Chapter 4Police culture and practices
4.1In 2019, Canada's National Inquiry into Missing and Murdered Indigenous Girls and Women released its final report, that stated:
Overwhelmingly, the families who testified before the National Inquiry were seeking answers to perceived flaws in the investigations into the loss of their loved ones. They discussed many ways…in which they felt that police services had failed in their duty to properly investigate the crimes committed against them or their loved ones, leading ultimately to a failure to obtain closure and justice within the existing system.
4.2Similarly, in 2020, theWiyi Yani U Thangani(Women's Voices) project (seeChapter 3) reported that there is an urgent need to improve crisis responses when lives are threatened by harmful behaviours. However, the former Aboriginal and Torres Strait Islander Social Justice Commissioner, Ms June Oscar AO, stated:
…reforming police practices and behaviours is not happening at the pace or scale required. Women and girls…are distrusting of the police and are not reporting harms, believing that the police response will cause them further harm…They have raised serious concerns about the discriminatory attitudes of police toward them. They have discussed how these attitudes result in police normalising violence against our women and children, disbelieving or disregarding issues reported, or lacking urgency and failing to intervene in violent incidents.
4.3Mr Gary Jubelin, a former homicide detective with the NSW Police Force, acknowledged that ‘not all murders can be solved’. However, Mr Jubelin stated that ‘what law enforcement bodies can do is bring some comfort to the families by ensuring and demonstrating that everything that can be done will be done.
4.4This chapter primarily examines the following matters:
investigations into the deaths and disappearances of First Nations women and children, compared to their non‑Indigenous counterparts; and
police policies and practices to investigate missing persons reports and homicides, and to reduce violence and increase safety, for First Nations women and children.
Policing practices
4.5Participants in the committee's inquiry argued that police forces do not appropriately engage with First Nations people. Theirevidence highlighted instances of:
delayed responses to reports of missing and murdered First Nations people;
inadequate responses to reports of domestic violence from First Nations women; and
discriminatory and racist attitudes towards First Nations people.
4.6That inappropriate engagement has contributed to a reluctance on the part of First Nations people to report matters to police. For example, the Women's Legal Service NSW suggested that First Nations people mistrust state agencies due to historical experiences of mistreatment:
Experiences of structural violence, abuse, neglect and exploitation perpetrated by State actors against First Nations people often means there is a reluctance and mistrust by First Nations women in reporting gendered violence and abuse perpetrated against First Nations women and children to police and other government departments. First Nations women fear removal of their children, misidentification as the predominant aggressor and criminalisation often stemming from misidentification or crimes committed in the context of seeking to numb the pain of intergenerational trauma.
4.7Whilst a homicide detective, Mr Jubelin was involved in re-investigating the Bowraville murders which have been referred to in this report (see Chapter 3). His firsthand experiences evidence the reason for the distrust between First Nations people and police services:
I first saw injustices faced by First Nations people when I led a reinvestigation into the Bowraville murders. This related to the disappearance and murder of three Aboriginal children in Bowraville over a five-month period in 1990-91. I led a reinvestigation in that matter from1997. In 2014 I gave evidence to the New South Wales parliamentary inquiry into the…response to those murders. This is just a portion of the evidence where I stated:
It is very nice for society to say that all victims are treated equally. Unfortunately in this situation I do not think that is entirely correct…[R]ace and, to a lesser degree, socioeconomic factors have impacted on the manner in which these matters have been investigated. That's the evidence I gave in the inquiry into the Bowraville murders, but sadly the family have still not got justice for the murder of their children.
Delayed responses to reports of missing and murdered First Nations people
4.8The Australian Human Rights Commission (AHRC) commented on the time that it takes police to action reports of missing and murdered First Nations women and children.
4.9The Victorian Aboriginal Legal Service (VALS) submitted that there is a 'casual' attitude and response towards reports of missing First Nations women, compared to non‑Indigenous reports:
This casual approach to missing Indigenous women often results in critical timeframes for investigation being missed, thus lowering the chances of discovering evidence about their whereabouts.
4.10In relation to reports of domestic violence (DV), the Aboriginal Legal Service (NSW/ACT) similarly reported:
…Aboriginal women and children are less likely to receive effective support from police—even during times of crisis. A 2022 study found that in a high proportion of fatal domestic violence cases involving Aboriginal women, police either did not provide effective assistance or failed to respond at all to calls for assistance. Furthermore, in instances where police did respond the impacts were often found to be harmful by the victims.
4.11Change the Record and Djirra contended that police services do not allocate timely or sufficient resources for investigations into the disappearance and/or murder of First Nations women and children.
4.12To illustrate this argument, the Jumbunna Institute for Indigenous Education and Research (Jumbunna) referenced the Bowraville murders (see Chapter 3). Itargued that the NSW Police Force did not treat the first child's disappearance as a potential homicide, which resulted in delayed inquiries (including with the key suspect) and potentially also the murder of two other children. Ultimately:
This failure of the NSW Police Force to properly resource and conduct a homicide investigation into the murders has left the families in the traumatic position of engaging in over thirty years of advocacy seeking justice for their murdered children.
4.13The National Aboriginal and Torres Strait Islander Legal Service (NATSILS) stated that, when police investigate reports of missing First Nations people, 'theresponse has too often been that they are itinerant in any event and have probably just gone “walkabout”’. NATSILS highlighted examples of cases in which police did not respond for hours, days or weeks to reports of missing First Nations women and children.
4.14In this regard, Mr Jubelin, retired Detective Chief Inspector of the New South Wales Police Force with over 25 years as a detective investigating homicides, said:
From an investigative point of view, the critical time in any investigation is when the matter is reported. Sadly, in these types of matters, that response is quite often not adequate. I think education and training play a key role in fixing the disparity between how investigations are run depending on who the victim is. We need to ensure that all victims, and this is a fairly obvious statement, are treated equally regardless of race or socio-economic standing.
4.15Australians for Native Title and Reconciliation (ANTAR) and the Australian Lawyers Alliance (ALA) described this 'neglect' as typical under-policing for First Nations victim-survivors of DV in the Northern Territory. They described the case of a 49‑year old woman who, prior to being murdered in 2021, had contacted the NT Police Force for assistance 18 times over two years.
4.16The Aboriginal Peak Organisations for the Northern Territory referred to the findings of the coronial inquest for KwementyayeGreen. Ms Green was a repeat victim of domestic and family violence. In his findings:
Judge Greg Cavanagh found that massive failings and lethargy at all levels of policing led to an inadequate and protracted investigation that prevented the perpetrator being charged of any offence. Judge Cavanagh drew comparison to a number of Aboriginal and non-Aboriginal murder victims to emphasis [sic] the discrepancies found in police investigations and highlighted the similarities in the Stephen Lawrence inquiry that found institutional racism to have influenced police performance and failings.
4.17Ms Antoinette Gentile, Acting Chief Executive Officer of Djirra, argued that many First Nations women's deaths have not been properly investigated: ‘it is likely, therefore, that some of these deaths have been mis-recorded as suicides or accidents’.
4.18ANTAR and the ALA suggested that First Nations families and friends are often compelled to take matters into their own hands. In South Australia, for example:
Where police are perceived as being more likely to delay response times or resources for investigating missing persons cases, First Nations victims' families turn to their own resources prior to seeking police assistance.
4.19The Ngaanyatjarra Pitjantjatjara Yankunytjatjara (NPY) Women's Council suggested that 'work volume supersedes the time and skills needed to adequately investigate reports of missing and murdered women'. The Council emphasised that First Nations women could actually assist the police, if the time were taken to establish relationships of respect and trust:
Kunmanara Smith also speaks to the skills of Aṉangu such as reading tracks and the interconnectedness of community that could be of benefit in assisting police with their investigations. However, this requires a commitment to working together, prioritising safety, respecting cultural expertise and having a relationship of trust. These values all form part of [our] guiding principles and are integral to Aṉangu ways of working and provide a vision for how cross-cultural practices could look like.
4.20There is also the need to keep families informed as an investigation continues. Again, quoting from Mr Jubelin who has extensive experience in this regard:
Finally, I'd just like to say that in my observations as a police officer, working in the media and when I'm contacted by First Nations families about their concerns about investigations, it's quite often because they're not informed by police. They're not updated, they're not treated with the respect that they should be given, and they're not kept informed about what the investigation is. Because of the historical difficulties in the relationships between police and First Nations people, often the First Nations people are concerned that the investigation is not being treated properly, and quite often, in cases that I've looked at, work was being done, but the families weren't being informed…
I think the communication from the police needs to be keeping the families informed on the progress of the investigation. I've had, and I'm not exaggerating here, countless First Nations families say: 'Could you just help us? We're just not getting any feedback from the police.'
