Is there more behind 21 years of spiralling Indigenous incarceration rates?

21 years since the culmination of the Royal Commission into Aboriginal Deaths in Custody, the most extensive inquiry in Australian history into Indigenous people’s overrepresentation in the criminal justice system, little has changed.

The Commission found Indigenous prisoners didn’t die at a higher rate than non-Indigenous prisoners, but blamed higher imprisonment rates for the disproportionate number of Aboriginal deaths in custody and made 339 recommendations to address Indigenous over-incarceration. However, last year’s two decade anniversary of the release of its final report saw protests against the very same phenomenon which gave rise to the Commission in 1987 - that Aboriginal deaths in custody are too common and custodial authorities’ explanations markedly evasive.

Despite $400m pledged by the Commonwealth in 1992 towards implementing its recommendations, they continue to be ignored with remarkable apathy. Incarceration rates are soaring as a result and the proportion of Indigenous deaths in custody is actually rising. People are now more frustrated and angry than ever after two decades of wasted opportunity to confront what can only be viewed as an entrenched disregard for Aboriginal life in the criminal justice system.

Many blame the Commission itself for this ongoing failure. While its work purported to investigate the deaths of Indigenous people in custody between 1 January 1980 and 31 May 1989, it resulted in a whitewash. Consultants, advisors, lawyers and researchers were paid over four years to produce 110 reports and 10,000 pages of script, at a cost to Australian taxpayers of $40m.

When the Commission finally concluded, it failed to make even one finding of culpability in all 99 cases referred to it. James Muirhead, after criticising some police investigations and certain officers’ evidence, retired as National Commissioner having heard just four cases. No other Commissioner found evidence of cover-ups, convincing many the inquiry’s sole purpose was to enable custodial authorities to, quite literally, get away with murder.

In the name of “privacy,” it was decided details of individual cases would not be released on the grounds they were “too distressing” to each deceased’s family and friends. Government guidelines stipulate any records to be released must be assessed beforehand for possible Aboriginal cultural sensitivities “and for possible state or territory government sensitivities.” Records subject to non-publication directions are only eligible for public access after they are 30 years old.

This cover-up of the past left many cynical about the government’s sincerity regarding its recommendations for the future. Widespread suspicions were furthered after a national ministerial summit in July 1997 when then prime minister, John Howard, ended compulsory annual reporting on implementation of the Commission’s recommendations. With self-monitoring no longer required, a recent Indigenous Law Review survey found that, on average, Australian states and territories put in place only 50% of the corrective measures, while Victoria acted on only 27%.

The Commission was, in effect, detrimental, by encouraging a culture of impunity. While during its lifespan, Indigenous people died in custody at a rate of just under one per month, the number of Aboriginal deaths in custody was higher in the 10 years after the Commission than the decade preceding it. Anonymous interviews conducted with people involved in the inquiry almost a decade after its conclusion revealed most felt there had been little improvement in the lives of Indigenous people.

Many believed its recommendations were futile when made alongside exonerations of police and prison authorities, focusing on underlying issues rather than recommending charges against any officers involved. One interviewee commented, “The Royal Commission achieved far more during its life than was really ever achieved afterwards and it did that because of the constant sort of threat hanging over the heads of authorities responsible for these sorts of policies ... Whereas I think once the Commission finished that same pressure wasn’t there,” a view endorsed by several others.

More than another decade on, many others remain of a similar opinion. Ray Jackson of Sydney’s Indigenous Social Justice Association, who has campaigned on Aboriginal deaths in custody for 25 years, said any progress achieved during the Commission has since been reversed. “There was some initial small progress, but that’s now all been washed away. In 1997, John Howard closed down the Royal Commission reporting system, which meant state and territory governments didn’t need to annually report on Aboriginal deaths in custody. It’s all withered away from then on.”

Jackson criticised the continuing secrecy surrounding deaths in custody. “The police have drawn a code of silence over the jail system here ... On the grounds that it’s ‘in the public interest’, no information is given out to the public for us to know about deaths in custody ... We can’t get information about it so we’re still very much in the dark. If you contact police for information about a case you’ll be told ‘It’s a matter for the coroner.’”

