Echo Issue Outline: copyright Echo Education Services
First published in The Echo news digest and newspaper sources index.
Issue outline by J M McInerney
Have Australian state and federal governments done sufficient to reduce the number of Aboriginal deaths in custody?
On November 24, 1996, the Human Rights and Equal Opportunities Commission released a report on Aboriginal deaths in custody.
The report found that between May 1988, and May 1995, 79 Aboriginal Australians had died in custody. Aboriginal imprisonment rates rose by 61% compared with a rise of 38% for non-Aboriginal Australians. It also found that Aboriginal Australians are 17.3 times more likely to be arrested and 16.5 times more likely to die in custody than other members of the community.
The report has led to accusations that insufficient has been done by state and federal governments to reduce the number of Aboriginal deaths in custody. These accusations have been denied by a number of the governments concerned.
Background
The recent report released by the Human Rights and Equal Opportunities Commission on Aboriginal deaths in custody comes five years after the Muirhead Royal Commission released its final report on such deaths.
The Royal Commission into Black Deaths in Custody was conducted by James Muirhead It ran for three and a half years, between 1987 and 1991. It cost $30 million and made 339 recommendations.
Included among these recommendations was a call for the reform of the criminal justice system. The Royal Commission recommended that the rate of incarceration of Aboriginal Australians be reduced. As a step toward this, it recommended that public drunkenness be decriminalised. In addition, the Royal Commission called for the implementation of strategies to tackle the socio-economic disadvantages that cause many Aborigines to come in frequent contact with the police. Since 1991, federal, state and territory governments have committed $400 million to the implementation of the recommendations of the Muirhead Royal Commission.
The recently released Human Rights and Equal Opportunities Commission's report on black deaths in custody has found that:
* 79 Aboriginal Australians died in custody between May, 1988 and May, 1995;
* if deaths resulting from police pursuits are included the number of Aboriginal fatalities is 96;
* 22 Aborigines died in custody and in police pursuits last year, the highest number since 1987;
* New South Wales was reported as having the worst record, with 29 deaths since June 1989; Queensland follows with 25; then Western Australia with 15; Victoria had six Aboriginal deaths in custody, but the second highest percentage increase, after New South Wales;
* suicide, mainly by hanging, the effects of drugs and alcohol, and injuries, are the causes of most deaths;
* an average of 8.5 royal commission recommendations were breached in every Aboriginal death where an inquest had been completed;
* men between 15 and 40 who are serving sentences of less than six months represent most deaths;
* incarceration of Aboriginal Australians increased by 61% between 1988 and 1995, while incarceration of non-indigenous people increased by only 38%;
* Aborigines are 17.3 times more likely than non-Aborigines to be arrested and 16.5 times more likely to die in custody. The latter statistic reflects the disproportionately high number of Aborigines in custody, as indigenous prisoners are 1.26 times more likely to die in prison than non-indigenous prisoners.
This report was prepared by the office of ATSIC's Social Justice Commissioner, Mr Mick Dodson. ATSIC, the Aboriginal and Torres Strait Islander Commission, is responsible for much of the provision of services to Aboriginal Australians. It is elected by Aborigines.
Arguments supporting the adequacy of government attempts to reduce the number of black deaths in custody
The principal group supporting the actions taken to reduce the number of black deaths in custody is composed of the different state governments. Each has been anxious to stress that it has made every effort to implement the recommendations of the Muirhead Royal Commission. The states have defended their records on a number of grounds.
Firstly, the states have disputed the figures presented in the Human Rights and Equal Opportunities Commission report. One of the criticisms made is that the statistics are not sufficiently current.
Western Australia's Minister Assisting the Justice Minister, Mr Kevin Minson, has stated, `I wish these people [in eastern Australia] would start working with us. They are going off half-cocked. There is no point in using figures for 1993. This is the end of 1996! ... I don't really think they want to get a positive answer.'
Victoria has similarly claimed that the most recent figures indicate that the state has done well in reducing the number of Aboriginal deaths in custody.
The Victorian Aboriginal Affairs Minister, Ms Ann Henderson, has stated that she is delighted that Victoria has not followed the national trend of increasing numbers of black deaths in custody. Ms Henderson has stressed the importance of looking at Victoria's most recent record. Ms Henderson has noted that there have been no Aboriginal deaths in custody in Victoria in the last 18 months.
