“It’s appalling that it’s continuing, and no one is calling it out for what it is: the murder of First Nations people,” said rights activist Paul Silva. “Hopefully, [Anthony] Albanese can step up, take into account these events and recognise what’s going on in custody with First Nations people.
“Many people are not even found guilty of a crime — they’re in there on remand — and they are still coming home in a body bag,” he said.
Silva’s uncle, 26-year-old Dunghutti man David Dungay jr, was killed in late 2015 by specialist prison guards in the hospital ward at Long Bay Jail, after five of them pressed down on his back as they held him face down on a bed, while he repeatedly called out that he couldn’t breathe.
Following the 2019 coronial inquiry, no disciplinary action was taken against the guards, let alone suggestions of a criminal investigation. Then-Corrective Services New South Wales commissioner Peter Severin simply issued an apology to the Dungay family for “organisational failures at the time”.
The Dungays have been uncompromising in their pursuit of justice, which has included repeated requests to the NSW Director of Public Prosecutions and SafeWork NSW to criminally investigate, with NSW barrister Phillip Boulten SC having provided advice on the potential for charges to be laid.
This all happened under a Coalition government.
Silva is calling on the new Labor government to follow through on its change aspirations and translate them into deep structural reform that prevents Black deaths in the custody of authorities.
There is a war
Labor has been vocal about proposals to transform the plight of the continent’s First Peoples, whether with calls for a referendum on an Indigenous voice to parliament, the inclusion of flags at press conferences, or promises to end racist programs.
Right now, Aboriginal and Torres Strait Islander peoples are among the most incarcerated on the planet. They comprise 31% of the adult prisoner population, while accounting for less than 3% of the overall population.
First Nations custodial deaths have continued under both Coalition and Labor governments. The Bob Hawke Labor government established the Royal Commission into Aboriginal Deaths in Custody, which delivered 339 recommendations in 1991.
These set out a comprehensive blueprint for change. But most of the recommendations have not been acted on and there have been around 500 First Nations deaths in custody since.
Last year marked the 30th anniversary of the Commission’s final report, yet 17 First Nations people lost their lives in the custody of either police or corrections.
Not one police officer, or prison guard, has ever been convicted over a Black death in custody. The acquittal of Northern Territory police constable Zachary Rolfe over the close-range shooting death of Kumanjayi Walker — two shots to the side of his torso while the 19-year-old Warlpiri teen was held down by the officer’s partner — highlights the poor state of First Nations’ affairs.
Taking it to the United Nations
“The Australian government fails families of Aboriginal deaths in custody in a number of ways,” Silva told Sydney Criminal Lawyers.
“They don’t investigate appropriately to get answers and hold those accountable for the brutalisation and the deaths of First Nations people. Numerous inquests have changed a number of policies and procedures, but that hasn’t stopped the deaths,” he said.
“There need to be criminal investigations, with disciplinary action taken and accountability towards the people involved. We won’t see change until that happens.”
Silva and the rest of the Dungay family have to come to terms with the fact that, despite their efforts and the solidarity from the wider community in 2020 with the upsurge in the Black Lives Matter movement, the system may never serve justice.
Last June, David’s mother Aunty Leetona Dungay told the NSW parliament that she was taking the case to the United Nations Human Rights Commission. The legal team includes renowned Australian human rights barristers Geoffrey Robertson and Jennifer Robinson.
“We’ve had to go to the UN to shame the Australian government and show how basic human rights are being denied when it comes to its actions towards First Nations people,” Silva said, adding that it might not bring justice for David, but it has the potential to prevent further deaths in custody.
Ending the war
There is no doubt that the Albanese government has spoken about Indigenous affairs in its first fortnight much more than the Coalition ever did over its near decade in office. Labor has made Linda Burney Minister for Indigenous Affairs, the first Aboriginal woman in a ministerial role.
The new Wiradjuri minister has announced the government will scrap the racist Community Development Program work-for-the-dole scheme, abolish the cashless debit card and provide funding to the families of victims of deaths in custody to participate in coronial inquests.
“It’s one thing to say and another thing to do,” Silva said, adding he wants to “see those words put into action”.
Following the acquittal of NT police officer Rolfe over the murder charge for the killing of Kumanjayi Walker, the Elders from the town of Yuendumu, where the Warlpiri teen lived, have started a campaign to remove police guns from remote First Nations communities.
A national day of action is being organised for June 18 to highlight that police, equipped with military-style weapons, are currently patrolling unarmed First Nations communities on their own land.
The Warlpiri Elders assert that the problems have escalated since the John Howard government unleashed the 2007 Northern Territory Intervention, which spawned the cashless debit card.
They also point out that it was the federal Labor Party that went on to reinforce these repressive measures with its 2012 Stronger Futures Act.
Silva underlined the importance of the campaign to ensure guns cannot be taken into remote communities. He said he’s reconciled to the fact that his family may never obtain justice for his uncle in Australia, and that the Dungay family are now focused on the UN delivering justice.
“Unfortunately, I do not see this as getting any justice for David Dungay, but it may prevent these events from occurring going into the future,” the Dunghutti man said. “And that’s what I really want to see.”
[The Karrinjarla Muwajarri Ceasefire National Day of Action is on June 18. The Sydney No Police Guns: End Racist NT Intervention Powers: Stop Black Deaths in Custody rally will meet at 1pm at Sydney Town Hall. Paul Gregoire is a regular contributer to Sydney Criminal Lawyers, where this article was first posted.]