Case Study

The Road: Passage Through the Deathscape (Australia)

Case study

Mr Ward, a senior Ngaanyatjarra lore man and artist, aged 46, died in the back of a prison van while being transported across the Western Desert on 27 January 2008 following his arrest for drink driving.

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Aboriginal and Torres Strait Islander viewers are respectfully advised that this case study may contain images of and references to deceased persons.

All viewers are respectfully advised that this study contains images of and references to the deaths in custody of Indigenous peoples, Black people and refugees that may cause distress.

At the same time, each screen of these case studies testifies to target communities' strength and courage, as they respond to repeated deaths in custody through myriad creative forms, through lines of solidarity and through an unwavering call for justice.

‘They think they can do anything to black people and like that’s what they are thinking to my cousin. We treat black people in another way. Differently, no respect, take them. Oh don’t bother worrying for them, just keep driving, keep driving.’
 

Daisy Ward (Senior Ngaanyatjarra woman)

RELEVANT KEY TERMS: necrotransport

Australia Day 2008

The Ngaanyatjarra elder, Mr Ward, accompanied by his son, was driving along a public road in the town of Laverton in Western Australia’s Goldfields at 9.30pm on Australia Day, 2008.

He was minutes from the turn to the dirt track leading to the Wongatha Wonganarra Community when he was stopped for a random breath test and then taken into custody for drink driving.

By the next day Mr Ward was dead, with a body temperature registering over 41 degrees and large burn marks where his flesh had sizzled when it was seared by the metal sides, floor and seat of the scorching, airless van in which he was transported over 350km through the Western Desert to Kalgoorlie jail. In the graphic words of several commentators, he had been painfully ‘cooked to death.’

RELEVANT KEY TERMS: death by policing, necrotransport

A Heavy Symbolism

The Coroner found that Mr Ward ‘suffered a terrible death while in custody which was wholly unnecessary and avoidable.’ Much of the official record traces this chain of seemingly minor decisions and small preventable acts that led to the death of Mr Ward. Yet, in its totality, this chain of eventualities assumes a destructive inevitability. There is a heavy symbolism attached to the fact of Mr Ward’s arrest on Australia Day, the day marking the arrival of the British First Fleet in 1788. Many Aboriginal people refer to this date as Invasion Day or Survival Day, a day of mourning, not celebration.

The case of Mr Ward bears out the continuing effects of colonial invasion and usurped sovereignty with its murderous disregard for Aboriginal life.

Violent Precedents

Mr Ward’s case painfully instantiates how the material conditions of remote Australia, with its colonial infrastructure, entrenched disregard for Aboriginal lives and racially marked systems of policing entwine with neoliberal practices of management to lead his dying, or being made to die, in the custody of the state.

1910: Skull Creek Massacre

1969: Raymond Watson

1976: ‘Skull Creek Incident’

1983: Robert Anderson

1985: Kim Pollack

1985: Milton Wells

1987: Bernard McGrath

2016: Elijah Doughty

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Ngaanyatjarra Country. Photo: Tim Acker and John Carty in ‘Ngaanyatjarra – Art of the Lands’ (UWA Publishing, 2012)

The Road

A painting depicts a red landscape. A road cuts horizontally across the landscape and a coffin marked with Aboriginal flag, on wheels traverses the road. Prison bars vertically score the land. Black hands grasp the bars.

Artist Unknown

 

 

Locked Up Lands, Country Encaged

This painting, by an artist we have yet to identify, circulated shortly after the death of Mr Ward, encapsulates the essential elements of our analysis: Aboriginal sovereignty, colonial law and practices of removal from Country.

It depicts a red landscape that appears to signify Ngaanyatjarra Country cut through by a road, the marker of invasion and colonisation, and of the imposition of missions, reserves and mines across the land. For many Ngaanyatjarra, the road is the means of removal away from Country to prison.

For Mr Ward the road proved to be a mode of carceral death.

The surrounding landscape of the painting, marked by what appear to be motifs of traditional Ngaanyatjarra patterning, are vertically scored by prison bars, locked and bolted, emphasizing the pervasive presence of the carceral, and the symbolic encaging of the land itself.

