The Guardian • Issue #1958

30th anniversary of Royal Commission into Aboriginal Deaths in Custody Report

This article contains a discussion and analysis of a subject that First Nations People might find distressing. It also contains the names of deceased persons.

The 15th of April marks the 30th anniversary of the 1991 Royal Commission into Aboriginal Deaths in Custody (RCIADIC) report. Far from improving the lives of First Nations people, the situation has only gotten overwhelmingly worse. Over 470 Indigenous Australians have died in custody since the report was released, and some of the recommendations are yet to be implemented. Protests happened across the country to mark the anniversary of the Royal Commission and drew attention to ongoing injustices that have shown no signs of abating. See Guardian, “Stop black deaths in custody rally – Sydney,” #1957. Five Aboriginal people have died in custody in the last month in Australia.

The RCIADIC contained a total of 339 recommendations to prevent and address Aboriginal deaths in custody which a group of leading Indigenous and social academics have suggested are “misleadingly positive”, “have the potential to misinform policy” and are “largely worthless.” These criticisms were penned in an open letter by the Centre for Aboriginal Economic Policy Research at the Australian National University, signed by thirty-two academics and one institution – the Jumbunna Institute for Indigenous Education and Research.

One of the findings from the original 1991 Royal Commission was that more Aboriginal people were likely to die in custody partly because they were incarcerated at disproportionate rates. The proportion of people in prisons who are Indigenous has doubled from fourteen per cent in 1991 to almost thirty per cent. Meanwhile, Indigenous Australians make up just three per cent of the Australian population. Indigenous Australians still represent the most incarcerated people on earth, with 2285 Aboriginal and Torres Strait Islander people incarcerated per 100,000 adult population.

Recommendations like recommendation 339, which read in part “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.” This has given rise to criticisms that the report is largely symbolic and lacks concrete solutions. One of the issues with vague recommendations is the government’s ability to implement them partially and take credit for taking heed of the report. It is difficult to say definitively what “the process of reconciliation” is supposed to look like without consultation with First Nations people, and therefore it is difficult to see how, if at all, this will go any way to reducing the numbers of Indigenous deaths in custody.

Teela Reid, a lawyer and Wiradjuri/Wailwan woman sharply draws attention to the historical and structural reasons that continue to perpetuate this problem. She wrote in her article “Aboriginal lives ought to matter not only when we die, but while we are alive,” that:

“Aboriginal people deserve peace, not the perpetual pain families of victims now must endure. The systemic erasure of Aboriginal lives, languages and law from our own land is the product of a society founded on genocide. Killing Aboriginal people has always been a by-product of the colonial project; it started with massacres, it persisted with the missionaries, and the remnants of this violent past are manifest in the mass incarceration of Indigenous peoples.”

Deaths in custody are inextricably bound up in white Australia’s ongoing settler-colonial program and will continue to occur if these structural issues are not addressed. Silence over these matters is complicity.

Alison Whittaker, a Gomeroi poet and legal researcher from Gunnedah in NSW, in her article in The Conversation, has also denounced this injustice. Since the 1991 RCIADIC not a single person has been convicted over any of the 470+ deaths in custody. She points out that the officer involved in the death of George Floyd in the US has been charged with third-degree murder, whereas in Australia, the death of David Dungay Jr, a Dunghutti man, has been met with no legal ramifications.

Even the only legal avenue that is open to many families – the coronial inquest – is severely flawed. Whittaker argues that the inquest is a forum that sidelines families, treating their testimony as largely irrelevant if it allows them to be heard at all. This is because an inquest is designed not to place the legal blame on some person – that is a separate proceeding – but only to come to the limited conclusion of how a person died. Even this limited form of justice is sometimes denied when the inquest finds that a death in custody was accidental, even though it was preventable.

The opposition Labor government recently announced a $170mil plan to reduce the number of Indigenous people going to jail. However, as three decades have clearly shown, no government has displayed any degree of competency in handling this issue, let alone all the other issues that plague First Nations People in this country. A Royal Commission has very little use outside of providing comprehensive data on a particular matter. This data has clearly demonstrated how utterly incapable the government is at dealing with these issues. This is glaringly obvious when analysing how the ACT has enacted the recommendations.

The ACT government proudly boasts that it has “implemented ninety-three per cent of recommendations from the Royal Commission” and set up numerous indigenous courts and electoral bodies but, in the same breath, the Attorney-General of the ACT, Shane Rattenbury admitted that “During 2020, First Nations people in the ACT were imprisoned at a rate nineteen times that of the non-indigenous population. This is unacceptable.” What is perfectly clear is that the RCIADIC recommendations, even when implemented, do very little to improve the lives of First Nations people. This is not an isolated failure, in fact it gets worse at the national level. A 2018 report by Deloitte Access Economics stated that only around sixty per cent of the royal commission’s 339 recommendations have been fully implemented. Not only do the recommendations not work when mostly implemented, they’re not even being fully implemented in the first place.

This leaves us with the extremely complex issue of what to do in light of these policy failures. The debates between indigenous people surrounding prison reform vs abolition can be found in the Guardian article “Discipline and punish: The over-representation of First Nations People in the judicial system” #1946. The National Aboriginal and Torres Strait Islander Legal Services (NATSILS) released a media statement on the 9th of April with ten demands.

They call for:

The replacement of internal police and prison inquiries with independent investigative bodies to lead inquiries into deaths in custody.

The reallocation of public funding away from the expansion of the prison industrial complex and violent, punitive policies.

Use of those funds for better funded Aboriginal and Torres Strait Islander-led, grassroots solutions within their communities.

For NATSILS, the key to genuine structural change is “excellent schools, community healthcare and healing programs by and for our people to be funded nationally, and within states and territories.” Improvements to the infrastructure of communities better equips future generations to exercise their self-determination. These measures address the immediate problems faced by indigenous communities while laying the foundations for political autonomy from the white settler-colonial state.

The self-determination of First Nations people is one of the first and foremost conditions for emancipation. It involves the concrete ability of Indigenous communities to determine the way they take care of their cultural, social and economic needs. Self-determination cannot meaningfully or concretely exist as a subsection or extension of the already existing bourgeois state. An effective right to self-determination would enable Indigenous communities to root out the structural causes of police violence against them. Importantly, it would demand the autonomy to exclude the police from their communities and to administer their own law and justice on their lands.

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