April 2022 marks 31 years since the Royal Commission into Aboriginal Deaths in Custody (RCIADIC).
The RCIADIC was established in response to public concern that Indigenous deaths in custody were too common and public explanations too evasive.1 The RCIADIC final report found that Indigenous people in custody did not die at a greater rate than non-Indigenous people; rather, the high number of Indigenous deaths in custody was a result of the overrepresentation of Indigenous people in custody.2
Simply put: “Too many Aboriginal people are in custody too often.”3
On 4 May 2021, Queensland Law Society held a forum reflecting on the 30 years since the RCIADIC, discussing strategies and calling for action to overcome Indigenous deaths in custody.
One suggestion proposed at the forum was 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.4 Queensland Law Society previously called for the establishment of a First Nations Ombudsman in our 2020 Queensland Call to Parties Statement.5
While we welcome recent government initiatives, such as the increased “fleet of body-worn cameras” for police frontline officers,6 the research indicates that further regulation is required to ensure increased police accountability.7
Since the release of the final report, there have been 489 recorded Indigenous deaths in custody.8 Consistent with the findings of the final report, these deaths have been attributed to the overrepresentation of Aboriginal and Torres Strait Islander peoples in Australia’s justice system – 30% of Australia’s prisoner population, yet only 3% of the Australian population.9
In light of these statistics, Queensland Law Society, in consultation with First Nations stakeholders, actively advocates on law reform to address the overrepresentation of Aboriginal and Torres Strait Islander people in Australia’s justice system.
Child protection reform
The RCIADIC stated that the overrepresentation of Indigenous peoples in custody did not develop within the criminal justice system, but rather it derived from a combination of social, economic, and cultural inequity.10
Queensland Law Society, in its submission on the Child Protection Reform and Other Legislation Amendment Bill 2021, advocated for measures designed to reduce the overrepresentation of Aboriginal and Torres Strait Islander children in the child protection system.
It also advocated for further support for measures that facilitate and maintain Aboriginal and Torres Strait Islander children’s connections to family, community, culture and country.
Raising the age of criminal responsibility
Queensland Law Society also responded to the Criminal Law (Raising the Age of Responsibility) Amendment Bill 2021, and strongly advocated in favour of raising the minimum age of criminal responsibility from 10 years to at least 14 years.
In the submission, the Society acknowledged the overrepresentation of Aboriginal and Torres Strait Islander children in Queensland’s criminal justice system. It said the Bill would bring Queensland law into line with research relating to neuroscience and child development, which has consistently demonstrated that children in their early adolescence lack the cognitive capacity for the consequential thinking necessary to impute criminal intent.
Queensland Law Society also advocated for prevention and early intervention strategies that aim to address the underlying factors which lead to criminality.
Public intoxication
The RCIADIC identified highs rates of Indigenous incarceration or detention in police custody for public intoxication.11 On 22 December 2021, Queensland Law Society proactively advocated for the removal of public intoxication from the Summary Offences Act 2005 in an effort to minimise the reach of criminalisation of Aboriginal and Torres Strait Islander peoples, and thereby avert preventable Indigenous deaths in custody.
Looking forward
Given the disproportionately high rates of incarceration among Aboriginal and Torres Strait Islander peoples, it is clear further work is still required to address the underlying social, economic and cultural inequity. It is also clear that further independence and oversight is needed when a death in custody occurs.
Queensland Law Society remains committed to working with First Nations and Government stakeholders in advocating for meaningful change in the way policies and laws affecting Aboriginal and Torres Strait Islander peoples are implemented.
Yale Hudson-Flux is a graduate solicitor at Queensland Law Society. Jaime Gunning is a Legal Assistant in the QLS Legal Policy Team.
Footnotes
1 Royal Commission into Aboriginal Deaths in Custody [1.1.2].
2 Ibid [1.3.1] – [1.3.3]; Pathways to Justice Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples [2.21].
3 Royal Commission into Aboriginal Deaths in Custody [1.3.3].
4 QLS Proctor, Call to Parties: Change needed to advance Indigenous rights.
5 Call to Parties Statement: Queensland State Election 2020 p6.
6 Queensland Government, Government backing growing Queensland Police Service with the frontline tools needed to keep the community safe.
7 Robyn Blewer and Ron Behlau, ‘Every Move You Make … Every Word You Say’: Regulating Police Body Worn Cameras’ (2021) 44(2) UNSW Law Journal 1180, 1198.
8 Deaths in custody in Australia 2020 – 21 p.iii.
9 Ibid p4.
10 Royal Commission into Aboriginal Deaths in Custody [1.7.1].
11 Royal Commission into Aboriginal Deaths in Custody [7.1.10] – [7.1.11].
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