Royal Commission into deaths in custody

Contributed by Dennis Eggington, Tonia Brajcich, Angela Bromfield, Diane Winter and Antonio Buto and current to 1 September 2005

The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) was established by State and Commonwealth Governments on 16 October 1987 as a response to public concerns about the number of Aboriginal deaths in custody.

The RCIADIC investigated and reported upon the deaths of 99 Aboriginal and Torres Strait Islander individuals. Thirty two of those deaths occurred in Western Australia. On 9 May 1991, the final report of the RCIADIC was tabled in Parliament. This consisted of 5 volumes which contained 339 specific recommendations.

In addition there are the reports of Commissioner O’Dea (2 volumes) who discussed the individual deaths in WA and Commissioner Dodson (2 volumes) who examined the underlying issues involved in the deaths in WA.

Although the Commissioners generally did not find evidence of deliberate foul play and violence by the custodians, they did find gross evidence of a general “lack of care” by custodial authorities.

From an early stage in investigations the disproportionate rate at which Aboriginal and Torres Strait Islander peoples are arrested, detained and imprisoned was identified as the principal explanation for the large number of Aboriginal and Torres Strait Islander deaths in custody.

As a consequence the RCIADIC largely focussed on the underlying issues which contribute to the appalling imprisonment rate of Aboriginal and Torres Strait Islander peoples. The Royal Commission found the most significant factor contributing to the over-representation of Aboriginal and Torres Strait Islander peoples in custody is the disadvantaged and unequal position that they find themselves in Australian society today.

Although the recommendations of the National Report address issues of health, alcohol and drug abuse, education, economic opportunity, housing and land needs, about 200 of the recommendations are concerned with law and justice issues. These recommendations focus on improving custodial health and safety, the prison experience, relations between Aboriginal and Torres Strait Islander peoples and the police, the juvenile justice system, the adult criminal justice system and post-death investigations.

In 1994, the Aboriginal Legal Service of Western Australia (Inc) (“ALSWA”), which has played a large role in monitoring the implementation of the various recommendations, reported that despite the recommendations of the Royal Commission, Aboriginal and Torres Strait Islander individuals in WA were 51.9 times more likely to be detained in police custody than other individuals. This is double the level of representation of any other State or Territory.

The most recent progress report into the implementation of recommendations is the Western Australian government’s 2000 Implementation Report, which can be accessed via the Department of Indigenous Affairs’ website at www.dia.wa.gov.au. This report describes the progress of each recommendation and also contains a statistical report on the involvement of Aboriginal and Torres Strait Islander individuals in Western Australia’s criminal justice system.

Other means of attempting to address the over-representation of Aboriginal and Torres Strait Islander peoples in custody have occurred through:

• the application of sentencing principles by the court: see, for example, R v Scobie (2004) 28 Crim LJ 179;

• the establishment in prisons of the At Risk Management System (ARMS). Under this system, if a prison decides that a prisoner is at risk of self-harm or suicide, certain measures are put in place to reduce that risk. Any person with a concern about a prisoner can notify the prison, but the decision about whether or not to implement ARMS rests with the prison;

• community initiatives such as the Deaths in Custody Watch Committee, an organisation that campaigns for remembrance of individuals who have died in custody, support for the families who survive them, and implementation of measures to prevent further deaths in custody. To do so, the Committee regularly liaises with the Inspector of Custodial Services, communities, organisations and government;

• the operation in WA prisons since 1988 of the Aboriginal Visitors Scheme.

The influence of culture as a factor in custody decisions

The 1997 case of In the Matter of: In Re CP [1997] Unreported No NA 25 & 26 / 1996 involved a custody dispute between the child’s biological family, who were from the Aboriginal Tiwi culture, and a woman from a different Aboriginal culture who had cared for the child for a number of years. The trial judge balanced up the list of factors including culture and granted custody to the carer. The biological family appealed. The appeal succeeded. The appeal court decided that the trial judge had not given enough weight to the child’s own cultural heritage which was Tiwi.