I think because of the distrust between First Nations people and police—and it goes both ways—the onus is on the police to probably go a little bit further than they do on other investigations to reassure the families that everything that can be done is being done.
Also, when we talk communication, we need to be aware of something I learnt through my experiences in Bowraville. I turned up to Bowraville thinking, 'There aren't going to be any communication barriers.' You talked about cultural awareness and cultural competency. I was naive to the fact, and I had to learn a lot of things, including the way that you communicate with Indigenous communities and how you can sit down and have a conversation. I think police have got to look at the way that they keep the families informed and acknowledge that there are subtle differences that they need to adapt their approach to when dealing with these families so the families are still confident that the police are genuinely putting the best effort they can into working on the crimes that have been reported.
Responses to domestic violence
4.21Information presented to the committee raised concerns about how police forces respond to DV in First Nations communities. In 2022, the Central Australian Aboriginal Congress' (CAAC) Acting Chief Executive Officer, Dr Josie Douglas, noted in response to the Australian Broadcasting Corporation's Four Corners program (see Chapter 2):
We are very concerned that too often the policing and justice systems fail to protect Aboriginal women by not taking their report and concerns about domestic violence seriously. As we saw on Four Corners, Aboriginal women are reporting domestic violence. They should receive the same level of protection and response as any other Australian citizen.
4.22Multiple submitters and witnesses argued that police fail to respond professionally, courteously and appropriately to First Nations women’s reports of missing persons and DV and, in some cases, misidentify women as the perpetrators, rather than as the victims.
4.23The Law Council of Australia (Law Council) explained:
…First Nations women who experience violence are more likely to engage in resistant behaviours and to use retaliatory violence as a survival method. Consequently, when police respond to a single incident of violence, there may be a significant risk of police misidentifying the victim and the perpetrator.
4.24On this point, Ms Gentile particularly emphasised the need to focus more on serial perpetrators of domestic, family and sexual violence (DFSV), so that police attending a call out can identify who is the perpetrator of violence. She provided the following example:
Djirra's individual support services recently supported a woman whose perpetrator had been listed as the respondent in 17 prior family violence intervention orders that protected six different women. More needs to be understood about the increased risk to, and vulnerability of, Aboriginal women in circumstances where men have perpetrated violence before.
4.25The Law Council explained that misidentification results in a heightened level of distrust of the legal system among First Nations people:
This means, for example, that women in custody have often not told police, lawyers or the court about the violence they have experienced, including violence materially relevant to their charges and their defence. The Law Council notes that 'distrust is particularly apparent in the family law sphere, fuelled by policies relating to the forced removal of children and current patterns of engagement with the child protection system'. This creates a major barrier for women seeking help when experiencing family violence, and further creates intergenerational distrust and trauma, perpetuating further violence.
4.26Ms Meena Singh, Commissioner for Aboriginal Children and Young People at the Commission for Children and Young People (Victoria), said:
Lots of people in our community fear the police. We don't trust the police. We don't see them as a safe place to go. There are, unfortunately, because of other circumstances of our history, other roles that are often seen as not to be trusted. How do we create trust in those relationships? How do we create relationships before the need arises [see ‘Building relationships and trust’ from paragraph 4.77]?
Misidentification of perpetrators
4.27Change the Record and Djirra shared concerns about the 'common' and high level of misidentification of First Nations women as perpetrators of violence. They referenced a 2017 Queensland Domestic Violence Death Review and Advisory Board report that found 'in nearly all domestic and family violence related deaths of First Nations people, the deceased was recorded as both a respondent and as the victim prior to the death'.
4.28The VALS concurred that, 'police and courts take action against victim‑survivors of abuse instead of perpetrators' with alarming frequency (such as in the case of Ms Tamica Mullaley, see Chapter 3).
4.29Australia's National Research Organisation for Women's Safety (ANROWS) advised that police and the legal system can misidentify the people who are most in need of protection:
Victims and survivors who use self-defence against perpetrators of domestic and family violence or engage in couple fighting can be misidentified as a perpetrator of family violence by police and the legal system. Inaccurate identification of the person most in need of protection in these cases can result from incident-based policing approaches that focus on individual incidents of abuse (mostly physical) instead of patterns of behaviour in the broader context of the relationship, and by misconceptions around the stereotypical or “ideal victim” presenting as submissive and powerless. Asgendered stereotypes intersect with systemic racism, Aboriginal and Torres Strait Islander women are particularly vulnerable to decisions based on stereotypes around what the ideal victim should look like.
4.30Ms Christine Robinson, Chief Executive Officer at Wirringa Baiya Aboriginal Women's Legal Centre, similarly highlighted that First Nations women are not seen as ‘good victims’:
Some of the issues that we see with reporting include that we're very often regarded as a bad victim. Who is a good victim and who is a bad victim? Responses are different depending on whether or not the person has been affected by drugs or alcohol. Sometimes those people are dismissed because they've been on either one of those. Their family may be involved with the police quite a lot for criminal activities. One brush covers the whole family.
4.31Professor Larissa Behrendt AO, Professor of Law and Director of Research at Jumbunna, also remarked on the media’s portrayal of First Nations women and children (also see Chapter 5):
…a big part of the problem is that it seems there's a sense amongst the mainstream media that the sensationalism about high crime rates and the danger of crime is a much more important story—and a bigger and more popular story—than the stories of victims, especially victims who don't meet a particular white racial stereotype.
4.32The North Queensland Women's Legal Service (NQWLS) described the misidentification of First Nations women victim-survivors as perpetrators as 'terribly unjust' and discussed the result of incident-based policing:
Misidentification often occurs in the face of long histories of police involvement where the other party has been the aggressor. It is a terribly unjust situation that after enduring years of abuse and violence when these women eventually react to the abuse or defend themselves, they are met with the full force of the justice system and named the perpetrator. Essentially, these women are criminalised for using techniques to survive violence being perpetrated against them…Without a dominant-aggressor framework being universally used by police and courts and extensive specialised training undertaken, erroneous conclusions based on the most recent incident alone will continue to be made.
4.33ANROWS argued:
Misidentification can also increase a victim's and survivor's vulnerability to further manipulation by the perpetrator. For example, in cases where a victim and survivor is misidentified, the perpetrator can engage in systems abuse, such as by providing misleading statements to police.
4.34The NQWLS explained with this example:
One First Nations client we helped had two young children and had been controlled and subjected to ongoing emotional, physical, and sexual abuse throughout her relationship with a much older non-Indigenous man. Their relationship had commenced when she was 15 years old. Despite our client being the one to call for help, her partner successfully convinced the police who attended an incident that she was the perpetrator and had her charged for assault.
4.35The North Australian Aboriginal Family Legal Service submitted that misidentification leads to the overrepresentation of First Nations women in data on domestic violence order (DVO) breaches. Itnoted that the Northern Territory's mandatory sentencing laws result in custodial sentences for the victim-survivors whom the legislation is intended to protect:
…across the states and territories most people that are found guilty of breaching a DVO are generally given non-custodial sentences. In the Northern Territory, however, the majority (71%) received a custodial sentence (due to mandatory sentencing). Many of those sentenced would be Aboriginal women. This strongly indicates that laws in the Northern Territory aimed at protecting victim-survivors are directly failing Aboriginal women.
4.36Ms Caitlin Weatherby-Fell, Chief Executive Officer of the Top End Women's Legal Service, explained that women's legal services are currently the only legal services that are able to provide dual legal representation for women who are defendants and applicants on a DVO application.
4.37In 2018, the Law Council’s Access to Justice project found that 'mandatory minimum sentences which have a discriminatory impact on Aboriginal and Torres Strait Islander peoples should be repealed'. The project found that the law should recognise the specific circumstances of First Nations women:
Aboriginal and Torres Strait Islander women offenders have a distinct criminogenic profile that should be recognised and reflected in criminal justice policies and procedures. Priorities in this area include diversionary options, community-based prevention and early intervention support programs that facilitate healing, holistic family support programs, education and training programs, bail reform, specialist family violence courts and culturally safe programs for women in prison and exiting prison.
The imprisonment of a primary caregiver can be highly detrimental to the development of children, and may lead to intergenerational interaction with the prison system. This suggests that sentencing guidelines could be reviewed to ensure adequate consideration.
