Three years ago Tanya Day, an indigenous mother of four, boarded a train to Melbourne from Echuca, a town three hours north of the city. Ms Day had been drinking and a train conductor called the police after she fell asleep with her legs blocking the aisle.
The police arrested Ms Day on public drunkenness laws that critics maintain are used disproportionately to lock up indigenous Australians. Officers failed to check on Ms Day in her cell as often as required by police procedure. The Yorta Yorta woman from northern Victoria repeatedly fell and hit her head in the cell. She died 17 days later.
“This should have been a safe train journey to Melbourne,” said Belinda Stevens, Ms Day’s daughter, who alongside her siblings has campaigned to reduce deaths in police custody. “You really need to stand up and be a voice for change.”
Ms Day’s death has grabbed the public’s attention and rekindled debates about the treatment of indigenous Australians in the justice system.
Thousands of Australians marched through the country’s biggest cities as part of the Black Lives Matter protests after the death of George Floyd in the US. They demanded an end to the hundreds of indigenous Australian deaths in prison and police custody in recent decades.
One protest in Sydney this month was led by the mother of David Dungay, a 26-year-old member of the Dunghutti indigenous people from northern New South Wales. He died five years ago in Sydney after police wrestled him to the ground and gave him a sedative. His last words were a haunting echo of Floyd’s “I can’t breathe”.
Between 1991, when a royal commission into indigenous deaths required the government to track the data, and July 2018, the most recent official numbers available, 412 indigenous Australians have died in custody.
The true figure might be as high as 437, based on data compiled by the Jumbunna Institute for Indigenous Education and Research at the University of Technology Sydney, which works with the Guardian newspaper to track cases.
The killing of Floyd struck a chord with indigenous Australians “because we have experienced so much around deaths in custody and high rates of incarceration for decades”, said Malarndirri McCarthy, an indigenous senator for the opposition Labor party representing the Northern Territory.
“This is perhaps [the first] moment in Australian history since the royal commission where Australians have said ‘enough — we’re not moving quick enough’.”
The debate in Australia has focused on the high indigenous incarceration rate and the fact that no police or prison officers have been convicted for an indigenous death in custody.
Indigenous Australians make up 2 per cent of the population but 27 per cent of the country’s prisoners. About one in 50 of indigenous Australians are behind bars, according to the Australian Law Reform Commission. Many are arrested for minor crimes, such as public drunkenness, shoplifting and unpaid fines.
“There is significant over-policing and racial profiling,” said Thalia Anthony, a law professor at the University of Technology Sydney. Indigenous Australians “have borne the brunt of the increase in policing, the increase in prison sentencing and tougher bail laws”.
Social factors also play a role. Lower rates of education, fewer employment opportunities, alcoholism and health issues in indigenous communities contribute to high incarceration rates.
The country’s conservative government has also backed reforms of the criminal justice system. Ken Wyatt, the minister for indigenous affairs and the first indigenous person to hold the role, said addressing the underlying factors that led to the high rates of incarceration was vital in reducing deaths in custody.
But this month, a leaked document showed the body behind the reforms wanted to reduce the incarceration rate of Aboriginal and Torres Strait Islanders to the level of non-indigenous Australians only by 2093. This sparked a wave of criticism — including from Mr Wyatt.
Across the political spectrum “there is an increasing awareness of black lives and racism” but “institutionally, there is a lot of reform that is needed”, said Prof Anthony.
Nerita Waight, the indigenous chief executive of the Victorian Aboriginal Legal Service, an advocacy group, said that behind the statistics were grieving families and communities.
“Ending the mass imprisonment of Aboriginal and Torres Strait Islander peoples is long overdue, and is essential to preventing more deaths in custody,” Ms Waight said.
The organisation has called on authorities to reduce incarceration rates by raising the age of criminal culpability from 10 to 14 years, ending mandatory sentencing laws and scrapping public drunkenness laws in favour of a public health approach.
Russell Barrett, assistant commissioner and head of the professional standards command for Victoria Police, mentioned Ms Day’s death last month in a statement outlining the force’s efforts to reduce deaths in custody.
These included taking part in a series of initiatives to “improve economic, health, education and employment outcomes” that would “undoubtedly help to reduce the number of Aboriginal people entering the criminal justice system”.
Ms Day’s death may be a landmark case. In April, the coroner referred public prosecutors to investigate whether criminal negligence by police officers played a role in her death.
The efforts of Ms Stevens and her siblings to campaign for justice has already resulted in the Victorian government committing to scrap the public drunkenness laws that led to Ms Day’s arrest.
“We’re hopeful this will be followed through and charges will be laid but no police officer has ever been held responsible for an Aboriginal death in custody,” said Ms Stevens. “We don’t want other families to endure the tragic circumstances we’ve had to endure.”