Custody Notification Service
The CUSTODY NOTIFICATION SERVICE (CNS) is a 24-hour legal advice and RU OK phone line for Aboriginal people taken into police custody.
Under NSW law, Police must contact the ALS whenever they have taken an Aboriginal person into custody.
The Police phone our CNS, and the Aboriginal person receives early legal advice from an ALS lawyer, ensuring their fundamental legal rights are respected and less Aboriginal people are imprisoned.
The ALS lawyer also asks the Aboriginal person: RU OK? Often, the answer is no. Threats of self-harm or suicide are common. Concerns about access to medication are common. Notifications of injuries sustained that need to be examined by a health professional are common.
Our CNS lawyers are trained to carefully respond to these concerns, including notifying custody Police who partake in appropriate duty of care.
Our CNS lawyers can also contact the person’s family and an Aboriginal Field Officer, ensuring parental or family concern for that person’s whereabouts and health are minimised.
Simply, the CNS is not just a phoneline, it’s a lifeline.
At nearly the same cost per year of detaining two juveniles, the CNS assists over 15,000 Aboriginal people every year.
It was set up in 2000 in response to NSW legislation implementing recommendations of the Royal Commission into Aboriginal Deaths in Custody, that Police should notify the ALS whenever they take an Aboriginal person into custody.
Significantly, there have been no Aboriginal deaths in police cell custody since the CNS began.
Aboriginal men, women and children in custody trust the ALS and share their medical or other concerns with the CNS lawyer, knowing the lawyer will advocate for their legal, health and family welfare.
Today, the CNS operates in NSW and ACT taking on average 300 calls per week.
- decreases preventable injuries or deaths in police cell custody
- increases legal and health protections for a person in police cell custody
- increases Aboriginal family and community safety
- reduces Aboriginal incarceration rates
- affords legislated State protection of fair and equitable access to justice to vulnerable Aboriginal people
Not a day goes by when at least one Aboriginal person in police custody is promised bail if they tell police what happened.
Under NSW law, police must ring the Aboriginal Legal Service every time they have taken an Aboriginal person into custody. Day and night, 365 days per year, we have a lawyer by the phone.
When the police ring, the CNS lawyer gives the Aboriginal person legal advice. For instance, don’t give a police interview because we don’t have all the police facts yet. (Those facts are generally made available on the first court date). The Aboriginal person may follow the legal advice, which means they are less likely to give a false or unreliable interview, which means less vulnerable Aboriginal people are held on remand, in detention or imprisoned.
Significantly, when police ring the phone line, we ask the Aboriginal person RU OK?
The answer is often not easy. Threats of self-harm or suicide are COMMON.
Our CNS lawyers are skilled at hearing spoken or unspoken ideation or real threats of self-harm or suicide. The lawyer will notify the Police and the vulnerable person in custody is made safe.
Many Aboriginal people arrested are extremely vulnerable people who may not have a home, who often have no support person, may be living in extreme poverty, who often have a poor education, and by circumstance are extremely fearful of Police, and generally disempowered.
Where police stations are often busy places and arresting officers can symbolise threat, Aboriginal people entrust our lawyers with personal, health and welfare information because our lawyers symbolise trust and support.
In service for 45 years, the ALS is a trusted Aboriginal organisation, and Aboriginal people are comfortable communicating with our culturally competent staff and know that their circumstances will generally be understood and responded to.
“It’s not just a phone line, it’s a life line.”
Real threat of suicide
The CNS lawyer spent a long time on the phone talking to a very agitated Aboriginal person in custody at a NSW Police Station.
The lawyer calmed the person down after the person attempted to hang themselves (using their underpants).
Our involvement improved the process for a very very distressed Aboriginal person in custody, who wasn’t able to talk to the Police about their distress.
Serious medical issue
The Police rang the ALS to notify about an Aboriginal person in custody. The person had been arrested on a warrant for not attending court that day.
The CNS lawyer could hear the Aboriginal person crying and yelling in the background, and asked the police officer what was wrong with the person. The police officer said that the person had come into the police station to report a handbag stolen, and they had arrested person, and the person had become hysterical and they couldn't get any sense out of the person.
The CNS lawyer thought the police didn't seem to be too worried or concerned and seemed to think the person was just being difficult.
