Twenty years today after the Royal Commission report into Aboriginal deaths in custody was released, fatalities in prison custody are rising and inmates are still dying as a result of the same lethal practices the Commission sought to eliminate.

According to the Australian Institute of Criminology, which is responsible for compiling national statistics on deaths in custody, the number of prison deaths since 2006 has risen nationwide, despite the size of the Australian prison population remaining fairly stable. In the decade to 2008 — the last year for which verifiable figures are available — 471 people died in Australian prison custody, an increase of nearly 50% from the decade to 1989, when the Royal Commission was conducting its investigations.

The AIC has not yet released statistics for 2009 and 2010. But figures obtained by Crikey — a spreadsheet can be downloaded here (4.4MB) — reveal deaths in prison custody have increased by about 50% in the past decade in both NSW and Queensland, the two states with the worst records in the country. NSW — which accounts for more than one third of the 1260 prison deaths recorded between 1980 and 2008 — recorded 161 prison custody deaths in the decade to 2009, compared to 106 during the time of the Royal Commission. Ninety-two people have died in Queensland prison custody in the decade to 2009, compared to 64 during the time of the Commission.

While figures for 2009 could only be obtained for half of all Australian jurisdictions, data provided by state and territory coroners indicates more than 438 prisoners died in Australian jails in the decade to 2009, compared to 323 in the decade to 1989. Twenty-six prison deaths were reported to coroners in NSW, Queensland, Tasmania and the ACT in 2009 — 12 in NSW, 12 in Queensland, one in Tasmania and one in the ACT. The Northern Territory, South Australia, Victoria and Western Australia refused to supply figures to Crikey.

Fremantle-based PhD law researcher and convenor of the Human Rights Alliance, Gerry Georgatos, says Australia has one of the world’s worst deaths in custody records and a Senate inquiry is urgently needed. Georgatos has been independently monitoring Australian deaths in custody through information published on Corrective Services websites, media reports and other sources.

“During the last two years there have been an additional 160 deaths in custody Australia-wide. The annual average of deaths in custody in 1991 was 71; it is now 78, with the last verifiable year, 2008, recording 86 deaths,” he said, adding that 63% of deaths in custody occur in prisons.

“From February 20 to April 4, 2010 there were six prison deaths in Queensland, WA and NSW jails, plus a seventh death in NSW of an 18-year-old escapee shot to death — this high rate is left unexplored.”

The rate of death in privatised prisons is far higher than in state prisons, which Georgatos cites as a serious concern given the drive towards privatisation in NSW and other states. “People die in privatised prisons at three times the rate they die in government prisons: 4.5 deaths per 1000 prisoners in privatised prisons in Australia, compared to 1.3 in government prisons,” he said.

The Commonwealth government allocated $400 million dollars to the implementation of the Royal Commission’s recommendations. Every Australian state and territory produced an annual report on the progress of implementation for a period of six years. By the time of its final report in 1998, the NSW government claimed to have partially or fully implemented the bulk of recommendations.

“Although governments often respond that they’ve implemented the recommendations,” explained Chris Cunneen, professor of Justice and Social Inclusion at James Cook University, “the reality is that the sorts of events we see pretty regularly show that they’re not implemented. So you see deaths in custody that are almost a replica — in terms of the event — to ones that occurred in the 1980s when the Royal Commission was conducting its inquiries.

“What I’d suggest though is that it’s breaches in terms of practices. The practices that used to occur still do occur and there’s not enough regulation or change to those practices.”

A Crikey analysis of NSW Coroner’s annual reports into deaths in custody has revealed that in the nine years to 2009, NSW coroners documented more than 60 cases in which bureaucratic bungling, a failure or absence of policy, breaches of procedure or lack of communication between government agencies contributed to the death. Coroners found in many cases that prisoners were the victims of incompetence or neglect, and their deaths could have been avoided had custodial and health authorities exercised proper duty of care and adhered to policies implemented as a result of Royal Commission recommendations.

NSW coroners criticised the policies, procedures or conduct of Corrective Services or Justice Health in more than half of the 132 prison custody inquests finalised between 2001 and 2009. Recurring failures of policy and breaches of practice were evident in dozens of jail deaths across the state. Coroners found the failure of staff to adequately screen inmates upon reception or transfer to the prison contributed to 21 deaths, in clear contravention of Recommendation 126, which states: “That in every case of a person being taken into custody … a screening form should be completed and a risk assessment made… [T]he screening form should be completed with care and thoroughness.”

