by Doug Brown
The final report of the Royal Commission into Aboriginal Deaths in Custody was published in April 1991.
The royal commission was established in October 1987 and conducted exhaustive inquiries into 99 deaths of Aborigines that occurred in police and prison custody from January 1, 1980, to May 31, 1989. The commission wrote a detailed report about each death.
In its final report, the commission examined the general issue of Aboriginal deaths in custody. The five-volume report became one of the most influential royal commission reports ever published and continues to affect many aspects of Aboriginal policy.
Every royal commission report contains three basic elements: (1) findings; (2) recommendations; and (3) text that explains how the commission arrived at its findings and why the commission made the recommendations it made.
When you read the final report of the Royal Commission into Aboriginal Deaths in Custody, the report’s recommendations leap out at you. They are printed in bold type and are usually crisply worded and easy to understand. They are sequentially numbered from 1 to 339.
The findings are quite the opposite. They are not printed in bold type. They are not numbered. Despite chapter 3 being headed ‘The Findings of the Commissioners as to the Deaths’, the findings do not leap out at you but are, instead, tangled up in the text. A reader has to read the text carefully to spot a finding and, when the reader does so, has to decipher the finding to deduce its meaning.
The royal commission was established after several Aboriginal deaths in custody had occurred in circumstances that seemed to suggest that Aborigines were dying in police and prison custody at a far greater rate than were non-Aborigines.
The central question for the royal commission to answer was, therefore, “At what rate are Aborigines dying in custody?”
RATE OF ABORIGINAL DEATHS
The royal commission’s answer to this most important question was: “Aboriginal people die in custody at a rate relative to their proportion of the whole population, which is totally unacceptable and which would not be tolerated if it occurred in the non-Aboriginal community.
“But this occurs not because Aboriginal people in custody are more likely to die than others in custody but because the Aboriginal population is grossly over-represented in custody. Too many Aboriginal people are in custody too often.” (Report of the Royal Commission into Aboriginal Deaths in Custody, paragraph 1.3.3, p6.)
When you finally figure out what the royal commission is saying here, you realise that one of the things that the commission is saying is that Aborigines are no more likely to die in custody than are non-Aborigines.
But the commission planted this finding amid a more general point about the rate of Aboriginal deaths in custody relative to the proportion of Aborigines in the Australian population.
Soon after it was established, the royal commission set up its own Criminology Unit to produce relevant research and statistics to assist the commission in its work. In 1992 the Australian Institute of Criminology published all of the research papers produced by the royal commission’s own Criminology Unit.
Research Paper 11 was entitled, “Australian Deaths in Prisons 1980–88: An Analysis of Aboriginal and Non-Aboriginal Deaths”. That paper contained Table 11.4.
As can be seen, whereas in the years from 1980 to 1988 Aborigines died in prison at the rate of 2.2 deaths per 1000 Aboriginal prisoners, in the same eight years non-Aborigines died in prison at the rate of 2.7 deaths per 1000 non-Aboriginal prisoners.
When it wrote its report, the royal commission knew that fact. But the commission did not say so in its final report.
The only possible excuse for the royal commission not trumpeting the fact that, contrary to the expectations of many, Aborigines were less likely to die in prison than non-Aborigines, is that, because of deficiencies in police records, the Criminology Unit was unable to produce a table showing deaths in police custody comparable to the table showing deaths in prison custody.
But that possible excuse is unlikely to have been the real reason for the commission excluding Table 11.4 from its final report, as will be seen.
David Biles, director of the royal commission’s Criminology Unit, wrote an Introduction to the book of research papers.
Biles wrote: “While the reactions of the academic community and of criminal justice practitioners [to the Unit’s papers] were almost totally encouraging and appreciative, the reactions of those working in the royal commission varied between total hostility and rejection to cautious approval.
The hostility towards the work of the Criminology Unit reached a climax only a few months after the work started when it became clear that the research showed that Aboriginal persons in either police or prison custody were no more likely to die than were non-Aboriginal people. This general finding was interpreted by some significant elements of the staff as undermining the very foundations of the royal commission. To even hint that such a conclusion was possible was seen as disloyal, misguided and obviously wrong.” (Biles, David and Mcdonald, David: Deaths in custody Australia, 1980-1989: The Research Papers of the Criminology Unit of the Royal Commission into Aboriginal Deaths in Custody, Australian Institute of Criminology, Canberra, 1992, page iii)
With staff like that, it’s no wonder that the royal commission’s final report used such garbled language when writing up its findings. And why the report did not include Table 11.4.
The royal commission’s finding about the rate of Aboriginal deaths in custody can also be criticised for the comparison that the commission drew between the rate of Aboriginal deaths in custody and the proportion of Aborigines in the Australian population.
Recall that the royal commission said: “Aboriginal people die in custody at a rate relative to their proportion of the whole population which is totally unacceptable and which would not be tolerated if it occurred in the non-Aboriginal community.”
Now, you can compare anything with anything. You can compare a model aeroplane with an ocean liner. But such a comparison would not get you far if you want to know how often a model aeroplane is likely to crash compared with a passenger aeroplane.
Comparing the rate at which Aboriginal people die in custody with their proportion of the Australian population is a bit like comparing a model aeroplane with an ocean liner.
