Kooris and the Legal System: Review of the Royal Commission Inquiry

An End of Decade View of the Royal Commission Recommendations into Aboriginal Deaths in Custody April 1991/April 2001  
In late 1987 the Hawke Government finally relented and called for the Royal Commission into Aboriginal Deaths in Custody. 124 deaths were presented to the Commissioners but they only investigated 99 which occurred between 1980 – 1989. Not one police, custodial or jail officer was found guilty of any substantial wrongdoing.

During April 1991, the Commissioners handed down their collective wisdom in the form of 339 Recommendations. Roughly half of these dealt with the so-called justice system for Indigenous people. These Recommendations were mainly intended to keep Aboriginal people out of jail and stressed the need for prisons as a last resort. They were aimed at bringing about change relating to the involvement of Aboriginal and Torres Strait Islanders with the police, courts and jails. With what success?

Tragically, none at all. Indigenous involvement with the white justice system has alarmingly increased in all areas. Black incarceration has risen dramatically. Not only for our males and females, but also for our youths. Deaths in custody, whether lock-up, jail or juvenile centres has more than doubled since May ’89.   

So what happened to the Recommendations?   

Government at all levels, whether Liberal or Labor, continued with their frantic posturings for Law and Order, each pushing the bidding higher and higher in their futile attempts to obtain a crime-free society. Unfortunately, they did not address and continue to refuse to address the real issues of poverty, homelessness, the legislation and legalisation of all drugs, unemployment, etc. Social Justice has only ever been given lip service with no real workable policies being put into place Australia-wide.  

The police have been given greater and greater powers, especially during the Games to ‘clean the streets’ of what they, the police, saw as the civil undesirables. Indigenous peoples, of course, were a fair whack of those. The draconian Games laws are still with us.   

It is widely known, and accepted, that the police use their powers very arbitrarily and very, very racially. It must be remembered that all the police forces of this country have been required to enforce Laws on the Aborigines that denied us any basic human rights and civil protection. There is much evidence that there are laws that are generally more exclusively used against Aborigines; the restricted Summary Offences Act, entailing the ‘trifecta’ in offensive behaviour, resist police and assault police, is but one example.

Added to these was the introduction of the Street Laws, the continued Rambo assaults on Redfern and other Communities, a greater acceptance and use by police for Zero Tolerance policing aimed at ethnic ‘gangs’ and other groups, including Indigenous, and on their complete failure in the Drug Wars sweeping across Australia. Early this month Premier Carr was pushing that it be an offence to be seen to enter or leave a police- identified ‘drug house’. The police are the final arbiters and YOU must prove your innocence. Guilt is assumed and you will be arrested regardless of the reason you had a need to visit this place. It could even be your own home!

Any wonder the jails are full!

Let’s look at some numbers, and I don’t mean those ‘pretty good numbers’ that some politicians continue to rave about. On Nov. 1 last year the Human Rights and Equal Opportunity Commission stated that on a daily basis some 20,000 inmates, men and women, ‘lived’ in the country’s jails. Some 3300 odd are in private jails whilst some 4000 inmates are Indigenous. The Commission believed, correctly, that not enough attention was being given to the operational conditions of the jails. Conditions such as the impacts of continued lock-downs or lock-ins; segregation issues; GOD (Good Order, Discipline) transfers; health care; the treatment of ‘special status’ inmates; the total lack of real rehabilitation programs that work and the absolute dearth of properly funded pre- and post-release programmes.

This is more than ably proved by the recidivism rates of between 50% to 60% that are common throughout Australia.

