Record Aboriginal and Torres Strait Islander deaths in custody in NSW are likely to get even worse if Australia’s penal system is not urgently reformed, according to a legal expert.
There have been 12 Indigenous deaths in custody in NSW this year, while another four people have died during police operations.
“There is a cognisance, including as a result of the Closing the Gap justice agreement, that there needs to be change, and the government wants to be seen to be making change,” said Professor Thalia Anthony, a professor of law at University of Technology Sydney, who specialises in the penal system and First Nations people.
“But when you have this overarching penal policy that is directed towards more incarceration, these measures on the margins have very minimal impact.”
The Aboriginal Legal Service (NSW/ACT) in Redfern said the current figure was the most Indigenous deaths in custody recorded in a single year.
“This is a crisis and a preventable tragedy that should alarm everyone in NSW,” Karly Warner, chief executive of the ALS said in a recent statement.
“Every one of these people had a name, a story, a family. They were loved and their families and communities will carry the scars of their loss.”
Warner said the NSW government had continued intensifying laws and policing that guaranteed the imprisonment of Aboriginal women, children and men at a rate higher than ever before.
Indigenous people make up 32 per cent of adults in custody, compared to approximately 3 per cent of the NSW population. The imprisonment rate of Indigenous people is over 10 times that of non-Indigenous.
Despite the efforts taken by the federal government to address Indigenous deaths in custody through the 1991 Royal Commission into Aboriginal Deaths in Custody and the launch of the Closing the Gap agreement in 2008, the situation has not improved.
As long as the state punishes and surveils and segregates, that models behaviour among individuals.
Since the Royal Commission, incarceration rates and deaths in custody have worsened. Additionally, the Closing the Gap outcomes are continuing to worsen and targets are not being reached, particularly that of adult imprisonment, with the rates of Aboriginal adults in prison up by 18.2 per cent from June 2023. Rates of Aboriginal young people in detention have also increased by 35.9 per cent from June 2023.
Anthony said the revelation by the State Coroner of the high number of deaths was not “unforeseen” and given the current situation of penal policy in NSW she believes “this won’t be the highest number on record”.
The ALS called on the government to ensure independent investigations of all deaths in police operations. Warner said an upcoming visit by the UN Working Group on Arbitrary Detention in December this year would be a test on the government, which she said should allow access to NSW prisons for inspection.
“It would be an international embarrassment if the NSW Government again failed to allow the UN access to places of deprivation of liberty,” she added.
The NSW Government’s ‘tough on crime’ approach, claimed Anthony, contributes significantly to the over-policing of Indigenous Australians and a bias within all stages of the legal system. She added bias presented itself through prejudicial policing, particularly for minor crimes, and a tendency to charge and arrest Indigenous people at a rate eight times higher than non-Indigenous adults.
Anthony said factors that pushed Indigenous Australians into prison, included presumptions against bail: 34 per cent of adults who are refused bail at their first court bail appearance are Aboriginal.
“As long as the state punishes and surveils and segregates, that models behaviour among individuals,” she said.
“The ideology is that if we control and incarcerate people it will lead to more safety.”
However, police intervention in Indigenous communities has been found to be ineffective and leads to the over representation of Aboriginal people in custody.
“It’s really difficult to make the police protectors of Aboriginal people when they’ve been responsible for so many harms,” said Anthony.
We are in a situation now where First Nations people are much more disempowered and the carceral system is much more empowered.
A report by the Australian Institute of Health and Welfare emphasised that connection to family, kinship and community are central to the lives of First Nations people, and these connections are disrupted by incarceration. The report further highlighted that people who come into contact with the criminal justice system are at risk of poorer health and wellbeing outcomes for themselves, their family and the broader community.
NSW Attorney-General Michael Daley and Corrections Minster Anoulack Chanthivong said in a statement to the ABC: “We are working to reduce all preventable deaths in custody, including by improving design and safety across correctional centres and have invested $16 million to make our prisons safer.”
However, Anthony said the government needed to look at what support people needed outside of prisons and invest money in it.
“We are in a situation now where First Nations people are much more disempowered and the carceral system is much more empowered,” she added.
The ALS has called on the government to work in partnership with Aboriginal communities to implement evidence-based, community-led solutions to reduce imprisonment.
The Justice Reform Initiative provided insights into evidence-based alternatives in a 2024 report, and pointed to the efficacy of First Nations community-led organisations that address alternative justice system models to divert people from incarceration. These models include bail support programs, which significantly reduce reoffending by 33 per cent and increased bail condition compliance by 95 per cent, alternative and specialist court processes, post-release and diversionary community-led programs and alternative detention models which resulted in decreases of recidivism.
Listening to the demands of First Nations leaders and organisations for change within the justice system would also help to not only reduce rates of incarceration but ultimately decrease Indigenous deaths in custody.
“If we change the principles and values of the penal system that are more about supporting people rather than incarcerating people, we will not only reduce deaths in custody, and incarceration, we will enable First Nations people to realise their potential and work out ways they can fulfil their self-determination,” Anthony said.
Main image by Michael Cogland/Flickr.
