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Issue #1919      June 15, 2020

The Royal Commission into Aboriginal deaths in custody

Between 1st January 1980 and 31st May 1989, ninety-nine Aboriginal and Torres Strait Islander people died in the custody of prison, police or juvenile detention institutions. Their ages ranged from fourteen to sixty-two years, with an average age of thirty-two years.

In response to mounting pressure from Indigenous and many non-Indigenous people over the circumstances of these deaths and the rising number, the Hawke Labor government established a Royal Commission (RC) to investigate them in October 1987. The RC was later extended to look into additional deaths that occurred after it had commenced hearings.

Its terms of reference required the RC to study and report upon the underlying social, cultural and legal issues behind the deaths in custody. Its findings and recommendations focused on the high rate of incarceration, the question of health and safety once in the system, and the importance of self-determination.

Colonial history

The key to the situation “lies in the recognition of the Aboriginal people as a distinct people, the indigenous people of Australia who were cruelly dispossessed of their land and until recent times denied respect as human beings and the opportunity to re-establish themselves on an equal basis, ” the Report states.

“As with indigenous peoples in other countries, it is a matter of great difficulty to work out ways in which, within the framework of the large society, they can retain their identity as a people and exercise a significant degree of control over their lives and futures.

“If other Australians can, in a spirit of justice and humanity, accord Aboriginal people this recognition, give them freedom to determine their own future and find their own place as a distinct people within Australian society, and provide them with the resources that are necessary to overcome the handicaps they suffer as a result of what has happened in the past, there can be hope of a freely negotiated reconciliation between Aboriginal and non-Aboriginal Australians. Then there may be an end to the situation where so many Aboriginal people live and die in custody.”

“Aboriginal people were deprived of their land and if they showed resistance they were summarily dealt with. The loss of land meant the destruction of the Aboriginal economy which everywhere was based upon hunting and foraging. And the land use adopted by the settlers drastically reduced the population of animals to be hunted and plants to be foraged. And the loss of the land threatened the Aboriginal culture which all over Australia was based upon land and relationship to the land.

“These were the most dramatic effects of European colonisation supplemented by the decimating effects of introduced disease to which the Aboriginal people had no resistance. These matters are understood to a very imperfect degree by non-Aboriginal society,” the Report notes.

Disempowerment

“[There] was the deliberate and systematic disempowerment of Aboriginal people starting with dispossession from their land and proceeding to almost every aspect of their life.”

Today, in 2020, policies of assimilation are still pursued, dispossession from land continues and children are still being removed from their families and communities. Aboriginal and Torres Strait Islander people continue to be denied control over their own lives as they never let up in their struggle for self-determination.

“From that history many things flow which are of central importance to the issue of Aboriginal over-representation in custody.”

“Every step of the way is based upon an assumption of superiority and every new step is a further entrenchment of that assumption.”

“Non-Aboriginal Australia has developed on the racist assumption of an ingrained sense of superiority that it knows best what is good for Aboriginal people.” The Report notes that land settlement was underpinned by economic interest and religious belief. “That feeling of superiority towards Aboriginal people, which is a racist view, was very strong.”

The Report also acknowledges the strength of Aboriginal society that has survived all of these assaults: “Outstanding people amongst them campaigned for rights, for equality. ... Gradually, their calls were heard with more sympathy; in 1967 the Referendum was carried with the support of a majority of voters in every State. The Referendum was a watershed.”

“The consequence of this history is the partial destruction of Aboriginal culture and a large part of the Aboriginal population and also disadvantage and inequality of Aboriginal people in all the areas of social life where comparison is possible between Aboriginal and non-Aboriginal people.

“The other consequence is the considerable degree of breakdown of many Aboriginal communities and a consequence of that and of many other factors, the losing of their way by many Aboriginal people and with it the resort to excessive drinking, and with that violence and other evidence of the breakdown of society. As this report shows, this legacy of history goes far to explain the over-representation of Aboriginal people in custody, and thereby the death of some of them.”

Self-determination

Control over Aboriginal lives is a constant theme.

The Chapter on self-determination concludes with advice for governments: “Government can transform the picture of Aboriginal affairs. But not so much by ‘doing’ things – more by letting go of the controls; letting Aboriginal people make the decisions which government now pretends they do make. Government would be doing non-Aboriginal society a service; the resolution of the ‘Aboriginal problem’ has been beyond the capacity of non-Aboriginal policy makers and bureaucrats. It is about time they left the stage to those who collectively know the problems at national and local levels; they know the solutions because they live with the problems.”

