NSW Deaths in Custody Report

It was a sad juxtaposition in April this year, that Australia seemed so intent on mourning a 99 year old British royal, but was largely unmoved by the four First Nations’ deaths in custody that had occured in 2021 alone. At the time of publication that figure has shockingly risen to seven. 

Ashleigh Jordan 

The 30th Anniversary of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) on 15 April was a painful reminder that after 30 years, we continue to fail to protect First Nations people when they are in the custody of the justice system. A National Day of Action saw protestors take to the streets across the country calling for Black deaths in custody to end. But as the days and weeks have passed, the urgency to address Black deaths in custody is already dwindling.  

Aboriginal and Torres Strait Islander peoples continue to be incarcerated at alarming rates. They are continuing to die in police custody due to the disproportionately high likelihood of being in custody. Aboriginal and Torres Strait Islander communities are hurting and they continue to fear any interaction with the justice system.

The RCIADIC investigated 99 First Nations deaths in police custody between 1987 - 1991 and outlined 339 recommendations to reduce rates of over incarceration and in turn black deaths in custody. In the 30 years since then, 470+ Aboriginal and Torres Strait Islander peoples have died in custody. First Nations adults are 12.5 times more likely to be incarcerated than non-Indigenous peoples, First Nations youth are 26 times more likely to be incarcerated and First Nations women continue to be the fastest growing prison population in Australia.

After recent and significant community concerns, particularly following the rise of the Black Lives Matter movement, the continued over representation of First Nations people in the criminal justice system could no longer be ignored. 

In NSW, on the day of the RCIADIC anniversary, the State Parliament released a report from a Select Committee detailing the high level of First Nations people in custody and oversight and review of deaths in custody

The Select Committee tasked with inquiring and reporting on the issue of First Nations in police custody was established on 17 June 2020. The committee held five public hearings at Parliament House between October and December 2020, received 132 submissions, and heard directly from several First Nations families who had lost a loved one whilst in custody. From this, the committee reviewed the unacceptably high level of First Nations people in custody in NSW, the suitability of the oversight bodies tasked with inquiries into deaths in custody in NSW and the functions performed by State bodies in relation to reviewing all deaths in custody, and provided recommendations on how these matters could be improved. 

This report provided 39 new recommendations to reduce the incarceration rates of Aboriginal and Torres Strait Islander peoples and in turn reduce deaths in custody. 

The first recommendation called for the NSW Government to commit to the immediate and comprehensive implementation of all outstanding recommendations from the 1991 Royal Commission into Aboriginal Deaths in Custody report and the 2017 Australian Law Reform Commission’s Pathways to Justice - An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples report, with the exception of recommendations that fall outside of state jurisdiction. It then recommended an annual report be provided to the NSW Parliament outlining the progress made in relation to the implementation of any recommendations relating to First Nations people. 

“It is appropriate that the very first recommendation from this NSW inquiry is to fully implement the recommendations from the Royal Commission, many of which have been gathering dust for the last 30 years. Yet this highlights the fact that reports and recommendations mean very little unless they are embraced by governments and translated into decisive action,”  Karly Warner, CEO of the Aboriginal Legal Service NSW/ACT (ALS).

The implementation of the National Close the Gap Agreement was also recommended as a high priority. Two key targets of the agreement are to reduce the rate of Aboriginal and Torres Strait Islander adults held in custody by at least 15 per cent by 2031 and reduce the rate of Aboriginal and Torres Strait Islander young people aged between 10 and 17 by at least 30 per cent by 2031. 

The report recommended increased support for First Nations women and investigation into the growing number of First Nations women in custody and identification of factors and causes of this trend. It increased support for First Nations youth including raising the minimum age of criminal responsibility from 10 to at least 14 years of age, ensuring detention is only used as a measure of last resort  and for the shortest possible time frame. It recommended increased medical and mental health support for First Nations peoples including access to drug and alcohol support services, more effective health screening services and treatment within correctional centres. 

Recommendations also included amendments to the Bail Act 2013, updates to current requirements of the coronial system, and the implementation of a program to actively employ a greater number of First Nations staff across all areas of the criminal justice system. 

The report comes at a critical point for NSW, clearly needing to assess all it is doing to address deaths in custody. Since the beginning of March this year, four of the seven recorded deaths in custody were in NSW. This brings the total number of Aboriginal deaths in custody to over 474 since the RCIADIC report was published in 1991. A tragically high number.  

