The Royal Commission into Aboriginal deaths in custody 30 years on: where to now?

Sir Zelman Cowan Oration 2021

Professor Larissa Behrendt

It’s an honour to be delivering the lecture in honour of Sir Zelman Cowan, an Australian who made a profound contribution to public life in Australia. As Justice Michael Kirby described him, he “was a scholar of sparkling brilliance. But he lived in the real world, engaged with its problems.” It is in this spirit – of the responsibility of rigorous scholarship to engage with the problems of the real world – that I have addressed my topic tonight.

I also want to acknowledge Professor Gary Foley. I was lucky enough to grow up hearing him speak and his wisdom and advocacy helped shape my worldview.  
 
The graphic, disturbing images of African American man George Floyd being choked to death by a police officer as he continually pleaded “I can’t breathe” rightly sparked outrage around the world including here in Australia.
 
Faced with such stark brutality, it was impossible to turn away. It was impossible for that the spotlight not to turn to similar issues in this country.
 
In December 2015, David Dungay Jr died in the Long Bay Gaol hospital. A 26-year-old Dunghutti man and a diabetic, he was eating when guards stormed his cell, forcibly moved him to another cell where he was injected with a sedative. While he was restrained he continually cried – “I can’t breathe”. They were to be his final words.
 
There is a question to be answered as to why it took George Floyd’s death in such circumstances to elicited a response to David Dungay Jr’s death – of which there was also graphic and disturbing evidence – in Australia almost five years earlier. Why did a line need to be drawn from use of excessive force in the United States to such similar circumstances here in Australia – where deaths in police custody and prison are a continual occurrence – before so many people took to the streets demanding change to the system? The families and communities of people who had died in custody had been endlessly campaigning to demand justice but it took the Black Lives Matter movement to bring real momentum.
 
As the number of Aboriginal and Torres Strait Islander deaths in custody since the Royal Commission inches ever closer to 500, the same question is asked: Why is there still such over-representation of Aboriginal people, particularly women and especially juveniles in our criminal justice system?
 
There are some simple answers to that question.
Tough on crime strategies so popular with state and territory governments are incompatible with reducing over-representation in the criminal justice system. This is particularly so in relation to reforms to bail legislation that limit judicial discretion and inevitably result in increased prison populations due to the increased number of people on remand. For example, including the lack of a permanent address (in other words, homelessness) as a factor that gives rise to a presumption against bail, sees an increase in incarceration rates. Mandatory sentencing has a similar effect.
 
Another answer lies in the fact that as rates of incarceration have increased, funding to Aboriginal Legal Services – who are best placed to deliver the most effective representation to Aboriginal and Torres Strait Islander people – have had their budgets continually cut. The services supposed to provide for the most disadvantaged – the most in need – are expected to do so with the least amount of resourcing.
 
There is also too much focus on incarceration. As more prisons are built, less money is invested in the programs that have proven to prevent a pathway to its doors – such as the work of Shane Phillips with the Tribal Warrior in Sydney or in Victoria with the Massive Murray Paddle. Justice reinvestment approaches call for a redirection of funding towards prevention strategies; defund the police campaigns seek to redirect responsibility from the police for issues such as mental health and domestic violence to other services better placed to deal with them. Yet still we build more prisons.
 
The Royal Commission recommended an improved partnership between Aboriginal communities and the criminal justice system through greater engagement with law reform and implementation. Yet only Victoria still has an Aboriginal Justice Agreement that sees such a partnership formalised.
 
Others might also point to other aspects such as bias in decision making by people within law enforcement and the judiciary. Or the criminalisation of addiction instead of treating it as a medical issue.
 
Some might suggest that we need more First Nations people working in law enforcement, the courts and in prisons.
 
All of these answers would be correct but perhaps the simplest one is that the recommendations of the Royal Commission into Aboriginal Deaths in Custody simply never got fully implemented.
 
For there is a blue print. Based on evidence of what works. The Royal Commission provided it when handed down its findings in 1991 and it stands today as the most comprehensive catalogue for needed reform across the system. Its 339 recommendations included law reform that would see imprisonment as a last resort, improved training across the criminal justice system, improved health services, better education of the broader community and the need for a guiding principle of self-determination.
 
