The Black Lives Matter protests around Australia today were in part an expression of solidarity with the rallies in the United States after the death, at the hands of police, of George Floyd, Breonna Taylor and other men and women of colour. The Australian protests primary purpose, however, was to leverage the public, media and social media attention on the topic of Black deaths at the hands of police, to raising concerns about Black deaths in custody here in Australia and Indigenous rights more broadly.

Racism targeting Indigenous Australians is a real problem. That is a fact. There is evidence of it in academic research, government inquiries and reports, and indeed in the Online Hate Prevention Institute’s own work in relation to social media. We first tackled the problem with a report back in 2012, shortly after OHPI started, and recently we ran a month long campaign on it. This protest, however, is not just about racism, it is specifically about the relationship between the police and the Indigenous community. While there are issues in both the US and Australia, the issues are not the same nor are the two countries in the same place with their response.

Today’s protest was significant and important. It raised real issues of discrimination which still exist in Australia. It also at times sought to reuse rhetoric from the US which is not as accurate or relevant for Australia. More education is needed for people to know what the local situation and issues are. The information exists, it’s just not as visible as the US messaging.

The protests also raised real concerns about public safety given COVID-19. Protesters made significant efforts not only to keep the rallies peaceful, but also to maintain social distancing, wear masks and use hand sanitiser. We hope it was enough and support the calls some organisers have made for those who attended to now self isolate for 14 days. This will help prevent further community spread if any of the protests turn out to have been a COVID-19 cluster. At the very least, people who attended should avoid visiting people in high risk groups (such as elderly parents and grandparents) for the next couple of weeks.

Recognising the problem

Australia recognised it had a problem with police treatment of Indigenous Australians decades ago and in 1987 Prime Minister Hawke initiated a wide reaching Royal Commission into Aboriginal Deaths in Custody. Every death in custody in Australia between 1 January 1980 and 31 May 1989 was examined by the Royal Commission. The work of the Royal Commission, including the reports they collected and those they wrote, amounts to 200 metres of shelf space. The final report (freely available online) is 10 volumes long. The US needs something like this.

One of the key finding of the 1991 report was that there were systemic failings in the way deaths in custody were investigated. The report states:

“it is plain that much harm was done… as a result of the inadequacies of most post-death investigations. It must never again be the case that a death in custody, of Aboriginal or non-Aboriginal persons, will not lead to rigourous and accountable investigations and a comprehensive coronial inquiry”.

Recommendation 41 was that, “statistics and other information on Aboriginal and non- Aboriginal deaths in prison, police custody and juvenile detention centres, and related matters, be monitored nationally on an ongoing basis”. This is now done by the Australian Institute of Criminology, and this data is used by academics and the media. The Guardian provides a user friendly database and have noted that 434 Indigenous Australians have died in police custody since 1991.

The Royal Commission found significant failings affecting both Indigenous and non-Indigenous people, as well as a range of specific problems impacting Indigenous Australians. Since 1991 there has been significant work to address these problems. The largest problem is that Indigenous Australians are significantly over-represented in custody. The Royal Commission found that:

1.3.1 The work of the Commission has established that Aboriginal people in custody do not die at a greater rate than non-Aboriginal people in custody.

1.3.2 However, what is overwhelmingly different is the rate at which Aboriginal people come into custody, compared with the rate of the general community…

1.3.3 The conclusions are clear. 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.

Today, Indigenous Australians are still far more likely to be taken into custody than non-Indigenous Australians. According to the Australian Bureau of Statistics (June 2018), Indigenous Australians make up about 2% of the Australian population, but 28% of prison population. The number of people in prison (both Indigenous and non-Indigenous) has been climbing since 2012.

In 1996 the Australian Human Right Commission has reported on the sharp rise in imprisonment of Indigenous Australians. They report that:

• “Indigenous people were 17.3 times more likely to be arrested than non-Indigenous people.”
• “Indigenous people are twice as likely as non-Indigenous people to be arrested in circumstances where assault occasioning no harm is the most serious offence. They are three times more likely to be imprisoned for such an offence. This indicates that provocative policing is continuing through the use of the trifecta (offensive language, resisting arrest and assaulting a police officer – often occasioning no harm).”
• Between the Royal Commission report in 1991 and this report in 1996 there had been a “significant decline in the proportion of deaths in police custody and an increase in deaths in prison”.

