The nation does not care about people who become incarcerated

15 Apr 2021

Tony Birch says that to state that a loss of Aboriginal life results in yet another ‘death in custody’ is to use language that refuses the reality of murder in custody that we know will be failed by the system.

On 20 January 1842 two Aboriginal men, Maulboyheener and Tunnerminnerwait (from Tasmania), were executed by hanging on a Naarm (Melbourne) street. The men, along with three Aboriginal women, Truganini, Planobeena and Pyterruner, were tried for the killing of two whalers near Cape Patterson, in eastern Victoria. When Justice Willis sentenced the two men, he assured the colonial government, the public and Aboriginal people alike that he expected the hanging of the men would instil ‘terror into the hearts’ of Aboriginal people who had been waging a guerrilla war against white invaders in a defence of Country.

The macabre theatrics surrounding the execution included parading the men, dressed in pure white, throughout the city, providing a spectacle for a crowd of thousands gathered to witness the violence. At the execution site members of the crowd stood of the empty coffins that would transport the dead to an unmarked common grave site preserved for Aboriginal people. Some years later, a fish, meat and fruit market was erected over the burial ground, and today, the site holds the remains of around one thousand Aboriginal people, with the tourists and shoppers above generally oblivious to the sacrilegious act they are involved in.

The injustices that Maulboyheener and Tunnerminnerwait were subject to are multitude. For the sake of brevity, I want to make two vital points. At the time of the execution Aboriginal people could not bring a case of injustice committed against them before the court as it was deemed under British law that Aboriginal people, being ‘primitive’ and ‘childlike’, were incapable of understanding the process of the law. And yet, Aboriginal people could be tried and executed under the same legal system. Additionally, it is important to note that by 1848, five Aboriginal men had been executed in the Port Phillip district. During the same period nine whites were tried for killing Aboriginal people, but only one man was convicted, and he received two months imprisonment.

The link between the deaths of Maulboyheener and Tunnerminnerwait in 1842 and the current crisis around the imprisonment rates and deaths in custody of Aboriginal people are clear. Colonial violence of the past is being widely replicated in contemporary Australia. The imprisonment rates of both adults and children are horrific. I will not note them here, for although the statistics are damning, knowledge of them has little impact on the actions of government, except that state governments in particular have introduced more regressive and punitive sentencing regimes; an exercise in pandering to the ‘law and order’ brigade, particularly during election campaigns. 

As it was in 1842, it remains today. Instilling ‘terror’ into young Aboriginal people is a national pastime. Let us never forget the horrific images that accompanied the ABC 4 Corners program of 2016 that exposed the violence and torture of Aboriginal youth and children in the Dondale Detention Centre in the Northern Territory. The kids locked up in Dondale, children and youth incarcerated across the country, were and continue to be terrorised in order that the white nation can live a ‘relaxed and comfortable’ life. 

As we mark the thirtieth anniversary of the release of the report of the Royal Commission into Aboriginal Deaths in Custody additional statistics are fed from data bases onto our commuter screens. But what of the men, women and children who are otherwise consigned a number in death? The Guardian newspaper has done a remarkable job in providing us with an insight into the lives and stories of many of those who have died in recent decades, through its Deaths Inside project. 

Deaths Inside is accompanied by a statement of gratitude toward the Aboriginal families who have supported the project. It also comes with a trigger warning for Aboriginal and Torres Strait Islander people as it makes for harrowing reading. It is deeply sad. And it evokes anger and frustration. For example, it initially appears inconceivable that man can be arrested while unconscious and placed in a cell where he later dies. The same man was subsequently described by a judge as an ‘innocent man’. Disbelief is short lived as the violence that this man was subject to is consistent with a history of a state-sanctioned criminality against Aboriginal people. Deaths Inside is a story about vulnerable people being placed in situations of extreme danger resulting in a negligent loss of life. To state that a loss of Aboriginal life results in yet another ‘death in custody’ is to use language that refuses the reality of murder in custody.

Regardless of the comparisons between the number of Aboriginal people who have died in custody as opposed to non-Aboriginal deaths, what the current protests, activism and campaigns by Aboriginal people highlight is that we care about our family and community people who are locked up. We fear for their lives and we want them home. When our people die in custody, we mourn them and demand justice for them. Non-Aboriginal people also die in custody. It is wrong that they do so. It is unjust. And it also saddens and angers me. But I do not know who they are. Not because I am not interested in or concerned about their deaths. They remain largely unknown to the wider public because the nation does not care about people who become incarcerated. In fact, the nation, by and large, would be happy to see more people imprisoned and relegated to the status of out-of-sight-out-of-mind non-citizenry.

In 2017, a deeply loved Aboriginal woman, Tanya Day, died as a result of events that occurred in the Castlemaine police station in regional Victoria. It is clear that Tanya Day’s death was the result of negligence on the part of state officials in both the law and health sector. Her family have fought tirelessly for justice. Recently, Tanya Day’s daughter, Apryl Day, among other justice fighters established the Dhadjowa Foundation. Its purpose, as stated by Apryl Day, ‘is to provide a grassroots culturally safe meeting place for Aboriginal families after losing a loved one in custody. It is a coordinated approach to support families and the many different layers as they embark on their fight for justice.’ 

Justice for Aboriginal people will not result from the provision of more statistical analysis. It can come only from us, from the sharing of knowledge of our loved ones and through seeking justice by actively ‘speaking truth to power’. It will only happen if we not only applaud the courage of the Day family and the many other Aboriginal families demanding justice for loved ones. We also have to stand with them and demand justice.

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