Aboriginal Law Bulletin
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Aboriginal Law Bulletin |
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by Jason Behrendt and Chris Cunneen
This paper is a reduced version of a research report produced for the National Committee to Defend Black Rights (NCDBR). The purpose of the report was to overview Aboriginal custodial deaths since 31 May 1989, to indicate whether Royal Commission recommendations were beingg followed and to consider any changes in the incidence and causes of such deaths since the Commission's recommendations were released.
The Royal Commission Into Aboriginal Deaths In Custody (RCIADIC) closed its investigative doors on 31 May 1989. Between that time and early 1994, 55 Aboriginal people have died in custody. Governments and their departments had the benefit of an Interim Report at the time when investigations ceased, the purpose of which was to highlight areas requiring immediate action to limit the numbers of those dying in custody. Since early 1991 the Reports of Inquiry into 99 individual deaths, Regional Reports of Inquiry from each state, and a five volume National Report, all published by the RCAIDIC, have been available. All emphasised various aspects of criminal justice reform required to reduce the number of Aboriginal people dying in custody. Since 1992 we have had state and Federal responses to the Royal Commission, and now more recently state and Federal annual reports on implementation of recommendations.
It is apparent that the national rate of Aboriginal custodial deaths has not decreased. It is our view that many of those who have died have done so because key areas of reform highlighted by the RCIADIC have not taken place. Clearly, despite the fact that all governments have publicly supported the vast majority of the RCIADIC recommendations and with many governments claiming to have implemented recommendations, the question remains as to whether these recommendations have been implemented to any meaningful degree.
Before examining the nature of Aboriginal custodial deaths since the RCIADIC, there are a number of issues which need to be clarified. The issue of who was in 'custody' is problematic in a number.of cases.[1] We have adopted the broad definition suggested in the RCIADIC's National Report for the purposes of the NCDBR analysis. It should be noted that this definition is broader than that used by the RCIADIC itself during its investigations. Consequently, a number of deaths included in this Report may not have been investigated by the Commission had they occurred prior to 31 May 1989. Most notable of these are the deaths resulting from police car chases. This difference should be acknowledged when comparing custodial death statistics during the two periods.
We obtained information primarily through coronial reports and submissions from various Aboriginal Legal Services. Where neither was available, newspaper reports have been the only source of information. In some cases there was no readily available information. In other cases coronial reports were unavailable or coronial inquiries were pending at the time of writing. In many cases this was due to the recentness of the deaths. In other cases, such as with Marlene Tomachy where 2 years after her death a coronial inquiry is yet to be completed, the delay is questionable. Secondly, in a significant number of cases the Coronial Reports were completely inadequate to give any meaningful understanding of how deaths occurred. This was despite recommendations of the RCIADIC which required all deaths in custody to be the subject of a thorough Coronial Inquiry. In addition it was recommended that Coroners investigate the cause and circumstance of the death as well as "the quality of the care, treatment and supervision of the deceased prior to death". In many cases the Coronial Inquiries were inadequate with little or no investigation into underlying issues. In some cases the Inquiry resulted only in a report of the cause of death, described in a couple of words.
A significant number of the deaths discussed in the NCDBR Report occurred before the RCIADIC National Report was released in April 1991. In these cases the Interim Report recommendations that were breached are listed along with those in the National Report. This is because the entire purpose of the Interim Report was to make recommendations so that immediate action could be taken to prevent more custodial deaths. It is our view that evidence relating to deaths during this period would indicate that very little notice was taken of the Interim Report by various governments.
In the deaths which occurred prior to the release of the National Report, we have still considered whether those later recommendations would have been breached had they been formulated at the time. This is to illustrate the usefulness of the recommendations and to show their potential relevance in the prevention of those deaths.
Finally, our report for the NCDBR only provides a preliminary overview and is not meant to be comprehensive. It is intended to show the extent to which Aboriginal deaths in custody are still occurring and that at least some of those deaths could have been avoided had the Commission's recommendations been implemented. It is also intended to show that further deaths will be avoided if the Commission's recommendations are immediately and adequately acted upon.
Table 1 shows the number of Aboriginal deaths in custody in each State and Territory for the period since the 'cut-off date of the Royal Commission Into Aboriginal Deaths In Custody. It should be noted that the figures for 1989 represent a seven month period (June to December).
Included in Table 1 are 7 women. One of these deaths occurred in NSW, three in Qld, and one each in WA, Vic and NT. There were also 11 deaths of people aged 17 years or younger: two in each of NSW and Qld; five in WA; and one in each of NT and Tas. In summary, 13% of the deaths in custody were women, and 20% were young people.
Table 2 provides a summary of the information in relation to custody and jurisdiction for the period 1989-1993. The Table shows that the largest number of deaths has occurred in New South Wales. It also shows that nationally over 50% of the deaths occurred in prison.
There have been significant changes in the location of death, both in terms of jurisdiction and custodial authority, if one compares the Royal Commission period with the post Royal Commission period as shown in Table 3.
