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Speech: Annual General Meeting of Death in Custody Watch Committee (WA) Inc (2010)

Race Race Discrimination

Annual General Meeting of Death in Custody Watch Committee (WA)
Inc

Speech by Graeme Innes AM
Race and Disability Discrimination
Commissioner

Outcare Offices, East Perth, WA

Friday, 5 November 2010


Good evening. I would like to begin by acknowledging the traditional and true
owners of the land on which we meet the Nyoongar people, and pay my respects to
their elders past and present.

Acknowledging elders past takes on a particular meaning when you are
discussing deaths in custody. I also acknowledge the families who have lost
mothers, cousins, sisters, children in custody. These families suffer forever.
The Ward family, the Mulrungi family. How many deaths should I actually name?
The fifty - one hundred - one thousand deaths that have occurred since the Royal
Commission made its recommendations?

Finally I acknowledge the excellent and dedicated work of Aboriginal Legal
Services who have consistently stressed the need for improvement in this
area.

Like the Northern Territory Intervention and the decision-making that has
gone before it, the position of many Indigenous people, families, communities
has worsened at the same time as governments named them as beneficiaries. I
acknowledge and welcome the steps that the Australian Government has taken to
partially reinstate the Racial Discrimination Act, or RDA.

When the Howard Government suspended the RDA, they suspended their own legislation – Commonwealth legislation. More importantly, they suspended your legislation. The RDA is about your protections. You will never - you
can never - it is not possible to improve the quality of living or human lives
by suspending human rights protections.

I make another call for the Australian Government to fully reinstate the RDA
in the Northern Territory. I call the Australian Government to explain what this
reinstatement would mean in practical terms for affected communities. And I call
on the Australian Government to name an END date for the Intervention.

If government would like advice about where to start, I’ve had some
sound advice from communities in the Northern Territory. Begin by pulling down
the blue signs that sit across the 73 prescribed communities. The tall blue
signs that identify prescribed communities and that shame many of the men, the
women, the families, the communities that live behind them.

The value in the Intervention is that it is a cautionary principle for
governments – don’t impose, don’t intervene and don’t
inflict. Instead, engage, consult, negotiate and support communities to define
and create their own futures.

Addressing Indigenous over-representation in the criminal justice system in a
lasting manner will require a fundamental change to the existing relationship
between mainstream Australia and Indigenous communities. It will require that
the control over Indigenous people’s lives be removed from the public
institutions of our mainstream society, and that the unequal basis of the
relationship be remedied by addressing the profound economic, social and
cultural disadvantage experienced by Indigenous peoples. Ultimately, it required
return of control of Aboriginal lives and communities to Aboriginal hands.

Among the findings in the Royal Commission was the critical importance of
self determination. More positively, we have had some success in developing a
better understanding of the meaning of self determination through the Declaration on the Rights of Indigenous Peoples. Self determined peoples
that are connected to culture and to country sustain healthy and proud
communities.

Colonization, racial inequality, racism, and cultural chauvinism have a long
shelf life. And this is a reality that we have to come to terms with in relation
to decision making and public policy development.

The Royal Commission into Aboriginal Deaths in Custody was established
in 1987. A consideration in the terms of reference for the Royal Commission was
to consider the underlying causes of incarceration. Unfortunately, the
reality then is not far from the current reality. Among the core findings of the
Commission is that the Aboriginal population was grossly overrepresented in
prison - and that too many Aboriginal people die in custody too often. In over
twenty years, how has this picture changed?

Another year passes and there are multiple deaths in custody and multiple
suicides in custody. And another year. And another year. And so on.

Indigenous adults are 13 times more likely to be imprisoned than their
non-Indigenous counterparts, a 48 percent increase on when the Deaths in Custody
report was released.

In Western Australia, there has been an 18 percent increase in the prison
population over the last year due, among other reasons, to more parole denials
and cancellations and an increase of 118 days in the average sentencing
length.

If we are going to be serious about eliminating preventable deaths in
custody, reducing the Indigenous youth suicide rate, and closing the gap in life
expectancy – then we need to be serious about changing the system that
generates disadvantage, inequality and poverty. It is the same system that
results in disproportionate Aboriginal incarceration rates and
over-representation in our corrections systems.

Mandatory sentencing laws in Western Australia seriously compound these
problems and raise questions regarding how we meet our obligations on the
Convention on the Elimination of Racial Discrimination, the Convention
on the Rights of the Child
and the International Convention on Civil and
Political Rights.

Where is the comprehensive plan to reduce Aboriginal deaths in custody? I refer you to 2009 Social Justice Commission Report that recommends the
adoption of a justice reinvestment strategy and the allocation of more resources
to the social and economic factors underpinning indigenous incarceration rates.

Many of you are probably familiar with this strategy.

Justice reinvestment has a rigorous methodology with four steps.

The first step is analysis and mapping of where the offenders are
coming from and calculating how much is being spent in these areas on
imprisonment. This leads to demographic and socio-economic information on how
much is being spent on imprisonment in certain communities.

A holistic analysis of the criminal justice system is a key feature of the
justice reinvestment methodology. Consideration is given to policing, judicial
systems, probation and parole, prevention programs, community supervision and
diversion options as well as the geographic mapping.