4.38The Northern Territory Council of Social Services articulated a link between the misidentification of perpetrators and the incarceration of First Nations women:
The typical prisoner in Alice Springs Women's Correctional facility is an Aboriginal 30 year-old woman, with children, incarcerated for 'act intended to cause harm' and has been subjected to violence and abuse. These are women who needed support and have ended up being criminalised and incarcerated. The over-policing and under-policing are two sides of the same issue—which is that Aboriginal women are not considered 'true victims'—and have the same impact—a significant barrier to Aboriginal victim-survivors of violence seeking help.
4.39Mr Martin Hodgson also discussed the over-policing and criminalisation of First Nations women. He suggested that in many cases the women were criminalised for 'trivial matters or issues that would have been far better dealt with by healthcare workers'. That criminalisation increases 'their vulnerability to those who would prey on them'.
4.40Some submitters discussed recent legislation in New South Wales and Queensland that criminalises coercive behaviour towards current or former intimate partners. The NQWLS considered that the Domestic and Family Violence Protection Act 2012 (Qld) can increase the safety of First Nations women and children. However:
...the [Act] is only a tool and its implementation and effectiveness come down to individuals and the systems they operate in. [Queensland Police Service, QPS] officers must be willing to issue [Police Protection Notices] and apply for protection orders, even at times without the cooperation of victims; and magistrates must interpret behaviour as domestic violence (not always straightforward especially when it comes to coercive control) and to identify future risk. In the event of conflicting stories or mutual violence, both the court…and QPS…have an obligation to identify the person most in need of protection.
4.41Ms Ozanne-Pike acknowledged, however, that Queensland legislation has now changed to require the court to identify the person most in need of protection:
…the new provision in the protection order act, now encompasses ideas that victims may use violence. They may use violence in self-defence or in retaliation. They may use violence after the cumulative effects of the violence used against them...[T]hat's a big step forward that the Queensland government has taken…I'm told that the police have amended their manual accordingly. So, when they're presenting at incidents, they should be looking from a holistic viewpoint rather than an incident based one, to really work out what's going on and who's the person most in need of protection.
4.42The Domestic Violence Legal Service representative Ms Zara O'Sullivan informed the committee that the Domestic and Family Violence Act 2007 (NT) has similarly changed, however, it 'still involves the person engaging in the court process'.
4.43Acting Assistant Commissioner Sachin Sharma from the NT Police, Fire and Emergency Services explained that the Domestic Violence General Orders now embed that the person most in need of protection is the one who is subject to the greatest amount of harm:
It is not necessarily the person who is showing anger in this particular moment or upset while the other party is not. So they should see beyond that. These are the aspects we have started to train for. It goes into saying that such harm may be due to any number of abusive behaviours, including physical and/or sexual violence, coercive control, threats, intimidation, emotional abuse, stalking and isolation.
4.44ANROWS argued that the legal system needs to distinguish between couple fighting and coercive control in First Nations communities, or unnecessarily risk 'bringing First Nations women engaging in incident-based violence into the legal system'. It suggested:
To avoid the over-incarceration of First Nations women, [there needs to be] a consistent definition of [domestic and family violence] across legislative and policy settings Australia-wide that sets the context for how to understand coercive control as a gendered, overarching context for a range of [domestic and family violence] behaviours. It is vital that this definition makes it clear that physical and non-physical aggression between couples is not necessarily coercive control.
4.45The Australian National University's Law Reform and Social Justice Research Hub expressed reservations about the outcomes of coercive control legislation:
Without adequate policing training that dismantles…unconscious racism and sexism in domestic violence scenarios and with the combined deep consultation from First Nations representatives, coercive control will fail to have the holistic approach it seeks to achieve.
4.46The VALS observed that, as coercive control is so complex, there is:
…a high potential for police to misinterpret self-defensive actions or coping mechanisms as forms of abuse. Refusing to talk to someone who persistently emotionally degrades you, or verbally abusing someone in reaction to that abuse, could be misidentified by police as tactics of coercive control.
Discriminatory and racist attitudes
4.47The committee received information that authorities continue to hold discriminatory and racist attitudes, which impede investigations of missing and murdered First Nations women and children. For example, the AHRC commented on the 'discriminatory treatment of First Nations women and children by the policing and justice systems throughout Australia'. It saw this as:
…an ongoing problem…that manifests as a range of acts and omissions that undermine equal enjoyment of human rights. Within this, there are clear and documented instances where discrimination has taken the form of substandard investigations into missing and murdered First Nations women and children.
4.48The Partnership for Justice in Health reported on accounts from First Nations families that consistently show:
authorities fail to respond to our concerns
calls for help are dismissed and ignored
when reporting violence or persons missing, we are met with claims that the victim is 'itinerant' or has 'gone walkabout'
the concerns of our women, children and communities are not listened to or considered worthy of investigation.
In essence, whilst seeking help during the most vulnerable of times our people are subjected to negligence, further violence, trauma and harm…Time and time again, our people are criminalised or perceived as the problem while authorities working in our public institutions are not held to account for failing to do their jobs to care, protect and serve.
4.49Other submitters and witnesses agreed that there is systemic racism within police forces, as evidenced by police behaviour and responses to First Nations women. At Toormina (NSW), Ms Rachael Cavanagh stated that First Nations women:
…quite often get turned away and not taken seriously, or they are questioned about their behaviour and what they're doing. Responses from the police are very much, 'Oh, yeah, we know that house; they drink a lot,' and they don't turn up. There are situations where women are lying in the gutter, absolutely traumatised, and children are standing around their mothers, and the police are like, 'Yeah, we'll turn up when we do,' and sometimes they don't turn up at all. There are parts of our community that police just won't go into after a certain time in the evening.
4.50Jumbunna referred specifically to the 1990–1991 murders of three children at Bowraville, New South Wales (the Bowraville murders). It suggested that the way in which the NSW Police treated the families and investigated the murders was 'ablack/white issue':
Racial prejudice played a key role in the failures of the Original Investigation. At the outset, family members' attempts to report Colleen, Evelyn and Clinton missing were not taken seriously by the local police. Police officers responded to the families' distressed calls for action with racist remarks suggesting that the children, including four-year-old Evelyn, had 'gone walkabout', or that the families themselves were somehow responsible for their children's disappearances. In the case of Colleen, the Bowraville police took three months to take an official statement from her mother. Evelyn's mother was treated as a suspect from the beginning, with police suggesting that she was an unfit mother and that she had sold her daughter. Despite being the third child to go missing in a five-month period, Clinton's disappearance received limited attention from the Bowraville police, and 'the search was principally shouldered by his family'…Michelle Jarrett argued that 'if the police had have listened to Colleen's family, Evelyn and Clinton might still be with us…If they had done this properly in the first place, we wouldn't be sitting here all these years later'.
Following Clinton's disappearance, the Child Mistreatment Unit was assigned to the case, and the families were subjected to further blame and racially-driven stereotypes regarding their capacity to care for their own children. The families have long held the belief that if Colleen, Evelyn and Clinton had been white, the investigation would have handled completely differently.
4.51The VALS similarly argued that the investigation clearly treated the murdered First Nations children and their families as less important than non-Indigenous people:
The murders were initially poorly investigated, and evidence was “pursued with no great urgency”. The police began investigating the families' circumstances, with a view that the families themselves were in part responsible for the murder of the children. The families of the children continue to seek justice for their babies and continue to advocate for the investigation to be properly conducted...These failures by police make it clear to First Nations people that in the eyes of the police Aboriginal children are less important than non-Indigenous children.
4.52Ms Delphine Charles, sister-in-law of one of the murdered Bowraville children, commented:
I don't think the police who investigated Clinton's death cared. They didn't care because he was black. If they had done their job and investigated properly at the time, we would not have to keep fighting for justice. We see other kids go missing and their disappearances are taken seriously. The fact the police thought our kids had gone walkabout shows the prejudice that they had about our case.
4.53Jumbunna’s Professor Behrendt advised that the Bowraville murders illustrate how historic forces continue to 'lift contemporary outcomes':
…when they are concerned that something has happened to their children, there is a failure of systems to take them seriously. There was endemic prejudice in the way the police treated the families, which was deeply shrouded in racist assumptions… The biggest tragedy…is that those failures in the original investigation have not been able to be cured. The fact that the families are still fighting today for justice for their children is as a result of those failures. The fact that the system has not been able to address that and acknowledge that these terrible mistakes were made with devastating consequences to the families is a real indictment on the system.
4.54The National Justice Project discussed the views of the Smith family (seeChapter 3):
The family of Mona and Cindy believe that the investigation that followed the deaths of their loved ones would have been conducted differently had it been two non-Indigenous girls found on the side of the road.
