Australian deaths in custody - Twenty years later - Nothing has changed - The answers do exist

Australia has one of the world’s worst deaths in custody records. As a researcher I have compared Australia 's deaths in custody record in terms of proportion to populations with other countries. Deaths in custody includes prison and police custody. We compare badly with even Apartheid South Africa .

The 15th of April marks twenty years since the release of the 339 recommendations and the Final Report from the Royal Commission into Aboriginal Deaths in Custody. Parliament accepted 338 recommendations and rejected one. 46 recommendations related to workplace occupational and safety. 70 related to police custodial units, over 90 recommendations referred to the prison custodial units. Close to 100 recommendations described how we should engage with people. Many recommendations advocated for appropriate levels of funding into Aboriginal communities so Aboriginal folk can adequately accumulate infrastructure, equity, health and education. Many recommendations sought significant investments into healing between peoples. Many recommendations described the need for preventative and restorative justice where people rather than being incarcerated for minor offences would be helped through treatment centres, support services, diversionary programs, educational and employment opportunities and community programs advanced by Elders and Senior Elders.

For more than one and half years The Human Rights Alliance has been campaiging for a Senate Inquiry into Australian Deaths in Custody. We have asked our 76 Senators to call for the Inquiry and as a Joint Committee with Senior Elders and specialist researchers who can ensure throughcare to outcomes rather than recommendations set aside as has become the predicament with the majority of the 338 Parliament ratified recommendations from April 15, 1991. We are disappointed the Greens watered down our call for the Inquiry with a recent Motion in the Senate, approved (with reduced content) merely acknowledging the perpetuation of our horrific deaths in custody record. Organisations such as the HRA and Aboriginal legal services and Aboriginal community groups, including the Indigenous Social Justice Network and the Human Rights Commission, are in support of an urgent Senate Inquiry, and we are not prepared to sit by and wait for more reports to state the obvious.

There is little to celebrate twenty years later. There are more non-Aboriginal deaths in custody than Aboriginal deaths. The rate of Aboriginal deaths in custody is higher than in South Africa during the peak of apartheid (excluding Apartheid South Africa ’s ex-judicial killings). Most Australians have not realised the extent of deaths in custody, and we must ensure they do so we can move to the next step of procuring genuine remedies and save (and change) lives.

I have written widely about the shameful stagnancy resultant from the fact that the 338 recommendations have not been implemented. Aboriginal deaths in custody have risen, 20 years after the Royal Commission. The Commission report made 339 recommendations, but — in terms of police and prison custodial handling and services — most of the recommendations have not been carried out or substantially budgeted for. There are also the non-Aboriginal deaths in custody, which account for 81% of all deaths in custody.

99 Aboriginal folk died in custody between 1980 to May 1989. From 1991 to 2008 270 Aboriginal folk have died in custody. In the last two years, according to my personal research there have been another thereabouts 30 Aboriginal deaths in custody. There have been 2056 deaths in custody between 1980 to 2008 and according to my personal research thereabouts another 160 deaths in the last two years. Nationally, the annual average of deaths in custody was 71 in 1991 however during 2008 we recorded 86 deaths in custody. In 1990 there were 15,000 people incarcerated in Australian prisons, we now incarcerate more than 30,000. The Australian population has not doubled during the last two decades!

We have to understand the mental despair that brought about 494 suicides in prison and police custody during 1980 to 2008. We need Senate Inquiries to analyse the figures from the data of the Australian Institute of Criminology which classified far too many deaths as natural causes. When people are dying on average at 34 years of age, and many in their early twenties we cannot merely group these as 'natural causes of death'. In the state of WA we have more Aboriginal deaths in custody than non-Aboriginal, and this is not the case in other states. In WA Aboriginal folk dying in police custody do so at the median age of 20! This is the lowest age in Australia . WA has to explore the issues that lead to our youth dying in these ways. In the end I sympathesize with many of our police and prison personnel as they are victims of their practices and protocols. Zero tolerance practices are laced with agression and violence.

In WA alone there are 4,700 prisoners at a direct cost to the state of more than half a billion and an indirect cost to the state in the many billions, in terms of health, mental health and community burdens and in terms of dysfunctional families and hence the perpetuation of vicious cycles. 40% of our prisons are filled with Aboriginal people, 68% of our juvenile detention centres with Aboriginal youth. 70% of Aboriginal adults reoffend, and 80% of Aboriginal youth reoffend. In this article I would like to describe some of the answers.

The answers do not lie in mandatory sentencing, nor in increased jail sentences - they have risen by on average 118 days - nor in early parole denials. The answers do not lie in building more jails. A new jail is being built in this country every year. Build jails and what happens is that they are filled. It is only now with the acknowledgment of overcrowding in our jails, and its effect on the mental health of prisoners, increasing suicide rates, that we are considering other options. I believe people are good, and all people have some good in them and here lies the solution - tap in to the goodness.

I have visited jails to promote alternative pathways and hope to prisoners. They jump at the chance - there is a real yearning for their form and content to make them employable and contributing to their family and community. Half the road is about helping people to believe in their capacities and the other half to provide the opportunities for education and employability. In WA Aboriginal juveniles make up two thirds of juvenile detention, and they are forty times more likely than non-Aboriginal youth to finish up there. Nationally they are 30 times more likely. Many of us know the statistics or have a fair idea. The sole reason that we have these abominable rates is because of Aboriginal disadvantage. Poverty, for any Australian, is the primary cause of crime and its recidivism.

