Why the Black Lives Matter protests must continue: an urgent appeal by Marcia Langton

This is an edited transcript of the 2020 Thea Astley Address delivered by Marcia Langton at the Byron Writers Festival. It's a longer read at 4,500 words. You can listen to the the speech here.

Aboriginal and Torres Strait Islander readers are advised this article contains names and images of deceased people.

Hello, I'm Marcia Langton and welcome to the 2020 Thea Astley Address.

I acknowledge the traditional owners of Bundjalung of Byron Bay Arakwal people, the Minjungbal people and the Widjabul people as Traditional Owners and custodians of their homelands in the Byron Shire. I pay my respects to their Elders, past and present. I also acknowledge the Wurundjeri people of the Kulin nations on whose lands I live and work and salute their Elders throughout the thousands of generations.

I hope Thea Astley in the other world has watched the last few weeks of the Black Lives Movement and pondered on the history of Palm Island.

When she wrote The Multiple Effects of Rainshadow published in 1996, she could not have imagined that the injustices meted out to the Palm Islanders from 1919 when the settlement was established, to 1957 when the Palm Island strike was savagely put down, would result in a telling instance of how Black Lives Matter in history, in the present, and for our future.

Thea Astley passed on in 2004, the same year as Mulrunji or Cameron Doomadgee, who died in a police cell on Palm Island on Friday, November 19, in an encounter with Sergeant Chris Hurley. The office of the state coroner reported on the inquest on May 14, 2010.

Doomadgee was a resident of Palm Island. He was found dead in a cell in the police station on Palm Island. A post-mortem examination showed that he had a cut above his right eye, four broken ribs, his portal vein had been ruptured and his liver had been almost cleaved in two.

The Doomadgee case tells us that there is something rotten in the state of Denmark, and leaders from every Australian government are oblivious to the stench. It is an exemplary case of the persistent habit of police forces and criminal justice systems to fail Aboriginal and Torres Strait Islander people. At this point in time, the numbers of deaths in custody exceed 400 and they're probably closer to 500 since the royal commission commenced in 1987.

The deputy state coroner, Christine Clements, had conducted an inquest into the death and stood down to avoid a perception of bias. She published her findings on September 27, 2006.

She found

the deceased died from intra-abdominal haemorrhage due to or as a consequence of the rupture of his liver and portal vein.

And concluded that

Senior Sergeant Hurley, the police officer on Palm Island at the time of the death of the deceased, caused these injuries to the deceased.

She also found

Senior Sergeant Hurley and the deceased fell through the doorway of the police station onto the floor and then Mr Hurley, angered by the unruly behaviour of the deceased, hit the deceased whilst he was on the floor a number of times, in a direct response to himself having been hit in the jaw and then falling to the floor.

And lastly, she wrote

the fatal injuries suffered by the deceased were not caused in or as a result of the fall but by Senior Sergeant Hurley punching the deceased after the fall.

But the later inquest report which superseded the one I've just read from, was careful to account for what followed.

The then Queensland attorney-general, Kerry Shine, initiated criminal proceedings against Hurley for the manslaughter and the assault of Doomadgee, following the receipt by him of legal advice from former New South Wales chief justice, Laurence Street.

The trial was conducted in the Supreme Court in Townsville in June 2007 and the jury acquitted Hurley of both charges.

The Doomadgee case tells us that over a period of 14 years the Queensland Police and criminal justice system denied justice to the deceased and the family.

Lex Wotton later took a case against the Queensland government after Peter Beattie, the premier, had sent in riot police to put down the protests of the community. The racism and the impunity of the police in their attacks ended up costing the Queensland government $30 million.

But there are hundreds of other cases where justice has been denied. Thirteen years ago, Chris Hurley was the first policeman to stand trial for an Aboriginal death in custody. Hurley pleaded not guilty. And as you know now he was acquitted of all charges.

Court finds police acted with impunity

Returning to Lex Wotton: on the day of Doomadgee's autopsy results arriving on Palm Island, Wotton read them out to a large crowd of the residents. This occurred about a week after his death. Led by Wotton, angry residents marched from the town square and burned down the police station, courthouse and police houses. Officers tried to barricade themselves as they were attacked with sticks and rocks, and told to leave the island.

Wotton was later convicted of inciting a riot and served 19 months in jail before being released on parole in 2014.

