By Thalia Anthony
November 14, 2019 21:11:51
When the Royal Commission into Aboriginal Deaths in Custody investigated 99 deaths between 1980-1989, investigators were forced to exclude the police shooting of 29-year-old Aboriginal man David Gundy in his Marrickville home.
Just before dawn in April 1989, Gundy’s life was taken by the Special Weapons and Operations Squad, while his nine-year-old son was in his bedroom next door.
Ultimately, a family appeal to have Gundy’s death investigated was successful and the commission’s final report recommended that deaths at the hands of the police, whether they be on the streets, in a chase or at home, be classified as a death in custody.
This recommendation is important because policing of Aboriginal communities blurs the public/private line.
The use of force outside of a police station can be just as deadly, and accountability and justice equally necessary.
Homes no longer a safe place
Fatal policing in the home was the fate of Kumunjayi Walker, a 19-year-old Warlpiri man from the central Australian Aboriginal community of Yuendumu.
Walker died after being shot by police in his home. A police officer has been charged with murder in connection with the shooting.
The tenuous line between public and private policing has been compromised in the Northern Territory since federal emergency laws were introduced in 2007.
These measures, referred to collectively as the Northern Territory Intervention, increased police numbers and police powers in Northern Territory Aboriginal communities.
Such powers went beyond those lawfully sanctioned for the broader community.
A 2009 report that looked at policing in Northern Territory Aboriginal communities by the North Aboriginal Justice Agency and Central Australian Legal Aid Service identified frequent complaints about needless police searches of Aboriginal people’s houses without their permission.
This was due to police exceeding their powers as well as the extension of powers under the Intervention legislation.
Different rules for Aboriginal people
The Intervention legislation enabled police to search Aboriginal homes as if they were a public space.
The 2009 report cited Yuendumu, where Walker died, as an example of an Aboriginal community where private space is highly regarded with strict rules around who can enter certain spaces.
Aboriginal people told the researchers that they were concerned with police trespass of homes due to their increased “power to intrude into the lives of Aboriginal people as compared with non-Aboriginal people”.
The report cited one comment that reflects a wide perception that police entering homes is a breach of general laws and legal rights:
“Some people not happy about police. Meeting a couple of months ago, shouting at them to go away. Because police coming into houses without warrant paper. That’s against our law.”
The legislation, previously the Northern Territory National Emergency Response Act 2007, now the Stronger Futures in the Northern Territory Act 2012, enables police to enter a house without a warrant and apprehend a person if they reasonably believe that someone is drunk in their home.
Earlier this year, an Aboriginal woman in the relatively larger Northern Territory community was breath-tested and arrested for drinking alcohol in her home.
Not just an NT problem
The policing of homes and ensuing deaths in custody are not unique to the Northern Territory, but have occurred Australia-wide.
Deaths in custody have been set in train through policing homes and apprehending residents, as was the case with 22-year-old Yamaji woman Ms Dhu from Port Hedland in 2014, and the fatal shooting of 29-year-old Yamatji woman Ms Clarke from Geraldton in September this year following the police attending her home.
Other Aboriginal people who died due to the policing of homes include 44-year-old Mark Edward Mason in Collarenebri in NSW in 2010 and 31-year-old Patrick Fisher in Sydney last year.
The shooting of Kumunjayi Walker reveals that there are no spaces free from policing for Aboriginal and Torres Strait Islander people.
Even on the edge of the Tanami Desert on Aboriginal Land, Aboriginal people are vulnerable living in a policing archipelago where the constraints on life “outside” police custody are potentially as harsh as those on the “inside”.
Unless there are clearer protections against police powers and accountability for police officers responsible for fatal actions, Aboriginal people will continue to be under siege in their own homes.
Thalia Anthony is an associate professor in the Faculty of Law at the University of Technology Sydney, with a focus on Indigenous people and the law.
*An earlier version of this story said the royal commission had been unable to investigate David Gundy’s death.
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November 14, 2019 12:27:40
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