The recommendations of the Royal Commission are echoed in the coronial findings in individual cases of subsequent deaths in custody – particularly about training and reform of police or custodial procedures. When we go through the exercise again – as we did in NSW with the Parliamentary Inquiry into The High Level of First Nation people in custody and Oversight and Review of Deaths in Custody which reported in April this year and as we did with the Royal Commission into the Protection and Detention of Children in the Northern Territory in 2016 and 2017 – the findings are the same.
 
And yet, in the case of the Northern Territory, the number of Aboriginal children in detention a year after the Northern Territory Royal Commission was reported at 100 per cent. This same jurisdiction in June this year implemented harsher bail laws despite the strong advice from leading child advocates that the changes would only lead to more children being locked up. And bear in mind that governments have dragged their feet in raising the age of criminal responsibility to the international standard of 14 years of age.
 
The Royal Commission in the Northern Territory was sparked by the graphic images of the treatment of young people – of children – in detention that included being restrained, being kept naked, being sprayed with tear gas and with water and being kept in cells with no running water, no air conditioning, no fans and no direct supply of air. Leaked CCTV and mobile phone footage has provided something the system itself hasn’t achieved – a level of accountability for the use of excessive force. Such behaviour used to take place behind a closed cell door and became an issue of a police officer’s word against that of a deceased victim – or their family.
 
George Floyd’s death would have gone unnoticed without the mobile phone footage of it taken by Darnella Frazier. In April this year, the police officer responsible for Floyd’s death was convicted of second-degree murder, third degree murder and manslaughter. Yet in Australia, despite the number of deaths since the Royal Commission, few matters have led to prosecution and, to date, there have been no convictions.
 
The deaths of 16-year-old John Pat in 1983 in the Roeburn Police lock up (a death that sparked and was investigated by the Royal Commission) and Cameron Mulrunji Doomadgee on Palm Island in 2004 went to trial but resulted in acquittal. In David Dungay Jr’s case, the family have petitioned for criminal charges to be laid based on legal advice from a leading criminal barrister. The lack of justice in David Dungay Jr’s case has forced his mother, Leetona Dungay, to take the matter to the United Nations Human Rights Committee since she has exhausted all domestic remedies.
 
The rates of deaths in custody of Aboriginal and Torres Strait Islander people is explained by the fact that we continue to be over-represented in the criminal justice system. And while these are shocking statistics, behind each of those numbers is a family and a community who are dealing with the trauma of losing a loved one in such circumstances. One of the most distressing aspects in all of the layered trauma that besets a family dealing with the aftermath of a death in custody must surely be a finding within the Coronial process that the death was preventable.
 
I assert that every death in custody that occurs due to a failure to implement the recommendations of the Royal Commission into Aboriginal Deaths in Custody is a preventable death.
 
There is much about the death in custody 22-year-old Ms Dhu in 2014 that seeps in tragedy – her young age, the fact that she was a victim of domestic violence when the police arrived at her residence and then decided to arrest her for non-payment of fines, the failure to take her cries for help due to severe pain seriously whilst in custody in the South Hedland lock up, the failure of medical staff to properly examine her on the two occasions she was taken to hospital – she was dead on arrival on the third visit in which she was still handcuffed – and the overall lack of dignity in the way she was treated. The cause of Ms Dhu’s pain that remained undiagnosed was later determined to be pneumonia and sepsis from broken ribs – an injury sustained three months earlier.
 
Completely treatable. Completely avoidable.
 
Ms Dhu’s death could have been avoided if Western Australia did not lock people up for non-payment of fines. It would have been avoided if police officers treated her in the way a victim of domestic violence should be supported. (Ms Dhu’s partner was arrested at the time she was taken into custody for non-payment of fines for breach of a restraining order). It would have been avoided if Ms Dhu’s cries for help due to her pain had have been taken more seriously. And it would have been avoided if the medical staff had taken the time to physically examine Ms Dhu.
 
The facts of Ms Dhu’s death bare an eerie resemblance to six Aboriginal and Torres Strait Islander women whose deaths were investigated as part of the Royal Commission. These included the cases of Nita Blankett who was refused medical attention while on remand for driving offences and Muriel Binks whose calls for medical attention went unnoticed while in custody for non-payment of $30 in fines.
 
The Royal Commission recommended that imprisonment not be used as a punishment for non-payment of fines – which is often simply a punishment for living in poverty. It also recommended that public order offences including drunkenness not carry punishments of incarceration.
 
