Lawyers must be activists to help end black deaths in custody

By Jerome Doraisamy|04 June 2020
Teela Reid and Matthew Karakoulakis

Unless Australian legal professionals turn up for issues that matter, system change will never occur, say legal advocates.

The past week has seen large-scale protests erupt across the US – some devolving into riots – in the wake of the death by asphyxiation of African-American man George Floyd. Protests have since sprung up across Europe and here in Australia. The four (now former) Minneapolis policemen at the centre of Mr Floyd’s death have since been charged; at the time of filing this story, Derek Chauvin has seen his charges upgraded to second-degree murder while the other three have been charged with aiding and abetting murder.

It is well established, by this point, that Mr Floyd’s last words were, “I can’t breathe.” What is less well known, AMK founder and principal Matthew Karakoulakis outlined, is those were the same last words spoken by Dunghutti man David Dungay Jr, who died at the Long Bay prison hospital in 2015.

Mr Dungay’s death in custody is far from being an outlier. Since the 1991 Royal Commission into Aboriginal Deaths in Custody was held, 432 have died in custody across the country, most notably in Western Australia and NSW. That amounts to an average of 15 Indigenous Australia dying per annum, or more than one per month, in custody over the past 29 years – for which there has been no proper criminal responsibility. This is “alarming”, said Mr Karakoulakis, a Narungga man who also boasts Greek heritage.

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“[The royal commission] was meant to put an end to our people dying in cells. Instead, its recommendations have largely been ignored,” added Change the Record co-chair Cheryl Axleby.

“Australia’s incarceration rates of Indigenous people [are] at the world’s highest rates. There is devastatingly overpopulation of our [peoples] comprising the prisoners on a national basis,” Mr Karakoulakis said.

“The stories regarding convictions and deaths in custody negatively impact families and [cause] loss of lives within the entire Indigenous community on [multigenerational] levels. It is very difficult for First Nations peoples losing loved ones and improper government accountability at the heart of the cause.”

Legal Aid NSW solicitor Teela Reid, a Wiradjuri and Wailwan woman, said Indigenous lives have been impacted by police killings since colonisation, starting with the massacres of country and the ongoing invasion and impact of colonisation.

“The fact Aboriginal people die at the hands of the state has always been part of our lives and it is why Aboriginal people are raising our voices to stand against systemic racism. We live in a country that can spend millions on a Royal Commission into Aboriginal Deaths in Custody or Don Dale and nothing changes. That’s systemic racism and there needs to be accountability when our lives are taken,” she argued.

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Legal profession must do more

Ms Reid said that lawyers in Australia need to be aware “of their own complicity in enabling systemic racism”.

“For example, I see lots of defence lawyers in court defending Aboriginal people – but rarely are they showing up at the front line at protests or marching the streets. Lots of lawyers make their money on our disadvantage, by using our struggle to elevate their own platforms to the bar or build their legal skills. They need to ask themselves, are they changing the racist foundations or this system or are they enabling it?” she surmised.

“The independence of the legal profession often means lawyers are hesitant to engage in political issues, but unless we show up in all capacities, we will never create the systemic change that we so desperately need. Lawyers need to listen to Aboriginal voices, show up and dismantle these systems we know do not work – they further entrench racism.”

Further, lawyers must, Mr Karakoulakis argued, proactively and collectively learn and better understand the privileges that they have in terms of our standing in the community.

“Lawyers need to be held to appropriate levels of awareness and accountability, to gain the understanding and foresight required for the betterment of racial injustice as experienced by First Nations [peoples],” he explained.

“Lawyers can assist by the readiness to enable change and by working in the profession with the levels of compassion and understanding required in order for proper responsibility and reconciliation to occur.

“Our First Nations [peoples] need to be respected and cultural recognition is required to ensure proper treatment and reverence, which the deserve. As lawyers we need to enable changes for the criminalisation of those causing death and loss to our Indigenous [peoples].

It is an issue that Mr Karakoulakis is keen to contribute more to moving forward: “This is an extremely significant topic impacting our community and all of our First Nations [peoples’] lives.”

