consistent recommendations, including from the Royal Commission into Aboriginal Deaths in Custody, the Committee on the Rights of the Child and on the Elimination of Racial Discrimination that the Federal Government take responsibility in addressing the justice gap.

The Federal Government could make a difference by setting targets to close the justice gap and finally taking responsibility for change. Justice targets are the first step in developing a long-term national plan to close the justice gap.

It is the view of Amnesty that at the next Council of Australian Governments meeting states and territories should agree, in consultation with Indigenous leaders, on a national strategy to address Indigenous over-representation in the justice system.

Amnesty was calling for the Australian Government to support more Indigenous-led solutions for children and amend laws for a fairer youth justice system. The organisation intends, over the next five years, to work hard to make this an issue that politicians cannot ignore.

To close the justice gap, Amnesty International is calling for more Indigenous-led solutions for children. To that end:

1) Governments should adequately fund the hard-working Indigenous People and organisations already working to support children and families and prevent contact with the justice system, and

2) Judges should have adequate alternatives to detention available to them to work with and rehabilitate children instead of locking them up.

To reach a fairer youth justice system governments must address the faulty parts of Australian justice system by:

1) setting targets to close the justice gap;

2) implementing a national system the better to collect and address problems with data to ensure that Indigenous children receive the support they need;

3) amending laws – for example mandatory sentencing and restrictive bail laws – which have negative consequences for Indigenous children and prevent judges from properly administering the law;

4) ending inhumane treatment of children in detention;

5) making sure that the national legislation complies with the standards to which Australia has agreed to be held, such as the Convention on the Rights of the Child and the Convention Against Torture. (Indigenous justice – Amnesty International Australia, Our Campaigns; Indigenous rights Archives – Amnesty International Australia).

There has been no reply from any of the Australian governments.

* * * * *

Julieka Dhu – commonly referred to as Ms Dhu in Australian media to respect Indigenous naming customs – was a 24-year-old Indigenous woman who died in police custody in 2014. Between 2 and 4 August 2014 she was detained in custody in a police watch house in South Hedland, Western Australia on unpaid fines. On 4 August, at 1:39pm, she was pronounced dead. Ms. Dhu’s was the 340th Indigneous death in custody since the conclusion of the Royal Commission into Aboriginal Deaths in Custody.

Ms Dhu’s death generated controversy in Western Australia after police were called out to a disorderly event to assist her but instead after a background check arrested her on unpaid fines totalling $3,622. Western Australia remains the last jurisdiction in Australia not to have put an end to the gaoling of fine defaulters.

Ms Ruth Barson, a lawyer with the Human Rights Law Centre, who assisted Dhu’s family, said: “Well if we look at Ms Dhu’s example she was somebody who was very poor, she was somebody who had absolutely no means to pay and she was also someone who was in a domestic violence situation. So it’s essentially not a fair and not a flexible system, it’s an automatic system that doesn’t take into account why a number of people cannot pay their fine for very good reasons.” Mr Gerry Georgatos, a university researcher and human rights campaigner, who has campaigned for prison reform, as well as championing the rights of Indigenous People and the homeless, and has campaigned for the establishment of the Custody Notification Service in Western Australia and for an end to the gaoling of fine defaulters, said: “Fines being unpaid should be a civil matter, they’re not a criminal matter, [and] shouldn’t be a criminal matter. My experience, having worked with people pre-release and post-release is that people in general come out worse from the prison experience than when they went in. We should be doing everything possible to keep people out of the prison experience, not doing everything we can to get them in to the prison experience.”

Ms Dhu’s family campaigned for a Coronial Inquest into her death. The findings of the Inquest by State Coroner Ms Ros Fogliani were delivered on 16 December 2016. Beginning in November 2015, the Inquest heard that Ms Dhu had been a victim of domestic violence, was in physical pain, complained of being in pain and begged for medical attention. Police took Dhu to the Hedland Health campus on two occasions but the Coroner’s Inquest heard that triage staff reported Dhu had “behavioural issues”. The Coronial Inquest heard police officers had believed that Dhu was “faking”.

The Coronial Inquest was shown disturbing footage of police officers dragging Dhu, apparently unconscious, along the floor of her cell and into a corridor, where she was then carted by her arms and legs to the back of a police wagon. She was then locked inside. At the Hedland Health campus, one hour later, she was pronounced dead.

The Coroner’s Inquest heard that Dhu was life-threateningly ill while in custody, that she had gone into septic shock and died from septicaemia and pneumonia. Counsel to the Coroner, Ms Ilona O’Brien stated: “By the morning of 4 August 2014, Miss Dhu’s clinical state rapidly worsened and although it was not appreciated by the police officers involved, some of whom believed that Miss Dhu was feigning her illness, she was in an advanced state of septic shock and only hours from death.”

