‘What Happens Next?’: Why Is the Rate of Black Deaths in Custody So High?
Over the next two episodes of the What Happens Next? podcast, we’ll take a look at Indigenous incarceration in Australia.
More than 30 years ago, a royal commission was set up to investigate black deaths in custody, but what did we learn from that inquiry? Why are Indigenous incarceration rates in this country still so high?
Our guests are Monash University’s Professor Jacinta Elston, Aboriginal and Torres Strait Island human rights lawyer Meena Singh, and criminologist Dr Kate Burns.
“We've had a history that has deliberately given us disadvantage over the period of 230-odd years.”Meena Singh
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Transcript
Susan Carland: Welcome to another episode of What Happens Next?. I'm Dr Susan Carland.
Over the next two episodes, we will take a look at Indigenous incarceration in Australia. Over 30 years ago, a royal commission was set up to investigate Black deaths in custody, but what did we learn from that inquiry? Why are Indigenous incarceration rates in this country so high still?
Stories of racial and ideological profiling and brutality from police, to a legal system that often leaves families and survivors feeling let down, have many wondering what society could look like if we fail to re-imagine our policing and justice systems. What are some of the policies and initiatives that are needed to address the issue?
Our guests are Professor Jacinta Elston from Monash University; Aboriginal and Torres Strait Island human rights lawyer, Meena Singh; and criminologist Dr Kate Burns. Welcome to part one of Indigenous Incarceration on What Happens Next?.
Jacinta Elston: I think for myself and most other Aboriginal and Torres Strait Islander people, we'd see the Indigenous incarceration rates being driven predominantly by systemic bias, issues of racism, and the long-term impacts of a colonial structure.
Susan Carland: Professor Jacinta Elston is the inaugural Pro Vice-Chancellor (Indigenous) at Monash University, and director of the William Cooper Institute.
Jacinta Elston: That drives not just the fact that we've got people who are disenfranchised in our communities, but it also drives the way that they're dealt with in the criminal justice system.
Susan Carland: Right. So when you say systemic bias, what do you mean? What does that look like?
Jacinta Elston: The system is biassed towards many and most Aboriginal and Torres Strait Islander people in the context of the way that they transition through a system. So we've got lots of great work that's happened over many years by Aboriginal and non-Indigenous leaders to create safer environments for Aboriginal and Torres Strait Islander people who are coming into contact with the criminal justice system, and particularly in youths. And so things like Koori Courts and Murri Courts in Queensland, all of those sorts of things have been really important. The initiatives like that are about trying to address the systemic bias that sits inside of systems in our society that means that indigenous mob may not have had the same sentencing outcomes as their peers for the same types of crimes. It's comparing apples and apples instead of apples and oranges.
And when you look at our mob, and I remember some work that was going on at ANU by Indigenous colleagues there and others, where they were actually comparing the crimes that people committed, the interactions that happened with them during that sentencing process; did they get remanded? Did they get out on bail? Do they end up serving more time than their counterpart who's non-Indigenous for the same type of crime, with the same type of criminal history behind them? All of those issues kind of led that group of colleagues to say actually there was a systemic bias that was against Aboriginal and Torres Strait Islander people that meant that they were more likely to receive harsher penalties in sentencing than others for the same sorts of crimes. And so we have to kind of come back and think about what is it inside of our society, inside of our systems, that predisposes Indigenous people to be disadvantaged right from the start?
Susan Carland: Right. So sort of looking further up the river, not just looking at the end of the river where people are drowning, but what's causing the people to fall in the river in the first place?
Jacinta Elston: Fall in the river in the first place, yeah.
Meena Singh: We've had a history that has deliberately given us disadvantage over the period of 230-odd years.
Susan Carland: Meena Singh is a Yorta Yorta and Indian woman and legal director at the Human Rights Law Centre.
Meena Singh: If you look at the different policies and practises that have been imposed on Aboriginal people since British invasion; practises of removal from the land, of massacres, of ill health, to this century of stolen generation; those are the things that all create vulnerabilities for Aboriginal people. They take away the strengths of community for Aboriginal people. And they're the things that make us have far greater rates of likelihood compared to non Aboriginal people, because us collectively have been through those things. And people often think about colonisation as something that happened in the past, that we're done with, that we're in a post-colonial society, when really we're still in a colonial society and we're still experiencing the impacts, the long-term intergenerational impacts of those policies. So it's not just our criminal and law and order type issues that disproportionately affect us. There are a whole range of other issues.