4.55Professor George Newhouse, Chief Executive Officer of the National Justice Project (NJP), which has been assisting the Mullaley family, stated that there is a structural problem with police forces across Australia:
Like other police forces in our nation, the Western Australia Police Force has a military command structure. The WA police are focused not on the individual but on the 'community'. To the WA police, like most others around our nation, the community is people who look like them.
4.56Professor Newhouse pondered how police forces can be encouraged to see individuals at the heart of each First Nations interaction. In his view, you cannot appeal to police on the basis that the victim is a human being because often the victim is also a perpetrator, and police see the perpetrators as the 'baddie':
On the night that George Campbell disappeared, he was in a high-speed police chase. He's a baddie—that's the logic. So when the family are saying: 'Could you please go looking for him? The river's up, and he was last seen by the river?' there's not the same level of empathy. It's part of the culture of policing. They need to have some focus on the individual, even the perpetrator…There needs to be a duty of care on police to investigate. Police know they have no duty of care...So it's not something that they're taught to care about. There does need to be a real cultural shift in policing to address that issue. Not every young kid who's in a high-speed chase is evil. And when they go into a river, you need to go and look for them…With hospitals and health care, you can actually convince the system to focus on the individual. It's harder with police.
4.57Professor Newhouse and Professor Craig Longman, Professor of Practice at Jumbunna, told the committee that police services do not acknowledge that there is racism within their organisations. Professor Longman ruminated:
[H]ow do we deal with racism in Australia? What we probably do need among some of those institutions, like the police, is much more courage to just say, 'Yes, something is deeply wrong here; this is not the version of policing we want to be doing'.
4.58Mr Brendan Thomas, Deputy Secretary, acknowledged that 'in the Department of Communities and Justice, racism is a problem' and has been for some time:
Every year in New South Wales there's a survey that's done of staff right across the Public Service... In our department, quite a significant proportion of staff talked about experiencing racism in the workplace as a key issue for them, particularly Aboriginal staff…As a result of that, I led a task force inside the department to look at the nature and scope of this problem in DCJ and what we are going to do about it…That task force concluded its examinations earlier this year. We've developed…a strategy that we've got to really try and root racism out of the organisation.
4.59Mr Thomas said that there is not a lot of evidence about effective strategies to eliminate structural racism within organisations. However, for the department, a number of profound changes are required, the first of which is:
…a truth-telling process where we're openly talking about racism in the organisation and we give people the opportunity to do that in a safe way so that it does come out and there's nowhere to hide from the racism in the organisation. Weneed a profound change to the way we deal with those things when they do come out. Racism is not an interpersonal dispute, and it can't be dealt with that way. It needs to be dealt with properly and effectively as the awful, pernicious problem that it is.
4.60Systemic racism and discrimination have been identified in other Australian jurisdictions. For example, in 2022, the Queensland Government established an Independent Commission of Inquiry into Queensland Police Service responses to domestic and family violence (the Commission). The Commission's report (the A Call for Change report) stated:
…the Commission has found clear evidence of a culture where attitudes of misogyny, sexism and racism are allowed to be expressed, and at times acted upon, largely unchecked. Where complaints in relation to such treatment are brushed aside or dealt with in the most minor of ways and those who complain are the ones who are shunned and punished. It is hardly surprising that these attitudes are reflected then in the way that those police who hold them respond to victim-survivors. It is a failure of the leadership of the organisation that this situation has been allowed to continue over many years unchecked.
4.61Some inquiry participants highlighted the intersectionality of the discrimination experienced by First Nations women. For example, Dr Jennie Gray, Chief Executive Officer, Women's Legal Service WA, referred to the 'fundamentally different' way First Nations women experience family, domestic and sexual violence (FDSV):
To understand family violence in Aboriginal communities, we must take an intersectional approach and understand and accept that racism, intergenerational trauma and history, socioeconomic disadvantage, poverty, geography and gender all impact on First Nations women's experience of [FDSV]. When considered alongside ageism, disability discrimination, classism, homophobia and transphobia, all of which exacerbate experiences of violence, only then can we begin to comprehend the additional barriers and risks for First Nations women.
4.62The Queensland Aboriginal and Islander Health Council (QAIHC) contended that Priority Reform 3 of the National Agreement (Transforming Government Organisations) recognises the need to identify and eliminate institutional racism within government organisations. It expressed concern about implementation of this reform:
QAIHC is concerned about the progress toward implementation of this priority reform, noting that the Annual Data Report released by the Productivity Commission in July 2022 states that progress on priority reforms cannot yet be reported and that developing measures to report on progress is currently in early stages.
4.63On 5 September 2022, a coronial inquest into the death of Kumanjayi Walker commenced in Alice Springs. The inquest heard evidence of communications between NT police officers that were 'described as 'threatening' and 'blatantly racist''. DrIan Freckleton AO KC, representing the NT Police Force, 'told the coroner the messages were 'repugnant' and 'do not represent the values of the Northern Territory Police Force or of most members of that force''.
4.64Commissioner Michael Murphy APM stated that 'inquiries will be undertaken' in relation to allegations of racism within the NT Police Force. Those inquiries could involve an investigation by the NT Independent Commissioner Against Corruption.
4.65Ms Karen Iles, Director and Principal Solicitor of Violet Co Legal&Consulting, reflected on the outcome of this discrimination. Sheinformed the committee that 'the issue of unresolved trauma caused by a complete lack of access to our justice system—a system that is gate-kept by police—comes up a lot' in her work with First Nations communities.
4.66Ms Iles contended that, while there are professional police officers who perform their job without discrimination, First Nations people will continue to distrust police forces until systemic discrimination and racism are addressed:
Of course there can be training, and there has been for decades. Of course there are individual police officers who are doing a fabulous job, and I'm sure that those First Nations officers who are sitting behind me in this inquiry today are doing a fabulous job. However, inquiry after inquiry finds that, systemically, the police force consists of sexist, misogynist and racist culture. We can never get justice. Until that is resolved, police are not safe for many Aboriginal and Torres Strait Islander victims and their families to deal with.
4.67More broadly, Ms Patty Kinnersly, Chief Executive Officer of Our Watch, said that ‘very little of our work will end up taking purchase’ until such time as ‘we challenge systemic racism across the country’:
Until we are in a position where our systems are not systemically retraumatising Aboriginal and Torres Strait Islander people by being inherently racist…[T]he retraumatisation and intergenerational trauma will continue to exist while in this country we are not dealing with systems of oppression in practical and genuine ways and holding people to account. It's hard for us to unpick that, because as a community that still sees itself as a non-Aboriginal community, we don't like the inference that our systems are inherently racist or discriminatory…[W]e need to change the soup that we all live in.
4.68Ms Singh shared this view:
…there's a whole mindset about Aboriginal people and, in particular, Aboriginal women and Aboriginal children that this country has had cultivated since day 1 of invasion…It's about how this country sees Aboriginal women and Aboriginal children not as equals to every other woman and every other child and every other being in this country, worthy of protection, love and safety and all of the things— worthy of potential, care and investment.
Australian police services
4.69Former NSW police officer Mr Jubelin expressed a view that ‘police are making an effort to improve their response to First Nations related matters but there is still room for improvement’. He added:
…quite often in policing we make progress in relation to how we deal with these matters, but then the ball's dropped when another issue becomes the priority within the policing organisation...[E]ducation and training play a key role in fixing the disparity between how investigations are run depending on who the victim is. We need to ensure that all victims, and this is a fairly obvious statement, are treated equally regardless of race or socio-economic standing.
4.70Police services advised that their policing responses do not distinguish between First Nations women and children and their non‑Indigenous counterparts.
4.71Mr Peter Crozier, Deputy Chief Police Officer for ACT Policing at the Australian Federal Police (AFP), said that 'if a matter is reported…there is no difference in the way that police should respond…The service that we provide the community has to be provided to all equally'.
4.72Superintendent Christopher Nicholson, Commander, Crime Prevention Command in the NSW Police Force, similarly stated:
With regard to racism, the NSW Police Force does not and will not tolerate racism, discrimination and bias within its ranks. We commit to treating all persons within New South Wales with dignity, fairness and respect…Whilst we acknowledge much work is yet to be done, progress is being made through listening to your voices, learning from past mistakes and embracing a shared vision for a safe and inclusive relationship between the NSW Police Force and the New South Wales Aboriginal and Torres Strait Islander community.