“Our country, Australia, was founded on violence, massacres and frontier wars causing loss of culture, rights and death to our people. Our elders and relatives’ lives mattered. Our history, and our present, need to be known. Australia’s legal profession needs to be the instrument of change in these matters to afford our [peoples] the rights and freedoms deserved,” he concluded.

“At a mainstream level, we collectively must fight against racism. We cannot allow government officials or police officers to engage in the unwarranted, but continued abuse of our Indigenous community and criminal accountability must be served upon those who act in such devilish ways, we cannot accept actions without proper criminal consequences.”

Put more simply, Ms Reid said: “Lawyers need to become activists in their personal and professional lives. They can start by checking their own privilege and use their power to elevate First Nations [voices].”

Legal advocates united in calling for end to black deaths in custody

On a law reform level, numerous steps must be taken to end black deaths in custody, according to Change the Record, National Aboriginal and Torres Strait Islander Legal Services, Human Rights Law Centre, Amnesty International Australia, ANTaR and the First Peoples Disability Network.

They include: the repealing of “punitive” bail laws and mandatory sentencing laws, decriminalising public drunkenness, raising the age of legal responsibility from 10 to at least 14 years, ending “racist policing” and require police accountability by ending the practice of police investigating police, legislating for independent investigations of deaths in custody and resourcing independent police oversight bodies, ending the “abuse, torture and solitary confinement” of Aboriginal and Torres Strait Islander people in police and prison cells through legislative safeguards.

Finally, all recommendations from the Royal Commission into Aboriginal Deaths in Custody and the “countless” independent investigations, coronial inquests and reports over the past three decades must be implemented, the advocates said.

Change the Record, an Aboriginal-led justice coalition of peak bodies and non-Indigenous allies working to “end the incarceration of, and family violence against, Aboriginal and Torres Strait Islander people”, has called on governments across the country to commit to end Aboriginal deaths in custody in the wake of Mr Floyd’s death in Minneapolis.

“Aboriginal and Torres Strait Islander peoples are dying in police and prison cells for two reasons: the discriminatory policies which see us arrested at extraordinary rates, and the discriminatory treatment we are subjected to by police and correctional authorities. This must change,” proclaimed Ms Axleby.

The family of Tanya Day – a Yorta Yorta woman who died in police custody in 2017 – said the fact that no police officer has ever been held criminally responsible is “a stain on this country”.

“Our families and communities are being decimated by the racism that infects police. We know that our mum would have been treated differently and would still be alive today if she was a non-Indigenous person,” Ms Day’s family said in a statement.

“We lost our mother in the cruelest of circumstances. No family should ever have to go through that. Aboriginal deaths in custody must end.”

National Aboriginal and Torres Strait Islander Legal Services co-chair Nerita Waight said that Prime Minister Scott Morrison has “chosen to ignore” Australia’s legacy of deaths in custody, just as his predecessors had done.

“Only last week, a police officer entered a not guilty plea for the murder of Yamatji woman Joyce Clarke, who was fatally shot in Western Australia. This was the second fatal police shooting in the last year, including 19-year-old Warlpiri man Kumanjayi Walker in the Northern Territory. There has been not a single conviction for authorities involved or any sense of accountability. National leadership is needed to end this injustice and begin to right the wrongs for our communities,” she submitted.

Elsewhere, Human Rights Law Centre senior lawyer Shahleena Musk said that governments “continue to sit on their hands” and have failed to act.

“Our governments can choose to end the racial injustice and violence in this country by committing to end the mass imprisonment of Aboriginal and Torres Strait Islander peoples, by following through on recommendations of coroners, independent experts and the [royal commission], and by holding police to account for wrongdoing,” she said.

Amnesty International Australia National director Sam Klintworth added that Australia has a “shameful record” in its treatment of Indigenous people in custody.

This, she said, “has compounded the trauma of dispossession by allowing kids as young as 10 to be locked up, condemning them to the brutalising effect of the youth detention system which sees children caught in the quicksand of the justice system, instead of with family in community,” she said.

Lawyers must be activists to help end black deaths in custody
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