Precisely this type of secrecy was criticised by the Commission. In its final report, Elliot Johnston noted that deaths in custody are a public matter, with police and prison officers acting on behalf of the community and to be held accountable for the proper performance of their duties. It recommended that all death in custody investigations “should be approached on the basis that the death may be a homicide” and that the interests of the deceased’s family and community be served through thorough, competent and impartial investigations.

Unfortunately, Johnston’s actions spoke louder than his words. As National Commissioner, he presided over investigations into numerous deaths, including that of 16-year-old John Pat in Roebourne in 1983. Pat was killed on the night of 28 September after intervening in a fight between another Aboriginal man and four off-duty police officers with an Indigenous police aide outside Roebourne’s then popular drinking spot, the Victoria Hotel.

According to witnesses, as Pat attempted to pull the man, Ashley James, away from the fight, one of the police officers walked up to him and punched him in the mouth. A witness said he “fell back and didn’t get up,” adding, “I heard his head hit the road.” Witnesses stated that despite Pat lying seemingly unconscious on the ground, another officer went over to him and kicked him in the head. He was then allegedly dragged to the police van, picked up by the hair and kicked in the face before being thrown in “like a dead kangaroo”.

He was taken with four other Aboriginal men to Roebourne police lockup, where according to witnesses across the street each was dragged from the van, dropped on the cement pathway, picked up again and punched to the ground before being kicked. One witness said she could hear the sound of loud blows and calls of “Come on, fight, you bastard,” adding, “I thought the police had gone mad.”

Less than two hours after being placed in a cell, Pat was reported dead. His autopsy, performed by forensic pathologist Dr John Hilton, revealed massive head injuries including swelling, bruising, tearing and haemorrhage of the brain. Hilton found five bruises on the surface and deeper layers of Pat’s scalp, with three distinct areas of bruising on the outer lining of his skull. A bruise on the back of his head was the size of the palm of one’s hand. Hilton estimated there had been at least one blow to the back and approximately six to the right hand side of Pat’s head. He certified the cause of death as a closed head injury, also finding internal bruising of Pat’s stomach consistent with a blow to the front of the body, as well as a torn aorta and two fractured ribs which he thought were inflicted after or immediately prior to death.

Given the circumstances surrounding Pat’s death, Hilton found him to be surprisingly clean, saying the state of the body “intrigued” him and inquired whether it had been washed after death. While there was a small amount of ingrained dirt on Pat’s feet, there was no dust, sand or gravel on his shoulders, chest or in his hair when presented to Hilton. Later at the inquest, Hilton also said it was questionable how bloodstains on the floor in photographs of Pat’s body in the cell matched the clean body delivered to him. A senior government technologist also testified to having found traces of the same blood group as Pat on the boots of two police.

When the inquest concluded, the five officers, James Young, Ian Armitt, Steven Bordes, James Holl and Michael Walker, were tried on a charge of manslaughter. It proceeded before an all-white jury, although a quarter of the Pilbara’s population is Indigenous. Despite 57 witnesses giving evidence, with many stating the off-duty officers provoked the initial fight with James and systematically bashed and arrested those who tried to intervene, all five were acquitted on 24 May 1984 by a unanimous verdict, claiming “self-defence”.

Pat’s death was later investigated by Johnston during the Commission. His findings, delivered on 30 May 1991, stated, “The injuries observed at post-mortem do not suggest a vicious kick,” adding, “There was no evidence that would support the suggestion that Pat received full, hard kicks to the head, that he was kicked a number of times to the left hand side of the head, or that he had been kicked on the top of the head.”

“I do not find that the police officers or any of them used force disproportionate to the force used against them in the course of the fighting,” Johnston’s report continued. “I do not find that police officers ... used excessive force against the deceased or committed any criminal act against the deceased...”

Of Hilton’s query regarding the surprisingly clean state of Pat’s body when presented for autopsy, Johnston said: “Obviously Dr Hilton was surprised at the state of the body. It has to be borne in mind that Armitt had been on top of the body, on his evidence was brushing against the body at the Toyota, was in contact with the back of the body while taking Pat to the cells. All this could have cleaned any debris from the body. To wash the body would have been very difficult without leaving traces. I do not think there was any real evidence of trace. The body may have been slightly cleaned but I do not think it was washed.”

Johnston accepted the officers’ testimony that Pat had fallen forward from the back of the police van at the station and thus sustained his fatal injuries. This finding, and many others made by the Commission, provoked incredulity across Aboriginal communities Australia-wide, with many criticising the legitimacy of its investigations.

