What progress in 20 years?

In April, it will be two decades since the final report of the Royal Commission into Aboriginal Deaths in Custody was released. Eleven volumes, 5036 pages of evidence, 339 recommendations…but 20 years on, Indigenous Australians are being locked up at a rate more than 13 times that of non-Indigenous Australians. The problems are still with us, says Keith McEwan.

Two decades on, what lessons?

The Royal Commission into Aboriginal Deaths in Custody was established in 1987 in response to a growing public concern that deaths in custody were too common and public explanations too evasive to discount the possibility that foul play was a factor in many of them1 .

In April 1991 a National Report was published after a nation-wide investigation examined the deaths of 99 Aboriginal and Torres Strait Islander people who died in custody between 1 January 1980 and 31 May 19892 .

Six Commissioners were appointed for this mammoth task which was to take four years at an estimated cost $40 million.

The first Commissioner was J H  Muirhead QC who headed the Royal Commission  for its first 1 1/2 years. He issued an interim report in 19883 .

Commissioner The Honourable JH Wootten AC QC compiled a Regional Report of Inquiry in NSW, Victoria and Tasmania, in March 19914 .

Commissioner PL Dodson compiled a Regional Report of Inquiry into Underlying Issues in Western Australia in March 19915 .

Commissioner LF Wyvill QC issued a Regional Report of Inquiry in Queensland in March 19916 .

Commissioner The Honourable DJ  O`Dea  compiled a Regional Report of Inquiry into Individual Deaths in Custody in Western Australia in March 19917 .

The National Report of the Royal Commission was issued by Commissioner Elliott Johnston QC in April 19918 .

In a telling summary of all five volumes of the National Report, based on an extraordinary range of submissions received and consultations held, and drawing on the findings of the Regional Reports, a profile of those who died in custody reveals that 43 of the 99 Aboriginals  who died in custody experienced childhood separation from their natural families through intervention by State authorities9 .

Space does not permit detailing the life stories of the 99 prisoners covered by the Inquiry.  However the Report of the Inquiry into the life and death of Malcolm Charles Smith by Commissioner Wootten in April 1989 is typical.  

It is understood that such stark revelations were the catalyst for the subsequent Inquiry into Aboriginal children being forcibly removed from their families and communities. (See “Bringing Them Home” April 1997.)

Of significance, the work of the Commission has established that Aboriginal people in custody do not die at a greater rate than non-Aboriginal people in custody but Aboriginal people are over- represented in custody. In August 1988, the rate of over-representation was 29 times10 .

Such happenings on a state-wide scale led the Commissioners to recommend that imprisonment should be utilized only as a sanction of last resort11 .

For those who are unable to access and read over 5,036 pages in the 11 volumes of this unique study of Aboriginal life, to gain an understanding of the underlying causes why indigenous Australians are being incarcerated in our prisons on a disproportional scale, a study of the 339 Recommendations is a useful guide12 .

Now, at the start of 2011and the 20th anniversary of the report, the current imprisonment rate of Aborigines is cause for great ongoing concern as Aboriginal people are 13 times more likely to be locked up than other Australians. Although comprising 2% of the total population, 25% of  prisoners in Australia are indigenous. In the Northern Territory 83% of the prison population are indigenous. In Western Australia they comprise 41% of the prison population of that state.

It behoves all of us who are concerned about the plight of our fellow Australians, to study the findings of the Royal Commission into Aboriginal Deaths in Custody as this is not only past history but, tragically, a present-day harsh reality for many of Australia`s First People. 

Although it is estimated that $400 million has been spent on the implementation of the recommendations of the Royal Commission, many police and prison officers found to be at fault in performing their duties have never faced criminal charges. The rare charge of manslaughter against Sergeant Chris Hurley, the officer-in-charge at the Palm Island police station, for the death of Mulrunji Doomadgee, failed when he was acquitted by a jury in Townsville in June 2007.

However, criminologist David Biles states that Hurley at some stage may face civil charges, where the standard of proof would be on the balance of probability rather than beyond reasonable doubt, as required in criminal cases13 .  In general, the civil option could be vital for a just outcome in similar cases in future…especially while evidence-gathering for coroners and courts is undertaken by colleagues of those who may be charged, possibly resulting in evidence being selectively overlooked or left open to a distorted interpretation.

 Keith McEwan,  December 2010

* Keith McEwan is a member of CLA and a longtime advocate for Indigenous Australians and many other causes for a more just society.