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by Neal Funnell
Thomas ‘TJ’ Hickey was 17-years-old and had recently moved to the Redfern area from Walgett in country New South Wales (‘NSW’). He was a young Aboriginal man. On the morning of 14 February 2004, TJ crashed his bicycle and was impaled on a fence. The next day, Redfern erupted. While the immediate circumstances of TJ’s death remain highly contested, it continues to be popularly and conveniently seen as the cause of the ‘Redfern Riot’.[1] NSW Police initiated Strike Force Coburn (‘Coburn’) the day after the riot to investigate, inter alia, the police response to the uprising. Coburn ignored the underlying causes of the riot, instead freezing it into a discrete snapshot, isolated from tensions that have been festering for over two centuries between Indigenous communities and the police.
Early on, the Strike Force Coburn Report (‘Coburn Report’) states that, ‘Redfern aside, one cannot overlook the possibility of an international incident sparking a large scale violent response threatening public order within NSW.’[2] In fact, with a few scant exceptions, the dynamics of the Redfern community do not enter Coburn’s radar, and consequently the Report fails to consider the wider implications of its own recommendations.
Although TJ Hickey’s death was the principal catalyst for the Redfern Riot, that riot did not occur within a vacuum, and arguably were it not the death of TJ Hickey, something else may have sparked a revolt in Redfern. In this paper I argue that sadly, the death of TJ Hickey is not exceptional in that his untimely and unjust death is part of a continuous degradation of Australia’s Indigenous peoples. The tensions between Indigenous Australia and police represent a greater fissure stemming from the lack of autonomy, self-government and self-determination that defines the Indigenous political struggle in Australia.[3] The police response as elucidated by the Coburn Report merely perpetuates these historical processes.
The dispute over the circumstances of TJ’s death centres upon whether, at a minimum, TJ Hickey was being ‘pursued’ by police when he suffered his fatal injury, and further, whether police had a more direct role in his death. The Coroner, John Abernathy, ruled that although TJ was killed during ‘police operations’, the chase did not constitute the technical definition of ‘pursuit’ as defined by the NSW Police Safe Driving Policy.[4]
Perceptions of injustice intensified when two Aboriginal Community Liaison Officers (‘ACLOs’) gave evidence to the NSW Legislative Council Standing Committee on Social Issues (the ‘Standing Committee’) alleging that ‘the police actually rammed the young kid.’[5] The ACLOs were not consulted by the Coburn Review Team.
The Coburn Report does not examine the causes of the riot, and instead reduces its genesis to a sound bite:
The events were fuelled by a perception of Police involvement in the death of a youth the previous day. The hot evening weather and alcohol consumption are also believed to have contributed to the atmosphere on Sunday evening.[6]
Nor does the Report attempt to understand why there exists a perception of police involvement in the death of TJ Hickey. The omissions reflect a broader tendency to treat the riot as a discrete and generic public order incident, distinct from any suggestion of a breakdown in Aboriginal-police relations. In contrast, the Interim Report of the Standing Committee states that paramount to its inquiry is the ‘very problematic’ relationship between police and the Aboriginal community in Redfern.[7]
The Report offers several different timelines of the riot, chronicling variously the riot itself including its preceding (and presumedly precipitating) events: a communications timeline that spans only the night of 15 February, and an Operations Support Group timeline that does likewise.[8] A General Timeline begins on 12 February, two days before TJ was impaled on a fence, with what police termed the ‘glock incident’.[9] However, following Richard Frankland’s lead in Who Killed Malcolm Smith?, perhaps it is pertinent to go right back to 1788 in order to properly contextualise the riot within the history of violent dispossession of Australia’s Indigenous peoples; of stolen generations, of racially informed ‘protection’ and segregation policies, of high levels of surveillance and control, of disproportionate rates of arrest and incarceration, and of the shamefully high rates of Indigenous deaths in custody.[10] What the Coburn Report completely ignores is the role of police as the common thread linking these histories together.
