When Black Becomes a Death Sentence, Part 1:
I Come From a Land Down Under
Aboriginal and Torres Strait Islander readers are advised that the following content contains the names and descriptions of people who have died.
There is a brutal reality of being an Aboriginal or Torres Strait Islander in Australia or of being Black in the United States of America. Not only do these different groups in both countries suffer far worse health outcomes than the rest of the population, but interactions with the police are fraught with danger and can have deadly consequences (ALRC, 2017; Blagg et al, 2015; Brennan, 2022; Caraballo et al, 2023; Collins, 2018; French, 2016; Hassett-Walker, 2020; HRW, n.d.; IACHR, 2018; Lofstrom, 2021; Schwartz, 2020; Szabo, 2023).
Monday next week (29 May) is a public holiday where I live, the land of the Ngunnawal and Ngambri peoples. It will be Reconciliation Day—a day dedicated to recognising Aboriginal and Torres Strait Islander cultures and fostering reconciliation between these First Nations peoples and those who arrived over the past few centuries (Thorpe, 2017).
Beyond that, it marks the beginning of Reconciliation Week, of an attempt to heal the harm caused by the colonisation of this land that disrupted more than 60 000 years of cultural continuity. Our indigenous communities today continue to face many systemic challenges and acknowledging that there is a problem is an important step in reconciliation (AIHW, 2013; ALRC, 2017; Blagg et al, 2015; Devlin, 2016; Jones, 2023; Thorpe, 2017).
Although the situation with Black Americans in the USA is different in many ways (including but not limited to the fact that the ancestors of most Black Americans were forcibly relocated across the sea between continents and are not indigenous to the United States), there are some similarities which will be revealed next week when I release part 2 of this two-part series (ALRC, 2017; Amnesty International, 2021; Caraballo et al, 2023; Collins, 2018; OHCHR, 2022; Pollard, 2022; Szabo, 2023).
First, a note on institutional or systemic racism. People who engage in this type of discrimination often aren’t even aware that it exists, or actively deny that it does. Typically engaged in by people who believe they are “just doing their job”, i.e. following the rules, thought to be equal and fair to all. But if the outcome of universal rules is that a particular minority is consistently discriminated against, then that’s institutional racism. The intent of the person “just doing their job” is not a necessary criterion for inclusion. Even if it’s due to ignorance or a lack of critical analysis of how policies and actions contribute to discrimination, it’s still discriminatory (Blagg et al, 2015).
The protagonist of my upcoming debut supernatural thriller, Ethereal Malignance, is Black. His ethnicity is unspecified because he doesn’t actually know it, but society (especially the police) treat him like he’s Black, so Black is how he sees himself. There are situations in the story where approaching the police could be a logical solution for a White Australian like me, but could be a dangerous or lethal situation for him, so he doesn’t. If you aren’t someone who is mistreated by the police, this reality can be difficult to understand (Collins, 2018). We can start by looking at the existing context to get a better understanding of why this is the case.
The problems of today are rooted to actions in the past. In Australia, the First Nations peoples of the land, Aboriginal and Torres Strait Islander people, were forcibly removed from their ancestral lands, denied rights under colonists’ laws, while still being bound by them, and had their families forcibly separated and abused by not only private settlers but also by governmental authorities, including the police. Indigenous Australians are therefore rightfully suspicious of governments because of the harsh and inexcusable history they and their ancestors were subject to: in some cases, like the Stolen Generations, these racist policies only ceased in the 1970s, with the right to vote only given in the late 1960s. Government actions have caused so much trauma among First Nations communities that is still unresolved today (AIHW, 2013; Hamilton, 2022; Heath, 2019; Nogrady, 2019).
The life expectancy of Australians is among the highest in the world, however the situation is not as positive for Aboriginal and Torres Strait Islanders: the life expectancy is almost nine years less for indigenous men and almost eight years less for indigenous women (Amnesty International, 2021; Pollard, 2022). Despite government attempts to “Close the Gap”, the Australian Human Rights Commission (2022) admitted the goal to close the gap in health outcomes between indigenous and non-indigenous Australians is not going to be met by the 2030 end date.
The Current Situation in Australia
As identified in the Royal Commission into Aboriginal Deaths in Custody, indigenous people in Australia continue to be disadvantaged when it comes to “health, housing, education and employment”. When it comes to matters of discretion exercised by police, prosecutors and judges, it is clear that when compared to non-Aboriginal people, Aboriginal people are less likely to be cautioned and more likely to be arrested (including cases where the laws are being applied to them more regularly than to other people), more likely to have bail challenged and more likely to have bail refused even when they are first time offenders (ALRC, 2017; Blagg et al, 2015).
