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Flynn, Martin --- "Book Review - Implementation of the Commonwealth Government responses to the Recommendations of the Royal Commission into Aboriginal Deaths in Custody, Annual Report" [1997] IndigLawB 63; (1997) 4(3) Indigenous Law Bulletin 27


Book Review –

Implementation of the Commonwealth Government responses to the Recommendations of the Royal Commission into Aboriginal Deaths in Custody
Annual Report: 1995-1996
(Volumes 1 and 2)

by the Royal Commission Government Response Monitoring Unit, Aboriginal and Torres Strait Islander Commission

Canberra, 1997

Reviewed by Martin Flynn

Six years ago, the Royal Commission Into Aboriginal Deaths in Custody concluded that almost all of the Aboriginal deaths in police custody and prison were preventable. Further, the number of deaths drew attention to the fact that, compared to non-Aboriginal people, there were a disproportionate number of Aboriginal people in police custody and prison. Most of the 339 recommendations of the Royal Commission were directed to two fundamental causes of Aboriginal over-representation in police custody and prisons. First, criminal laws and the criminal justice process were found to be replete with examples of direct and indirect discrimination against Aboriginal defendants. Second, the high level of Aboriginal contact with the criminal justice system was related to a range of underlying issues that were endemic in many Aboriginal communities: poor health, lack of housing, low participation in education, high unemployment, and so on. A strong theme of the Royal Commission was the need to involve Aboriginal people in developing and implementing solutions to the causes of Aboriginal over-representation in the criminal justice system; it was necessary to give effect to the right of self-determination.

The Commonwealth Implementation Report is the fourth and penultimate annual report of the Commonwealth's response to the Royal Commission. The striking feature of the 977 page document is the revelation of the failure of the Commonwealth to come to grips with the essential message of the Royal Commission (described above). The three reasons for this failure are familiar.

First, the Commonwealth does not address the fate of the vast number of recommendations in the States and the Northern Territory ('the NT'), on the basis that such recommendations fall within a subject that 'is mainly a matter for State and Territory Governments'. The result is that the bulk of criminal law and criminal procedure that impacts upon Aboriginal people is ignored in the Commonwealth Implementation Report. There is no mention of the tough law and order agenda sweeping the States and the NT, or an evaluation of the impact of the mandatory imprisonment schemes for property offenders introduced in Western Australia and the NT and under consideration in other jurisdictions.

Second, while every act of bureaucratic activity related to Royal Commission recommendations is lovingly and uncritically detailed, there is no attempt to respond to the one issue that is screaming for attention: Aboriginal imprisonment rates and the level of Aboriginal over-representation in prison have been increasing steadily since January 1993. The statistical information concerning over-representation is well presented with the incorporation of extracts of the book by Chris Cunneen and David McDonald Keeping Aboriginal and Torres Strait Islander People Out of Custody (reviewed on page 29 [1997] ILB 65; 4(3)pg29). However, the remainder of the Commonwealth Implementation Report ignores this crucial information.

Third, a question mark hangs over the political commitment of the Commonwealth to 'self-determination'. The unilateral appointment of a 'Special Auditor' to examine ATSIC-funded Aboriginal organisations by the incoming Minister for Aboriginal and Torres Strait Islander Affairs, Senator John Herron, is cited as the sole means of implementation of a Royal Commission recommendation that 'the Commonwealth, in negotiation with appropriate Aboriginal organisations, devise a procedure which will enable Aboriginal organisations to properly account to Government for funding'.

There are some positive features of the Commonwealth Implementation Report. It amounts to a comprehensive collection of short, sympathetic descriptions of Commonwealth initiated programs related to the Royal Commission. Some of the programs deserve wide publicity-particularly those relating to improving the policing of the Australian Federal Police and the cultural awareness of judicial officers. Unfortunately there is no index and some repetition. A three page description of the very commendable Aboriginal Interpreter Program is repeated verbatim within ten pages of the original description.

Many of the observations in this review were made by the Aboriginal and Torres Strait Islander Social Justice Commissioner (see Second Report 1994, AGPS, Canberra, 1995) concerning the first Commonwealth response to the Royal Commission in 1992-93. It is little wonder that Aboriginal imprisonment rates remain high. Senator Herron plans to host soon a Ministerial summit on deaths in custody and indigenous over-representation in the criminal justice system. Nothing will be achieved by the summit unless the Commonwealth Government demands that the States and Territories take concrete steps to address the essential message of the Royal Commission: there are too many Aboriginal people in prison.


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