‘Unfinished business’: top coroner’s call to action on Indigenous deaths in custody

Self-determination for Australia’s First Nations people is the “unfinished business” that must be addressed nationally to prevent Indigenous over-representation in the criminal justice system and deaths in custody, NSW’s top coroner has said in a call to action.

Ahead of the 30th anniversary on Thursday of the final report of the Royal Commission into Aboriginal Deaths in Custody, State Coroner Teresa O’Sullivan said First Nations people continued to be “overrepresented in every category of death dealt with by the Coroner’s Court”.

“We have the oldest jurisprudence in the world,” lawyer and Wiradjuri woman Taylah Gray said of First Nations Australians.Credit: Max Mason-Hubers

Indigenous deaths in custody could not be separated from “the over-representation of First Nations people within the criminal justice system, nor can we separate it from the colonial history of this nation”, she said.

More than 455 Indigenous people have died in custody since the report was released on April 15, 1991. This includes the deaths of five First Nations people in NSW, Victoria and Western Australia in the four weeks between March 2 and April 3.

Aboriginal and Torres Strait Islanders comprise just 3 per cent of the Australian population, according to the latest census figures, but make up 28 per cent of the prisoner population.

Ms O’Sullivan said a key theme of the royal commission, reflected in its 339 recommendations, was self-determination for Indigenous Australians. The report emphasised the “democratic right” of First Nations people to exercise “maximum control over their own lives and that of their communities”.

State Coroner Teresa O’Sullivan.Credit: Yianni Aspradakis

“Today, 30 years after the report was tabled, those words still hold such force,” Ms O’Sullivan said. “Self-determination for First Nations people is still lacking in this country. This unfinished business cannot be separated from anything else that is done to try to prevent the deaths of First Nations people in custody.”

Taylah Gray, proud Wiradjuri woman, lawyer and PhD candidate at the University of Newcastle, is a vocal advocate for change.

“What good is a royal commission if it’s just promises written in the sand?” Ms Gray said. “First and foremost, stop locking black people up.

“We are not an inherently criminal people. We have been trying to survive ever since colonisers set foot on this land and declared that their sovereignty sits above ours.

“We have the oldest jurisprudence in the world; the oldest legal system in the world, which has been perfected over time. We have two concurrent jurisdictions that run side by side, and the only difference is one is acknowledged and the other one is not.”

Ms Gray endorsed the proposed Walama Court in NSW, which would sit inside the District Court and would involve Aboriginal and Torres Strait Islander Elders in sentencing discussions, rehabilitation and monitoring, as one part of solving “this grave sovereignty problem”.

The court is based on intensive supervision of offenders and draws on aspects of other initiatives, including the Koori Court inside the Magistrates’ Court of Victoria and the NSW Local Court’s circle sentencing initiative, which involves Indigenous offenders’ communities in sentencing.

Limiting police powers was also vital, Ms Gray said. She had sat in a cell with “an 18-year-old boy who’s been kicked out of his home with a drug addiction and he’s been locked up for stealing food”.

“I don’t think prison is the option for young offenders. There needs to be rehabilitation,” Ms Gray said.

Ms Gray said the most important factor was a treaty: a legal agreement between the government or governments at different levels and Indigenous Australians.

This was separate to enshrining a First Nations Voice in the Constitution, and Ms Gray said a treaty was required first. Multiple treaties were likely to be required to reflect the diversity of First Nations peoples.

“I know other First Nations mob have different views, but my sight is set on treaty first,” Ms Gray said.

Treaties already exist in other Commonwealth nations including New Zealand and Canada.

“We still have unfinished business here on this land. If we can’t address the dispossession and come up with a treaty then we’re never going to get better,” Ms Gray said. “We want this country to love us the way we love it.”

The State Coroner said the Uluru Statement from the Heart, which calls for Indigenous recognition and agency in the Constitution, “represents an invitation from First Nations people to all Australians that we cannot ignore if we are serious about preventing Aboriginal deaths in custody.

“By accepting the Statement’s invitation, creating and supporting the processes that will give full effect to the Statement, and ensuring First Nations people have a say in what happens to First Nations families in relation to criminal justice issues, healthcare, and social policies, we will ultimately reduce the unacceptable numbers of First Nations deaths in custody,” Ms O’Sullivan said.

In 2019, the Indigenous imprisonment rate was 12 times the rate for non-Indigenous prisoners. It has increased by 35 per cent since 2009, compared with a 26 per cent increase for non-Indigenous prisoners, the Australian Institute of Criminology says in its latest report on national deaths in custody, released in December.

While Indigenous people are not more likely to die in custody than non-Indigenous people, they are significantly more likely to be arrested and imprisoned, leading to a higher number of deaths in custody as a proportion of the total Australian population.