Sadly, since the Commission, further allegations of cover-ups have ensued. Just two and a half years after its conclusion, Lewis Wyvill, who acted as Commissioner for 27 deaths in Queensland, was appointed by the state’s Criminal Justice Commission (CJC) to investigate the death in custody of 18-year-old Daniel Yock in Brisbane in 1993. The inquiry similarly exonerated the police involved, claiming Yock, a formerly fit, healthy and accomplished dancer, had died of an extremely rare, previously undiagnosed and untraceable heart malfunction known as a Stokes-Adams attack.

The Socialist Labour League refused to accept its finding and sponsored an independent investigation into Yock’s death. It reviewed the police radio log before Yock’s arrest, which revealed they tailed the youths simply for being drunk and “walking on the road etc,” interviewing several witnesses who said they saw two police chase Yock, tackle him from the back and assault him while lying face-down on a suburban street in broad daylight. A large number of eyewitnesses said he was thrown unconscious into the back of a paddy-wagon which drove around looking for another youth, before arriving at the watch-house 31 minutes later where Yock was found dead.

The inquiry remains the only investigation into an Aboriginal death in custody independent of the police or a government body. It claimed the Royal Commission was convened “ head off the groundswell of opposition, among Aboriginal and non-Aboriginal working people alike...” and that the CJC and other official inquiries “...are part of a systematic cover-up, designed to give the police a licence to go on killing.”

They seem to have had a point. The Commission took four years to conclude, consuming immense taxpayer funds and vast amounts of public energy, with many well-intentioned and motivated individuals having faith in its process. However, since the Commission, the proportion of Aboriginal deaths in custody increased, while proposed independent investigations by the CJC’s successor, the Crime and Misconduct Commission (CMC), similarly a government body and according to its website a self-stated partner of the police, seem to be procrastinating genuine tackling of the issue.

The outcome of its two-year multimillion-dollar probe into the police investigation and internal review following the 2004 death in custody of Mulrunji Doomadgee, whose arrest for public swearing was precisely the type criticised by the Commission, speaks for itself. Despite finding the investigation was “seriously flawed” and “ran counter to the spirit of the RCIADIC recommendations”, with 216 pages citing detailed evidence of bias, obfuscation of evidence and police acting above the law, Queensland Police Union simply rejected its findings.

It responded with its own 410-page report that the evidence “simply does not support action for misconduct or official misconduct,” in response to which the CMC cited a “legal loophole” for its self-proclaimed powerlessness to challenge the QPU’s decision. With no police officer charged or disciplined, the QPU in turn submitted a claim to the government for reimbursement of over $1m in legal fees. In total, the more than six year proceedings since Doomadgee’s death, including police investigations, two coronial inquiries, DPP and CMC probes, has been publicly-funded by taxpayers, with Chris Hurley’s prosecution alone reportedly having cost $7m by 2007.

Such ongoing charades of “due process” continue to do nothing more than ensure the status quo is upheld, while protest after protest fall time and again on deaf ears, having no effect on the insurmountable system. Last year even saw a national day of action held on the seventh anniversary of Doomadgee’s death, with protesters calling for a new royal commission into all Aboriginal deaths in custody that occurred in the past 20 years.

However, many argue that all deaths in custody, including those previously examined by the Commission, should be independently reinvestigated. Letty Scott, whose husband Douglas Scott’s death was one of the Commission’s cases, called the multimillion-dollar investigation “a lawyers’ picnic on the blood of Aboriginal people” that was “set up to cover the murder of our people”, saying she had been completely disempowered by the Commission and not allowed to talk about any evidence of murder.

She was by no means alone in her criticisms. Many other family members of those whose deaths it investigated voiced feelings of bitter disappointment and betrayal. Some, such as the family of Eddie Murray who died in a Wee Waa police station in 1981, have pursued determined quests for justice that now span over three decades.

Understandably, there are fears another commission would amount to nothing other than a whitewash. Contrary to government assertions, royal commissions are far from independent inquiries, being created by the governor-general on the advice of the government, which can narrow the terms of reference and the timeframe. Commissioners appointed are often retired senior judges with close connections in the justice system, and their recommendations, even when enacted into law, are often simply ignored, as were many of those of the RCIADIC.