In 12 cases, custodial or health staff failed to consult the inmate’s medical or file history during screening, contravening Recommendation 157: “That, as part of the assessment procedure … efforts must be made by the Prison Medical Service to obtain a comprehensive medical history for the prisoner including medical records from a previous occasion of imprisonment, and where necessary, prior treatment records from hospitals and health services.” It further states that “procedures should be established to ensure that a prisoner’s medical history files accompany the prisoner on transfer to other institutions and upon re-admission”.

Seven of these 12 inmates had known prior suicide attempts; three had previously attempted suicide in police or prison custody. Nine of the prisoners’ medical and case files were available but not accessed and in three cases; the files were never transferred or arrived after the inmate had died. Coroners made formal recommendations reinforcing the need to transfer prisoners’ files with prisoners in 2002 and 2003, yet the issue continued to surface at inquests as recently as last year.

At the 2007 inquest into the death of Aboriginal inmate Larna Louise Ryan — which Crikey will examine further in a series of reports on custodial deaths — an exasperated Deputy State Coroner Carl Milovanovich remarked bluntly: “I fail to see any reason in this day and age why medical records cannot be sent by courier — even over a weekend — from the Sydney record base to any place in NSW where an inmate is received.” Ryan’s medical and case files arrived at the prison after her suicide.

Failure to communicate vital information about prisoners’ health and safety to relevant staff contributed to 13 deaths in the past nine years, including three homicides. Each failure breached policies developed in response to Recommendation 152, which called for “[t]he establishment of detailed guidelines governing the exchange of information between prison medical staff, corrections officers and corrections administrators with respect to the health and safety of prisoners”.

Coroners made formal recommendations that custodial and health agencies review protocols governing the exchange of information at two inquests in 2002, in both 2004 and 2005, and then again in 2006. Despite these repeated calls for action however, NSW State Coroner Mary Jerram found in 2009 that the failure of Corrective Services staff to exchange vital information was a factor in the death of Kirkconnell inmate Adam Shipley in May 2007.

“It is the lack of system that urgently needs improvement,” Jerram wrote in her findings, echoing the words of Commisioner Elliot Johnston, whose Royal Commission report noted numerous cases that “plainly showed a breakdown in the system (and in some cases, no system) of communication between medical and corrections staff”.

Catriona McComish, a former senior assistant commissioner for Corrective Services NSW, says the Department is dominated by a cynical culture of political self-interest that undermines any genuine commitment to duty of care.

“There’s been a significant move away from the notion of rehabilitation. Duty of care now is generally about … covering your back, so while it’s very clear [within the Department] that a death in custody is something to be avoided at all costs and a real failure of the prison system … the effort that’s put in, in terms of duty of care, is really to ensure that nothing happens that’s going to cause problems for the political management of the prison system,” she said.

“There is an enormous amount of cynicism at all levels of staff. Even people who may well be committed to making a difference or doing good work by what they individually do in direct service or in policy or whatever, there’s an absolute understanding that it won’t see the light of day unless it fits with the image [the Department wants] projected.”

The prison system’s preoccupation with “control and containment” — both in terms of risk of escape and risk of adverse publicity — puts prisoners at risk, McComish said: “It’s an enormous problem because it pervades everything about the Department, whether it’s in terms of how they manage people who have got a mental health disorder or how they work towards returning people to the community to live better lives or how they contain such a mixed and varied population safely.”

McComish served for 13 years in a number of senior roles at Corrective Services NSW. She left the Department in 2006, having witnessed a number of successful initiatives — many set up during her time as director of Psychological Services — abandoned or rolled back. The impetus for the initiatives, McComish says, was the wide-ranging recommendations of then state coroner Kevin Waller to reduce suicides through greater therapeutic support for inmates at risk of self-harm and suicide.

The Department’s preoccupation with minimising the political fallout from a death in custody often meant funding for new initiatives could be more easily secured in the period leading up to a coronial inquiry, she says. But whether or not these changes are sustained in the longer term is another question.

“I was actually able to get funding to establish specialist risk assessment teams … [and] a specialist therapeutic unit for chronic self harmers… We also established about four specialist crisis units for people in critical stage of crisis,” she said. “Of course, many of those things were overturned… Tremendous work would be put in and the programs might be very successful but for other reasons, because of the kind of mindset, it was very hard to sustain them.”

It is in this gap between political self-interest and genuine duty of care — between rhetoric and action — that people lose their lives, say commentators. Moreover, deaths in custody are merely the tip of the iceberg.

“Treatment [of prisoners] is a systemic issue,” said Charandev Singh, a human rights advocate and paralegal who has been working with families at inquests for nearly 20 years. “Breaches don’t just happen in isolation. They don’t just cluster around people who have died. They’re ongoing. For every person who does die, there are many more who nearly die.”

