Aboriginal deaths in custody
One of the recommendations of the RCIADIC was that statistics and other information on Aboriginal and non-Aboriginal deaths in custody should be monitored nationally on an ongoing basis, by the Australian Institute of Criminology (AIC).
There is, however, a number of cases in which calls have been made for greater scrutiny, as avoidable deaths, such as those of Ms Dhu, Tanya Day, David Dungay and Rebecca Maher.
Aboriginal deaths in custody and high incarceration rates were originally absent from the Australian Government's "Closing the Gap" strategy.
As part of a 2018 pivot to a new phase, the Council of Australian Governments (COAG) drafted targets to reduce Aboriginal custody rates by 2028.
It would be unfortunate if, by focusing on the criminal justice system, we lost sight of the profound social, cultural and economic problems which confront Aboriginal people".
At the time of RCIADIC, there was no ability to compare Aboriginal with non-Aboriginal deaths in custody because the information was not available from state and territory governments.
More detailed analysis was needed, for instance into the different factors operating in police custody compared with correctional facilities.
RCIADIC concluded that the deaths were not caused by deliberate killing by police and prison officers, but that "glaring deficiencies existed in the standard of care afforded to many of the deceased".
[10] Many other historical and social factors were considered, showing a complex network of reasons as to why Aboriginal people were imprisoned at a higher rate.
[15] 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.
[20] According to the Australian Institute of Health and Welfare, in the June quarter of 2019 there was an average of 949 young people in detention per night: 90% of these were male, and 63% not yet sentenced.
The result of this in-depth enquiry was a report titled Pathways to Justice – Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples, which was received by the Attorney-General in December 2017 and tabled in Parliament on 28 March 2018.
[22] The report made 13 recommendations, covering many aspects of the legal framework and police and justice procedures, including that fine default should not result in imprisonment.
The number of Indigenous adults going to prison, and young people being held in detention was still increasing, although the rate of imprisonment had slowed.
[27] On 17 June 2020 reforms to the legislation relating to jail sentences for unpaid fines, long a bone of contention, spurred on by the death of Ms Dhu and finally introduced into Parliament in September 2019, was passed in WA.
Under the new legislation, most fine defaulters will do community service if they fail to pay, with imprisonment a last resort, by order of a magistrate only.
6 in its final report stipulated that "death in custody" includes at least the following categories when considering post-death investigations:[29]The Police Association of South Australia proposed a change to the legal definition in June 2020.
The Australian Institute of Criminology (AIC) uses data from its National Deaths in Custody Program (NDICP), as laid out in Recommendation 41 of the final report of the RCIADIC.
Another finding was that Indigenous women fared worse than men in terms of receiving all appropriate medical care and the authorities following procedures.
[57] Protests planned in major cities on 6 June 2020 were met with differing responses by government and police in each state, owing to the social distancing and other restrictions imposed during the COVID-19 pandemic in Australia.
This target aims to "Reduce the rate of Aboriginal and Torres Strait Islander young people in detention by 11–19% and adults held in incarceration by at least 5% by 2028", and the outcome of the target is that "Aboriginal and Torres Strait Islander people are not overrepresented in the criminal justice system".
Ken Wyatt, said in early June 2020 that law reform alone cannot solve the justice problem: "We're working to address the factors that contribute to high incarceration rates".
One of the RCIDIAC recommendations for state governments had been to review the offence of "public drunkenness" as well as imprisonment for unpaid fines, as these played a large part in the number of Indigenous people in custody.
The Victorian and Western Australian governments indicated these laws might soon be overturned, years after two women had died in custody in each state while being held for one of these reasons (Tanya Day and Ms Dhu),[62] and WA effected the change on 17 June 2020.
[28] Senator Patrick Dodson, one of the Commissioners on the RCIDIAC, said in parliament that for too long there had been "nice words" and "good intentions", but there had been a lack of "action and commitment" to keeping Indigenous people out of prison.
