Aboriginal deaths in custody

Concern about the high number of Aboriginal people who had died in custody in the 1980s led to the establishment of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) in 1987, to investigate and report upon the underlying social, cultural and legal issues behind the deaths, including allegations of mistreatment of prisoners which may have led to their deaths. It ran from 1987 to 1991, investigating the period between 1 January 1980 and 31 May 1989, producing its final report in April 1991.[10][11]

The 1988 Australian Institute of Criminology publication, Aboriginal Deaths in Custody, says "The issue of Aboriginal deaths in prisons and holding cells is particularly complex". The report looks at the cases identified by RCIADIC by April 1988. Criminologist Duncan Chappell,[12] in his introduction to the report, writes that while the "problem of death in custody is by no means limited to Aboriginals", the "problem of Aboriginal deaths in custody is linked to fundamental issues which go beyond matters of criminal justice. It would be unfortunate if, by focusing on the criminal justice system, we lost sight of the profound social, cultural and economic problems which confront Aboriginal people". At the time of RCIADIC, there was no ability to compare Aboriginal with non-Aboriginal deaths in custody because the information was not available from state and territory governments. At that time, the greatest number of Aboriginal deaths in custody had occurred in Western Australia and Queensland, half of the victims were under 28 years old, and the most common cause of death was hanging. More detailed analysis was needed, for instance into the different factors operating in police custody compared with correctional facilities.[13]

The term "death in custody" was defined in the RCIADIC report to include people under arrest (in police custody) or during the process of attempted detainment (including under police pursuit); on remand (pre-trial detention), in prison or juvenile detention after sentencing, or attempting to escape from police or prison custody.

RCIADIC concluded that the deaths were not caused by deliberate killing by police and prison officers, but that "glaring deficiencies existed in the standard of care afforded to many of the deceased".[14] It reported that "Aboriginal people died in custody at the same rate as non-Aboriginal prisoners, but they were far more likely to be in prison than non-Aboriginal people", and that child removal (leading to what has since been dubbed the Stolen Generation) was a "significant precursor to these high rates of imprisonment".[10] Many other historical and social factors were considered, showing a complex network of reasons as to why Aboriginal people were imprisoned at a higher rate.[15]

A 2018 review by Deloitte commissioned in December 2017 by the then Indigenous Affairs Minister, Nigel Scullion, found that only 64% of the recommendations had been fully implemented. It reported that 14% were "mostly implemented", 16% were "partly implemented" and 6% not at all. It also found that monitoring of deaths in custody had decreased nationwide, and the quality of data on police custody was "an ongoing issue". Prison safety had increased, but more staff were needed for mental and other health issues of Aboriginal prisoners. Regular in-cell checks, particularly in police watch houses, were still deficient in some jurisdictions.[16]

Aboriginal and Torres Strait Islander people made up approximately 3.3% of the Australian population (798,365) in the 2016 Australian census.[17] As of June 2018, Indigenous Australians aged 18 years and over were approximately 2% of the total adult population, while Indigenous prisoners accounted for 28% of the adult prison population,[18][19] meaning that Indigenous adults are 15 times more likely to be imprisoned than non-Indigenous adults.[20]

The rate of imprisonment of Indigenous Australians almost doubled between 1991 and 2018.[16]

Indigenous youth are 26 times more likely to be placed in detention.[20] According to the Australian Institute of Health and Welfare, in the June quarter of 2019 there was an average of 949 young people in detention per night: 90% of these were male, and 63% not yet sentenced. Indigenous youths made up 53% of the number. In the four years preceding June 2019, there were no clear trends shown in any of the statistical measures.[21]

The Attorney-General for Australia commissioned the Australian Law Reform Commission (ALRC) in October 2016 to examine the factors leading to the disproportionate numbers of Indigenous peoples in Australian prisons, and to look at ways of reforming legislation which might ameliorate this "national tragedy". The result of this in-depth enquiry was a report titled Pathways to Justice – Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples, which was received by the Attorney-General in December 2017 and tabled in Parliament on 28 March 2018.[22] The report made 13 recommendations, covering many aspects of the legal framework and police and justice procedures, including that fine default should not result in imprisonment.[23][24]

Overall, the rate of Indigenous deaths in custody has reduced since 1991, as of June 2020 lower than the rate of death of non-Indigenous people, which the AIC attributes to improved care by police and corrective services. However the rate of imprisonment of Indigenous people has climbed steeply, which is related to the higher number of deaths when compared with the 10 years examined by the RCIDIAC[25] (99 in 10 years, compared with about 437 in 29 years). Non-Indigenous people have died in custody in greater numbers and at a higher rate than Indigenous people, since 1991; however, with the much higher numbers of imprisonment of Indigenous people, there are more deaths as a proportion of their total population.[26]