Ms Henderson has also claimed that the number of young Aboriginals in jail in Victoria has fallen.
The New South Wales Minister for Corrective Services, Mr Debus, has also accused the report's authors of being `out of date'. He has claimed that the report's statement that there are no Aboriginal welfare officers in New South Wales prisons is currently inaccurate. Mr Debus has said that there are now eight Aboriginal welfare officers working in New South Wales prisons with the highest indigenous populations.
A further argument claims that the significance of figures supposedly demonstrating a deteriorating situation re Aboriginal deaths in jail actually depends on interpretation. According to this line of argument, though too many Aboriginals are still dying, if fatality rates are looked at from a different perspective then some degree of improvement can be seen.
The Human Rights and Equal Opportunities Commission report has claimed that Aboriginal Western Australians are 20.5 times more likely to die in custody than other Western Australians. However, Mr Minson has claimed that between 1980 and 1988, Aborigines accounted for 42 per cent of Western Australia's deaths in custody. Mr Minson further claims, over the last six years, this figure has dropped to 16 per cent.
Mr Minson asserts, `We have reached the point where you're at twice the risk of dying in custody if you're a non-Aboriginal [prisoner] than if you are an Aboriginal [prisoner].'
Similarly, the Human Rights and Equal Opportunities Commission report condemns both Victoria and New South Wales for having twice the number of Aboriginal deaths in custody over the period monitored by the Human Rights Commission than occurred during the period of the Muirhead Royal Commission.
Yet, Victoria has defended its performance in the manner noted above, by emphasising that there have been no deaths in the last 18 months and further by noting that the number of young Aboriginals in Victorian jails has declined.
Defenders of government efforts have also noted that there has been a dramatic decline in the number of Aboriginals dying in police lock-ups as opposed to jails.
It has also been claimed that there is a limit to how safe it is possible to make any prison. For example, it has been noted, that a Victorian coroner found in relation to one Aboriginal jail suicide, `an investigation had led to the removal of hanging points ... but it would have been inhumane and unworkable to take this process too far.'
It has also been claimed that it is not possible simply to refrain from imprisoning Aboriginals who commit certain sorts of offence.
The director-general of Queensland's Corrective Services Commission, Mr Keith Hamburger, has stated that most Aborigines jailed in Queensland have committed crimes of violence against other Aboriginal people, often because of alcohol abuse. Mr Hamburger claims that most Aboriginal people want to see `violent trouble-makers' in their communities jailed.
Mr Hamburger argues that there is an unfortunate conflict between the need to maintain law and order and the desire to keep Aboriginal offenders out of jail. `I think the police and we are between a rock and a hard place over this issue,' Mr Hamburger has claimed.
There are also those, not necessarily defenders of current governments' actions, who stress the complexity of the problem and the difficulty of dealing with it. Those who hold this point of view argue that reducing the number of Aboriginal people in jail involves making large scale improvements in education and employment prospects for Aboriginal people. It also involves addressing problems of family breakdown within Aboriginal communities.
Finally, there have been those, such as the late Fred Hollows, who have argued that the question of Aboriginal deaths in custody has as much to do with the generally poor state of health within Aboriginal communities as it has with any other factor.
Arguments disputing the adequacy of government attempts to reduce the number of black deaths in custody
There have been two major sources of criticism of attempts to reduce the number of Aboriginal deaths in custody. One set of complaints has come from Aboriginal spokespeople and others concerned with Aboriginal welfare. The other set of complaints have come specifically from the current federal government. (The Liberal/National Party coalition currently in power was not in government when the Muirhead Royal Commission occurred nor over the period when attempts were made to implement the Commission's recommendations. The current federal government is thus able to criticise aspects of what has so far been done without having to fear being implicated in the criticism.)
The primary criticism of government attempts to reduce the number of black deaths in custody is simply that they have failed to do that.. According to this line of argument, if current figures indicate that the number of Aboriginal Australians dying while in custody is as great or greater today than it was at the time of the Muirhead Royal Commission, then attempts to reduce the number of deaths have been inadequate.
It has also been claimed that many of the key recommendations from the Muirhead Royal Commission have not been implemented.
One of the key recommendations of the Muirhead Royal Commission was that ways be found to reduce the number of Aboriginal people in prison. According to this line of argument, one of the major reasons why such a disproportionately high number of Aboriginal Australians dies in custody is that Aborigines are imprisoned at such a high rate.