The black hands grasping the bars reflect the perspective of debarred Aboriginal spectators, themselves incarcerated, as they bear witness to the movement of this living coffin through their land. The image is suffused with the intense emotional impact of the violent death of their elder and leader on Ngaanyatjarra hearts and spirits.

A flyer for a protest organised by the Deaths in Custody Watch Committee uses the same motif of hands grasping prison bars. It reads 'Ward Protest Action: Wednesday 22nd September 2010: 10am-12.00pm, 18-32 Parliament Place, West Perth. Deaths in Custody Watch Committee & Daisy Ward are appearing before the Parliamentary Inquiry into the transportation of detained persons. Please join with us to demand: - The Department of Corrective Services resume the sole responsibility, management and delivery of all custodial transport. - The immediately termination of the contract between the Department of Corrective Services and G4S for the transportation of detained persons. - An end to the privatisation of prisons and custodial services.'
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First Nations Deaths in Custody Watch Committee (Inc.), Ward Protest Action flyer, 2010

 

Two Roads, Two Laws

Mr Ward’s life and death in custody are structured by roads. The road on which he was arrested, between his country and the settler town of Laverton (originally named British Flag), is the road on which he begins his journey to death.

The second road runs from Laverton to Kalgoorlie prison. It is along this road that Mr Ward was killed. Mr Ward’s death is plotted along the axes of these roads.

A third road, from what is now Patjarr, at the edge of Mr Ward’s country, to the town of Warburton, marks his people’s journey into a landscape scored by histories of usurped sovereignty, enclosure, exploitation of the land and the abrupt removal of people from their own waterholes and country, to be  centralised and sedentarised.

Mr Ward’s death in custody is also inscribed by the operation of two systems of law: the violently imposed law of the settler state and its legal regimes of criminalisation of Indigenous people, regimes that ensure the serial production of Indigenous deaths in custody, and surviving Indigenous Law that continues to contest the legitimacy of settler law and that is inextricably bound to the very flourishing of Aboriginal life and Country.

 

 

Struggles to regain Native Title over his land preoccupied Mr Ward in the last years of his life. In his Native Title struggles, Mr Ward laboured to expose the colonial expropriation of his land and the undiminished power of Indigenous Law over Country.


‘We lived unaware of the white man and his world…There were no roads. We lived there and saw when someone made a road and we were afraid because we’d never seen anything like it. When we first saw the road, we all ran off to the bush in fright…we were taken to Warburton…We lived there a long time with our families. We lived there for a while and we heard talk that someone was going to build a road back to our home…and all the old people got happy and said, “yes, make a road and go back to your own Country.”…I was part of the group of people who made the road…all that way to Patjarr.’

Norma Ngumarny Giles, Ngaanyatjarra Elder


 

 

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Gunbarrel Highway, 2007. Photo: Gazjo.

‘The Last of the Stone-Age Men, the Professor of the Bush’: Mr Ward’s Story

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Pulpurru Davies, Kurrpurrlurrpurrlu Tjukurrpa— The Star People of the Pleiades Constellation and their activities on Earth. 2002 Acrylic on canvas Turner Collection, Reproduced with permission.

Mr Ward was born into a large family who lived in the remote Gibson Desert unaffected by western influences. His father was Kalma, also known as Tjakamarra. His birth mother, Katapi, also known as Pulpurru, would become a painter of significance and is now one of the oldest persons still living on the Ngaanyatjarra Lands. Together they lived from the land, camped and travelled with other desert families and regularly participated in desert ceremonial life.

From 1955 the Gibson desert lands were the site of cold war weapons testing experiments conducted by the Australian and UK governments. State reconnaissance parties were deployed to search out and relocate Aboriginal people living in the area.  Mr Ward’s family was brought into Warburton Mission in 1965 in one of these exercises when he was still an infant.

In explaining her artwork Marumurtu Mob, 2001, Mr Ward’s birth mother Pulpurru Davies said: ‘Marumurtanya [the patrol officer, Mr MacDougall] palunyalu katingu [he took people everywhere], coming back, going round, went to [Warburton] Ranges, Warakurna and then to Yuendemu and Balgo, everywhere’ (excerpt from the art catalogue Mission Times in Warburton, Warburton Arts press, 2001, p.26).

(Based on a longer narrative prepared for Deathscapes by Jan Turner.)