Attorney-General for Western Australia, John Quigley, said in June 2020 that there was "systematic discrimination" against Indigenous people in the Western Australian justice system. Statistically, Indigenous people were far more likely to be stopped and questioned by police than non-Indigenous, more likely to be charged if arrested by police and less likely to get bail. Imprisonment of Indigenous people in WA was 4.1 per cent, compared with 2.6 nationally. The number of Indigenous adults going to prison, and young people being held in detention was still increasing, although the rate of imprisonment had slowed. He said that legislative reforms were being planned. WA has a higher number of Aboriginal deaths in custody since 1991 than any other state or territory.[27]

On 17 June 2020 reforms to the legislation relating to jail sentences for unpaid fines, long a bone of contention, spurred on by the death of Ms Dhu and finally introduced into Parliament in September 2019, was passed in WA. Between 1 July 2018 and 30 June 2019, 430 people spent time in custody for unpaid fines. Under the new legislation, most fine defaulters will do community service if they fail to pay, with imprisonment a last resort, by order of a magistrate only. The change was recommended by RCIADIC in 1991.[28]

The RCIDIAC's Recommendation No. 6 in its final report stipulated that "death in custody" includes at least the following categories when considering post-death investigations:[29]

a. The death wherever occurring of a person who is in prison custody or police custody or detention as a juvenile;

b. The death wherever occurring of a person whose death is caused or contributed to by traumatic injuries sustained or by lack of proper care whilst in such custody or detention;

c. The death wherever occurring of a person who dies or is fatally injured in the process of police or prison officers attempting to detain that person; and

d. The death wherever occurring of a person who dies or is fatally injured in the process of that person escaping or attempting to escape from prison custody or police custody or juvenile detention.

The Police Association of South Australia proposed a change to the legal definition in June 2020. PASA President Mark Carroll said that police were only involved in "very few" of these cases, with most of them occurring through natural causes, suicide or violence between prisoners, and that several had occurred when the subjects had tried to flee from police and come to harm, including fatal car crashes. However this idea was opposed by the Aboriginal Legal Rights Movement (ALRM) and the opposition (Labor) Aboriginal Affairs spokesperson Kyam Maher, who said that it was important to keep consistency in the statistics for comparison purposes.[30]

Statistics on deaths in custody are extracted from different sources; there is no single authoritative list of deaths in custody, of any race. Under Australia's federal system, each state or territory has responsibility for criminal justice in their jurisdiction.[13] Those held in prison custody (including institutions such as remand) are the responsibility of a state or territory department overseeing correctional services; youth detention centres are overseen by a variety of types of departments (such as human/community services or youth justice),[21] and those occurring in police custody during operations are the responsibility of each state or territory's police force, or alternatively the Australian Federal Police.

The Australian Institute of Criminology (AIC) uses data from its National Deaths in Custody Program (NDICP), as laid out in Recommendation 41 of the final report of the RCIADIC.[31][29] (Where other sources for the statistics quoted below vary from the RCIADIC definition given above, or need further clarification, this is noted.)

1980–1989: The National Report (1991) of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) included a list of the deaths investigated by the commission, i.e. those occurring between 1980 and 1989.[32][33][34]

1989–1996: A 1996 report prepared by prepared for the Aboriginal and Torres Strait Islander Commission reported 96 Aboriginal deaths in custody in the seven years following the period examined by the RCIADIC, with a peak of 22 in 1995. A change in the definition of a death in custody in 1989 meant that only deaths in institutional settings (such as on remand, in prisons and youth detention centres), rather than police pursuit, could be examined when comparing the figures between the Royal Commission and post-Royal Commission periods.[35]

1990–1999: A report comparing the number and circumstances of Indigenous deaths in custody during the 10-year period examined by RCDIAC with those in the following 10 years, found that the average annual rate of deaths has decreased from 4.4 deaths per 100,000 persons to 3.8 deaths per 100,000 people. As a proportion of all deaths in custody, those of Indigenous people had decreased from 21% to 18%. As a proportion of all deaths in custody, deaths in police custody (all races) had decreased, while prison deaths had increased.[36]