In 2017, Aunty Tanya Day fell and hit her head in a cell in Castlemaine after being arrested for public drunkenness. She was left fatally injured on the floor for three hours. A preventable death. And her family powerfully and successfully advocated for the law reform in Victoria that saw public drunkenness decriminalised, no doubt preventing more deaths in custody along the same line.
 
Ms Dhu’s death speaks to the intersection between discrimination in the criminal justice system and discrimination in the provision of health services.
 
Naomi Williams was a 27-year-old Wiradjuri woman who died after 20 visits to the Tumut Hospital and nearby medical services. She was 22 months pregnant with a son when she died of septicaemia.  This situation was a result of bias in the system – which is a euphemism for medical staff seeing an Aboriginal person in pain and assuming that they are drug addicts looking for drugs so fail to undertake proper physical examinations. Coroner Harriet Grahame said that there were clear and ongoing inadequacies in the care Ms Williams received.
 
Just as the intersection between the criminal justice system and the health system has been overlooked, so too is the pernicious relationship between the criminal justice system and the out of home care system.
 
The number of Aboriginal children in out-of-home care has been increasing since the National Apology to the Stolen Generations in 2007. The 1997 Bringing them Home report, like the Royal Commission into Aboriginal Deaths in Custody, delivered a comprehensive blue print in what needed to be done to keep children from out of home care. It has never been rigorously implemented.
 
While making up only 6 per cent of all children in Australia, today Indigenous children make up 37 per cent of all children in out of home care. There is also a decrease in the percentage of children who are being removed being placed with Aboriginal and Torres Strait Islander carers (from 53 per cent in 2013 down to 43 per cent in 2019).
 
This continues to be a system that works against Aboriginal and Torres Strait Islander families. It is a system that equates poverty with neglect, is rife with cultural bias, has little investment in prevention and reunification but has an industry feeding on keeping Aboriginal children in out of home care.
 
 I recommend the work of the Family Matters campaign for more information about the statistics, the reasons for the trends and the clear role the community- controlled sector needs to play if there is to be a reversal of the situation.
 
I want to highlight one element of this and it is the pipeline between out of home care and the criminal justice system. There is a higher chance that children in out of home care will end up in the criminal justice system. They are more vulnerable to underlying issues such as poverty and homelessness.
 
But behaviour that is disciplined in a family setting is very quickly criminalised in the out-of-home care context. Of the children at the Don Dale Correctional Centre, 60 per cent of the detainees were in state care. The interconnection between the criminal justice system and the out-of-home care system is something I want to return to shortly.
 
The focus has been on how we make the criminal justice system fairer – less discriminatory. How do we ‘fix the system’? Systemic issues are important to address but we need to see the system in a broader context. Deaths is custody are contributed to by broader systemic failure – homelessness, poverty, lack of adequate and appropriate medical services. Each death speaks to a broader societal failure than simply a problem with the criminal justice system.
 
We have to acknowledge that the system is racist. Not just because rates of incarceration provide evidence that this is true, not just because the number of Indigenous children in out of home care provide evidence that this is true, not just because the differences in socio-economic outcomes for Indigenous people compared to all other Australians provide evidence that it is true, but because the very foundations of our legal system are tolerant of racial discrimination.
 
We question the law’s methods and machinery but we don’t critique its purpose.
 
The framers of our Constitution believed that the decision-making about rights protections – which ones we recognise and the extent to which we protect them – were matters for the Parliament. They discussed the inclusion of rights within the Constitution itself and rejected this option, preferring instead to leave our founding document silent on these matters.
 
A non-discrimination clause was discussed but was rejected because it was believed that entrenched rights provisions were unnecessary, and indeed it was considered desirable to ensure that the Australian states would have the power to continue to enact laws that discriminated against people on the basis of their race, particularly Aboriginal people. It is a telling legacy of these ideological underpinnings that the first legislation passed by the new Australian parliament were laws that entrenched the White Australia policy.
 
A further legacy is that the legislative attempt to protect from racial discrimination – the Racial Discrimination Act passed in 1975 – has not been able to counter the ideological underpinnings of the Constitution. It has been repealed in three instances – the Wik Amendments in 1998, the Hindmarsh Island Bridge case in 1997 in a situation which saw the suspension of federal heritage protection laws and as part of the legislative implementation of the Northern Territory Emergency Response (the NTER) or the Northern Territory intervention. All instances where clearly racist policies and approaches have been implemented if you use the simple test that if you are repealing the Racial Discrimination Act, you clearly, unashamedly intend to do something overtly racist.
 
