Editor’s Note: Aboriginal and Torres Strait Islander readers are warned this story contains images of people who have died.
Rebecca Maher didn’t get to hold her youngest child.
Australian child protection services took him away as soon as he was born, according to Tracey Hanshaw, from Indigenous rights advocacy group Justice Aunties.
He was the third child Maher lost to officials, who intervened as she fought a drug addiction that started in her teens and ended with her death in a police cell at the age of 36. “Although Rebecca’s children were not living with her at the time of her death, it is clear to me that she was always a part of their lives and loved them very much,” said the coroner’s report.
Maher is one of more than 455 Indigenous Australians who have died in prison, police, and youth custody since 1991 when a Royal Commission published its damning report into Aboriginal deaths in custody, according to the Australian Institute of Criminology’s latest report.
An unofficial count by the Guardian’s Deaths Inside database puts the current total at 474, including five in the past five weeks.
Stories like Maher’s show the depths of disadvantage suffered by Indigenous people, many of whom are swept into the justice system at an early age, depriving them of an education and jobs, perpetuating social problems passed from one generation to the next.
“It’s a symptom of the ongoing and devastating colonial system in this country,” said Greens Sen. Lidia Thorpe. “It started more than 200 years ago but our people are still being killed.”
Thirty years ago, the Royal Commission found Indigenous people weren’t dying at a higher rate than non-Indigenous people, but those who died in custody were the victims of gross overrepresentation in the justice system. That’s still the case today.
“Our people are being demonized in this country, even though we’re the oldest living continuing culture in the world,” said Thorpe.
The Royal Commission sought to reduce Indigenous deaths in custody with 339 recommendations, including many that sought to keep First Nations people out of the justice system and improve their health and welfare. Critics say few of the recommendations have been implemented.
“The ones where you have to roll your sleeves up and get a little bit dirty and do some hard work, they are the recommendations that are still outstanding. And they’re the recommendations that would make an enormous difference to our people’s lives in this country,” Thorpe said.
A chain of events
When British settlers claimed Australia in the late 1700s, so began the “deliberate and systematic disempowerment” of the country’s Indigneous people, “starting with dispossession from their land and proceeding to almost every aspect of their life,” the 1991 royal commission found.
The commission examined the lives of 99 Indigenous people who died during the 1980s and found that all had existed on the “margins of society.” Their health ranged from “poor to very bad” and their economic position was “disastrous.”
Today, their problems often begin in childhood. Almost half of detained youth on an average night are Indigenous, despite only making up just 6% of 10-17 year olds, according to government statistics.
“We see people are criminalized while they’re still children often for the most minor of issues that really relate to lack of services in their communities,” said Martin Hodgson, who works with Aboriginal people in the justice system as a senior advocate for the non-profit Foreign Prisoner Support Service.
“Once someone has entered the prison system, for so many that sets off a chain of events in terms of the stress and impact on their mental health, impact on their physical health.”
As a volunteer, Hanshaw speaks with young Indigenous people who need support.
“I had a 17-year-old last night tell me that his dad and uncles have all been in jail, and ‘They’ll be really proud of me once I get there,’” said Hanshaw.
Maher didn’t aspire to go to prison. She loved animals and wanted to be a teacher when she grew up, her mother told her memorial service. The coroner’s report says Maher first came into contact with police in 1995 — the year she turned 16. Hanshaw says Maher’s problems started when she reported a rape to police but wasn’t believed.
“She went to numb that pain, I guess, went off the rails a bit and turned to drugs,” Hanshaw said.
Maher was 16 when she had her first baby — a boy — then another son, 11 years later. By then, she was being prescribed methadone, a treatment for drug dependency, as well as benzodiazepines “to manage symptoms of heroin withdrawal,” according to the coroner’s report.
Two more children followed — a girl, then a boy one year later. By the time Maher was 34, three of four children had been taken from her.
Black Lives Matter
Last year, thousands of people turned out for Black Lives Matter marches in Australia, a show of unity after the police killing of George Floyd in the United States. However, rights campaigners say there’s little public outcry in Australia when an Indigenous person dies in custody, whatever the circumstances.
“When we do see concern for Aboriginal people in the last five or six years, it’s been on the back of the Black Lives Matter movement in the United States,” said Hodgson.
The high-profile trial of former Minneapolis police officer Derek Chauvin over Floyd’s death is being closely watched by the Indigenous community in Australia, where no one has ever been successfully prosecuted over an Indigenous death in custody.