In fact, if judged on their actual performance, any official avenues allegedly towards justice over an Aboriginal death in custody, be they the courts, crime watchdogs or the Commission, have never actually dispensed it. Despite repeatedly giving the appearance of justice, they continually end in disappointment, with none other than farcical inquiries being used to appease the public through illusions something is being done, when in reality nothing is changing.

Understandably, people’s patience is wearing thin, demonstrated by the riot which erupted on Palm Island in protest at the autopsy finding that Doomadgee’s death was accidental. Although widely condemned, the unrest attracted both nationwide and international attention to the extent of exasperation and anger over continuing Aboriginal deaths in custody, and to the strength of mounting collective resistance.

Former Palm Island community councillor, Lex Wotton, who received a six-year sentence on charges of inciting the riot although no-one was injured and video footage actually showed him trying to calm the crowd, is believed by many to have been scapegoated by the legal system in retaliation for the uprising. Support for Wotton was demonstrated at a First Nations Conference in Townsville on 30 November, where he received a standing ovation as he spoke publicly for the first time since being released on 18 July 2010 under strict parole conditions, including the stipulation he cannot speak to the media.

With his court-imposed gag order temporarily lifted, Wotton, a powerful spokesperson for Aboriginal causes nationally, told the conference he believes he has been silenced because “they don’t want me to talk about the system that incarcerates our people.” In a recorded interview while awaiting trial in March 2005, he said of that system: “It’s all about money. That’s all it is. Prisons are built with money from the budget allocated according to the recommendations of the Royal Commission into Aboriginal deaths in custody. I have seen more programmes in prison than they have in our communities ... The prison I was in after the events in Palm was built to accommodate 160 people. Now there are 500 in there and most of them are Indigenous people.”

Since the Commission, the Indigenous proportion of the prison population has almost doubled, from 14% during its lifespan to 26% today. Coinciding with this has been the increasing privatisation of the prison industry, which began in Australia shortly after the USA, while the Commission was underway. It effectively allowed governments to contract out responsibility for some prisons to private enterprises, for which in turn their management could become extremely profitable.

Queensland was the first jurisdiction outside of the USA to introduce private prison management, with Borallon Correctional Centre announced in October 1988 and operational by January 1990. In NSW, Junee Correctional Centre was announced in May 1989 and opened in March 1993. South Australia and Victoria soon followed, with the private management of Mount Gambier prison, opened in 1995, and the private design, building and operation of Victoria’s Deer Park Correctional Centre, opened in 1996. After mandatory sentencing’s introduction that same year saw WA’s incarceration rates skyrocket, it became the fifth jurisdiction to operate private prisons with Acacia Prison in 2001.

It has since become a multibillion-dollar industry, expanding in Australia faster than in any other country, where the proportion of prisoners held in private facilities is now the highest in the world. While in the UK and the USA in 2010-11, the proportion of prisoners held in private facilities was 11.6% and 9% respectively, in Australia it was 19.2%.

This is set to rise further, with several new private facilities being planned to meet soaring incarceration rates nationwide. Construction is currently underway for a new 80-bed young adults’ facility at Rangeview in WA, while a 387-bed expansion at Acacia Prison is planned for 2014. In January this year, the 300-bed Southern Queensland Correctional Centre opened as the first stage of the state’s new correctional precinct, which according to corrective services’ website “has the potential to host several correctional facilities that could eventually accommodate up to 3,500 prisoners.”

Run by the same multinationals operating in the US and the UK, Serco, G4S and GEO Group, their primary objective is to make profits. In 2011, Serco reported worldwide revenues of $7,096m, G4S of $11,488m and GEO Group of an astronomical $1.54bn. Given higher prison populations and longer sentences earn larger payouts under government contracts, there is a worrying incentive to incarcerate more people for longer to maximise growth. It is, therefore, in direct conflict of interest with the Commission’s key recommendations of arrest only when absolutely necessary and imprisonment as a last resort.

Since privatisation began, the prison population has more than doubled, increasing at almost three times the rate of the national population. A study by the Australian Institute of Criminology revealed that in its first decade, Australia’s total prisoner population increased by 51%, from 13,280 in 1990 to approximately 20,000 in 1999. ABS statistics show that in the following decade it increased by a further 37%.

