Finally, the NSW parliament is investigating the reasons for the criminally high level of Black deaths in custody in the state.
A NSW Select Committee into the High Level of First Nations People in Custody and Oversight and Review of Deaths in Custody inquiry is due to report its findings in late March.
If not for the pressure generated by the mass Black Lives Matter protests in Sydney, following the upsurge in the United States, NSW Greens MP David Shoebridge’s motion would likely not have been actioned.
As of last June, there were 437 black deaths in police or Corrective Services custody. The trauma caused to communities and the families of victims is well documented, including by activist Caroline Andersen whose son Wayne “Fella” Morrison died in custody in 2016.
It is now 30 years since the 1991 Royal Commission into Aboriginal Deaths in Custody and, while very thorough, its recommendations have still not been actioned.
Green Left asked Shoebridge if he believed the 1991 recommendations would ever be implemented.
“I don’t see them being implemented as originally proposed, in NSW or anywhere else in the country,” he said. “In some regards, matters have gotten much worse for First Nations people, with imprisonment rates skyrocketing since 1991, leading to hundreds more deaths.”
Shoebridge said that even the most basic recommendations from that commission have still not been acted upon, citing the call to remove all hanging points in NSW cells as an example. Relatively cheap and easy to fix, he said he cannot fathom why this has not been done.
“Not only has this not been implemented but there is not even a funded program [for it]. I find that so disturbing and unsettling.”
What then, can a special parliamentary committee hope to achieve that a royal commission and dozens of subsequent inquiries could not?
“The reason I pushed so hard for this inquiry is because I believe it will result in very direct, concrete and practical reforms we can get political consensus on,” Shoebridge said.
It is a cross-party committee and he hopes it will “remain on track” for a narrow but achievable series of recommendations. “If they haven’t been legislated by the end of 2021, people would have every right to be disappointed.”
Shoebridge is pushing for reforms to keep women with children out of jail, and to review police powers around offensive language and behaviour. He noted there are no less than six “oversight” bodies involved without the necessary powers.
“Each of [these six bodies] have ambiguous and inadequate powers; each ... use public funds, [and] none … have the power to conduct an independent investigation.”
The committee received 131 submissions, including from victim’s families, professional bodies, NGOs, community support organisations, charities, Indigenous agencies and law enforcement bodies.
They describe terrible malpractices including: organ removal by NSW Corrective Services without family permission; a “trophy culture” with jailers allegedly removing hair or jewelry from the deceased; and deaths written up by police as “suicide or seizure” when evidence suggested otherwise.
They also describe how the NSW parole system sets those released up to fail; the lack of mental health care; people dying after misdemeanours, such as being drunk or disorderly; and the lack of procedural consistency and fairness post-death and during coronial inquiries.
Many asked the same questions: why have the 1991 recommendations never been implemented?
How can so many die this way with only one police officer charged to date and no convictions?
Why is the age of criminal responsibility 10 year’s old, not 14 like the rest of the world?
Why are white children sent home while Aboriginal kids are thrown into adult lock-ups for the same offences?
The sharpest criticisms were made of NSW’s law enforcement’s chronic racial profiling of Indigenous people — particularly under the NSW Police Suspect Target Management Program (STMP).
The STMP is supposed to risk manage repeat offenders through proactive policing. It has however expanded to include juveniles and “possible offenders” deemed by police as having the “potential” to commit crime.
It gives police wide-ranging powers of surveillance and stop and search among others. The police oversee the program; there is no independent oversight or legislative transparency.
Targets are not told why they are put on the list, or how they can be removed. There are more than 300 children on the list, and more than 50% are indigenous, the youngest just nine year’s old.
The STMP is, quite literally, a blacklist.
Despite widespread condemnation of the program, the police’s inquiry submission stated that last November, it recommitted to the STMP.
It was the third review after a highly critical report from the Law Enforcement Conduct Commission (LECC).
That LECC review was attached to the NSW Police’s own submission and said the STMP had led to racial profiling.
It stated in part: “… the Commission's analysis showed patterns of targeting that appear to have led to unreasonable, unjust and oppressive interactions for young STMP targets. Our analysis suggests that 72% of the investigation cohort were young people that had been identified by the NSW Police Force (NSWPF) as ‘possible ATSI’ … which raises questions about the effects of the target selection process.”
When asked about the likelihood of police closing the STMP program, Shoebridge said the NSW Police Minister and NSW Police Commissioner were determined to continue with an “overtly aggressive, in-your-face” policing model at the expense of better community outcomes.
“It is extremely frustrating [that] they continue to support and redraw the program. There is no question it is leading to racial profiling of young Aboriginal kids and men without any legislative basis. It is racist policing and should be stopped.”
He accepts there have been some improvements since the intervention of the LECC, but believes it does not go far enough.
“The only permanent solution is to get rid of it. Unfortunately, no one in the NSW Coalition or the Labor Party will seriously challenge it because it is staunchly supported by the Police Minister and Commissioner.”
Where to from here?
Despite the challenges, Shoebridge is hopeful that there will be reforms over the next 12 months, especially given that Australia is party to the UN Optional Protocol to the Convention Against Torture (OPCAT).
Australia is currently setting up a national system to facilitate OPCAT visits to all places of detention, due to start this year. OPCAT exists to protect the human rights of all detainees, including in immigration detention, prisons and juvenile justice. Its aim is to ensure the conditions and treatment of detainees comply with the country’s human rights obligations.
“The UN optional protocol on torture ... would require a complete overhaul of the oversight of Corrective Services and seriously lifts the bar required of the conduct [of all involved],” Shoebridge said.
“What the inquiry has done is to show how united the voices for reform are — outside the NSW Police.
“It is no longer an academic question as to whether we have a racist criminal justice system. We have. The question is, what are you going to do?”