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Motion: Aboriginal Deaths in Custody

The Hon. T.A. FRANKS (15:59): I move:

That this council—

1. Notes that—

(a) every year, Aboriginal people continue to die in custody at increasingly higher rates in preventable circumstances;

(b) there has not been a single conviction for any of these deaths;

(c) a royal commission in 1991 investigated Aboriginal deaths in custody, making 339 life-saving recommendations, but very few were implemented; and

(d) just one recommendation, a custody notification service, has been demonstrably proven to save lives in other jurisdictions.

2. Calls for a custody notification service to be implemented in South Australia with urgency.

I rise knowing that even since I moved that motion we now know that at least 437 Aboriginal deaths have occurred in custody since the aforementioned date. Some of those were records that had not yet been found, but some of those were new. I attended the Black Lives Matter rally that the police commissioner give the exemption for. I noted at the time people complained that a rally could go ahead but a football match could not, but since then an exemption has been made for a football match.

I noted the complaints from people who said that a Black Lives Matter rally could go ahead but that ANZAC Day had no such exemptions. I point out to them that ANZAC Day was the first event in South Australia to be exempted from these public health directions, with the ceremony on North Terrace receiving that exemption.

I note that these issues are not new. We have seen in my lifetime an extraordinary body of effort to get to the point where we had a Royal Commission into Aboriginal Deaths in Custody. Now, in the wake of George Floyd's death in America, we have seen a renewed push to take a look at our own country, to ensure that we have no George Floyds in this country, that we have no unnecessary deaths in custody—of all people, of course, but particularly in this case of people of colour and of Aboriginal people.

That is why Change the Record has called on the Prime Minister and the national cabinet to implement five key recommendations to end deaths in custody. They have called to end the mass imprisonment of Aboriginal and Torres Strait Islander peoples by repealing punitive bail laws, mandatory sentencing laws and decriminalising public drunkenness; and to stop imprisoning Aboriginal and Torres Strait Islander children and raise the legal age of responsibility from 10 to at least 14 years.

They have also called to end racist policing and require police accountability by ending the practice of police investigating police and legislating for independent investigations of deaths in custody and resourcing independent police oversight bodies; and, of course, to implement all recommendations from the Royal Commission into Aboriginal Deaths in Custody and the countless independent investigations, coronial inquests and reports that have been published in the three decades since then.

Finally, they have called to end the abuse, torture and solitary confinement of Aboriginal and Torres Strait Islander people in police and prison cells through legislative safeguards and by urgently establishing independent bodies to oversee the conditions of detention and treatment of people in accordance with our obligations under the Optional Protocol to the Convention against Torture and other cruel, inhuman or degrading treatment or punishment (OPCAT).

This call by Change the Record is endorsed by them, the national Aboriginal and Torres Strait Islander Legal Services, the Human Rights Law Centre, Amnesty International Australia, ANTaR, the First Peoples Disability Network, Community Legal Centres, Family Violence Prevention Legal Services and the Australian Council of Social Service. They do so because black lives do matter and should matter, and the time for anger and anguish to be turned into action is here.

'Black Lives Matter: our call on the New South Wales government' is a document that I have received today. The Jumbunna Institute for Indigenous Education and Research has formulated the New South Wales plan there. Some of their calls are different to those that we need in South Australia, because in fact New South Wales has a custody notification service. South Australia continues to have only the Aboriginal Visitors Scheme.

I draw members' attention to that document and the work of Professor Larissa Behrendt at the University of Technology in Sydney, which calls, in particular, for a range of measures to implement these recommendations and to end racist policing in New South Wales. In South Australia we need a similar body of work and a similar effort to ensure that we have a series of South Australian recommendations for a way forward.

I also cannot but reflect that I thought it was quite extraordinary leadership and a sensible exemption for police commissioner Grant Stevens to allow the Black Lives Matter rally to go on. It would have gone on anyway. The anger was palpable, the injustice so deeply felt. What would have happened is that people would have been fined, possibly arrested, and the anger and the hurt would have continued and the action, unfortunately, would have again been stymied. I congratulate police commissioner Grant Stevens for that.

I agree with his words in his opinion piece just a few short days ago on Monday that, 'We must not stay silent about the mistreatment of any person at the hands of authorities'—the headline of his piece on Monday in The Advertiser. He goes on to say, however:

Over the past 10 years, six indigenous Australians died in police custody in South Australia.

A total of 25 deaths in police custody have occurred over this same period.

He uses those statistics to claim that we do not have a problem. I would say, given the very small proportion of Aboriginal Australians compared to non-Aboriginal Australians, the fact that there were 25 deaths in police custody of non-Aboriginal people and six deaths of Aboriginal people shows that in fact we do have a problem, Commissioner Stevens.

