Context and background

Thematic Review of Aboriginal Deaths in Custody

The Thematic Review of Aboriginal Deaths in Custody was established to examine findings from investigations into deaths of Aboriginal people in the custody of CSNSW. The primary focus of the review is on deaths occurring in the period from 2010 to 2022. An important additional element of the review is to verify the status of recommendations arising from the Royal Commission into Aboriginal Deaths in Custody.

The Thematic Review will generate a report synthesising findings from several lines of inquiry that will lead to key recommendations designed to improve the experience of Aboriginal men and women in custody, reduce the loss of life and provide a better response to families, loved ones and community dealing with the consequences of a death.

Background to the Royal Commission into Aboriginal Deaths in Custody

The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) was established in October 1987 in response to growing public concern around the frequency of Aboriginal Deaths in custody.  Reflecting on the impetus for establishing the inquiry, Elliott Johnson QC observed that:

Deaths in custody of Aboriginal people were too common and public explanations were too evasive to discount the possibility that foul play was a factor in many of them.²

Over the 6-week period between 24 June and 6 August 1987 there had been five reported Aboriginal deaths in custody nationally, all by hanging, with four occurring in police cells. This followed 11 deaths earlier in the same year, five of which were attributed to hanging.

The Royal Commission reviewed the deaths of 99 Aboriginal and Torres Strait islander people who had died in custody between 1 January 1980 and 31 May 1989.

Five Commissioners were appointed including a National Commissioner Elliot Johnson QC who was tasked with compiling the National Report.

While the Commission initially intended to investigate individual Aboriginal and Torres Strait Islander deaths in custody, it became a much wider ranging investigation into the underlying causes of Aboriginal and Torres Strait Islander incarceration.

In Volume 3 of the National Report, Elliot Johnson QC concluded that:

...the high number of deaths in custody of Aboriginal people in relation to the size of their population is explained, primarily, by their disproportionate detention rates. It is a matter of fundamental importance to address the reasons for this disproportion. Some of these reasons (ultimately the most important of them) are, in the opinion of Commissioners, related to what have been referred to in the work of the Commission as the 'underlying issues', that is, the social, cultural and legal factors.

These underlying issues included dispossession and the disruption of traditional lifestyles leading to profound social dislocation, systematic exclusion of Aboriginal people from land ownership, economic participation, and decision-making, and the effects of intergenerational trauma and loss of cultural identity on mental health.

The work of the Royal Commission was undertaken between 1987 and 1991 with the final report tabled in 1991.

Commissioner Johnson noted on concluding the report that:

The conclusions reached in this report will not accord with the expectations of those who anticipated that findings of foul play would be inevitable and frequent. That is not the conclusion that the Commissioners reached.

The Commission made 339 recommendations. 

While some recommendations paid particular attention to policing and incarceration issues, a large number of recommendations were designed to address factors that the Commission believed were responsible for the higher rates of incarceration of Aboriginal and Torres Strait Islander people.  These included recommendations relating to health, education, social disadvantage and self-determination.

Despite the key finding that the rate of Aboriginal deaths in custody reflected the over-representation of Aboriginal people in contact with the justice system and the recommendations intended to address this, in the 34 years since the RCIADIC, Aboriginal and Torres Strait Islander representation in the prison population has doubled. This is due to a range of dynamic factors including changes to policing and sentencing, and far greater attention to domestic violence in the community as a whole since 1991.

In the same period, the mortality rate for Aboriginal and Torres Strait Islander people in custody relative to their numbers in custody has reduced.

Some positive steps have been taken to address underlying issues, however further work is required to successfully address the disproportionate and growing rates of incarceration among Aboriginal and Torres Strait Islander people. This is outside the scope of this Thematic Review but can be examined in the reports associated with strategies implemented in response to Closing the Gap Target 10, that are designed to reduce the rate of Aboriginal and Torres Strait Islander adults held in incarceration by at least 15% by 2031.