Perhaps Coburn’s objective as an internal police investigation is simply a tactical review of operational needs and capacity to respond to ‘public order incidents’. However, by failing to identify and analyse the underlying causes, Coburn undermines the validity of its ensuing recommendations. Logically, an understanding of community dynamics and tensions is fundamental to any exhaustive strategic review of police response and procedure. The Terms of Reference of Coburn actually restrict analysis to the ‘civil disobedience at Redfern’ and the broader issue of ‘public order management by the NSW Police’.[11] In both instances the Commissioner directed the Coburn Review Team to treat the Redfern riot and the community around The Block as a law and order problem, as opposed to a social one. Inherently, such a construction depends upon a punitive response, typically in the form of increased policing. Based on Coburn’s advice, Redfern now has an extra 52 police, including a 29-member Target Action Group (‘TAG’) team, permanent anti-terrorist group and an ‘enhanced’ Dog Squad.[12]
The Coburn Report describes the level of violence displayed in the riot as ‘unprecedented in recent times’;[13] a rather conservative view of ‘recent’. More than a decade ago, Chris Cunneen wrote that Aboriginal complaints about police activities in Redfern were not new.[14] Even earlier The Hon Hal Wootten AC QC expressed disbelief about the police-imposed curfew on Aboriginal people in the Redfern area:
The simple position was that any Aboriginal who was on the streets of Redfern at a quarter past ten was simply put into the paddy wagon and taken to the station and charged with drunkenness, and that was something that was just literally applied to every Aboriginal walking along the street, irrespective of any sign of drunkenness... This and the associated problems gave rise to very strong feelings amongst Aboriginals here.[15]
‘Incidents’ such as the unlawful killing of David Gundy by the Special Weapons and Operations Squad while he was in bed at home, and Alexandria Park, where unidentified police officers fired shots into a crowd of predominantly Aboriginal children celebrating National Aboriginal Day, have had ‘profound’ impacts on the Aboriginal community in Redfern.[16] These events continue to shape the relationship between the Aboriginal community in Redfern and police. They shape police and Aboriginal interactions today, and exacerbate everyday tensions that arise from police maintaining the ‘public amenity’. Despite this, the centrepiece of the NSW Police Association’s submission to the Standing Committee is the call for a permanent Operations Support Group (‘OSG’) post in Redfern Local Area Command (‘LAC’).[17] The OSG is specifically trained to respond to terrorist situations, and is as close to paramilitary as anything NSW police currently have to offer.
The Redfern Legal Centre state that:
Many people feel that there is a generally hostile relationship between the police and the community, especially among young people. This perception persists despite acknowledged attempts by police at some levels to improve the relationships. It was noted that for many young Aboriginal people, a police car is something to run away from.[18]
More disturbingly, the Redfern Legal Centre recommend that, ‘police recruiting policies and practices should focus on recruiting non racist police’;[19] as if more than 10 years after the release of the recommendations made by the Royal Commission into Aboriginal Deaths In Custody, these kind of pleas still need to be made.
Since the colony’s early days there has persisted a notion amongst the colonisers that physical punishment is the means to reconcile cultural difference.[20] The Coburn Report appears to deviate little from these original presumptions. Coburn ‘revisits’ the philosophy of ‘containment’; the ‘inadequate’ tactic used by police on the night of the Redfern Riot. Coburn amorphously argues that,
International experience suggests inaction (containment) by Police on many occasions results in an increase in the momentum of group dynamics and the aggression by groups, inevitably against police.[21]
The ‘only’ alternative to ‘containment’ is ‘resolution’, which Coburn strongly endorses. Resolution is not clearly defined beyond being obviously different to containment/inaction. Resolution would include an ‘emphasis on arrests and legal aggressive tactics as the circumstances would allow... based on solid legal advice.’[22]
As part of the new philosophy of resolution, Coburn cites a review of chemical agents (for breaking up crowds) as an ‘organisational priority’.[23] Chemical agents are an example of the ‘Less than Lethal Equipment’ that Coburn recommends should be used on those involved in uprisings – subject to solid legal advice. As the more traditional form of capsicum spray in a hand-held can is no longer an option when dealing with large numbers, Coburn holds that irritant liquid or gas-filled grenades are now necessary to keep rioters at a safe distance.[24] Of course, Coburn sensibly notes that these new items are ‘accompanied by the need for police to access appropriate breathing apparatus, [as] there is the risk of these items being thrown back behind police lines by offenders.’[25] Finishing off the menu are ‘other non-lethal, but potentially so, impact projectiles (also known as baton rounds/rubber bullets).’[26]
‘Resolution’ and its promise of preventing violence from escalating through ‘legal offensive tactics’ such as non-lethal force and arrest tactics, is belied by its short-sightedness. While an ‘extremely dramatic and violent use of force’ may physically be able to put down a riot, it does nothing but aggravate the tensions that generate such revolts in the first place. Further, the recommendation of ‘non-lethal force’ is particularly inappropriate within the broader context of the historically problematic relationship between Indigenous communities and police.
