Cunneen, Chris --- "Justice Agreements, Strategic Plans and Indigenous / Police Relations" [2007] IndigLawB 36; (2007) 6(28) Indigenous Law Bulletin 19

• Justice Agreements, Strategic Plans and Indigenous/Police Relations

Justice Agreements, Strategic Plans and Indigenous/Police Relations

by Chris Cunneen

Arising from the long term reform process set in motion by the Royal Commission into Aboriginal Deaths in Custody^[1] (‘RCIADIC’), many jurisdictions in Australia have established Indigenous Justice Agreements (‘IJAs’). While IJAs have a much broader context than policing, the relationship between Indigenous people and the police is an important point of reform identified in these agreements. For example, in New South Wales (‘NSW’), police are integral to goals of ‘reducing the over-representation of young Aboriginal people in the criminal justice system’ and ‘improving Aboriginal community trust and confidence in the criminal justice system.’^[2] In addition, many state and territory police services have developed their own strategic plans for working with or responding to Indigenous people. These strategic plans, IJAs, and the relationship between Indigenous people and police will be examined in this article.

We know very little about the impact of these agreements and strategic plans on Indigenous/police relations in Australia, as very few are independently evaluated or monitored. A recent evaluation of the IJA in Queensland found there had been progress in meeting the aims of the Agreement, however, there was a need to resource and expand current initiatives.^[3] While the police service had introduced some innovative programs (like the Indigenous Licensing Program), one of the main failings was to ensure alternatives to arrest are used more equitably for Indigenous juveniles and adults.^[4] The focus on the better use of diversion, and in particular diversion to Indigenous-controlled alternatives, was also recently recognised in the Western Australian Law Reform Commission’s 2006 report on customary law.^[5]

In NSW, the Police Service Aboriginal Strategic Direction 2003-2006 is currently being audited by the NSW Ombudsman, and an initial audit report was released in 2005.^[6] In general the Ombudsman found that ‘there appears to be an historic shift in the willingness of many Aboriginal communities and leaders to work with police on achieving better outcomes’ and that police local area commanders ‘are now much more conscious of their obligations under the Aboriginal Strategic Direction’.^[7] Despite this, there were problems identified in recruiting Indigenous people as police, in managing and developing Aboriginal community liaison officers and in developing partnerships with Aboriginal communities in NSW.^[8]

One way of ensuring better police outcomes and increased use of diversion is through improved participation of Indigenous people in policing. Indigenous people contribute to a number of roles in policing, however the number of fully sworn police officers is relatively few, and police services seem to have difficulty meeting even relatively modest recruitment targets,^[9] or do not know how many Indigenous officers are employed.^[10] Other roles for Indigenous people include community police, Aboriginal police/community liaison officers, or as ‘special’ police such as the pilot Queensland Aboriginal and Torres Strait Islander Police (‘QATSIP’) program discussed below.

Aboriginal police/community liaison officers have been in existence for several decades. It appears that in more recent years there has been an improvement in training, employment conditions, and utilisation in some states. In Queensland there are 115 Indigenous police liaison officers (‘PLOs’) employed throughout the State, about half of which are female. More than half the PLOs have completed a TAFE Certificate III course implemented through the Queensland Police Service Academy. A TAFE Certificate IV course is currently under development. PLOs are able to use their certified training as a step into recruitment as a sworn officer. In addition, the objectives, responsibilities and roles of the PLOs are much better defined than they were in the past.^[11]

Some of the problems with PLOs in other states have been endemic. Issues recently identified in NSW include the failure to fill vacant positions promptly, the lack of females in the position and the lack of an obvious career path.^[12] Although the respective Indigenous populations are roughly the same in each state, there are twice as many PLOs in Queensland as in NSW. Even where the employment conditions are relatively good, the role of Indigenous liaison officers is contentious. In a conflict situation, functions such as maintaining communication, providing a bridge between police and the community and promoting the role of the police can be seen to place Indigenous liaison officers firmly on the side of the police rather than the community. Alternatively the advice of the liaison officer may simply be ignored. The Coroner’s report into the death of Mulrunji on Palm Island notes the following:

Police Liaison Officer Bengaroo told investigating police that Mulrunji had been walking past when Patrick Bramwell was being arrested. The two men knew each other. Mulrunji commented directly to Lloyd Bengaroo, challenging him as to why he should help lock up his own people. The indication was that Mulrunji was intoxicated. Lloyd advised him to walk down the road or he too would be locked up. When Senior Sergeant Hurley got back in the car he asked Bengaroo what the person had said - he clearly had not heard the conversation. When Bengaroo’s account was given, Hurley’s response was that he would lock him up. The only additional ‘event’ was that having walked off down Dee Street, Mulrunji turned and swore at the police officers. Senior Sergeant Hurley then drove down to where Mulrunji was standing and arrested him.^[13]

Indigenous community police can be distinguished from Indigenous police liaison officers. Community police emerged on former missions and reserves, and in general exercise powers conferred on them through legislation which enables community councils to pass by-laws for the maintenance of peace and good order. The problems associated with the role and functions of the community police in Queensland, for example, have been identified in reports by the RCIADIC,^[14] and a number of coronial inquiries into Indigenous deaths in custody where those deaths occurred while under the supervision of community police. The main issues which have been identified are the very limited powers of arrest, the poor supervision by state police and a range of problems similar to those identified with PLOs including poor employment conditions and training. The Coroner’s report in relation to a death in custody in Hope Vale was particularly scathing of the inadequate attention given to the problems associated with Indigenous community police despite decades of reports and inquiries.^[15] In the Hope Vale matter the deceased hanged himself in the back of the van in which he was being transported. The Coroner noted that, ‘because of their lack of training, the officers did not think to search the deceased to remove his belt and did not think to keep a regular watch on him to ensure that he did not self harm’.^[16]