4.73Superintendent Nicholson refuted that racism is rife within the NSW Police Force: 'that behaviour is absolutely not tolerated'. He described the role of the Police Aboriginal Strategic Advisory Council (PASAC), comprised of senior public servants and non-government organisations:
They conduct an inward look at how we do the business. We put ourselves out there openly and transparently to them as part of what we're doing in terms of our structure, our framework, our training and our people strategy et cetera. [The Australia New Zealand Policing Advisory Agency] arrangements are built into our PASAC arrangements.
4.74Superintendent Kerry Johnson from the Queensland Police Service recognised that some First Nations communities mistrust police:
Some communities we work really well with, and in other communities there are tensions and there are issues. I would concede that across the board there are hits and misses—in some areas we do well and in some areas we don't…But as an observation around it—and I base it on the fact that we meet with the 15 discrete mayors and the two Torres Strait shire mayors twice a year—we have a lot of discussions. Do issues come out of that? Ofcourse they do. There is some genuine discussion that goes on there. SoI'm not going to say no to that, but I think that's a massive generalisation across the board, because there's a lot of communities where it works really well.
4.75Mr Crozier argued that police services:
…have to recognise some of the reasons why people may not choose to come forward to report matters to us. That is very much on the police. That is something that we need to recognise, and we need to recognise what we can do better to be able to encourage, to build the relationships, to understand some of the challenges that people may have, to create whatever form of trust we can to encourage people to think, 'Yes, the police are here to help us.' So that certainly is on us. I can only speak for ACT Policing and the AFP; I can't speak for the situation that occurs in other state and territory police forces. What I can say is that, speaking to my colleagues across the country, that is something we all recognise we need to do.
4.76Mr Jason Kennedy, Commander of Professional Standard at the AFP, also acknowledged that First Nations people consider that 'they receive a different type of police service' if they identify as Aboriginal or Torres Strait Islander. Heemphasised the need to build community trust, such as through the development of engagement protocols.
Building relationships and trust
4.77Mr Jubelin referenced specific community activities involving First Nations communities and the NSW Police Force (such as the work of Tribal Warrior in Redfern, Sydney). In his view, these types of activities are integral to breaking down barriers and increasing trust in police:
…if we look at the bigger scale and invest efforts into that type of community activity, breaking down the barriers, I think the rewards and the types of problems that we're talking about here will be overcome. It's hard to shift the culture in an organisation like a law enforcement agency. Butwe're all human, regardless of whether we're wearing a uniform or not. If we can break that down so relationships are built, then, when someone walks into a police station, someone in the police station might actually know the person or have spent time with the person, and therefore the report of the crime or potential crime is taken more seriously.
4.78Mr Phillip Hall, the Chief Executive Officer of the Bowraville Local Aboriginal Land Council, highlighted that police resourcing can also contribute to the problem, with a constant ‘migration of police’ in the local area: ‘these young police don't understand the situation of Aboriginal people. There's a big, big problem with that’.
4.79The AFP acknowledged that community engagement opportunities build trust, which enables police to work with communities to 'do things differently', however, 'one size does not fit all'.
4.80Ms Lesa Gale, Acting Deputy Commissioner Operations at the AFP, advised that the AFP is working towards fostering a diverse and inclusive organisation and culture. Its measures include the AFP's First Nations Advisory Board, atargeted First Nations employment strategy, and the AFP First Nations Unit:
The AFP First Nations Unit was established to promote full and unhindered First Nations participation in the AFP workforce, as well as to inform the provision of culturally competent policing services to the Australian community. The First Nations unit continues to work with external partners to develop a cultural competency program to enhance opportunities for First Nations people to share their lived experiences with non-First nations members.
4.81The NSW Police Force has an Aboriginal Strategy and Coordination Team within its Crime Prevention Command. That team 'provides a specialist cultural lens in the development of culturally considered corporate policy, training, information and engagement with Aboriginal communities'. Members of the team are identified Aboriginal personnel who are closely connected to their community. They consult with Aboriginal Community Liaison Officers and the Aboriginal Employee Network to develop training programs that address the needs of Aboriginal communities within NSW.
4.82The NSW Police Force also collaborates with First Nations communities through:
…97 Police Aboriginal Consultative Committees (PACC) which meet four times a year. These meetings are attended by Police, local Government and non-government agencies, and members of the local Aboriginal community. They provide opportunity for local Aboriginal people to raise issues and concerns in relation to crime and policing within their community.
4.83Mr Douglas from the Kempsey Local Aboriginal Land Council acknowledged that NSW Police has a consultation mechanism (the PACC). However, in his view, this mechanism is not producing any change:
I've found, with the number of committees that are formulated in our community—and it may be the same or a consistent thing in other communities—and that we get involved with, it's like you're put back in an eternal whirlpool and we're just talking about the same things all of the time. It seems like matters of real concern don't really get aired, even though they're spoken about much in each of those.
Police policies, guidelines and investigation practices
4.84Police representatives discussed the policies, guidelines and investigation practices that guide their work.
4.85The NSW Police Force advised that the Missing Persons Registry (MPR, formerly the Missing Persons Unit) operates under Standard Operating Procedures that were written in 2019. Detective Inspector Ritchie Sims, State Crime Command, MPU, described how police now respond to missing persons reports, including the use of a computerised risk assessment tool, whose assessment is then reviewed by a sergeant.
4.86Victoria Police submitted that its policies and procedures are published in the Victoria Police Manual. This manual sets out mandatory behavioural, operational and administrative standards, some of which are supplemented by related procedures and guidelines.
4.87Victoria Police advised that it does not have any policies, guidelines or investigative practices that specifically deal with missing or murdered Aboriginal women and children. However, a person's Aboriginality or ethnicity influences how officers approach an investigation, such as whether investigators seek cultural advice and knowledge from an Aboriginal Community Liaison Officer or Police Aboriginal Liaison Officer for assistance.
Reducing violence and increasing safety
4.88State and territory police forces variously commented on actions and initiatives that they have undertaken, or are involved in, to reduce violence and increase the safety of First Nations women and children. This section focuses on that engagement with First Nations communities.
4.89The Wiyi Yani U Thangani (Women's Voices) report states that a criminal justice system that evokes fear in First Nations women and girls cannot be a system that protects them:
Aboriginal and Torres Strait Islander women are calling for greater cultural competence of police and for a space where equal partnerships between community and police can be developed to create community-led solutions. They want to see creativity and collaboration to develop effective diversionary programs, alternative sentencing options, and justice reinvestment.
4.90The National Indigenous Australians Agency (NIAA) and the Attorney‑General's Department (AGD) reflected the concerns raised in the Wiyi Yani U Thangani (Women's Voices) report in relation to 'a lack of urgency, intent and competency during investigations', leading to unresolved cases.
4.91Victoria Police recognised that 'a culturally sensitive police response is integral to reducing violence and increasing the safety of Aboriginal women and children'. It identified specific guidance that supports its employees to respond appropriately to First Nations women and children affected by family violence. This includes the Police and Aboriginal Community Protocols Against Family Violence:
One of the key strategies to address family violence in Aboriginal communities are the Police and Aboriginal Community Protocols Against Family Violence (PACPAFV). The PACPAFV is a trilateral partnership between Dhelk Dja, the Aboriginal Justice Forum and VP that outline how police and community work together to best respond to family violence where a person identifies as Aboriginal. The Protocols ensure that at a family violence incident, police determine if any participant identifies as Aboriginal to ensure that people have access to a culturally safe referral and the choice of referral to either an Aboriginal or Non-Aboriginal support agency.
Cultural awareness training
4.92In 2021, the National Summit on Women's Safety (see Chapter 6) called for the National Plan to End Violence against Women and Children 2022–2032 (theNational Plan) to work on certain priorities. One such priority is to 'ensure there is training and workforce development across sectors such as police, justice systems, health care and frontline services'.
4.93The National Plan specifically recognises:
The legal and justice systems are not well adapted or informed to respond effectively to the interlocking and compounding forms of violence Aboriginal and Torres Strait Islander women experience. More work is needed to educate and develop the legal and justice systems, particularly at the frontline of policing.
4.94As noted earlier, state and territory police services have instituted cultural awareness training to improve relationships and trust with First Nations communities. The NSW Police Force provided further detailed information in response to questions on notice (also see evidence given to the NSW Coroner at paragraph 3.77), as did the Queensland Police Service.