The CNS lawyer, on finding out the person’s name, realized the person was known to them. The CNS lawyer thought the person was not someone given to that type of behaviour.
The CNS lawyer asked the police officer to speak to the person.
When the person came to the phone the person was crying and having trouble speaking.
The CNS lawyer asked the person why they had not attended court that day and the person became very upset and said it was because their handbag had been stolen.
It seemed the person’ focus was on the bag and the CNS lawyer asked why the bag was such an issue.
All the time the person was crying and appeared to be in pain.
After much prompting, the person told the CNS lawyer they had a device in the handbag which had been given to them by the hospital. The person told the lawyer they had suffered such serious sexual abuse when they were 14 years old they couldn't go to the toilet normally, and in the last few years had had to use a colonoscopy bag. But recently, the person told the lawyer, the doctors had inserted an electrical device in their colon which could be controlled with a particular device which was in the handbag. The person needed this device and was in extreme pain as they couldn't go to the toilet without it.
The lawyer ascertained the person needed to go to the hospital.
The lawyer spoke to the police officer who had been listening to the conversation and the police officer ordered an ambulance.
HELPING ABORIGINAL PEOPLE
- Assists over 15,000 Aboriginal men, women and children every year
- Reduces Aboriginal incarceration rates
- Reduces self harm and preventable deaths in police cell custody
- Increases legal and health protections for Aboriginal people in custody
- Engages police, lawyers, Aboriginal field officers, and the family in a vulnerable person’s welfare in custody
- Increases family and community safety
- Early legal advice protects Aboriginal people from the sometimes heavy-handed use of police powers
- Is staffed by experienced criminal lawyers conscious of an Aboriginal person’s cultural needs, communication issues and education
- The 24-hour phone line costs nearly the same to operate as holding two juveniles in detention for one year.
- Operational costs of $526,000 per year includes the phone line, a rotating roster of seven lawyers working day and night, and one administration officer.
- From 2007, the CNS was funded through one off annual grants by the Australian government.
- In May 2012, the Australian Government discontinued funding for the CNS.
- For one year ALS staff carried the cost of the phone line as an alternative funding source could not be found.
- In June 2013 the Australian government funded the phone line again through a one-off grant.
- In December 2014 the Australian government through the Indigenous Advancement Strategy funding round rejected our application for future CNS funding.
- Current government funding for the CNS ceases on 30 June 2015
- Trained solicitors take more than 300 calls per week; or more than 15,600 calls per year, which on a cost per unit analysis amounts to less than $39 per call. For qualified legal advice, welfare support, and court, bail and diversion efficiencies this is not expensive for any government.
- Another body could not provide the phone line at a comparable cost.
- There have been no deaths in police cell custody in NSW since the commencement of the CNS in 2000, significantly reducing the cost to government.
- CNS increases the prospect of bail for arrested persons, reducing the cost to Government.
- CNS reduces the number of defended hearings in criminal cases in which alleged confessions are contested, reducing the cost to Government.
- By targeting the appropriate charges for which pleas of guilty are entered, the period of time in prison is reduced, increasing the prospect of successful rehabilitation and further contributing to cost savings for government.
NSW GOVERNMENT LEGISLATION
- If the phone line is not available, the legislative need for notification and right to advice for Aboriginal People in custody will not be met in a practical way that safeguards the arrested person’s legal, health and family welfare
- Is legislated in NSW law that Police must contact the ALS when they arrest an Aboriginal person
- Assists Aboriginal people with fair and equitable access to justice, as afforded by NSW legislation for vulnerable people
- It was noted in the NSW Attorney-General’s Second Reading Speech on the revised Right to Silence legislation, where the A-G stated the ALS 24-hour legal advice phone line will be available for Aboriginal people taken into custody, thereby removing none of the protections afforded to vulnerable Aboriginal people
- A recommendation from the Royal Commission into Aboriginal Deaths in Custody was that police should notify the ALS whenever they take an Aboriginal person into custody.
- Before we set up the CNS, Police would send a fax notifying us of an arrest.
- As the majority of arrests take place outside of normal working hours, we established the CNS phone line to ensure early police notification of arrest, early provision of legal advice prior to a police interview, and early provision of an RU OK check.
