Royal Commission into Aboriginal Deaths in Custody

The Royal Commission was established following public calls for an inquiry into the apparently high number of Aboriginal people who had died while in custody, whether during arrest or under police pursuit, in pre-trial remand or in prison or youth detention centre.[1] A campaign was begun by Indigenous activists after the death of 16-year-old John Peter Pat died in a police cell in 1983[2] but gathered steam when several other Indigenous detainees were found dead in their cells, in circumstances believed to be suspicious by their families. In July 1987, a representative of the National Committee to Defend Black Rights (CDBR) took their case to the United Nations in July 1987, and it was shortly after this that the government acted on it.[3]

Announced on 10 August 1987, the Commission was conducted under the Royal Commissions Act 1902[1] and various state and federal legislative instruments, such as Letters Patent, which governed its operation and the appointments and revocations of Commissioners.[4] The Northern Territory issued its Letters Patent under its Commission of Inquiry (Deaths in Custody) Act 1987. The Commission was established on 16 October 1987,[3] to inquire why so many Aboriginal Australians had died in custody, and to make recommendations as to how to prevent such deaths in the future.[1]

The terms of reference for the inquiry limited it to such deaths between 1 January 1980 and 31 May 1989, which meant that it looked at 99 Aboriginal deaths in the custody of prison, police or juvenile detention centres that occurred during this period in Australia. It was mandated to look at the individual circumstances of each death as well as wider social, cultural and legal factors relating to such deaths.[1] 63 of the deaths occurred while the person was in police custody.[5]

Federal Court judge James Henry Muirhead, QC, was first appointed Chair of the Commission as the sole Commissioner[3] (leading to the Commission sometimes being referred to as the "Muirhead Commission"[6]), as the number of deaths had been believed to be about 44. However, after discovering that there was a much larger number of deaths needing investigation under the mandate, five other commissioners were appointed:[3] D.J. O'Dea; Hal Wootten AC, QC; L.F. Wyvill, QC; and Elliott Johnston, QC. Hal Wootten was a former judge of the Supreme Court of New South Wales;[7] and Elliott Johnston was a judge of the Supreme Court of South Australia. Johnston replaced Muirhead as the national commissioner on 28 April 1989. The only Indigenous Commissioner, Patrick Dodson, was not legally trained.[3] Muirhead said that his job entailed not just understanding how each person died, but why that person died.[8] While the original terms of reference limited the inquiry to just investigating the deaths, they were later expanded to include looking at any related underlying social, cultural and legal issues.[3]

Aboriginal activist Rob Riley was appointed Head of the Aboriginal Issues Unit of the Commission until Ruby Hammond was appointed to the position in 1990.[9]

The Commission investigated 99 cases of Aboriginal deaths in custody between 1 January 1980 and 31 May 1989, including the death of rugby player Eddie Murray in 1981 at the Wee Waa police station,[10] and the death of John Pat at Roebourne, Western Australia in 1983, of which Commissioner Johnston was critical of the lack of any disciplinary charges against five officers implicated in the violent death of the 16-year-old Aboriginal boy, calling this "a most unsatisfactory state of affairs".[11]

The Commission held public hearings and community meetings where deaths occurred, with the Inquiry conducting internal and commissioned research. It also received submissions from organisations and individuals, including family members of victims, and delivered issues papers (46, of which 21 were produced by the Commission's research unit).[1]

The Commission's Interim Report was issued on 21 December 1988, and the Final Report in April 1991.[1]

The final report of the Commission was published in April 1991.[10] The Commission concluded that the 99 deaths investigated[12] were not due to police violence:[13]

"... the immediate causes of the deaths do not include foul play, in the sense of unlawful, deliberate killing of Aboriginal prisoners by police and prison officers. More than one-third of the deaths (37) were from disease; 30 were self-inflicted hangings; 23 were caused by other forms of external trauma, especially head injuries; and 9 were immediately associated with dangerous alcohol and other drug use. Indeed, heavy alcohol use was involved in some way in deaths in each of these categories. The chapter concludes that glaring deficiencies existed in the standard of care afforded to many of the deceased".