4.95Police representatives also recognised that trust could be fostered through engagement programs that are tailored to local communities. For example, the AFP acknowledged that working with communities on self‑determined solutions presents opportunities to build trust:
Whether or not it's about police having guns going into certain communities or doing other things, or going in in uniform or plain clothes or whatever that would be, I think the best way for us to address it is not a one-size-fits-all. If there are options and we're working with community and liaison officers who are giving context on both sides, we've got some opportunities to do things differently.
4.96Ms Hilda Sirec, Acting Assistant Commissioner Northern Command of the AFP, highlighted how that organisation has engaged with communities in the Northern Territory to identify better prevention initiatives for those communities:
…for instance, tailoring our ThinkUKnow program so it's bespoke to the communities. In some of the communities, sport was a wonderful way to engage with children and elders, and other opportunities with art and creativity were another way. We identified that not one program will fit all. We really needed to engage with our stakeholders in those communities to tailor that.
4.97Acting Senior Sergeant Dylan O'Connor-Mitchell, Community Resilience and Engagement Command, NT Police, described how that command engages and works with communities:
My team in Darwin consists of First Nations police officers, from sergeants to constables to ACPOs, and then also ALOs. They will proactively go into the community. Obviously, a lot of them have grown up there; they have the lived experiences in the communities. They've already got the connections, as all First Nations people do. They inject themselves into programs like the Stars Foundation—or the Clontarf Foundation, which is focused on First Nations youth, women and men—to try to break down barriers and have positive engagements with police…We do a lot of not just community engagement but also going to big events or working with organisations. We do a lot of mediation.
4.98The AFP provides its recruits with mandatory 'Cultural Health and Competency Program (CHCP) online modules in addition to the Cultural Awareness training program'.
4.99The AFP submitted that, following a 2021 review by the Commonwealth and ACT Ombudsmen, its 'Cultural Connections' training will be replaced by a new stand-alone program that is specific and relevant to the First Nations community in the ACT region.
4.100The AFP recognised that more collaboration is required:
…across the Commonwealth, States and Territories to eliminate all forms of violence experienced by First Nations women and children…There is more work to be done, and the AFP acknowledges that our partnerships and close engagement with the First Nations community are critical to success in this space.
4.101ACT Policing representatives advised that officers receive ongoing training from recruitment. This is provided formally through independent contractors, as well as informally (experientially) by the First Nations Unit and First Nations Liaison Officers.
4.102Similarly, NT Police, Fire and Emergency Services discussed enhanced cultural awareness training, which aims to help assure First Nations communities that they will be heard:
Dr Brown and her team have been the central force behind the research and introduction of prevent, assist and respond training, which we call PARt. This is a five-day training course created by Tangentyere Council Aboriginal Corporation and delivered to all police recruits. In addition, 10 online PARt modules have been created and are in the process of being implemented for staff. Tangentyere is requesting government funding to provide ongoing delivery of the face-to-face program to police and health workers, but, in the meantime, we are funding it, and we have started delivering this training to our recruits.
4.103Victoria Police advised that 'foundation level training' is provided to recruits at the Police Academy, to instil the knowledge, skills and attributes required to work with Aboriginal community members when recruits begin their duties.
4.104In addition, from 2022, Victoria Police sworn employees (police and protective service officers) have been required to complete the Aboriginal Cultural Awareness Training package developed by the Aboriginal Community Liaison Officers:
This package addresses intricacies such as intergenerational trauma, Stolen Generation, appropriate identification of Aboriginal people and understanding kinship structures in the family violence context.
ACLOs and other Aboriginal employees across the State have been presenting the content and sharing their experiences. This process has been supported by the Divisional Training Officers. Planning is underway to video record Aboriginal employee's truth telling experiences to expand the program and minimise further trauma to Aboriginal employees.
Feedback from employees who have participated has been overwhelmingly positive of both the content and the integrity of the information that our Aboriginal employees are delivering to participants.
4.105Ms Nerita Waight, Chief Executive Officer of VALS, acknowledged Victoria Police’s initial induction training which is supplemented by mandatory training annually. She suggested:
…mandatory training and those refresher courses should also be focused on things that they need to work on, such as racism, gender, family violence and mental health…It's fairly important that it's not simple cultural awareness training but there is that focus on regular antiracism training, because they are two very different things.
4.106Superintendent Nicholson reported that the NSW Police Force learned lessons from Bowraville that have informed its cultural training program:
All police now receive mandatory training in cultural awareness…I will say that the experience and the lessons learned by the police force from Bowraville actually feature as a part of that cultural awareness package. In fact, I'm happy to say for the record that it is my belief that Bowraville features in all levels of our cultural awareness training.
4.107The cultural awareness training undertaken by police officers in NSW includes 'trauma informed practice and engagement with victims'. That trauma informed:
…training is delivered by identified Aboriginal personnel who either have lived familial experience or connection to the local community and a strong awareness of local trauma faced throughout the years of interactions with the NSWPF.
4.108Superintendent Nicholson explained that the training provided to NSW police officers goes beyond cultural awareness. He stated that the NSW Police Force has used the lessons from Bowraville to go:
…above and beyond what I would call cultural awareness. In our areas across New South Wales with high Aboriginal populations, we now have another two tiers of training on top of that. One is an induction package into those commands. The second is a deeper cultural awareness training.
4.109In addition to that training suite 'in those areas of high Aboriginal population', the NSW Police Force has:
…develop[ed] a two-way communication and consultation process among the Aboriginal community. Every year in those commands, commanders—superintendent level—assign and define inspectors of police, who are given an Aboriginal engagement portfolio. They are required to produce a community profile every year that must be updated and done in conjunction with the local Aboriginal community. That must address all of the key issues facing that community. They then do a joint action plan among those communities. Again, it is a realistic and pragmatic action plan of what they can achieve in that 12-month period.
4.110As part of that consultation process, those commands are required to meet quarterly:
…with the Aboriginal community with support services in those communities. They come together to discuss all of those local issues that are occurring. They can be criminal based issues. They can also be systemic issues that the community is facing locally. They minute those meetings. They record those meetings. There must be defined outcomes that the local commander is held accountable for as part of those meetings.
4.111The Queensland Police Service established the First Nations Division in December 2023 '[t]o address First Nations cultural capabilities within the QPS'. The First Nations Division has established:
…the First Nations Advisory Group to build cultural capabilities through education, collaboration and consultation on strategies and objectives. The service is designed to improve policing outcomes for First Nations peoples and communities.
4.112Alice Springs-based Acting Sergeant Bradley Wallace described the increasing importance of ALOs and ACPOs in the NT Police:
…the use of our Aboriginal liaison officers and our Aboriginal community police officers in our investigations particularly and the domestic violence and child abuse areas has become more and more prevalent and more and more desired by the organisation. It's highly rated, and the skills that those people bring to the table for us can't be learned in a university or a school. I've personally used our senior Aboriginal liaison officer on multiple occasions to deal with high-level mediations in communities, the gathering of evidence and assisting us to speak with witnesses, and for use with language and cultural skills. It has made a massive difference in the process of our investigations.
4.113Some police forces advised that their First Nations officers provide cultural awareness training across government departments and agencies, as well as working nationally to improve First Nations outcomes in the criminal justice system. For example, the AFP submitted:
The First Nations Unit liaises regularly with counterparts from other state and territory policing jurisdictions (and international counterparts) to ensure a national discussion on improving First Nations outcomes in the judicial system.
4.114Dr Tessa Boyd-Caine, Chief Executive Officer, ANROWS, stated that QPS had approached her organisation to conduct a review of the domestic and family violence training provided by QPS. She indicated that the cultural awareness training provided by QPS has not been similarly reviewed. Dr Boyd-Caine suggested a review should answer questions such as:
…who's delivering the training, what's the cultural competency and a whole lot of other factors that we don't have line of sight over. And then, of course, the evaluation to impact. Our reflection of the literature and the evidence is that there is a lot of evidence about some things, but the really key questions about what works, the really key questions about what difference is being made—there is not yet evaluation to answer some of those questions.
4.115Ms Thelma Schwartz, Principal Legal Officer at the Queensland Indigenous Family Violence Legal Service (QIFVLS), critiqued the cultural awareness training provided by QPS. She argued that 'having QPS deliver what they believe is 'cultural capability training' is not the intent of Judge [Deborah] Richards recommendations' from the QPS commission of inquiry. Ms Schwartz stated that Judge Richards:
…expressly called on Aboriginal and Torres Strait Islander community controlled organisations, and experts, to come in and deliver that training. And we do that in relation to the five-day specialist course. In relation to access to police recruits, I'm not in that space; I don't know how they deliver training to police recruits or has vetted that training. But there are ways that they can start improving culture, and they haven't taken it.