That lack of accountability has angered the Indigenous community, whose members say they feel the system is stacked against them.
Wayne Fella Morrison died in custody five years ago and his family is still waiting for answers, said his sibling, Latoya Rule.
The 29-year-old father was due to appear on videolink for a bail hearing at Yatala Labour Prison in South Australia when corrective services officers allege he attacked them in his cell, according to a related Supreme Court hearing.
Other officers rushed in, binding him by his wrists and ankles and forcing him to wear a spit hood, a face covering designed to prevent spitting used in many countries, including the US and UK.
Bound and hooded, Morrison was bundled face down into the back of a van, accompanied by five officers. Three minutes later, they pulled him out unconscious. Three days later, his family gathered at his bedside as doctors turned off his life support, Rule said.
“There are these questions that are unanswered, that somehow he goes in (to the van) on his stomach with a spit hood and is pulled out unconscious — was he speaking, was he moving about, was there lighting in the van? These are things but we don’t even know,” said Rule.
Morrison’s inquest resumes this month, but it’s unclear if any of those questions will be answered.
In 2019, 19 witnesses, including 18 corrective services officers and one nurse, sought a Supreme Court ruling on whether they could claim privilege at the inquest, to avoid incriminating themselves.
The judge ruled they could be called to give evidence, but couldn’t be compelled to provide answers.
“Surely, corrections officers are responsible for a person who’s died in a van with them, sitting next to them? Surely, you’d want to say something about that process?” Rule asked.
Falling through the cracks
Many like Maher die alone in police and prison cells when they should have been receiving medical help, said lawyer Tamara Walsh.
In 2016, Walsh created the Deaths in Custody Project, the country’s first public, searchable database of published coroners’ reports relating to people who have died in custody. Walsh and her team have read more than 700 reports dating back to 1997 — she said the same themes keep emerging.
“We see so many people die in police custody when they are drunk because they, for example aspirate vomit or because they already have some sort of respiratory condition,” Walsh said.
“The coroners keep saying, ‘These checks that you’re doing, they need to be physical checks you need to go in and rouse the person and make sure they can still be roused rather than looking at them on the CCTV footage and signing them off as being okay.’”
Among the recommendations made by Royal Commission was the nationwide decriminalization of offenses that disproportionately affect Indigenous people. That includes public drunkenness.
The crime doesn’t exist in New South Wales, where Maher died, but the law does allow officers to detain intoxicated people for the safety of themselves and others, while they find someone to help them.
On the day Maher died, a police officer saw her staggering in the middle of the road, and took her back to the station, initially because officers wrongly believed she had breached bail conditions on charges of larceny, then because she appeared to be “seriously intoxicated.”
No attempt was made to contact Maher’s family, according to the coroner.
Maher hadn’t been drinking, but the combination of the prescription drugs she took was known to cause “respiratory depression and failure,” the coroner found. Officers didn’t know what she had taken — they didn’t search her due to the mistaken belief she had HIV. If they had, they would have found two bottles of tablets hidden in her trouser leg, the coroner found.
Instead, officers locked her in a cell and, while they monitored her on CCTV, no-one tried to physically rouse her for more than four hours.
New South Wales police procedure requires officers to attempt to speak to an intoxicated person every half hour for the first two to three hours to assess their sobriety. If they’re sleeping, they need to be woken, and if there’s no response, they need to seek medical help.
Maher’s death was ruled accidental.
New targets set
The Royal Commission gave the government a blueprint to reduce the rates of Indigenous incarceration, but by 2016 the Indigenous share of the prison population had nearly doubled.
In 2018, the government commissioned consulting group Deloitte to review the 339 recommendations and found that 64% had been implemented in full, 30% had been mostly or partially implemented, and 6% had not been implemented.
The least action had been taken on non-custodial responses and self-determination to empower Indigenous people and their families, the report said.
Walsh, the University of Queensland researcher, said the report’s findings were “shockingly false.”
“If we were doing what those recommendations said, we would not have the problems that we have to anywhere near the extent that we do,” she said.
Walsh was one of 33 co-signatories on a report by the Australian National University’s Centre for Aboriginal Economic Policy Research which said the scope and methodology of the Deloitte review allowed the government to “hide behind the veneer” of introducing programs, rather than assessing if they had worked. The report said the growing imprisonment rate made it clear the recommendations had not been followed.
