More Australian indigenous people than ever dying behind bars

Indigenous Deaths in Prison and Police Custody

About 340 indigenous people have died in Australian prisons and police cells since a royal commission (a high-level inquiry) made 339 recommendations to all levels of government to stop the devastating trend 25 years ago. As the bulk of those recommendations remain unimplemented or only partially implemented, more indigenous people than ever are dying behind bars. In some quarters it’s been reported that Aboriginal custody deaths have increased 150 per cent since 1991. Critics say the lack of progress is mind-blowing.


A 2015 report by one of Australia’s largest law firms, Clayton Utz, found that in some places laws have been introduced that directly contradict the recommendation that jail be the last resort for indigenous people. These include


The recommendations include moves to address the systemic racism in an unjust justice system, as well as broader actions to address Aboriginal disadvantage.


A conference in the federal capital, Canberra, of 16 allied leading Aboriginal and Torres Strait Islander non-governmental human rights and community organisations heard: “The handing down of the final report 25 years ago was a watershed moment in Australian history. It’s now a generation on and governments at all levels have still failed to act.”


“We know that Aboriginal and Torres Strait Islander communities are strong and resilient, but successive governments’ policies have been ineffective - the crisis of Aboriginal and Torres Strait Islander imprisonment and experience of violence continues to devastate our communities.


“This is a national crisis and requires an immediate response.


“In 1991 Aboriginal and Torres Strait Islander people were seven times more likely [than non-indigenous people] to be in prison, now in 2016 that figure has risen to 13 times. Aboriginal and Torres Strait Islander men are more likely to go to prison than university. At the same time Aboriginal and Torres Strait Islander women are experiencing high rates of violence, being 34 times more likely to be hospitalised for family violence related assault.


“We can be the generation to change the record, but it will require concerted effort from all levels of government, driven by Aboriginal and Torres Strait Islander led solutions and community support,” the Change the Record coalition conference heard.


Last year the Change the Record Coalition released a Blueprint for Change, which provides a critical roadmap for governments to follow. The CTR Coalition calls on all political parties to place the well-being of Aboriginal and Torres Strait Islander communities at the heart of policy decisions, and urgently to prioritise imprisonment and family violence rates.


Minister Scullion infuriated many by claiming that despite the shocking figures progress had been made. Indigenous deaths in custody peaked at 20 between 2009 and 2010, dropping to 13 from 2012-2013, the newest data.


An Amnesty International spokesman, Julian Cleary, called Scullion’s claim that the number of indigenous deaths in custody had fallen “misleading” and a “dodging of responsibility”. “Minister Scullion’s statement attempted to pass the buck to the states and territories, but these statistics prove this is a crisis at a national level, and requires federal government action,” Cleary said.


Roxanne Moore, a Noongar woman from the southwest of Western Australia and an indigenous rights campaigner with Amnesty International, said in the Sydney Morning Herald, Australia’s most prestigious daily, that Australians should be outraged at the number of indigenous deaths in custody 25 years after the Royal Commission.


The first recommendation of the royal commission was for state and territory governments to report annually to the federal government on their progress implementing the recommendations. This had not happened, Cleary said.


“Today, one in five people who die in custody are indigenous. This must not be presented as a success; it is a disaster in a nation where Aboriginal and Torres Strait Islander people make up less than 3% of our population.” Through the period 1989 to 2013, of the 1,195 Australians who died in prison custody, 218 were indigenous, of the 750 who died in police custody 147 were indigenous. 


A prominent Aboriginal journalist, Amy McQuire, a Darumbul woman from central Queensland, notes in an article citing prominent cases that about half of the deaths in custodies investigated by the commission involved Aboriginal men who were ripped from their families as children. “We know that even now, many Aboriginal kids go from out-of-home care to juvenile detention, and then jail.”


