Custody Notification Services

14.78  Custody Notification Services (CNS) are state or territory-wide 24-hour, 7-day a week telephone legal advice services available to Aboriginal and Torres Strait Islander people who have been detained in custody. CNS lawyers provide legal advice in a culturally sensitive manner, and are trained to detect and respond to issues such as threats of self-harm or suicide, or any injuries sustained during arrest.

14.79  All states and territories have arrangements in place to notify the relevant Aboriginal and Torres Strait Islander legal service (ATSILS) when an Aboriginal or Torres Strait Islander person is detained in police custody.^[109]

14.80  The nature of these arrangements range from a limited obligation in the NT to take reasonable steps to obtain legal assistance if requested^[110] with no concomitant duty to inform an individual of their right to legal counsel, to a requirement in Victoria for police to notify Victorian Aboriginal Legal Services (VALS) within 60 minutes of an Aboriginal person being detained in custody for any reason.^[111] An obligation to notify is provided for in legislation or regulation in relation to Commonwealth offences and in the ACT and NSW.^[112]

14.81  The RCIADIC recommended that: ‘in jurisdictions where legislation, standing orders or instructions do not already so provide, appropriate steps be taken to make it mandatory for Aboriginal Legal Services to be notified upon the arrest or detention of any Aboriginal person.’^[113]

14.82  The RCIADIC recommendation seeks to improve compliance with police practices and procedures by permitting

Aboriginal people to receive legal advice delivered in a culturally sensitive manner at the earliest possible opportunity in order to prevent them from acquiescing to police demands in a manner which could jeopardise subsequent court proceedings.^[114]

14.83  The recommendation also protects the welfare of Aboriginal and Torres Strait Islander people in custody by facilitating a welfare check.

14.84  Stakeholders emphasised that implementation of CNSs must be accompanied by adequate, ongoing funding. Legal Aid ACT, while broadly supportive, suggested that there ought to be an option to request a service other than an ATSILS at first instance, and that the obligation may be met by requiring contact with a non-legal service provider, who may then coordinate access to a lawyer.^[115] The ALRC accepts that it is important for both reasons of choice and confidentiality that a detained person be given the opportunity to nominate that a service provider other than an ATSILS be contacted in the first instance. Recommendation 12–3 does not preclude this option. Obtaining the detained person’s consent prior to making contact can facilitate this choice and already occurs in some jurisdictions.

14.85  However, in light of the twofold goals of the custody notification scheme—welfare checking and preventing Aboriginal and Torres Strait Islander people in custody from acquiescing to police demands—the ALRC considers that it is preferable that the notification requirement be tied to contacting an ATSILS or equivalent service, including, for example Legal Aid.

Legislative requirement

14.86  A legislative requirement to notify an ATSILS when an Aboriginal and/or Torres Strait Islander person is detained in police custody reflects the importance of this safeguarding measure. It also ensures that the terms of the specific obligation are publicly available and discoverable, and less susceptible to change. By contrast, in some jurisdictions police manuals—which often contain the requirement to notify—are only available for purchase in disc format,^[116] and may be changed more frequently reflecting their status as internal procedures and policies. Stakeholders expressed strong support for the ARLC’s recommendation.^[117] NATSILS submitted, for example that

there is a clear need for notification requirements and procedures to be enshrined in legislation so as to create a system of notifications that is either mandatory in all instances, or at the very least consistent in application to prevent ad hoc compliance.^[118]

14.87  Ms Tegan Kelly submitted that the RCIADIC recommendation was intended as an interim measure, and suggested that the ALRC consider making a recommendation along the lines of the RCIADIC’s recommendation 223 relating to the development of local accords and protocols. While noting the historical support for a mandatory duty to notify, and the role that ATSILS can play in ‘reduc[ing] the disadvantage faced by Aboriginal and Torres Strait Islander people in their interactions with police’, she argued that ‘it is worthwhile investigating further whether a local level protocol would be a better approach to establishing such a duty’.^[119]

14.88  As discussed further below, the ALRC values and encourages the development of cooperative initiatives between police and Aboriginal and Torres Strait Islander communities that build goodwill and promote a constructive relationship. However, as submitted by NATSILS, incorporation of a statutory duty guards against ad hoc compliance. It may also, in some circumstances, act as a catalyst for the development of relationships and initiatives of this kind.

Detention in custody for any reason

14.89  In the Discussion Paper, the ALRC proposed that the statutory requirement to notify should apply when an Aboriginal and/or Torres Strait Islander person is detained in custody. The Human Rights Law Centre and ALSWA urged the ALRC to clarify that the obligation arises irrespective of why the Aboriginal and/or Torres Strait Islander person is detained in police custody—that is, it should not be limited to detention in custody in relation to an offence.^[120] They highlighted, for example, that a person may be detained for other reasons, such as in protective custody,^[121] or in relation to outstanding warrants.^[122]

14.90  The ALRC agrees with such an approach. The recommendation reflects the nature of this obligation. Policies, procedures and manuals in Victoria and Tasmania already explicitly require notification where there is detention ‘for any reason’,^[123] or in every case where an ‘Aboriginal person is in custody’.^[124]

Timing of notification

14.91  Ensuring that police notify the relevant legal service as soon as possible after an Aboriginal and/or Torres Strait Islander person is detained in custody is crucial in safeguarding the person’s welfare and rights. The ALRC considers that states and territories should set a maximum time limit within which the notification must occur. While the ALRC does not make a specific recommendation about what the time limit should be, it notes that, in Victoria, police are required to notify VALS within 60 minutes of the person arriving at the police station.^[125]

14.92  Legal Aid NSW raised concerns that attempts by the Commonwealth Government earlier this year to amend s 23H(1) of the Crimes Act 1914 (Cth) could ‘water down’ the notification requirement. ^[126] The proposed amendment would have had the effect of amending s 23H(1) to read ‘if the investigating official in charge of investigating a Commonwealth offence … must, immediately before starting to question the person’ notify the relevant ATSILS. The explanatory memorandum to the Bill stated that the amendments sought to:

provide legislative certainty following the case of R v CK [2013] ACTSC 251 (R v CK). In that case, the court found that the wording of subsection 23H(1) did not require an investigating official to notify an Aboriginal legal assistance organisation prior to commencing questioning. This finding is contrary to the intention of subsection 23H(1), which is to implement safeguards for Aboriginals and Torres Strait Islanders arrested or taken into custody, giving effect to recommendation 224 of the report by the Royal Commission into Aboriginal Deaths in Custody (RCIADIC). This recommended that governments take steps (in jurisdictions where such arrangements were not already in place) to make it mandatory for an Aboriginal legal assistance organisation to be notified upon the arrest or detention of any Aboriginal or Torres Strait Islander. The amendments to section 23H clarify that an investigating official must notify an Aboriginal legal assistance organisation prior to commencing questioning of a suspect.

14.93  While it is unlikely that a court, faced with a provision in those terms enacted for the reasons set out above, would interpret the provision in a manner that waters down any notification obligation, the ALRC considers that the preferable policy approach would be to:

·             impose a prohibition on police asking the detained person any questions other than to determine their Aboriginality or obtain their consent to the notification; and

·             set a maximum time after the person’s arrest within which notification must occur.