 

‘Who Talks For My Country Now?’

Mr Ward holds up his artwork (an art glass panel) 'Wati Warnampi at Tartjarr – Rainbow Serpent Man at Tartjarr Soak'.

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Art glass panel by Mr Ward, Wati Warnampi at Tartjarr – Rainbow Serpent Man at Tartjarr Soak. Art glass panel. Photo: Elves Brites. In this photo we see the joy with which Mr Ward holds up his own artwork on the grounds of Warburton Arts. This artwork was also exhibited as part of the Perth International Arts Festival. This photograph was specially selected by the Ward family for inclusion on the Deathscapes site.

Who talks for my country now? was the title of Mr Ward’s contribution to the multi-media exhibition, Trust, featuring Indigenous commentaries on the impact of mineral and oil explorations on their traditional lands. The sentence was stencilled across the length of the gallery from an original in his own hand writing.

Mr Ward spoke for his country as a linguist, artist, performer, conservationist and statesman, and most critically a campaigner for sovereignty.

One of his most complex political artworks, The Seven Seals of the Ngaanyatjarra Lands, consists of seven artglass discs each featuring one of the seminal creative beings. His use of the English word ‘seal’ was purposeful to convey that these creative ancestors are the insignia, the emblems, the authentication and the validation of desert culture. Following his death, Daisy Ward displayed one of these glass seals when speaking on the steps of Parliament House with the Special Rapporteur for Indigenous Peoples about Mr Ward and deaths in custody in general. A photograph of this event was published in The West Australian.

(Based on a longer narrative prepared for Deathscapes by Jan Turner.)

‘A Crucial Loss’

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Izzy Turner 2017 Desert Still Life III. This artwork reflects those aspects of Mr Ward that the photographer recalls from her memory of their times together. In this artwork the focus is on land management activities. Cactii were introduced by Europeans in their home gardens on the fringes of the settled areas of Australia and in subsequent times have become invading desert pests. The wooden python reflects his work with conservation locating and recording python species, the spent cartridges his work on feral camel control.

Mr Ward fought until his death to gain title not just for his own traditional lands but for others with whom he was connected through culture. He was chairman of Warburton Community for several years and a youth worker actively campaigning to reduce substance abuse on the Ngaanyatjarra Lands. He spoke at land management conferences in Alice Springs, Brisbane, Perth and China.


‘His death was not only a profound loss for his family and community but also to his culture, as it is clear that a great deal of time had been put into teaching Mr Ward a significant cultural knowledge, skills and experience, in respect to which it was intended he would play a crucial role, passing this knowledge on to the next generation.’

Magistrate Benn (KA 326 of 2011, Worksafe and State of Western Australia)*


Mr Ward was killed in  his prime, at a time when he had accumulated much desert learning and was responsible for its safe keeping and transmission. To enable his continued work with scientists across central Australia he undertook sacred learning in several Indigenous ceremonial traditions, increasing his personal knowledge and cultural responsibilities beyond normal cultural expectations. This sacred knowledge and participation enabled him to become a respected leader in the cross-cultural domain.

(Based on a longer narrative prepared for Deathscapes by Jan Turner.)

*The transcript of this finding cannot be reproduced without the prior written consent of the attorney-general. This quotation is taken from Jan Turner’s notes in the Kalgoorlie courthouse at the time of reading and is an exact facsimile of that found in the transcript.

Staying Strong

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‘Entrapped’, 2014. Photo: Jason Thomas. Sunset over the Clutterbuck Hills – Mr Ward’s country in the Gibson Desert. 


‘We have to stay in contact with one another to stay strong. Every community has a lot of respect for each other’s country. That is why we support one another and don’t let any one community go down.’

I. Ward


Mr Ward’s death profoundly affected the Ngaanyatjarra people and in particular the land and community development aspirations of his close family at Patjarr Community. In accordance with customary funerary dictates, the people of Patjarr dispersed upon his death. Into the vacuum of an emptying residential community the state acted to remove vital civic services, including the schools and the clinic. This reduced the viability of the community after funerary rituals were complete and people were once more under customary law able to return to their homeland settlement.

(Based on a longer narrative prepared for Deathscapes by Jan Turner.)

