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We must end the practice of police investigating police deaths in custody

Two recent Aboriginal deaths in custody in the Northern Territory have again raised questions about the treatment of First Nations people in Australia’s criminal justice systems.

Kumanjayi White, a 24 year-old Warlpiri man with disability, died in Alice Springs on 27 May after being restrained by police on the floor of a Coles supermarket. Less than two weeks later, a senior elder from Wadeye died at Royal Darwin Hospital on 7 June after being taken into custody by the Australian Federal Police. Families and communities are grieving yet again. There is anger and demand for change.

It’s important not to prejudge what happened in both cases. But what’s clear is that a system in which police investigate police deaths in custody is fundamentally flawed.

Since colonisation, too often Australian law has delivered injustice for First Nations people. Police have often been the agents of this injustice, helping to administer laws and policies like those that enabled the Stolen Generations. Mistrust continues between First Nations communities and police.  

Community trust is critical for effective policing. Communities experiencing disadvantage need the best of policing and yet often receive the worst. It’s why the response to these, and other deaths in custody, is critical.

When police investigate themselves, it breeds mistrust and increases the risks of poor investigations and a lack of accountability. Coronial inquests bring a measure of independence but rely on the evidence gathered by police. The police response to the death in custody of Mulrunji on Palm Island is just one example of a “seriously flawed" and racially discriminatory police investigation.    

Victoria’s Yoorrook Justice Commission looked into these issues in its 2023 criminal justice report. Giving evidence to Yoorrook, former Chief Commissioner of Victoria Police Shane Patton spoke to the history of mistrust and acknowledged a police uniform can be a “symbol of fear” for members of the Aboriginal community. He recognised that regardless of how well police conducted an investigation into a complaint of police misconduct, “the Aboriginal community…will never have the confidence that it’s been impartially conducted”. He agreed that the police oversight system would be strengthened if there was independent investigation of police complaints.

Yoorrook recommended reforms to build trust and fairness in the criminal justice system for First Nations people. First amongst these was to establish and adequately resource a new independent police oversight authority in Victoria to investigate and report on all police contact deaths and serious incidents. Models for this exist around the world. The most well known is the Police Ombudsman of Northern Ireland.

Governments across Australia should act on this recommendation. Until they do, the mistrust and injustice that flows from police investigating themselves will continue.

More broadly, Australian governments need to address the reasons First Nations people are coming into contact with the criminal justice system at higher rates. The 1991 Royal Commission into Aboriginal Deaths in Custody found that First Nations people were dying in custody at higher rates because they were coming into contact with police and being imprisoned at higher rates, driven by factors including disadvantage. One of the Royal Commission’s key recommendations was that imprisonment should be a last resort.  

Since the Royal Commission, Australian governments have often chosen to adopt harsh and ineffective criminal justice laws and policies. These have increased the rate at which First Nations people are locked up, making a mockery of Closing the Gap commitments and targets to do the opposite. Unless governments abandon this trend and embrace fair, humane and effective criminal justice laws and policies, the devastation, tragedy and harm of First Nations deaths in custody will continue. 

Hugh de Kretser

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