Despite 432 Indigenous deaths in custody since 1991, no one has ever been convicted. Racist silence and complicity are to blame Alison Whittaker
Many people on this continent know more about police and prison violence in the US, another settler colony, than the same violence that happens here. Both are deserving of our attention and action, so what’s behind the curious silence on First Nations deaths in custody in Australia? Aboriginal and Torres Strait Islander people have raised this concern long before today in the media1 and social media.2 Why do we have to? The reasons are complex, but boil down to a system of complicity and perceived normality in Indigenous deaths at the hands of police and prisons. The settler Australian public simply does not see Indigenous deaths in custody as an act of violence, but as a co-morbidity. Amanda Porter, an Indigenous scholar of policing and criminal justice, wrote about media coverage of Indigenous deaths in custody in Australia compared with the US.3 She noted differences in the way the media covered the police shooting of Michael Brown in Ferguson,4 Missouri, with the killing of Mulrunji Doomagee on Palm Island: “The choice of language is important: it evokes a certain response in the reader and shapes our understandings of events. In the case of Palm Island, the often-repeated meta-narrative of so-called ‘dysfunctional’ and ‘lawless’ Aboriginal communities served to justify further acts of colonial violence.””5
Why the silence? Since 1991, some 432 Indigenous people (and possibly more) have died in custody.6 In my 2018 pilot study7 on a sample of 134 Indigenous deaths in custody since the Royal Commission into Aboriginal Deaths in Custody,8 I found coroners considered referring just 11 deaths to prosecutors and only ended up referring five. Of those, only two made it to court and both resulted in quashed indictments or acquittals. These are monumental figures. They are also stories of deep systemic complicity, both before and after death. What makes Australian silence about deaths in custody so especially bizarre is that, unlike the US, we have a mandatory legal review of
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Chain Reaction #139
May 2021
every death in custody or police presence. Each case, regardless of its circumstances, goes before a judge called a coroner. Just as public political will is always changing, so is law and legal strategy. Compared to the campaigns for justice for black people killed by police in the US, which have made relative gains, many families here are working in a complex space of honouring their loved ones, proper cultural protocols around death and the dead, and securing CCTV footage to mobilise the public for justice.9 Coroners have offered mixed responses, and each state and territory’s coroner approaches the question in a slightly different way. After the death of Ms Dhu,10 a Yamatji woman, in police custody in Western Australia in 2014, persistent advocacy from the families and media organisations prompted the coroner to release footage of her treatment before her death. Coroner Ros Fogliani did so in order to assist with the fair and accurate reporting of my findings on inquest.11 However, last year, NSW deputy coroner Derek Lee initially declined to release footage showing the circumstances of David Dungay’s death – held down by six corrections officers in a prone position until he died – citing cultural respect, sensitivity for his family and secrecy over prison procedures.12 Members of Dungay’s family, who had applied to have it released, responded with exasperation. It was eventually shown on the opening day of the inquest, although the fuller footage requested by the family remains suppressed from public view.13
Other ways families are silenced There are other transparency issues that give a legal structure to silence about Indigenous deaths in custody. Recently, there appears to be a new push in non-publication or suppression orders being sought by state parties in coroners courts. In Dungay’s inquest, for instance, the media was ordered not to publish the names,14 addresses or any other identifying features (including photographs) of 21 NSW corrections staff members. There have been other suppression orders in deaths in custody matters before criminal courts, such as the identity of the officer facing a murder charge in the death of Yamatji woman Joyce Clarke in Western Australia last year.15 Officers in South Australia are also going to some strategic effort to avoid testifying before the inquest into the death of Wayne Fella Morrison, a Wiradjuri, Kookatha and Wirangu man, or even speak with investigators on the grounds of penalty privilege. So far, they have not been successful in claiming the blanket privilege, despite taking the matter to the SA Supreme Court.16 Morrison’s sibling Latoya Rule has written: “investigations surrounding the cause of death in prisons can have a great impact for our grieving families to at least get an account of what happened to our loved ones in the absence of our care. It can also raise the spotlight on the behaviours of correctional and police officers – like those that piled atop of my brother’s body.”17 Outside of coroners courts, there is the threat of subjudice contempt,18 when media coverage may pose a prejudicial threat to a potential trial. This carries a risk for families who speak out about their loved one’s deaths in a way that