That is the structural racism that imbues our legal system today. Within these structures, systemic racism flourishes. But this Constitutional framework did not create the power structures it protects.
 
Colonisation is a multi-faceted project. It’s virulent and aggressive agenda includes:

• the taking of land (through dispossession, legal fictions and ‘dispersal’, the latter being a euphemism for massacre and genocide);
• the attempt to eradicate culture (outlawing the speaking of language, destroying sacred cultural sites, undermining cultural practices – usually done by positioning them as barbaric and asserting policies of assimilation to indoctrinate the colonised into the culture of the coloniser);
• the control of bodies (restricting and regulating movement, restricting marriage, confining and criminalising);
• the violation of women (as a means control, assimilation, assertion of conquest and demoralising of the colonised);
• the segregation from colonial society unless assimilated; and,
• the removal of children from their families and communities (also means of assimilation, control, breaking down of culture and demoralisation).

 These colonial strategies have contemporary manifestations:

• Despite gains in native title and land rights that have led to the recognition and reassertion of custodianship over traditional lands, Aboriginal land continues to be affected by the desecration of cultural sites and environmental degradation, particularly by mining;
• The control of Aboriginal and Torres Strait Islander bodies continues with the increasing number of Indigenous people in custody;
• of Aboriginal and Torres Strait Islander women continue to be over-represented in statistics tracking victims of crime;
• Exclusion from mainstream institutions and lesser treatment by mainstream services is evident in the socio-economic date and the inability to ‘close the gap’;
• The continual and increasing rates of removal of Aboriginal children from their families.

All these factors evidence a clear continuum between historic colonial assimilationist practices and the contemporary activities of the state.
 
In deconstructing the project of colonisation, we again see how interlinked the issues of over-representation in the criminal justice and deaths in custody are with the issues of the increasing number of First Nations children in out of home care. They are part of the same power dynamic that underpins our institutions.
 
At the heart of it, you cannot understand the criminal justice system – truly understand it – without understanding its historic role. We need to understand this structural racism and this continuing process of colonisation.
 
It tells us that, while more Indigenous people working in the system can bring some change, they work against a systemic and structural framework that is designed to defeat them.
 
More Indigenous people working in the courts does not change the systemic racism within the system any more than more Indigenous people working as child protection workers changes the system. Instead, they either get acculturated into the values of that system or, more usually, suffer burnout and exhaustion from the effort of trying to reform from within and the moral and ethical compromises made in workplaces that lack any cultural safety. We are unable to change the outcomes of the criminal justice system by simply tinkering around the edges. It is little wonder people working to change the system feel like Sisyphus pushing a boulder up a hill.
 
In this framework, the failure to implement recommendations of the Royal Commission is not a failure of the system to appropriately deal with an ‘Indigenous problem’ but is actually a complacency about changing the system itself and an indifference to the consequences the status quo is producing.
 
When we train people to enter a profession like the law, we need to be ensuring that this broader role that the legal system plays is clearly understood. As it stands, it is not only possible but the norm that we graduate people who are able to never think about this power dynamic. Indigenous people are problematised within it – we are a problem within the system that needs to be fixed. In fact, it is the system that is the problem and in need of repair.
 
We allow people the comfort to not think about it and work in a system that reinforces that power dynamic. We need to change the way we understand the system and its role. If it was a core part of their legal education to understand the role of law in colonisation, a graduating lawyer can be positioned to more deeply think about systemic change. This should be a standard graduate attribute.
 
Exclusion from institutions including the professions has been another strategy of the colonial project.
 
But as we have more First Nations people enter the academy and the law, we see active challenges to the system, a law reform agenda with a dual purpose – the transformation of institutions to challenge the status quo and make space for Indigenous perspective and world view. This is a dual project of seeking to decolonise and to assert sovereignty at the same time. This project, and terms like ‘decolonisation’ and ‘sovereignty’, send alarm bells to people unwilling to think about systemic change – who perhaps fear it, fear any shift in power.
 