4.116Ms Schwartz continued that police officers should receive regular training, beginning when they are first recruited into the force. She maintained that police forces should ensure their training 'isn't a one-off; this isn't just self-managed, where they're just tuning into a webinar and ticking a box, or where we're all sharing screens and all sharing responses'.
4.117ANROWS informed the committee that it 'has advocated for police education and training to be monitored and evaluated to assess whether it is effective. It is in the public interest that such evaluation be made publicly available'.
4.118Dr Jane Lloyd, Director, Research and Evaluations, ANROWS, stated that while education and training is important, it should not be the only approach to address the mistrust of police forces among First Nations people:
…the evidence would suggest that training is important but not sufficient in cultural change in any system. Having leadership that demonstrates what you're trying to embody would be one; having a theory of change so that you have a shared understanding of the problem that you're trying to solve but also the different activities and mechanisms through which you are going to get that outcome. So it would never just be training alone, and you would need to have a way of tracking and monitoring your progress. You need a whole theory of change, whatever system you're dealing with.
First Nations representation in police forces
4.119The NQWLS told the committee that employing First Nations people in local agencies or as officers/liaison officers helps to breakdown reporting barriers for First Nations women and girls. It submitted that 'people who understand the community and are known by the community help First Nations women and girls feel safe to make complaints or discuss issues'.
4.120Mr Scott Lee, Assistant Commissioner Specialist Protective Command, said a key strategy is for First Nations people to be reflected in the AFP workforce, including at senior levels of the organisation. As at May 2022, 188 members identified as First Nations people, representing 2.5% of the total AFP workforce. Under its Diversity and Inclusion strategy 2023–2026, the AFP is aiming for three per cent First Nations representation by 2028, including at Senior Executive Service level.
4.121NTPFES provided information on the number of officers at various ranks within NT Police. Acting Assistant Commissioner Sharma advised that there are no First Nations Senior Sergeants (Acting Senior Sergeant O'Connor-Mitchell being a substantive Sergeant) and no First Nations officers beyond that level.
4.122The NSW Police Force advised the committee that, as of 9 July 2023, there are 17020 police officers in NSW. Superintendent Nicholson shared statistics on the number of Aboriginal staff employed: 'there are 689 Aboriginal staff in New South Wales. Forty-two per cent of those staff are women'.
4.123Superintendent Nicholson informed the committee that the NSW Police Force has an Aboriginal strategy and coordination team which is comprises 'seven Aboriginal people whose job it is to lead Aboriginal training across New South Wales'. He elaborated:
…that from the very top of our organisation, from the commissioner down, we have elevated Aboriginal engagement to tier 1 corporate sponsorship, which is the highest level of sponsorship that the organisation can have. Itis led personally by our deputy commissioner of police.
4.124Detective Superintendent Daniel Doherty advised that in NSW, a homicide or suspected homicide case involving a First Nations woman or child would always have an ACLO appointed to assist police investigating that case. AnACLO is available to be deployed anywhere in NSW '24 hours a day, seven days a week, no matter where an incident occurs…if an ACLO is needed anywhere in the state, they will be there'.
4.125Superintendent Nicholson confirmed that the ACLOs appointed to homicide cases:
…are always a member of the Aboriginal community. In most cases, they are a member of that local Aboriginal community. They have the direct connection with families. They have the direct culturally sensitive connection with family. They are the best judge always to breach the gap between the families and the police.
4.126NSW Police acknowledged, however, that even with the involvement of ACLOs there may still be difficulties between police and First Nations people where confidence in police is lacking.
4.127Commissioner Johnson discussed the LECC's review of the NSW Police Force's Aboriginal strategic direction. She commented that the review considered training (excluding cultural competency) and the efficacy of the ACLO role:
I think they are highly valued by the New South Wales police. There are significant duties, obligations and burdens for people who are employed at a grade 3 or 4 clerk level within the New South Wales public sector, which is one above base grade. They don't have their own cars. They don't have their own telephones. They are being asked to be the bridge in extraordinarily difficult circumstances, often across wide geographical areas.
4.128The NJP expressed some scepticism about the impact of employing ACLOs:
…ACLOs are presented by the police as a solution to many problems, but they are disempowered and isolated individuals within police forces. There needs to be an alternative process such as a hotline available in all State and Territory police forces to speak to an empowered high ranking First Nations unit to get a “Second Opinion”.
4.129The NJP was critical of the NSW Police Force's Aboriginal Strategic Direction and questioned whether there would be any meaningful change in state and territory police forces:
…the NSW Police…seem sincere but there is NO systemic change to the operations and culture of the police force. Those in power (particularly the police) do not listen to First Nations people…[The] current Aboriginal Strategic Direction…is a plan without teeth or meaningful outcomes, it is window dressing. There are no key performance indicators…that require change in police practices or policies and no empowerment or real engagement with First Nations communities.
4.130Professor Newhouse saw greater representation of First Nations people in police forces as a necessary measure to improve responsiveness to complaints about misconduct. He stated:
In cases of missing and murdered people, often police have no oversight and there are no complaint mechanisms for Indigenous people to escalate their concerns. There needs to be an Indigenous assistant commissioner of police and a hotline for people to make complaints about policing so that issues like missing family members or domestic violence that's going unresponded to can be escalated. That assistant commissioner should be Indigenous and report annually on the outcomes of their complaints.
Accountability of police forces
4.131In 2018, the Australian Law Reform Commission's (ALRC) Pathways to Justice—An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples report (the Pathways to Justice report) commented that many First Nations people have negative attitudes toward the police and consider that 'the law is applied unfairly and that complaints about police practices are not taken seriously'.
4.132Several inquiry participants highlighted deficiencies in the complaints processes for and about police forces, and argued that there is a lack of accountability around their actions.
4.133The NJP called for greater accountability for police services throughout Australia:
There is a culture of protecting the Police Force as an institution and this culture is ingrained in the Police Force and is reinforced by the police unions/police associations. The police unions and associations have a critical role to play in reinforcing the acceptability of police misconduct as they are seen as defending it.
Police are granted extreme powers by the parliaments of all Australian states and territories, with virtually no accountability internally or externally. Police accountability bodies, such as the Ombudsman and the [Crime and Corruption Commissions], are under resourced and toothless and many appear to protect the institutions of state rather than the individual complainant.
4.134Violet Co Legal and Consulting argued that there is a community expectation of an independent complaint and review mechanism for police conduct:
…there must be independent and transparent complaint and review mechanisms, to ensure that police meet their legal and ethical obligations to the community. Our community expects this. Police investigating police, often in the same local area command, is an unacceptable conflict of interest. This practice is out of step with community expectations, and out of step with workplace law in Australia. Independent police complaint bodies are urgently required in each State and Territory.
4.135In 2023, Ms Iles launched the 'Make Police Investigate' campaign, which calls for a legally enforceable duty of care to victims of aggravated sexual assault and other serious crimes.
4.136In reflecting upon Ms Iles’ experience as a victim-survivor, Violet Co Legal and Consulting explained that police had failed to investigate any of her claims and, 18 years later, no-one has ever been interviewed or held accountable for those crimes:
Karen had to learn that, despite community perception, police are not obliged to investigate her allegations and that there is no duty that compels them to do so. She has lived experience of the shortcomings of internal police conduct investigations through making formal complaints to bodies such as the Law Enforcement Conduct Commission of New South Wales and Police Link in Queensland, processes which do not guarantee investigation of the original claim and further extends the interaction between vulnerable peoples and a traumatising institution.
4.137The VALS highlighted Victoria Police's internal process for investigating complaints:
The Independent Broad-based Anti-corruption Commission (IBAC) investigates only 1% of complaints made regarding police. The remainder of complaints made to the body are referred back to Victoria Police for internal investigation, with IBAC only reviewing 4–5% of investigations conducted by Victoria Police. [Further] a majority of the complaints investigated by Victoria Police are not handled by the dedicated Professional Standards Command but rather referred down to local or regional commands, where they are often investigated by officers who know the officer subject to the complaint. The absence of oversight for police misconduct complaints only fuels the communities' lack of confidence that police will be held accountable for their actions.
4.138In 2022, the IBAC conducted the Victoria Police handling of complaints made by Aboriginal people audit (the VP audit). The audit examined the Victoria Police handling of 41 complaints made by Aboriginal people and its oversight of 13 serious incidents involving an Aboriginal person.
