Racism is a widespread global issue, exacerbating injustice and division among people on the basis of race. In Australia, the overrepresentation of Aboriginal people in the justice system is a significant problem caused by racism. This group of citizens is more likely than the non-indigenous population to be detained and imprisoned. Moreover, there are cases when people die in custody due to the lack of in-time medical care because of the negligence or prejudice of law enforcement officials. Various events, for instance, the Black Lives Matter protests and the death of the indigenous Australian Ms Dhu, again and again, draw attention to the problem forcing governments and ordinary citizens to look for solutions. Even though much effort remains to be made to achieve true justice, impartiality, and the rule of law, some steps and means show progress.
The tragic death of George Floyd during the detention by the Minneapolis police contributed to the activation of the Black Lives Matter movement. In Australia, an awful incident correlates with another problem – the death of indigenous people in custody. While the attention to this issue does not mean that non-indigenous Australians do not die in detention, there is a significant imbalance in the percentage of prisoners between these groups. For example, according to BBC News, in 2021, indigenous Australians make up 3% of the total population, but their share among prisoners is 29% (Mao, 2021). Thus, prejudices by law enforcement officials continue to take the lives of people not only in America.
The number of indigenous deaths is rapidly increasing every year. For example, according to a special Guardian project devoted to the issue, by June 2020, the number was – 437 (“Aboriginal deaths in custody,” 2020). According to information on the BBC website for April 2021, the number of victims reached 474 (Mao, 2021). As shown in Figure 1, most indigenous prisoners do not receive adequate medical care, and in such cases, a higher percentage of injuries and deviations from the rules.
In addition to prejudice, overrepresentation in detention is also affected by the plight of peoples and the authorities’ indifference. The organization, which activities are devoted to the protection of rights of Aboriginal children and families, Victorian Aboriginal Child Care Agency (VACCA) exists in Australia. VACCA (n.d.), notes that perhaps Australian cases would not be so known if they did not resonate with American ones. At the same time, racism here has the same terrible consequences – poverty, unemployment, poor health, and, accordingly, short life expectancy, high levels of mental illness, and other problems (VACCA, n.d.). All the above points to the need to combat injustice.
It is important to note that the studied problem is not new, and attempts to combat it were made decades ago. For instance, in 1991, the conclusions of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) were presented (ANZSOG, 2020). It contained 339 recommendations on ensuring security for the detention of indigenous peoples (Newitt, 2021). However, sources mentioning this Commission unanimously confirm that there have been few changes in the situation over 30 years (“Aboriginal deaths in custom,” 2020; Mao, 2021; Newitt, 2021). In particular, the report released in 2019, Indigenous deaths in custom: 25 years since the Royal Commission into Aboriginal Deaths in Custody, officially explores the results of the Commission’s efforts confirming the progress’s absence (ANZSOG, 2020). Moreover, Newitt (2021) provides examples of four deaths that could only have been avoided in March 2021 had the recommendations been implemented. Considering that 30 years have passed, one can only imagine how many lives could be saved.
RCIADIC and 25 Years Later Reports: Key Findings and Recommendations
Thanks to the Royal Commission in 1991, the problem of Aboriginal death in custody was publicized. Twenty-five years after introducing the recommendations, an investigation of the changes and a new assessment of the scale of deaths were carried out, the results of which presented in the previously mentioned report of 2019. The need for the Royal Commission was caused by the fact that from January 1, 1980, to May 31, 1989, 99 indigenous representatives died in police custody (ANZSOG, 2020). The results of the investigation proved that origin played a crucial role in imprisonment and death. For this reason, the recommendations focused on eliminating racism, increasing cultural awareness, and improving preventive measures.
Among the recommendations to reduce such effects of the country’s colonial heritage, several critical ones stand out. They will later also be used in other laws or influence society. For example, the recommendation for using imprisonment as a last resort correlates with the Fines Penalties and Infringement Notices Enforcement Amendment Bill, which will also be discussed later in the paper. An accent is also placed on the significance of cooperation, involvement of indigenous peoples, and taking into account their opinions in politics. The recommendations also include preventive measures, from providing the necessary medical services to the adoption of security measures in the cells themselves.
The study carried out years later confirms the majority of the Commission’s conclusions and demonstrates that the efforts made earlier were not enough. In particular, as in 1991, the chances of indigenous and non-indigenous people dying in custody are assessed as equal, but Aboriginal people are more likely to be arrested. Moreover, their prison population increased by 88%, increasing the likelihood of being arrested 13 times (ANZSOG, 2020). Natural causes are overwhelming in death – 48%, but there is also a high percentage of suicides – about 36% (ANZSOG, 2020). The data reaffirm the seriousness of the problem and the importance of urgent seeking a solution.