Moreover, about half of “Aboriginal people who were refused bail were either found not guilty or had their cases dismissed”. Aboriginal and Torres Strait Islander people, especially men, report high levels of harassment and assault by the police. The Victorian Law Reform Commission “accepted that there were numerous environmental and cultural reasons why Indigenous people might fail to answer bail” instead of mere defiance of the court (Blagg et al, 2015).
The Royal Commission highlighted the “unreal conditions” imposed upon Aboriginal offenders which are then readily broken because the conditions ignore Aboriginal cultural commitments, effectively setting them up to fail. When the bail conditions placed on First Nations people in Australia are noted with concern by the International Commission of Jurists, it indicates there is a serious problem with the way the courts treat Aboriginal and Torres Strait Islander people, who “are amongst the most imprisoned people in the world” (Blagg et al, 2015).
“Racism and discrimination” are factors that contribute to the “over-representation of Indigenous people in the criminal justice system”. There are many reasons for this, including “extreme social and economic disadvantage, dispossession, and alienation from traditional land and culture”, “[v]ulnerability to crime”, “[e]ndemic and entrenched forms of racism, including racial vilification and stereotyping”, “lack of confidence in justice and related institutions due to cultural alienation and the roles such institutions played historically”, including issues like the Stolen Generations (Blagg et al, 2015; Nogrady, 2019).
The imposition of a new culture by colonists persists as an incompatibility to this day, as it often contradicts the longstanding cultures and legal traditions of the indigenous peoples who are regarded as engaging in “anti-social behaviour” when they follow their customary cultures instead of the culture that has been imposed upon them by colonisers. Examples of this include the criminalisation of “Indigenous people’s use of ‘public space’”, not so much because they’re doing anything wrong per se but merely because their presence in certain places has been deemed unacceptable and has been made unlawful (Blagg et al, 2015).
The over-incarceration of indigenous people is what leads directly to the high amount of deaths in custody (ALRC, 2017). Even after the handing down of the Royal Commission recommendations more than 30 years ago, structural racism remains baked into to the court system and more than 500 indigenous people have died in custody. And as these deaths are “inconclusive”, with “insufficient evidence”, no one responsible for any of these have been found guilty as a consequence for those actions (Brennan, 2022; Kurmelovs, 2018).
Aboriginal and Torres Strait Islanders are not the only Black people to suffer in Australia. East African people are another group who suffer mistreatment by the police. Migrants from South Sudan in particular experience racial profiling by the police, and their communities suffer from over-policing, “high rates of incarceration” and “indefinite detention” (Amnesty International, 2021; OHCHR, 2022).
Deaths in Custody
There are far too many deaths to cover each individually, but I will briefly mention some of the more noteworthy or recent cases.
John Pat (1983)
A group of drunk people, including off-duty police officers, got into a fight and sixteen-year-old Yindijibardi boy John Pat joined in. In the fight, his head smashed into the road. Eyewitnesses also reported the police beating and kicking John. Instead of receiving medical assistance, the police left him alone in a cell for an hour, and when they finally checked on him, he was dead. The police involved were tried for manslaughter, but the all-white jury acquitted them all. The autopsy showed John had received grievous and extensive internal injuries (Teerman, 2022).
Kingsley Dixon (1987)
19-year-old Kaurna man Kingsley Dixon died in a temporary cell and the authorities declared his death a suicide. It was one of the cases that led to the creation of the Royal Commission, which found his death was caused by a failure of the prison’s rules, regulations and policies. No one was charged in connection with his death (Higgins & Collard, 2020).
David Gundy (1989)
Police raided David Gundy’s home and killed him in his bedroom with a shotgun. He was not wanted for any offence. The killing was ruled an accident and no one was charged (Anthony, 2019; Clarke, 2020; Cunneen, 1990).
Mulrunji Doomadgee (2004)
36-year-old Palm Island man Mulrunji Doomadgee was arrested by police “for being drunk and a public nuisance” and beaten to death. The pathologist who performed the autopsy said his injuries were akin to “those of plane crash victims”. His liver was almost sliced in two. His killer was acquitted of manslaughter by an all-white jury (ABC News, 2006; Clarke, 2020; Horn, 2014; SBS, 2014).