- Since then, we have established precedents in the court so that Police cannot interview an Aboriginal person in custody until the ALS has been notified.
When an Aboriginal person is taken into custody, the CNS gives them:
- Immediate access to legal advice from a qualified lawyer ensuring protection of legal rights.
- An RU OK check. Lawyers check on the Aboriginal person’s wellbeing and ensure appropriate standards of care are followed for that person in custody, access to medication and appropriate medical treatment; contact with family or friends, access to clothing or other basic essentials.
- An immediate report on any improper conduct by police. It enables clients to report any improper conduct by the police.
The CNS empowers a lawyer advising a client in custody to:
- Influence decisions regarding police bail
- Influence decisions regarding diversion such as YOA
- Receive contemporaneous instructions or comments from clients in relation to the matter.
The CNS helps prevents deaths in custody by:
- providing support and someone to talk to,
- ensuring police respect rights, such as access to a friend or relative
- persuading police to grant bail or consider alternatives to charging
- identifying threats of self harm, a strong indicator of a person being at a high risk of suicide.
Because of the CNS, there is:
- Reduced risk of preventable deaths and injury in police cell custody;
- YOA support and diversion;
- Court Efficiencies (list management);
- Police Bail increases (reducing incarceration costs).
CONSEQUENCES OF NOT HAVING THE CNS
- If the phone line is not available, the legislative need for notification and right to advice for Aboriginal People in custody will not be met.
Increased costs will flow to the State through:
- A potential increase in the number of Aboriginal injuries and deaths in police cell custody
- Increased remand prisoner numbers
- Increased defended hearings
- Overloading the Children’s Legal Service (CLS) Phone System (provided by Legal Aid NSW) - the level of Aboriginal Juvenile crime is regrettably high and with no CNS, the Children’s Legal Service will have to respond to calls about Aboriginal Young People which they’re not currently doing
- Additional Children’s Court charges
- Longer Local Court lists because of procedural adjournments - greater costs in relieving and additional Magistrates
And for Aboriginal people, already so over-represented in the Criminal Justice System, it will mean:
- An increase in incarceration rates
- An increase in preventable self harm or deaths in police cell custody
- An increase in young offenders before the courts
- A decrease in family and community safety
ROYAL COMMISSION INTO ABORIGINAL DEATHS IN CUSTODY RECOMMENDATIONS, relevant to the Custody Notification Service:
Young Aboriginal People and the Juvenile Justice System
62. That governments and Aboriginal organisations recognise that the problems affecting Aboriginal juveniles are so widespread and have such potentially disastrous repercussions for the future that there is an urgent need for governments and Aboriginal organisations to negotiate together to devise strategies designed to reduce the rate at which Aboriginal juveniles are involved in the welfare and criminal justice systems and, in particular, to reduce the rate at which Aboriginal juveniles are separated from their families and communities, whether by being declared to be in need of care, detained, imprisoned or otherwise. (2:252)
Diversion from Police Custody
90. That in jurisdictions where this is not already the position:
a. Where police bail is denied to an Aboriginal person or granted on terms the person cannot meet, the Aboriginal Legal Service, or a person nominated by the Service, be notified of that fact;
b. An officer of the Aboriginal Legal Service or such other person as is nominated by the Service, be granted access to a person held in custody without bail; and
c. There be a statutory requirement that the officer in charge of a station to whom an arrested person is taken give to that person, in writing, a notification of his/her right to apply for bail and to pursue a review of the decision if bail is refused and of how to exercise those rights. (3:54)
Imprisonment as a Last Resort
105. That in providing funding to Aboriginal Legal Services governments should recognise that Aboriginal Legal Services have a wider role to perform than their immediate task of ensuring the representation and provision of legal advice to Aboriginal persons. The role of the Aboriginal Legal Services includes investigation and research into areas of law reform in both criminal and civil fields which relate to the involvement of Aboriginal people in the system of justice in Australia. In fulfilling this role Aboriginal Legal Services require access to, and the opportunity to conduct, research. (3:91)
Improving the Criminal Justice System: Aboriginal People and Police
223. That Police Services, Aboriginal Legal Services and relevant Aboriginal organisations at a local level should consider agreeing upon a protocol setting out the procedures and rules which should govern areas of interaction between police and Aboriginal people. Protocols, among other matters, should address questions of:
