The family of Dunghutti man David Dungay will make a complaint to the United Nations after becoming frustrated with a lack of accountability over his death in custody nearly six years ago.
Mr Dungay died in Sydney's Long Bay jail in December 2015 after guards rushed to his cell to stop him eating biscuits, dragged him to another cell, then held him face down and injected him with a sedative.
Before Mr Dungay died he said 'I can't breathe' a dozen times.
His mother Leetona wants the UN to hold the Commonwealth and New South Wales Governments accountable over their failure to take action on preventing First Nations deaths in custody in Australia.
"I want the world to know that Australia is failing to protect the lives of Indigenous people," she said.
"No one has been charged with my son's death, that's why we need to go to the international stage to seek justice."
Ms Dungay will be making a complaint to the UN about the authorities' failure to protect her son's right to life.
Leetona Dungay, the mother of the late David Dungay Jr, speaks during a press conference at NSW Parliament in Sydney. Source: AAP
She said she has exhausted all avenues for justice in Australia, so now wants to take her fight further.
"My son had the right to live, he had the right to be safe from harm and I have the right to demand accountability and justice for what happened to David," she said.
"The government and the prison had a duty of care to keep David safe, with people who were trained properly to keep him alive.
"The system failed and David lost his life because of the failure."
'Australia is failing'
Ms Dungay is working with a team of legal practitioners on her complaint, including George Newhouse, Craig Longman, Larissa Behrendt, Jennifer Robinson and Geoffrey Robinson.
The Dungay family's legal team said they will be engaging with the UN Human Rights Commission and international experts to hold the Australian Government accountable for its inaction on deaths in custody.
"Australia has been failing to implement, not just the Royal Commission inquiries but the recommendations of UN bodies over the past 20 years," international human rights lawyer Jennifer Robinson said.
"Australia needs to take firmer action, both in relation to the disproportionate incarceration of Indigenous Australians in this country but also in taking firm action to stop future deaths in custody."
But Larissa Behrendt, from the Jumbunna Institute at UTS, which has been working with the family for years, said these steps are not taken lightly.
Human rights law lawyers are set to bring the death of indigenous man David Dungay Jr in NSW custody in 2015 to an international audience. Source: AAP
"We can't take these kinds of steps to take a case like Leetona's internationally unless we have exhausted all domestic remedies," she said.
"... there is nothing left within the Australian legal system that gives Leetona the ability to find justice and some sort of closure."
"We are really committed to make sure that in taking this action, it isn't taken lightly."
'Real justice'
David's cousin Lizzie Jarrett drew comparisons between his death and that of George Floyd, who also called out 'I can't breathe' a number of times in the moments before his death.
The difference, she said, is the man who killed Floyd has now been convicted of his murder.
"George Floyd's killer has been tried and convicted," she said.
"President Biden has met with his family and applauded his conviction.
"Where is the Australian Government for my family? Where is the Australian Government calling for the real justice and the real change we need to see as Aboriginal people?"
David's mother hopes this step will lead to real justice for her, her family and for her son.
"I want the United Nations to tell the Australian Government to change its ways," she said.
"All I want is justice. I want real justice, where the life of an Aboriginal man is worth something.
"I'm going to keep fighting until we live in a country where Black lives matter."