4.139The VP audit identified 'concerning patterns in how Victoria Police handles the investigation of complaints made by Aboriginal people and serious incidents involving Aboriginal people'. These included: very few complaints were substantiated; Aboriginal status was poorly recorded; complainants were not updated on the progress of their complaints; dedicated resources for improving relationships and communication were rarely used; and a substantial proportion of files contained indications of bias or a lack of impartiality. Ten recommendations were made to address these areas of concern.
4.140In June 2023, Victoria Police provided the IBAC with a progress report in response to its recommendations. To date, one recommendation—relating to simplification of the complaint classification system—has been fully implemented. At the time of writing, implementation of the remaining recommendations had not been assessed by the IBAC.
4.141The Commission of Inquiry into Queensland Police Service responses to domestic and family violence commented on the QPS's conduct and complaints system. Those comments echoed those of the IBAC on Victoria Police, indicating that those issues are not confined to a single jurisdiction:
The failings of the current conduct and complaints system are so great, and the risk that the system will fail to protect against serious misconduct is so significant, that a different approach is needed. The current system should be replaced with an independent Police Integrity Unit which sits within the [Crime and Corruption Commission Queensland] and independently investigates complaints against police officers.
4.142Currently, the QPS investigates complaints made against it. Ms Iles described this level of scrutiny as 'absolutely laughable and Orwellian'. Ms Schwartz, argued that 'police should not be investigating police'.
4.143Dr Hannah McGlade, Associate Professor of the Law School, Curtin University and member of the UN Permanent Forum on Indigenous Issues, held a similar view about the WA Police:
I am sure that [the police] need to be properly reviewed and accountable. We have seen the CCC has been unwilling to do that. The CCC has apparently abdicated its general oversight of police complaints…and that has been the subject of some Western Australian parliamentary reports. The CCC has been advised it needs to improve its relationship with Aboriginal people. I don't think it has done that. I have never heard of any senior Aboriginal leaders occupying public servant roles within the CCC. I have never heard of it wanting to engage with the Aboriginal community and that is a significant failure on its part…[I]t goes to the heart of racial discrimination from police, the lack of accountability of police and the failure of the oversight body in that respect.
4.144The Western Australian Corruption and Crime Commission (CCC (WA)) advised that during the 2022–23 financial year it assessed 3486 allegations related to WA Police. Of those allegations, it considered that 1332 (or 38 per cent) met:
…the threshold for serious misconduct. Of those, 464 allegations (or 34.8%) of all allegations assessed as meeting the threshold for serious misconduct, were referred back to the WA Police for action.
4.145The Chief Executive of the CCC (WA), Ms Emma Johnson, advised that her office has a broad remit and 'it doesn't take much to activate our jurisdiction':
But there are no automatic requirements in relation to domestic violence incidents or a missing First Nations child that would activate a report to us, unless there was some misconduct identified in the conduct of the police.
4.146Ms Johnson clarified that all police misconduct—including neglect of duty—is considered serious misconduct. If proven, this would include a failure to respond appropriately to the report of a missing First Nations child.
4.147Ms Johnson explained that the decision to investigate an allegation is partially a matter of resourcing, however:
…we have mechanisms in place where if something came before us that was serious enough and warranted the commission's investigation then we would prioritise it above all other things and conduct that investigation.
4.148In her view, allegations made in respect of WA Police will be properly investigated, due to the checks and balances within the CCC (WA) model (suchas the ability to remove a matter from police for investigation by the commission).
4.149Professor Newhouse from the NJP advised that, in the case of Baby Charlie (seeChapter 3), the CCC (WA) missed the opportunity to examine how WA Police responds to DV victims. TheCCC (WA) reviewed the findings of the internal investigation undertaken by the police and, as a result:
…there was no independent oversight of the investigation into this case. Itwas undertaken by police—police investigating police. The police failed…even to consider the complaints about racism that the family made…But I think one of the greatest oversights was the failure even to consider the actions of police in leaving a vulnerable toddler in a place where a violent man could come back and abduct the child. That was barely considered. This was a situation where there was misconduct no the part of the police and it was effectively whitewashed by the CCC, who did not give the family a proper opportunity to respond. They did not get procedural fairness, they did not have the serious issues that they were concerned about addressed and the CCC is a complete and utter failure.
4.150Ms Johnson continued that the case of Tamica Mullaley and Baby Charlie were not investigated by the CCC (WA), but was unable to explain why this decision had been made. MsJohnson indicated that the current process would likely result in a different approach:
…this matter would come into our assessment area, and, with the priority mechanisms that are in place at this point in time, this matter would be prioritised for assessment…[W]e would assess all of the information before us and tease out any possible misconduct that might be relevant to a particular matter, and the assessment team would make a recommendation to the corporate executive and ultimately the commissioner about the course of action that the commission might take…[I]n a situation like this, we might conduct our own investigation or we might refer it to police but do it with them or do it with active oversight…[A]ll the matters related to the serious misconduct that might have occurred in a situation like this would be teased out and robustly considered and…appropriate action would be taken.
4.151The NSW Law Enforcement Conduct Commission (LECC) is tasked with independent oversight of the NSW Police Force, including complaints handling processes and police responses to critical incident investigations (deaths).
4.152With respect to critical incidents, Commissioner Anina Johnson said that the LECC gets 'more than enough visibility' in terms of on-scene attendance and access to the police database. She conceded, however, that the LECC can be, and is regularly, excluded from interviews.
4.153Commissioner Johnson advised that 'the commission does receive complaints about racism and poor interactions between police and First Nations people', however, 'it is really an extraordinarily small number'. She added that the commission is currently interrogating the NSW Police Force database, part of which will be to identify systemic issues in these complaints:
About 33 per cent of the complaints dealt with excessive use of force. This is complaints from First Nations people within that 18-month time period. About 25 per cent alleged an improper use of police powers. Sixteen per cent were complaints about service or standards. We do propose to publish that work, but we're just not there yet. We've just finished collecting that data and aggregating that data.
4.154Commissioner Johnson informed the committee that the LECC is accountable to the NSW Parliament and its reports, including in relation to systemic issues, are usually made public.
4.155Professor Craig Longman with Jumbunna reflected on the NSW LECC's evidence, observing 'without a consequence, the culture will never be forced to change'.
Commonwealth government response
4.156In its Pathways to justice report, the ALRC recommended that all levels of government in Australia review:
'police procedures and practices so that the law is enforced fairly, equally and without discrimination with respect to Aboriginal and Torres Strait Islander peoples'; and
'their police complaints handling mechanisms to ensure greater practical independence, accountability and transparency of investigations'.
4.157The ALRC also recommended that consideration be given to several initiatives 'to further enhance cultural change within police that will ensure police practices and procedures do not disproportionately contribute to the incarceration of Aboriginal and Torres Strait Islander peoples'.
4.158As part of its efforts to build justice sector capability, the Commonwealth government has committed $4.1 million over four years from 2022–23 to enhance the effectiveness of police responses to family, domestic and sexual violence through the development and delivery of a national law enforcement training package:
The enhanced law enforcement training package will include content that recognises and addresses barriers and increased risk factors to First Nations women and children experiencing [FDSV], as well as culturally safe policing responses and embed appropriate trauma informed models.
4.159In June 2023, the AGD engaged in a consultation process:
…to inform the design of a potential grant opportunity to develop the training for legal practitioners on coercive control. The department has analysed the submissions received through the consultation process and is considering appropriate next steps.
4.160In September 2023, the Standing Council of Attorneys-General released the National Principles to Address Coercive Control in Family and Domestic Violence. These seven principles embody a national understanding of coercive control.
4.161The NIAA and the AGD noted that 'coercive control is often a significant part of family and domestic violence and is a pressing issue that requires a coordinated, national approach'.
4.162According to the NIAA and the AGD, the National Principles recognise that coercive control in First Nations communities must be understood in the context of colonisation, intergenerational trauma, systems abuse, and racist policy and practice. In particular, the principles also recognise that the misidentification of First Nations women as perpetrators of family and domestic violence is a significant issue, and that responses to coercive control must not exacerbate discrimination and inequality for First Nations peoples.
4.163In February 2024, the government committed a further $10.7 million over four years from 2024–25 for the Justice Policy Partnership (JPP). The JPP, which is co‑led by the AGD and NATSILS, is working on 'an anti-racism strategy for the justice system, and reporting to [the Standing Council of Attorneys-General] on options for bail and remand reform'.
4.164National Principle 3: Taking an intersectional approach to understanding features and impacts states:
Structural forms of discrimination and inequality increase the risk that services and legal systems will minimise, doubt or ignore a victim‑survivor's experiences, or misidentify victim-survivors as perpetrators of coercive control.