Indigenous Law Bulletin
By Michael Dodson.
13 years ago I began working as counsel assisting the Royal Commission into Aboriginal Deaths in Custody (‘the RCIADIC’) and left a few months before the final report of the Commission’s investigations (‘the Report’) was released. I, like many others, had very high hopes that the Report and its recommendations would make a difference and thought, with what now seems the utmost naivety, that things would change for the better. I figured it might at least in some small way help to relieve some of the immense pain suffered by the families of the dead.
It is very depressing to look back after 10 years and see that things in fact have gotten worse. The situation of Indigenous peoples is shamefully bleak. Incarceration rates have gone through the roof in most jurisdictions. Indigenous peoples’ exposure to the criminal and juvenile justice systems and to prisons is a national disgrace.
The administration of the criminal justice and corrections systems have gone on their merry way as if the RCIADIC did not happen and there had been no report. As if there had been no recommendations. It appears to be business as usual including the inevitable deaths, the hurt and the misery.
Governments seem to have ignored the Report out of existence. Why is it that as a nation we seem to forget so readily? The wheel, in the form of the recommendations, is there before us to carry us where we should be going. Why is it that we cannot or refuse to see it? Why do we insist on reinventing it? We must be the slowest learners on the planet!
What we have seen in the past 10 years is government action that is the very antithesis of the recommendations of the RCIADIC. We have had mandatory sentencing and compulsory jailing legislation introduced in some jurisdictions with the resultant boost in incarceration rates of Indigenous peoples. The ‘trifecta’ persists in police arrests. Arrest is still preferred to summons or caution of juveniles, alternatives are rare and the fundamental circumstances that lay at the heart of the investigations of the Royal Commission are as resilient as ever. We have even had the NT Government legislate away the very existence of recommendation 168 dealing with prison transfers.
Whatever happened to the principle of imprisonment as last resort and the 29 recommendations specifically directed at this issue? We are told in this edition of the ILB that Victoria now has the dubious distinction of having arrest rate statistics that rank Indigenous adult men in that state amongst the most arrested group of people in the developed world.
In 1996 when I was the Aboriginal & Torres Strait Islander Social Justice Commissioner, a position established partly as a result of the RCIADIC, I launched the report Indigenous Deaths in Custody 1989-1996. That was the halfway mark of where we are at today. In the year before that report, 22 Aboriginal people died in custody in Australia. That report found that approximately 8 recommendations were breached in each of the deaths examined over the relevant period. I sometimes wonder if the situation has changed today. Statistically, you would have to say no. The point is that the recommendations were as relevant then as they were when first released and still are today. The report also demonstrated clearly that some governments were not being entirely honest in claiming that they were implementing various recommendations. At least we had reports then – they don’t report these days.
The RCIADIC recommendations overwhelmingly point to ways in which deaths in custody can become a very rare occurrence – for all who are incarcerated, black and white. Since the release of the RCIADIC Report, governments seem unable to grasp the fundamental importance of the prevention of deaths in custody by the effective implementation of the recommendations. Put simply, had these recommendations been effectively implemented by governments over the past 10 years we would not be faced with these horrible statistics of death that confront us still.
There are some things, however, that offer a glimmer of hope in the gloom of all the despair. The state Aboriginal Justice Advisory Committees are still there maintaining the fight, trying to make a difference, trying to get governments and administrators to listen and to hear and to take notice. In the context of listening it is very important for governments not only to be aware of community initiatives but also to support them financially and in other ways. Too often great community initiatives that might otherwise have been huge successes flounder and eventually collapse through lack of government support.
Night patrols are an excellent example of a community initiative that could flourish with adequate support from government and its agencies such as the police services. These patrols assist in diverting people from the attention of the police that could lead to them being taken into custody, thus reducing the chances of custodial deaths occurring. Our people know initiatives of this kind work – why then do politicians and bureaucrats continue to insist on more trials, more tests and more pilot programmes? It’s nothing short of revisiting the invention of the wheel. Why don’t they join in partnership with us and get on with it?
Another positive development is the Aboriginal Interpreter Service in the NT, which is an apparent runaway success. Nevertheless there has been a long delay in its implementation and the AIS definitely needs a longer term financial and moral commitment of support from the Commonwealth and NT Governments than presently offered. It should also be noted that the need for such interpreter services in other parts of the country remains to be satisfied.
The National Indigenous Legal Studies Curriculum, implementing recommendation 212, has also been a great success and thanks to the efforts of the Human Rights and Equal Opportunity Commission and Tranby College appears to be headed for expansion, already producing in the vicinity of 130 graduates.
I have focused on the area of criminal justice and corrections in this short paper. Space does not permit me to look at the broader underlying issues and recommendations flowing from them, but the story of ineffectual implementation haunts most of those recommendations as well.
Finally, I think what most distresses me is that governments do not appear to care that things have got worse. They don’t seem to be bothered that people die in prisons. They seem heartless and unresponsive to the suffering of family members as a result of these deaths, and seem to think that if they hush them up they will all go away. Well, it will never go away until and unless all the recommendations are revisited and given full and effective implementation. This shameful neglect must be stopped. Then and only then there might be some peace for the dead.
Dr Michael Dodson is Chair of the Australian Institute of Aboriginal and Torres Strait Islander Studies and counsel assisting the Royal Commission Into Aboriginal Deaths in Custody in the Northern Territory and Western Australia.