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Shortly after they were brought to Warburton, the film maker Ian Dunlop asked members of Tjakamarra’s family, as well as two other families, to return to their traditional lands to be filmed living in customary fashion. An infant Mr Ward and the rest of the family are featured in the resulting documentary, Desert People. Weeks after the filming Tjakamarra died and his widows scattered to other parts of the desert. This image of the Ward family from Dunlop’s film is reproduced with their permission and that of National Film and Sound Archive of Australia.

 

 

The Military Industrial Border Complex

A red dusty street in the Patjarr community is pictured at dusk. A power pole and electrical lines connect to houses. Vehicles and other signs of domestic life are present.

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Main Street of Patjarr Community, 2014. Photo: Jason Thomas. 

 

The removal of families like Mr Ward’s from their country was a direct consequence of Australian British co-operation during the Cold War. They were endangered, as their lands lay in the Blue Streak missile/rocket testing flight path associated with the Weapons Research Establishment program. The removal from their traditional lands changed their lives.

Relocated to larger settlements, the desert peoples were encouraged to become sedentary dwellers dependent on western foods, healthcare and education. Extended families were split and members relocated to communities many hundreds of kilometres distant. Kinship ties were rendered asunder. At Warburton Mission the core members of what became known as the Ward Family found themselves on another Indigenous culture’s land. They were often treated poorly in the competition for scarce resources.

(Based on a longer narrative prepared for Deathscapes by Jan Turner.)

Continuing Expropriation

Mr Ward’s traditional lands and their surrounds were and still continue to be locked up and rendered inaccessible:

• by petroleum exploration licenses issued in the 1920s
• by the Class A listed Gibson Desert Reserve established there in 1976
• by the Federal Weapons Research Area established in the 1960s, and its successor, the larger Woomera Protection Area, which functioned as a detention camp for asylum seekers from 1999-2004 before reverting to military use.

A 2015 ruling reaffirmed that historical petroleum licences over the land would impact on any native title compensation Mr Ward’s people might gain from the seizure of their land.


‘There is nothing out here for the government; it’s our country, it’s where our spirit is…’

Daisy Ward


In 2015 the court ruled that the historical petroleum tenure over the Gibson Desert Reserve lands ‘had the effect of extinguishing the Native Title right to control access’, greatly reducing the original compensation the group hoped to seek.

The claimants then decided to withdraw their claim and seek a political solution. They considered it an insult to their cultural integrity to proceed with the case seeking a diminished compensation, or appeal against the decision on the exploration licences.

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‘Welcome to Australia’, Woomera, South Australia, 2004. Photo: Rosemary Laing. National Gallery of Victoria, Melbourne, purchased with funds from the Victorian Foundation for Living Australian Artists, 2005.

Aboriginal Prisoners and Removal from Country in Western Australia

A group of Aboriginal men are standing in a row, chained together around their necks. White men and their horses stand behind them. Click here

Collection: (Tasmanian Museum and Art Gallery Q1986.8.138). ‘Chain Gang Western Australia’. Photographer Alexander Morton 1897. Prepared by J. W. Beattie.

Much of the attention on Mr Ward’s case has focused on questions of transport, and especially the condition of the vehicle in which he was transported. Yet these questions must be located against the wider picture of the removal and dispersal of Aboriginal people across the state, of transportation away from Country to missions and reserves, as well as of enforced transport to prison in convoys by road and by boat.

According to historian Fiona Skyring, ‘The first legislative action by the colonial government that was specific to “the Aboriginal Natives of Western Australia” was the 1841 Act constituting the prison for Aboriginal offenders at Rottnest Island, off the coast of Fremantle… Rottnest Island [Wajemup] was used as an Aboriginal prison through to the early 20th Century. During World War 1 an internment camp for “enemy aliens” was also established there. Between 1893 and 1931, at least 3,670 Aboriginal people were incarcerated at Rottnest. They included men of all ages and boys, some as young as eight years old, brought from regions across Western Australia. The island is covered with unmarked graves of at least 373 Aboriginal men and youth who died there… Most of these people died from disease exacerbated by appalling conditions, and at least five Aboriginal men were executed at Rottnest’ (Fiona Skyring, Justice, 3-4).