Last July, the government and leading Aboriginal and Torres Strait Islander groups agreed on a set of 16 “Closing the Gap” targets. At the time, Australian Prime Minister Scott Morrison said they marked a “new chapter” of collaboration.
“We told Indigenous Australians what the gap was that we were going to close — and somehow thought they should be thankful for that,” Morrison said. “That was wrong-headed. That wasn’t the way to do it. This is the task of us all.”
They include plans to improve the health, education and cultural well-being of Indigenous people, as well as targets to cut the rate of adult Indigenous incarceration by 15% by 2031.
“Those targets are too low,” said Jacoba Brasch, president of the Law Council of Australia. She said at that rate parity wouldn’t be achieved until 2093.
The Law Council wants mandatory minimum sentences to be scrapped to give judges more discretion over whether to impose custodial sentences. It also backs calls to raise the minimum age of criminal responsibility from 10 to 14.
“What is bringing a 10-year-old, 11-year-old, 12-year-old to the attention of the criminal justice system? What is the trauma, what are the root causes?” Brasch said. “That’s where we should be targeting our attention, not on locking someone up.”
Families “emotionally depleted”
Each announcement of a new death in custody sends a jolt across the entire community.
“All of these families are in constant grief and loss and trauma and trying to raise money for their inquest, trying to still put food on the table, and still have to deal with the racism outside their door,” said Sen. Thorpe.
Hanshaw, the advocate for Maher’s family, said she was “stunned” to see Maher’s mother sitting on her own at her daughter’s inquest “in a courtroom full of wigs and lawyers.” “I said to her, ‘Where’s everybody to support you?” and she goes, ‘There isn’t anybody, it’s me.’”
A new foundation launched this month to help Indigenous families affected by a death in custody — it is called Dhadjowa, which means sunshine in Yorta Yorta, the language spoken by Aboriginal people from northern Victoria and southern New South Wales.
It was founded by Apryl Day, whose mother, Tanya, was arrested for public drunkenness after falling asleep on a train in 2017. Tanya died from a brain haemorrhage after stumbling and hitting her head several times in a police cell. For three hours, officers carried out only cursory checks before calling an ambulance. No charges were laid, but following Day’s death the state of Victoria voted to abolish the offense of public drunkenness. The change will come into effect in November 2022.
Day said her experience showed how little support there is for families that had lost loved ones.
“Our families are completely depleted emotionally, spiritually and financially while going through the coronial process,” said Day. “So, the foundation is really there to set up, you know, a strategic and coordinated approach to be able to support Aboriginal and Torres Strait Islander families.”
In the meantime, they wait and hope the numbers come down.
Hanshaw believes Indigenous people will stop dying in custody as soon as there’s a successful prosecution of custodial officers for negligent manslaughter.
Walsh said the solution lies in reforming the child protection system, to avoid creating the “profound harm” inflicted on families when their children are taken.
Thorpe said a way forward may lie in the country’s first truth-telling session. Scheduled to start in July, Victoria’s Yoo-rrook Justice Commission will investigate the historical and ongoing injustices committed against Aboriginal people in that state since colonization.
Sen. Thorpe hopes it will take Australia closer to a treaty.
“We’re one of the very few remaining Commonwealth countries in the world that doesn’t have a treaty with its first people,” she said. “We need to unite this nation through a treaty, and from the treaty we can have truth-telling. And we can negotiate what it looks like to live in peace and harmony in this country together.”
After Maher’s inquest, New South Wales’ Assistant Police Commissioner Max Mitchell wrote a letter of apology to her mother, saying more should have been done to ensure her daughter’s safety.
“It was evident there were lapses in safe custody procedures when Rebecca was detained, and that medical attention should have been sought for her at an earlier time,” Mitchell wrote.
After Maher’s death new rules were introduced that require the Aboriginal Legal Service to be notified if an intoxicated Indigenous person is detained.
They have come too late for some. The community wants change now, and thousands are expected to demand more action during protests in multiple Australian cities on Saturday.
At 55, Hanshaw is in her second year of a law degree. She wants to enter Parliament to help change the laws for future generations of Indigenous people.
Maher’s youngest sons are now living with other families, Hanshaw said.
After a court battle, Maher’s mother gained custody of her daughter, now 10.
“She knows that her mom is in heaven,” Hanshaw said. “It’s tragic what’s happened, but hopefully all three children are so loved they’re going come through the other side with as minimal damage as possible.”