The Royal Commission argued that public drunkenness be decriminalised. Being drunk in public is one of the major offences for which Aboriginal people are imprisoned. It was claimed that if public drunkenness ceased to be an offence then the number of Aboriginal people in prison would fall.
Critics of attempts to implement the Royal Commission recommendations note that public drunkenness is still an offence in Queensland, Victoria and Tasmania. Mr Dodson observed that over the period from May 1988, to May 1995, `a third of the [Aboriginal] people who died in police cells were arrested for drunkenness. What's more, many were not intoxicated, but in a critical medical condition.'
Critics of attempts to implement the recommendations also note that even in those states and territories where public drunkenness is not an offence then the police merely use substitute charges, such as drinking in public, in order to arrest Aboriginal people.
Additionally, it is claimed, minor offences, such as offensive language, are combined with charges of resisting arrest and assaulting police to produce a combined set of charges for which the accused can then be imprisoned. It is argued that minor offences should not be allowed to escalate in this manner.
Critics have claimed that the Royal Commission recommendation that imprisonment be an option of `last resort' has simply not been adhered to.
Mr Dodson's report refers to a young Aboriginal man who killed himself in jail after allegedly breaking into a car. It also refers to a mother of three who hanged herself within twenty-four hours of being sentenced to one month's jail for a cannabis offence.
Commentator, Rosemary Neill, writing in The Australian, contends, `Questions must be asked about why such people were behind bars, when the royal commission advocated the use of arrest and of imprisonment as a last resort.'
The overall statistics indicate that Aboriginal imprisonment rates in the period from 1988 to 1995 rose by 61% compared to 38% for the general community. Critics claim that these figures clearly indicate that attempts to keep Aboriginal people out of jail have failed.
The chairperson of ATSIC, Ms Lois O'Donoghue, has stated, `It's clear that the circumstances that put our people in jail and keep them there have not significantly improved.'
Another of the Royal Commission recommendations was that there be tighter surveillance of Aboriginals in prison to ensure their safety and, in particular, to guard against suicide attempts. Mr Mick Dodson has claimed that surveillance procedures have not been generally improved. He cites a case where an Aboriginal man was left unattended all night and was dead in the morning. Mr Dodson has claimed, `someone's (a prisoner's) got rigor mortis in the morning when they go to wake them up. What sort of surveillance is that? What sort of value for $400 million is that? ... It's a disgrace.'
According to this line of argument, if surveillance were adequate then the number of Aboriginal prisons who die in prison, especially as a result of suicide, should be declining.
The overall complaint is that the recommendations of the Muirhead Royal Commission have not been adequately implemented. Critics note that the report of ASTIC social justice commissioner, Mr Mick Dodson, indicates that for each of the Aboriginal deaths for which an inquest was held there were an average of 8.5 Royal Commission recommendations beached or not followed.
The criticisms raised by the federal government include the suggestion that part of the problem has been a lack of co-ordination between state and federal governments as they have attempted to implement the recommendations of the Muirhead Royal Commission.
`We believe that under the previous administration there was a lack of co-ordination between the Commonwealth and the States and Territories regarding the implementation of the recommendations of the royal commission,' Mr Herron has claimed.
Mr Herron has also criticised, by implication, the amount of money that has been spent to so little apparent effect. He has also suggested that ATSIC's distribution of federal funding may not always have been appropriate.
Further implications
Mr Mick Dodson, in challenging the use made of the $400 million spent on implementing the Muirhead Royal Commission recommendations, may have inadvertently increased the likelihood that such monies will be less under Aboriginal control.
Some days after Mr Dodson made his criticisms of the ineffective manner in which it appeared the $400 million had been spent, it was revealed that more than a third of the money was spent under the direction of the Aboriginal and Torres Strait Islander Commission (ATSIC
There is no suggestion that the monies spent by ATSIC were misspent, indeed, they appear to have been spent implementing a number of the recommendations of the Muirhead Royal Commission, however, Mr Dodson's claims that the continuing high level of Aboriginal deaths in custody indicates the money has not been well used can now be turned against ATSIC.
The federal Minister for Aboriginal Affairs has been quick to echo Mr Dodson's queries.
`Since becoming the minister eight months ago,' Mr Herron has stated, ` I have been constantly asking the same questions: where has the $400 million gone, why has that level of expenditure failed to make even a dent in this terrible problem and why are there still so many indigenous people dying in custody?'
