The disgrace of Black deaths in custody

Write of life / the pious said
Forget the past / the past is dead
But all I see / in front of me
Is a concrete floor / a cell door / and John Pat

Jack Davis

On 28 September 1983, a 16-year-old Indigenous boy named John Pat lay dying on the floor of Roebourne prison in Western Australia. Witnesses would later testify that he had been savagely beaten by five off-duty cops after he tried to break up a fight at a local pub. According to one witness, Pat was hit in the face by one of the police officers, causing him to fall and hit his head hard on the road. While still on the ground, Pat was kicked in the head by a police officer, dragged to a police van, kicked in the face again and thrown in. Other witnesses testified that Pat and four other Indigenous men were beaten again as they were taken out of the police van, including being punched and kicked. Neither Pat nor the other men resisted. A little more than an hour later, Pat was dead.

The police officers involved in Pat’s death were charged with manslaughter but later acquitted by an all-white jury. They were subsequently reinstated to their former positions without any disciplinary action being taken. After the acquittal, the Western Australian Police Union successfully campaigned against increased powers being given to the state ombudsman to investigate police misconduct.

The outcry and campaign for justice surrounding John Pat’s brutal death nevertheless became the catalyst for the 1987 Royal Commission into Aboriginal Deaths in Custody. Over the next three and a half years, the commission investigated the deaths of 99 Aboriginal men, women and children who had died in custody between January 1980 and May 1989.

Of the 99 deaths, 88 were males, 11 female; the youngest was just 14 years old. Thirty-three had died while in prison, 63 while in police custody and three of the juveniles while in detention centres. Thirty of the deaths were a result of hangings, while 23 were due to external trauma, including at least five due to assault by police or prison personnel.

The royal commission made 339 recommendations, including 13 to do with diversion from police custody, 30 about imprisonment as a last resort and 36 relating to health and safety while in custody. In particular, the commission recommended that imprisonment of Indigenous people be avoided, that the offence of public drunkenness be abolished, that funding for non-custodial accommodation for intoxicated people be provided and that the police take “all possible steps to eliminate violent or rough treatment or verbal abuse of Aboriginal persons”, as well as to eliminate “the use of racist or offensive language, or the use of racist or derogatory comments in logbooks and other documents”. The commission also noted there was an “urgent need” to reduce the rate of incarceration for Indigenous youth.

However, a 2018 review of the commission’s recommendations found that only 64 percent of them had been implemented in full, while the rest had been implemented only partially or not at all.

As a result, over the last 30 years not only has Indigenous incarceration continued to increase, so also have deaths in custody. According to the Australian Bureau of Statistics (ABS), in 2019, Aboriginal and Torres Strait Islanders made up 28 percent of the prison population, while constituting only 3 percent of the overall population. The rate of imprisonment for Indigenous people, according to the ABS, is 12 times higher than that of non-Indigenous people, having increased by 35 percent since 2009. In comparison, there had been only a 26 percent increase in non-Indigenous prisoners during the same period.

A 2018-19 report on national deaths in custody by the Australian Institute of Criminology found that this over-incarceration means that Indigenous people die in police custody at more than six times the rate of non-Indigenous people. Since April 1991, when the commission recommendations were announced, a further 474 Indigenous men, women and children have died in police custody or prison. In just over two weeks in March this year, four more died. If the commission recommendations had been implemented rather than ignored by federal and state governments, all four of the deaths in March (as well as many others) could have been prevented.

Over the last 30 years and despite the commission recommendations, Indigenous youth imprisonment has also continued to skyrocket. Today, 80 percent of youth in detention in Western Australia are Indigenous, while a 2018 report revealed that in the Northern Territory, every single child in detention was Indigenous.

Writing for IndigenousX in July 2018, Cheryl Axleby, the co-chair of the National Aboriginal and Torres Strait Islander Legal Service, noted, “[T]he justice system [is] stacked against Aboriginal and Torres Strait islander kids at every stage, from police through to the courts”. Axleby went on to point out that for incarcerated Indigenous youth, “there is a large cross-over between experiencing child removal, disability, family violence, mental health issues and the justice system”.

Despite the commission similarly identifying overlap between Indigenous poverty and socioeconomic disadvantage, the racist policing of Indigenous communities continues. The discrimination faced by Aboriginal and Torres Strait Islanders at the hands of the police was once again highlighted in the 2020 coroner’s inquest into the death of Yorta Yorta woman Tanya Day, who died in police custody in December 2017 after falling asleep on a train while intoxicated.

According to a report by the Sydney Criminal Lawyers group, the inquest into Day’s death found “that the police officers who took Ms Day off the train and arrested her for public drunkenness treated her differently than they did another, non-Indigenous, severely intoxicated woman later that same day, who was driven home by police and not arrested or even fined for being drunk in public”.

The racist nature of the policing around public disorder offences is evident. According to a 2019 Law Institute of Victoria report, Aboriginal and Torres Strait Islander people made up 29.6 percent of all people imprisoned for public order offences in Victoria, despite being only 0.8 percent of the state’s population. While a bill to decriminalise public drunkenness in Victoria was passed in February this year, it will not come into effect until 2022.

In an interview with National Indigenous Television (NITV), Aboriginal activist Cathy Eatock, who was part of the Committee to Defend Black Rights in the 1980s, noted that at the time of the campaign to establish a royal commission, many of the “families were angry”, due to the fact that “the deaths were preventable, they were a result of medical neglect, targeting of Aboriginal people, over policing and excessive force”. Eatock went on to tell NITV that the families are still angry because “there hasn’t been the political will over the past 30 years” to implement the commission recommendations.

It is clear that the federal and state governments cannot be relied on to act or to hold racist police accountable. It remains the case that despite the hundreds of deaths, not a single person has ever been found guilty for a single one of them. Royal commissions might better illuminate the problem, but they cannot solve it. Nor will further inquiries. The racist system that condemns Aboriginal and Torres Strait Islander people to poor health, poverty, inequality and inter-generational trauma needs to be ended. The police and prison system need to be abolished. To do this, we need a united movement against racism and the system that causes it.