Ms Dhu’ Death
Ms Dhu’s death in custody and recommendations provided after the Coronial Inquiry served as one of the impetus for adopting Fines Penalties and Infringement Notices Enforcement Amendment Bill 2019. Ms Dhu, a 22-year-old Australian Aboriginal woman whose name is not disclosed for cultural reasons, was arrested in 2014 for an unpaid fine of $3,622 (McNeill, 2021). She died after being three days into custody because she did not receive the necessary help. An inquest into the death of Ms Dhu (2016) states that all the time, a young woman complained of being unwell. However, after two days in a row, medical staff provided fit to be held in custody form to the police. On the third, the officers thought that the arrested woman was simulating.
Suspicions of the simulation were based on clues about drug addiction and could be supported by biases against an Aboriginal woman. Although both the police and doctors did not demonstrate conscious racism, McNeill (2021) believes that this fact did not prevent them from building baseless opinions about Ms Dhu. Police brought her to the hospital only after a severe deterioration in the woman’s condition. As a result, Ms Dhu died on the same day, “from staphylococcal septicemia and pneumonia in a woman with osteomyelitis complying a previous rib fracture” (“Inquest into the Death of Ms Dhu,” 2016, para. 48). Her death was one of many among the casualties of indigenous people in custody but served as the impetus for significant changes.
Police and medical personnel regret the death of this young woman. Later, the doctor that allowed Ms Dhu to return to custody a second time was fined $30,000 for professional misconduct (McNeill, 2021). The doctor realized the guilt and is working to improve their own work and hospital protocols (McNeill, 2021). Although these actions will not bring the woman back to life, they offer hope for strengthening measures to prevent such tragedies.
The reason for death and the fact that Ms Dhu did not receive proper assistance were established thanks to the coroner’s investigation. State Coroner Fogliani provided 11 recommendations based on her findings and designed to improve the operation of police stations and prevent other incidents (“Inquest into the Death of Ms Dhu,” 2016). They included proposals for training for the police on cultural diversity, improved surveillance of people under arrest, and other points. In particular, coroner’s recommendations 6 and 7 deal with the policy of imposing penalties for non-payment of fines and suggest the search for alternatives for them. Fogliani proposed amendments to the Fines, Penalties and Infringement Notices Enforcement Act (WA) (“Inquest into the Death of Ms Dhu” 2016). The investigation was another step towards further changes in state politics.
The coroner’s inquest, however, did not produce an instant effect and could be forgotten. For example, after receiving the recommendations, Premier Barnett announced that he would not work on their implementation (Klippmark & Crawley, 2018). However, the publication of the proposals attracted attention with the help of the Internet and media personalities. In particular, details about the situation were distributed through the social movements SayHerName, Idle No More, and the most famous Black Lives Matter. Moreover, Australian singer Felix Riebl dedicated a song to Ms Dhu, in which he criticized the existing police procedures (Klippmark & Crawley, 2018). Thus, the incident was publicized and launched the process of amending the laws.
The Rule of Law
The high number of Aboriginal deaths, the inappropriate behavior of the police, and the slow response of government representatives indicate a decrease in the rule of law. This concept implies that all members of society, including representatives of law enforcement and legislative bodies, are equally subject to the established laws. The absence of the rule of law brings the state to tyranny when some representatives are putting themselves above the law. According to the World Justice Project (WJP) (n.d.), the main principles of the rule of law are accountability, open government, just laws, and accessible justice. Based on the tragic incident with Ms Dhu, it can be noted that the laws did not sufficiently ensure the safety of people. At the same time, the uneven proportions of the detention of indigenous and non-indigenous peoples reveal a violation of accessible justice. These facts give reason to suggest that the rule of law is insufficient in Australia.
The rule of law is vital to society as it promotes better development, well-being, and justice. Moreover, according to WJP (n.d.), in countries where the rule of law is high, there is also a higher economic level, better education of the population, high rates of health and equality. However, an investigation of this organization found that indicators of the rule of law in the world have decreased, although there is also growth among individual states (WJP, 2020). As shown in Figure 2, Australia is one of the countries where indicators, although not significantly, but have declined. Strengthening the rule of law in the state is critical, and Amendment Bill 2019 can be considered a measure to support it.