Table 3 shows that NSW accounted for 31% of the deaths in the post-Commission period compared to 15% in the period 1980-1989; Queensland continued to account for around a quarter of all deaths which was not dissimilar to the earlier period. The most dramatic decline has occurred in Western Australia.[2]
Table 4 shows that the proportion of deaths occurring in prison has increased in the period following the RCIADIC, while the proportion of deaths occurring in police custody has declined.
The increase in deaths in prison custody needs to be considered more fully in relation to changes in the level of Aboriginal and Torres Strait Islander imprisonment over recent years.
Table 5 provides a summary of information in relation to individual deaths which have occurred since 31 May 1989. It lists the recommendations which appear to have been breached in relation to the Interim Report (IR) and the National Report (NR).
The IR recommendations have been included in cases where the death occurred prior to the release of the NR of the RCIADIC.
Note the following in relation to Table 5:
(i) In cases where we have indicated that there is 'insufficient information in the coronial report', we have been of the view that on the basis of what has been presented by the coroner it is not possible to determine whether breaches of the RCIADIC recommendations occurred. In most cases it is indicative of a brief finding, no transcript and no recommendations.
(ii) In cases where we have indicated 'inquiry incomplete', either the coronial inquiry has not begun or has been part-heard.
(iii) In cases where we have indicated 'coronial report unavailable' we have been of the view that the coronial inquiry was completed but we have been unable to locate or obtain any documentary material.
(iv) In a number of cases we have indicated 'inquiry incomplete' or 'coronial report unavailable' and have also indicated breaches of RCIADIC recormnendations. In these cases we are of the view that there is enough evidence in the nature of the death, irrespective of what the coronial inquiry might reveal, to reach these conclusions. It may well be that in all cases, as further information becomes available, more breaches will become apparent.
(v) The recommendation numbers for both the IR and the NR refer to those recommendations which if implemented could have contributed to the prevention of the death. The primary aim was to see whether the deaths in question were preventable. Accordingly, the examination of the implementation of recommendations of both IR and NR of the RCIADIC is limited to the issues which specifically arose in the deaths or which were addressed in the respective coronial inquiries. Thus the broader recommendations of the RCIADIC which essentially address underlying issues were not considered in the context of these individual deaths.
(vi) The word 'Nil' appears in one case only. We have considered that it cannot be said that any recommendations were breached in light of the information available.
There were a total of 26 breaches of recommendations from the Interim Report. The most frequently breached of the interim recommendations was number 28 which states that police and prison officers involved in apprehension and/or detention of persons in custody should receive training to enable them to identify persons in distress or at risk of death through illness, injury or suicide.
There were a total of 169 breaches of recommendations from the National Report. The most frequently breached was Recommendation 127, which requires that police services 'move immediately' to examine the delivery of medical services to persons in police custody. This recommendation has 6 sections and 9 subsections elaborating on how it should be implemented. Ironically all governments have supported this recommendation. Other frequently breached recommendations included 133,152 and 126. Recommendation 133 (supported by all governments) relates to police training in identifying distress and risk factors (see also interim Recommendation 28). Recommendation 152 relates to the need for Corrective Services to examine the provision of health services to Aboriginal people in custody. There are 6 sections and 9 subsections on how this recommendation should be implemented. All governments have supported this recommendation. Recommendation 126 (supported by all governments) states that in every case of a person being taken into custody, a screening form and a risk assessment should be completed.
Recommendations 150, 154 and 155, each of which were breached 6 times, all relate to various aspects of the provision of health services. Recommendation 87 (supported by all governments), also breached 6 times, refers to the use of arrest as a sanction of last resort, and the need to eliminate unnecessary police custodies. Recommendation 60, breached 6 times, refers to the need for police forces to eliminate violent or rough treatment and verbal abuse of Aboriginal people. This recommendation was also supported by all governments.
