Every night, one in 15 Indigenous men in WA will spend the night in jail – the chief justice of the supreme court says it is hard to think of a population group on the planet that is incarcerated at a similar rate

Indigenous advocate: 'Jail is part of our life and part of being institutionalised'

The boys had not run fast enough. They had been trying to escape police who had shadowed their car out of Port Hedland, a mining town in Australia’s remote north-west. Now they were on the ground and one of them had a policeman’s gun aimed at the back of his head.

According to a complaint made on behalf of the boys to Western Australian police, the officer then said: “Stop crawling away or I’ll shoot you with the gun.”

Both were 14 and Aboriginal. They had been driving around town with their aunt and other relatives. Another boy, aged 15, had been behind the wheel. He had panicked when the police van started following them and veered into a ditch.

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That’s when they were caught. Lying in the warm dirt, one of the boys allegedly saw a policeman draw his gun and say: “Shut up, motherfuckers. Get on the ground, motherfuckers. Hey don’t move or we’ll shoot you with the gun. Shut up, you want to die?”

It was April, three months before shocking abuse at the Don Dale youth detention centre prompted the Australian government to call a royal commission into the treatment of children in the Northern Territory.

However, it will be outside the commission’s remit, which has been restricted to the Territory despite Aboriginal and Torres Strait Islander organisations and senior legal figures arguing the mistreatment of Indigenous people at the hands of police and prison guards has occurred across the country.

Far from being an outlier, they said, footage from Don Dale showing Aboriginal children being teargassed, hooded and strapped to a restraint chair was a product of a justice system that was stacked at every turn against Indigenous people.

“The episodes at Don Dale start earlier than Don Dale,” said Dennis Eggington, chief executive of the Aboriginal Legal Service of WA (ALSWA). “By the time Don Dale happens people are turning a blind eye, they’re allowing it to happen, and the general public doesn’t care.”

It’s an attitude Eggington, a Noongar man from south-western WA, says is inextricably linked to colonisation.

“We’ve been overrepresented in this prison system since day dot,” he said. “And it hasn’t been about breaking the law, it hasn’t been about the criminality of Aboriginal people. It’s been about how to deal with the invasion and colonisation of this land.

“In many ways it’s still an occupied country and it’s not the soldiers that occupy it any more, it’s the police carrying on the occupation. And this country has been hoodwinked into thinking that their lives are much safer if young black men are taken off the the streets and locked up.”

Nowhere is that worse than in WA, where the incarceration rate for Indigenous children is 53 times higher than for non-Indigenous children, and 30% higher than rates in the Territory. Every night, one in 15 Indigenous men in WA will spend the night in jail. Indigenous men in WA are more likely to be locked up than young black men in the US.

“It’s hard to think of a population group on the planet that is as incarcerated as Aboriginal men in Western Australia,” the chief justice of the WA supreme court, Wayne Martin, told Guardian Australia.

WA police is conducting an internal investigation into the incident with the gun, after ALSWA submitted a formal complaint on behalf of the boys and their families.



It is also being investigated by the Corruption and Crime Commission.

The officers involved, both of whom were from South Hedland police station, have not been stood down.

Acting police commissioner Stephen Brown said the allegations were very serious.

“We expect all police officers, no matter where they serve in WA, to act professionally and in accordance with the law at all times,” he said.

“Those that do not treat all people with dignity and respect have no place in this organisation.

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“At the same time, I say without hesitation that police officers across the state demonstrate through their everyday actions their positive commitment to Aboriginal people in a whole manner of ways.”

It is the latest in a series of allegations made against officers at South Hedland police station following the death in custody of 22-year-old Yamatji woman Ms Dhu in 2014.

In June, three police officers at the station were stood aside pending an internal investigation into allegations they had dropped two 14-year-old Aboriginal boys up to 3km outside town after picking them up following a “disturbance”, rather than returning them to their homes.

Brown said an independent police officer had recently reviewed policing in South Hedland and developed a plan to improve relations with the local Aboriginal community.

“There is no question that South Hedland is a challenging environment for police due to the complexity of the social issues, but we’re absolutely committed to being part of a strong community there, now and in the future,” he said.

Thursday marks the second anniversary of Dhu’s death. A march will be held in Perth to call for the public release of CCTV footage shown at a coronial inquest into her death. The footage, seen by Guardian Australia, includes images of her being dropped and dragged from her cell, and audio of police suggesting she did not need to go to hospital.

Facebook Twitter Pinterest Ms Dhu’s grandmother, Carol Roe, outside Perth magistrates court in March 2016 before the resumption of the coronial inquest into her death Photograph: Calla Wahlquist/The Guardian

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Last week, a male Aboriginal prisoner held in that same set of cells stepped on part of a needle that had been left, along with a dirty menstrual pad, on the floor. He was taken to hospital and will spend the next three months on antiviral medication waiting to see if he has been infected with HIV.

A different set of officers work in South Hedland now; most stationed there when Dhu died have moved on and some, like the officer who handcuffed her and dragged her from her cell after she collapsed into septic shock on the belief that she was “faking it,” have been promoted.

Carol Roe, Dhu’s grandmother, said she had instructed her lawyers to ask again for the release of the footage, after coroner Ros Fogliani refused a request in March.

“I’m hurting and my heart’s torn apart, what she’s going to give us, you know?” Roe said.

“She’s seen the footage, and what exactly is she going to hand down? ... My baby is laying across the road from me [in the cemetery] and them coppers are still working and getting promoted and all that, and still living a happy life, you know. Where’s my justice?”

Fogliani is yet to hand down her findings into Dhu’s death, but her family is not confident of a strong result. There have been too many inquiries, Roe said, where nothing has changed.

