Alternative Law Journal
MEGAN HOEY and MARTIN FLYNN[*] ask key stake-holders ‘was it a waste of time?’
The month of April 2001 marked the tenth anniversary of the report of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC). The key finding of the Royal Commission was that indigenous people were grossly over-represented in police custody and prison. They remain so today. Western Australia has the highest incarceration rate of indigenous people in Australia. The 339 recommendations dealt with the operation of the criminal justice system and the institutionalisation of adults and juveniles. These recommendations were directed to ending discrimination against Aboriginal defendants with the aim of reducing over-representation.
Compared to other defendants, Aboriginal defendants were found to be more likely to be sought by police, more likely to be charged with an offence than to be cautioned, more likely to be arrested than charged by summons, less likely to be granted bail, more likely to be in custody for public alcohol-related behaviour and, when convicted, had fewer appropriate sentencing options. Mandatory sentencing, introduced in Western Australia and the Northern Territory, is the antithesis of the RCIADIC recommendations.
Most recommendations were concerned with ‘underlying issues’ contributing to over-representation: alcoholism, poverty, poor health, lack of education, inadequate housing and high unemployment. The Royal Commission used the term ‘self-determination’ to describe the suggested approach: ‘The thrust of this report is that the elimination of disadvantage requires an end of domination and an empowerment of Aboriginal people; that control of their lives, of their communities must be returned to Aboriginal hands’ (Volume 1, para 1.7.6).
We asked individuals with diverse perspectives whether anything has been achieved as a result of the Royal Commission.
Murray Jones is the Chairperson of WA Deaths in Custody Watch Committee. He says:
Where do we find ourselves at the beginning of a new century — as Aboriginal people? Aboriginal people are not the only people, past and present, who have had wrongs inflicted on them. However, as a people we have endured injustices that precede the Royal Commission. We have lost generations. Government and community practices since colonisation mean that we cannot participate in society. We are a dependent people as a result of these practices and policies — captive to government housing lists, often trapped in the poverty cycle, and marginalised in basic and routine ways. Our quality of life ought to be better, but it is not, and our people fill the gaols.
We continue to be the most highly incarcerated people in the world. Apart from the brutalising effects of imprisonment, there is the chance of death — this year three of our people have died in custody in WA and we are still struggling to get governments to listen.
The Royal Commission has been a waste of time. It was followed by the Bringing Them Home Report, which contained further recommendations and which addresses similar issues — the chronic nature of the social disadvantage Aboriginal people continue to undergo. As a people we have been turned into beggars for basic human rights. Both reports were informative, well-researched and expensive. The government has demonstrated the lengths it will go to gather information. However, while money is spent, thousands of human hours worked, and most importantly Aboriginal lives continue to fall through the cracks in our society, the equivalent amount of effort is not channelled into the recommendations that are the product of reports.
Dorothy Parker has spent 25 years teaching and researching in the sociology of law, race relations and women’s studies. Her pioneering work on Aboriginal/Police relations was cited by the Royal Commission. She says:
Several structures and processes were initiated as a result of the Royal Commission recommendations. For instance, the Aboriginal Justice Council in Western Australia was established and supported the Aboriginal Street Patrols and Aboriginal Visitors Schemes for WA Prisons. It is apparent, however, that such programs received poor funding and limited autonomy. The Aboriginal Legal Service of Western Australia complained [in 1996] of a lack of consultation and negotiation with Aboriginal organisations and communities and points to the continuation of disproportionate imprisonment of Aboriginal people. Criminologist Chris Cunneen reported in 1997 that there had not been adequate attention given to the intent of the recommendations dealing with diversion of Aboriginal people away from prison (Recommendation 92) and in many cases the recommendations have not been implemented at all. In particular, he stated that the introduction of mandatory sentencing in Western Australia and the Northern Territory ‘directly contravenes the intent of the Royal Commission recommendations’.
It is clear that the major recommendations of the Royal Commission have not been implemented, especially in relation to reducing the Aboriginal imprisonment rate. The Royal Commission provided a great deal of useful analytical and descriptive information and many valuable recommendations for change were made. But it seems that the political will to implement those changes has been inadequate throughout Australia and especially in Western Australia. Both major political parties have launched punitive ‘law and order’ campaigns during election campaigns in the belief that the majority of the public supports harsh punishments. This is a belief that requires investigation.
Meaningful social measures to eliminate poverty, to minimise racism and to improve the socio-economic and political status of Aboriginal Australians are basic requirements for changes which bring about improvements in the criminal ‘justice’ system and perhaps more importantly in the wellbeing of Australian society.
Joan Winch is head of the Centre for Aboriginal Studies at Curtin University. She says:
The focus for action on the recommendations appears to me to be about bigger, stronger prisons, rather than keeping people out of prisons. Safe houses and bail hostels were recommended — where are they? Money would be better spent on medical and health support services in places of incarceration rather than bigger and better prisons. If a doctor examines someone incarcerated and recommends a follow-up, then there needs to be monitoring to ensure that the follow-up occurs. For example, resources need to be allocated to ensure medical backgrounds are taken so that it is known when someone is a diabetic. Prisoners and officers should have training in first aid and in broader health issues.
Howard Pedersen was the Convenor of the Task Force for the Western Australian Government’s response to Recommendations of the Royal Commission (1991–92). He says:
The Royal Commission recommendations highlighted the need for an extraordinarily concerted effort by government at all levels to assist the Aboriginal community to rebuild and revitalise their society. In my opinion, the challenge was never seriously taken up.
In my role, I saw it as an opportunity for Commonwealth and State governments to integrate work and partner Aboriginal communities to address deprivation and human tragedy. However, I never felt any sense of real commitment. For example, the Western Australian government offered ‘in principle’ commitment to the recommendation that imprisonment be a sentencing disposition of last resort. The same government brought in mandatory sentencing during the period of time where the task force was formulating a response to the recommendation.
We tend to just ‘move on’ to the next thing. After the Royal Commission, we moved on and set up the Aboriginal Reconciliation Council in 1991. Following that, there was Mabo, the Native Title Act, and then the promised social justice package (which didn’t happen). Soon after we had Bringing Them Home (the Stolen Generation report) and the fraudulent response of the Howard government to that report. Now the debate is around abuse of women and children in Aboriginal communities. We lurch from crisis to crisis without any capacity to deal with the actual human tragedy.
Lorraine and Moira Woods are sisters. They are mourning the death of their 46-year-old brother, who died in a West Australian remand facility in November 1999. The Coroner’s finding — death by natural causes — was handed down on Friday, 29 June 2001. Lorraine and Moira have eight relatives from their extended family who have died in custody.
Lorraine: The feeling is different. When you lose someone on the outside, you’re there with them. When someone is in gaol, the pain is even greater as you can’t be there with them. Then you don’t get answers as to why he died. The hardest death to accept is when someone dies in custody.
Moira [in response to evidence that their brother had refused medical treatment:] I don’t accept it. Even if he was yelling at the staff, they should have been checking on him. I think he was neglected and look at all the years he did in prison. They’re still human when they go into the prison. They’ve still got to treat them as humans. We’re in the 2000s now. If he had died on the outside, I could get on with my life and accept it — but I can’t accept it.
Together: Having the coronial inquiry so long after [our] brother’s death caused grief for the family all over again. The family doesn’t get a say. We have to sit back and watch it from the outside.
[*] Megan Hoey is a Perth lawyer.
Martin Flynn teaches law at University of Western Australia.
Thanks to all who contributed to this Brief including Marc Newhouse (WA Deaths In Custody Watch Committee): MH and MF.