2 days ago
Six hundred lives lost since Royal Commission into Aboriginal Deaths in Custody
Sitting by the crackling fire in rural Victoria, on Yorta Yorta Country, Apryl Day recalls how her mother was a loved grandmother and a woman with style who had a big impact on her community.
WARNING: This article contains the names and images of First Nations people who have died.
"She's a grandmother, she enjoys getting dolled up and wearing fur coats and heels, she likes the colour pink, she likes to cook for her family, you know, she loves to spend time with her grannies," she said.
It's been more than seven years since Tanya Day was picked up from a train — she was drunk and fell asleep, but instead of being taken home, she was taken to a police cell.
The coroner would later find that, despite rules requiring her to be physically checked every 30 minutes, she was not. She fell and hit her head, causing a massive brain bleed that was not noticed for another 3 hours. She died in hospital of a fatal brain injury.
The tragic reality is that her death may have been avoided if moves to decriminalise public drunkenness, suggested decades earlier in relation to one of her own family members, had been actioned.
"If someone had made a different decision, if someone acted with care, treating mum with dignity, she would still be here today, and those are the things that our people are often not afforded," the Yorta Yorta, Wemba Wemba and Barapa Barapa woman said.
Tanya Day's uncle Harrison was among the 99 deaths in custody investigated as part of the 1991 Royal Commission into Aboriginal Deaths in Custody.
Described as a "gentleman" and a "great horseman", he was sober when he was put in custody, but held over prior fines for public drunkenness that he hadn't paid. He had an epileptic fit and died.
The commissioner looking into his case was scathing: "Although his custody was lawful, it resulted not from any real criminality on his part, but from an absurd system for punishing public drunkenness …
"The law, as administered by police and courts in Echuca at the time, served to harass drunks, particularly Aboriginals, to no useful purpose and at considerable public expense."
Apryl wasn't born when this finding was made but said the similarities were too "heartbreaking", given the royal commission was supposed to be a "turning point" to protect Blak lives.
"Just knowing of his story and the links, the close links between him and mum is really heartbreaking to know that if the government had acted … that she would still be here today, is really difficult."
It was this tragic reality that led to Victoria's public drunkenness laws being abolished in 2023. Despite the progress, Apryl is disappointed the Queensland government, which had been the last state to decriminalise public drunkenness last year, is looking at a proposal to reintroduce it.
It's been over three decades since the royal commission report was handed down, and the number of First Nations people and children dying in custody has only increased.
This is what we know about Aboriginal deaths in custody today and the solutions to address the crisis.
A death in custody is when someone dies in jail, a youth detention centre or in police custody, which could include an attempted arrest, pursuit or raid.
According to the Australian Institute of Criminology's live dashboard, 602 Indigenous people have died in custody since the royal commission concluded in 1991.
This number could be even higher due to lags in real-time reporting, as states and territories all have different procedures before they notify AIC.
Dunghutti man Paul Silva lost his uncle, David Dungay junior, who died at Sydney's Long Bay jail after being restrained in a prone position by corrections officers.
A recording from CCTV captured his plea for help as he yelled "I can't breathe" 12 times.
A coroner found the prone restraint was a contributing factor in his death from cardiac arrhythmia — but couldn't say to what extent — and that corrections officers ignored David's cries for help when they should have sought medical attention.
But he declined to refer anyone for disciplinary proceedings or criminal investigation, finding their conduct was "limited by systemic inefficiencies in training".
It left the Dungay family feeling no one had been held accountable for this death.
Almost a decade on from that moment, his nephew said he felt "helpless" in fighting for justice but remained committed to the "voiceless".
"It comes with a number of emotions: one being sadness, the other being anger at the system due to the fact that there's no accountability, and frustration that the ongoing deaths in custody are continuing."
First Nations people make up nearly 20 per cent of the deaths in custody since 1991, despite making up less than 4 per cent of the Australian population.
The last financial year recorded 34 deaths in custody, the highest record since the royal commission.
Mr Silva believes "Aboriginal deaths are not just a tragic incident. You know they come out of a system rooted in racism, neglect and violence".
Counting the number of Blak lives lost in prison or police custody was one of the commission's recommendations.
"Until there's real justice and accountability, and community-led solutions, the system will continue to fail our people, and blood will forever remain on their hands," Paul Silva said.
Apryl founded the Dhadjowa Foundation to help families like her own navigate the process after a death in custody, but said families needed much greater financial and emotional support than they currently received.
"Going through the process of a coronial inquest and experience of death in custody really highlighted the gaps for Aboriginal families that are experiencing such trauma," she said.
As a group of people dig up the soil to bury a 16-year-old boy, the wailing cries of the community rumble through the outback town of Roebourne, Western Australia.
It's 1983, and they're burying John Peter Pat, who died after suffering several injuries during a fight with off-duty police in town.
He was taken to the local police station, where the coroner found he was assaulted and placed in a cell in an "unconscious or semi-conscious state … and left there until he was found dead".
Five police officers charged with manslaughter were later acquitted.
The public outrage from his death and others in the early 1980s led to national media coverage and sparked the royal commission.
The Hawke government announced the inquiry in 1987 because, as its final report said, "public explanations were too evasive to discount the possibility that foul play was a factor in many of them."
It examined 99 cases of Aboriginal and Torres Strait Islanders who died in prison, police, and juvenile detention centres between 1980 and 1989.