It’s not enough to bring Indigenous scholars in to teach the curriculum. It’s not enough to undertake a process of increasing Indigenous content across a rigid curriculum. There needs to be a deeper appreciation of what a critical view can bring and rather than being defensive about it, it should be fostered and embraced. It is the system’s best chance for transformation. When space is made for Indigenous people to express their agency, rather than simply being co-opted into the system, new thinking and new approaches have been the result.
 
I want to look at two examples. One from within the academy and one related to the criminal justice system itself.
 
First Nations scholars have introduced Indigenous methodologies into the academy. The whole concept of Indigenous standpoint theory is to challenge the notion that anyone can come from a position of neutrality.
 
Perspective, when clearly defined and articulated is not only honest, it can strengthen research work rather than weaken it. It is a process by which lived experience can deepen understanding of research findings. And it challenges the researcher to define their position and privilege in relation to the work that they are doing. It requires self-reflection.
 
The other example of transformative thinking sits within the process of the development of the current Aboriginal Justice Agreement in Victoria. As part of the community discussions led by the Koori Caucus, a vision beyond the current framework was articulated – an Aboriginal community-controlled justice system. This was seen as a long-term goal but included Indigenous control over the determination of the goals and aspirations for an Aboriginal justice system, the allocation of resources, setting the policy and programs agenda for the Victorian government as it applies to Aboriginal peoples’ interaction with the justice system, developing a legislative agenda and holding the government accountable against benchmarks set by the Aboriginal community. 
 
The current Aboriginal Justice Agreement and its embrace of the principle of self-determination was viewed as a stepping stone towards a longer-term vision. What, one participant asked, would self-determination look like without the mainstream legal system?
 
This idea of shifting more agency to Indigenous people is not a new one. It is simply a concept of self-determination. Self-determination was a key recommendation of both the Royal Commission into Aboriginal Deaths in Custody and the Bringing them Home report. In its true form, it means the greater transfer of decision-making, policy development, program design and delivery to Indigenous people and it speaks to the role played by community-controlled organisations.  
 
This is not an abstract idea. The evidence is clear that socio-economic outcomes are improved when there is greater Indigenous engagement and leadership. This has been proven in the area of health and we have seen more evidence of it recently with the work done by the Aboriginal community-controlled health organisations in rolling out COVID information to communities across the country well ahead of any government programs.
 
Indigenous self-determination works for two main reasons:

• When strategy rests in Indigenous hands, it better reflects the interests, values, vision and concerns of the Indigenous group that will be affected, and not those of non-Indigenous government bureaucrats, funders or other external bodies. The focus is on what community members think is important; and
• Self-determination increases accountability to the community. When decision makers have to face the consequences of their decisions – positive or negative – the quality of decisions improves.

 Self-determination has been proven to work best in the area of health and it offers the best strategy in child protection. Our Aboriginal and Torres Strait Islander legal services need to be resourced to work similarly in the area of justice. Such services are better placed to find the people who fall through the cracks, to actively bring people in through the doors, to work across agencies through informal networks and understand community dynamics and the appropriate cultural leadership.
 
And universities need to embrace the concept of self-determination – more than just Reconciliation Action Plans – through the approach to graduate attributes, the curriculum and through research.
 
A self-determination approach to research requires asking Indigenous communities what research they need. It requires Indigenous-led research structures and processes. It requires thinking about whose voice is privileged in the research outcomes. It requires the protection of Indigenous Cultural Intellectual Property. It requires respect for the knowledge systems that have existed on this country for over 65 000.
 
I credit scholars like Aileen Morton Robinson, Amanda Porter, Chelsea Watego and Alison Whittaker and advocates like Aunty Pat Turner, Linda Burney, Amy McQuire and Lorena Allam and my colleagues at the Jumbunna Institute including Lindon Coombes and Daryle Rigney for deepening my thinking around these issues.
 
Colonial law long ago was used by the British to justify their colonisation of Australia. While the doctrine of terra nullius was overturned in 1992 in the Mabo case, Australia has yet to challenge a more deeply ingrained psychological terra nullius. While more willing to perform welcomes or acknowledgements of country, to embrace National Reconciliation Week and NAIDOC weeks, to hang Aboriginal art works, these are only a superficial embrace of First Nations perspectives and world views unless coupled with real systemic change and tangible outcomes.
 
Representation, truth telling and treaty offer potential pathways to this deeper change. Self-determination must be its guiding principle. The true challenge is the extent to which the system is willing to shift power and to see such a change as a positive rather than a negative.