Susan Carland: Dr Kate Burns is a criminologist at Monash University. She agrees that the impacts of intergenerational disadvantages and trauma all contribute to such high rates of incarceration in the Indigenous population.
Kate Burns: Obviously there's not easy solutions, but a lot of the reasons are related to colonisation and the effects.
Susan Carland: So tell us about what are the knock-on effects that we would be seeing today that are the echoes of what happened 200 odd years ago, that would lead to increased incarceration
Kate Burns: So we see obviously the ongoing trauma, intergenerational trauma that we see across the generations. Ingrained poverty and disadvantage, marginalisation. And this has happened generation after generation. And we also see issues of institutionalised racism, and we see that throughout the criminal justice system.
Susan Carland: So what does that look like?
Kate Burns: So the reality is that Indigenous Australians are over policed.
Susan Carland: What does that mean?
Kate Burns: So what that means is that Indigenous Australians don't commit more crimes or more serious crimes, but they are more likely to be stopped by police, they're more likely to be arrested and charged, they're more likely to be convicted, and they're more likely to have a sentence of incarceration. And so we see that in comparison to non-Indigenous people, so we can see the reality of that.
Susan Carland: Our podcast normally asks our guests to cast their minds a few decades into the future and says, "If we don't change things now, what does our future look like?" For the topic you're here to talk about, I feel like we're in an unusual position where we're kind of already in the dystopian future. So I'm actually going to ask you to cast your mind 30 years back at that sliding doors moment when we had the royal commission into Aboriginal deaths in custody, and what that moment asked of us, and where we could have gone and where we are.
Kate Burns: I think the royal commission into Aboriginal deaths in custody was a watershed moment, actually. And the report and the recommendations set out a roadmap.
They were able to show that Aboriginal and Torres Strait Islander people are over-represented in the criminal justice system, but also pointed to a lot of issues about institutional racism, but also broader than that is actually looking at what are these community-based solutions, and also they recommended self-determination and such. So 30 years ago, this roadmap was set out and it was really clear how this issue could be addressed. And so I think your set up was actually a really good one, because we know what has happened in the last 30 years is that those recommendations were not implemented fully. And we can see that the over-representation of Aboriginal and Torres Strait Islander people in Australia has actually got worse. Deaths in custody has actually increased. This is a time to actually reflect and think, "Okay, so what can we do?" Because actually, if we don't do anything now, things are getting worse for the next 30 years. And we're going to keep seeing it getting worse.
Susan Carland: Once the royal commission released its findings, since then, how many of those findings have been implemented? Or recommendations, sorry.
Kate Burns: So it's one of those things that it depends on who you ask, because I think perhaps governments would say many of them have been implemented, but what we can see by actually looking at the recommendations and what the outcomes of that has been, some of them might've been partially implemented, but not fully. And so actually most of them haven't been implemented fully. Sometimes it is just the nature of a royal commission that two or three years later is when the report is released, the recommendations are there, but people and the urgency of the issue have perhaps moved on to another issue. And so the momentum to implement those recommendations isn't there. And so we saw that with the royal commission to Aboriginal deaths in custody.
I mean, we saw it recently actually with the royal commission in northern territory, which was called after the Four Corners episode which looked into the mistreatment of children that were incarcerated in the juvenile justice centre there in Don Dale. The royal commission was called, there was urgency, there was a real push to implement the recommendations. At the time, the government said that they would implement it. Now, a couple of years later, we're seeing actually that a lot of that isn't being implemented, and actually they're just passing legislation now that is actually going to make it worse for children and actually easier for them to be incarcerated. And so it's actually going backwards. Not all royal commissions, this doesn't happen with all of them, but it can happen in a lot. I mean, we saw in Victoria with the royal commission into family violence recently, the government did commit to implement all recommendations, and most of them have been implemented so far. So it's not that all royal commissions don't have, I guess, the outcomes. It's just that it's about political will for the recommendations to be implemented.
Susan Carland: Right, which makes me wonder, if the federal government was willing to invest the time and effort for this royal commission 30 years ago, why not then have the will to implement the findings?