a. Notification of the Aboriginal Legal Service when Aboriginal people are arrested or detained;
b. The circumstances in which Aboriginal people are taken into protective custody by virtue of intoxication;
c. Concerns of the local community about local policing and other matters; and
d. Processes which might be adopted to enable discrete Aboriginal communities to participate in decisions as to the placement and conduct of police officers on their communities. (4:111)
224. That pending the negotiation of protocols referred to in Recommendation 223, 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 other than such arrests or detentions for which it is agreed between the Aboriginal Legal Services and the Police Services that notification is not required. (4:111)
243. That where an Aboriginal juvenile is taken to a police station for interrogation or as a result of arrest, the officer in charge of the police station at which the juvenile is detained should be required to immediately advise the relevant Aboriginal Legal Service and the parent or person responsible for the care and supervision of the juvenile of the fact of the child being detained at the police station (without prejudice to any obligation to advise any other person). (4:203)
CUSTODY NOTIFICATION SERVICE IS REQUIRED UNDER NSW LAW UNDER THESE PROVISIONS:
Law Enforcement Powers and Responsibilities Act 2002
Part 9 Investigation and Questioning
123 Right to communicate with friend, relative, guardian or independent person and Australian legal practitioner
(1) Before any investigative procedure in which a detained person is to participate starts, the custody manager for the person must inform the person orally and in writing that he or she may: ...
(a) Communicate, or attempt to communicate, with an Australian legal practitioner of the person’s choice and ask that Australian legal practitioner...
(2) If the person wishes to make any communication referred to in subsection (1), the custody manager must, as soon as practicable:
(b) Give the person reasonable facilities to enable the person to do so, and
(c) Allow the person to do so in circumstances in which, so far as is practicable, the communication will not be overheard.
Law Enforcement (Powers and Responsibilities) Regulation 2005
Division 3 Vulnerable Persons
24 Vulnerable persons
(1) A reference in this Division to a vulnerable person is a reference to a person who falls within one or more of the following categories:
(d) Persons who are Aboriginal persons or Torres Strait Islanders,
33 Legal assistance for Aboriginal persons or Torres Strait Islanders
(1) If a detained person 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.
Crimes (Forensic Procedure) Act 2000
10 Informed consent to forensic procedures—Aboriginal persons and Torres Strait Islanders
(1) This section applies where:
(a) a police officer intends to ask a suspect to consent to a forensic procedure, and
(b) the suspect identifies as an Aboriginal person or Torres Strait Islander. ...
(3) Before asking the suspect to consent to a forensic procedure, the police officer must:
(a) inform the suspect that a representative of an Aboriginal legal aid organisation will be notified that the suspect is to be asked to consent to a forensic procedure, and
(b) notify such a representative accordingly. ...
(6) After asking a suspect covered by subsection (1) (b) to consent to a forensic procedure, the police officer must give the suspect a reasonable opportunity to communicate, or attempt to communicate, with an Australian legal practitioner of the suspect’s choice and, subject to subsection (8), to do so in private.
Young Offenders Act 1997
7 Principles of scheme
The principles that are to guide the operation of this Act, and persons exercising functions under this Act, are as follows: ...
(c) The principle that children who are alleged to have committed an offence are entitled to be informed about their right to obtain legal advice and to have an opportunity to obtain that advice.
(d) The principle that criminal proceedings are not to be instituted against a child if there is an alternative and appropriate means of dealing with the matter...
(e) The principle that, if it is appropriate in the circumstances, children who are alleged to have committed an offence should be dealt with in their communities in order to assist their reintegration and to sustain family and community ties...
(h) The principle that the over representation of Aboriginal and Torres Strait Islander children in the criminal justice system should be addressed by the use of youth justice conferences, cautions and warnings.
The Young offender’s Act Scheme provides alternatives to court based outcomes. The Act provides for cautions and conferences for young people when eligible, consented to and when the offence is admitted: Sections 19; 36. Cautions and conferences prevent Children from being exposed to the court based Criminal Justice System and are a positive measure.
Help fund it
It costs $526,000 a year to operate the CNS legal advice and RU OK phone line.
If you can help, please donate to the CNS.