April this year marked 30 years since the final report of the Royal Commission into Aboriginal Deaths in Custody was tabled in Federal Parliament.
In May, Queensland Law Society hosted a forum on the report with three panellists and a facilitator.1
However, since May there have been multiple First Nations deaths recorded while in police or prison custody.2
On this basis, it appears that nothing has changed, or will change, while First Nations people continue to face the justice system, with the common trend apparently being a lack of care in preventing deaths in custody, in particular of First Nations peoples.
I am not asking the profession to do anything for us, but to stand with us. This situation shouldn’t be tolerated or accepted any more today than it was prior to the 1991 Royal Commission.
Most recently, it was reported that a woman of colour had died in custody,3 with allegations that guards used force moments prior to her ‘sudden death’. An investigation is in progress.
Sisters Inside chief executive officer Debbie Kilroy OAM tweeted: “Police must stop investigating themselves and prisons. Time for independent investigations.”
This sentiment has regularly echoed across the profession, including by Indigenous barrister Joshua Creamer more than 12 months ago.4
At the start of this month it was reported that the Victorian Coroner had been tasked to investigate an Aboriginal death in custody.5 While the number of non-Aboriginal deaths in custody is higher than that the number of Aboriginal deaths, First Nations people are proportionately more likely to die in custody.6 However this is not about comparisons, but rather the apathy and lack of empathy when there is a First Nations death in custody.
It was only last month that two First Nations persons died from unknown causes while in prison.7 Another was gunned down by police – once again, a First Nations person at the brutal end of the firing line.8 I wonder whether other means could have been used to detain a suspect? Again, an investigation is under way.
There remains an urgent, ongoing need for reform, felt now by the families and friends who bear this trauma of losing another member of their community. And in the families and the community who are again left with unanswered questions and the irony of a system that investigates itself.
The Queensland Law Society forum in May considered ways to provide a strategy that could deal with the kinds of issues that these circumstances raise for First Nations communities.
The most compelling suggestion was for an independent ombudsman to investigate deaths in custody, providing transparency and accountability for when deaths occur. The Society – along with others in the profession – has called numerous times for such a body to be established, including in the 2020 State Election Call to Parties document:
“An independent First Nations Ombudsman with an audit function with respect to the First Nations peoples’ representative council and with the power to receive and resolve complaints from Aboriginal and First Nations peoples who are impacted by decisions of all public authorities”.9
There is an overwhelming need for an independent oversight body, a proposal which is consistent with the views in this article, and in particular the Royal Commission’s recommendations.10 If our people see so little justice, then what are we reconciling?
We must work towards a framework independent from the current institutions, or at least to the extent of an independent ombudsman who has specific powers to investigate deaths as they occur.
While I am not excusing those who commit offences, I am well aware of the need to take responsibility for one’s own actions. However, no matter how serious a crime may have been committed, it should never be a death sentence.
The majority of offences committed by First Nations people who may have died in custody are either minor or simple offences; in my mind, custody should have been the last option in perhaps the majority of those instances.
While the May forum was not conclusive in defining ways to prevent deaths in custody, it provided some insight into what the profession could do to mitigate this horrendous death toll, at the least in assisting to draw the government’s attention to the issues impacting First Nations communities.
As First Nations people we need the profession more than ever to not only advocate but also support positive change. One First Nations death in custody is one death too many.
Joshua Apanui is a Bundjalung man (northern New South Wales) and a First Nations Executive at Queensland Law Society.
6 Doherty L 2021. Deaths in custody in Australia 2020-21. Statistical Report no.37 Canberra: Australian Institute of Criminology. doi.org/10.52922/sr78436.
10 Recommendation 226 (RCIADIC 1991).