I also note that he goes on to mention the number of those police custody deaths and to outline the situations in which they took place. My reading of the Guardian Project, which has actually been counting the dead—counting the deaths in custody—is that two of those are yet to have a coronial inquest, as is required by the royal commission's recommendations. It is one of the commission's recommendations that South Australia has supposedly implemented, but years on, those families, while they do have the support of the ALRM, are still waiting for their day to find out what happened with the death of their loved one.

The police commissioner goes on to say that the police do take their obligations very seriously, and he believes that pretty much all of the royal commission's recommendations for policing in South Australia have been implemented. I think a little organisation called Amnesty International would beg to differ. There are a few others. Certainly Change the Record begs to differ. The work, pro bono, by Clayton Utz for Amnesty International a few years back at the 25th anniversary of the Royal Commission into Aboriginal Deaths in Custody begs to differ.

So I say to the police commissioner, if he will not read those particular august bodies' extensive reflections on how we have failed to progress in this matter, perhaps he would refer to the Police Association's letter of 11 June. I note that the Police Association have written to various players following the killing of George Floyd by a Minneapolis police officer, recognising that, while peaceful protest is preferred and that they do not condone violent protests, they understand the challenges inherent in policing disadvantaged minorities. Accordingly, they call for some measures, one of which is:

That government and SAPOL conduct an audit of the recommendations of the Royal Commission into Aboriginal Deaths in Custody and report on the adoption, implementation, adherence and/or rejection of those recommendations.

Certainly, the Police Association do not believe that we have implemented pretty much all the policing suggestions. I would say that quite a good suggestion follows that: the implementation of night and weekend court sittings to reduce the length of time apprehended persons are detained in police custodial facilities after the denial of bail, which is a very positive step forward; and that state and federal governments review the current legal definition of a death in police custody so as to provide a more accurate and complete picture of the circumstances leading to that death.

By the way, one of the recommendations was that we actually keep the stats and that that be done in a consolidated way by the proper authorities. However, it has been down to the guardian to compile these statistics and human rights non-government organisations to pull this together, not for the government to step up and take on their responsibilities to ensure that we know exactly the statistics that we are talking about. When we remember these numbers, each of these are human beings no longer living and breathing, with names, with loved ones and with lost lives.

The Police Association goes on to say that the state government should commit to funding SAPOL to facilitate access to 24-hour, seven day nursing staff at all police custodial facilities. I could not agree more. It also calls for the government to review and improve funding arrangements in support of the Aboriginal Visitors Scheme at all police custodial facilities.

The Police Association further suggests that the state government commit to the provision of dedicated sworn police living and working on the APY lands and working in other Aboriginal communities. I note that in the previous budget the police commissioner had toyed with the idea of fly-in fly-out police, which is totally contrary to the recommendations of the royal commission, and APY lands policing would have suffered had that scheme gone ahead.

I also note that on APY lands and in other remote Aboriginal communities we have often heard tell that we have community constables. Certainly on the APY, year after year, decade after decade, those positions are actually vacant. So while on paper we have met our obligations and while on paper we say we are doing something, actually out there in the real world those positions are vacant and those communities are let down yet again.

Unsurprisingly, the Police Association letter goes on to say that say SAPOL should urgently address its inability to fill regional community constable vacancies on the APY lands and in all other Aboriginal communities throughout the state. In support of this measure, government housing should be offered to regional community constables. Finally, it suggests that SAPOL review and report on the outcomes of the 2017-2020 Reconciliation Action Plan.

I welcome the involvement of the Police Association in this matter. I note that they have a difficult job, but I also know that, while the police commissioner might say that everything is fine in our police approach, that Black Lives Matter is more of an American issue than an Australian problem and that we have in fact supposedly implemented all these recommendations, even a brief glance at those documents that have been produced, many, many hundreds of pages, show that we have not implemented all the recommendations.

Even where we claim to have implemented these recommendations, in many cases it is more in a paper form that we can claim that rather than in a practical implemented form. Some of our laws around dry zones and the fines that apply fly in the face of the recommendations around public drunkenness. The ALRM's top 10 most represented matters at South Australia courts, according to their last annual report, include disorderly behaviour/offensive behaviours, section 7(1) of the Summary Offences Act.

Recommendation 86 of the Royal Commission into Aboriginal Deaths in Custody was that offensive language, for example, should no longer be in our Summary Offences Act, but it remains here in South Australia. We have not acted on that. Unsurprisingly, disorderly behaviour and offensive behaviour is in the top 10 list of the matters that the ALRM deal with day in, day out. That is to our shame. That is policing people who are able to be visible and vulnerable and public in a way that those who live in the leafy suburbs, who are able to lawyer up, who have access to wealth are not policed.