From 1988/1998 Australia’s inmate numbers overall increased some 62% from 12 321 to 19 906. This is now increased to 20,769 average per day for the October/December quarter, 2000. Somewhat better than the USA numbers of 2,000,000 plus. The increase in New South Wales jails rose by 15 percent between 1996 and 2000. Current jail figures, as of May 2000 were 7754. This includes at least 516 women held in custody also. Roughly 1400 of these inmates would be Aboriginal or Torres Strait Islanders. An Indigenous person is at least 15 times more likely to be jailed than a non-Indigenous person. Nationally, according to the ABS, as of December 1, 2000, there were 4003 Indigenous inmates, some 19% of the jail population. We are about 3.4% of the national population. In the Northern Territory Indigenous inmates account for 63% of all inmates whilst in Western Australia approximately some 30% of that State’s Aboriginal population are in jail. This is the highest rate in Australia. The highest ratios of Indigenous to non-Indigenous incarceration rates are for Western Australia and South Australia with rates of 20 and 17 times respectively.

71% of inmates in New South Wales jails are Australian born, 16% are born overseas in a NESB country, whilst 6% come from English speaking countries.

About 85% of males and 90% of females are jailed for an alcohol or drug related crime, and at least one third of males and two thirds of females in jail proved to be Hep C positive.

Mental illness for inmates is becoming a major problem within the New South Wales jail system and the jail systems are not geared up to replace the mental hospitals that have been closed by previous and current New South Wales Governments. It is believed about one-third of males and at least half of all female inmates are, or have been, suffering from some form of mental illness, while about 13 percent of all inmates are identified as having some form of mental disability.

Most studies show that, generally, Government welfare payments, of whatever type, are the sole income of the majority of inmates prior to conviction. 50% of those charged with assaults stated that welfare payments are their sole source of income. 80% of women were unemployed at their time of arrest. Poverty, unemployment, homelessness, among other Social Justice issues, allow for higher and higher jailing rates.

Whilst the police and their Masters in Governments claim that they are not complying with Zero Policing and that they are not racist, the figures speak differently. As Chris Cunneen, Director, Sydney University’s Institute of Criminology has shown, the police are going to do what they do best, and that is to arrest people. The 3 Year Plan to reduce lock-up rates was absolutely undermined by the use of offensive language and behaviour charges, along the with an increased use of ‘intimidate police’ and also by the continued harsh treatment of Aboriginal juveniles.

Search and remove powers were maximally distorted in those areas of high Aboriginal populations. In Bourke, with a high Aboriginal population, police used their powers at a rate 492 times the State average. Aborigines were searched at 30 times the State rate. In the police areas of Walgett, Moree and Broken Hill, police use their ‘move on’ powers 321 times, 173 times, and 145 times the State rate respectively. We do not need to ask at whom this over-policing is directed at.

Complaints against police by Aborigines of assault, abuse and racist remarks, in conjunction with a greater use of inappropriate and unprofessional behaviour when dealing with Aborigines whilst in custody or during arrest by police, has increased substantially. Complaints include illegal use of capsicum spray, handcuffs and the drawing of their pistols to intimidate Aborigines, especially Aboriginal youth. Whilst Police Commander Doug Graham believes that things had improved, again the statistics belie this.

In 10 police Local Area Commands with high Indigenous populations, Aboriginal males were refused bail at a rate of 12 times higher than non-Aborigines. Aboriginal females were locked up at a rate 40 times greater than non- Aboriginal females for intoxication. Detention for outstanding warrants was 14.4 times greater for Aboriginal males and 16.5 times greater for Aboriginal females than non-Aboriginal males and females, and only 1 in 10 aboriginal juveniles searched was found with a weapon. Yeah, right Doug.

During April 2001 the NSW Bureau of Crime Statistics and Research revealed that by eliminating jail terms of six months or less, (a Carr pre-election promise at a previous election), would reduce the Indigenous inmate population by a staggering 54%, and the general jail population by 46%.

This would negate the building of any new jails, especially the 250-300 bed Women’s jail at Windsor. A jail that was recommended by the Parliamentary Enquiry that it should not be built. This would save at least $42 million that could be far better spent on introducing jail programmes that really work. Current costs of jailing people are, for Australia, $1.065 billion in 1997-98. This would have risen since due to the over-the-top enthusiasms of Governments everywhere to build more and more jails. This has cost each adult Australian, at that time, about $76 per annum.

