Only WA and NT have agreed to a custody notification service similar to that in place in NSW, despite offer of federal funding

This article is more than 2 years old

This article is more than 2 years old

The Indigenous affairs minister, Nigel Scullion, says he is “disappointed” that only two of Australia’s states and territories have accepted the federal government’s offer to fund a lifesaving custody notification service, two years after he made the offer.

Western Australia and the Northern Territory have agreed to create the custody notification service (CNS), a 24-hour legal advice and RU OK phone line for Aboriginal people taken into police custody.

New South Wales, which has had the service since 2000, remains the only jurisdiction to have the legislated obligation in place.

Under NSW law, police must contact Aboriginal Legal Service as soon as possible whenever an Aboriginal or Torres Strait Islander person is taken into custody for any reason, even if they are not charged with a crime.

The NSW service takes about 15,000 calls a year, and only one Indigenous person has died in police custody since it was implemented 18 years ago.

Scullion wrote to the relevant ministers of every state and territory in Australia in 2016 offering three years’ funding, provided that service followed the NSW model.



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The Australian Law Reform Commission has also recommended a national roll-out of the CNS. The National Aboriginal and Torres Strait Islander Legal Service (Natsils) also called for a mandatory national roll-out, after the launch of Deaths Inside on Tuesday.

“With the flick of a pen, governments could easily save lives with this simple solution,” Natsils co-chair Cheryl Axleby said. “Yet this political handball continues to cost Aboriginal people’s lives. All governments must step up to fund and implement mandatory custody notification services across Australia in partnership with Atsils.”

But the response from the states and territories has been mixed.

“I am disappointed that only the WA and NT governments have accepted my offer and I am optimistic that a Custody Notification Service (CNS) will be operating in those jurisdictions as soon as possible,” Scullion told Guardian Australia.

“A mandatory legislated Custody Notification Service is a critical first step in preventing needless Indigenous deaths in police custody. I urge all other states to take up my offer for the sake of the lives of Aboriginal and Torres Strait Islander people in custody.”

Despite not accepting the funding offer, Victoria is likely to be the next state to put a CNS into law. Police procedures in that state already require officers to contact the Victorian Legal Service within 60 minutes, or as soon as practicable, of an Indigenous person being taken into custody for any reason.

Legislation before the Victorian parliament will make that mandatory, and the attorney general, Martin Pakula, said he expected it to pass “as quickly as possible.”

Pakula said the legislation “reaffirms our commitment to access to justice for Aboriginal and Torres Strait Islander people, who face disadvantage and over-representation in the criminal justice system.”

In WA, the Barnett government – which was in power when Ms Dhu died, in circumstances that the coroner found may have been avoided had a CNS been in place – denied the need for the scheme, saying that existing police protocols around contacting the Aboriginal Legal Service were sufficient.

The McGowan government, which took power in March 2017, said the CNS would be in place before the end of 2018.

In a statement to Guardian Australia, the WA attorney general, John Quigley, said that the legislation establishing the CNS had been drafted, but could not be enacted until the supporting mechanism, which is a 24-hour hotline run by the Aboriginal Legal Service of WA (ALSWA), is in place. Negotiations for a funding agreement between the federal government and ALSWA are ongoing.

ALSWA does not currently have enough lawyers to staff a 24/7 service, and Guardian Australia understands negotiations have slowed over projected operating costs with include some additional staff.

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“The state government hopes the Aboriginal Legal Service will soon be in a position to operate this lifesaving service,” Quigley said.



Negotiations in other states have stalled. The former Labor government in South Australia was in discussion with Scullion’s office, but the Liberal government, which took power in March, is not.

“South Australia currently has an administrative arrangement in place to ensure South Australian police notify the Aboriginal Legal Rights Movement of any Indigenous person taken into police custody, at the first instance,” the SA attorney general, Vickie Chapman, said. “Broader work exploring legislating for such a scheme is continuing.”

Queensland has said that a CNS would duplicate “reliable and robust current measures” that Queensland Police Service (QPS) already has in place.

A spokesman for the Queensland police minister, Mark Ryan, said introducing a mandatory CNS “would require significant information technology systems modification by the QPS and a substantial human resource and financial impost to [Aboriginal and Torres Strait Islander Legal Service Queensland].”

“QPS regularly assesses the current system and, during its recent evaluation, the Aboriginal and Torres Strait Islander Legal Service Queensland indicated their support for the model currently in place.”

A spokeswoman from the Tasmanian government said the proposal was also under consideration in that state, with no decisions yet made.

It also said there is an existing arrangement in place with the Tasmanian Aboriginal Community Legal Service to ensure it is notified “in every case where an Aboriginal person is in custody.”

The Northern Territory government did not respond to requests for comment.