2001–2011: A 2013 Monitoring Report by the AIC found that both Indigenous and non-Indigenous rates of deaths in custody had decreased in the ten years preceding 2011, including eight years in which the Indigenous rate of deaths in prison had been lower than non-Indigenous. Looking at police custody, those in institutional and close contact settings had been decreasing (attributed to better training of police and design improvements in holding cells), while "operational deaths" (such as pursuits) had shown an overall increase since the early 1990s, but some reduction between 2003 and 2011.[37]

2013–2015: In the two years between 1 July 2013 and 30 June 2015, there was a total of 115 deaths (of all races) in prison custody, with over 70% of these due to natural causes, and 34 in police custody and related operations.[38][39] 22% of the prison deaths and 19% of those in police custody were of Indigenous people.[40]

2015–2017: In a Statistical Report looking at prison deaths between 2015 and 2016, the AIC reported that death rates of Indigenous prisoners "[had] been consistently lower than death rates of non-Indigenous prisoners since 2003–04". The death rate in 2015–2016 was 0.18 and 0.23 per 100 respectively,[41] and in 2016–2017, 0.14 and 0.18 per 100 respectively.[42]

1979–2018: The AIC's National Deaths in Custody Program report: Deaths in custody in Australia 2013–14 and 2014–15, published in April 2018, reported a total of 2,608 deaths (of all races) in custody since 1979–80, with 1,600 deaths of those in prison and 985 in police custody. (In addition, 18 deaths had occurred in youth detention facilities and five in other justice facilities, but these were excluded from analysis in this report.) Of those 2,608 deaths, 500 had been Indigenous and 2,104 non-Indigenous people.[38][39]

1990–2004: A report spanning 25 years summarised the trends in deaths during this period. Compared with the RDDIAC period (1980–1989), in which the majority of deaths (61%) occurred in police custody, during this 15-year period most of the deaths occurred in prison custody (63%). Deaths in police custody had decreased, while the number of deaths occurring during police operations increased, but the latter deaths were mostly of non-Indigenous persons. "While the number of deaths of non-Indigenous prisoners has consistently exceeded deaths of Indigenous prisoners, the rate of Indigenous prisoner deaths exceeded the rate of non-Indigenous prisoner deaths in just over half of the 15 years since RCIADIC, reflecting the general over-representation of Indigenous persons in the prison population."[43]

1991–2016: A 2019 AIC Statistical Bulletin, looking at 25 years of data since the Royal Commission (1 July 1991 to 30 June 2016), found that:

• With reference to prison custody, "Indigenous people are now less likely than non-Indigenous people to die in prison custody" including a decrease in the rate of hanging deaths. Death from natural causes was the most prevalent cause, at 58% (140), followed by hanging, at 32% (78); 5% (12) were due to drugs and/or alcohol, and 4% (9) were due to external trauma. from mid-2003 to mid–2016, deaths due to natural causes surpassed hanging deaths. Deaths in prison custody had decreased overall for both Indigenous and non-Indigenous people.[31]
• With reference to police custody, it was not possible to calculate rates of death due to lack of reliable data, but there was no clear trend over the reference period based on raw numbers. The number of deaths in police custody in each year was "relatively small", with a total of 146 Indigenous deaths over the 25-year period. The largest number occurred in 2002–03 and 2004–05 (11 each), and the lowest in 2013–14 (1). As to the manner of death, 47% (68) of Indigenous deaths in police custody were classified as accidental with 57% (39) of these during motor vehicle pursuits and 19% (13) during another type of pursuit. Natural causes accounted for 21% (31), self-inflicted deaths 19% (28), "justifiable homicide" 7% (10) and "unlawful homicide" 5% (8). 56% (82) of Indigenous deaths were classified as deaths in which officers were not in close contact, while the remaining 44% (64) were deaths in which officers were in close contact with the deceased. This proportion was reflected similarly in the stats for non-Indigenous deaths in police custody (333 and 262 respectively).[31]

1991 – June 2020: A total of at least Indigenous 437 deaths in custody have been recorded since 1991.[26][20]

2008 – June 2020: The Guardian's Deaths Inside database, tracking all Indigenous deaths in custody[Note 1] between 1 January 2008 and 5 June 2020,[Note 2] was created by Guardian Australia reporters, using all available data available from coronial and other sources. It also includes all deaths that occurred in the presence of police officers, including those caused by self-inflicted injuries. It also includes deaths occurring during a police pursuit or traffic intercept by police.[40]

