NSW ditches another protection for Indigenous people in custody

The federal government is poised to abolish the Custody Notification Service in New South Wales through a funding cut on July 1 – for the sake of saving A$526,000 a year. For that modest amount, the service provides NSW with one of the most effective strategies in curbing Indigenous deaths in police custody.

The service is a telephone hotline that provides Indigenous prisoners in police custody with personal and legal advice. It also ensures that they receive adequate health care while monitoring their treatment by police.

NSW Aboriginal Legal Services CEO Kane Ellis has told me that the service is a “transparency measure” that “increases the professionalism of police”. It provides Indigenous people with assistance that is often:

… as simple as getting a person essential medication that can save a life.

Why the service is essential

At last count in 2013, Indigenous deaths in custody had spiked to all-time highs in other states and territories where the service has not been implemented, as well as among Indigenous prison populations.

However, since the service was implemented in NSW in 2007, the state has had no Indigenous deaths in its police cells, watch-houses and during transport procedures. In that time, other states and territories have recorded 11 Indigenous deaths in police custody.

The Royal Commission into Aboriginal Deaths in Custody in 1991 recommended the establishment of the Custody Notification Service. The reasons why the service must continue reflect the commission’s major findings. These are reasons that state and federal governments have mostly ignored since 1991.

The royal commission found that Indigenous people die in custody at much higher rates than non-Indigenous people. This is primarily because they are taken into custody at much higher rates than non-Indigenous people.

In NSW, rates of Indigenous imprisonment are currently 24%. However, Indigenous people make up less than 2.9% of the population. This is a higher per capita rate than in the Northern Territory, where 86% of inmates are Indigenous. Indigenous people comprise 29.8% of the population.

Put differently, in NSW, Indigenous people are more than eight times more likely to be imprisoned than non-Indigenous people. In the Northern Territory, they are less than three times as likely to be imprisoned.

The Custody Notification Service helps prevent Indigenous deaths in both police and prison custody by addressing the problem of over-representation of Indigenous offenders in prison through the provision of legal advice. Such advice usually informs an Indigenous person in custody of their right to silence. This prevents false confessions and unreliable evidence, thereby reducing unfair and unsafe convictions.

The right to silence for Indigenous people remains intact despite recent legislative amendments in NSW restricting the use of this legal right.

Background to its abolition

The Carr government implemented the Custody Notification Service as a compulsory custody right in NSW across a range of criminal legislation. Section 33 of the Law Enforcement (Powers and Responsibilities) Regulation provides that when an Aboriginal or Torres Strait Islander person is detained in police custody, a custody manager must immediately notify a representative of the Aboriginal Legal Service and inform the prisoner accordingly.

In one case, Justice Hidden of the NSW Supreme Court found confessional evidence from four Indigenous men was inadmissible as evidence in court because police failed to comply with the Custody Notification Service requirements under the legislation.

In 2013, former NSW attorney-general Greg Smith announced the O’Farrell government’s commitment to these laws. Accordingly, if the service is abolished in practice by funding cuts but remains on the statute books – as it almost certainly will – the NSW government will be faced with the absurd but very real proposition that most confessional evidence from Indigenous people in custody will be rendered inadmissible because police cannot contact an Aboriginal Legal Service representative.

The federal government has regularly contested funding to the Custody Notification Service since 2012. In that year, funding to the service was cut and Aboriginal Legal Service staff were forced to perform unpaid work. They continued to operate the service on a voluntary basis. In 2013, funding to the phone line resumed.

However, requiring the service to operate through the charitable goodwill of its already overworked skeleton staff is an unreasonable and untenable demand.

Rather than abolishing this successful program, governments both state and federal should be implementing and funding more like it nationwide. Without the Custody Notification Service in NSW, deaths of Indigenous people in police custody will almost certainly increase, along with their over-representation in prison.

Eugene Schofield-Georgeson has worked as a Solicitor-Advocate for the North Australian Aboriginal Justice Agency (NAAJA) and is affiliated with the New South Wales Council for Civil Liberties (NSWCCL).