Skyring notes that ‘Photos taken in the nineteenth and early twentieth centuries show rows of Aboriginal men in neck manacles and cuffs, chained together for a journey of thousands of kilometres along the coast from the Pilbara, Murchison Gascoyne and Kimberley regions to Fremantle jail’ (256).

 

 

Privatisation and Necro-Transport

To minimize instances of contemporary transport of prisoners away from their lands, Mr Ward’s community themselves paid for the first police station on their lands, contributing their CDEP funds to help construct a police lockup in Warburton, so that those incarcerated on minor charges were not removed to distant jails. The initiative demonstrates the importance the community placed on keeping prisoners on Country. Yet their wish continues to be denied, with destructive, and in this case fatal, consequences.

Contemporary transportations of prisoners are complicated by the involvement of private companies such as Global Solutions Limited (GSL now known as G4S), Serco and Broadspectrum. Indeed, the conditions of Mr Ward’s horrific death had been foreshadowed by years of unheeded warnings against the dangers of this mode of transport.

For both the Department and GSL, it was preferable to allow prisoners to continue being transported in substandard vehicles than to establish and enforce procedures that would ensure their safety. Apathy, indifference and racism meant that on a 40 degree day no checks were made to ensure that the air conditioning system was working.

Standard Operating Procedures: citing two earlier reports, the Coroner found ‘an abundance of information’ relating to the systemic problems with the design and condition of the vehicle fleet, ongoing issues with the functioning of air-conditioning and the predisposition of the vehicles to break down

  • Inspector of Custodial Services reports in 2001 and 2007
  • Complaints by GSL employees
  • Report by Car Air Wholesale in September 2001, identifying that the Mazda E2500 vehicles used for prisoner transport were ‘never designed to be used in remote locations in conditions of extreme heat.’

This catalogue of ‘systemic problems’ evidences the deployment of standard operating procedures that structurally work to injure or kill those captured within the everyday operations of the state’s normative regimes of policing, necro-transport and custodial quartering.

Precursors

2004: Transfer of Asylum seekers from Baxter Immigration Detention Centre (SA) to Marybyrnong Detention Centre (VIC)

The convoy included an escapee from the infamous Woomera camp for asylum seekers. A report found ‘Serious violations of the Immigration Detention Standards and of GSL’s External Transport and Escort Services Generic Operational Procedure’.

A separate complaint made by two of the prisoners, investigated by the Human Rights and Equal Opportunity Commission, found that during the first leg of the journey from Maribyrnong IDC to Mildura the human rights of the detainees were breached under Articles 7 and 10(1) of the International Covenant on Civil and Political Rights.

These cases exemplify the manner in which custodial regimes of necro-transport operate across a racialised spectrum that encompasses both Indigenous and refugee detainees. As these different cases evidence, detainees’ lives are placed at risk through the systemic breaching, by both state and non-state actors, of a number of basic rights.

2006: Sandfire Roadhouse Incident

14 Aboriginal prisoners being transported from Broome to Roebourne were locked in confinement cells in the back of a van after the air conditioning broke down. In response to this, former Minister for Corrective Services Margaret Quirk stated, ‘It is intolerable that in this day and age people should be treated to such inhumane conditions, and I have requested the Department that we scrutinise existing procedures to ensure that similar incidents do not occur in the future.’ 

Following this incident and Mr Ward’s death, the necrotransport of prisoners has continued. The death in 2009 of the non-Aboriginal man Mark Holcroft in a prison van operated by the New South Wales Corrective Services indicates that dangerous conditions were not confined to private prison transport, the treatment of prisoner transport as a commercial operation now works to amplify the manner in which prisoners lives are placed at risk within custodial regimes managed by both state and non-state actors.

In  mid-2017, the transfer of two women from Bandyup Women’s Prison in WA to the Frankland Centre (secure forensic mental health facility) triggered a review by the Office of the Inspector for Custodial Services (OICS). This included an Aboriginal woman who was transported while naked and distressed and a woman who was forced to complete 2 hours of punishment and confinement before being taken to the centre. The review notes, ‘…staff did not consider these incidents to be unusual, and did not recognise the need for the incident to be reported. This reflects an acceptance of events in a custodial environment, which would not be acceptable to the wider population‘.