The Federal Court found in litigation taken by Wotton in November 2016 that police were racist in their response and ordered compensation for one family, prompting momentum for the community to take a class action.

Federal Court Justice Debbie Mortimer found police had acted with impunity. She also found the Queensland police service's failure to suspend Hurley after Doomadgee's death was unlawful discrimination.

In that case, Wotton and his family were awarded $220,000 in damages for racial discrimination in December 2016. Doomadgee's death resonated on the island, in the Queensland government, nationally and internationally for another 14 years.

And despite the sadness and grief felt for his far too early death, a measure of justice was finally delivered after these years of protest and litigation, when the Queensland government settled an out-of-court class action for the egregious attacks on the residents of Palm Island by the Queensland riot police. And as I said, the class action resulted in a $30 million payout.

Systemic racism that pervades the police

That Hurley, like all other police involved in the long history of Aboriginal deaths in custody, was cleared of any wrongdoing, with all that the history of this case tells us about Aboriginal deaths in custody, the cynical contempt for justice demonstrated by the Queensland police and many in the judiciary, cannot be ignored.

And it was not ignored. The death of Doomadgee became the subject of books, documentaries and litigation, including, as I said, the successful class action. One of the outstanding books on the subject is Chloe Hooper's The Tall Man. It was also made into a documentary.

Meanwhile, Hurley had been transferred to a police station on the Gold Coast where he was charged while serving as a police officer with assault, dangerous driving and other offences.

Criminal lawyers were moved to write blogs about Hurley. On July 15, 2017, Paul Gregoire and Ugur Nedim of Sydney Criminal Lawyers referred to him as "a criminal with a badge" on the website of their law firm, summing up for all of us the true state of affairs denied by the entire criminal justice system in Queensland.

They detailed his criminal activities on the Gold Coast. He was found guilty on two counts of dangerous driving during a high speed police pursuit in the suburb of Pacific Pines on the Gold Coast in May 2015.

He pleaded guilty to assaulting a female police officer in a Gold Coast shopping centre 12 months earlier.

He was found guilty of assaulting Luke Cole during a roadside arrest in November 2013, when he unjustifiably put the driver in a chokehold. At the time of his hearing for that offence, Hurley was already suspended without pay due to a string of charges against him. He took medical retirement. However, the bloggers write,

if one takes a closer look at Hurley's police career, or rather, the times he's been on the wrong side of the law, what one finds is an example of the systemic racism that pervades the Queensland police service and on a broader scale, many other Australian institutions.

Findings from Guardian investigation

There is no time here to recount the many failings of the Queensland Justice System in the Doomadgee case and so many others involving Aboriginal and Torres Strait Islander detainees.

But the findings of the Royal Commission into Aboriginal Deaths in Custody, which commenced in 1987, were highly relevant to the coroner who conducted the second inquest into Doomadgee's death, if it was totally ignored by the subsequent criminal trial of Hurley.

The denial of rights of, and natural justice to, the victims in the Aboriginal and Torres Strait Islander deaths in custody saga, the arrest and incarceration of Aboriginal adults and children, have reached the level of a national crisis.

This is the view of many Indigenous people, human rights advocates, many in the legal fraternity and thousands of citizens. It is not the view, however, of the political leadership in Australian governments.

Even the most reasonable reforms have been rejected. Those who campaigned this year to raise the age of criminal responsibility from 10 to 14 years of age are bitterly disappointed by the decision of the Council of Attorneys-General this week to delay a decision until next year, citing as the reason the risk to community safety, particularly on behalf of the Western Australian government.

Read more: Ten-year-olds do not belong in detention. Why Australia must raise the age of criminal responsibility

How bad is it?

Throughout the first half of 2020, as people chanted "Black Lives Matter" across the world in protest of the killing of George Floyd and too many others, the Guardian Australia conducted a study of Aboriginal deaths in custody in Australia.

After reading 589 coronial reports, the team at the Guardian found "a record of systemic failure and neglect" and reported on a number of key issues that are too often ignored by police and the criminal justice system. There are too many myths about trends in deaths and incarceration rates and how Aboriginal people in custody are treated, both by the police who charge them, and when they are in custody, whether in police custody or in a correctional facility.

So, the Guardian team write,

The key finding of the Royal Commission was that Aboriginal people are more likely to die in custody because they are arrested and jailed at disproportionate rates.