Ten days prior to the release of the Human Rights and Equal Opportunities Commission report on black deaths in custody, Mr John Herron indicated that the power of the Aboriginal and Torres Strait Islander Commission to distribute funds would probably be reduced.
Mr Herron declared attempts to date to reduce the number of Aboriginal deaths in custody had failed. He appeared to have at least some prior knowledge of the content of the Human Rights and Equal Opportunities Commission report. The newspaper article in which his views were reported, on November 15, suggested that the report would indicate that Aborigines were some 17 times more likely to die in custody than non-Aboriginal Australians. In the event, the published figure was that Aborigines were 16.5 times more likely to die in custody.
Mr Herron's partial response to this apparent failure to address adequately Aboriginal deaths in custody was to suggest that money spent on the problem should no longer be directed through ATSIC. Mr Herron has indicated that he believes that ATSIC has paid too little attention to the situation of Aboriginals living in remote communities. Mr Herron has claimed that ATSIC is `city-dominated'. Others in the federal government have suggest that large scale government expenditure may not be the answer to the problem at all.
Mr Dodson has argued on the other hand, that whatever else is done there should not be a reduction in the amount of money being spent on addressing the problem. Other Aboriginal spokespeople have suggested that while there may be scope for a re-examination of some of the key areas to which the monies have so far been allocated, the extent of Aboriginal control in the matter should not be reduced.
Mr Dodson has argued for
* urgent action to decriminalise public drunkenness in all states;
* the repeal of the Summary Offences Act in all states, making imprisonment less likely for minor offences;
* a review of prison health services;
* greater power being given to the ombudsman in death in custody matters and
* the development of protocols for coronial inquiries into such cases.
It remains to be seen what will occur as a result of the Human Rights and Equal Opportunities Commission
report. The federal Minister for Aboriginal Affairs, Mr Herron had already indicated, prior to the release of the report, that he would be having a summit with indigenous leaders on the 17th and 18th of February, 1997. It will be interesting to note what recommendations come out of this summit.
Sources
The Age
15/11/96 page 2 news report by Ben Mitchell, `Minister says black jail death programs a failure'
25/11/96 page 1 news report by Duncan Graham, `Shock report on black deaths'
26/11/96 page 2 news report by Louise Martin, Farah Farouque and Ben Mitchell, `Black deaths up, inaction blamed'
26/11/96 page 2 news report, `The tragedy of six people in Victoria'
26/11/96 page 14 editorial, `A national disgrace'
30/11/96 page 22 analysis by Ben Mitchell, `Found: the missing millions in funds'
30/11/96 page 22 analysis by Duncan Graham, `Beyond the fringe'
30/11/96 page 23 analysis by Warwick McFadyen, `Searching for more solid rock'
The Australian
26/11/96 page 1 news report by Rosemary Neill, `Blacks in jail: the toll keeps rising'
26/11/.96 page 2 news report by Amanda Meade, Georgina Windsor and Andrew Ramsey, ``I promise action, not words, says Herron'
26/11/96 page 2 comment by Rosemary Neill, ``The crucial question: Why are so many in jail?' 26/11/96 page 2 news report by Maria Ceresa, `Suicide in a damp, dark cell'
27/11/96 page 14 editorial, `Custody rates the core black problem'
30/11/96 page 1 news report by Georgina Windsor, `Deaths in custody cash spent on land'
30/11/96 page 4 comment by James Muirhead, `It's time to turn talk into action'
30/11/96 page 4 news report by David McKenzie, `Anderson seeks black aid review'
30/11/96 page 4 news report by Amanda Meade, `Killer's crusade to cut jail suicides'
30/11/96 page 22 analysis by Rosemary Neill, `Why blacks still die in custody'
The Herald Sun
26/11/96 page 7 news report by Kim Sweetman and John Masanauskas, `Stun gun call on Aborigines'
What they said ...
`Where has the $400 million gone? Where the bloody hell is it? What did you do with it; why are our people still dying?'
ATSIC Commissioner, Mr Mick Dodson
`We have reached the point where you're at twice the risk of dying in custody if you're a non-Aboriginal [prisoner] than if you are an Aboriginal [prisoner]'
Western Australia's Minister Assisting the Justice Minister, Mr Kevin Minson