As protests against continuing First Nations deaths in custody began in June, Prime Minister Scott Morrison appeared on AM talkback radio stating that the nation “shouldn’t be importing the things that are happening overseas”.
He was alluding to the Black Lives Matter uprisings sweeping the United States that are calling for an end to police brutality against Black, Brown and Indigenous peoples that have laid bare the travesty of law enforcement in this neck of the woods.
Morrison said that Australia has “issues in this space that we need to deal with but, the thing is, we are dealing with it”.
However, the 437 First Nations deaths in custody since the royal commission tabled its recommendations in 1991 don’t indicate any meaningful dealings. Nor do the countless pieces of footage capturing incidents of police violence against Aboriginal and Torres Strait Islander peoples that continue appearing on social media platforms. A man was bashed in South Australia last week. A teen was thrown to the ground face first in New South Wales several weeks ago
Indeed, the PM’s reaction to the Stop All Black Deaths in Custody rallies that brought cities to a standstill in early June, indicated that not only are the nation’s policing systems weighed down by the shackles of colonialism, so too is the government.
Activist Bruce Shillingsworth told the June 6 protest in Sydney, which completely covered Belmore Park and its surrounding streets, that his reason for being present was for “his grandchildren and their children’s children”.
The Muruwari and Budjiti man asserted that those who had gathered were there to stand up against injustices around the world, including those suffered by First Nations people locally, and to call for a change to systemic racism.
The global focus on police brutality against people of colour was sparked by the killing of African American man George Floyd by Minneapolis police officers. It has heightened the attention on the same racist violence by Australia’s police.
Melbourne Law School senior fellow Amanda Porter told Sydney Criminal Lawyers on June 11 that the NSW Police Force was established via the incorporation of various colonial policing bodies that were charged with quelling the Aboriginal resistance and this confrontational stance continues.
“For 250 years now, my people have been suffering from the injustices,” Shillingsworth told the June 6 rally. “We now stand and say ‘Enough is enough’. So, stop. We are all humans.”
Mass incarceration
A coalition of Aboriginal and non-Indigenous law and social justice organisations put together a list of recommendations to guide federal, state and territory governments on how to prevent future Black deaths in custody. The civil society organisations include Change the Record, the Human Rights Law Centre and the Law Council of Australia.
The recommendations came in response to a federal government announcement that it would add a justice component to its Closing the Gap framework which, for many, seems to be a sure-fire way that nothing substantial will be achieved.
The first recommendation is to “end the mass imprisonment of Aboriginal and Torres Strait Islander peoples”. Currently, 29% of the adult prisoner population is made up of First Nations people, yet they only account for less than 3% of the overall populace.
An end to the incarceration of First Nations children and the lifting of the age of criminal responsibility from 10 to 14 years old is the second recommendation. Right now, 53% of incarcerated youths are First Nations kids, yet they constitute just 6% of those aged between 10 and 17.
Make authorities accountable
Recommendation three calls for the establishment of independent bodies to investigate deaths in custody and to provide police oversight. As Indigenous Social Justice Association (ISJA) secretary Raul Bassi has long been at pains to point out, the current system of sending Aboriginal custody deaths cases over to the Coroner’s Court usually results in no substantial recommendations being made and no criminal convictions.
Gomeroi activist Gwenda Stanley maintains that First Nations people want investigations on their own terms. “We want a reopening of all the Black deaths in custody cases in Australia,” Stanley explained just before the mass rallies rocked the nation. “And we also want our own independent body that overlooks all the forensics to do with them.”
The sole NSW Police oversight body is the underfunded Law Enforcement Conduct Commission. Its operational reach has been criticised as it still leaves much of its investigation of police up to the police. Any teeth the watchdog had were ripped out when Michael Adams was dropped as its head for apparently going too hard on strip searches.
The fourth point is to implement all the recommendations of the Royal Commission into Aboriginal Deaths in Custody. Released in 1991, the investigation’s report included 339 recommendations, of which the majority have not been acted on.
The commission’s 87th recommendation was to make arrests “a sanction of last resort”, while the 92nd outlined that “imprisonment should be utilised only as a sanction of last resort”. The atrocious Indigenous incarceration figures starkly reveal that these have been ignored.
The last suggestion is to “end the abuse, torture and solitary confinement of Aboriginal and Torres Strait Islander people in police and prison cells through legislative safeguards and by urgently establishing independent oversight bodies to monitor” these institutions.
Towards an independent body
These recommendations need to also be reflected in the governing bodies that policing and correctional systems answer to, given the systemic racism inherent in the criminal justice systems is also present in parliament.
NSW Greens MLC David Shoebridge called out the NSW government bias on June 19, pointing out that it prefers to focus on trivial matters rather than listen to the tens of thousands of voices demanding change. But, breakthroughs do happen. Just a few days after Shoebridge’s rebuke, NSW parliament agreed to a Greens motion to establish a cross-party parliamentary inquiry on how deaths in custody are being investigated.
UTS Jumbunna Indigenous House of Learning research director Larissa Behrendt applauded the move as “an important first step in a more transparent process” and the establishment of an independent investigative body. She also acknowledged “the consistent frontline work done by First Nations families who have had family members die in custody who have been determined that other families not go through the same thing”.
[Paul Gregoire writes for Sydney Criminal Lawyers where this article first appeared.]