That remains as true in 2020 as it was in 1991. In 1991, 14.3% of the male prison population in Australia was Indigenous. In March 2020 it was 28.6%. So, the numbers have increased dramatically but so too has the proportion.

The proportion has doubled since 1991. And,

According to data released by the Australian Bureau of Statistics this month, 4.7% of all Indigenous men are in jail, compared with just 0.3% of all non-Indigenous men.

And the Guardian writers continue,

Then as now, non-Indigenous people died in greater numbers and at greater rates in custody than Indigenous people. But then as now, Indigenous people made up just 3% of the total population.

That means more Aboriginal people are imprisoned and dying as a proportion of their total population. And they continue,

Using the most recent census and Australian Institute of Criminology figures, to calculate a crude rate per 100,000 people, showing Indigenous people are 10 times more likely to die in prison than non-Indigenous people.

Their examination of coronial reports also showed a stark difference in the treatment of Indigenous people who died in custody compared with non-Indigenous people, and they write,

While the most common cause of death for both Indigenous and non-Indigenous people in custody was medical issues, or what coronial reports referred to as natural causes, Indigenous people were much less likely to have been given all of the medical care they needed prior to their death.

Agencies such as police watch houses, prisons and hospitals failed to follow all of their own procedures in 37% of cases where Indigenous people died, compared with 21% for non-Indigenous people. Aboriginal and Torres Strait Islander defendants were more likely to receive a sentence of imprisonment upon conviction than non-Indigenous defendants.

Almost a third of Aboriginal and Torres Strait Islander defendants were jailed, compared to 18% of non-Indigenous defendants, despite the two groups having similar conviction rates: 85% to 81%.

And the Guardian revealed that,

Police in New South Wales pursued more than 80% of Indigenous people found with small amounts of cannabis through the courts while letting others off with warnings, forcing young Aboriginal people into a criminal justice system that legal experts say they will potentially never get out of.

And the Guardian concluded that,

Between 2013 and 2017 the police disproportionately used the justice system to prosecute Indigenous people despite the existence of a specific cautioning scheme introduced to keep minor drug offenses out of the courts.

No justice, no prosecutions

So, I ask rhetorically, where is the stench coming from?

I worked for the Royal Commission into Aboriginal Deaths in Custody from 1989 to 1990. After the primary recommendation of the royal commission that incarceration or arrest and imprisonment of Aboriginal and Torres Strait Islander people should be a last resort, the key recommendation pertained to the principle and implementation of duty of care by all involved in the criminal justice system from police to correctional services officers.

We can see from the evidence unearthed by the Guardian team that the failure of police and correctional service officers to exercise duty of care remains the primary contributing factor to Aboriginal deaths in custody. The Guardian team found that, for instance,

An Aboriginal woman with a chronic injury and a tooth abscess was denied pain medication for six weeks after being transferred to Townsville Women's Prison in 2010. Her medical records had not arrived with her and apart from issuing Panadol, authorities did not believe she was in need of pain relief. Six weeks after the transfer she took her own life. The coroner said the pain was a contributing factor in her despair during her final weeks.

In another instance,

An Aboriginal man in the grip of cardiac arrest was made to walk to a guard station to use a portable oxygen unit before an ambulance was called. Another Aboriginal man died of heart disease lying on a concrete bench in a Darwin police watch house cell. The coroner said, a sick middle-aged Aboriginal man was treated like a criminal and incarcerated like a criminal. He died in a police cell which was built to house criminals. In my view he was entitled to die as a free man.

And,

The well-known case of Mr Ward, a Ngaanyatjarra elder, who the coroner found was cooked to death in a prison transport van in circumstances described as wholly unnecessary and avoidable.

Families of those who die experience poor treatment. Coroners have criticised unnecessary delays in notifying next-of-kin. In one case a father found out his son had died when another prisoner called him several hours after the death, long before police notified him officially. In many cases police investigating a death on behalf of the coroner failed to interview anyone other than the prison or police officers directly involved. Aboriginal witnesses were left out.

And so, having read so much from that very important Guardian report, I want to acknowledge my gratitude to the Guardian for covering this issue of Aboriginal deaths in custody so assiduously.

Like hundreds of other Australians, I was distressed by the death of Ms Dhu in custody in a police cell in Western Australia, and then later, the death of Tanya Day in a police cell in Victoria.