It is not even just the way non-police are policed; we know that a member of the South Australian police force has quit in the last few years because her partner was Aboriginal and the racist abuse that she copped working on Operation Mandrake of all things, the racist abuse and racist jokes and the vilification that she copped day in day out about the fact she was going out with someone who was Aboriginal made her quit her job in the South Australian police force. We know that because she went on record and I commend her for her bravery in speaking out because that is the only way we will get change.

I note that the EO commissioner actually did a really significant body of work about the gender problems and the sexual harassment and the sexist behaviour of SAPOL in recent years and that great strides have been made forward there. I would suggest a similar body of work be done on this matter.

Just one day after that op-ed in The Advertiser from the police commissioner, that very night on Facebook I saw the video of the young man in Kilburn— allegedly according to the media reports, but certainly apparently according to my eyes looking at my mobile phone and the Facebook video—being punched by a police officer when he had been restrained for some time and there were several police officers holding him down. I was horrified when I saw that vision late that night.

I was disgusted and repulsed because here we are all saying, 'Oh, it only happens in America. Oh, it only used to happen back in the bad old days.' Well, here we are in downtown Kilburn this week with a police officer punching a young Aboriginal man who has been pinned down to the ground for some period of time on the cement. Then, reportedly, the witnesses around him, who were also Aboriginal, as well as this young man were sprayed with some sort of spray—a chemical spray, a capsicum or a pepper spray. I am trying to remember what they called it in the police response.

I have never been sprayed with capsicum or pepper spray but I do know that there are serious health implications and that it can kill people. When I worked for Amnesty International, in fact, we took many reports about how capsicum spray was used in ways that actually led, particularly in custody situations or in crowd situations, to people dying. And yet, those people in an Adelaide suburb on Monday night called for an ambulance for medical treatment as a result of this not once but twice and while they had many police cars and sirens in their street, not a single ambulance turned up for them.

We also know that that young man spent at least eight hours at Port Adelaide Police Station in a cell. We heard various accounts of what he was being charged with. We know that the ALRM attempted to provide him support through their Aboriginal Visitors Scheme, because we do not have a custody notification service.

There are reports that police officers refused not only that legal support but medical and welfare support to a man who apparently was battered, bruised, had been pinned to the ground, possibly punched in the head—certainly punched somewhere—capsicum sprayed and held for eight hours without medical attention or access to the Aboriginal Legal Rights Movement's offers of support for him.

One report I received directly was that a police officer stated that due to COVID restrictions nobody was allowed in the station. It is the first time I have heard public health protections being used to punish a prisoner and deny them their human rights but I am sure it will not be the last as we start to really talk about these issues in this place.

Because the ALRM does not have the authority to go into that police station with a custody notification service that is mandated and legislated under our laws, as was one of the recommendations—actually, two of the recommendations of the royal commission: one was to have the service and the second was to legislate that service—we know, on that day, we let that young man down.

We know that unless we act in this place, laws do not change. We know that, in our culture, the statistics do not actually lie. We know that Aboriginal people are less than 3 per cent of the population but a significant proportion of those who are policed, who are locked up, who die young, and who live far less wealthy lives than non-Aboriginal people. We also know that enough is enough and it is time to act.

In the next few minutes, the Labor Party will introduce a bill for a custody notification scheme. I commend them for that and I note that the Labor Party also did the same late last year. Obviously, I would not want to reflect on bills to come, but I note that they are actually not yet introduced.

I note that back in 2015 and 2016, the then federal minister Nigel Scullion wrote to every single state and territory and offered them money—three years' worth of funding—for a custody notification scheme to take up the recommendations of the Royal Commission into Aboriginal Deaths in Custody. He would actually pay for it as long as we legislated for it. He did so because he said it was life-saving, and he was right.

As many will now reflect, in New South Wales, where this scheme has been implemented, the only time we have seen deaths in custody has been where it has not been appropriately used. This scheme saves lives. This scheme was offered up to South Australia on a plate with funding by the federal government when the Labor Party was in government. The scheme that they are proposing is a little too little and a little too late.

We must get on and legislate for a custody notification service, but excuse me if I will not hold my breath, waiting for the hypocrisy and the shamelessness to not be embraced by the Labor Party. They should stand here rightly ashamed of their lack of action when that offer was made to them, their lack of action in the 16 years that they were in government and their lack of action in the very many months between the first time they introduced a bill for a custody notification service and the next time they did.

I am angry. I am not as angry as the actress Miranda Tapsell was when she went on Get Krack!n, but I certainly take up her challenge that if we have any skerrick of her anger at the injustice that we are seeing in our very own country, we should take up the baton and we should run with it. Here in this place, as parliamentarians in this legislature, we have extraordinary powers to change lives, to improve lives and to create equality.

I will seek leave to conclude my remarks. What I have not done today is actually addressed the various ways in which South Australia has failed to implement each and every recommendation of the royal commission, but I would like to get on with the debate on the custody notification service right now and get that through our parliament. With those few words, I seek leave to conclude my comments.

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