EVERYTHING YOU NEED TO KNOW ABOUT THE 30TH ANNIVERSARY TO THE ROYAL COMMISSION INTO ABORIGINAL DEATHS IN CUSTODY
By Tyson Holloway-Clarke (Njamal)
Juris Doctor Candidate at the University of Melbourne
Disclaimer: This article contains names and references to deceased Aboriginal and Torres Strait Islander people and the manner in which they died. Discretion is advised.
On April 15th 1991 the Royal Commission into Aboriginal Deaths in Custody was tabled in federal parliament (RCIADIC, 1991). This year marks the 30th anniversary of the delivery of that report and since then deaths in custody have risen significantly.
A brief history
Between the 1st of January 1980 and the 31st of May 1989 a total of 99 Aboriginal and Torres Strait Islander people died in custody. All of those deaths were premature and the story of their deaths were shaped by the discrimination and mistreatment they faced because of the Aboriginality (RCIADIC, 1991, 1.1.1). In response to these deaths and the broader mistreatment of Aboriginal and Torres Strait Islander people at the hands of authorities, the Indigenous community took a stand and demanded action. Eventually these deaths became the focus point for the Royal Commission into Aboriginal Deaths in Custody.
There was not one single event that pushed the Hawke government to take action, there were instead a culmination of a few key events. One of the most notable events was the tragic death of Yindjibarndi young man named John Pat. On the 28th of September 1983 John Pat was beaten to death in Roebourne Western Australia by five off-duty police officers after intervening to prevent the racially motivated harassment and assault of another Aboriginal man named Ashley James. John Pat was just 16 when he passed away. The coroner and investigation found with no uncertainties that John had died from the injuries suffered at the hands of police, as supported by over 70 eye witnesses.
Despite the evidence and the falsification of the police reports, the all white jury acquitted the perpetrators and they were all reinstated as officers. John Pat’s tragic death served as a national “symbol of injustice and oppression,” (RCIADIC, John Peter Pat). After a strong campaign for change that included a submission to the United Nations, the government established a Royal Commission into Aboriginal Deaths in Custody (Marchetti, 2005).
The report itself
The key findings of the report were that Aboriginal people were being taken into custody and incarcerated at an extremely disproportionate rate. The commissioners found that when Aboriginal people were taken into custody the authorities consistently failed to fulfil their duty of care. They also found that there was a great deal of mistrust around official investigations into deaths in custody by police and that independent investigations ought to be implemented (RCIADIC, 1991, 1.2.1). The Royal Commission wrote extensively not only on the 99 deaths they investigated, they also wrote broadly on the historical, social, economic, and legal factors associated with deaths in custody.
In total, the Royal Commission spans 38 chapters across 5 volumes and concludes with 339 recommendations. The commissioners were Patrick Dodson, D.J. O’Dea, John Hal Wooten AC, QC L.F. Wyvill, and QC. Elliott Johnston. Of the group Patrick Dodson, now Senator for Western Australia, was the only Indigenous commissioner but many other Indigenous people contributed by giving evidence or by acting as investigators on behalf of the Royal Commission. Notable among the investigators was Associate Professor Richard Franklin, a Gunditjimara artist, academic and activist.
The recommendations and where we are today
The recommendations put forward by the Royal Commission were incredibly varied, given that the commissioners placed significant emphasis on the broader political, cultural and social causes of deaths in custody. They knew that the effects of colonialism and institutional racism were just as much to blame as bad processes and individual actors.
While we cannot talk about every recommendation in this article, there are a few key recommendations worth mentioning specifically. Recommendation 87 asked that police uniformly adopt arrest as a last resort. Recommendation 188 asked governments to be ready to engage with Indigenous communities and organisations to best embed self-determination practices across all policies and programs affecting Indigenous people.
Controversially, in 2018 Deloitte delivered a report to the Department of Prime Minister and Cabinet that argued that some 78% of the recommendations had either been fully or mostly implemented across the states and territories and federally (Deloitte, 701). In direct response 33 academics from around the country partnered with the Centre of Aboriginal Economic Policy Research from ANU to refute these claims.
The Deloitte report, titled “Review of the implementation of the recommendations of the Royal Commission into Aboriginal deaths in custody” is arguably flawed because it argues that part and full implementation can be achieved by review, non-compulsory policy change, and without considering whether implementation has had any effect. It also makes no critique of recommendations that have gone backwards.
The ANU report, titled “Joint response to the Deloitte Review of the implementation of the recommendations of the Royal Commission into Aboriginal Deaths in Custody” (Jordan et al., 2018), highlights specific examples of where the Deloitte report is misleading. One example is regarding recommendation 87 where in the Northern Territory ‘paperless arrests’ have been implemented. In a paperless arrest, the police can arrest an individual for virtually no reason, detain them for 4 hours without charge and release them with no review (Jordan et al., 2018, 3). It has been found that 90% of paperless arrests were Aboriginal people (Hunyor, 2016). Beyond that, the ANU report argues that the Deloitte report intentionally makes no mention of the fact that while they say arrest is the last resort, arrests have been steadily increasing since the Royal Commission.
Many different Indigenous advocacy groups and organisations are pushing for a wide variety of reforms in incarceration and police accountability. Recently Eddie Cubillo, the Senior Indigenous Fellow of the University of Melbourne called for real action to be taken on deaths in custody, highlighting the government’s preference for spin over substance.
Real action on deaths in custody looks like conforming with international law and ensuring impartial investigations into deaths in custody. In 2019 the United Nations through the Human Rights Council delivered a report titled “Human rights in the administration of justice”. It echoed the recommendations made in the 1991 Royal Commission into Aboriginal Deaths in Custody. Together they made the case for proper independent and impartial investigations.
Real action looks like police accountability and prosecution for deaths in custody. Real action looks like ending paperless arrests in the Northern Territory, and enforcing arrest as a last resort. Real action looks like Raising the Age of criminal culpability and putting a stop to the cycle of incarceration. Real action looks like a real seat at the table in the criminal justice system and in the courts. You can read more about the campaigns for change at Raise the Age and NATSILS.
Deloitte Access Economics, (2018) Review of the implementation of the recommendations of the Royal Commission into Aboriginal deaths in custody, Department of Prime Minister and Cabinet.
Dodson, P., O’Dea, D.J., Wooten J.H., Wyvill L.F., & Johnston, E. (1991) Royal Commission into Aboriginal Deaths in Custody. Parliament of Australia.
Jordan, K., Anthony, T., Walsh, T., & Markham, F. (2018). Joint response to the Deloitte
Review of the implementation of the recommendations of the Royal Commission into Aboriginal Deaths in Custody. Centre for Aboriginal Economic Policy Research, no.4/2018, https://doi.org/10.25911/5c18bed55394c
Holloway-Clarke, T. (2021, April 15). Everything you need to know about the 30th anniversary to the Royal Commission into Aboriginal Deaths in Custody. Blak Business. Retrieved [INSERT DATE: MONTH, DAY, YEAR], from https://www.blakbusiness.com.au/rciadic
Holloway-Clarke, Tyson. "Everything you need to know about the 30th anniversary to the Royal Commission into Aboriginal Deaths in Custody." Blak Business, 15 Apr. 2021, www.blakbusiness.com.au/rciadic. Accessed [INESRT DATE: DAY, MONTH, YEAR].