This post has been contributed by Professor Elena Marchetti, Professor of Law at Griffith Law School and Law Futures Centre member.
There are references to names of deceased Aboriginal and Torres Strait Islander people in this Blog.
Being aware that that this may cause distress or harm I sought advice about whether this would be appropriate, and was advised that it is important to mention names to humanise the discussion and to highlight the traumatic significance of deaths in custody.
A little over 15 years ago I finished my PhD on examining the way the Royal Commission into Aboriginal Deaths in Custody considered the deaths of the 11 women who died in custody between 1980 and 1989.
My reason for focusing on the deaths of the 11 women was because there had been a number of critiques published about the fact that the Royal Commission had failed to consider the problems confronting Aboriginal and Torres Strait Islander women who came into contact with the criminal justice system.
My research confirmed that although the Royal Commission did not completely ignore Aboriginal and Torres Strait Islander women, it inadequately considered problems that posed major risks to their health and safety, namely, domestic and family violence and police assaults and brutality.
It also revealed ‘missing subjects’ were not just women, but also the knowledge and testimonies contained in reports produced by Aboriginal Issues Units and the lived experiences of the families that fronted Commission hearings.
This contributed to the prioritising of colonial legal discourses and processes, which lacked an adequate understanding and appreciation of Indigenous values, culture and beliefs, despite the Commission’s attempts to use practices that appeared more culturally inclusive.
Thirty years on, we are still asking ‘how much has changed’ and the answer to that leads us to ask ‘what needs to change’?
When the Royal Commission was established there was a sense of hope and a great deal of faith amongst Aboriginal and Torres Strait Islander people in the ability of the Royal Commission to deliver them justice.
For example, Alice Dixon, the mother of Kingsley Richard Dixon who died in Adelaide Gaol in 1987, said the following in an interview:
I hope the Royal Commission will open the wider Australian community’s eyes to what is happening to the Aboriginal people under the white man’s system that the Aboriginal has had to adapt to without fully understanding. (Dixon, 1989, p. 10)
The primary focus of the Royal Commission was, in the government’s view, to explain why there had been (and still were) so many deaths in custody, starting with the death of John Peter Pat in September 1983.
John was a 16-year-old boy who had been placed in custody in the Roebourne Police Station, Western Australia after an altercation with a number of off-duty police officers at a local pub.
Witnesses claimed that John had been kicked in the head by one of the police officers during the fight and was later beaten by police when he was taken to the police station.
He was found dead on the floor of the juvenile cell of the Roebourne Police Station lockup, an hour or two after his arrest.
A campaign to investigate the death was commenced by a number of Indigenous women living in Sydney at the time, and a National Committee to defend Black Rights was established.
The campaign may have begun with the death of John Peter Pat in 1983, but it eventually gained an even greater momentum when other Indigenous detainees such as Lloyd James Boney, Edward Cameron, Charles Sydney Michaels and Robert Joseph Walker were found dead in their cells in circumstances which their families believed were suspicious.
These subsequent deaths highlighted the increasing phenomena of Indigenous deaths in custody in Australia.
Over thirty years later, we are still seeing a large number of Aboriginal and Torres Strait Islander deaths in custody.
We are still hearing about the suspicious or brutal or inhumane circumstances of some of these deaths. Since the Royal Commission tabled its report on 15 April 1991, there have been at least 476 Indigenous deaths in custody.
Since the beginning of March 2021, there have been seven Indigenous deaths in custody: four in NSW, two in Victoria and one in Western Australia. In handing down the 339 recommendations, the Royal Commission concluded that the deaths they investigated were not the result of any system defect per se.
That is, the deaths were not ‘the product of deliberate violence or brutality by police or prison officers’ (RCIADIC, 1991, Vol 1, p. 3).
It also concluded that Indigenous people did not die at a greater rate than non-Indigenous people in custody when the proportion of Indigenous people in custody was taken into account.
This finding is the same as what the Australian Institute of Criminology (AIC) reported 25 years later – that the National Deaths in Custody Program, which commenced collecting data in 1992, showed Indigenous people were less likely than non-Indigenous prisoners to die in prison, while also noting that they were unable to make accurate conclusions about police custody since there was an absence of reliable data.
These are the findings that currently get quoted by some politicians, scholars and media outlets to discredit the Black Lives Matter movement in Australia.
But what these statements are ignoring or misrepresenting is the fact that the Royal Commission found that Aboriginal and Torres Strait Islander people are more likely to die in custody because they are ‘grossly over-represented in custody’ (RCIADIC, 1991, Vol 1, para 1.3.3).
The Royal Commission stated that this was ‘totally unacceptable and … would not be tolerated if it occurred in the non-Aboriginal community. … Too many Aboriginal people are in custody too often’ (RCIADIC, 1991, Vol 1, para 1.3.3).
The Royal Commission forcefully condemned the racism, dispossession and oppression experienced by Aboriginal and Torres Strait Islander people as a result of colonisation.
The issue of over-representation or hyper-incarceration has not improved in 30 years – in fact it has become much worse.
In 1991, the proportion of Aboriginal and Torres Strait Islander people in prison was 14.4% (Anthony, 2016). In 2020, that rate is almost double, at 29% (ABS, 2020).
And Indigenous deaths in custody are still occurring at alarming rates – according to a 2020 AIC report, an Aboriginal and Torres Strait Islander person is nearly 10 times more likely to die in prison than a non-Indigenous person when the rate is calculated according to adult population numbers.
But our concern should not only be about the numbers, it should be about the way the deaths occur and are then investigated, and about the continuing systemic racism in our criminal justice system that continues to incarcerate and oppress our First Nations people.
- Anthony, T. (2016). Data gaps mean Indigenous incarceration rates may be even worse than we thought. The Conversation. Retrieved from https://theconversation.com/data-gaps-mean-indigenous-incarceration-rates-may-be-even-worse-than-we-thought-63044.
- Australian Bureau of Statistics (ABS). (2020). Prisoners in Australia. Canberra, Australia: Australian Bureau of Statistics.
- Dixon, A. (1989). Interview. Aboriginal Law Bulletin, 2(36), 10.
- Royal Commission into Aboriginal Deaths in Custody Australia (RCIADIC). (1991). Royal Commission into Aboriginal Deaths in Custody: National Report, Vol 1-5. Canberra, Australia: Royal Commission into Aboriginal Deaths in Custody.