Legal experts in Australia have said it is “in the public interest” to reopen investigations into several high profile Aboriginal deaths in custody and that implementing recommendations made from 13 previous inquiries could immediately reduce Indigenous incarceration rates by 20-30%.
Law professor at the University of Technology, Sydney, Dr Thalia Anthony, echoed the calls of Black Lives Matter protesters and the family of David Dungay, for state and territory public prosecutors to investigate past cases “where there has been insufficient coronial inquest and insufficient investigation”.
“There needs to be criminal investigation, not only to re-examine the evidence, but in light of standards we have for the treatment of First Nations lives,” Anthony said.
“In the past, First Nations lives have been treated as though they don’t matter, they’re expendable. And therefore the standard of care expected of the officers who are responsible for their lives has been very low,” she said.
“We now need to revisit this evidence with the highest standard and bring prosecution, especially manslaughter, and apply this highest standard for officers.”
Anthony cited the case of Mulrunji Doomadgee, who died from extensive internal injuries, including a ruptured liver, in the Palm Island police station in 2004. Several inquiries into the case did result in a prosecution. Police officer Chris Hurley initially claimed Doomadgee had tripped but was charged with manslaughter over the death. He was acquitted in 2007.
The Queensland government paid a $30m settlement and delivered a formal apology to the people of Palm Island, after the federal court found police officers breached the Racial Discrimination Act and acted unlawfully in responding to riots over his death in custody.
“When the DPP instigate charges, they do it on a number of bases. So that includes the public interest. At the time, there may not have been a public interest to prosecute, but with this shift in public consciousness around the issues you could say at this point there is public interest to prosecute.”
Anthony also called for urgent judicial reforms, many of which have been detailed in at least 13 different national investigations into Indigenous incarceration rates since 2009.
(January 1, 2009) Senate access to justice inquiry
(31 recommendations)
(January 1, 2010) Australian Law Reform Commission inquiries into family violence and family violence and commonwealth laws
(January 1, 2011) Lower house inquiry into Indigenous youth experiences with the criminal justice system
(40 recommendations)
(January 1, 2012) Lower house inquiry into the prevention and diagnosis of foetal alcohol spectrum disorders
(19 recommendations)
(January 1, 2013) Senate inquiry into justice reinvestment
(Nine recommendations)
(January 1, 2014) Productivity Commission report on access to justice
(83 recommendations)
(January 1, 2015) Senate Standing Committee on Indigenous Affairs inquiry into Harmful Use of Alcohol in Aboriginal and Torres Strait Islander Communities
(January 1, 2016) Senate Standing Committee on Finance and Public Administration inquiry into Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services
(January 1, 2016) Senate Standing Committee on Community Affairs inquiry into Indefinite Detention of People with Cognitive and Psychiatric Impairment in Australia
(January 1, 2017) The Royal Commission into the Protection and Detention of Children in the Northern Territory
(227 recommendations)
(January 1, 2018) Australian Law Reform Commission’s Pathways to Justice
(January 1, 1994) Reports of the Aboriginal and Torres Strait Islander Social Justice Commissioner
(January 1, 2010) The National Plan to Reduce Violence against Women and their Children
Anthony supports the establishment of an Indigenous-led independent commission looking into Aboriginal deaths in custody, and monitoring statistical trends.
But she said there are law reforms that can happen now if state and territories are willing, including bail reform, efforts to reduce the number of people on remand, and the decriminalisation of minor offences.
“That would include public order offences and offensive language, move-on laws, it would include shoplifting – that should be dealt with through a civil process – traffic offences like unregistered, unlicensed or uninsured vehicles, should all be dealt with through the civil system,” she said.
“And if you get rid of those offences, I think you would probably reduce, especially for First Nations women, the prison rates by 20 or 30%.”
The national cabinet model, which has proved so successful in managing Covid-19, shows urgent reforms are possible, Anthony said.
“Those were really hard decisions. They required a lot of leadership, and I think they were more effective because that leadership was coordinated.
“The only way to have public confidence that dramatic change will occur is that it has to happen through coordinated leadership,” she said.
“I think that then stops any kind of parochial argument that one state or territory is immune from this injustice, because we know deaths in custody occur in every single jurisdiction, racial violence occurs in every single jurisdiction as does the overrepresentation of First Nations people in both adult and and youth detention.”
This week, justice groups like Amnesty and bereaved families have called for an end to “police investigating police”.
The minister for Indigenous Australians, Ken Wyatt said while every death in custody is a tragedy, “there is no simple solution and no single answer” and that the states and territories “hold the policies and levers relating to policing and justice matters”.
Wyatt confirmed there will be stronger justice targets in the Closing the Gap refresh being finalised and due to be released in July.