He points out, however, the root causes of deaths in custody extend far beyond the prison walls. “A death in custody is not just about the micro-conditions of custody,” he told Crikey. “It’s about the macro-conditions of society and the community which perpetuate deaths in custody and the impunity that attends to them.

“The resources that are needed in the community to respond to the reasons why people go to prison and are locked into cycles of criminal harm have all been taken away and drained into the prison system. There are fundamental structural and policy and resource issues that we need to question, that underpin why people die in custody.”

What is desperately needed is a reduction in incarceration rates, he says — the same conclusion the Royal Commission drew 20 years ago. The final report stated: “Commissioners identified the principal and immediate cause of deaths in custody as being the disproportionate rate at which Aboriginal people are detained, arrested and imprisoned in Australia. Too many Aboriginal people are in custody too often.”

Yet the past two decades have witnessed soaring indigenous incarceration rates (see below) and a nationwide shift toward tougher law and order policies in stark contradiction with government claims to be implementing Royal Commission recommendations. This has been accompanied by a corresponding flow of money into jails, in line with the rising prisoner population. In 1991, the NSW prison population numbered 7000; tonight, around 10,400 people will sleep in a NSW jail. Australia-wide, the prison population has doubled from 15,000 in 1991 to 29,700 today.

“The bottom line is that we’ve seen a huge expansion of the whole prison system over the past two decades,” Cunneen says. “More and more money is going into corrective services but it’s going into expanding custodial environments rather than improving the conditions within those environments … so we not only have more prisons, we have larger prisons. That has impacts in terms of deaths in custody because you’ve got more reliance on electronic forms of surveillance rather than human contact — contrary to what the Royal Commission was arguing — … [and] more prisoners to fewer staff.

“It’s certainly a nonsense to even make any pretence that [imprisonment as a last resort] has happened. What we saw during the ’90s in jurisdictions like the Northern Territory [and Western Australia] was the implementation of a policy of imprisonment as a first resort with mandatory sentencing. We know that from studies that have been done on legislation and court sentencing, particularly over the last decade or so, that courts are more likely to send people to prison than use non-custodial options than they were in previous years, and they tend to send people to prison for longer periods of time.”

Twenty years, 1200 lives, 399 recommendations and $400 million later, the words of Commissioner Elliott Johnston in the final report of the Royal Commission still ring true: “One of the most disturbing findings of the Commission has been the frequent failure of … authorities to learn from the deaths which had occurred, and to act to prevent subsequent deaths in similar circumstances.”

Indigenous incarceration rates soar

Twenty years ago, Elliott Johnston wrote in the Royal Commission’s final report: “Commissioners identified the principal and immediate cause of deaths in custody as being the disproportionate rate at which Aboriginal people are detained, arrested and imprisoned in Australia… Too many Aboriginal people are in custody too often.”

Yet Indigenous incarceration rates have skyrocketed in the past decade, increasing 10 times more rapidly than non-indigenous imprisonment rates. Between 2000 and 2009, Indigenous imprisonment rates ballooned more than 50%, from 1248 to 1891 indigenous prisoners per 100,000 people. By contrast, the rate for non-indigenous prisoners grew by less than 5%, from 130 to 136 per 100,000.

In 1991, the year the Commissioners released their final report, 2160 indigenous adults were imprisoned in Australia, making up 14% of the prison population. Today, indigenous people — who comprise less than 3% of the Australian population — make up 26% of the national prisoner population. This figure hides enormous variation between states such as the Northern Territory and Western Australia, where indigenous prisoners make up more than 80% and 40% of the prison population, respectively.

Indigenous people were eight times more likely to be imprisoned than non-indigenous people at the time of the Commission’s final report. A decade later, they were 10 times more likely to be imprisoned. Today, they are 14 times more likely. In Western Australia, which has the highest indigenous imprisonment rates (4223 indigenous prisoners per 100,000 adult indigenous population) of any Australian jurisdiction, indigenous people are 20 times more likely to be locked up than non-indigenous people.

“Our Aboriginal folk are incarcerated at the highest rates in the world of ‘original peoples’,” said George Georgatos. “Higher than American Indian descendants in the US and higher than Afro-Americans [in the US]. All this matters because the disproportionate incarceration rates are linked to disproportionate deaths in custody rates. Incarceration rates underwrite deaths in custody.”

Attorney-General Robert McClelland told Crikey in an email statement: “The states and territories who have general responsibility for criminal justice, including policing and corrective services, run a range of programs to reduce levels of incarceration and re-offending, including diversionary programs, and programs which are indigenous-specific… Deaths in custody are of a concern to all governments.”

*This is the first in a series of case studies and investigative reports into prison deaths. Next week, the tragic case of Aboriginal inmate Larna Louise Ryan.

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