Australian Law’s Systemic Discrimination and Structural Bias Against First Nations Peoples

CALD’s Statement of 3 December 2020 on Australian Law’s Systemic Discrimination and Structural Bias Against First Nations Peoples can be viewed here.

2021 will mark thirty years since the 1991 Royal Commission into Aboriginal Deaths in Custody (RCIADIC) Report was released. The Royal Commission was established, after extensive work by, and in response to Aboriginal families who had lost their relatives inside prisons and in police custody.  The RCIADIC examined the deaths of 99 Aboriginal people.  Out of the 99 deaths examined, 11 were of Aboriginal women.  The key finding of the RCIADIC was that Aboriginal peoples are more likely to die in custody because they are arrested and jailed at disproportionate rates.  The RCIADIC Report provided 339 recommendations, urging as follows: the extensive overhaul of the justice system (48-62) and coronial processes (1-47); the adoption of more stringent prison safety measures (122-187) and the use of non-custodial approaches (79-121); the examination of the underlying causes of Aboriginal disadvantage (63-78), cycle of reoffending (214-245), health and education (246-299), and equal opportunity (300-327); the full endorsement of Aboriginal self-determination (188-213) and the paramount need for reconciliation (328-339).

In 2018, the global accountancy and audit firm, Deloitte, was commissioned by the Australian government to conduct a review of the RCIADIC’s recommendations and their implementation.  Findings from the Deloitte report showed that 6 per cent of the recommendations had never been enacted in any Australian jurisdictions (going, largely, to Aboriginal self-determination), 30 per cent of recommendations had been partially implemented (pertaining, in part, to non-custodial approaches, equal opportunity, health and education, the cycle of reoffending and disadvantage) and some 64 per cent of recommendations had been fully implemented (largely procedural and relating to the justice system, prison safety and coronial matters)[1].  Since the RCIADIC, there has been significant growth in the rate of Aboriginal peoples incarcerated – despite the report recommending that prison be utilised as a ‘last resort’, and the rate of Aboriginal deaths in custody is still seriously high.

To give just one tragic example: in 2015, an Aboriginal man named David Dungay died while being restrained by five prison guards and saying ‘I can’t breathe’.  This is no one-off; instead, it is part of larger trend, pointing to the intensification of police brutality against Aboriginal people.  Consider the spike in incarceration rates: at the time of the RCIADIC Aboriginal peoples accounted for 14 per cent of all incarcerated persons, while the number of Aboriginal people in custody today is approximately 29 per cent of the population, with Aboriginal peoples being more than 15 times more likely to be incarcerated.  The national daily average of Aboriginal people in prisons rose, during that time, by 5 per cent or 580, with the highest number of both incarcerations and deaths in custody being in the Northern Territories and Western Australia.  CALD deplores this shameful state of affairs, and pledges to work effectively, respectfully and in equitable partnership with First Nations peoples, congruent with their expectations and in accord with their free, prior and informed consent, for deep and abiding structural change in the Australian justice system.

Adapted from a Statement from the Office of the Pro Vice-Chancellor (Aboriginal Leadership and Strategy), Professor Irene Watson, University of South Australia (Adelaide, South Australia).


[1] Community leaders, activists, critics and scholars have questioned the extent to which 64% of the RCIADIC recommendations have been ‘fully implemented’ and have cautioned that Deloitte’s views on what constitutes ‘full implementation’ may be unduly generous, erring on the side of the justice system.  CALD acknowledges and endorses these concerns raised regarding the Deloitte report.