Small Axe, Big Tree: Tackling deaths in custody

Small grassroots organisations are slowly chipping away at the huge problem of Aboriginal deaths in custody in Australia.

“I’d like to acknowledge the Gadigal people on whose land today… I take that back. On whose stolen land we gather today, for this meeting to take place.” Her voice slightly unsteady, Faith Black, a First Nations woman, faces a panel of politicians, all white men, as she makes her introductory statement. Her nails, painted a bright yellow, complement the superman logo within the Aboriginal flag on her t-shirt.

“Through unlawful government, we have been genocided for 232 years. Through social engineering, we have been taken out of our natural capacity and lore and forced into enslavement, having to comply to fictitious, descriptive characters, such as ‘Aboriginal’ or ‘Indigenous’.”

The inside of Parliament House in Macquarie Street, Sydney, resembles a sparsely stocked museum: empty and quiet, indifferent to the passion and gravity of the words being spoken within. Heavy frames secure historic portraits to the walls. They look on, expressionless.

Faith Black delivers her tribal notice to the Upper House Inquiry as Raul Bassi looks on. Photo: Sarah Smaje

There is an awkwardness in the room as Black delivers a lengthy tribal notice. The committee quietly exchange looks; they had asked for a brief introduction of the Indigenous Social Justice Society (ISJA), which Black was representing, to the hearing.

“Even though those words are very confrontational,” she said later, “I had to come from a place of love. This is what we’re feeling, it’s not just words. This is what’s really happening.”

The NSW Upper House inquiry into “the high rate of incarcerations and deaths in custody among First Nations people” took place over five days during October and December this year. Although Aboriginal and Torres-Strait Islanders make up only 2.8 per cent of the population of Australia, they represent almost 30 per cent of the prison population and, as reported in The Guardian Australia, are 10 times more likely to die in custody than non-Indigenous people. High incarceration rates, lack of adequate healthcare, insufficient mental health monitoring, underlying socio-economic issues and systemic racism are seen to be the root causes of the deaths. Since the 1991 Royal Commission into Aboriginal deaths in custody, incarceration rates have only increased, and at least 437 more deaths have occurred.

The global spread of the Black Lives Matter movement this year has prompted the Australian government to listen to voices that have long been campaigning for more work to be done. One of those voices is ISJA.

A tiny grass roots organisation of less than 10 people, ISJA was founded in 1997 by Ray Jackson. Jackson, a Wiradjuri man and member of the stolen generation, was born to an Indigenous mother but taken from her at age 2 when his father was killed in the army. Adopted into a white family, Jackson didn’t learn of his true history until his teenage years, and subsequently dedicated his life to fighting for justice for First Nations people.

After the Royal Commission into Aboriginal deaths in custody, the Australian government funded The Aboriginal deaths in custody watch committee to monitor breaches of the commission’s recommendations.

Jackson was a founding member and said in an interview with Green Left Weekly: “We were so well set we had a hotline any blackfella could call, anytime. If a copper so much as verballed a black kid, we’d get a call and be out at the police station, no matter where it was — at the latest — a day later, interrogating them.”

When his funding was cut after a change in Government in 1997, Jackson was undeterred, immediately founding ISJA and running it from his one-bedroom housing commission flat in Redfern. Recognised as one of the leading voices against Aboriginal deaths in custody, Jackson was awarded a human rights award from the French government in 2013. Sadly, he was never formally recognised by his own country.

Jackson fought on until the end, passing away in his sleep from a heart attack, hours after the weekly ISJA meeting on April 23, 2015. The remaining members of ISJA strive to continue his legacy and the Upper House Inquiry is another step in their journey towards justice.

Raul Bassi comforting a father outside a recent coronary inquiry into his son’s death. Photo: Sarah Smaje

Sitting next to Black at the hearing, poring over his notes for the hour-long time slot, is Raul Bassi, a grandfather-like figure who took over the reins of ISJA after Jackson’s death.

As Jackson was building his legacy, Bassi was risking his life fighting injustices of a different kind. A revolutionary activist during the military dictatorship of Argentina, Bassi was an organiser with the Socialist Workers Party, a life-threatening activity under the regime. “They killed 30,000 people like me,” he said, “many friends of mine, many members of the organisation that I belonged to.”

It became clear that to stay alive in Argentina he would have to change his identity completely, so he left to start a new life in Australia.

It was while watching the Redfern riots on the news in 2004 that Bassi’s life trajectory changed again – he had always been uncomfortable with the way Indigenous people were treated in his adopted country and was inspired to see people fighting for justice. Bassi went to Redfern the very next day and, wandering around the wreckage in the street, stumbled upon Jackson, who had organised the riots.

He made it clear that he wanted to help. Six years apart in age, Bassi and Jackson looked like they could be brothers. They built a strong relationship based on their shared beliefs for social justice and their insatiable energy to fight for it.

“I promised him,” Bassi said, “that whatever happened to him, I would do as much as I can.”

Bassi and Black brought a number of submissions to the enquiry, including the importance of treating the site of a death in custody as a crime scene and the need for coroners to be obliged to follow up on any recommendations made as a result of their coronial inquiries. Of particular importance to Bassi, as outlined in ISJA’s submission document, was that certain deaths “should no longer be simply labelled suicide or…an accident. Reasons for death, such as failure to provide duty of care, ignorance of cultural facts, racist attitudes and prejudice should be available to be recorded as causes of death”.

A recurring theme among the recommendations throughout the inquiry was the need for independent inquiries into deaths in custody, rather than the police and justice system investigating itself.

