Custody Notification Service

Proposal 11–3           State and territory governments should introduce a statutory custody notification service that places a duty on police to contact the Aboriginal Legal Service, or equivalent service, immediately on detaining an Aboriginal and Torres Strait Islander person.

11.73  State and territories currently operate a notification system whereby an ALS practitioner or equivalent is contacted when an Aboriginal or Torres Strait Islander person is detained in police custody. In NSW, this is a legislated duty.[104]

11.74  The Custody Notification Service (CNS) is a 24-hour, 7-day a week telephone legal advice service for Aboriginal and Torres Strait Islander people that have been taken into custody in NSW and the ACT.[105] The NSW CNS was set up in response to the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) to prevent deaths in custody in NSW. Since then there has been no deaths in custody in NSW where the CNS was used.[106]

11.75  The NSW CNS is legislated under cl 37 of the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW):[107]

37 Legal assistance for Aboriginal persons or Torres Strait Islanders

If a detained person or protected suspect is an Aboriginal person or Torres Strait Islander, then, unless the custody manager for the person is aware that the person has arranged for a legal practitioner to be present during questioning of the person, the custody manager must:

(a) immediately inform the person that a representative of the Aboriginal Legal Service (NSW/ACT) Limited will be notified:

     (i) that the person is being detained in respect of an offence, and

     (ii) of the place at which the person is being detained, and

(b) notify such a representative accordingly.

11.76  The provision  prescribes that when an Aboriginal and Torres Strait Islander person in NSW is taken into custody the police must contact the ALS, and advise them of this fact.[108] The Aboriginal and Torres Strait Islander person in custody is then provided over-the-phone legal advice, with CNS lawyers trained to detect and respond to issues such as threats of self-harm or suicide, or any injuries sustained during arrest.[109]

11.77  There have been moves to legislate a CNS in Western Australia,[110] with the Western Australian Coroner’s Court and the Australian Lawyers for Human Rights both recently advocating for the implementation of a legislated CNS in that state.[111] Stakeholders in this Inquiry have stressed the importance of having a mandatory legislative duty to notify and urged its introduction in other states and territories.

11.78  Stakeholders have explained that the CNS is critical to the welfare of Aboriginal and Torres Strait Islander peoples and their access to justice, and the ALRC welcomes submissions regarding the proposal to extend a legislated duty to notify to every jurisdiction.

[104]         Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) cl 37.

[105]         The CNS operates in both ACT and NSW but is only legislatively imposed on police in NSW.

[106]         Senate Finance and Public Administration References Committee, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (2016) 86.

[107]         The provision was previously cl 33 under the Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW).

[108]         Senate Finance and Public Administration References Committee, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (2016) 85.

[109]         Aboriginal Legal Service (NSW/ACT), Custody Notification Service <www.alsnswact.org.au/pages/
custody-notification-service>.

[110]         Senate Finance and Public Administration References Committee, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (2016) 87–8.

[111]         Human Rights Law Centre and Change the Record Coalition, Over-Represented and Overlooked: The Crisis of Aboriginal and Torres Strait Islander Women’s Growing Over-Imprisonment (2017) 7, 40; Inquest into the Death of Ms Dhu (11020–14) (Unreported, WACorC, 16 December 2016) 157.