NSW Aboriginal deaths in custody inquiry recommends end to ‘police investigating police’

© Provided by The Guardian Photograph: Lisa Maree Williams/Getty Images

An independent body would examine any Aboriginal death in custody to stop “police investigating police”, under sweeping reforms to the justice system proposed by a New South Wales parliamentary inquiry into Aboriginal incarceration.

The NSW parliamentary committee, set up at the height of the Black Lives Matter protests in June 2020, unanimously recommended that the state’s police watchdog, the Law Enforcement and Conduct Commission, investigate deaths in custody.

Currently, police investigate all custodial deaths and prepare a brief of evidence for the coroner. Aboriginal families and activists have long demanded a more independent process with greater transparency.

Related: ‘I want to break that cycle’: the relatives still fighting for justice over deaths in custody

The committee – comprised of Liberal, Labor, Greens, Nationals and One Nation MPs – also unanimously called for the LECC to appoint a senior Indigenous statutory officer to provide judicial and cultural expertise in investigating Aboriginal custodial deaths.

The MPs have made 39 recommendations which they say “must not join the long list of other recommendations and reports that have gathered dust waiting for the political courage to implement them”.

The committee also made a series of recommendations aimed at reducing the rate of imprisonment, including raising the age of criminal responsibility from 10 to 14 years old.

It recommended reforms to the Summary Offences Act to exclude “obscene language” as grounds for arrest. It said the police discretionary power was often used to arrest and detain young Aboriginal people as part of a “trifecta’’ of charges – including resisting arrest and assaulting police – and should only be invoked where such language was accompanied by threats and intimidation.

“Too many young people from First Nations communities are facing arrest and adverse interactions with police from a very young age,’’ Greens MP David Shoebridge said.

“One important reform was to raise the threshold for prosecution for offensive language that will prevent First Nations people being dragged before the courts for what is known as the ‘trifecta’ of offensive language, assault police and resist arrest.”

Related: Australia’s anguish: the Indigenous kids trapped behind bars

The committee also determined that the Bail Act should be reformed to include an express consideration of Aboriginality as a provision to ensure people were not left on remand.

Aboriginal defendants are 20.4% more likely to be refused bail by police than non-Aboriginal defendants in similar cases, according to a recent NSW Bureau of Crime Statistics and Research (Bocsar) study of more than 500,000 bail decisions made in NSW between 2015 and 2019.

Guardian Australia’s Deaths Inside project found that, nationally, more than half (54%) of all Aboriginal people who died in custody between 2008 and 2021 were on remand.

The NSW committee recommended the urgent removal of hanging points in prison cells and urged the government to commit to a deadline for doing so. It cited the case of Tane Chatfield, who died in hospital two days after he was found hanging in his cell at the Tamworth correctional centre in September 2017.

Chatfield, 22, was found only an hour after he was returned to prison from a night in Tamworth hospital following multiple seizures in his cell.

The royal commission recommended the removal of all hanging points in police and prison cells 30 years ago.

The Berejiklian government has six months to formally respond to the committee’s report.

Nationals MP Trevor Khan, who is on the committee, said the recommendations were “not pie in the sky” and were “deliverable”.

“We have sought to track a middle ground here that is deliverable,” he said, adding that the 30 year gap between the royal commission and the report should “supercharge” political will.

The chair, Labor MP Adam Seattle, said the recommendations were “easily” achievable and the “ball from today is in the government’s court”.

He said the Lecc recommendation was not the first choice “but the best choice currently available to government”.

Speaking outside parliament, the family of Tane Chatfield welcomed the latest report and recommendations, but said that hundreds of recommendations over 30 years still had not been implemented.

Tameeka Tighe, Chatfield’s sister, said there should also be an independent inquiry led by First Nations people to hold the government to account, and not rely on politicians.

Colin Chatfield, the father of Tane Chatfield, said the royal commission’s recommendation to remove hanging points, made 30 years ago, still hadn’t been implemented.

“The hanging points are still in Tamworth prison,” he said. “If they can’t get the hanging points out, tear the prison down”.

Advocates said that the report should not be allowed to “gather dust”.

Colin Chatfield told reporters: “What about my son’s son? My grandson – he’s suffering every night.

“All I want to do is comfort him, hug him, it tears me apart to let him know your daddy is gone, they killed him, he’s not coming back. He does not know what his own father’s voice sounds like”.

He said of the report today: “I feel good, it’s something we’ve been fighting for for a long time.”