1987: The Royal Commission starts work

In 1987 the government led by Bob Hawke decided something must be done about a rising number of complaints that Aboriginal people were dying in suspicious circumstances in police cells.

It announced a Royal Commission (a major government public inquiry into an issue) into Aboriginal deaths in custody on 10 August 1987 in response to a growing public concern that such deaths were too common and poorly explained.

Hearings began in 1988. The commission initially set out to examine 44 specific cases but that eventually grew to 99, with 32 in Western Australia, 27 in Queensland, 21 in South Australia and the Northern Territory and 19 across NSW, Victoria and Tasmania ^[8].

The Commission submitted its final report in April 1991. All up, the commission cost about $40 million, with another $400 million spent on implement of its recommendations ^[8].

To monitor deaths in custody, the Australian Institute of Criminology established a national deaths in custody program which should publish an annual report.

A decade ago, the program was delivering its reports within days of the close of the reporting period - the 2003, 2004 and 2005 reports were delivered within one month. Then, without explanation, each of the next 3 reports took between 16 months and 2 years to appear. The 2009-11 report has been almost 3½ years in the making ^[9].

[The deaths in custody report] paints a horrific portrait of the state of indigenous criminal justice.

— Inga Ting, journalist, Sydney Morning Herald ^[9]

I am constantly stunned when many senators tell me that they are not aware of Australia's death in custody record.

— Gerry Georgatos, Human Rights Alliance, Perth ^[10]

Aboriginal Australians have learnt to fear for the lives of family members who end up in police cells or jail.

— The Saturday Paper ^[11]

Findings of the commission

The Royal Commission examined the deaths of 99 people who had died in custody between 1 January 1980 and 31 May 1989. It looked into both the causes of the deaths and the prevention of future deaths and tried to answer the question: Why are so many Indigenous people in custody? Why were they treated that way?

Some of the Commission's findings were: ^[12]

• Aboriginal people do not die at a higher rate than non-Aboriginal people in custody.
• The rate at which Aboriginal people are taken into custody is "overwhelmingly different".

The first finding might sound counter-intuitive at first, especially when putting it into context with data published elsewhere that shows much higher Aboriginal death rates for the same period. As with most statistics, we have to look at how the rates are calculated.

The Royal Commission calculated the death rate relative to the number of prisoners. This makes sense as it wanted to know if more Aboriginal prisoners die in custody than non-Aboriginal prisoners. The following graph shows this rate over time.

Other publications might show the rate per 100,000 of the general or Aboriginal population which will give very different results. Because Aboriginal people are over-represented in prison but a minority in the general population their death rate is much higher than that of non-Aboriginal prisoners.

While Indigenous people are not more likely to die in custody than non-Indigenous people, they remain significantly over-represented in all forms of custody.

— Adam Tomison, director, Australian Institute of Criminology ^[3]

Investigating the deaths in NSW, Victoria and Tasmania the commission found that 13 of the 18 people who died in custody may have survived had custodial authorities not been negligent, uncaring or had followed procedures adequately. The other 5 deaths might also have been avoidable on the grounds that these people may not have needed to be in custody at all. ^[14]

The commission's recommendations

The conclusion was that too many Aboriginal people are in custody too often. In its report the commission made 339 recommendations, for example

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

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

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

339. Initiate a formal process of reconciliation between Aboriginal people and the wider community.

The last recommendation led to the establishment of the Council for Aboriginal Reconciliation.

For five years after the royal commission's final report, action on its recommendations was regularly monitored – but never after. If its recommendations had been followed, most of the more than 400 deaths in the years since could have been prevented, experts believe. ^[15]

One of the fundamental lessons of the royal commission was that Aboriginal people die in custody too often because they’re in custody too often and we need to stop locking up people for minor offences, particularly things like public drinking.

— Jonathon Hunyor, lawyer ^[11]

Aboriginal prison rates soar despite recommendations

At the time of the commission's final report in 1991, Aboriginal people were 8 times more likely to be imprisoned than non-Aboriginal people. A decade after the report was handed down they were 10 times more likely to be imprisoned.

In the 2010s, they were 15 times more likely. In Western Australia, which has the highest Aboriginal imprisonment rate in the country, Aboriginal people are close to 20 times more likely to be jailed than non-Aboriginal people ^[9].

Between 2003 and 2013, the Aboriginal rate of incarceration has soared 11 times faster than the non-Aboriginal rate. Prison rates for Aboriginal women have increased by a third between 2002 and 2007, and the number of Aboriginal men by one-fifth ^[17], while police custodial rates remain as high as before.

In 2009, the proportion of Aboriginal prisoners had almost doubled in the 20 years since the commission delivered its recommendations ^[9].

In 2013, the Australian Institute of Criminology (AIC) found Aboriginal deaths in prisons had spiked over the 5 preceding years, despite deaths in custody for non-Aboriginal prisoners remaining stable. It found most deaths were caused by heart conditions and other medical problems, though self-harm remained high ^[18].

As if the royal commission never existed, the Northern Territory in December 2014 introduced 'paperless arrest laws'. Thought to free police from paperwork, the laws can be triggered by offences including swearing, drinking in public, making too much noise or having an untidy front yard. Previously these infractions merited only small on-the-spot fines. Of the 2,000 people who have been detained via paperless arrests, almost 80% are Aboriginal. In November 2015 the High Court of Australia ruled that paperless arrest laws were valid. ^[11]

There have been 340 Aboriginal deaths in custody since the end of the royal commission. Most could have been prevented if the [commission's] recommendations were all implemented.