Step 2 involves developing options to generate savings and improve local
communities. We must then look at ways to save imprisonment costs so
funds can be re-spent in the community. This involves looking at why there is
such a high rate of imprisonment and particularly, return to custody.

The options will be different for each community, based on the offender
profile and the needs of the community. This step also involves community
consultation and engagement around the causes and solutions to crime.

Step 3 involves quantifying savings and reinvesting in high needs
communities.

Based on the information gathered in the previous two steps, it is possible
to project savings based on reductions in imprisonment spending. Savings can
then be put towards the services and projects identified by communities.

And finally, measuring and evaluating the impact.

A justice reinvestment approach is evidence based and measures performance
outcomes such as the amount of imprisonment money saved; reduction in
imprisonment; reduction in recidivism; and indicators of community well being
and capacity.

This is a strategy that has been tested and found to work in both the US and
United Kingdom.

The West Australian Department of Corrective Services estimated that it costs
$262 per day to keep a prisoner in custody, compared to $35 per day if the
prisoner remains under community supervision. This amount rises to $622 per day
to keep each young offender in detention, compared to $125 in the community.

When you consider this in light of the 4700 people incarcerated in Western
Australia, it costs the state 1.2 million dollars per day to maintain its prison
population. Imagine what that kind of money could do if it was used for
effective programs and services.

I support Deaths in Custody Watch WA, the Community Legal Centres and the
many NGO’s that have repeatedly called for the full and effective
implementation of each of the 339 recommendations of the Royal
Commission.

Aboriginal and Torres Strait Islander peoples are still being arrested for
minor offences – particularly public intoxication at the same time as
there is little investment in culturally appropriate detox services. Aboriginal
communities in Adelaide have made consistent calls for precisely these services
for over 20 years.

The Australian Human Rights Commission has intervened in a number of deaths
in custody cases, and will continue to do so for as long as it takes for
systemic change to happen.

In 2006, the Coroner’s report adopted all 40 recommendations from the
Commission’s submission to the Inquest into the death of Mulrunji.

The Commission’s submission to the Inquest on the death of Mr. Ward
made a number of recommendations in improving some of the systemic failures with
the police force, including:

  • ensuring that police operating manuals make refusal of bail a last
    resort;
  • better training for officers working in Aboriginal communities;
  • reviewing current arrangements for the supply of food and beverages to
    persons in police custody;
  • taking urgent steps to consider appropriate interim measures and
    modifications to address the level of safety and dignity of the current vehicle
    fleet; and
  • reviewing policies relating to medical emergency procedures during escorts.

A question worth considering is when our state and territory police
agencies last held dedicated training around de-escalation tactics, in
particular when dealing with people from vulnerable or minority communities?

As recently as 2010, the CERD Committee recognised the government’s
continued failure to implement the recommendation made under the Royal
Commission.

In its concluding observations in August 2010 the United Nations Committee
called for the Elimination of Racial Discrimination said the following:

“While welcoming the endorsement of National Indigenous Law and Justice
Framework by all Australian Governments, the Committee reiterates its concern
about the disproportionate incarceration rates and the persisting problems
leading to deaths in custody of a considerable number of Indigenous Australians
over the years. The Committee expresses concern in particular about the growing
imprisonment rates of Indigenous women as well as the substandard conditions in
many prisons (art. 5, 6).”

The Commission’s Social Justice Report stated, “the issues around
Aboriginal women and incarceration remain largely invisible to policy makers and
program designers”. In 2010 there is still too little attention devoted to
their specific situation and needs. This remains important, particularly because
of the impact that imprisonment has on Indigenous families and communities
-especially through separation from children.

The UN CERD Committee then went on to say:

“The Committee recommends that the State party dedicate sufficient
resources to address the social and economic factors underpinning Indigenous
contact with the criminal justice system. It encourages the State party to adopt
a justice reinvestment strategy, continuing and increasing the use of Indigenous
courts and conciliation mechanisms, diversionary and prevention programs and
restorative justice strategies. And that, in consultation with Indigenous
communities, take immediate steps to review the recommendations of the Royal
Commission into Aboriginal Deaths in Custody
, identifying those which remain
relevant with a view to their implementation. The Committee also recommends
that the State party implement the measures outlined in the National Indigenous
Law and Justice Framework. The Committee encourages the State party to ensure
the provision of adequate health care to prisoners.”

The Commission is committed to working more closely with government and
NGO’s to ensure the effective implementation of the Committee’s
Concluding Observations. I urge you to also consider how you may be able to
utilise these observations as a platform to progress your work.

So, where to from here?

How much longer are we prepared to ignore the existing situation, and why do
we continue to not act on what we know and what we were told explicitly in
1987?

To fail to respond comprehensively and to let another 23 years pass without
an improvement in the incarceration statistics or deaths in custody... that
would be the greatest tragedy of all.

When Aboriginal and Torres Strait Islander peoples continue to be
overrepresented in our prison system and the deaths continue, community networks
are profoundly damaged. When elders die in custody, they loose their lives and
their communities lose their leaders.

More human rights education is vital. People need to know what their rights
and responsibilities. They need to be reminded that we all have the right to
live with dignity, in safety and in safe spaces.

It is in rooms like these where we can be reminded of the urgency of these
issues and the importance of leadership and clear action.

I thank you for your hard work, and for your time tonight.