“There is a great deal of misunderstanding of the special privileges available for Aboriginal people, aimed at undoing the years of disadvantage and discrimination, and these misunderstandings need to be faced squarely by the Government.”

Rate of incarceration

The Commission identified the principal and immediate explanation for the deaths in custody as being “the disproportionate rate at which Aboriginal people are detained, arrested and imprisoned in Australia.”

The report examines the position of Aboriginal people in relation to health, housing, education, employment and income; it discusses the land needs of Aboriginal people. It shows how the attitudes of the dominant non-Aboriginal society, racism both overt and hidden and institutional racism, adversely affect Aboriginal people. It shows how some laws bear unequally upon Aboriginal people.

It makes recommendations about reducing and eliminating disadvantage through self-empowerment.

It calls for law reform, in particular, around the handling of public drunkenness and non-payment of fines as part of a more general plan to limit the involvement of police in essentially non-criminal behaviour.

“Other offences, notably those involving offensive, indecent or obscene language, continue to be used frequently against Aboriginal people. [...] There should be a high priority on addressing this area of often hypocritical policing, especially when the language arises in the context of police-occasioned intervention.”

The Report quotes from Commissioner Wootten’s report on his inquiry into the death of David Gundy:

“It is surely time that police learnt to ignore mere abuse, let alone simple ‘bad language’. In this day and age many words that were once considered bad language have become commonplace and are in general use amongst police no less than amongst other people. Maintaining the pretence that they are sensitive persons offended by such language ... does nothing for respect for the police. It is particularly ridiculous when offence is taken at the rantings of drunks, as is so often the case. Charges about language just become part of an oppressive mechanism of control of Aboriginals. Too often the attempt to arrest or charge an Aboriginal for offensive language sets in train a sequence of offences by that person and others – resisting arrest, assaulting police, hindering police and so on, none of which would have occurred if police were not so easily ‘offended’.”

Health and safety

The RC found that, “generally, there appeared to be little appreciation of and less dedication to the duty of care owed by custodial authorities and their officers to persons in custody. We found many system defects in relation to care, many failures to exercise proper care and in general a poor standard of care. In some cases the defects and failures were causally related to the deaths, in some cases they were not and in others it was open to debate.”

“One very prominent feature of all the deaths investigated was the failure of custodial authorities to learn from past incidents [...]. It is of vital importance that procedures be established to enable poor practices and procedures to be readily identified and rectified.”

The accessibility and appropriateness of current prison medical services to Aboriginal prisoners were found wanting and the Aboriginal Medical Services in the delivery of health care to Aboriginal prisoners under-utilised.

The recommendations were comprehensive and focused on reducing the number of Aboriginal people in custody through social, educational, employment, health and self-empowerment measures and reconciliation. There was an emphasis on using and consulting local Aboriginal organisations.

They included decriminalising non-payment of fines, intoxication in public places where this had not been done. In the latter instance, it proposed taking them home or to special non-custodial facilities be established for the care and treatment of intoxicated persons. It recommended a range of programs as alternatives to a custodial sentence for minor offences to be determined in consultation with and involving Aboriginal people […].

“Unless governments, and the Australian people, demonstrate a real commitment to achieving social justice and self-determination for Aboriginal people, it is likely that Aboriginal people will continue to suffer from unacceptably low levels of health.”

In relation to prior convictions, the Commission raised the question of whether governments should consider, in the interests of rehabilitation, that criminal records be expunged to remove references to past convictions after a lapse of time since last conviction, in particular, whether convictions as a juvenile should not be expunged after, say, two years of non-conviction as an adult.”

“That in reviewing options for non-custodial sentences governments should consult with Aboriginal communities and groups, especially with representatives of Aboriginal Legal Services and with Aboriginal employees with relevant experience in government departments.”

There are other recommendations on education with emphasis on the participation of Aboriginal parents and community members in decisions regarding the planning and delivery.

Finally: “That all political leaders and their parties recognise that reconciliation between the Aboriginal and non-Aboriginal communities in Australia must be achieved if community division, discord and injustice to Aboriginal people are to be avoided. To this end the Commission recommends that political leaders use their best endeavours to ensure bi-partisan public support for the process of reconciliation and that the urgency and necessity of the process be acknowledged.”

The government responded to this with the establishment of Reconciliation Australia in 2001.

Regrettably too few of the RC’s 339 recommendations have been implemented and deaths in custody continue to rise.

Next article – Black Lives Matter rally in Sydney – CPA shows its support

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