ANTaR has long advocated to governments to address systemic discriminatory practices in which the rate of First Nations Peoples in all stages of the criminal justice system far exceed their proportion in the community. In particular there is a long history of perceived injustice and anger at the outcomes of coronial processes of family members who continue to die in police custody. There has never been a conviction over an Aboriginal death in custody in Australia.
Families and their communities have long engaged in public rallies and protest that have rarely gained the attention of the wider Australian community; Living Black: Aboriginal Lives Matter.
This changed recently with the global resurgence of the Black Lives Matter movement sparked by the particularly brutal murder of an African American at the hands of police, watched live by millions of people around the world. The first rallies in Australia were attended by up to 20,000 citizens in one city alone despite restrictions on public gatherings due to COVID-19. Since then there has been significant social media commentary by First Nations Peoples expressing the hope that this moment of solidarity on the part of non-Indigenous Australians about injustices in the criminal justice system and broader systemic racism will grow.
Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future. The Uluru Statement From the Heart.
The rallying cries of ‘no more deaths in custody’ may not be well known amongst non-Indigenous Australians. They echo the Royal Commission into Aboriginal Deaths in Custody (RCIADIC 1987-1991) of nearly 30 years ago. The Royal Commission was set up in response to community agitation and suspicion of police involvement in a spate of deaths in custody during the previous year. It was tasked with investigating the 99 Aboriginal and Torres Strait Islander deaths that had occurred in police custody since January 1980. In the three decades since the final report, there have been more than 437 deaths in custody of Aboriginal and Torres Strait Islander people.
The RCIADIC Report was an extraordinarily thorough document, running to ten volumes and 339 Recommendations. It was the first time in Australia’s history that a document of national significance publicly established and acknowledged a relationship between the disadvantaged conditions of First Nations Peoples and Australia’s colonial past. The only other similar truth-telling document of national status is the 1997 Bringing Them Home Report.
A central finding of the RCIADIC Report was that present conditions of over-representation of First Nations Peoples in detention, had their ‘origins in structural, systemic injustice to a disadvantaged minority rather than in a propensity in this group to increased criminality’.
And that despite the legal system’s striving to treat all citizens equally before the law, elements of systemic bias persist. Key to the 339 recommendations was the need to reduce the rate at which Aboriginal and Torres Strait Islander People are incarcerated. The Commission’s Report was positively received by both sides of politics and all governments, state and federal. In the nearly 30 years since, its recommendations have often been lauded as a blueprint for effecting systemic change in the criminal justice system. However it is widely argued that a significant number of these recommendations have not been implemented.
As recently as 2018 an Australian Law Reform Commission Report, Pathways to Justice, was requested by the federal Attorney General. It sets out yet another road map for addressing over-incarceration with only 35 key recommendations. To date however there has been no formal government response.
- Aboriginal and Torres Strait Islander prisoners accounted for over a quarter (28%) of the total Australian prisoner population, while being less than 3% of population.
- Three out of four Aboriginal and Torres Strait Islander prisoners…had been imprisoned under sentence previously.
- The median age of Aboriginal and Torres Strait Islander prisoners was 32 years (younger than non-Indigenous prisoners).
- The median aggregate sentence length for Aboriginal and Torres Strait Islander prisoners was 2.0 years.
- At least 437 deaths since RCIADIC (as at 9 June 2020).
- Indigenous people die in custody from treatable medical conditions and are much less likely than non-Indigenous to receive care required.
- Agencies such as police watch-houses, prisons, hospitals fail to follow their own procedures in 34% of cases of Indigenous deaths compared with 21% of non-Indigenous deaths.
- Mental health an issue in 41% of ALL deaths however Indigenous people received care in only 53% of cases.
- Families wait up to 3 years for inquest findings in some states.
Criminalisation of First Nations Peoples
How and why has it come to this – that the First Nations Peoples of Australia are the most incarcerated people on the planet? And silence, ignorance or apathy is the response of much of Australia’s political leadership and general populace?