In their submission to the Standing Committee, the NSW Police Association acknowledge the broader serious social disadvantages facing Indigenous communities as well as the more specific feelings in Redfern of ‘lost heritage, pride, status and identity.’[27] With regard to those social factors, the Police Association state that the ‘most that policing can do on its own is to contain the more overt symptoms from the broader public eye and remove some of the external factors (such as the drug trade) that exacerbate these problems.’[28] However, such a view is disingenuous as it obscures the role that police have played and continue to play in the overwhelmingly negative intervention that colonial Australia has had in Indigenous life. The idea that police play a neutral or regulatory role in Indigenous life is misconceived. Rather, the criminal justice system has historically assumed a fundamental role in the mediation of colonial relations in Australia.[29]
The Police Association further recommend that police should be ‘sensitive to the needs of the community and trained in the unique policing strategies that are required... officers should have an understanding of the cultural differences of the local community.’[30] Sadly however, this is immediately followed with the seemingly irreconcilable recommendation to establish a ‘permanent OSG readily available to the Redfern LAC, or have as many police as possible that are attached to Redfern to receive similar training to the OSG.’[31]
As Cunneen points out, ‘racialised constructions of Indigenous people continue to provide the context in which police decision making occurs.’[32] Strike Force Coburn is but the latest example in this continuum.
The internal police investigation into the Redfern riot treats it as a generic public order incident and refuses to acknowledge police involvement in the breakdown of Indigenous-police relations. While the Aboriginal community at Redfern may be living the legacy of more than 200 years of violent colonisation, the police role in that process cannot be overstated. It is difficult to see Coburn, with its complete neglect of the underlying causes of the riot and reliance upon recommendations of enhanced policing, as anything but reactive and short-sighted. Until there is real justice, there is every possibility of another riot.
Neal Funnell is a Law Student at the University of NSW.
[1] See for example: John Stapleton and Drew Warne-Smith, ‘Called in by Elders, 250 Police Swoop on Redfern’s Dealers’, The Australian (Sydney), 31 July 2004, 3.
[2] NSW Police, Strike Force Coburn: Final Report – Part A Analysis – Redfern Local Area Command Civil Unrest 15-16 February 2004 (‘Coburn’) (2004) 86-91.
[3] Chris Cunneen, Conflict, Politics and Crime (2001) 77.
[4] John Abernathy, NSW State Coroner, ‘Inquest into the death of Thomas James Hickey’, Number 287 of 2004, 17 August 2004, 23.
[5] Ray Jackson, Indigenous Social Justice Association (Media Statement, 13 October 2004).
[6] Coburn above n2, 8.
[7] NSW Legislative Council Standing Committee on Social Issues, Parliament of NSW, Inquiry into Issues Relating to Redfern and Waterloo: Interim Report (2004) 68.
[8] Coburn above n2, 24-37.
[9] The ‘glock incident’ refers to the arrest of an individual in Eveleigh Lane in The Block. It was alleged that the police were subsequently set upon by a crowd who attempted to remove the detainee from their custody and during which time one of the officers had their glock removed from their possession for a short period of time.
[10] For a summary of Indigenous people in the criminal justice system, see Chris Cunneen above n3, particularly Chapter 2 ‘The Criminalisation of Indigenous People’.
[11] Coburn above n2, 7. The Riot is variously referred to as ‘civil disobedience’, ‘the riot’, ‘organised street battle’, ‘the Redfern incident’, ‘unplanned public order incident’, and ‘violent public order incident’.
[12] John Watkins, Minister for Police, Media Release, (16 July 2004), ‘Redfern Crime Plan: Enhanced Numbers, Training, Response and Relations.’
[13] Ibid 8.
[14] Chris Cunneen, Aboriginal—Police Relations in Redfern: With Special Reference to the ‘Police Raid’ of 8 February 1990 (1990) 1-3. The book provides an excellent overview of policing practices in Redfern in the 1980s.
[15] The Hon Hal Wootten AC QC, ‘Aboriginal Legal Services’ in Garth Nettheim (ed), Aborigines Human Rights and the Law, (1974), 60.
[16] Cunneen above n14, 9-10.
[17] Submission No 59 to Standing Committee on Social Issues above n6, NSW Parliament, Sydney, 2004, 8 (Ian Ball, NSW Police Association).
[18] Submission No 50 to Standing Committee on Social Issues above n6, NSW Parliament, Sydney, 2004, 2 (Helen Campbell, Redfern Legal Centre).
[19] Ibid 12.
[20] See, eg, R Hogg, ‘Penality and Modes of Regulating Indigenous Peoples in Australia’ (2001) 3 Punishment and Society 355, citing Justice Wells of the Northern Territory who argued in 1883 that flogging was ‘the only punishment that aboriginals appreciate...’
[21] Coburn above n2, 11.
[22] Ibid.
[23] Ibid.
[24] Ibid, 44.
[25] Ibid.
[26] Ibid.
[27] Ian Ball above n17, 4.
[28] Ibid 3.
[29] Mark Finnane and John Maguire, ‘The Uses of Punishment and Exile: Aborigines in Colonial Australia’ (2001) 3 Punishment and Society 279, 294.
[30] Ian Ball above n17, 8.
[31] Ibid.
[32] Cunneen above n3, 128.
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