Kate Burns: Which is a really good question. But I think part of it is that a lot of the solutions to this issue are outside the criminal justice system. It's about health, it's about housing, it's about education and employment. And actually it's also reckoning with colonisation and the ongoing effects. They're issues that perhaps don't have the same political attractiveness as say being tough on crime and pouring money into the criminal justice system, which is what we have seen. We see that for every time a state election comes up, we're seeing this tough on crime, being punitive. And so I guess that there's not the same political will to implement policies that are actually going to one, reckon with colonisation and the effects, but also thinking that these broader issues about health and housing and education are, I guess harder ones to address, but they can be addressed. So it is about political will, but it's also about funding adequately.
Jacinta Elston: Look, I think the positives out of the royal commission was that it happened.
Susan Carland: Professor Jacinta Elston on the royal commission.
Jacinta Elston: Was that it highlighted 331 things that needed action. If we didn't have the language of the royal commission into Black deaths in custody to be able to challenge now, how much worse would it be? How much more would be hidden about what's broken in the system? So I think that in itself, the fact that it happened, was a positive.
Of course, whether or not we've done enough with all of the things... And actually I was watching something recently on The Drum that was talking about Indigenous incarceration rates. And I kind of thought to myself, what if we did it again? Would we find anything different? How many of the 331 recommendations, I think that's what the number was, how many of those recommendations would still be current? How many extra ones would we need? Would we have replaced some with something else? It'd be an interesting exercise, but not necessary, because out of 331, there's probably I don't know, 100, 120 that have been actioned. We could just start to say, "Okay, which of the ones that we haven't actioned still need to be actioned and what can we do about them? What's our next action that's going to actually get us to somewhere different?"
Meena Singh: One big thing I think, sadly, is that lots and lots of people just don't care.
Susan Carland: Meena Singh.
Meena Singh: There's a real narrative around people who offend, that they're no longer part of society, that they're no longer people to worry about or care about. And well, if you don't want to be treated badly in prison or die in prison, don't do the wrong thing. There's very simplistic views about these issues. And I think also coupled with the idea that's been, nurtured since British invasion, that Aboriginal people are inherently criminal and that there's inherently something wrong with us, that leads us to this, it creates a very one-sided argument about the issues. And I think sadly too much of our responses in terms of laws and policies are trapped in election cycles.
And so people don't necessarily vote for human rights issues. They vote for the things that keep themselves and their families safe and strong.
We really need to get more and more people concerned about this issue, concerned about the disadvantage of Aboriginal people. And I think we've just seen policy after policy, we've never really had a proper, fully committed plan for implementing all of the recommendations of the royal commission. So one example is an in-custody notification service. So the royal commission said that whenever an Aboriginal person is taken into custody, that the Aboriginal legal service should be contacted and advised about that. We only have custody notification services in three states. And yeah, the recommendations haven't been properly implemented, haven't been properly considered.
Susan Carland: Imagine Australia continues down the same path it is now with Indigenous incarceration. What do we look like in 50 years if nothing changes?
Jacinta Elston: Oh, I think the level of despondency, anger, depression, grief, and loss within the Indigenous community will grow. I think there'll be a stronger sense of helplessness by everybody about we can't change the system, we can't do anything about it. It'll become an "others" problem, it's somebody else's problem, it's not our problem. I mean, if you took this apart and looked at the various states and territories; in the northern territory, the incarceration rates of Aboriginal mob are just heartbreakingly atrocious.
Like really, there's no other way for us to deal with this? We can't invest the billions of dollars that we spend on criminal justice system in the northern territory in a different way? We can't say to a young Aboriginal person who's fronting up to a magistrate, "Well, if we put you in jail, it's going to cost us $120,000 this year. But in fact, what if we invested that in you? What would that look like if we completely changed the way that we look?" And I think it takes that level of bravery, that level of courage for us to sort of say, "No, as a society, we're not going to be this type of society."
Meena Singh: I fear that we'll have an even more greatly divided country that still is yet to come to a reckoning with its own past.
Susan Carland: And finally, here's Meena Singh again.
Meena Singh: And I see more prisons, tougher laws on crime, but really that we're more and more punishing difference, and we're punishing poverty, and the things that make people vulnerable and keep them marginalised and out of that mainstream narrative. And I feel that we'll just simply see disadvantaged even more entrenched. And unless we take a really long-game approach to it, with lots of things we can do immediately, but an approach that this takes a long-term commitment to address; yeah, I don't like to think what we'd end up like.
Susan Carland: That concludes our first episode on this topic. As our experts have explained, it's been a long history of systemic bias and institutionalised racism in the criminal justice system that continues to impact Australia's Indigenous population. Next week, our experts discuss the ways these issues can and should be addressed. Catch you next time on What Happens Next?.
