How The Indigenous Arrest Rate Contributes To Deaths In Custody

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Content Warning: This article contains discussion of deaths in custody.

Between January 1980 and May 1989, 99 Indigenous men, women, and children died either in police custody, prisons, or juvenile detention.

The deaths triggered a Royal Commission into Aboriginal Deaths in Custody.

When the report of the Royal Commission was published in 1991, it stated that the “Aboriginality” of those 99 people “played a significant, and in most cases, dominant role in their being in custody and dying in custody”.

It’s now been 30 years since the Royal Commission into Aboriginal Deaths in Custody. And in that time, over 474 more Indigenous people have died in custody.

Jungaji Brady, nephew of Aunty Sherry Fisher-Tilberoo: “My Aunt Sherry is the baby sister to my mother. She was a proud Birri Gubba woman, and the way that she went out was a sad indictment with where we are as a black nation.”

Australia’s justice system is failing our Indigenous communities, and it’s been doing so for a really long time.

The extremely high number of Indigenous deaths in custody is driven by the ongoing effects of colonisation and failures at every stage of the justice system.

To understand the full scope of the problem we need to look at these pictures in detail.

To do that, we need to start at the first interactions between Indigenous people and the justice system: at the point of arrest.

Indigenous people are arrested at an extremely high rate.

In 1992, just a year after the Royal Commission wrapped up, National Police Surveys found that Indigenous people nationally were 28 times more likely to be arrested than non-Indigenous people.

In Western Australia in that same year, Aboriginal people were nearly 68 times more likely to be arrested.

Today, Indigenous people are still disproportionately targeted, and charged. And when they come into contact with police, they’re more likely to face arrests than other Australians.

Priscilla Atkins, CEO of the North Australian Aboriginal Justice Agency: “You know, if you’re going to arrest a kid for swinging on a swing in the school ground, you’re going to arrest a kid for stealing a Freddo frog from the supermarket. Like seriously, people can’t say Aboriginal people aren’t targeted.” 

The continuing effects of colonisation in Australia, discriminatory policies, and lack of social services mean that Indigenous people are more likely to face chronic health issues, overcrowded living environments, unemployment, and poverty.

About a third of Indigenous households live in income poverty, and Indigenous people are five times more likely than non-Indigenous people to live in overcrowded properties.

Indigenous people can often be arrested for crimes that are a reflection of this disadvantage, like begging, public order charges or theft.

They’re also about twice as likely as non-Indigenous people to be arrested for low-level assaults where no harm has been caused.

But beyond the rate at which Indigenous people are being arrested, the way that they are arrested has become as much of a source of concern too.

A heavy mistrust between Indigenous people and police means that situations can quickly escalate.

Over the past year, multiple videos of apparent excessive force being used during arrests have gone viral.

Priscilla Atkins: “It happens on a daily basis. So, a simple thing, you know, of walking down the street can end up with 10 charges and this person put into a watchhouse.”

The vast numbers of arrests of Indigenous people leave a lot more opportunity for things to go horribly wrong.

And when they do, that can lead to people dying in custody.

Aunty Sherry Fisher-Tilberoo was a 49-year-old when she died in Brisbane City Watchhouse.

She was there on drug and property charges and was waiting to be transferred to a woman’s correctional facility.

Aunty Sherry died of apparently natural causes somewhere between midnight and 6am on September 10th, 2020 in the watchhouse.

Her family say that the Queensland police service failed in their duty of care, because they should have known about her health risks and they should have been checking on her regularly, which is required by police operating guidelines.

Jungaji Brady: “She was extremely crook … the other girls within the pod were saying, this old girl, shouldn’t be here. She should be in hospital.

The CCTV footage that we could see [in] broad daylight. It was harrowing. To see rigor mortis setting in as she’s passing through to the dream time in a cold concrete cell. It’s something that, you know, it, it haunts you and it’s from womb to the tomb … families carry that.”

The assistant watchhouse officer who was on duty that night was suspended, and the Brisbane Police Service’s investigation into Aunty Sherry’s death is still ongoing.

But while that happens, there are still thousands of other Indigenous people in prison, who remain at risk of something similar happening to them.

And that was exactly what the Royal Commission looked into 30 years ago.

Priscilla Atkins: “So, what they found was … Aboriginal people had high rates of being charged by police … People were then put into the watch houses, there was unnecessary deaths in there that could have been avoided.”  

The 1991 Royal Commission report stated that law reform needs to start at the very beginning of an Indigenous person’s interaction with the justice system, and the drivers behind social disadvantage needed to be addressed.

The report found that Indigenous people were being arrested at a totally disproportionate rate compared to non-Indigenous people.

Among the 339 recommendations set out by the Royal Commission, the report said that these first interactions between Indigenous people and police really need to change and “Police Services should adopt and apply the principle of arresting being the sanction of last resort”.

The report said in many cases, arrests and charges should be avoided entirely in favour of a caution or a summons to attend a court at a later date.

But for the most part, those processes haven’t changed, and police are still choosing to make the arrests and hold people in watchhouses.

Priscilla Atkins: “If the Royal Commission recommendations have been followed through, we would have a totally different working relationship with the police and the justice system, but 30 years down the track that hasn’t changed, if anything, it’s, it’s worse.

It’s just devastating. So, when someone is arrested for a minor matter and they die as a result of that. It’s an innocent, preventable death.” 

A few changes to arrest practices that were put forward by inquiries in the years following the Royal Commission have been put into practice.

Western Australia, New South Wales and Victoria all now have an alert system in place for legal services to be contacted whenever an Indigenous person is taken into custody.

The system gives community legal services the ability to immediately respond to an Indigenous person’s arrest and check on their welfare, and it has been instrumental in saving lives.

But, like most of the progress that’s been made since the Royal Commission recommendations were released, the implementation of this system is patchy, under-resourced and it hasn’t been established Australia-wide.

Jungaji Brady: “The normalisation of this business is just so wrong. It’s a national issue that demands national action by a national leader system.”

Indigenous organisations are advocating for alternative policing styles to begin with.

Community-style policing trains officers to communicate with Indigenous elders, understand systemic issues and engage with people in a healthier way.

In the rural towns where this kind of policing has been enforced, arrest and imprisonment rates have plummeted.

Back in 2013, Bourke, in north-west NSW became the site for Australia’s first Justice Reinvestment effort, called the Maranguka Justice Reinvestment Project.

The project is a form of Indigenous self-governance where Indigenous community leaders deliver programs that aim to keep those interactions with police to a minimum and work with justice agencies to change their procedures and behaviours.

It’s produced some amazing results, like an 18% reduction in the number of major offences reported, a 39% reduction in the number of drug offences, and a 35% reduction in driving offences.

Priscilla Atkins: “Everyone wants a safe community. Aboriginal people want to save community as well, but it’s about how we do that.”

The recommendations of the Royal Commission continue to be largely ignored, 30 years after the final report was published.

Indigenous people are still unfairly targeted and charged by police and that first stage of the justice system is still fraught with racist bias and an unwillingness to use arrests as a last resort.

While some changes have been made to try and give Indigenous people more safety and culturally-appropriate care when they are taken into custody, the improvements to this system have been few and far between. And until major reform happens, it’s likely we’ll keep hearing more and more stories like Aunty Sherry’s.