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Inequality
Racism
The law

Not an event but a structure

Twenty-five years ago, on 15 April 1991, the $40 million, three-year long Royal Commission into Aboriginal Deaths in Custody submitted its final report.

The inquiry’s remit was to determine the cause and nature of 99 Indigenous deaths that occurred between January 1980 and May 1989 and to consider what could have been done to prevent them.

When finally tabled, the hefty report contained within its pages 330 considered recommendations designed to improve protocols and procedures towards observing the wellbeing of vulnerable Indigenous lives exposed to the criminal justice system.

Twenty-five years on, the bulk of these recommendations continue to be ignored despite their relevancy being as acute today as they were a quarter of a century ago.

Most of the recommendations were straightforward enough, such as recommendation 161, which advised police and prison officers to immediately seek medical attention if any doubt arose over their detainee’s health conditions.

Other recommendations were slightly more abstruse, for example, seeking to facilitate Indigenous self-empowerment in order to redress the systemic marginalisation of First Nations people by the Commonwealth’s dominant institutions.

Yet the incarceration of Indigenous Australians has climbed 13 per cent since the release of the inquiry’s final report in 1991. Today, an Indigenous population comprising less than 3 per cent of Australia’s total population makes up 28 per cent of the adult prison population.

That figure jumps to almost 48 per cent when it comes to the representation of Indigenous kids in juvenile detention.

In 2016, Indigenous Australians are 15 times more likely to be incarcerated than white Australians. And the figure is higher again in the Northern Territory, and more alarming per capita in Western Australia, where imprisonment rates for Indigenous Australians (1 in 20) is only slightly down on the imprisonment rate of African-Americans (1 in 15) in the US prison industrial complex.

Australia’s government and legal institutions preside over this disproportionate representation.

That more Indigenous people being in custody is likely to result in more instances of Indigenous deaths in custody appears to be beyond their realms of comprehension. Or they are fully aware, and plainly indifferent.

Despite the inquiry’s recommendations in 1991, particularly recommendations 87 and 92 which state that Indigenous people – like non-Indigenous Australians – should only be arrested when no other way exists for dealing with the problem, and that custodial detention should only be the last resort, Indigenous Australians are being imprisoned now more than ever before.

The high numbers are due to varied factors, but primary among them are policies like mandatory sentencing – a policy based on a US model and introduced into the Australian context by Carmen Lawrence, then premier of WA – and the ‘paperless arrests’ introduced into the Northern Territory in 2014 to free up policing resources.

Of the 2000 people who have been detained via paperless arrests, close to 80 per cent are Indigenous. Paperless arrests can be triggered by such astonishingly minor offences such as swearing, noise, or having an untidy front yard. In November 2015 the High Court of Australia ruled that paperless arrest laws were valid.

Other notable minor offences contributing to the high figures of Indigenous incarceration across the nation include imprisonment for unpaid fines and not attending court hearings. In numerous cases it has been found that this has been due to factors as simple as not receiving fines and summons notices in the post.

These are the often-aired statistics that led former Prime Minister Kevin Rudd to acknowledge early last year that Australia was experiencing an Indigenous incarceration epidemic.

But a Commonwealth backed state of emergency is unlikely to be declared. Racialised punishment continues. And the death count climbs.

Most recently we have heard from the coronial inquest into the death of Ms Dhu, a 22-year-old Yamatji woman, who died in a Port Hedland, WA police station in August 2014.

Ms Dhu was incarcerated for $3600 in unpaid fines. The inquest heard that her death while in police custody was due to septicaemia and pneumonia. Ms Dhu had an infected broken rib sustained in a domestic violence incident prior to her detention. She was in pain and made this known to police only to be dismissed as a ‘junkie coming off drugs’ who was ‘faking it or putting it on’.

Eventually police relented and Ms Dhu was handcuffed and carried to a division van to be transported a short distance to the nearby hospital. Ms Dhu died soon after her arrival.

The inquest was provided with CCTV footage of Ms Dhu’s last hours in custody. Some of that footage includes vision of Ms Dhu being ‘dragged like a carcass’ out of the watch-house and ‘dumped’ in the rear of the police vehicle.

After initially requesting that the footage be suppressed, Ms Dhu’s family have since requested the inquest make the video available to the public to incite action to address the ongoing issue of Indigenous deaths in custody. The coroner has refused to do so.

The tragic death of Indigenous man Shaun Coolwell in October last year occurred on the fourth anniversary of the death in custody of his brother Bradley Coolwell. Shaun was at his home in Logan, Queensland, when he became distressed and self-harmed. An ambulance arrived, accompanied by up to a dozen police cars. The police arrested and handcuffed Coolwell before he received any medical attention.

Indigenous leader Sam Watson, speaking on behalf of the family, later told reporters how police had manhandled Coolwell.

‘Shaun was smashed down onto the floor and they used their knees and shoulders to hold him and handcuffed his hands behind his back,’ Watson told the Brisbane Times. Shaun Coolwell later died in hospital.

Richard Frankland was the Victorian Aboriginal liaison officer for the Royal Commission into Aboriginal Deaths in Custody from 1988. At the time, he was one of the few actual Indigenous people engaged by the Commission. Contracted on a succession of short-term contracts, Frankland worked in the field until the inquiry concluded in 1990. He was directly involved in investigating some of the 99 deaths included in the inquiry’s terms of reference and talked to many families of the deceased.

Frankland went on to write and direct the documentary Who Killed Malcolm Smith in 1992, and the short feature film No Way To Forget in 1996. Both of those works, and a 2001 stage play titled Conversations With The Dead, reflect his experiences working on the road for the national inquiry.

‘You never really recover from a job like that. You’d look around and see carnage, emotional carnage at all these levels,’ he said. ‘Everything you were seeing was through the lens of the wounded.’

Frankland is not surprised by the overwhelming failure to implement key recommendations of the inquiry. ‘It’s what you expect. As a nation we blame the victim,’ he said.

‘We’re incarcerated at a rate that is just disgusting. As a nation we don’t rehabilitate, we punish. We’re not interested in the root causes. We don’t address issues of equity and poverty of spirit amongst Indigenous people. We don’t recognise the massacre sites or the battlegrounds.

‘As Patrick Wolfe says, “Invasion is not an event, it’s a structure.”’

It is a structure that requires immediate and drastic reformation as the rates of arrest and incarceration of Aboriginal and Torres Strait Islanders trends upwards, and Black deaths in custody continue unabated.

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Image: Max Riethmuller/Flickr

Overland is a not-for-profit magazine with a proud history of supporting writers, and publishing ideas and voices often excluded from other places.

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Jack Latimore is an Indigenous journalist, researcher and writer. His work has appeared in RealTime, Voiceworks, Farrago, The Citizen and the anthologies GeekMook and Paradise to Paranoia. He has worked for the ABC and Guardian Australia and is currently employed by the Centre for Advancing Journalism.

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