The Indigenous prisoner population has increased even more dramatically, almost quadrupling. Between 1991 and 2001, it rose by over 107%, compared with a 40% increase for non-Indigenous prisoners. In the following decade, the Indigenous prisoner population increased by another 60%.

Unprecedented prisoner numbers mean decreased ability to provide sufficient healthcare, with failures to adequately treat existing illnesses having already seen a sharp rise in deaths in custody attributed to natural causes. Disproportionately high incarceration rates for Aboriginal people, coupled with the fact they have higher rates of mental and physical ill-health than any other group in Australia, put them most at risk.

According to the Australian Institute of Criminology’s National Deaths in Custody Programme, since 2001 deaths attributed to natural causes have surpassed self-inflicted injuries to become the most frequent cause of prison deaths. In the decade to 1989, on average 10.6 of prison deaths were attributed to natural causes annually, rising to 16.3 in the decade to 1999 and 24.6 in the nine years to 2008. The figures for 2008 were the highest ever recorded, with 70% of all prison deaths attributed to natural causes, as were 100% of Indigenous prisoner deaths.

Notably, the rate of deaths in private prisons was more than three times higher than in government-run prisons, being 4.5 deaths per 1,000 prisoners compared with 1.4 deaths per 1,000 prisoners respectively. The appalling disparity is likely to be due to cost-cutting by private operators through reduced health and living conditions or employing less-trained staff. Resultant violations of human rights standards in the quest for higher profits can mean offenders incarcerated for misdemeanours effectively receive death sentences.

A recent case was the death of 18-year-old Sheldon Currie in February 2010, after he became ill in the privately-run Arthur Gorrie Correctional Centre where he was on a three-month remand for car theft. Other inmates alleged Currie, who had a pre-existing medical condition, was denied medical assistance for six days until he became unconscious in his cell, claiming they were forced to threaten to riot before he was finally taken to Brisbane Hospital and put on life support, where he died four days later.

However, Queensland Corrective Services commissioner, Kelvin Anderson, denied Currie’s health was neglected, saying, “We responded appropriately to this man’s health needs and we were very responsive to the needs of the family after this tragic event.” When contacted by this writer for further comment, the DCS declined to respond. The inquest into Currie’s death found he died from natural causes.

Just one month later, 39-year-old father-of-five, Grantley Winmar, died after he became ill in WA’s privately-run Acacia prison, where he had served all but three weeks of a six-month sentence for driving without a licence. Winmar’s family were told by doctors there had been bleeding on his brain for six to seven days while he was in jail. He had called his mother from prison saying his head felt like it was “about to explode,” but prison officers had simply given him aspirin and told him to return to his cell, shortly after which he passed into a coma from which he never recovered.

Although Winmar had previously suffered two strokes and been diagnosed with meningitis, WA’s DCS assistant commissioner, Graeme Doyle, said he had “received a full rundown of Mr Winmar’s medical treatment over the past several weeks and I am satisfied he was treated promptly and appropriately.” When contacted by this writer for further comment, the DCS declined to respond, while WA police said they were unable to comment as the case had been referred to the Coroner’s Court. A date has yet to be set for the inquest.

Under its contract for managing Acacia Prison, Serco reportedly incurs a penalty of $100,000 in the event of a death in custody, unless that death is found to be from natural causes. Remarkably, despite the Commission’s recommendation of impartial investigations, they continue to be undertaken internally, following which, with the exception of Victoria and the ACT, coroners have no legal obligation to investigate beyond the immediate cause and manner of death, meaning underlying issues of prisoner care and treatment may be overlooked.

Of further concern in the case of private prisons is private companies’ immunity to freedom of information applications, rendering them even less accountable. This poses even greater difficulties in investigating a death in custody, as was evidenced by the failure to lay charges against private prisoner transporter G4S following the horrific death of Mr Ward in 2008. Despite the coroner finding G4S’s vehicle was “not fit for humans” and its use for long-distance travel “inhumane,” in June 2010 WA’s Director of Public Prosecutions, Joseph McGrath, told Mr Ward’s family a prima facie case did not exist due to lack of evidence.