There are some strategies which have been proposed which will work. One such strategy is Justice Reinvestment, a restorative form of justice, where communities with an over representation of people in the criminal justice system are assisted with target specific funding for infrastructure and various services. The community is encouraged to take a role in its accountability and in working within itself to make for a safer immediate society. Such communities take ownership of diversion programs, preventative crime programs, rehabilitation and education programs, and community counselling programs. In some communities they have taken responsibility for managing ‘prisons’. They have proven to have done better jobs than that of for instance private prison management companies, who arguably are led by a profit motive, such as G4S and Serco. There are many examples of where this localised management has worked. Privatised prisons should be a concern at this time because in Australia people die in privatised prison custody at more than three times the rate than they do in government prisons. 1.3 per thousand prisoners die each year in a government prison as opposed to 4.5 deaths per 1,000 prisoners in privatised prisons. The national average is 1.9 prison deaths. A Senate Inquiry must explore these figures.

In Alberta, Canada the first nations people coordinate the National Couselling Service of Alberta and have taken charge of educating and assisting families experiencing domestic violence and mental trauma, and as a result have decreased family violence and have educated family members of their roles as protectors and providers. The Canadian Government confirmed that 80% of the participants in these programs did not reoffend. Justice Reinvestment works in the manner that money saved from less people in jail who have instead been helped by these programs is then reinvested in the community to provide more services, opportunities and infrastructure. In the end we must acknowledge that only self determination changes people. They have a right to protect and promote their cultural settings and hence find their esteem filled place in the world. It works. Ones cultural and historical identities should not be a liability!

These Justice Reinvestment programs bring community together and this includes the Police, Corrective Services, the criminal justice system, community organisations, the local councils, health services, and the non government organisations. This enshrines secure cultural settings and a place for all people. It breeds understanding and ensures inter and intra cross cultural awareness.

From the Australian Human Rights Commission I have learned that such programs have worked in Oregon where “there was a 72% drop in juvenile incarceration, after money was reinvested in well-resourced restorative justice and community service programs for juvenile offenders.” As a result Texas reinvested $241 million in ‘treatment programs and improved probation and parole services’. What is beautiful is that the ‘Texan prison population stopped growing for the first time in decades.’ From other sources I have identified that these community programs have been effective in Ohio’s criminal justice system, in Indiana where the Governor and state leaders described a strengthening of increased public safety and lower reoffending rates as a result of reinvestment initiatives. In New Hampshire these programs have led to reduced spending on correction facilities and once again achieved increased public safety. In Perth, we have such a program, the HALO program, whose participants have not reoffended and are involved in worthwhile community and self-esteem building pursuits. Isn’t this what we want?

Firstly, if we want to halve our prison population we must invest and reinvest in our Aboriginal brothers and sisters. Let us address Aboriginal disadvantage, which we have imposed upon them, however let us ensure that we allow for the political conviction of Aboriginal advancement by Aboriginal people. Many of us who mean well must know when to step away from working on the front-line towards Aboriginal advancement and allow them to do it for themselves, be the managers and policy makers and the agents of change. This goes for government, human rights groups and community organisations. No one wants to be made feel like that they are dependent upon others. In the pursuit of India’s liberation many non-Indian folk who assisted towards this either stepped back or Gandhi asked them to step back when he needed to ensure Indian advancement by Indian people. Secondly, we need to ensure what shall remain of our prison facilities shall have a full suite of psycho-social counsellors, psychologists and mentors present and on stand-by, and that these remaining prisons are exemplified with diverse education facilities and employment generating opportunities to help people, all people, in terms of their future prospects and place within society rather than harden them up for reoffending.

Mandatory detention does not work in improving society or in rehabilitating people, it only serves to fill our jails, and has contributed to an unfortunate need for more jails. If we continue in the belief that we should have a harsh criminal justice system then we will be burdened with a new jail every year, and with an annual $200 million cost for each jail to be managed whether by the Department of Corrective Services or by a private profiteer such as G4S or Serco. Sadly, private management companies are moving into many layers of government services (the criminal justice system, immigration, transport, health, welfare and I have it on good authority before we know it into child and family services and education). Mandatory sentencing and a harshly inflexible formal criminal justice system that does not recognise the need for substantive equality understandings are hardening criminality and breaking the human spirit. Substantive equality requires us to recognise disadvantage and in order to treat people equally we may need to treat many of them differently, pro-socially, and work with them and for them. By so doing we tap into the good that is in all of us. Let us move as far away as possible from the bars and barbed wire. To take the first steps towards decreasing deaths in custody, and in helping the poorest and most troubled in our prisons overcome trauma and to become employable, and to decrease our prison populations and bring on humanity in all its pride to society we must begin with a legitimately empowered Senate Inquiry into Australian Deaths in Custody, as a Joint Committee of Senators, Aboriginal Elders and experts so as to ensure throughcare to outcomes. With the passing of each day people are hardened into reoffending, less than every five days someone dies in custody, and with the passing of every year another jail is built.

Gerry Georgatos
PhD (Law) researcher in Australian Deaths in Custody
Convener of The Human Rights Alliance