Senior medical officer Ganesan Sakarapani rejected the suggestion that the Hedland Health campus had a culture of institutionalised racism, telling the Coronial Inquest that staff have access to cultural awareness programmes. He also rejected the suggestion that Dhu would have been treated differently had she been white. Mr. Georgatos, whose PhD research was in understanding racism, described it is impossible that there be no institutional racism at Hedland Health campus and stated: “I heard a medical director of the Hedland Health Campus “categorically reject the notion of institutional racism” at his hospital … He claimed that there has been significant cultural awareness training at his hospital … He does not understand what institutional or structural racism is and means. Cultural awareness and anti-discrimination training require one to acknowledge that racism exists in every institution, in every workplace, among the most well-meaning and best of people. All structures are people. Of course there is racism at Hedland Health Campus, just like there is at the South Hedland Police station. Racism has many veils and layers. Racism is not limited to the overt and often visible harm that one can do to another but includes also what people think of others.”

Mr George Newhouse, the principal solicitor of the National Justice Project, a human rights and social justice legal service, who was assisting the family, said that recommendations from the Royal Commission into Aboriginal Deaths in Custody have not been implemented in Western Australia, “Now those recommendations were made over 25 years ago, and if they had been implemented in W.A. it’s quite likely Ms. Dhu would not have passed away.”

A campaign was commenced to end the gaoling of fine defaulters in Western Australia – a practice which ended in 1988 in New South Wales, and also for the implementation of the Custody Notification Service – to be coordinated through the Western Australia Aboriginal Legal Services, which would have provided Ms Dhu a trained legal advocate at the time of her detainment. In addition. there were calls, led by the C.E.O. of the W.A. Aboriginal Legal Services, Dennis Eggington, a Nyungar man, for more to be done by the State to reduce the high arrest and incarceration rates of the State’s Indigenous People, which are the highest in the nation and among the highest in the world. (Death of Ms Dhu – Wikipedia).

Mr George Newhouse undertook to lodge a claim of misconduct leading to death in the Supreme Court of Western Australia as well as a racial discrimination complaint in the Australian Human Rights Commission, which could ultimately progress to the Federal Court. He was confident of their prospects of success in the wake of his colleague Mr Stewart Levitt’s historic Federal Court victory on behalf of around 2,000 Palm Islanders over police racism following the 2004 riots there.

“Stewart has been extremely successful with the Palm Island case in highlighting endemic and systemic racism in the Queensland Police Service,” Mr. Newhouse said. “These are issues that need to be exposed in W.A. as well and I think taking Stewart’s approach and applying it to Ms Dhu’s case will expose the rotten core of prejudice that exists both in the police service and also, surprisingly, in the health service in W.A.”

Mr Newhouse wanted Ms Dhu’s case to be a turning point in Australian race relations. “It’s a very important case because this was an atrocity and there’s too much tolerance in this country for this kind of repeated desecration of Indigenous families by people with the authority of the state,” he said. “And we need to set standards which all Australians adhere to.”

A 2016 Coronial Inquest had found that the police acted inhumanely and that Ms Dhu’s life could have been saved if doctors at the Hedland Health Campus had properly diagnosed her illness, but an internal police investigation, overseen by the Corruption and Crime Commission, found there was no criminality. Eleven officers underwent ‘disciplinary measures’ due to their lack of compassion towards Ms. Dhu, but none of them were dismissed or charged.

The Coroner also recommended that the W.A. Government consider introducing a Custody Notification Service, for which the family and Deaths in Custody Watch Committee had been pleading. By the end of July 2016 it was still to be introduced.

The Hedland Health Campus staff were reportedly counselled and an independent review of procedures conducted.

Mr Newhouse said that lessons needed to be learned from this case. “It just should never happen again and reforms need to be put in place as a matter of urgency,” he said.

“It’s three years since her death and time’s up. Time’s up. These reforms need to take place and I’m hoping that the case will lead to real reform in W.A.”

The Western Australian Police could not comment on specific civil action against it but said that since Ms Dhu’s death it had made a number of changes to its custodial policies and procedures to ensure the safety and preserve the dignity of people in their care.

A spokesperson for the Hon. Roger Cook, Minister for Health and Minister for Mental Health, as well as Deputy Premier, said that W.A. Country Health had conducted an extensive review into Ms. Dhu’s death and made systemic changes and improvements to its service. (Ms Dhu’s family prepare to take on WA Government after ‘three years of hell’, 31 July 2017, A.B.C.).

Towards the end of September 2017, the Western Australia Attorney-General, the Hon. John Quigley revealed that the family of Ms Dhu had received a $1.1 million ex gratia payment from the W.A. Government. Mr Quigley said that the lump sum did not prejudice the family’s right to future civil action, but would be deducted from any future damages.

“I have met three members of Ms Dhu’s close family and offered the states’ sincerest apologies for the circumstances leading up to the death of their family member,” Mr. Quigley told a Budget estimates hearing.

He also said that he had informed the family that the State Government would implement a Custody Notification Service, one of the recommendations from the 2016 Coronial Inquest. Such Service, Mr Quigley said, could have prevented the death. “There would have been someone from the [Aboriginal Legal Service] ringing up to ask why she was there and inquire into her welfare,” he said. (Ms Dhu’s family receive $1 million ex gratia payment, 20 September 2017, Perth Now).

Continued Friday with: Government’s institutional brutality (Part 4)

Previous instalment: Government’s institutional brutality (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.


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