The total number is of deaths recorded is 164, with Western Australia recording the highest number for a state or territory (54). Of the total, 72 deaths were attributed to medical issues; 23 to self-harm and 23 to traffic accidents.[45] Further analysis of the data showed that agencies "failed to follow all of their own procedures in 41% of cases where Indigenous people died"; and in the cases of 38% of Indigenous deaths, required medical care at some point was not given. In 42% of all deaths in custody (all races), "mental health or cognitive impairment was a factor", but Indigenous people with a diagnosed mental condition, including brain injury and foetal alcohol syndrome, did not receive the required care in 49% of cases. Another finding was that Indigenous women fared worse than men in terms of receiving all appropriate medical care and the authorities following procedures.[20]

July 2018 – June 2019: The AIC report published in December 2020 (the most recent as of April 2021[46]) reports on deaths between July 2018 and June 2019.[47] The data tables in Appendices B, C and D can be downloaded in Excel format.[46] (See table below.)

Custody Notification Schemes (CNS) have been set up in several states and territories. Implementation of a CNS has been shown to bring about a dramatic reduction in the numbers of Aboriginal deaths in police custody.[50] In October 2016, the federal government offered funding for the first three years to the remaining states and territories which had not yet legislated a mandatory CNS; by July 2020, only Queensland and Tasmania had not yet introduced such legislation.[51][52]

• 1983: John Pat, a 16-year-old boy killed in Western Australia[63]
• 1987: Kingsley Richard Dixon, a 19-year-old who died in Adelaide Gaol, one of two cases which sparked the Royal Commission[64][65]
• 1989: David Gundy, an Aboriginal man who died aged 29, in Marrickville, Sydney, New South Wales,[66] on 27 April 1989[67]
• 2004: Mulrunji Doomadgee, on Great Palm Island, Queensland
• 2014: Ms Dhu, in South Hedland, Western Australia. Dhu was a 22 year old woman who called police to report her boyfriend for domestic violence. When police arrived, they arrested Dhu for overdue fines. Dhu had internal injuries inflicted by her boyfriend, and complained of pain. Police took her to a medical centre 3 times, on the third visit she died. In 2016 the Coroner's Inquest found police had subjected Dhu to "inhumane" treatment, her medical treatment was "deficient" and recommended that Western Australia stop imprisoning people for unpaid fines. In 2020, the Parliament of Western Australia responded by passing a law which stipulated only a Magistrate could order someone imprisoned for unpaid fines.
• 2015: Kumanjayi or Kwementyaye Langdon, known in life as Perry Jabanangka Langdon,[lower-alpha 1] a Warlpiri artist whose work is held by the National Gallery of Victoria,[69] died in custody on 21 May 2015 of heart failure in Darwin Watch House, around three hours after being detained under the "paperless arrest" powers for drinking alcohol in a dry zone in Darwin.[70][71][72][73] There was a two-day inquest, which found that he had not been violent, and that while there had been "shortcomings" the process, Langdon had received adequate care and supervision. The coroner was critical of the paperless arrest system, saying that it could lead to more deaths in custody, but the Northern Territory Government did not take action to repeal the section of the Liquor Act (NT) that allowed for it.[74][75]
• 2015: David Dungay, who died aged 26 in Long Bay Hospital at Long Bay Correctional Centre in Sydney. Dungay had diabetes and guards had asked him to stop eating biscuits. He died after five guards entered his cell and held him down while he repeatedly yelled "I can't breathe" and a prison nurse injected him with sedatives. A coronial inquest in November 2019 found that none of the guards should face disciplinary action, saying that their "conduct was limited by systemic deficiencies in training", but the professional conduct of the nurse should be reviewed by the Nursing Board.[76][77][78][79][80]
• 2016: Rebecca Maher, a Wiradjuri woman, found dead in Maitland, New South Wales police cell in July 2016, after being arrested for public intoxication. The coroner found that she would have survived if police had followed procedures.[81][82][83][84] This was the first time an Aboriginal person had died in custody in NSW or the ACT since the Custody Notification Service was implemented.[85] When Maher was taken into protective custody by police for being intoxicated, police were only obliged to call the CNS if an Indigenous person was taken into custody for an offence, not if they were detained as an intoxicated person, so they did not alert the CNS at the Aboriginal Legal Service (NSW/ACT). As a result of the coronial inquest into her death, in October 2019 the NSW government implemented a change to extend the CNS to cover police custody of intoxicated persons.[86]
• 2016: Wayne Fella Morrison, a 29-year-old Wiradjuri, Kokatha and Wirangu man died in the Royal Adelaide Hospital on 26 September 2016, after being held at Yatala Labour Prison and put in the back of a transport van in the prone position, with a spit hood, cuffed by his ankles and wrists, and with eight prison guards inside.[87] He was pulled from the back of the van unresponsive and taken to hospital, where he died three days later after his life support machine was switched off. Morrison's death sparked the first national Black Lives Matter protests for Aboriginal lives in October, 2016. The state ombudsman's report in September 2020 said that Morrison was failed by the Department for Correctional Services (DCS), and made 17 recommendations, including that the use of body-worn video cameras for prison officers should be mandatory. DCS adopted some of the recommendations, and formed an agreement with Aboriginal Legal Rights Movement whereby all Aboriginal prisoners admitted to the Adelaide Remand Centre are able to access to the Aboriginal Visitors Scheme.[88] The use of spit hoods was banned in SA in September 2021 as a result of Morrison's family and supporters advocating for 'Fella's Bill' – a spit hood prohibition Bill, tabled by SA BEST's Connie Bonaros MLC. After a 5-year long inquiry into Wayne Fella Morrison's death, and multiple delays, officer's in the van maintained their right to claim the penalty privilege against self-incrimination; their right to silence on what happened in the van. South Australia will soon be first state in Australia to ban spit hoods in law.
• 2017: Tane Chatfield, aged 22, at Tamworth Correctional Centre on 22 September 2017[89] In August 2020 it was found by the coroner that he had committed suicide, but she criticised the inadequate care that he was given by the senior nurse in the hour before his death.[90][91]
• 2017: Tanya Day, a 55-year-old Yorta Yorta woman, fell into a coma in a police cell in Castlemaine in Victoria and later died in the Bendigo Base Hospital in December 2017.[92][93] In April 2020 a coroner referred the case to prosecutors for further investigation, stating that her death was preventable.[94] On 27 August 2020 Victoria Police announced that they would not be laying charges against any officers, after receiving advice from the Office of Public Prosecutions.[95]
• 2018: Nathan Reynolds, a 36-year-old man, died in the last week of his four-month sentence after an asthma attack in the minimum-security John Morony Correctional Centre (now part of the Francis Greenway Correction Complex) in Sydney in September 2018. The coronial inquiry showed that the prison staff's response was "unreasonably delayed", and contributed to his death.[96][97]
• 2019: Kumanjayi Walker, a 19-year-old Warlpiri man, was shot and killed while resisting arrest on 9 November 2019 in the remote community of Yuendumu, Northern Territory. His case drew national and international attention and media coverage after Constable Zachary Rolfe was charged with his murder soon afterwards,[98] but was acquitted in March 2022.[99][100]