Mr Ward (2008)
47-year-old Ngaanyatjarra elder Mr Ward was arrested for driving under the influence of alcohol. He was refused bail and the next day transported in the back of a police wagon for four hours. The temperature reached 56 degrees Celsius, he received third degree burns and cooked to death in a manner the Human Rights and Equal Opportunity Commissioned described as “cruel, inhumane and degrading”. No criminal charges have ever been laid in connection with his death, however fines were handed out for breaches of workplace safety standards (Clarke, 2020; Hirini, 2018).
Ms Dhu (2014)
26-year-old Yamatji woman Ms Dhu was in jail for unpaid fines. She cried and said she was in pain, but the police thought she was lying. Her treatment by the police was described as “profoundly disturbing” by the coroner. When they finally took her to the hospital, she died. Cause of death: septicaemia and pneumonia from a broken rib. No charges have been laid in connection with her death (Clarke, 2020; Holdaway, 2018; Wahlquist, 2016).
Kumanjayi Langdon (2015)
59-year-old Warlpiri man Kumanjayi Langdon was drinking alcohol with family and friends in a park when he was accosted by the police. The punishment for his actions was a fine but the police chose to arrest him instead. Despite repeatedly asking for a doctor, he died three hours later in police custody. No charges have been laid in connection with his death (Moore, 2015).
David Dungay (2015)
26-year-old Dunghutti man David Dungay refused to stop eating a packet of biscuits (David was diabetic) and six prison officers jumped onto him, crushing him. He yelled, “I can’t breathe” and they didn’t believe him. He was telling the truth and he died (Clarke, 2020; Martin, 2020). No charges have been laid in connection with his death (Allam, 2020).
Rebecca Maher (2016)
36-year-old Wiradjuri woman Rebecca Maher was taken into custody by police because she appeared to be drunk. She was held for six hours to “sleep it off” until the police realised she was dead. If they had taken her to a hospital or called an ambulance, she would not have died. No charges have been laid in connection with her death (James, 2019; SMH, 2019; Wahlquist, 2019).
Wayne Fella Morrison (2016)
29-year-old Wiradjuri, Kokatha and Wirangu man Wayne Fella Morrison was arrested for the first time and was being held until a court hearing. Hours before the hearing, he was involved in an altercation with guards. His ankles and wrists were restrained, a spit-hood placed on his head and he was “positioned face down in the back of a van”. He experienced a heart attack and was unresponsive. He died in hospital three days later. The coroner said the conditions Wayne was held in were “barbaric and inhumane” and that “a litany of failings” led to his death. That he was carried face down after being restrained was “an excessive use of force”. No charges have been laid in connection with his death (Dillon, 2023; Kurmelovs, 2018; Kurmelovs, 2023).
Tane Chatfield (2017)
22-year-old Gamilaraay, Gumbaynggirr and Wakka Wakka man Tane Chatfield was expected to be acquitted and released from jail, but before that could happen, he “suffered multiple seizures and was hospitalised overnight” and was then sent back to jail. He was later “found unconscious in his cell” the day before the verdict and his death was ruled a suicide. The medical care provided to him was ruled “inadequate”, but no charges have been laid in connection with his death (Furlong, 2020; Mitchell, 2020; Wellington, 2020).
Tanya Day (2017)
55-year-old Yorta Yorta woman Tanya Day fell asleep on a train and was arrested for drunkenness. She fell in her cell and hit her head, and despite sustaining that injury was left unattended for three hours, after which she died (BBC, 2020; Clarke, 2020). No charges were made in connection with her death, however since her death the state of Victoria has “abolish[ed] the offence of public drunkenness” (Whiteman, 2021).
Nathan Reynolds (2018)
36-year-old Anaiwan and Dunghutti man Nathan Reynolds was expected to be released in one week. However, he had an acute asthma attack and required emergency treatment he was not given. He “died on the concrete flood in his prison cell”. A coronial inquest found the response from the authorities were “unreasonably delayed”. No charges have been made in connection with his death (Allam, 2021; Thorpe, 2021).
Kumanjayi Walker (2019)
19-year-old Walpiri man Kumanjayi Walker was shot dead in his own home when he resisted arrest (Anthony, 2019). The first shot was considered lawful because Kumanjayi stabbed the officer with a pair of scissors, but the case went to court because after Kumanjayi had been restrained he was shot an additional and unnecessary two times, fatally. His killer was found not guilty of murder or manslaughter (Breen & Roberts, 2022).
There are many solutions which need to be implemented if the situation in Australia is to change for the better.
