Making up 28% inside, First Nations inmates are still at threat from COVID-19

A stop deaths in custody rally in Melbourne. Photo: Charandev Singh

As governments slowly lift COVID-19 pandemic restrictions, the easing of these limits will raise  the risk of further infections within the community, and thus heighten the danger for those incarcerated within the nation’s correctional facilities.

Sisters Inside CEO Debbie Kilroy said early on that an outbreak in a jail would “spread like wildfire”. Prison staff and guards come and go on a daily basis. Sanitation is negligible. And an infection still has the same potential to wreak havoc inside, as it did at the beginning of the onset of the virus.

This is very much a First Nations’ issue when you consider there are just over 43,000 adult prisoners and more than 12,000 — or 28% — are Aboriginal or Torres Strait Islander people.

This is despite Indigenous people making up less than 3% of the overall population.

Representatives of NATSILS (National Aboriginal and Torres Strait Islander Legal Services) met with Indigenous affairs minister Ken Wyatt on March 23, calling on the government to take immediate action to prevent further First Nations deaths in custody. Little action has been taken.

This situation raises questions as to why an invading force still — after over 230 years of establishing its settler colonial country — continues to imprison so many First Nations people to the point that, proportionately, they are the most incarcerated people on Earth.

Neglected inside

“Incarceration and racism can be lethal,” declared Apryl Day, daughter of Aunty Tanya Day, who died on December 22, 2017, as a result of injuries sustained while held at Castlemaine police lockup in Victoria. The recent inquest into her death revealed that officers’ negligence was involved.

“Racism changes the way they look at and care for our mob,” she explained. “Aboriginal people are being denied their human rights and their medical needs are neglected.” Day added that throwing in a global pandemic, that prisons aren’t equipped for, is bound to raise the risk.

Aunty Tanya’s inquest was significant as it led to plans to revoke Victoria’s antiquated public drunkenness laws: it was the first death in custody inquiry to consider the role of systemic racism, and it recommended that the prosecution of officers for criminal negligence be considered.

However, Day doesn’t believe the results of her mother’s inquest translate into any changes in the way First Nations people are being treated in prison. “We made positive changes in our mother’s case, but we still have Aboriginal people dying in custody,” she made clear.

“There have been over 430 deaths in custody since the Royal Commission,” the Yorta Yorta, Wemba Wemba and Barapa Barapa woman continued. “To me, that speaks volumes on how the government and police view black lives.”

Decarceration now

In response to open letters from experts and the families of inmates, the federal government announced in early May a number of COVID-19 related management steps for correctional facilities, including provisions for First Nations inmates post their release.

“The National Cabinet announcement on May 5 shows that the voices of First Nations people are being heard,” said NATSILS executive officer Roxanne Moore. “But the response does not go far enough.” Without inmates being released “the risk of Aboriginal deaths in custody remains high”, she said.

“Prisons are not safe during a pandemic,” the Noongar woman told Sydney Criminal Lawyers. “There were three deaths in custody last week in Queensland, and COVID-19 scares in Victorian prisons this week.” She noted that the deaths in Queensland were non-Indigenous inmates.

The human rights lawyer outlined that, at present, getting vulnerable inmates out of prison during the pandemic has been left up to lawyers and the courts. Due to the slowdown in the criminal justice system, First Nations people are spending longer on remand.

A third of Indigenous prisoners are currently being detained on remand, meaning they either haven’t been found guilty or are yet to be sentenced.

NATSILS asserts that most Aboriginal and Torres Strait Islander prisoners have “chronic health issues and are living with disabilities”. The national peak body maintains that authorities should be working to release them, along with elderly inmates, especially those on remand and lesser offenders.

“Most prisons have responded by going into lockdown, with instances in Queensland and Victoria, for example, where people are held in cells 24/7,” Moore stressed.

“Lockdown will not prevent a COVID-19 outbreak, decarceration will.”

Systemic racism

Since the onset of the pandemic, Aboriginal Legal Service NSW/ACT staff member Makayla Reynolds has been running the Stop COVID Aboriginal Deaths in Custody campaign, calling on government to follow the lead of other nations and release inmates to prevent a virus outbreak.

Reynolds’ brother Nathan died in custody. In similar circumstances to Aunty Tanya, the Gamilaraay man’s death on September 1, 2018 was caused by the neglect of prison authorities. Despite his urgent pleas for attention over an asthma attack, it took 40 minutes for help to arrive.

“Our mob are already suffering and chronically ill from this historic and ongoing injury,” Reynolds said in early April. “We fear the bodies of our people won’t be able to handle this disease, as seen with thousands globally already killed by this pandemic.”

Reynolds said over 200 years of colonisation has left people like her brother —“Aboriginal, chronically ill and incarcerated” — most at risk during the COVID-19 outbreak. “Since British arrival, police and countless other government agencies have targeted our mob.”

“The response from governments shows a disregard for Aboriginal and Torres Strait Islander peoples’ lives,” Moore underscored. “First Nations people are most at risk of contracting and dying from COVID-19, due to comorbidity factors.”

The lawyer also raised the issue around reports of the over policing of COVID-related laws in Tennant Creek and New South Wales. She pointed out that rather than heavy-handed policing and further “criminalising poverty”, government should be stemming the flow into “already crowded prisons”.

As for Day, she was clear that an easing of restrictions in the community does not lower the risk for First Nations people inside. She added that many experts are warning that a second outbreak of the deadly virus could be imminent.

“Restrictions may ease, but prisoners are still unable to social distance, while being denied basic essentials, like soap and sanitiser,” Day concluded. “They’re being locked down 24/7 and their mental health is being severely affected. It’s still a major concern.”

[Charandev Singh is a Melbourne-based movement photographer. Paul Gregoire is a Sydney-based journalist and writer for Sydney Criminal Lawyers.]

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