There are too many other cases of Aboriginal women who have died in police custody to recount here. Their lives were cut short by violence compounded by what seemed to be a contempt for Aboriginal women, that can pass for normal and acceptable across all classes and cultures in Australia.

There has been no justice, no prosecutions, just a cold silence from the authorities. Only their families, a few journalists and a very small number of people holding vigils, until the Black Lives Matter protesters this year have brought these matters to our attention. These deaths are the tip of the iceberg.

Read more: Aboriginal woman Tanya Day died in custody. Now an inquest is investigating if systemic racism played a role

The death of Ms Dhu

Most others have passed without any public attention or anything like justice.

Ms Dhu, a Yamatji woman, was 22 years old when she died in Port Hedland, Western Australia in 2014. She had been arrested for unpaid fines on August 2, then detained for three days at the South Hedland police station under a controversial policy of paying fines through jail time. She owed $3,622.

During those three days, she cried in agony for hours and vomited as pneumonia and septicaemia, resulting from untreated broken ribs, took her life. The police took her to the Hedland Health Campus three times while she was in custody. She was twice discharged back into police custody without treatment and clearly without any competent diagnosis.

Medical personnel stated that she had behavioural issues. She continued to complain that she was unwell. In CCTV footage from her third day in custody she appeared barely conscious, prompting police to take her back to the Hedland Health Campus a third time. Shortly after her arrival she went into cardiac arrest and died. Her death and its circumstances were ignored by authorities.

In October 2014, Ms Dhu's grandmother, Carol Roe, working with the Deaths in Custody Watch Committee, issued a public appeal for an independent investigation to be held for a series of reforms, such as stopping imprisonment for the non-payment of fines, and infringement to be implemented and for demonstrations to be held.

A coronial inquest commenced in Perth on November 23, 2015. The coronial inquiry was an extraordinarily painful document to read. Some of it was televised and I myself cried at the appalling treatment of Ms Dhu.

The police and the health campus staff denied that they were in any way racist. That they seemed oblivious to their responsibilities of duty of care to Ms Dhu and performed their duties with general contempt and incompetence, as revealed in the evidence to the inquest, says otherwise.

What the royal commission recommended

So I ask this question again: Are the police and correctional services racist? Is there structural or systemic racism in the Australian criminal justice system?

The answer to these questions that emerge from the thousands of pages of evidence is a resounding yes.

Until measures are taken to prevent police and correctional services officers from failing in their duties to the Indigenous people they detain or any Australian they detain, and ensuring that an encounter with them is not fatal, we must say yes, and demand that all Australian governments implement the recommendations of the Royal Commission into Aboriginal Deaths in Custody.

And here I want to be specific. Governments must ensure that,

Police services, corrective services and authorities in charge of juvenile centres recognise that they owe a legal duty of care to persons in their custody. That the standing instructions to the officers of these authorities specify that each officer involved in the arrest, incarceration or supervision of a person in custody has a legal duty of care to that person and may be held legally responsible for the death or injury of the person caused or contributed to by a breach of that duty, and that these authorities ensure that such officers are aware of their responsibilities and trained appropriately to meet them both on recruitment and during their service.

That these authorities ensure that such officers are aware of their responsibilities and trained appropriately to meet them. That police and corrective services establish clear policies in relation to breaches of departmental instructions.

Instructions relating to the care of persons in custody should be in mandatory terms and be both enforceable and enforced. Procedures should be put in place to ensure that such instructions are brought to the attention of, and are understood by, all officers and that those officers are made aware that the instructions will be enforced. Such instructions should be available to the public.

In all jurisdictions a screening form be introduced as a routine element in the reception of persons into police custody. That in every case of a person being taken into custody and immediately before for that person is placed in a cell, a screening form should be completed and a risk assessment made by a police officer or such other person who is trained and designated as the person responsible for the completion of such forms and the assessment of prisoners.

The assessment of a detainee and other procedures relating to the completion of the screening form should be completed with care and thoroughness.

Recommendations of the royal commission included not just the compulsory Custody Watch Service be implemented in every jurisdiction, but also that:

Upon initial reception at a prison all Aboriginal prisoners should be subject to a thorough medical assessment with a view to determining whether the prisoner is at risk of injury, illness or self-harm. Such assessment on initial reception should be provided wherever possible by a medical practitioner.

