When the royal commission into Aboriginal deaths in custody handed down its final report 30 years ago this month, it concluded that more Aboriginal people were dying in custody because more Aboriginal people were being taken into custody, often unnecessarily.
Aboriginal deaths in custody, it found, were a symptom of a system which disproportionately diverted police attention toward Aboriginal people and resulted in Aboriginal people being jailed younger and more frequently; a system where Aboriginal people were 11 times more likely to be denied bail and jailed on remand; and a system where behaviour like being drunk in public could result in a fatal stay in a police cell.
Since then, 474 Aboriginal and Torres Strait Islander people have died in custody, Guardian Australia has found.
As the 30th anniversary of the royal commission into Aboriginal deaths in custody approaches, we answer some of the most common questions and address some common misconceptions.
Do Aboriginal and Torres Strait Islander people die in custody at greater rates than non-Indigenous people?
Yes, as a proportion of the total population. No, as a proportion of people who are in custody.
According to the latest report from the Australian Institute of Criminology’s national deaths in custody program, Aboriginal and Torres Strait Islander people made up 28% of the total prison population in Australia as of 30 June 2019, while making up just over 3% of the total population. In 2018-19, 18% of all deaths in prison custody were of Aboriginal and Torres Strait Islander peoples. Aboriginal people died at a rate of 0.13 per 100 prisoners, compared to a death rate of 0.21 per 100 prisoners for the total prison population.
The Australian Bureau of Statistics, for the same period, said that Aboriginal people were jailed at 13 times the rate of non-Indigenous people.
So, while Indigenous people in custody, who skew younger than the general prison population, were less likely to die in prison, Indigenous people as a whole were jailed at a higher rate and therefore had a greater risk of dying in custody.
The same AIC report calculated that Indigenous people as a whole died in police custody at more than six times the rate of non-Indigenous people as a whole – 0.61 per 100,000 people, compared to 0.09 per 100,000 people.
Is systemic racism to blame?
When examined as individual cases, there are explanations for why an Aboriginal person was arrested, why they did or did not receive all required medical care, and why all relevant procedures were or were not followed.
But the broader picture shows a worrying trend.
An analysis of deaths in custody cases over 10 years conducted by Guardian Australia shows that while the most common causes of death in custody for both Indigenous and non-Indigenous people were medical issues followed by self-harm, Indigenous people who died in custody were three times more likely to not receive all required medical care, according to coronial reports.
For Indigenous women, the result was even worse – less than half received all required medical care prior to death.
For more information on these figures and categories, read the “about the data” section here.
Indigenous people were less likely to be serving a term of imprisonment when they died: 54% of all cases examined by Guardian Australia were on remand, in protective custody, or being arrested or pursued by police at time of death, compared with 45% of non-Indigenous deaths.
Coroners were also twice as likely to find that police, prisons or hospitals failed to follow all of their own procedures in cases involving an Indigenous death in custody than a non-Indigenous death in custody. Indigenous deaths in custody were also more likely to involve drugs or alcohol.
The impact of systemic racism is not routinely examined at inquest.
The inquest into the death of Yorta Yorta woman Tanya Day specifically examined whether systemic racism was a factor in her death, which resulted from a fall in custody after she was arrested on a train for being drunk in public. It was the first to include the question of whether systemic racism was a causative factor.
Coroner Caitlin English found that while Day’s treatment by two police officers could have amounted to criminal negligence, an avenue the director of public prosecutions declined to investigate, there was not evidence “to make a finding the differential treatment was due to Ms Day’s Aboriginality”.
However, English found that the train conductor’s decision to call police on Day, who was sleeping on a train bound for Melbourne, “was influenced by her Aboriginality”.
Public drunkenness has since been abolished as a crime in Victoria. The state’s Aboriginal affairs minister, Gabrielle Williams, said the law had a “profound and disproportionate impact on Aboriginal communities”.
Why did Guardian Australia start tracking Aboriginal and Torres Strait Islander deaths in custody?
Every report of a death in custody represents an individual life lost and a grieving family and community. We wanted to highlight those individual stories and the unique circumstances of each case, while also providing the community with an easily accessible source of updated, verified information.
Providing an annual report of all Aboriginal deaths in custody was one of the recommendations of the 1991 royal commission.
The Australian Institute of Criminology undertook this task but due to delays in state and territory governments providing that data, the reports were inconsistent and delayed.
When Guardian Australia began working on this project in early 2018, the AIC data only went up to 30 June 2015.
Since Guardian Australia published Deaths Inside, the AIC has published four reports. Its most recent report, dated December 2020, states there were 455 Aboriginal deaths in custody between the royal commission findings in 1991 and 30 June 2019.
How is the Deaths Inside database compiled?
We rely on publicly available information, such as coronial inquest findings, media reports, and press releases from police and corrective services.
This means there are some years where our data is lower than that compiled by the AIC, because we were unable to find information about cases. Most jurisdictions do not have a complete archive of coronial findings online. In Western Australia, for example, full findings are only available from 2012 onwards.
Deaths that occurred in recent years may not be listed in the database if there has not yet been an inquest and there was no media reporting at the time, as government agencies do not always publicly report on deaths.
The royal commission found that a person is considered to have died in custody if they are:
Are held in the physical or legal custody of a prison, a youth detention centre, or of police at the time of their death;
Have died as the result of traumatic injuries sustained or lack of sufficient care provided while in custody, even if that period of custody has now ended;
Are fatally injured in the process of attempts by police or prison officers to detain them;
Are fatally injured while trying to escape police, prison, or youth detention custody
All deaths matching that criteria are included in this database. We have also included deaths that occurred in the presence of police officers, including from self-inflicted injuries, and deaths that occurred soon after a police pursuit had been called off, if it’s believed the behaviour of people involved may have been influenced by the presence of police. In this way, we may include deaths that the AIC does not.
We do not imply any fault by police or prison guards except where fault was explicitly found by either the coroner or the courts.