The case for an independent national custodial deaths authority

Thirty years after the Royal Commission, deaths in custody continue and accountability remains optional, writes Gerry Georgatos.

AUSTRALIA’S RECORD of deaths in prison and police custodial settings is alarming. Eighty per cent of the deaths are of Australians not of First Peoples heritage. Twenty percent of the deaths are of First Peoples. A significant proportion are unnatural deaths, not of natural causes. Since the end of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC), there have been more than 620 deaths in custodial settings of First Peoples. In this period, there have more than two and half thousand deaths of other Australians. This bespeaks of a barbarous array of institutional practices — a punitive prisons system, zero tolerance cultures with police and prison officers, maladaptive rogue behaviours, reductionist humanity. Thirty-four percent of the prisoner population is comprised of First Peoples. Prisons are a heart-wrenching abomination.

It is not just the total number of deaths in custody but so too the rates — particularly of suicides and other non-natural causes.

The deaths in custody of First Peoples remains one of the most enduring human-rights failures of Australia’s legal system. The RCIADIC delivered its 339 recommendations in 1991, yet though some recommendations have been scaled in, the most significant ones have not. Despite multiple inquiries and overlapping oversight mechanisms – coronial, police-internal, and parliamentary – the structural conditions enabling impunity, continue to persist. The absence of an independent, well-resourced, and nationally consistent investigative and prosecutorial body undermines both public confidence and the rule of law. This article argues for the establishment of an Independent National Custody Deaths Authority (INCDA) through Commonwealth legislation, grounded in principles of accountability, transparency, cultural safety, and self-determination. We need a firmament of legislation to ensure accountability and systemic repair.

The argument proceeds doctrinally and socio-legally. It analyses existing accountability frameworks; draws on empirical data from coronial reports, the Australian Institute of Criminology (AIC), and human-rights monitoring; and engages comparative analysis with New Zealand’s Independent Police Conduct Authority (IPCA) and the United Kingdom’s Independent Office for Police Conduct (IOPC). The article concludes by proposing detailed legislative provisions for an INCDA, illustrating how such an institution could meet Australia’s domestic and international obligations under the International Covenant on Civil and Political Rights (ICCPR) and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

Current legal and institutional frameworks are incapable of preventing foreseeable deaths and self-harming. There is fragmented accountability. At present, deaths in custody are investigated through a patchwork of state and territory mechanisms. Police or corrections internal affairs units often undertake the initial investigation—an arrangement long criticised for conflict of interest. Coronial inquests follow, but coroners lack prosecutorial power; their findings are frequently delayed, under-resourced, and inconsistently acted upon. The Commonwealth’s role is limited to funding programs or responding to intergovernmental agreements, without any binding national oversight regime.

The RCIADIC, in Recommendation 6, called for independent investigation of every death in custody, with transparency and First People participation. Yet most jurisdictions continue to rely on internal police investigations subject to limited external review. The persistence of systemic failures, including inadequate medical care, over-policing, and excessive use of restraint, indicates the doctrinal limits of existing administrative law and criminal liability frameworks.

Human rights obligations

Internationally, Australia is bound by ICCPR articles 2, 6 and 7, requiring effective investigation and remedy where state agents are implicated in deaths or ill-treatment. The Human Rights Committee has repeatedly emphasised that such investigations must be independent, prompt, transparent, and capable of leading to prosecution where warranted. The Optional Protocol to the Convention Against Torture (OPCAT), ratified in 2017, obliges establishment of National Preventive Mechanisms (NPMs) to inspect places of detention, yet OPCAT focuses on prevention, not post-death investigation.⁷ Thus, a gap remains between preventive oversight and reactive accountability

The case for an independent national custody deaths authority

Doctrinal and policy rationale

From a doctrinal standpoint, the creation of a statutory authority aligns with federal competence under s 51(xxix) (external affairs) and s 51(xxvii) (immigration and aliens) to implement human-rights obligations and regulate custodial settings operated by or under Commonwealth influence. Complementary state referrals under s 51(xxxvii) could confer full national coverage.

The INCDA would fill the accountability vacuum by separating investigation from implicated agencies, satisfying common-law standards of impartiality. Ensuring prosecutorial referral through statutory power akin to a Director of Public Prosecutions (DPP) but independent from existing DPP offices. Embedding participation of First People consistent with UNDRIP articles 18 and 19, guaranteeing that First Peoples participate in decisions affecting them. Consolidating data and systemic review to address patterns of neglect, discrimination, and cultural unsafety.

Empirical imperatives

Empirical data reinforce the urgency. AIC’s 2023 monitoring found that First People constitute over 30% of the national prisoner population yet only 3% of the general population. Medical neglect, failure to implement care plans, and delays in emergency response remain recurring findings in coronial reports. Studies by Deloitte Access Economics (2022) estimate economic costs of preventable deaths exceeding $1 billion over three decades — an ethical and fiscal indictment.

Public confidence surveys reveal widespread mistrust of police-led investigations among First People communities. Without structural reform, the legal system perpetuates what scholars describe as epistemic injustice: the silencing of First People’s accounts within legal processes.

Comparative Lessons

New Zealand’s IPCA provides a persuasive model. Established under the Independent Police Conduct Authority Act 1988 (NZ), it is statutorily independent, empowered to investigate any death or serious harm involving police, and to make binding recommendations. Its mixed membership includes Māori representation, and it reports publicly. The UK’s IOPC operates similarly, though with less poly-cultural engagement. Both demonstrate that genuine independence, clear mandate, and statutory access to evidence are critical for credibility.

Australia lacks an equivalent national body. Some states have internal police integrity commissions, but their jurisdiction does not encompass deaths in prison or youth detention, and none guarantees the participation of First People.