The rate of deaths in custody

The most recent Statistical Bulletin on Indigenous deaths in custody from the Australian Institute of Criminology (February 2019) looked at the period of mid-1991 to mid-2016. During this 25 year period there were a total (Indigenous and non-Indigenous) of 2,044 deaths in custody.

• There were 247 Indigenous deaths in prison which accounted for 19% of all prison deaths. This is actually lower than the rate for non-Indigenous prisoners. The bulletin notes that since mid 2003 “the proportion of Indigenous deaths in prison custody has been smaller than the relative proportion of prisoners”. Between mid-1999 and mid-2006 the death rate of Indigenous prisoners has fallen by 85%. The death rate of non-Indigenous prisoners has fallen by 54%. Non-Indigenous Australians are now 1.6 times more likely to die in prison than Indigenous Australians (up from 1.1 times in the first half of the reporting period).
• There were 146 Indigenous deaths in police custody (outside of prison) which accounted for 20% of all deaths in police custody. It isn’t possible to compare the percentage of Indigenous people taken into custody who die compared with a similar statistics for non-Indigenous Australians as there is no data on how many people are taken into custody each year. Half of the deaths in police custody occur when a police officer was not present, which was similar for non-Indigenous deaths in custody.

This suggests that today the system is better at preventing Indigenous deaths in custody (and better at this than at preventing non-Indigenous deaths in custody) but the core problem of too many Indigenous people being in custody in the first place remains.

This leads to two correct but confusing statistics. Indigenous people in general are much more likely to die in police custody than non-Indigenous people, but within the population of those people in police custody they are actually less likely to die in custody. The problem is generally not how they are treated while in custody (compared to others), the problem is that they are too easily put in custody in the first place.

If we compare Australia to the US, the first thing to note is that in the US 17,358 people died in custody in just three years between 2007-2010. As a very rough calculation (given it involves different time periods etc) this would mean that per capita rate of deaths in custody in the US is more than 5 times higher than in Australia. This is a major part of the difference between Australia and the US. We also know that in the US a Black person is 2.5 times more likely to be killed by police than a white person – the issue in the US is not just deaths in custody but a far higher number of people killed by police before they can be taken into custody in the first place. In the UK 3% of the population is Black yet they make up 8% of the deaths in custody. The number of deaths in custody in the UK is far lower. Compared to Australia US citizens are far more likely to be armed, so police are far more likely to shoot first and ask questions later. Unlike Australian police, British police are usually not armed, which contributes to there being far fewer deaths caused by police.

Australia is not the US

Indigenous people in Australia face very real issues of discrimination. This includes both the over expressions of racism and issues of systemic discrimination where policies, procedures, culture and organisational structures have a discriminatory effect. These issues need to be addressed. To take one example, the relocation of government services away from remote Indigenous communities may be “economically rational” but the impact on the communities can lead to a wide range of social issues. Factors which negatively impact the opportunities, support services and health of Indigenous people can contribute to higher levels of incarceration in the Indigenous community.

There are also violent acts which occur against Indigenous Australians at the hands of police. Like the general population, no doubt there are some police with racist attitudes. People who express, in words or action, such views in the line of duty should not be serving in the police. At the same time, not every act of excessive force by police is a result of racism. Excessive force and improper conduct should be investigated and dealt with regardless of whether or not racism is involved. Police using excessive force impact everyone directly.

The difference between Australia today, and parts of the United States (and indeed the Australia of the past), is in how such incidents are handled. In many parts of the US there appears to be a complete distrust of police by parts of the community, including many in the Black community. There is also a distrust of the community by the police. With many people armed, this is leading to more deaths as police are in fear of the community and the community are in fear of the police. This is not the situation in Australia.