 

 

 

 

The Contracting of a ‘Permissible’ Quota of Deaths in Custody

A Working Party established by the Deaths in Custody Watch Committee of WA highlighted how the disposability of lives in custody is written into the commercial contract between the corporate provider and the state (2009 24-25). One of the grounds for a ‘material breach’ of contract is the occurrence of ‘more than two separate and isolated instances of a death in custody’ in a service year (Hooker 2004, 29). This clause effectively permits the quota of two deaths in custody per service year before the contract can be terminated on this basis alone. It also allows for the interpretation of multiple deaths in custody as a single incident during prisoner transportation.

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Highway to Human Rights, Perth, 2009. Image: Kulture Jam.

Privatisation and the Proliferation of Racism

The cruel and callously racist treatment of Mr Ward by GSL/G4S officers is evident in all the investigative material. One of the guards, Nina Stokoe, in her statement to the Inquest described the elder as ‘a man in his 40’s, 50’s, Aboriginal with a dark skin. He was dirty’. The Inquest heard that despite entering the hospital ‘pulseless’, the word ‘dangerous’ was noted on his triage form.


‘I further agree with the submission to the effect that the state’s duty under international law to provide adequate care to persons deprived of their liberty is non-delegable, as under the Australian common law. In that context privatisation of prisoner transport services cannot remove from a state the duty of ensuring that human rights standards are met by contractors.’
Alastair Hope (State Coroner)


 

 

 

 

The recruitment practices of private companies like GSL/G4S are put in question in the context of the Orlando killing of Latino and gay people in 2016 by an employee of the company:

 


‘But time and again racist, misogynist and otherwise dangerous people have slipped through the company’s own screening process and been given power over vulnerable people. Repeatedly the company’s readiness to act in response to warnings has been found wanting.’
Clare Sambrook


 

 

 

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State Library of Western Australia <3231B/23>: Aboriginal prisoners in neck chains aboard the vessel N2, Western Australia, 1916. Photo: A.O. Neville.

Standard Operating Procedures: Institutionalised Racism


‘If the legislation had been complied with the deceased would not have been transported by GSL staff on 27 January 2008 and other arrangements would have had to have been made; he would not have died when he died.’
Alastair Hope (State Coroner)


In a process riddled with legal and procedural irregularities that lasted under 10 minutes, Mr Ward was condemned to go to his death in the rear pod of a van already known to be unsuitable. The catalogue of failures and breaches that mark Mr Ward’s death include:

• Failure to comply with the most basic requirements of the Bail Act

• Holding of a court session on Sunday, in direct contravention of a prohibition of such proceedings

• Failure to contact Aboriginal Legal Service (ALS)

• The illegal court session was conducted by a Justice of the Peace (JP) who proved to be ludicrously uninformed as to his duties

• The hearing took place at the entrance to Mr Ward’s cell only minutes after Mr Ward was roused from sleep and when he ‘still appeared heavily affected by alcohol’ (Thompson 1054)

Daisy Ward stands side-on, in front of an Aboriginal flag at the Fremantle prison. Her hand is held up while a woman paints the word 'racism' on her palm.

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Daisy Ward, Fremantle Prison, 2009. Photo: Desire Mallet.

From the moment of his arrest until his entry into the van the Laverton police and prison officials failed to follow basic guidelines and also failed to comply with the regulations for Aboriginal prisoners recommended by the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) almost three decades previously.

The catalogue of breaches, irregularities and failures that contributed to Mr Ward’s death emerges, in fact, as constitutive of the standard operating procedures  of the settler state in its management of Indigenous people held in its custody.

Characteristically, these only ever come to official light after the fact of an Indigenous death in custody, in such official reports as a coronial inquiry. Yet, while these breaches, failures and irregularities are part of the infrastructure of the state’s racialised policing and carceral operations, they are rarely ever addressed in terms of structural change, only as isolated breaches. The egregious failure by state bodies to implement the RCIADIC’s recommendations evidences the distinction between recognising structural factors and pinpointing individual infractions.

 

 

RELEVANT KEY TERMS: Standard Operating Procedure

Chronic Failures of the Justice System

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Daisy Ward and Mark Binns at John Pat memorial, Fremantle. Photo: Desire Mallet. 