Proposed legislative framework

1. Foreseeability, Rights, Duty of Care

Independent National Custody Deaths Authority Act 2026 
Purpose: To establish an independent statutory authority responsible for investigating, reporting, and referring for prosecution all deaths and serious harms occurring in custody or during police operations across Australia; to ensure cultural safety and compliance with international human-rights obligations.

2. Objects clause

The objects are to — (a) ensure prompt, thorough, and impartial investigation of all custody deaths and serious injuries; (b) promote accountability, transparency, and systemic reform; (c) guarantee the participation of First Peoples and other cultures in oversight and governance; (d) fulfil Australia’s obligations under the ICCPR and OPCAT.

3. Establishment and independence

1. The Independent National Custody Deaths Authority (INCDA) is established as a body corporate.
2. The Authority acts independently of the police, corrective services, and executive government.
3. The Authority reports directly to Parliament through the President of the Senate and the Speaker of the House of Representatives.
4. Appointment of the Commissioner and Deputy Commissioners (at least one being an Aboriginal or Torres Strait Islander person) is by the Governor-General on joint parliamentary recommendation.

4. Jurisdiction

1. The Act applies to all deaths and serious injuries occurring:
   (a) in police or corrective services custody;
   (b) during apprehension, pursuit, or restraint by police or authorised officers;
   (c) in immigration detention, mental-health detention, or youth justice facilities;
   (d) within 48 hours of release from custody where death may be causally connected to custodial conduct.
2. The Authority may assume jurisdiction concurrent with or in substitution for state investigations upon notification.

5. Powers and functions

(a) investigate deaths and serious harms in custody;
(b) compel production of documents and attendance of witnesses;
(c) enter and inspect any place of detention;
(d) conduct public or private hearings;
(e) make findings on cause, circumstances, systemic factors, and potential criminal liability;
(f) refer matters to the Commonwealth, State, or Territory DPPs;
(g) issue public reports and recommendations binding on custodial agencies unless overturned by Parliament;
(h) maintain a National Custody Deaths Register and by each state or territory a self-harms register; and
(i) provide policy advice on prevention and reform.

6. Procedural safeguards

1. Investigations must commence within 48 hours of notification.
2. Families and relevant First People community representatives have a statutory right to participate, to receive updates, and to be represented.
3. Proceedings must observe trauma-informed and culturally safe practice.
4. The Authority must publish findings within twelve months unless delay is justified.

7. Relationship with coroners

1. Coronial inquests may proceed concurrently, but the Authority’s findings are admissible and prima facie evidence of fact.
2. Coroners may adopt or rely upon INCDA findings to avoid duplication.
3. Memoranda of understanding will ensure evidence sharing.

8. Offences and contempt

1. Failure to cooperate, providing false information, or interference with witnesses constitutes an indictable offence.
2. Retaliation against complainants or family members attracts aggravated penalties.

9. Accountability and reporting

1. The Authority must table an Annual Report detailing each case, recommendations, agency responses, and implementation status.
2. The Auditor-General and Parliamentary Joint Committee on Custody Deaths Oversight monitor performance.
3. A five-year statutory review must assess effectiveness, independence, and community trust.

10. Funding and resources

1. Annual appropriation is hypothecated under the Act to ensure financial independence.
2. A portion of Commonwealth GST revenue (0.05%) is earmarked to fund the Authority and victim-support services.
3. Staff must include legal practitioners, forensic experts, cultural advisers, and First People liaison officers.

Doctrinal integration and constitutional soundness

The Act’s independence is constitutionally defensible. Investigatory functions fall within executive power under s61 but can be vested in a statutory corporation to secure insulation from ministerial control, analogous to the Australian Human Rights Commission. Its jurisdiction over state custodial settings would rely on referrals under s51(xxxvii), like cooperative schemes such as the National Redress Scheme. Importantly, concurrent operation with coroners does not infringe Chapter III judicial power since the Authority makes administrative, not binding judicial, determinations.

Research paradigm and ethics

For First People, the proposal embraces an ‘Indigenous’ research paradigm grounded in relationality, respect, and reciprocity. This means the Authority’s structure must not merely include First People but be co-governed by them. Ethical practice requires that families of the deceased are not mere subjects of inquiry but partners in truth-telling. All data collected must remain accessible to communities for healing, advocacy, and memorialisation. This aligns with the AIATSIS Code of Ethics for Aboriginal and Torres Strait Islander Research (2020), emphasising ‘Indigenous’ data sovereignty.

Expected outcomes and benefits

A national authority would:

• replace conflict-ridden police self-investigation with an independent model;
• deliver consistent, timely, trauma-informed investigations;
• provide enforceable recommendations and systemic reporting;
• enhance prosecutorial follow-through for criminal negligence or misconduct;
• foster public trust and fulfil international human-rights obligations; and
• generate a consolidated empirical base for preventive reform.

The Authority’s public reporting function would echo the UK IOPC’s transparency practices, publishing anonymised case summaries and implementation matrices. This data could guide evidence-based policy and align with existing OPCAT NPM functions to close the loop between prevention and accountability.

Three decades of inquiries have yielded eloquent reports but little systemic change. The recurring tragedies – most recently those of Cleveland Dodd, Ms Dhu, and others – underscore that fragmented jurisdiction breeds impunity. The proposed Independent National Custody Deaths Authority Act 2026 offers a doctrinally sound, empirically justified, and ethically grounded mechanism to ensure that every death in custody is investigated independently, with truth, justice, and cultural safety at its core. Such legislation would not only honour the unimplemented spirit of the RCIADIC but also mark Australia’s maturity in reconciling law with its moral duty to its First Peoples. Despite recurring tragedies, sadly, systemic changes do not eventuate without laws to compel the reforms.

Gerry Georgatos is a suicide prevention and poverty researcher with an experiential focus on social justice.

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