With more than 470 deaths since the Royal Commission into Aboriginal Deaths in Custody 30 years ago, and news over the Easter weekend of a fifth person dying since the start of March, Aboriginal pain and suffering are palpable. This is a national crisis deserving national attention and urgent action.
The federal government is claiming the 339 recommendations of the royal commission have been largely implemented, but recent Aboriginal deaths highlight those that were not implemented. These deaths were preventable and should not have occurred.
One important recommendation that has not been implemented is that imprisonment of Aboriginal people should only be a matter of last resort. This recommendation was supported as recently as 2018 by the Australian Law Reform Commission in the Pathways to Justice inquiry aimed at reducing Aboriginal incarceration which recommended imprisonment for sentences under 12 months be abolished. This has not happened in Western Australia or the Northern Territory, where mandatory detention laws, condemned by UN treaty bodies, remain a key driver of Aboriginal incarceration and also deaths in custody.
The royal commission also made it clear that solitary confinement was very harmful and should not be used for Aboriginal people. And yet correctional authorities in several states have developed policies that segregate prisoners, isolating them from others. These policies were challenged recently in the Supreme Court of Western Australia on behalf of two Aboriginal prisoners who have been detained in separate confinement since October last year. The court heard that the Aboriginal prisoners were being kept in their cells between 21 and 23 hours a day, denied review rights, and had their health and safety placed at risk from this treatment. According to the Mandela Rules, excessive solitary confinement is prohibited and a form of psychological torture.
Aboriginal imprisonment has risen across the country, we have the highest rates of incarceration of any Indigenous people in the world, with Aboriginal women recognised as the highest prison population group in the country.
Aboriginal women prisoners are being subjected to strip-searching procedures, which are humiliating and traumatic, and were condemned by the UN Committee on the Elimination on Discrimination Against Women. This process serves no useful purpose, according to the WA Office of Independent Custodial Services and should be disbanded. It is well known that Aboriginal women prisoners have experienced high levels of violence and sexual assault, and strip-searching is a form of abuse that is both unnecessary and traumatic.
There is very little in the way of culturally informed programs for Aboriginal prisoners, who lack throughcare programs, and assistance with employment and holistic supports. Prison can become a revolving door for too many, with few community-based supports and programs to assist rehabilitation and basic needs such as housing.
The approach of states is largely punitive, indifferent to the need for legislative reform, and fail to acknowledge human rights standards, including in relation to Aboriginal self-determination and participation in the criminal justice system. The National Aboriginal and Torres Strait Islander Legal Services and Change the Record, are calling for justice reinvestment and support the ALRC recommendation for a national justice reinvestment body to assist with implementing this approach, rather than continuing with the current failing model of Aboriginal and Torres Strait Islander over-incarceration that costs the Australian economy a staggering $7.9 billion a year.