Their task: to understand how and why that person died. And if there was anything that should have been done in each case. It also looked into social, cultural and legal factors that could have had a bearing on their deaths.
The royal commission made 339 recommendations to improve outcomes when Indigenous people interacted with the justice system.
These included abolishing the offence of public drunkenness, ensuring Aboriginal Legal Services were notified immediately of any Aboriginal death in custody and requiring Police Services to apply the principle of arrest as the sanction of last resort.
The commission found that First Nations people were dying at such a high rate because they were disproportionately represented in the system.
"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," the report said.
"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."
Looking at the 99 deaths, they found that "in every case their Aboriginality played a significant and, in most cases, dominant role in their being in custody and dying in custody".
For the families left behind, they felt like the system was murdering their loved ones, and while the commission did not find that, it found "in many cases death was contributed to by system failures or absence of due care".
Put simply, First Nations people continue to die in custody because they are over-represented in the prison system, and that over-representation has only worsened since 1991.
Families and advocates have long said the answers to saving lives — and money — lie in the royal commission's recommendations, as well as coronial findings, with many disappointed that little has changed.
Recently, NT Coroner Elisabeth Armitage made more than 30 recommendations after finding the 2019 shooting death of 19-year-old Kumanjayi Walker was "avoidable" and the NT Police Force was "an organisation with hallmarks of institutional racism".
The officer who shot Kumanjayi Walker, Zachary Rolfe, was acquitted of all charges related to the death in 2022 and has rejected the coroner's findings.
Just as the coroner was due to hand down her findings, the Warlpiri community was thrust back into grief when another young man died after being detained in a supermarket.
"It's a crisis, and Australians are turning their backs on us, and our kids have been taken and incarcerated and our whole families are breaking down because of it," Eddie Cubillo, the former NT anti-discrimination commissioner and now the director of the Mabo Centre, said.
Apryl Day said the recommendation of arrest as a last resort had not been implemented when it came to Aboriginal people.
"Arrest is still the first response, especially for our people: that's from being drunk, having a mental health episode, or just, like, existing in a public space," she said.
"Where arrest is the default, there's always a risk of us not coming home, and that's a really sad reality for our families.
"It does turn everyday moments into a life-or-death situation. And that's a really heavy burden to carry."
To understand the current situation, we need to look back on history.
The royal commission examined the impact of the Frontier Wars and government policies, such as the Protection Acts across states and territories, and the connections with the criminal justice system.
As colonies were established, it was the role of the police to "implement the various legislation which governed the lives of many Aboriginal people".
For years, that included relocating communities from their traditional lands so pastoralists could access waterholes for cattle, removing babies of "mixed descent", deciding whether Aboriginal people could access medical treatment, restricting access to food or "rations" and punishing people for what the government called a "criminal" offence.
"Aboriginal people have a unique history of being ordered, controlled and monitored by the state. Examination of the lives of those who died documented through government files revealed a familiar pattern of state intervention into and control over their lives," the commission found.
"Much of this intervention and control was exercised through the criminal justice system."
Legislation plays a role in driving up incarceration rates today, including restrictive bail laws and moves to lower the age of criminal responsibility, particularly in jurisdictions taking a "tough-on-crime" approach.
Australia's first formal truth-telling body, the Yoorrook Justice Commission, interrogated this in its report this year and found: "The over-representation of First Peoples' children in these systems is not about criminality, but systemic bias, including institutional racism and discriminatory policing."
Commissioners heard evidence of the difference in policing between Indigenous and non-Indigenous people, with First Nations Peoples less likely to get a caution from police and more likely to be arrested.
In their final report, they stated the "harshest impacts fell on Aboriginal women, often incarcerated for repeat low-level, non-violent offences and once remanded, women risked losing homes, jobs, children and even their lives", as was the case for Aunty Veronica Nelson.
Dr Eddie Cubillo said the answers lay in the recommendations "piling up" from coronial inquiries, Senate inquiries and royal commissions, including the NT's Royal Commission into the Protection and Detention of Children, which he worked on.
"There's a road map there that no one really has tried to implement," he said, adding that governments were more conscious of winning elections on a tough-on-crime platform.
"As an Indigenous person, I have been pulled over and harassed, and anything can happen in those stages, and if you've got children, you just really worry what could happen," the Larrakia, Wadjigan and Arrernte man said.
Now he is calling on the federal attorney-general to "step up" and hold the states and territories accountable for their Closing the Gap targets, particularly the worsening targets around justice.
The peak body for legal services, NATSILS, has also called for the end of the practice of police investigating deaths in custody and misconduct complaints, and is calling for an independent body instead.
Paul Silva and Apryl Day, who continue to advocate for families, agree.
"I think most of the recommendations require systemic overhaul and that definitely threatens the power of the state, so they clearly just avoid it," Apryl said.
"If we're going to talk about implementing recommendations, we need to do that immediately. We need to do that with proper investment. We need to do that with the proper community engagement and involvement."
In the family's final submission to the coroner, her children chose to leave the last word to their mother, using her voice to send a clear message about her life and the systemic issues they blamed for her death.
"I need you to see, and to acknowledge, that my death was caused by the same system that killed my uncle, Harrison Day, the same system that dispossessed and killed so many of my ancestors and so many other Aboriginal people; that fractured our communities and culture, and caused deep intergenerational trauma," it reads.