McQuire writes that Aboriginal women are now “the fastest growing incarcerated group in this country. A large percentage of them are locked up for retaliating against family violence, because there are barriers put in place to get help. Many Aboriginal women are scared to approach authorities because of this lingering fear, that they will not be believed, that they will be locked up themselves, and by the shadows that black deaths in custodies cast over every Aboriginal community today.


“The majority of Aboriginal women behind bars today, regardless of how they got there, are also victims of family violence, or of the child protection policies that are ripping more and more Aboriginal children away from their families.”


McQuire writes that the royal commission did little to reflect the concerns of Aboriginal women, who were not only grappling with issues around family violence, but also of stolen children, and being locked up themselves. “The reason this is important is because the commission ultimately ended up investigating the violence and brutality of the colonial-settler state, which was and still is killing Aboriginal people both behind bars and outside of them.


“The violence on the frontier has internalised itself in our communities: from one generation to the next, the trauma is handed down and reborn in new forms of violence, whether it be alcohol abuse, or now, family violence. Not focusing on the impact that any recommendation would have on Aboriginal women only compounds the problem. And today, we are not just jailing Aboriginal men at rising numbers, but Aboriginal women and children too.”


As long as people are in poverty, the high rate of indigenous incarceration will spike even further, the Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Gooda, said on the mainly tax-funded National indigenous Television Service (NITV). On AUD 240,000 (€164,300) a year Gooda’s government-appointed position is the highest paid in the indigenous bureaucracy. He is widely seen as going with the government’s “assimilationist” agenda.


"In Western Australia, a kid [was caught] stealing a packet of biscuits. Now in anyone's world a packet of biscuits for someone who's hungry being stolen isn't a cause to send people to jail, but it certainly is in places like WA," Gooda said on NITV.


Jackie Huggins, co-chair of a National Congress of Australia's First Peoples, stressed on NITV that indigenous people know how to lower their over-representation in custody. “We need to encourage our community-controlled organisations, who know the answers, who have the solutions for government to work with them to adequately fund and resource them to their ability to really have absolute inroads into this very disproportionate incarceration rate that we see."


She mentions justice reinvestment, which redirects funds from prison costs to preventative community initiatives, such as skill building, as one such answer. 


Yawuru [northern Western Australia] man, Professor Pat Dodson, who was on the royal commission, told journalists that there are now twice as many Aboriginal people in jail as in 1991 because of a culture “that permits the criminal justice system to continue to suck us up like a vacuum cleaner and deposit us like waste in custodial institutions”.


“Certainly one has to wonder what happened to the principle of imprisonment as a last resort, and the 29 recommendations relating to this issue. A quarter of a century after we handed down our findings, the vicious cycle remains the same. Mandatory sentencing, imprisonment for fine defaults, paperless arrest laws, tough bail and parole conditions, and punitive sentencing regimes certainly haven’t helped. Neither do funding cuts to frontline legal aid services.”


Dodson has accepted a nomination to run on the opposition Labor ticket for a Western Australian seat becoming vacant in the national Senate. The overtly racist government of the state backs the nomination.


The situation is worst in Western Australia, which has the highest rate of racialised imprisonment in the country, followed by the Northern Territory. Indigenous children in WA are 53 times more likely to be jailed than non-indigenous children; adults 17 times more likely.


Peter Collins from the poorly government-funded Aboriginal Legal Service in Western Australia calls the overrepresentation of Aboriginal people in prison 'diabolical’.  “In some quarters it has been reported that there's been 150 per cent increase in Aboriginal deaths in custody since [the Royal Commission] in 1991. Aboriginal people in Australia are 15 times more likely to be in prison than non-Aboriginal people, and that figure is 20 times higher in Western Australia. The situation is diabolical, to put it mildly.”


Dennis Eggington, the chief executive of the service, sees the justice system at “crisis point”. “It perpetuates inequality and injustice. It's a blight and a stain on our so-called progressive nation, and it's an international embarrassment to this country.


“The overrepresentation of our people in the prison systems is something that has evolved from this conflict relationship that we've had with the settler society. The disgrace is that no one seems to care or want to do anything about this country locking our people up in the numbers it does.”