 


The Coroner’s Inquiry in 2009 into Mr Ward’s death in custody exposed chronic failings in the justice system. The origins of these failings go back to the nineteenth century, when normal judicial processes were suspended specifically for Aboriginal people. The fundamental principle for equality before the law was removed and the denial of justice to one group of people undermined the whole system. Racially discriminatory legislation was repealed in the early 1970s, but after four decades of formal equality Aboriginal people continue to be the ones most disadvantaged by structural racism. (Skyring, Justice, 385).


A Fatal Zone of Lawful Indecision


‘In the above context a question arises as to whether or not the deceased was lawfully in custody at the time of his death. The original order in respect of his custody by Sergeant Timmers made on 26 January 2008 had been to attend the Laverton Magistrates Court on Sunday 27 January 2008 at 8:45am. While that order could be taken to have extended to 10:15am when Mr Thompson arrived at the police station, it is doubtful that the order could be extended to apply to a remand to the Kalgoorlie Court until 10am on 29 January 2008 and enable the transportation by GSL of the deceased in custody from Laverton to Kalgoorlie. For the purpose of these reasons it is not necessary for me to determine that legal question.’
(emphasis added)

Alastair Hope (State Coroner)


A cartoon featured on a protest flyer of people standing outside parliament house with placards demanding justice for Mr Ward and an end to deaths in custody. Text at the bottom of the image reads "What Eddie Mabo was to Native Title, let Mr Ward be to the justice system." Click here

Justice for Mr Ward Rally flyer, Perth, 2010. Image: First Nations Deaths in Custody Watch Committee Inc.

 

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‘We Pay Tribute to the Life of Mr Ward’, Perth, 2009. Photo: Alex Bainbridge.

No Accountability: An Institutional Abrogation of Responsibility

Evidence from GSL officers implied that, in their view Mr Ward bore the responsibility for informing them that he was dying.


The Inquest findings stated:

‘there was no effective system of communication available to him…The only form of a duress alarm was an unlabelled button in the pod…Even if the deceased had been able to locate the button and guessed its purpose…it is unlikely that the inadequate light on the dash was seen by the GSL officers’
Alastair Hope (State Coroner)


As a person in custody, Mr Ward was owed a ‘duty of care’, however he was quickly deemed unworthy of receiving it; in his death he was even blamed for not being able to compel his white ‘protectors’ to care for him.


‘Why did he not tell us? Why did he not bang on the side of the door and let us know there’s something wrong with him? We would’ve stopped if he had given any indication whatsoever that something was not right. I would’ve had Graham stop the vehicle instantly. As soon as he collapsed I had him stop the vehicle. If he had just let us know. I have had that with me since it happened.

‘He was just – my job for the day was to go and pick this gentleman up and take him to where he had to go, and that’s exactly what I did, except that I just wish the man had let me know that he wasn’t well so we would have stopped the vehicle.’
Nina Stokoe (GSL Escorting Officer), inquest transcript


 

An Open Finding: Systemic Failure of Coronial Inquiry to Deliver Justice

A woman at a protest holds a large, painted cardboard placard that reads "Wheres the Justice".

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‘Wheres the Justice’, Perth, 2009. Photo: Alex Bainbridge.

 


‘I accept that in the context of this avoidable death, as stated in the submissions on behalf of the Aboriginal Legal Service, “there is anger, disbelief, emptiness and calls for justice.” In that context I do not wish to create unrealistic expectations on the part of the family or the hope that they will see “justice” as a result of such a report being made.

Alastair Hope (State Coroner) 


‘I am precluded by section 25(5) of the Coroners Act 1996 from making a finding which would appear to suggest that any person is guilty of an offence and so I am not able to determine whether the death arose by way of unlawful homicide or misadventure. It is in that context I make an open finding as to how the death arose.’

Alastair Hope (State Coroner)


 

A Fatal Zone of Indistinction: Breaches of Rights with Impunity vs the Law of the Land


‘I am satisfied that the deceased was subjected to degrading treatment and he was not treated with humanity and with respect for the inherent dignity of the human person. There has been, therefore, a breach of the ICCPR. (International Covenant on Civil and Political Rights).’