Marc Newhouse of the Deaths in Custody Watch Committee, which is running a campaign to end the privatisation of custodial services, said of McGrath’s conclusion, “The evidence was diluted because so many different parties are involved, and he came to the view that there simply wasn’t enough evidence to bring a criminal case against any one party. The guards were clearly negligent. They didn’t meet their duty of care. However, if they were charged, G4S and Corrective Services could simply say, ‘It was nothing to do with us’. So the bare minimum is that they should terminate the contract and return responsibility to Corrective Services. At least then, if there’s one party responsible, the next time something like this happens charges can be laid.”

One has to wonder if this is exactly what the parties involved wished to avoid. WA’s prisoner transport contract was subsequently awarded to Serco, now the state’s major justice contractor despite nationwide protests against its reportedly egregious detention centre conditions. It again came under criticism last month after rumours day-release inmates from the new Rangeview facility for 18-24 year old males, for which it won a $171 contract as the sole bidder, would work at nearby Fiona Stanley Hospital, also run by Serco. WA Corrective Services Minister, Terry Redman, said that he “did not have a problem” with prisoners working at the hospital, although he later denied it had ever been considered.

It raises many questions about private prisons’ use of community work projects, for which offenders perform unpaid work as part of community corrections orders. With private prison operators providing other services in different sectors, prisoners can be used as a cheap labour force to further increase profits. According to a report by the Productivity Commission, 80.5% of the work-eligible prisoner population were employed in 2010-11, almost half in service industries at 47.5% and a further 32.4% in commercial industries. Requests for further information on these industries, services and commercial entities by this writer received no response.

Corrective Services in all five jurisdictions with private prisons were also contacted by this writer for comment on their use. Where a response was received, this writer was directed to reports or promotional statements in which the major justifications offered for privatisation were unsubstantiated claims of more cost efficiency. Requests for specific comment on the higher rate of deaths in custody in private prisons compared with government-run prisons received no response.

Contrary to claims of cost savings, the Productivity Commission’s report found no necessary relationship between private prisons and taxpayer savings. The ACT and Tasmania, which have no private prisons, had the highest running costs per prisoner per day, followed by Victoria, which has the most private prisons, while the cheapest was the Northern Territory, with no private prisons. It reported that Australian taxpayers forked out $2.9bn on corrective services in 2010-11, with national expenditure per person in the population actually increasing over the last five years, from $124 in 2006-07 to $130 in 2010-11.

Various government media statements, such as from WA attorney general Christian Porter on the new $171m Rangeview facility, promote private facilities’ “focus on employment, training and offence-specific programmes.” Similar justifications have been offered for the $420m Southern Queensland Correctional Centre. However, many argue even a portion of such vast sums should be spent on preventative measures such as justice reinvestment, a localised approach that diverts some of the funds to be spent on imprisonment into programmes and services in communities, so as to address the underlying causes of crime.

Other promotions of private prisons as a solution to overcrowding ignore the fact that over-reliance on imprisonment as punishment should be tackled rather than encouraged, and is often the result of controversial legislation such as mandatory sentencing. Such arguments also obfuscate the fact that, in contrast to the traditional aim of imprisonment to rehabilitate offenders, private prison operators would quite simply diminish their business by reducing recidivism.

On the contrary, given the populations of for-profit prisons are a major determinant of “per day per prisoner” costs of operation, there is a clear incentive for them to operate at full capacity to reduce daily costs per prisoner. This was evidenced in February this year in the USA when its largest private prisons operator, Corrections Corporation of America, sent proposals to prison officials in 48 states offering to buy public prisons in exchange for 20-year management contracts, including guarantees that governments would keep those institutions at least 90% full to ensure profitability.

Commercial-in-confidence clauses in Serco’s, G4S’s and Geo Group’s contracts in Australia keep the release of their details impossible. There is, however, substantial evidence to suggest that jurisdictions with privatised and expansionary prison policies are using mandatory sentencing or “tough on crime” approaches to intentionally over-incarcerate their most disadvantaged communities. Add racism, lower socioeconomic circumstances and higher rates of ill-health for Indigenous people, and the result can’t be anything other than the current diabolical rate of Aboriginal deaths in custody. It’s not only predictable, but an almost inevitable outcome.

21 years ago, at the very beginning of prison privatisation, the RCIADIC published its wider studies into underlying causes, ostensibly so those socioeconomic issues could be addressed. Despite a detailed blueprint, $400m funding and more than two decades of opportunity, recent research shows criminal behaviour among Indigenous people continues to be strongly linked with poverty, lack of education, high unemployment and poor health.