The chief executive officer of the New South Wales Aboriginal Land Council (NSWALC), Roy Ah-See, sees jail rates widening the gap between indigenous people and the non-indigenous population. The wealthy NSWALC represents 119 local Aboriginal land councils across New South Wales which collectively manage support services delivered to local communities.


Ah-See told the National Indigenous Times that all governments need to fundamentally rethink the way they work with Aboriginal communities to combat the deepening crisis. The billions of dollars Australian governments poured into prisons each year had only widened the gap for Aboriginal people.


“It’s time for policy-makers to concede that the system is fundamentally broken and to work in genuine partnership with Aboriginal people and organisations on community-centred alternatives to prison. This includes policies and programmes based on justice reinvestment where power is devolved at the local level to invest in education, training, parole support, rehabilitation and community driven courts.” Ah-See said local Aboriginal land councils in NSW are ready to be part of the solution.


“The land rights system in New South Wales is uniquely placed to play a constructive role in addressing some of the factors that bring Aboriginal people in contact with the justice system. In New South Wales local Aboriginal land councils are able to claim certain lands as freehold title and many of our local Aboriginal land councils use that land to connect people back to country, to provide training, jobs and get people back on their feet. If we are serious about confronting the national shame of rising Aboriginal imprisonment rates, government policies need to be informed by what Aboriginal people experience at the grassroots.”


Ah-See’s comments were supported by Law Society of NSW president, Gary Ulman, who said that good outcomes had been achieved in some areas – there had been no Aboriginal deaths in police custody since the introduction of the Aboriginal Legal Service NSW/ACT custody notification service – but the incarceration rate had worsened over 25 years. NSW continues to hold the highest number of indigenous prisoners of any state or territory.


The right-of-centre prime minister, Malcolm Turnbull, has acknowledged the problem of indigenous overrepresentation in prison and his opposition Labor counterpart, Bill Shorten, is pushing for national justice targets to be included in Close the Gap goals, which would mean the prime minister would have to report to parliament on progress around reducing indigenous imprisonment rates.


If you’re still with me this far into the story, let me share with you some personal cases. Ms Dhu's face has become a symbol of the problem recognised before she was even born.


Ms Dhu, a beautiful 22-year-old Yamatji woman from Western Australia was arrested for overdue fines and died 45 hours later on August 4, 2014, in a lockup at WA's South Hedland police station after being refused medical attention because police and hospital workers thought she was faking illness.


Police took her to hospital three times in 48 hours, but no-one picked up the signs that she was dying, dismissing her as a junkie faking it. Click here for more on how her critical condition was ignored, including by a hospital nurse. The inquest into her death has just wrapped up and her family are now anxiously waiting for answers.


Held for unpaid fines of A$3,622 (€2,4790) Ms Dhu died of septicaemia (blood poisoning) and pneumonia. Under Western Australian law, fine defaulters can be jailed and “pay down” their fines at a rate of A$250 per day in custody.


Ms Dhu was born in Geraldton, Western Australia, in 1991. Her family describe her as "happy-go-lucky" and "always with a smile on her face". She was caring, full of love and cheer, with a fierce sense of loyalty to friends and family. In her spare time, she liked to paint and make artwork. She dreamed of travelling one day.


She is dearly missed by her parents, Della Roe and Robert Dhu, by her grandmother Aunty Carol Roe, by her uncle, Shaun Harris, her brothers, sisters and extended family. 


In a radio interview grandmother Carol Roe's voice trembles with rage as she talks about the death. “They invaded us and now we've got to get murdered for it. Slaughtered like dogs," she says. "My granddaughter, she was literally dragged around like a dead kangaroo."


From her house in Geraldton Carol Roe can see the grave in a cemetery across the road where her granddaughter has been buried for 20 months. “Sometimes I lay in my bed after I put all the grannies [grandchildren] to sleep and think, ‘Why am I here?’ My husband passed and my grannies are going before me. They should be putting me to rest.