For the vast bulk of our people the legal system is not a trusted instrument of justice it is a feared and despised processing plant that propels the most vulnerable and disabled of our people towards a broken and bleak future. Senator Patrick Dodson, National Press Club Speech, 2016.
The findings of the RCIADIC clearly established the link to ‘structural, systemic injustice to a disadvantaged minority rather than in a propensity in this group to increased criminality’.
From the beginning of settlement in 1788 colonial authorities’ responses to clashes over access to land and water between the locals and European newcomers was dealt with by imposing legal restrictions and punishment for breaches onto the Aboriginal people. By the 1840’s, in the NSW colony, a series of special laws had been proclaimed prohibiting virtually all aspects of existing tribal lifestyle. These related to hunting, customary law, carrying of traditional weapons, conduct of ritual fights, or a gathering of more than six people near a farm. Aboriginal people were precluded as competent witnesses in the increasingly rare instances when there was some effort to resolve clashes with some fairness. [Anthony, T. 2013. Indigenous People Crime and Punishment. Routlege Taylor and Francis Group. Glasshouse Book. Ch 2.]
Increasingly harsh provisions were inserted into criminal laws as colonial expansion spread across the continent in the nineteenth century. These included whipping and other corporal punishment exclusively for Aboriginal people, long after they were not used for other offenders. Local law enforcement citizens, ‘Justices of the Peace’, could order whippings for cattle killing and other minor crimes; public executions were continued for Aboriginal offenders after being discontinued for other citizens.
The infamous Native Police was also created, government funded paramilitary units that operated in most states from about the 1840’s up to the early twentieth century. These units, led by non-Indigenous senior police, consisted of Aboriginal men and boys whose task was to ‘protect squatters, miners and settlers on the frontier by whatever means necessary' - which often meant finding and killing Aboriginal people defending their lands.
This nineteenth century period has been described by historians as a time of ‘constructing the Indigenous criminal on the frontier’. [Anthony, T. 2013. Indigenous People Crime and Punishment. Routlege Taylor and Francis Group. Glasshouse Book. Ch 2.]
By the end of the nineteenth century, First Nations populations across the country were decimated and subjugated, giving rise to each colony’s version of the Protection Acts (1869-1911). Aboriginal people were forcibly moved into State or church institutions set up on the edges of settler communities. Initially set up as a means of ‘soothing the pillow’ of a dying race, these segregated institutions became a way of life for most Aboriginal people up to the late 1940’s when dismantling of the Protection Acts began.
Every aspect of peoples’ lives was controlled by authorities, mainly the police, making it impossible for the people to take any part in white society while at the same time punishing them for their dependence.
There is one more telling statistic that brings this brief account of the processes of the criminalisation, segregation and subjugation of First Nations Peoples more or less up to the present day.
It is that the first notable rises in levels of Aboriginal and Torres Strait Islander incarceration from 1960 onwards coincided with the final dismantling of Protection era policies. Researchers argue that this steady increase did not mark a radical shift but rather a movement from one form of control to another. Some go so far as to say that there has been a continuum of legislated colonial domination since 1788. [Anthony, T. 2013. Indigenous People Crime and Punishment. Routlege Taylor and Francis Group. Glasshouse Book. Ch 2.]
It is this history that the RCIADIC attempted to interrogate and that compelled Senator Patrick Dodson to describe the legal system ‘as feared and despised’ by his people.
Where to from here?
ANTaR engages in advocacy work on multiple fronts in partnership with Aboriginal and Torres Strait Islander-led organisations, peak bodies and campaigns such as Change the Record, Raise the Age, Just Reinvest NSW and the Close the Gap.
While progress is too slow, milestones like the recent inclusion of a justice target in the new National Agreement on Closing the Gap are welcome. We will continue to work to keep justice issues for First Nations people firmly on the agenda of governments. This will requre advocating for fully inclusive processes as Aboriginal and Torres Strait Islander peoples have the right to self determination and also hold the solutions to issues faced by their own people and communities.