Despite the Australian Government’s claims that many of the recommendations of the Royal Commission into Aboriginal Deaths in Custody have been adopted, the reality is that the situation is worsening, not improving. Two key elements which have not been adopted are the idea of imprisonment as a last resort and the idea of self-determination and community involvement. Western Australia and Northern Territory, two jurisdictions with large Aboriginal populations, have retained mandatory detention laws which contribute to the continuing problems and which have been heavily criticised by UN bodies (McGlade, 2021).
The example of two Aboriginal teenagers in Western Australia in 2018 who chose to flee from police and then subsequently drowned in a river shows that the systemic racism in Western Australia Police is a major problem. In a coronial inquest called to determine to what extent police actions led to the tragic outcome, a boy who survived the incident said the idea of engaging with the police wasn’t even an option to be considered. Professor Pat Dudgeon, a professor of Indigenous studies at the University of Western Australia gave evidence that the deaths of these teenagers may have been prevented if the Law Reform Commission’s 2017 report Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples and its recommendations were implemented (McNeill, 2021).
The Australian Law Reform Commission (2017) recommends that bail laws be changed to ensure authorities “consider […] issues that could arise based upon a person’s Aboriginality, including cultural background, ties to family and place, and cultural obligations”. That the First Nations of Australia “were dispossessed of their land without benefit of treaty, agreement or compensation” is a root cause of disadvantage in this country, and without addressing those fundamental issues, the legal system will continue to be over-represented by Aboriginal and Torres Strait Islander people.
On the subject of self-determination, in 2017 Aboriginal and Torres Strait leaders from all across Australia travelled to Uluru for the First Nations National Constitutional Convention. It was the culmination of dialogue involving 1200 different indigenous representatives from all across the country, in a multi-year process. The Convention reached “a consensus position on constitutional recognition [of First Nations peoples] for the first time”. A First Nations Voice to Parliament, embedded into the Constitution of Australia, was one of the key recommendations, a formal body to advise the Parliament of Australia when dealing with policies and laws that affect First Nations peoples (AHRC, n.d.; Chrysanthos, 2019; McGowan, 2017; Reconciliation Australia, 2023; Uluru Statement from the Heart, 2023).
The conservative Coalition Liberal/National Government at the time refused to act on this initiative (McGowan, 2017; SBS, 2023), but after a change in government, the current Labor government has promised to take the question to the Australian public directly via referendum (Butler, 2023). However, the conservative Opposition has decided to campaign against the Voice referendum, and they have been accused that the specific campaign being run by the Opposition is based on “deceit […] misrepresentations” and “ignorance” with an intention to “sow confusion and doubt” about what Australian voters are being asked (Ferguson & Freri, 2023; SBS, 2023).
The problems today that lead to the unnecessary deaths of Australia’s First Nations peoples are built upon a number of issues that feed into each other and overlap:
- the history of colonisation and dispossession
- systemic racism in institutions
- impacts of historical and ongoing trauma
- disparity in life expectancy
- an unsympathetic and overzealous criminal justice system
- over-incarceration and deaths in custody
- that not all efforts to remedy these issues have been fully explored
- the lack of First Nations self-determination and community involvement
Colonisation has happened and the past cannot be undone. What can be done, though, are for governments and authorities to listen to legal and cultural experts and make changes to ensure a better future. If this is not done, many more lives will continue to be unnecessarily lost.
By recognising and understanding the issues contributing to the challenges faced by Aboriginal and Torres Strait Islanders, we can contribute to the process of reconciliation. So beyond just a day off work, these are some of the things I will be contemplating this Reconciliation Day, and beyond that to the broader Reconciliation Week.
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Dillon, M. (2023, 12 May). Wayne Fella Morrison’s death in custody came after ‘litany of serious failings’, inquest finds. ABC News. https://www.abc.net.au/news/2023-05-12/coronial-findings-into-wayne-fella-morrison-death-in-custody/102337320
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Martin, M. (2020, 1 June). George Floyd’s death brings back trauma for family of Aboriginal man who died in custody. ABC News. https://www.abc.net.au/news/2020-06-01/david-dungays-family-traumatised-by-death-of-george-floyd/12307414
McGlade, H. (2021, 7 April). What we can do to stop Indigenous deaths in custody. The Sydney Morning Herald. https://www.smh.com.au/national/what-we-can-do-to-stop-indigenous-deaths-in-custody-20210405-p57gnq.html
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Mitchell, G. (2020, 26 August). Divert Indigenous men from jail to reduce deaths in custody: Coroner. The Sydney Morning Herald. https://www.smh.com.au/national/nsw/we-must-divert-indigenous-men-from-jail-to-reduce-deaths-in-custody-coroner-20200826-p55pk2.html
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