“What a mob of bastards they are. Twenty-five years ago, they promised us this and promised us that, but they are all talk. They won't stand up and do the right thing. We still get treated like dogs.”


On Friday 15 April Roe and other members of Dhu’s family joined a march in Perth, the state capital, 430 road kilometres from Geraldton, to protest about the lack of action. “In another 25 years we will be doing another one,” Roe said. “We need another royal commission now, but will they do the recommendations?”


Her family have campaigned for an end to jailing people for failing to pay fines, and for the introduction of an independent mandatory custody notification system – both recommendations of the royal commission that have been implemented in other states, such as New South Wales, but not in Western Australia.


Ms Dhu’s uncle, Shaun Harris, who has led the public campaign for legislative change in the wake of her death, believes that if the commission’s recommendations had been fully implemented his niece would be alive. “Another commission would be just more money wasted – they need to implement the changes from the one we have already done,” Harris said.


“[Dhu would] be 25 in December, she was born eight months after the findings were released. That proves that nothing has changed, that she could be born and die before these findings are implemented. Nobody deserves to die over any amount of unpaid fines. It's a blatant breach of human rights. The whole system needs to be held accountable.”


A recommendation that had succeeded, said Pat Dodson, was for the removal of ligature (tying) points from prison and police cells, reducing the number of deaths by hanging. But indigenous people in custody still die this way: on 6 March 2013, a 20-year-old Bibbulmun [Perth area] man, Jayden Bennell, was found hanged in Perth’s Casuarina prison, the first of four Aboriginal men to die in this way at that prison in a three-year period. There were at least half a dozen hanging points in the room where Jayden Bennell was found. Another Aboriginal man died in similar circumstances in Broome lockup, northern WA, in December.


“I want no more kids to die in prison – because we don’t have a death sentence in Australia,” Bennell’s mother said in a radio interview. “And I don't care what they do wrong, even if they are in there - no-one should either get their chance to kill themselves in times of sadness, in a split second thought - no-one should ever get that chance, because five minutes later, it's better.”


Jayden was in jail for stealing cars - a mandatory sentence under WA's three-strikes policy. Mandatory sentencing has been found to erode one of the three key principles of the royal commission: that imprisonment be used as a sanction of last resort. Instead, Bennell was part of a new generation of indigenous people who've lived and died behind bars in the shadow of that historic document.

Professor Eggington of the Aboriginal Legal Service hopes the coronial inquest into Ms Dhu's death might at least bring about some institutional change. “I want to see someone finally get charged with a failure of duty of care to one of our people. Someone has to be prosecuted for these deaths, otherwise they will continue to happen.”


Aboriginal lawyer Hannah McGlade believes the royal commission's recommendations and principles have been forgotten. “Aboriginal people are a minority in the country and we rely on the good will of our fellow Australians to really stand with us and say this has to stop and we have to treat each other as humans, as equal people with respect.”

Reading through the reports of the 99 deaths investigated by the royal commission gives a damning sense of deja vu. 


Consider the story of a 41-year-old mother of five who was distressed, hysterical and crying before her death, unable to convince authorities that she needed medical attention. 


The story of the 38-year old mother of two who died in a watch-house from pneumonia after being arrested for unpaid fines, for failing to lodge an income tax return ten years earlier.


The story of a woman from Ceduna who died while in police custody, arrested for outstanding fines. 


The story of a 22-year-old found hanged in a single cell at Midland police station in Perth, shortly after being arrested on a warrant for outstanding fines.


The royal commission heard 95 other such stories. And then there are the dead whose stories we will never know, as well as the many "near misses".


Ruth Barson, from the Melbourne-based Human Rights Law Centre, said the lack of change since the royal commission was “mind-blowing” and would not be accepted on other issues.


“If we could imagine that the royal commission into institutional responses to child sex abuse happened, they made their recommendations, and then 25 years later double the amount of people were coming forward as victims of sexual abuse and the recommendation had not been implemented – the community would not stand for it,” she said.

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