Alastair Hope (State Coroner)


In the disjunction between the Coroners Act 1996 that precludes anything other than an  ‘open finding’ and Coroner Hope’s conclusion that Mr Ward was ‘subject to a breach of the ICCPR’ there lies a telling zone of indistinction, an unacknowledged gap between national and international law, between criminal conviction and breaches of civil and human rights. Justice for Mr Ward, as for many other casualties of state violence, remains consigned to this zone of indistinction and inaction.

Daisy Ward sits in front of a memorial for John Pat at the Fremantle prison, holding a bunch of pink flowers. She is looking directly into the camera lens.

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Daisy Ward at John Pat Day Memorial Service, Fremantle, Western Australia, 2009. Photo: Desire Mallet.

 

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‘Ngarltutjarra Mularrpa Tjamu Mirri: It is truely too sad Grandfather is dead’ Whadjuk Country (Perth), 2010. Photo: Desire Mallet.

The Aftermath

 

What happens to a community after a death in custody? How do the recommendations and the protest actions that occur at a vast remove impact on communities?

The loss of a significant leader, and the trauma resulting from the manner of his death, has had severe consequences for Mr Ward’s community.

It has also provided opportunities for increased management strategies and neoliberal measures such as income management to be put in place, leading in some instances to a fracturing of community.

Mural in Perth that reads "What Eddie Mabo was to native title let Mr Ward be to the justice System. No more deaths in custody. www.deathsincustody.org.au."

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‘No More Deaths in Custody’ mural, City Farm Perth, Western Australia. Photo: Desire Mallet.

 

 

Collective Retributive Punishment

 

An Elder told us:

‘Truly transport is a part of the Deathscape.’

 

 

Following Mr Ward’s death a low security work camp for prisoners was built closer to the community at  a vast cost–and then mothballed for several years. Prisoners continued to be transported to Kalgoorlie or even further to Acacia prison for incarceration.

A proposed memorial Ward Highway, allowing prisoners to travel back to Country for funerals has not eventuated. For several years, no prisoners were returned to Country to attend funerals as had been the previous practice.

Within the community there is a strong sense that the failure to return prisoners for the funerals of immediate families is motivated not only by cost, but is a form of punishment of the community. In 2016 the failure to bring back a member of Mr Ward’s family for the death of a close family member caused great grief and anger in the community.

Globalizing Deathscapes: Necrotransport and Privatisation

Other case studies that underscore the globalised dimensions to governments relying on private companies like G4S to outsource transport, incarceration and ultimately state killings include:

Jimmy Mubenga and the plane (UK)

Extraterritorial Killings: The weaponisation of bodies (Australia)

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John Pat Memorial, Fremantle, Western Australia, 2009. Photo: Desire Mallet.

The Road: Passage Through the Deathscape

 

This case study was collectively authored by the Australian hub of the Deathscapes project: Michelle Bui, Dean Chan, Suvendrini Perera, Joseph Pugliese, Charandev Singh.

To cite this research: Michelle Bui, Dean Chan, Suvendrini Perera, Joseph Pugliese, and Charandev Singh. ‘The Road: Passage Through the Deathscape’. Deathscapes: Mapping Race and Violence in Settler States, 2017, https://www.deathscapes.org/case-studies/the-road-passage-through-the-deathscape.

Corresponding author: [email protected]

 

Special Thanks: 

 Daisy Ward

 Jan Turner

The late Marc Newhouse

Kerry (Kopi) Fletcher

Alex Mesker

Crisis Support Lines:

Lifeline (Aus): 13 11 14
A free interpreting service for people who do not speak English is available for 13 11 14. To access this service please:
1) Call TIS on 131 450 and ask to talk to Lifeline on 13 11 14 in the language required.
2) TIS will call 13 11 14 on behalf of the caller.
Crisis Services Canada (Can): 1 833 456 4566
Samaritans (UK): 116 123
Suicide Prevention (US): 1-800-273-8255
International Support: International Association for Suicide Prevention and www.befrienders.org

Counselling Services:

WA: Association for Services to Torture and Trauma Survivors (ASeTTS)

NSW: Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS)

VIC: Foundation House -The Victorian Foundation for Survivors of Torture Inc.

QLD: Queensland Program of Assistance to Survivors or Torture and Trauma (QPASTT)

ACT: Companion House

NT: Melaleuca

SA: Survivors of Torture and Trauma Assistance and Rehabilitation Service (STTARS)

TAS: Phoenix Centre

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