According to the NSW State Coroner, there were 250 deaths in custody in New South Wales between January 2008 and December 2018. Of these, 34 were First Nations deaths, accounting for 13.6 per cent of all deaths in custody. The NSW parliamentary report stated that “while the number of First Nations deaths in custody in New South Wales is a low number when compared with the total prison population, the committee acknowledges that any death is one death too many”. 

The implementation of many of the recommendations from the RCIADIC would undoubtedly have saved the lives of many of the First Nations peoples who have died in custody over the past 30 years. 

A recurring theme throughout the RCIADIC and  NSW Parliamentary report recommendations is the need for improved medical and mental health support, both in prison and out; with a special emphasis on medical screening and treatment within prison and the very simple step of removing all hanging points from cells. 

The Guardian Deaths Inside database shows that of the 29 recorded First Nations deaths in NSW that are included in the count, 19 were due to medical episodes or incidences of self-harm. With more efficient medical screenings, removal of hanging points in cells, and increased access to mental health and drug and alcohol support services, many of these deaths could have been prevented. It is only with the implementation of recommendations set out by previous reports and reiterated specifically by the NSW parliamentary report that these First Nations deaths of similar nature in police custody will end.  

Disappointingly, the 2021 Federal Budget has failed to include any support for Aboriginal and Torres Strait Islander peoples to reduce incarceration rates. Change the Record Co-Chair Cheryl Axleby has said 

“It is shameful that after seven deaths of our people in less than two months there has been no plan from the Commonwealth Government to address the crisis of Black deaths in custody. There is no funding in the Budget to address the mass-incarceration of First Nations peoples by establishing a National Justice Reinvestment Body (despite this being a key recommendation [of the 2018 Pathways to Justice ALRC Report]) and no funding to support states and territories to Raise the Age to keep primary school aged children out of police and prison cells. This is not a budget for the future, this is a Budget that entrenches the inequalities and injustice of the past.”

Due to the lack of government support, non-governmental organisations like Just Reinvest NSW have had to take matters of reducing over incarceration rates into their own hands. Just Reinvest NSW supports Aboriginal communities to establish justice reinvestment initiatives that shift resources out of the prison and criminal justice systems and into communities to support early intervention, crime prevention and diversion from the prison system. Since 2012, they have been working with the Aboriginal community in Bourke to demonstrate the benefits of a community-led justice reinvestment approach. Bourke has seen a significant decrease in youth incarceration rates since the beginning of the initiative as well as a reduction in alcohol and drug related violence. Once it was established, the NSW state government supported the Bourke project. With support from State and Federal governments more communities like Bourke can implement justice reinvestment initiatives to create safer communities and reduce First Nations contact with the prison system.  

The NSW Government must prioritise its response to this report. How many reports, reviews, Royal Commissions and deaths will it take to see change? 

Since the release of the final report of the RCIADIC, many subsequent reports and reviews have been released detailing the importance of implementing the 339 recommendations set out by the report and offering additional support on how to implement said recommendation and lists of further recommendations to support the Aboriginal and Torres Strait Islander communities. These reports include; 

Nothing is going to change until all 339 recommendations of the RCIADIC and the additional 39 recommendations of the NSW Parliamentary report are implemented in full. 

NSW Parliamentary Committee Chair and Labor MP Adam Searle has stated that “while many inquiry participants are rightly concerned that this report will be just one more left on the shelf to gather dust, we believe that this report and its recommendations provide the opportunity to bring about important changes for First Nations peoples”. 

While this is the right sentiment… the proof will be in its implementation, the committed support of the NSW Government and a long term strategy to make sure we are not mourning more deaths at the hands of the system. 

To take further action, visit our Justice page and write a letter to MPs and Ministers, including the Minister for Aboriginal Affairs and Minister for Police and Emergency Services urging them to take action now. 

Ashleigh Jordan 

Ashleigh is in her final year of a Master of Human Rights at the University of Sydney. She completed her undergraduate with a double degree in International Relations and Communication and Media Studies. As an Intern, she has been supporting ANTaR in their work surrounding the 30th Anniversary of the Royal Commission into Aboriginal Deaths in Custody. Ashleigh is a proud Native American woman from the Choctaw Nation of Oklahoma and recognises the importance of supporting fellow First Nations peoples in achieving reconciliation and equity. 

Author: 
Cathy Noble
Issues: Justice