Fines Penalties and Infringement Notices Enforcement Amendment Bill 2019
The bill aims to amend several existing laws to provide safety and deserved justice. The main goal is to solve the problem of the “overrepresentation of Aboriginal and Torres Strait Islander people in the justice system” (Quigley, 2019, para. 3). The bill affects the Fines, Penalties and Infringement Notices Enforcement Act adopted in 1994, the Sentence Administration Act 2003, and several more laws (Parliament of Western Australia, 2020). Given that the coroner’s recommendations, which could have been ignored, had led to such amendments, it could be argued that the government still sought to uphold the rule of law. Adopting the bill is significant because it demonstrates the government’s efforts to combat the problem and proposes fundamental measures to prevent it in the future.
One of the achievements of the bill is that citizens will not be immediately taken into custody for non-payment of fines. Such a measure can be assigned by a Magistrate and still be considered an extreme one. This procedure will protect the citizens, particularly indigenous people, and the state itself from unnecessary imprisonments. The detention of people with small debts is financially unprofitable for the state, does not bring any benefit, and contributes to oppression (Quigley, 2020). At the same time, it is essential that the penalty takers, who can pay fines but ignore state instructions, can still be arrested. This fact leads to another significant achievement of the bill – it demonstrated the government’s understanding of the difficult circumstances faced by indigenous people.
The state’s understanding that the situation of citizens is difficult due to various circumstances is also reflected in several other innovations. For instance, when imposing fines and warrants, it will also consider the place of citizens’ residence. Thanks to this measure, residents of remote areas where public transport infrastructure is underdeveloped will not be taken into custody as often as before. A request for repayment of a debt can be sent to the workplace or the debtor’s bank, guaranteeing that the amount necessary for life will remain. The concept of “hardship” has been established, which includes financial hardship, domestic violence, mental illness, disability, alcohol problems, or homelessness (Parliament of Western Australia, 2019). In this way, representatives of the justice system must ensure that there are actual violators under arrest, not those who do not have funds.
Understanding difficulties and one more innovation – “work and development permits,” also contribute to improving indigenous peoples’ quality of life. The separation of citizens with hardship from actual violators will prevent more severe impoverishment and distrust of the government. “Work and development permits,” according to the Explanatory Memorandum to the bill, may include training, treatment, and similar measures (Parliament of Western Australia, 2019). They will help citizens cope with difficulties, and together with other efforts, can positively affect the development of society.
The paper addresses the high number of Australian Aboriginal deaths in custody and the measures taken to solve the problem. The chances of indigenous and non-indigenous deaths in custody are equal. However, Aboriginal people have a much higher chance of being arrested. The reasons can be circumstances, such as difficulties in accessing some public services, poverty, and prejudice among law enforcement officials. A large number of deaths, accompanying inequality, and correlation with events in America, attracted the attention of the Black Lives Matter movement, which gave the problem publicity.
Measures to solve the problem were taken back in 1991. The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) investigated Aboriginal deaths and identified manifestations of racism. Their report contained more than 300 recommendations to ensure the safety of citizens, in particular indigenous people. However, the investigation that was conducted 25 years later did not reveal significant changes and improvements. Since the problem was not solved and still affected the population, there was a need for new measures and approaches to addressing it.
One of the most influential factors for changes was the death of a young Australian Aboriginal woman, Ms Dhu, in 2014. She was arrested due to a fine and died three days later as she did not receive the necessary medical care. The coroner’s inquest presented the facts that Ms Dhu could be saved. Moreover, the coroner made several recommendations for additional security, particularly amending the Fines, Penalties and Infringement Notices Enforcement Act (WA). However, representatives of the law were not going to apply them, which caused public outrage and testified the lower rule of law. In response, activists of movements for equal rights and media personalities caused a public outcry. This attention influenced the government’s decision and contributed to adopting the Fines Penalties and Infringement Notices Enforcement Amendment Bill 2019. These amendments change the conditions for detention and consider the difficulties faced by indigenous peoples, which can save many lives.
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Klippmark, P., & Crawley, K. (2018). Justice for Ms Dhu: Accounting for Indigenous deaths in custody in Australia. Social & Legal Studies, 27(6), 695–715. Web.
Mao, F. (2021). Why Aboriginal people are still dying in police custody. BBC News. Web.
McNeill, H. (2021). WA doctor who declared Ms Dhu fit to return to custody 24 hours before her death fined $30,000. WA Today. Web.
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