Abysmal living conditions in many communities offer no opportunities to improve economic or social wellbeing, with inexorable socioeconomic disadvantage often causing and being exacerbated by drug and alcohol abuse. Simultaneous over-surveillance of Indigenous communities, with little or no consideration given to offenders’ circumstances, unsurprisingly keeps in motion a perpetual cycle of clashes between Indigenous people and the law.

At the time of the Commission’s final report in April 1991, Indigenous adults were eight times more likely to be incarcerated than non-Indigenous adults. However, recent ABS statistics show that at 30 June 2011, an Indigenous adult was 14.3 times more likely to be incarcerated. In WA, that was 18 times more likely. A report on juvenile detention by the Australian Institute of Health and Welfare released on 9 February 2012 found that on an average night in the June 2011 quarter, an Indigenous youth aged 10–17 was 26 times more likely to be in sentenced detention than a non-Indigenous youth. In WA, that was 50 times more likely.

To Australia’s disgrace, Aboriginal people are now the most jailed race in the world. In the USA, African Americans comprised 40% of the prisoner population in 2011, over three times their 13% share of the wider population. In Australia, Indigenous people comprised 26% of the prisoner population in 2011, almost 10.5 times their 2.5% share of the wider population. Nearly 74% of adult Indigenous prisoners had a prior adult imprisonment.

The rate of Aboriginal deaths in custody is even more appalling. According to the NDICP, while the overall rate of deaths in custody has decreased over the past decade, the proportion of Indigenous deaths in custody has risen. In the eight year period from 1992 to 1999 inclusive, around 18% of all adult deaths in police and prison custody were of Indigenous persons. In the eight year period from 2000 and 2007 inclusive, that proportion was 20%.

The statistics are all the more outrageous given many deaths in custody occur after imprisonment for minor offences. Between 1980 and 2000, a large majority of Indigenous female deaths in custody were of persons incarcerated for “good order” offences such as public drunkenness, breach of bail conditions, fine default, vagrancy and offensive behaviour, while almost a third of Indigenous male deaths in custody were of persons imprisoned for property offences. Between 1990 and 2008, 29% of all Indigenous deaths in police and prison custody were for property offences.

While such needless loss of life is deplorable, the tragedy is that these deaths continue to occur in a system that doesn’t provide justice for Aboriginal people at all. Everyday discrimination against generation upon generation of Indigenous people continues a process of destruction that has been inflicted through the legal system since colonisation. This has been implemented overtly, such as through definitions of Aboriginality and associated assimilation policies, including the White Australia Policy and the removal of Aboriginal children. The denial of basic citizenship rights such as the right to vote and to welfare continued until the late 1960s.

Blatantly oppressive polices have since developed into more structural forms, such as are applied through the current criminal justice system. The overrepresentation of Indigenous people in this system is clearly connected with socioeconomic disadvantage, itself undeniably linked to the racist policies enforced during colonisation. The criminal justice system in its current form is compounding this disadvantage, through systematic discrimination against and criminalisation of Indigenous people.

Australia has been repeatedly condemned as racist in its treatment of its Indigenous population by the UN, whose human rights commissioner as recently as March 2011 compared its discriminatory policies to apartheid South Africa. This followed criticism from its Committee on the Elimination of Racial Discrimination in August 2010, which found Australia needs to take urgent measures to address racism, disadvantage and inequality. Until those issues are acknowledged and addressed, disproportionate contact between Indigenous people and the law, inevitably leading to deaths in custody, will persist.

The resounding demand from before the Commission still repeated today is the need for justice. But there will likely never be justice over an Aboriginal death in custody from the criminal justice system in its current form. First, its underlying goals and culture must be confronted and fundamentally reformed.

Otherwise, in another 20 years time, people may still be channelling their energies into rallies and protests, dead-end inquiries, or worse, lamenting another whitewash royal commission. And all the while, disproportionate numbers of Aboriginal people will continue to die in the nation’s cells.

Previously published by National Indigenous Times. (This version edited for Treaty Republic by Emma)

Emma Purdy is an Irish journalist, who spent more than a year in Australia, much of that time researching Aboriginal deaths in custody. This is one of her numerous articles published in Australia, including the 'National Indigeous Times' and 'Tracker'