NSW Police Incident & Viral Video

The difference between Australia and the US can be seen in the handling of a recent event depicted in a viral video. In this video, taken at a protest:

• The teen confront the officer saying he heard him swearing, the officer says he misheard, the teen insists he hear what he said and then swears at the officer
• The office then walks over and takes the takes hold of the teen, holding his hands behind his back. The officer says “down you go”, and tries to spin the teen around so he will go down on the ground.
• The teen tries to keep standing and the officer uses his leg to sweep the teens legs out from under him. With his hands behind held behind him the teen lands face first on the brick path and suffered what the media describe as minor injuries, he was clearly in pain after he landed.

The officer, and indeed the other officers standing nearby, could clearly have got the teen to the ground in a much safer manner. Neither the teen nor the officer appear to have deliberately sought to cause any injury to the other. At the same time, it should be obvious that making someone fall forward when their hands are being held behind their back is dangerous, more when on a hard surface like bricks compared to e.g. an area of grass.

The main take out though is the response from both police and the boy’s family. It shows how different Australia is from the US.

• The family has called for the officer to be charged saying they are feeling “anger and frustration” and that the officer’s action was “unnecessary and irresponsible”. They went on to say, “We want to be able to develop better relationships between the police and the youth of our community, and this won’t happen if we allow officers to feel they are entitled to abuse us without facing proper consequences”
• An internal police investigation on whether the officer used excessive force is already underway and the officer has been put on restricted duties while it is carried out. If charges are not laid, the family say they will take civil action through the courts.
• The NSW Police Region Commander said that officers in the Area have good relations with the local Indigenous Community. He said he was concerned at the footage, but “I’m equally concerned about others who may use this footage to inflame it and turn it into something that it’s not”.
• Commenting on the video the NSW Premier said, “we still have a long way to go in our country”.

All of these points are reasonable. It demonstrates a level of trust between the police and the community. It shows there is faith in the rule of law. It shows senior levels of both police and political leadership willing to get involved and acknowledge when something has gone wrong.

This is the difference between Australia and the US right now. Yes, there are problems here, and for decades they were not addressed at all. There have also been improvements to culture, policies, procedures and law. That won’t prevent every problem from occurring, but there is progress. It won’t put an immediate end to future deaths of either Indigenous or non Indigenous Australians. It will, however, reduce the problems and allow us as a society to continue to talk, to learn and to improve. The US, by contrast, is struggling to find the trust between the people and government to have those conversations. Demonstrations against the police and the government are occurring as a last resort, a response to an unfolding and immediate crisis. The balance between the need to protest and the significant public health risk it poses is very different right now between Australia and the US.

Where to from here

Indigenous Australians are far more likely to die in custody than non-Indigenous Australians. The problem is not about treatment in custody as a result of racism. The problem is about systemic racism which leads to too many Indigenous Australians being in custody in the first place.

This is an area where we need change. That change is not about the people vs the police, as we are seeing in the US. Many analogies from the US don’t make sense in the Australian context. The issue here is more holistic. It is about the place of Indigenous people within the Australia community and body politics. It is about a lack of support for Indigenous Australians, support which needs to be provided in a place and manner which works for them. It is about cultural attitudes. It is about everyday racism.

• We need greater understanding of the issues here in Australia, that needs to include greater public education both formal and informal
• We need greater support from government to tackle these issues (Victoria’s treaty process is an example)
• We need greater engagement between Indigenous Australians and our ethnic, multicultural and multi-faith communities – not just on campaigning, but on building bridges within the community

We need a fairer society. We need a more inclusive society. We need a society where the colour of one’s skin, a person’s ethnicity, religion, gender, sexuality, status as an Indigenous person, status as a refugee or asylum seeker, or whether one was born in Australia or not, does not effect a person’s opportunities or access to the services and support we expect to be available to all. This should apply more inclusively to New Zealand citizens living in Australia as well. Indigenous rights are a part of this struggle for a better Australia, but also something unique. We owe a special obligation to our first peoples, and it is this obligation to them which should also be a uniting feature of our Australian identity.

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