Introduction
‘The use of the word implemented…seems entirely inappropriate as I understand the meaning of the word. The facts are that… a number of those recommendations ...have not been implemented.’
Coroner Ivan Smith, SM
Aboriginal death in custody inquest, Queensland, 1991
In eight years there has been an Interim and National Report of the Royal Commission, 339 recommendations, $400 million funding for State and Territory Governments and a bookshelf of implementation reports from Australian Governments. Yet there were 22 deaths in custody in 1995, the highest number since the Royal Commission? Why has the trend continued in 1996 with 13 deaths in the first seven months? Why has the number of indigenous prisoners doubled since 1989 in New South Wales and South Australia? Why is the over-representation rate of indigenous people in police cells, prisons and juvenile detention centres increasing? Why do indigenous people, families and communities continue to suffer these tragedies?
What is implementation? Australian Governments claim to have implemented the overwhelming bulk of Royal Commission recommendations. Implementation is not support for recommendations or the planning of policies distant from the site of death. Implementation is outcomes. This means changing legislation, changing priorities, changing cultures and changing procedures. While there are discernible improvements, this Report reveals a large gap between the rhetoric of implementation reports and the circumstances of the deaths of 96 Aboriginal people.
This Report examines the deaths of indigenous people in custody since the Royal Commission ceased investigating deaths in May 1989. The findings of coronial inquests are used to examine the circumstances of each death to determine whether Royal Commission recommendations were implemented. Since coronial inquests are limited in scope, only those recommendations concerning the criminal justice and coronial systems are considered. Recommendations concerning land, general health, education, drugs and alcohol, housing and employment will therefore not be considered. While the inquests for the 1995 deaths are not yet complete, the methodology has raised some important findings and recommendations for change.
The Royal Commission made 179 recommendations concerning the criminal justice and coronial systems after finding that: Aboriginal and Torres Strait Islander people were significantly over-represented in prisons and police lockups; many deaths were avoidable if custodial authorities had properly exercised their duty of care; and, the Royal Commission may have been unnecessary had coroners properly investigated deaths in custody by dispelling suspicion and making preventative recommendations.
Part A outlines the method and limitations of the Report. This includes discussion of the definition of a death in custody, the construction of the profiles, including the determination of a breach of a recommendation and extra-coronial comment, and the method of analysis. The study is limited by coronial inquests that were often narrow in focus or inadequate in investigation. This results in a significant number of Royal Commission recommendations, particularly those concerning courts and police relations with Indigenous communities, receiving little or no consideration. Further, this Report does not consider in depth other studies and reports, which should be consulted to gain a full picture on the scope of implementation.
Part B provides a statistical analysis. Chapter 2 profiles the characteristics of Indigenous people who have died in custody and compares them to the deaths investigated by the Royal Commission. Chapter 3 compares Indigenous and non-Indigenous deaths in custody since 1989. Chapter 4 examines the rising arrest and imprisonment rates for Indigenous people. It also provides examination on types of offences committed by Indigenous people and length of sentences.
Part C considers the case profiles under each of the relevant Royal Commission recommendations. They are organised into five chapters. Chapter 6 considers the policing practices of police including rough treatment, the use of arrest as a last resort and relations with Aboriginal people (R60-1, 79-91, 214-33). Chapter 7 considers the use of imprisonment as a last resort and court processes (R90-121). Chapter 8 considers custodial conditions in police stations, prisons and juvenile detention centres (R122-87), including issues of physical and mental health, treatment by officers and general conditions. A number of cases also raise issues concerning implementation of health recommendations by hospitals.
Chapter 9 considers diversion of juveniles from custody and the treatment of juveniles within the prison system (R62, R234-45). Chapter 10 considers the quality of post-death investigations (R6-40).
Each chapter provides a schedule listing the frequency of breaches of Royal Commission recommendations. The nature of the breaches, and occasionally best practice, are discussed in relation to each recommendation. At the end of each chapter a number of fresh, remedial recommendations are made.
Part D examines the implementation process. Chapter 11 outlines the failure of the reporting process and how it could be improved. Commonwealth, State and Territory Government reporting is largely conducted by the very agencies who are responsible for implementing the recommendations. Chapter 12 canvasses other ways the outcomes sought by the Royal Commission can be achieved. It considers legislatively enacting recommendations, common law actions, ombudsmen, international avenues and the purposes of a national summit on justice and corrections.
Part E presents the profiles of the 96 Indigenous deaths in custody which occurred between May 1989 and May 1996. These profiles deviate slightly from the database maintained by the Australian Institute of Criminology in accordance with recommendation 41 of the Royal Commission. A number of deaths also fall outside the current definition of a death in custody but raise issues about the custodial care of Aboriginal people and Torres Strait Islanders and the criminal justice system. They are included at the end of Part E. Names of people who died in custody are not used in this Report. They are identified through an identifier which contains their chronological number and the State or Territory where they died.
The primary function of the Aboriginal and Torres Strait Islander Social Justice Commissioner is to report on the enjoyment of human rights by Aboriginal and Torres Strait Islander peoples contained in a number of international instruments. The failure of State and Territory Governments to properly implement the findings of the Royal Commission raises serious questions as to whether these instruments are being complied with by Australia. This includes Articles 2(1), 9, 10 and 14, International Covenant on Civil and Political Rights; Articles 1, 2 and 5, Convention on the Elimination of All Forms of Racial Discrimination; Article 5 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and Articles 37 and 40, Convention on the Rights of the Child.
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