For NSW, for the same period, the cost was $84.45 per annum. Whilst it can be clearly and factually shown that all Governments have totally and criminally ignored the Recommendations of the Aboriginal Deaths in Custody Royal Commission, they all, without exception, attempt to apologise their collective failures away. NSW Attorney General Bob Debus acknowledges that the number of Indigenous inmates is ‘unacceptably high’ and his Government believed ‘new approaches’ were needed. One new approach was to legislate in April last year that Judges/Magistrates would have to give written reasons why when handing down sentences of six months or more.

The legislation has not been active long enough to assess its outcomes, but anecdotally it has been argued that the Courts are handing down a greater level of sentences of 6 1/2 months or more. Lets face it, the Courts are busy and so is everyone attached to them. We firstly must await the statistics, and the victims of this attempt to lower jail numbers.

The number of people killed in police operations has risen dramatically during the year 2000. NSW State Coroner, John Abernathy, criticised the Government for failing to implement the Recommendations of the Royal Commission, and the other relevant and related Recommendations, to prevent deaths in custody, and especially those who are killed in police high-speed car chases. For 2000, 19 people died in police or jail custody. Another 20 died as a result of high-speed car chases or by being shot by, sometimes, alcohol or drug affected police officers.

The relevant jail and police Recommendations were all accepted and allegedly implemented in 1993. Why then the ongoing concern of Coroners and many others to the increasing number of hanging deaths? The NSW Coroners during 2000 investigated the following deaths in custody cases: Fourteen inmates/ detainees hung themselves during 2000. Four were found to have died of drug overdoses, two were murdered in jail whilst two were shot by police, three died of so-called natural causes, one from a self-inflected gunshot wound, one whom took poison, whilst an unbelievable nine died from injuries received in high speed car chases. How many now live as cripples is apparently not counted.

For Indigenous youth the situation is very bad and is further deteriorating.

67% of the Indigenous deaths that occurred during police operations involved people under the age of 20, compared with 11% for non-Indigenous deaths. The last Census showed that some 60% of Indigenous people were under the age of 25; some 50% were 18 and under. This Country, and we Indigenous people are sitting on a juvenile time bomb that will explode in all our faces, unless some sensible measures are taken, rather than the continuation of the police harassment and the racism of the total white justice system that is the daily fare of Indigenous youth.

Indigenous youth, nationally, are 14 times more likely to be held in a Juvenile Justice Centre than non-Indigenous youths, in W.A. the statistic is 30 times more, whilst in Qld. The statistic is 20 times the rate.

In the ACT there’s been a call made for urgent action on ‘black crime’. What about white, brown, yellow, or whatever coloured crime? Labor leader John Stanhope bemoaned that Canberra’s Indigenous offender rate was the highest in the nation. A Report stated that the Indigenous offender rate in 1999/2000 was 3 876 per 100,000 adults. 62% of the ACT Juvenile Justice Centre, Quamby, were identified as being Indigenous. I would argue that this statistic would be fairly representational throughout Australia.

Their answer? More and bigger and better and harder Laws for the police. More Maximum Security jails for inmates to serve longer and longer sentences with no chance of rehabilitation. Still more treading of the Cowards Path, much loved by the Politicians, the Right Fundamentalists, the Verbal Vomit, among others.


I have taken these statistics from several sources and they include the Human Rights and Equal Opportunity Commission, CRC Justice Support Newsletter, (thank you Zanny), April/May 2001, Conflict, Politics and Crime: Aboriginal Communities and the Police, a new book by Chris Cunneen that I recommend highly, the Australian Institute of Criminology, ACT, the NSW Bureau of Crime Statistics and Research and the ABS as well as several media reports.

Written by Ray Jackson of the Indigenous Social Justice Association for Stop the Womens Jail Anti-Prisons Resource Kit. Published June 2001 by Justice Action Ph: (02) 9660-9111

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