Recent practices have signified a shift to viewing deaths in custody as violations of human rights, particularly the right to life under Article 6 of the ICCPR. This post examines an often forgotten element of the International Convention on the Elimination of All Forms of Racial Discrimination and suggests it — through the domestic legislative vehicle of the Racial Discrimination Act 1975 (Cth) — has an important role to play in viewing other deaths in custody. 

The longstanding search for legal remedies for Aboriginal and Torres Strait Islander deaths in custody has maintained pace in recent months. The family of Dunghutti man David Dungay Junior, who died in custody at Long Bay Prison in 2015 after being restrained, indicated they would lodge a complaint to the UN Human Rights Committee (UNHRC). In their complaint, they allege the guards failed to protect Dungay’s right to life under article 6 of the International Convention on Civil and Political Rights (ICCPR) and Australia has failed to implement recommendations of the landmark 1991 Royal Commission into Aboriginal Deaths in Custody.

This is not the first time that the UNHRC has been asked to consider human rights violations in the context of deaths in custody in Australia. The family of Kamilaroi boy TJ Hickey who died during a police pursuit in Redfern during 2004 had also lodged a complaint alleging, amongst other things, that Hickey’s right to life had been violated. In Hickey v Australia, the UNHRC ultimately decided the communication was inadmissible under article 5(2)(b) of the Optional Protocol to the ICCPR because the author had failed to exhaust domestic remedies including lodging anti-discrimination complaints under the Racial Discrimination Act 1975 (Cth) (RDA) or state statutory equivalents. It is not clear whether the Dungay family have lodged any anti-discrimination claims under domestic law. Professor Hilary Charlesworth has described the requirement that parties exhaust domestic remedies as ‘fairly demanding’ (see Indigenous Peoples, the United Nations and Human Rights), particularly because complainants have legal options under both state and federal anti-discrimination regimes.  

The relationship between domestic anti-discrimination law and physically violent conduct with a racial basis is an uncharted field in Australia. By contrast, in the United States, physical violence with a racial basis is routinely conceived of as a civil rights violation. In November 2019, Constable Zachary Rolfe fatally shot Warlpiri man Kumanjayi Walker in Yuendumu in the Northern Territory. Although media attention has focused on the criminal implications of the shooting, particularly as Rolfe currently stands trial for manslaughter, a more subtle development has occurred in the background. Walker’s extended family filed a complaint with the Australian Human Rights Commission alleging racial discrimination by the police in the lead-up to Walker’s death. 

From an international law perspective, this is significant for three key reasons. First, and broadly, racial discrimination law directs courts to take into account international law considerations (see, for example,  section 9(2) of the RDA). This is unsurprising. To ensure  the RDA was within the scope of the constitutional external affairs power, the Whitlam government directly transposed significant swathes of the International Convention on the Elimination of Racial Discrimination (ICERD) into domestic law. This is exemplified by section 9(1) of the RDA which incorporates ICERD’s definition of ‘racial discrimination’ in article 1(1) verbatim. Critically, RDA section 9(1) also includes the words ‘it is unlawful for a person to do any act involving …’ thereby giving the definition an explicit operative effect as follows: 

It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. 

The close fidelity of section 9(1) to its source has led some to bemoan the difficulty of giving effect to RDA section 9(1). Former Solicitor-General Maurice Byers, flagging its ‘generality’, recommended its deletion from the final Racial Discrimination Bill in 1975 (RD Bill). The drafters of ICERD article 1(1) never intended the provision to have operative effect; rather it was simply designed as a broad and open-textured definition of racial discrimination. Nonetheless, former Chief Justice of the High Court of Australia, Harry Gibbs, described the RDA as ‘what appears to be a bill of rights’. In Gerhardy v Brown , Justice Brennan described the human rights question in RDA section 9 as not rights and freedoms under a particular legal system but ‘rights and freedoms which every legal system ought to recognise and observe’. A result is that racial discrimination cases have been an essential way in which Australian courts have been required to confront international sources of law to give meaning to the RDA. To take one example amongst many, in Iliafi v The Church of Jesus Christ of Latter-Day Saints, the full bench of the Federal Court of Australia considered the general recommendations of the United Nations CERD Committee as well as UNHRC jurisprudence in determining violations of the ICCPR.  

Second, an RDA claim in circumstances of physical violence goes to a fundamental aspect of ICERD which has fallen to the wayside in Australian public debates, namely the obligation under article 4(1) that requires states parties to: 

… [D]eclare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof … (emphasis added)

A keen-eyed observer who followed the loud public debates surrounding section 18C of the RDA in the last two decades (see, for example, Eatock v Bolt and Prior v Queensland University of Technology) would recognise that part of article 4(1) has already been given statutory expression in the RDA’s Part IIA vilification provisions. As for physical violence, hate crime offences have been legislated at the state level but the provisions are rarely used. When they are used, prosecutions have arguably been ‘botch[ed]’. In this context, what is novel about the Walker complaint is that the RDA has never been utilised to redress physical violence preceding a death in custody. As Article 4(1) requires states parties to legislate an ‘offence’, the possibility that the RDA might supply a civil remedy for physical violence has largely been overlooked, even though racial violence nonetheless threatens discrimination law’s concern for substantive equality. Indeed, earlier drafts of the RDA in 1973 had included provisions making ‘racial violence’ unlawful with a penalty of $1,000 or 6 months imprisonment (see RD Bill 1973), however these provisions were removed from the final bill.  

Finally, using the RDA in this context reflects the unique concern in section 9(1) for human rights. Unlike all other federal and state anti-discrimination statutes, section 9(1) defines the scope of discrimination according to the purpose or effect of conduct on the enjoyment of human rights. As the ‘human rights’ in section 9(1) incorporate rights in article 5 of ICERD, as well as rights under other conventions to which Australia is party (see section 9(4)), it provides an effective vehicle through which human rights considerations can be analysed. Deaths in custody, like Walker’s, can be seen through the lens of an ‘unresolved human rights issue’.  

As recent practice has shown, there are very potent reasons for examining deaths in custody using first-generation fundamental rights like the right to life. This analytical frame provides another means of reviewing excessive use of force and the lack of custodial care which are patterns found across numerous deaths in custody (see, further, The Guardian Deaths Inside Database). For example, Wiradjuri man Dwayne Johnstone was fatally shot three times by a New South Wales Corrective Services Officer whilst attempting to escape custody, despite being in handcuffs and ankle cuffs. Further, the negative component of the right to life prohibits the arbitrary deprivation of life. Previously, the UNHRC  has suggested that ‘deprivation of life based in discrimination in law or fact is ipso facto arbitrary in nature’ (emphasis added) (UNHRC General Comment No. 36, para. 61).  

Although it may be too early to know for certain, the interaction between deaths in custody and the RDA is likely to provide a renewed platform where human rights jurisprudence can be developed in Australia.  

Alan Zheng is an LLB Honours candidate at the University of Sydney researching racial discrimination law.