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Table 1
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Deaths in Custody Since 31 May 1989, Aboriginal and Torres Strait
Islander Persons, Jurisdiction by Year
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State
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1989
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1990
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1991
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1992
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1993
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Total
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NSW
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3
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2
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3
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5
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4
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17
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Vic
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1
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-
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1
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1
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2
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5
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WA
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1
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3
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3
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1
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-
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8
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SA
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2
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1
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3
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-
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-
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6
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Qld
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2
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4
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4
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2
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4
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14
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NT
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-
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2
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-
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-
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1
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3
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Tas
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-
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-
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1
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-
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1
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2
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Australia
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9
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12
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15
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9
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10
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55
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Table 2
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Deaths in Custody, Jurisdiction by Custody, 1989-1993
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State
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Prison
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Police
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Juvenile
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Total
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NSW
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13
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4
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-
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17
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Qld
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7
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7
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-
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14
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WA
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2
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6
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-
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8
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NT
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-
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2
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1
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3
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Tas
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1
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1
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-
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2
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SA
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3
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3
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-
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6
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Vic
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2
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3
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-
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5
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Total
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28
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26
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55
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Table 3
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RCIADC and Post RCIADC Deaths in Custody by Jurisdiction
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State
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RCIADC 1980-1989
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Post-RCIADC 1989-1993
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No
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%
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No
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%
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NSW
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15
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15
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17
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31
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Qld
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27
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27
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14
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25
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WA
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32
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32
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8
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15
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NT
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9
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9
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3
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5
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Tas
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3
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3
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2
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4
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SA
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12
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12
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6
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11
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Vic
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1
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1
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5
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9
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Total
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99
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(100)
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55
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100
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Table 4
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RCIADC and Post RCIADC Deaths in Custody by Custodial
Authority
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Authority
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RCIADC 1980-1989
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Post-RCIADC 1989-1993
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No
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%
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No
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%
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Police
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63
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63
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26
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47
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Prison
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33
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33
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28
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51
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Juvenile
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3
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3
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1
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2
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Total
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99
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(100)
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55
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100
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CR = Coronial Report
IR= Interim Report
NR = National Report
*Some dispute as to persons Aboriginality
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Table 5
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Deaths in Custody, Coronial Status and Breached Recommendations,
1989-1991
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Age/Date of Death
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Rec.s Breached
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New South Wales
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28/July 89
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CR unavailable
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17/Oct 89
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IR - 28; NR - 150,151,152, 156,157,167
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28/Oct 89
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Insufficient info in CR
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24/Jan 90
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IR- 36; NR -152,157
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19/ May 90
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Insufficient info in CR
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25/May 91
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CR unavailable
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47/Jun 91
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NR-152,157
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34/Jun 91
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Insufficient info in CR
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23/Mar 92
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NR - 130,150,152,153,154, 155,157,247,251,252,263
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38/Jul 92
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NR - 92,126,127,133,137, 144, 148
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*/Jul 92
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CR unavailable
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14/Jul 92
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Inquiry incomplete
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43/Nov 92
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NR-133,160 Inquiry incomplete
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64/Mar 93
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Inquiry incomplete
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20/May 93
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Inquiry incomplete
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33/Oct 93
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Inquiry incomplete
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46/Nov 93
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Inquiry incomplete
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Queensland
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26/Jul 89
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IR-15; NR - 126,127,137
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21/Aug 89
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IR - 3,4,5,6,8,9,12,13,14; NR - 79,80,81,84,87,126,
127,133,135,136,137,144
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*30/Jan 90
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CR unavailable
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21 /Apr 90
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IR - 28; NR 155, 152
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24/Apr 90
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IR - 28; NR 124, 152, 155
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28/Oct 90
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IR - 3,4,5,6,8,9,12,13,14,15, 28,40; NR - 79,80,81,87,
126,127,133,135,136,141, 159,160,162
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17/Jan 91
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IR - 1,28; NR - 92,94,126, 154,155,168,181,182
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34/May 91
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NR - 86,92,121,125,126, 127,133
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44/Nov 91
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NR - 60,79,80,81,87,126, 127,133 Inquiry incomplete
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17/Dec 91
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NR - 95,150,151,152,153, 155,156,164
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60/May 92
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NR - 79,80,81,87,126,127, 133, 135,136,138,159,160, 162 Inquiry
incomplete
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27/Dec 92
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Inquiry incomplete
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21/Apr93
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NR - 25,35,60,127,130,145,146, 150,151,154,155,170 Inquiry incomplete
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18/Nov 93
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NR - 60,127,133,135,136, 161 - Inquiry incomplete
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Western Australia
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50/July 89
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CR unavailable
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16/Apr 90
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Insufficient info in CR
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14/Apr 90
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Insufficient info in CR
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15/Apr 90
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Insufficient info in CR
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35/Jan 91
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IR - 28,32,36; NR - 150, 152,154
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16/Feb 91
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Insufficient info in CR
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21/Dec 91
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Insufficient info in CR
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Jan 92
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CR unavailable
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South Australia
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17/Jul 89
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IR - 28; NR - 126,127,133, 137,144
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30/Nov 89
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nil
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40/Jun 90
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IR - 36; NR -152,157
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43/Feb 91
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IR - 12,13,14; NR - 127, 133,135,136
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35/Mar 91
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IR - 32; NR - 92,150,152, 154,168
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39/Aug 91
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NR - 60; OR unavailable
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Victoria
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25/Oct 89
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IR - 3,4,5,6,8,9,15,28,42; NR - 79,80,81,84,87,126,
127,133,144,247,252,255, 257,263
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39/Aug 91
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NR 79,80,81,84,87,127, 133,158,159
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28/Feb 92
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NR -133; CR unavailable
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24/Feb 93
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Inquiry incomplete
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33/Aug 93
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Inquiry incomplete
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Northern Territory
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14/Mar 90
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Insufficient info in CR
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48/Apr 90
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IR - 32; NR - 60,61
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40/Aug 93
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Inquiry incomplete
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Tasmania
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49/Aug 91
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NR - 154,158
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16/Aug 91
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NR - 60; Inquiry incomplete
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[1] . See Doreen Lofts & Anor v Terry John Darvson & Ors, G208 of 1990, 23 May 1990, per Morling, Beaumont, Gummow JJ at p23. See also Nettheim, G., Eatts v Dawson in AboriginalLB 44/17.
[2] Indeed this comparative decline would appear even greater if the 5 deaths in high speed car chases in Western Australia were removed from the post-Royal Commission figures.
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