The fact that these independent inquiries should be First Nations-led was particularly important for Larissa Behrendt of the Jumbunna Institute, another small organisation run out of the University of Technology, Sydney.

“Any other attempt would really be seen as trying to fix a system that is already systemically disadvantaging Indigenous viewpoints,” she said during her submission.

“The structure and institutional racism is much deeper than that. That is why there is a firm view from Indigenous people — and I share this view myself — that the ability to design the institution is an opportunity to ensure that you are not just trying to change a structure and a culture that already exists, and you instead bring a different framework, mindset and perspective.”

Greens MP David Shoebridge, a long-time advocate for the rights of First Nations people, was responsible for instigating the parliamentary inquiry, but says it’s “people power” that got them there.

“I want to be clear. The only reason my motion succeeded…was because there’s been these mass movements on the streets,” he said. “It followed very, very closely on some of those extraordinary public mobilisations on the streets of Sydney for the Black Lives Matter movement.”

Faith Black speaking at the Black Lives Matter Rally, Sydney, 6 June 2020, minutes after it was made legal. Photo: Sarah Smaje

ISJA was among the organisers of the rally that took place on June 6 this year, 12 days after George Floyd was killed by police in Minneapolis. In the height of the Covid-19 pandemic, the government had made the gathering illegal, but organisers appealed successfully at the last minute after huge crowds had already gathered in the streets.

 “I literally ran from the court down to the rally,” says Shoebridge, who was present at the appeal, “to try and stave off a violent police intervention for long enough to get the orders out of the courtroom. I think once that announcement was made, a crowd of about 10,000 swells to a crowd, in my estimate, of well over 50,000.

“My experience is that we achieve wins in Parliament…when we build those bridges between mass movements in the community, and proactive MPs who are willing to bring that voice and bring that power to parliament.

“And that’s why organisations like ISJA, who are out there with those connections in the community working with First Nations families, are so vital to not just civil society, but to actually producing fairer and more just results.”

Although the road ahead is long, Shoebridge says there is hope.

“In the last five years, matters that I have been campaigning on, they’ve gone from being very much a fringe discussion to much more of a mainstream discussion in parliament.

“It’s that move from a kind of fringe politics to part of the core politics that I’ve really noticed, and that’s been driven by brave voices, brave families, strong advocates coming out from First Nations families and First Nations communities.”

Smoking ceremony for grieving parents held during a protest against Aboriginal deaths in custody on July 6. Photo: Sarah Smaje

During the hearing, Shoebridge pays particular attention to Gail Hickey, who sits on the other side of Black at the head of the table. He questions Hickey on her experience of the Coroner’s Court after her son’s death.

“It failed,” she said.

Hickey’s son, TJ, died in 2004 after being impaled on a fence following a police pursuit – officially considered a death in custody. Police described his death as a “tragic accident” but the officers involved never gave evidence in the coronial inquiry. Since then, his family have been fighting for a new investigation into the circumstances of his death and a rally is held every year in Redfern on February 14 in protest.

Hickey gives a statement. It takes her some moments to gather herself.

“My son TJ, he was killed more than 16 years…” Her voice catches in her throat as the grief stops her mid-sentence. Through tears she continues: “More than 16 years ago, on the 14th of February, 2004. The desperate, deep pain and trauma that fell on my family, including myself, has never ceased…. I will never stop seeking the truth about what happened to my boy. I hope this inquiry will help me with that, help me stop the cover up, stop protecting people who are breaking the law and pretending to protect us.”

Months earlier, ISJA had separately submitted a petition to parliament: 12,000 hard copy signatures gathered across NSW supporting a re-investigation into TJ Hickey’s death. The Attorney-General had declined to pursue it but according to Black, Hickey had attended the Upper House inquiry in the hope that this would be re-considered: “She’s reaching out for them to really consider looking into the case.”

Adam Searle, Labor MP and chairman of the committee, makes it clear this is not possible: “The process appears to have been followed; the Attorney-General has made his decision.”

Although the petition wasn’t successful, among submissions to the inquiry were calls to re-investigate cases where justice had not been served, offering a glimmer of hope to Hickey and other families fighting for the same right. The Dungay family, who also took part in the inquiry, are amongst the most prominent campaigners for re-investigation, after the death of David Dungay Jr in custody in 2015 after being held down and sedated by prison officers for eating biscuits in his cell. Echoing George Floyd’s last words that sparked this year’s global protests, Dungay said 12 times before he died: “I can’t breathe.”

Members of the Dungay family after a protest is forcibly shut down by police due to Covid-19 restrictions. Photo: Sarah Smaje

The committee will report their findings and recommendations on the final working day of March 2021.

An hour after they entered, Bassi, Black and Hickey emerge from the dusty room. They walk through the empty halls and out together into the street, Hickey pausing for photographs on the stairs as she holds back her tears.

Asked later how he feels about his work with ISJA, Bassi said: “It’s just about carrying it on for Ray. Someone has to keep it going.

“I got something from Gail that showed me I’m doing something right.

“When we do the rallies for TJ and she comes to me afterwards and she’s smiling, I know I’ve done something good. But it’s not about me; it’s on the basis that we’re doing it together. We’re doing it together.”

Bassi puts his arm around Hickey and tries to console her as the three walk away together.

“We’ve got to do something, ok? I’m gonna think. I’m gonna think of something, what else we can do.”

His eyes sparkle, his revolutionary spirit shining through. “Maybe we can blow up the parliament. What do you think?” He looks to the photographer, laughing: “Don’t get that on camera!”

Sarah Smaje is a Master of Media Practice student at the University of Sydney. She has five years’ experience as a freelance video producer and filmmaker and has a particular interest in visual storytelling.