And further:

That where persons are held in police watch houses, that authorities arrange in consultation with police services for medical services, and as far as possible other services, to be provided, not less adequate than those that are provided in correctional institutions.

That the use of breath analysis equipment to test the blood alcohol levels at the time of reception of persons taken into custody be thoroughly evaluated by police services in consultation with Aboriginal legal services, health services, health departments and relevant agencies.

Protocols be established for the transfer between Police and Corrective Services of information about the physical or mental condition of an Aboriginal person which may create or increase the risks of death or injury to that person when in custody.

The hundreds of recommendations of the royal commission are very detailed, and these in particular and many more, addressed the practices of police that we now know have not changed since the royal commission report was made public, with the result that there have been hundreds more cases of Aboriginal deaths in custody.

These recommendations also extended to correctional services officers and likewise, they too have failed in their duty of care far too many times.

Another important recommendation was that,

Police services should be immediately in negotiation with Aboriginal health services and government health and medical agencies, to examine the delivery of medical services to persons in police custody.

Such examinations should include, but not be limited to, the following: The introduction of a regular medical or nursing presence in all principal watch houses in capital cities, and in such other major centres as have substantial numbers detained. In other locations the establishment of arrangements to have medical practitioners or trained nurses readily available to attend police watch houses for the purpose of identifying those prisoners who are at risk.

And, the establishment of protocols in relation to those measures:

The development of the protocols for the care and management of Aboriginal prisoners at risk with attention to be given to the specific action to be taken by officers with respect to the management of intoxicated persons, persons who are known to suffer from illnesses such as epilepsy, diabetes or heart disease or other serious medical conditions.

Persons who make any attempt to harm themselves or who exhibit a tendency to violent, irrational or potentially self-injurious behaviour. Persons with an impaired state of consciousness, angry aggressive or otherwise disturbed persons, persons suffering from mental illness and other serious medical conditions. Persons in possession of or requiring access to medication and other such persons as agreed.

The tragedy of this situation is that hundreds of people have died because those recommendations were not implemented fully. In fact, we can see from just the few cases I've mentioned today that in many parts of Australia the recommendations, if they were ever implemented, have certainly not been implemented in recent times and that in each case the responsible officers should have been held responsible for those deaths and they were not.

Not one of them has been convicted for the deaths of detainees in their care. They utterly failed in their duty of care and they were contemptuous of the lives that they contributed to taking.

Protests must continue

So, I want to conclude by pointing to the performance of the Aboriginal health sector, the Aboriginal community controlled health sector, during the COVID-19 pandemic. As a result of their excellent performance, at about midway during the pandemic, there had been only 56 positive cases amongst our population of 800,000 and no deaths.

More recently, in the last week, we've heard that there have been quite a few positive cases in Victoria of Aboriginal people. But as yet, fortunately no deaths.

Read more: Why self-determination is vital for Indigenous communities to beat coronavirus

Compared with Australia's record and the record of many other countries, that is an outstanding outcome. And it is due to the very clear understanding in the Aboriginal community-controlled health sector that the Aboriginal and Torres Strait Islander population was particularly at risk and indeed probably most at risk because of pre-existing medical conditions.

And all of the planning and implementation of plans and measures to ensure that COVID-19 did not enter Aboriginal communities and populations were aimed at protecting the most vulnerable and the sickest people in Australia.

This should likewise be the intention of all police and correctional services facilities in their dealings with Aboriginal and Torres Strait Islander people. Governments need to recognise that Aboriginal and Torres Strait Islander people are particularly at risk of losing their lives when they go into detention.

It is now too late for all of those people who've died in custody at the hands of careless and negligent officers, but it is not too late for the generations to come. It is a primary responsibility of the Australian government and the state and territory governments, to act immediately and responsibly to prevent further deaths in custody of Aboriginal and Torres Strait Islander people.

To achieve this, they must reduce the incarceration rate. They must reduce the arrest and imprisonment rates. Australians like myself expect to see the principle of Black Lives Matter implemented as soon as possible and the deaths prevented. Should we accommodate the tactics of governments who delay the implementation of these recommendations?

I say no.

I say the protests must continue.

I say the human rights organisations, the Change the Record campaign, the Black Lives Matter campaign, must turn their minds to these particular recommendations to stop further deaths in custody.

I thank you for listening to me.

Black Lives Matter.

Professor Marcia Langton, Foundation Chair in Australian Indigenous Studies, University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.