When you look at the actual rate of deaths in prison, and the actual percentage of Aborigines in the Australian population in 1991, you see clearly that the royal commission compared a rate with a percentage. It compared 2.2 with 2 per cent. The commission did not compare like with like. It made a bogus comparison between like and unlike.
OVER-REPRESENTATION OF ABORIGINES IN CUSTODY
The commission’s finding about the rate of Aboriginal deaths in custody can also be criticised for its statement that “the Aboriginal population is grossly over-represented in custody”.
Underlying this statement is a falsehood. That falsehood is that, in every area of human behaviour, participation by any group in any particular behaviour must equate to the group’s proportion of the general population. But why should it?
Since 1960, the National Australia Day Council has chosen an Australian to be Australian of the Year. Samuel Furphy, in Australian of the Year Awards: A Fiftieth Anniversary History, published in 2010, states: “A prominent feature of the Australian of the Year awards program is that a significant number of Indigenous Australians have been honoured. There have been eight winners of the main award (15 per cent) and four Aboriginal Young Australians of the Year (13 per cent).”
Aborigines are, to use the royal commission’s terminology, “grossly over-represented” among winners of the Australian of the Year Award. Whereas Aborigines are 2-3 per cent of the Australian population, in the years from 1960 to 2010, Aborigines received 15 per cent of Australian of the Year Awards. Also, since 2010, Aborigine Adam Goodes has won the award.
No one would seriously suggest that there is anything sinister in the over-representation of Aborigines among winners of the Australian of the Year Award. Likewise, there is nothing sinister in the over-representation of Aborigines among persons in police and prison custody.
Over the years, various explanations have been proffered to account for Aborigines’ over-representation in custody: over-policing; judicial bias; inadequate representation of Aboriginal defendants; Aboriginal disadvantage that, it is asserted, leads to Aboriginal crime; and, simply, the high level of Aboriginal crime, whatever its cause.
Don Weatherburn was director of the New South Wales Bureau of Crime Statistics and Research from 1988 to 2019. In 2014, Weatherburn wrote a book in which he analysed the voluminous research that had been conducted over many years into the causes of Aboriginal imprisonment and proposals to reduce the level of Aboriginal imprisonment. Weatherburn called his book Arresting Incarceration: Pathways out of Indigenous Imprisonment.
Early in his book, Weatherburn told a story about a presentation he had given about Aboriginal imprisonment, and the response of one member of the audience: “As one observer said after hearing me speak on some of the issues covered in this book, ‘What appears to be a case of Aboriginal over-representation in prison is really nothing more than a case of Aboriginal over-representation in crime. If Aboriginal people end up in prison for committing crime, they have only themselves to blame.’”
Weatherburn went on to describe this kind of view as “Hansonesque”.
Later in his book, however, after he had examined many of the research papers published on the subject of Aboriginal imprisonment, Weatherburn stated: “If the rate of Aboriginal imprisonment for violent ‘acts intended to cause injury’ were reduced to the rate of non-Aboriginal imprisonment for this offence [category], the overall rate of Aboriginal imprisonment would drop by 18 per cent. A large part of the explanation for Aboriginal over-representation in prison, then, lies in Aboriginal over-representation in violence.”
In making that statement, Weatherburn answered the Hansonesque question that had been put to him after his presentation on Aboriginal imprisonment.
DID THE ROYAL COMMISSION CAUSE DEATHS?
Gary Johns was Assistant Minister for Industrial Relations in the Keating Labor government, though his interests were far broader than industrial relations.
Johns’ assessment of the royal commission was bitter: “After six weeks the Royal Commission into Aboriginal Deaths in Custody found that Aborigines died in custody at the same rate as whites. The fact was concealed. The inquiry continued at great expense for three years, determined to fulfil its mission to demonise the white society. It succeeded, but the cost was horrendous not only in money terms and in setting back the cause of integrating Aborigines into the modern world, but possibly by causing a rise in deaths in custody during the course of the inquiry by reason of the extraordinary publicity the inquiry attracted.” (Johns, Gary: Aboriginal Self-Determination: The Whiteman’s Dream, Connor Court, Ballan, 2011, p34)
In Johns’ view, not only did the royal commission find the exact opposite of what many believed it would find but the royal commission, through continuing its investigations unnecessarily, possibly contributed to additional Aboriginal deaths in custody via suicide. Johns may be right.
Each year, the Australian Institute of Criminology (AIC) publishes a report about deaths in custody. Table C13 of the AIC’s 2017-18 report shows the rate of Indigenous and non-Indigenous hangings in prison from 1981-82 to 2017-18 per 100 prisoners [below is an extract from Table C13, cut off at 1999-2000].
In the four years from 1981-82 to 1984-85, the rate of Indigenous hangings in prison was zero, zero, zero and zero. In 1985-86, the rate was 0.08. In 1986-87, the rate was zero. But, in the three years from 1987-88 to 1989-90 – that is, the three years when the Royal Commission into Aboriginal Deaths in Custody sat – the rate of Indigenous hangings in prison jumped to 0.17, 0.11 and 0.20.
Doug Brown was a member of an interdepartmental committee which formulated the NSW government’s initial response to the royal commission.