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The biggest was the 1989-1991 royal commission into Aboriginal deaths in custody. In the 25 years since its final report was handed down, the Indigenous incarceration rate has doubled.

At a press club address earlier this year, Yawuru leader Pat Dodson, who was a commissioner on that royal commision and is now a Labor senator for WA, pointed the finger at policies such as mandatory sentencing for burglaries in WA, paperless arrest laws in the NT and the WA practice of jailing for fines as making it easier to lock up Indigenous people.

In a submission to a parliamentary inquiry into the Aboriginal and Torres Strait Islander experience of law enforcement last year, Martin said that “at every single step in the criminal justice process, Aboriginal people fare worse than non-Aboriginal people”.

Aboriginal people are more likely to be questioned than non-Aboriginal people, then more likely to be arrested, then more likely to be denied bail, then more likely to be convicted, then less likely to be granted parole.

“I think there is … a component of systemic discrimination so that the system works against Aboriginal people who come in the system,” Martin said. “But the reality of it is that, and the harsh reality I’m afraid, is that the reason Aboriginal people are overrepresented in custody is because they’re overrepresented among these who commit offences.”

Martin said systemic discrimination could include a failure to provide translators, as happened when Gene Gibson was arrested for murder. Police failure to adequately ensure Gibson, a Pintupi man who spoke very little English, understood his right to silence, saw the charge downgraded to manslaughter.



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Despite high-profile criticism over the Gibson case, which included a scathing assessment by the Corruption and Crime Commission, Peter Collins, director of legal services at ALSWA, said police in WA continued to ignore proper procedure when questioning Indigenous suspects.

In a matter that has been referred to the police commissioner, an officer at South Hedland recently suggested a letter from lawyers demanding police respect their client’s right to silence “was closely bordering on attempting to influence officers conducting lawful inquiries”, and that ALSWA lawyers “do not tell WA police officers who they can interact with, speak with or investigate in any way”.

Collins said many offences for which Aboriginal people are booked, such as breaching a move-on order, drinking in public or disorderly conduct for swearing at a police officer, are rarely levied at people of European background.



“I haven’t got a problem with Aboriginal people being charged, along with everyone else, with offending that warrants a police prosecution,” he said.

“But there’s really uneven policing, discriminatory policing, of Aboriginal people, and what it does with kids is it immerses them in the system and it means that often they’re bailed with difficult bail conditions, which if they breach they end up in custody for, in relation to offending which wouldn’t normally get within a bull’s roar of warranting detention … Generally speaking, the system is pretty content to have Aboriginal people locked up, because they’re perceived to be a problem, a threat, unsightly, and it’s better to have them out of the way.”

He rattled off a list of “the most ridiculous offences” ALSWA has defended in recent years. There was the 12-year-old Aboriginal boy in 2009, charged with stealing a stolen Freddo frog; the 16-year-old from Onslow, on the north-west coast, who spent 12 days in custody for attempting to steal an ice-cream; the suicidal boy from Kalgoorlie charged with criminal damage for cracking a windscreen when he threw himself in front of a car; and the man in Meekathara who was ordered to remove his shoes and socks in the street then charged with assault when he threw one of his socks at police.

“The only person who seem to be offended in this day and and age by the use of the word ‘fuck’ are cops,” Collins said.

There are less extreme, but far more common, examples, such as the 14-year-old boy who spent Monday night in the police station lockup in Derby in the Kimberley, after breaking the curfew on his bail. According to his lawyer, Paul Tobin, he had left his bail address and gone two houses down to his aunt’s house to get dinner. The justice of the peace in Derby refused a request to bail the boy to a bail hostel in Broome.

“Here is a juvenile … locked up in an adult lockup in a prison cell, a police cell, in a town like Derby which is notorious for not only the conditions of police cells but has got a terrible reputation when it comes to deaths in custody,” Eggington said.

Four people have died in the Derby lockup in the past 35 years, three of whom were Aboriginal.

“In this country, and particularly in WA, we lock up as a first resort,” Eggington said.

In summer, he said, City Beach in Perth was teeming with white people drinking alcohol and having barbecues with “not a copper to be seen”, while Aboriginal people are regularly targeted for street drinking. In Halls Creek, Collins said, as much as 30% of the court list can be for street drinking offences. Aboriginal woman Maureen Mandijarra died in custody in Broome on 30 November 2012 after being arrested for drinking on Male Oval.

It’s not confined to WA. Over the border in the NT, Guardian Australia spoke to Antoinette Carroll, the youth justice coordinator at the Central Australian Aboriginal Legal Advisory Service. She had just secured bail for a 13-year-old girl who spent 24 hours in the youth detention centre in Alice Springs, the same centre where Dylan Voller was reportedly assaulted by a guard, after the youth hostel she was living in reported to police that she had broken curfew. Carroll said the girl’s original offence was minor but she had been jailed twice for breaching bail.

“She’s 13, she went for a walk,” she said. Carroll said strict bail conditions were a common problem for Aboriginal communities. “The bail conditions say, ‘you must be here from the hours of 7pm and 7am, but all the family is next door in the grandmother’s house watching a movie, so the young person just thinks, ‘I can watch the movie too’. That’s a breach,” she said.

The result, Eggington said, was that prison lost its power to deter people from crime.

“Jail has become a way of life ... we’re not frightened of prison,” he said.

“Not all Aboriginal people – I’m terrified of going to prison and I know lots of other Aboriginal people are, but for a bigger majority of Aboriginal people prisons aren’t scary places. They never have been. We’ve grown up with them as a part of our life and a part of our being institutionalised … it’s been a deliberate creation of acceptance and that this is what our place is and unfortunately it becomes internalised.”