Table B1 (2019) shows:[47]

• Evershed, Nick; Allam, Lorena; Wahlquist, Calla; Ball, Andy; Herbert, Miles (24 August 2019). "Deaths inside: Indigenous Australians deaths, 2019". The Guardian. Details of all Indigenous deaths in custody 2008−June 2020.
  • Evershed, Nick; Allam, Lorena; Wahlquist, Calla (12 June 2020). "Deaths inside: how we track Indigenous deaths in custody and why we do it". The Guardian.
• Google Scholar search results for "Aboriginal deaths in custody"
• Korff, Jens; Spirits, Creative (10 September 2019). "Royal Commission into Aboriginal deaths in custody". Creative Spirits.
• "Royal Commission into Aboriginal Deaths in Custody". AustLII: Indigenous Law Resources. 29 April 1998.

• Allam, Lorena; Wahlquist, Calla; Evershed, Nick (22 August 2019). "Indigenous deaths in custody worsen in year of tracking by Deaths Inside project". The Guardian.
• Behrendt, Larissa (July 2021). "Deaths in custody and songlines" (Podcast). ABC Radio National. Sir Zelman Cowen Oration, recorded 23 June 2021, Sir Zelman Cowen Centre, Victoria University.
• Henriques-Gomes, Luke (12 June 2020). "Indigenous inequality in spotlight as Australia faces reckoning on race". The Guardian.
• McQuire, Amy (6–12 June 2020). "There cannot be 432 victims and no perpetrators…". The Saturday Paper (304).
• Watson, Nicole (25 January 2007). "NIT FORUMS: History repeats, over and over". National Indigenous Times (121). Archived from the original on 24 October 2009. – about Mulrunji Doomadgee on Palm Island
• Whittaker, Alison (14 April 2021). "Indigenous deaths in custody: inquests can be sites of justice or administrative violence". The Conversation.
• Rule, Latoya Aroha (28 April 2021). "The families of Indigenous people who die in custody need a say in what happens next". The Conversation.