Deaths in custody

The Royal Commission into Aboriginal Deaths in Custody was established in 1987. It reported to the Federal Parliament in 1991. From the early 1980s there had been a number of deaths in police and prison custody that caused concern about the way Aboriginal people were treated by police and while in prison.

A key finding of the Royal Commission was that the high number of Aboriginal deaths in custody was directly related to the over-representation of Aboriginal people in custody. That is, they died at the same rate as non-Aboriginal prisoners but because there were so many Aboriginal people in custody, the number was higher. However, in investigating the 99 deaths that fell within the terms of reference of the Royal Commission, failure by custodial authorities to exercise a proper duty of care was revealed. Commissioner Wootten in his report on New South Wales, Victoria and Tasmania noted that every one of the 18 deaths that had been investigated in those jurisdictions was ‘potentially avoidable and in a more enlightened and efficient system… might not have occurred’. Importantly, he also noted that many of the people who had died in custody should not or need not have been there.

Many of the recommendations also specifically addressed issues related to the way that Aboriginal people were dealt with by police. It found that many Aboriginal people were in custody for minor offences – such as ‘public order offences’ like swearing and being drunk – that non-Aboriginal people would not be held in police custody for. It found that a higher number of Aboriginal people were refused bail while waiting for their court appearance – and a number of deaths had occurred while Aboriginal and Torres Strait Islander people were on remand. The Royal Commission also considered that Aboriginal people were given harsher sentences than non-Aboriginal people for similar offences. A number of recommendations focused on better education of police and judicial officers, including judges, about the most appropriate way to deal with Aboriginal and Torres Strait Islander people.

However, the Commission found that the poverty of Aboriginal and Torres Strait Islander people contributed significantly to their increased contact with the criminal justice system. Of its 339 recommendations, the Royal Commission addressed a number of broader issues that would improve the relationship between Aboriginal people and the criminal justice system. These included:

  • empowerment of Aboriginal people through self-determination and reconciliation
  • improving educational and employment opportunities
  • improving health care and housing conditions.

It also recommended educational programs that would inform the wider community about the issues facing Aboriginal and Torres Strait Islander people as well as improve understanding about their culture and history.

The Royal Commission also found that the Aboriginality of the people who died in custody had been a factor in their deaths. For example, in almost half of the cases the person had been removed from their families as a child, and a similar proportion had been arrested for a criminal offence before they were 15 years old. In general, those who died had early and repeated contact with the criminal justice system.

Deaths in custody still occur at unacceptably high levels and there is strong evidence to suggest that the recommendations of the Royal Commission are often ignored. Of the 54 deaths in custody in 2005, half of the Indigenous deaths occurred in police custody. (Deaths in custody in Australia to 30 June 2011. Twenty years of monitoring by the National Deaths in Custody Program since the Royal Commission into Aboriginal Deaths in Custody, M Lyneham and A Chan, Australian Institute of Criminology). Non-Indigenous deaths were more likely to occur while in prison.

Two-thirds of the deaths investigated by the Royal Commission into Aboriginal Deaths in Custody occurred in police custody rather than prison. This was because police were using their powers to arrest and hold Aboriginal and Torres Strait Islander people in police cells for minor offences, particularly public order offences.

Royal commission recommendations

A key recommendation of the Royal Commission was to decriminalise public drunkenness, provide sobering-up shelters, change practice and procedures relating to arrest and bail (particularly for minor offences) and to provide alternatives to the use of police custody. Despite the subsequent decriminalisation of public drunkenness in most jurisdictions, many Indigenous people still come into contact with the criminal justice system because of the public consumption of alcohol. In part these problems are related to the use of protective detention, the use of local council by-laws prohibiting alcohol consumption and other restrictions such as the Northern Territory’s law prohibiting alcohol consumption within two kilometres of licensed premises, and penalties associated with breaches of Queensland’s alcohol management plans.

Several recommendations of the Royal Commission had called on governments to fund non-custodial alternatives for Aboriginal and Torres Strait Islander people detained for drunkenness, and to place a statutory duty on police to use alternatives, and to negotiate with Aboriginal communities to find acceptable plans for public drinking. However, many Aboriginal communities have not waited for governments to act and have established ‘dry-out’ shelters and safe houses to assist with managing issues around drunkenness. In the Northern Territory in particular, many communities have made the decision to be ‘dry’ and to regulate alcohol consumption.