The report goes on to say that this "in no way diminishes the seriousness of the problem of Aboriginal deaths in custody, nor does it undermine the reasons for the establishment of the Royal Commission. Indeed, the finding that the life styles of the Aboriginal people who died in custody, along with the procedures adopted by custodians and others, are the central determinants of their deaths ...highlights the importance of the Royal Commission' s broad enquiry into the position of Aboriginal people in Australia today and the ways that Aboriginal people are handled by the police and criminal justice systems.[13]

It found that the circumstances of each death were very varied (with 63 occurring police custody, 33 in prison custody and 3 in juvenile detention[14]), and one cannot point to a common thread of abuse, neglect or racism common to the them. There were however facts relating to their Aboriginality which pertained to their being in custody and how they died.[8] It found that "...there appeared to be little appreciation of and less dedication to the duty of care owed by custodial authorities and their officers to persons in custody. We found many system defects in relation to care, many failures to exercise proper care and in general a poor standard of care. In some cases the defects and failures were causally related to the deaths, in some cases they were not and in others it was open to debate...in many cases death was contributed to by system failures or absence of due care".[15]

The Royal Commission reported that Aboriginal people in custody died at about the same rate as non-Aboriginal people in custody, but the rate at which they came into custody was much higher, in particular police custody, so the 99 deaths represent that over-representation.[16] Aboriginal people's rate of imprisonment was much higher. The RCIADIC report identified child removal (later dubbed the Stolen Generations) as correlating highly with later likelihood of imprisonment.[1]

Aboriginal disadvantage is considered: "By all the indicators...Aboriginal people are disadvantaged when compared with any other distinct group in Australian society and with the society as a whole". Factors such as the economic position, health indicators, housing, their access or lack of it to land and employment, education; and the part played by alcohol and other drugs are all discussed in the report.[16]

A related issue, not investigated by the Commission, is the disproportionately high number of Indigenous Australians who come under some form of custody or who are imprisoned under the law. One of the outcomes of the Commission was the establishment of a National Deaths in Custody Monitoring and Research Program at the Australian Institute of Criminology.[12]

The Council for Aboriginal Reconciliation was created by an Act of Parliament in September 1991.[18]

Many years after RCIADIC, problems persisted, and various criticisms have been made about the Commission. Some blame the lack of commitment by the various governments to properly implement its recommendations; others blame the Commission, saying it was too constrained by its mandate and so could not possibly have achieved the necessary reforms to tackle the marginalisation of Indigenous people.[3]

An in-depth analysis of RCIADIC by Elena Marchetti, Senior Lecturer at Griffith Law School, published in 2005, concludes: "Despite its many flaws - including the fact that legalistic perspectives were generally privileged at the expense of the more non-orthodox points of view – the RCIADIC remains the most comprehensive investigation ever undertaken into the deep disadvantage experienced by Indigenous people as a result of colonisation".[3]

A 2018 review by Deloitte commissioned in December 2017 by the then Indigenous Affairs Minister, Nigel Scullion, found that only 64% of the recommendations had been fully implemented, and the rate of imprisonment of Indigenous Australians had almost doubled during the 27 years since 1991. It reported that 14% were "mostly implemented", 16% were "partly implemented" and 6% not at all. It also found that monitoring of deaths in custody had decreased nationwide, and the quality of data on police custody was “an ongoing issue”. Prison safety had increased, but more staff were needed for mental and other health issues of Aboriginal prisoners. Regular in-cell checks, particularly in police watch houses, were still deficient in some jurisdictions.[19][20]

• Aboriginal deaths in custody
• Royal Commission Appointed to Investigate, Report and Advise Upon Matters in Relation to the Condition and Treatment of Aborigines (WA, 1934)
• Deaths In Custody Watch Committee (WA) Inc

• "Royal Commission into Aboriginal Deaths in Custody". Austlii Reconciliation and Social Justice Indigenous Law Resources. Includes links to each segment of the report. 1991. Last updated 29 April 1998.CS1 maint: others (link)