The three community police involved in the arrest of the deceased man had been police officers for four months, two months and three weeks respectively. All officers combined had less than seven months’ experience in the position. None had received any training. None had access to a mobile phone or a two-way radio. They were not provided with handcuffs. The van they were given to transport prisoners in had no internal light in the prisoner compartment and had numerous hanging points. It could not be adequately inspected from the passenger compartment. There was no watch-house in which they could hold prisoners in the Hope Vale community and they were required to transport the prisoner to Cooktown, several hours’ drive from the community.

In an attempt to resolve the problems with Indigenous community police, the Queensland Government piloted the transfer of management and control of Aboriginal and Torres Strait Islander community police to the Queensland Police Service (‘QPS’). Officers were sworn in as ‘special constables’ and completed the accredited training course designed for Aboriginal community police, as well as additional Police Operational Skills and Tactics (‘POST’) training and training in the use of QPS information technology. An evaluation of the trial on Yarrabah, Woorabinda and Badu Island found at each of the sites, despite contextual differences, that the trial had been successful. However, it was most successful where there was an effective community justice system operating in the community concerned, and a local court to hear charges under the community by-laws.^[17]

The evaluation of the Queensland IJA recommended that the QATSIP program be expanded and that the program be integrated with broader community justice strategies including community justice groups, Justice of the Peace courts and Murri courts.^[18] The Queensland Government rejected this recommendation, preferring to replace all community police with State police supported by Indigenous police liaison officers.^[19] Given the low numbers of Indigenous people as sworn police officers, it is inevitable that in the vast majority of cases, the State police in Indigenous communities will be non-Indigenous.

The main limitation with the Queensland Government’s preferred model is that it removes the connection between the local community and Indigenous community police, and limits the possibilities of developing better structures for Indigenous governance around law and order, particularly given that liaison officers have no powers of arrest and thus do not enforce community by-laws.

The broader change in policy is regrettable given other positive developments with community justice groups and Murri Courts. While the system of Indigenous community police in Queensland definitely needed a thorough revision in terms of training, supervision and employment, their replacement with State police and Indigenous liaison officers is unlikely to enhance community governance.

The NSW Police Force is currently engaged in an internal review of the Aboriginal Police Liaison Officers scheme in that State, following problems with the failure to fill positions and the few Aboriginal women that are currently working in this role.

Overall, IJAs have been important in establishing a negotiated policy and service delivery framework for government agencies in their contact with Indigenous peoples. Despite this framework, many issues remain unresolved. Establishing an IJA does not necessarily mean that criminal justice agencies will wholeheartedly comply with either the letter or the spirit of the agreement. A lack of reporting and independent evaluation of the IJAs also inhibits accountability. The RCIADIC showed that governments can say a great deal about what they are doing in regard to implementing recommendations, while at the same achieving very little in tangible outcomes. Independent and thorough evaluations remain critical to achieving substantial and sustainable outcomes in improving relations between police and Indigenous peoples.

Professor Chris Cunneen is the NewSouth Global Chair in Criminology and is based in the Faculty of Law at the University of New South Wales.

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^[1] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991).

^[2] NSW Aboriginal Justice Advisory Council, New South Wales Aboriginal Justice Plan Beyond Justice 2004-2014 (2003) 15, 19.

^[3] Chris Cunneen, Evaluation of the Queensland Aboriginal and Torres Strait Islander Justice Agreement, (Report to the Justice Agencies CEOs) (2005). Available online: <http://www.cjrn.unsw.edu.au/news_ & _events/documents/qatsija.pdf> at 12 July 2007, xvi.

^[4] Ibid.

^[5] Law Reform Commission of Western Australia, Aboriginal Customary Laws, Final Report (2006).

^[6] NSW Ombudsman, Working with Local Aboriginal Communities (2005).

^[7] Ibid 27.

^[8] Ibid 28.

^[9] Ibid 11.

^[10] Department of Justice, Victoria, Victorian Implementation Review of the Recommendations from the Royal Commission into Aboriginal Deaths in Custody (2004) 398.

^[11] Cunneen, above n 3, 174-176.

^[12] NSW Ombudsman, above n 6, 14-15.

^[13] Christine Clements, Office of the State Coroner, Queensland, Inquest into the Death of Mulrunji, (2006) <http://www.justice.qld.gov.au/courts/coroner/findings/mulrunji270906.doc> at 13 July 2007, 2.

^[14] Michael Barnes, Coronial Findings in the Death of a Hope Vale Man in an Aboriginal Community Police Van, Office of the State Coroner, Brisbane (2005) <http://www.justice.qld.gov.au/courts/coroner/findings/HopeVale.pdf> at 13 July 2007.

^[15] Ibid 14.

^[16] Ibid.

^[17] Cunneen, above n 3,183-186.

^[18] Ibid 186.

^[19] Evaluation of the Queensland Aboriginal and Torres Strait Islander Justice Agreement: Queensland Government Response (2006) <http://www.cjrn.unsw.edu.au/news_ & _events/documents/justiceagreementevaluation.pdf> at 13 July 2007.