Cunneen, Chris --- "Book Review - Indigenous Deaths in Custody 1989 to 1996" [1997] IndigLawB 62; (1997) 4(3) Indigenous Law Bulletin 26

• Book Review – Indigenous Deaths In Custody 1989 To 1996

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Book Review –

Indigenous Deaths in Custody 1989 to 1996

by the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner

for the Aboriginal and Torres Strait Islander Commission

Canberra, 1996

Reviewed by Chris Cunneen

The report Indigenous Deaths in Custody 1989 to 1996 was researched and written for the Aboriginal and Torres Strait Islander Commission (ATSIC) by staff in the Office of the Aboriginal and Torres Strait Islander Social Justice Commission. It examines 96 Aboriginal deaths in custody which occurred in the seven years after the Royal Commission Into Aboriginal Deaths in Custody (hereafter the Royal Commission), which ceased its investigations in May 1989. Coronial reports were utilised to determine whether the recommendations of the Royal Commission had been adequately implemented and whether they were breached in the circumstances surrounding each individual death.

Of the 339 recommendations made by the Royal Commission, 179 recommendations specifically dealt with proposed changes to the criminal justice and coronial systems. It is these recommendations which are addressed in the report. It was found that an average of 8.5 recommendations were breached in each death. Recommendations were most frequently breached in Queensland and Western Australia.

The report found that Australian indigenous people were 16.5 times more likely than non-indigenous people to die in custody during the period between 1989 and 1996, and that this reflected the disproportionately high number of Aboriginal and Torres Strait Islander people in custody. Indigenous people who died in custody were more likely to be younger than non-indigenous people, and were more likely to die from natural causes. Non-indigenous people were more likely to die from gunshot and drug overdoses in custody.

The research shows dramatically that the high level of imprisonment of indigenous people continues unabated despite the Royal Commission's recommendations. In fact, between 1988 and 1995, imprisonment of indigenous people increased by 61%. Non-indigenous imprisonment increased by 38% in the same period. Indigenous people were most likely to be imprisoned for assault, break and enter, motor vehicle offences, property offences and justice procedure offences.

The report noted that deaths in police custody were lower in the seven year period under examination than they had been during the period of the Royal Commission's investigations. However, there continued, to be major problems in policing, including the use of custody for trivial offences and as a measure for dealing with intoxicated persons. In the jurisdictions where public drunkenness remains criminalised, four Aboriginal people died in police custody in Queensland and two in Victoria after being arrested for the offence.

Deaths resulting from police car chases are also a problem which needs to be addressed. Nine Aboriginal young people aged between 13 and 18 years were killed in police high speed pursuits. A further two young people were killed in accidents while the police were not in close pursuit.

In addition, three Aboriginal people who were mentally ill were killed by police. None had a firearm at the time. A fourth Aboriginal person who was killed by police was 16 years of age.

The report raises a number of important issues in relation to sentencing. In six cases of deaths in custody, it was apparent that imprisonment had not been used as a sanction of last resort. These included such cases as one in Queensland where a 24 year old man was sentenced to three months imprisonment for property damage after he had attempted to hang himself in a police watchhouse. He committed suicide three days into his sentence.

The analysis also shows that a significant number of Aboriginal people who died in prison and police custody were suffering from mental illness and notes the need for diversion to appropriate services for these people.

Issues relating to custodial conditions were also considered in the report. The investigation of deaths in custody shows a growing awareness by custodial staff of issues relating to the proper care of prisoners. However, there were still at least 10 cases where police and prison officers were unaware of their duty of care or of the relevant instructions. In some cases, police were young, inexperienced and unaware of proper procedures-even where those procedures had been recently revised in light of the Royal Commission's recommendations. In prison custody, the most frequently breached Royal Commission recommendation related to a failure to exchange information between medical and custodial staff. In both police and prison custody there were still too many cases where recommendations to remove hanging points and to provide immediate resuscitation (including the availability of equipment and training to use it) had not been implemented.

A significant section of the report addresses the issue of monitoring the implementation of Royal Commission recommendations and notes the failure of existing monitoring methods. Particularly innovative approaches are dealt with under the title 'Alternative Mechanisms to Ensure Implementation'. There is inadequate space in this review to deal at length with the issues raised. However, a number of particular points can be mentioned. The report notes that many Royal Commission recommendations merely formulate what is required by law. In certain circumstances, civil liability of custodial authorities may be demonstrated if there is inadequate implementation of, or compliance with, recommendations. Specific areas discussed in the report include actions relating to negligence, assault and battery, breach of statutory duty, false imprisonment, judicial review, anti-discrimination actions, victims compensation and ex gratia payments. The report discusses specific instances where deaths in custody have given rise to successful actions, such as the award for damages in the New South Wales case of Mark Quayle.

Possible avenues of redress through international law are also considered. These include communications to treaty-based United Nations bodies such as the Human Rights Committee, the Committee on the Elimination of All Forms of Racial Discrimination and the Committee Against Torture.

Indigenous Deaths in Custody 1989 to 1996 is an extensive and considered examination of a fundamental issue affecting Aboriginal and Torres Strait Islander people in Australia. The extent and nature of indigenous deaths in custody is a tragedy in itself. It is also a mirror of the wider inability of non-indigenous Australia to provide even the basic conditions for indigenous well-being and citizenship.