Death in custody should be explored before the criminal justice system and the buck should not be passed as happens. 2,300 Australian deaths in custody since 1980

In terms of culpability and liability the death of the Warburton Elder in the back of a prisoner transport typifies so many unwarranted deaths in custody in Australia including the Palm Island death in custody, the impaling death of the young man in Redfern, and so many thousands of other deaths. Australia has a long tragic history of deaths in custody, and is not limited to the horrific record during the last 31 years which has claimed in excess of 2,300 lives. Australia was built on a penal colony, a birth of prisons, the indenturing of prisoners and humanity, the dispossession and disenfranchisement of Aboriginal peoples, their incarceration and where possible genocidal practices against them, their high death tolls in penal establishments such as Wadjemup (Rottnest Island, Western Australia). In the following short script I refer to the Warburton Elder who died on January 26, 2008 in the back of a prisoner transport van, and in reference to the fact that the WA Department of Public Prosecutions did not instruct in pursuit of criminal charges and in reference to the subsequent limitation that his death can be considered by WA's Worksafe as a 'workplace related death' and hence occupational and safety breaches can be successfully prosecuted. This is not enough, and should not be for any fair minded person.

It is arguable whether the 46 year old respected Warburton Elder died within the limitation of a workplace death. The Elder was not an employee of G4S or of the Department of Corrective Services. He was in their duty of care. Limiting his death to a Worksafe investigation in relation to a 'workplace related death' limits liability and culpability. We are limited only to fines and penalties in relation to failsafe protocols being disregarded or breached, and that conduct rather than being criminal was merely misconduct and impropriety and negligence without it being deemed criminal.

If there was no air-conditioning in the transport vehicle on the 42 degrees day this is much more than misconduct. Worksafe has a right to insist that the transport vehicle and the practices of G4S, the drivers, and the Department of Corrective Services do ensure the safe and healthy transport of those detained by the criminal justice system. However Worksafe must insist that this is not a workplace related death and rather that they have taken issue with the occupational and safety breaches alone. The fact is that the Warburton Elder, died by definition, while in custody. This is a death in custody. Therefore the jurisdiction in reference to accountability must return to the appropriate Courts and the DPP does have the capacity, and so does the Government, to lay criminal charges, and not cheat justice and society by limiting this death to a workplace related death. At all times we must qualify the manner and cause of death of the Warburton Elder as a death in custody.

If G4S is prepared to admit it failed to ensure safe systems, and it has apparently pleaded 'guilty', and if the Department of Corrective Services continues to recognise its liability and culpability, hence there does exist, and beyond all reasonable doubt, a habeas corpus/prima facie exploration before the criminal justice system. This is the only mechanism that will ensure that all parties, whether they be police or prison custodial related and the ministries that manage their oversight and acquit their practices shall implement the full weight of the recommedations relating to them from the 338 recommendations accepted by Parliament from the Final Report of the Royal Commission into Aboriginal Deaths in Custody.

If we are misguided into merely a workplace related death and in as such the death in custody is limited to only a statistical notation with the Australian Institute of Criminology then we will have only the piecemeal changes and gains such as the new prisoner transport fleet, some changes to the Bail Act, some Watchhouse protocols, and the odd compensation pay-out. However without justice being served substantively through the criminal justice system we shall not have changes to legislation, processes to ensure accountability and to deter criminal and other negligence by personnel from the police and DCS and from those they contract out to, we shall not diminish zero-tolerance practices and outrageous behaviours and disregard for humanity, and we shall not change arrest practices and refine the warrant for remand. The surface level changes do mean something however it is only the deep routed changes that will bring on justice and eliminate pervasive systemic problems.

Gerry Georgatos
PhD in Law researcher in Australian Deaths in Custody