— Peter Boyle from Australia's Green Left Weekly newspaper, in 2014 ^[18]

Community impact: "Families are destroyed by this cruelty"

When family members go to prison, families and communities are affected by the loss of parents, role models, childcare and family income.

The Indigenous Social Justice Association is fighting since many years for the rights of families whose loved ones died in police custody.

Their president, Ray Jackson, describes what these families have to go through:

"One cannot begin to explain what death-in-custody families suffer. In fact they suffer twice. firstly for their tragic loss but also by the continued indifference to the law of the land that states that the guilty must be held accountable. For over 450+ families this pain, this trauma eats at them everyday of their lives. Families are destroyed by this cruelty and white power indifference. The horror, the crimes against the families continue unabated." ^[19]

Governments fail to follow recommendations

These high prison rates come to no surprise.

A 1996 examination of 96 Aboriginal deaths in custody since the royal commission offered a dismal assessment of progress. It found that every state and territory had claimed implementation of recommendation 161. Yet this continued to be "a serious problem" in numerous deaths. ^[20]

Equally, every state and territory claimed that the principle of imprisonment as a last resort had been, or was in the process of, being implemented, but this wasn't entirely so.

A survey of the Australian Indigenous Law Review in 2009 showed that Australia's states still had only acted on a fraction of the commission's recommendations.

Victoria had acted on 27%, NSW on 48%, Tasmania on 41%, South Australia 52% and Western Australia 50%. Besides the Australian Capital Territory, the Northern Territory was the most adherent to recommendations because mandatory reporting is in place in the NT ^[21].

Six years later things hadn't improved much. A 2015 report by law firm Clayton Utz found that the bulk of the commission’s 339 recommendations remained unimplemented or only partially implemented. ^[22]

Worse, the Northern Territory government in 2014 introduced 'paperless arrest' laws, which allows officers to jail a person with no warrant and no charge for 4 hours.

"An arrested Aboriginal person has to run the gauntlet of first being in police custody then being placed in custodial transport, then being incarcerated in a prison," explains Aboriginal elder and leader of the Euahlayi tribe, Michael Anderson ^[23]. "At each stage we now have records that indicate that all three stages have increased their statistics of Aboriginal deaths since the Royal Commission into Aboriginal Deaths in Custody."

When using the statistics, it is important that Aboriginal deaths are placed in the context of the number of people in prison. "At the heart of the problem is the over-representation of indigenous persons at every stage of the criminal justice system," concluded a report by the Australian Institute of Criminology in 2013 ^[24].

Aboriginal prisoners also die at younger ages from natural causes ^[24], reflecting the poorer health conditions and lower life expectancy of Aboriginal people.

Police have a duty of care no matter what [offenders] have done.

— 'Recruits', episode 11 on Australia's Channel 10

Death in custody case studies

Aboriginal deaths in custody happened before the commission was formed and still happen today.

The death of Lloyd Boney, found hanging in a police cell in Brewarrina, NSW, in August 1987 is regarded as the catalyst for the royal commission ^[8].

The deaths of John Pat and Eddie Murray are two more examples. One of the more recent cases is the death of Doomadgee Mulrunji in 2004 after a senior police officer 'fell' on him.

We have to get rid of racist cops. I don't want to dwell on the past, but I have grown up bitter.

— Ben Taylor, Aboriginal elder, Perth ^[26]

John Pat by Jack Davis

Write of life / the pious said
forget the past / the past is dead.
But all I see / in front of me
is a concrete floor / a cell door / and John Pat.

Agh! tear out the page / forget his age
thin skull they cried / that's why he died!
But I can't forget / the silhouette
of a concrete floor / a cell door / and John Pat.

The end product / of Guddia law
is a viaduct / for fang and claw,
and a place to dwell / like Roebourne's hell
of a concrete floor / a cell door / and John Pat.

He's there - where?
there in their minds now / deep within,
there to prance / a sidelong glance / a silly grin
to remind them all / of a Guddia wall
a concrete floor / a cell door / and John Pat.

'Guddia' is a Kimberley (north Australian) term for the white man. The poem was also published in Jack Davis' book 'John Pat and Other Poems'.

Resource: Eddie's Country

In 2006 Simon Luckhurst launched his book Eddie's Country, a detailed history of the complex social, historical and legal issues experienced by members of the Murray family:

"It attempts an unbiased and comprehensive exploration of the Eddie Murray case, which incorporates a socio-political context as well as a personal one. For the first time all the available evidence on the case has been brought together, and the result is both revealing and moving." ^[27]

A question which is raised by the case is how a society, which would like to think of itself as being civilised, could allow a human being to be transported in such circumstances.

— Alistair Hope, coroner ^[29]

Resources

Deaths in Custody Watch Committee WA

The Deaths in Custody Watch Committee in Western Australia was set up by a coalition of concerned parties in 1993. Its specific aim is to monitor and work to ensure the effective implementation of the Royal Commission Into Aboriginal Deaths In Custody.

[Mulrunji's] death and all deaths in custody have had a profound impact. This man carried within him songs, stories, dreaming that belonged to his country, and all that was obliterated when he was killed on that floor.

— Sam Watson Snr, Brisbane Aboriginal community leader ^[34]

Australian Institute of Criminology

The AIC is the government department that supplies the Australian Bureau of Statistics with its data about deaths in custody.

To get the government-flavoured perspective, browse its collection of articles on Deaths in prison custody which, among many other statistics, also include Aboriginal deaths in custody by state or territory.