Last-minute reprieve for life-saving Aboriginal prison support

Custody Notification Service Now

 Last-minute funding has been secured for a legal service that has saved the lives of Aborigines in custody but was in danger of having to close down. The Custody Notification Service operates in the state of New South Wales and the neighbouring Australian Capital Territory (Canberra). Deaths in custody campaigner and investigative journalist, Gerry Georgatos, asks: what about the other five states and the Northern Territory? Georgatos has tallied 350 Aboriginal deaths in custody since the tabling of the Royal Commission final report in 1987. The tally increased by 50 per cent in the 1990s as compared to the 1980s and by nearly 100 per cent in the first decade of the 2000s compared to the 1980s.


“The Office of the Minister for Indigenous Affairs, Senator Nigel Scullion, called me to let me know that they would ensure that the Custody Notification Service in NSW and the ACT would be funded. The circus of who will fund it and for how long is at long last over for at least the next few years,” Georgatos writes. The CNS was due to run out of government funding on December 31.


“The NSW Government Minister for Indigenous Affairs, Leslie Williams and the Attorney-General Gabriella Upton claimed they were supporters of the Service but that their Government could no longer afford the meagre half a million dollars per year to fund it. All of a sudden their Government was too poor to afford the saving of lives.”


Scullion announced that the Australian government will provide the NSW/ACT Aboriginal Legal Service with $1.8 million to support the NSW (CNS) until June 30, 2019. Scullion has publicly praised notification schemes and lashed out at his Liberal colleagues in the NSW state government.


“I am disappointed the NSW Attorney-General, Gabrielle Upton, has refused to even share the cost of the CNS. Given the NSW Government is responsible for the criminal justice system and welfare and safety of any person taken into custody in that state, it staggers me the NSW Attorney-General can ignore her Government’s statutory obligation to provide this service,” Scullion said.


In NSW police are required by law to contact a lawyer any time an Aboriginal person is taken into custody. The Aboriginal Legal Service, which administers the system, takes the call and offers the person advice. Significantly, on top of legal assistance, they also make inquiries about the person’s health and welfare.


The scheme was a key recommendation of the 1987 Royal Commission into Aboriginal Deaths in Custody, but mandatory notification systems have not been implemented around the country.


NSW has not seen a single Aboriginal death in police custody since the service was introduced, and stands out from others by offering a 24-hour call line. The service costs as little as $500,000 per year, and solicitors employed by the ALS work throughout the night without penalty rates.


Despite that, funding for the programme has generally only been secured by short-term grants, with state and commonwealth governments bickering over who should pick up the cost. The most recent funding extension – offered at the last minute by Attorney-General George Brandis after a campaign raised 50,000 signatures supporting the scheme – was for just six months. The service has previously been forced to raise money from ALS members to continue operating.


“I have been trying to get the NSW Government to fulfil its responsibilities in relation to this matter,” Scullion said. “I am disappointed the NSW Attorney-General, Gabrielle Upton, has refused to even share the cost of the CNS. Given the NSW Government is responsible for the criminal justice system and welfare and safety of any person taken into custody in that state, it staggers me the NSW Attorney-General can ignore her government’s statutory obligation to provide this service.


“Even though the CNS has been funded by the Australian Government for seven years, it is not acceptable for the NSW Government to wipe its hands of its responsibility."


Upton recently drew criticism from family members fighting for justice on behalf of three Aboriginal children murdered in the NSW town of Bowraville in the early 1990s, a case that has led to calls for legal reform to help initiate a retrial of the man accused of the killings. The State Attorney-General was labelled ‘disrespectful’ after cancelling a long-planned meeting with the families via text message.


In a brief statement provided to New Matilda on behalf of Upton, the Attorney-General described the CNS as “an essential safeguard for indigenous [sic]people in custody.”


“Given the Commonwealth is responsible for Indigenous Affairs under the Constitution, they have always funded the CNS,” she said.


Gary Oliver, the CEO of the NSW/ACT ALS, pointed to the death of 22-year-old Yamitji woman Ms Dhu in Western Australia, and said families still feared for the safety of loved ones taken into custody.


An ongoing Coronial Inquiry has heard Ms Dhu’s complaints about her deteriorating health were not taken seriously by police who had detained her on the basis of unpaid fines. After three days and multiple trips to hospital she died as a result of pneumonia and septic shock.


Scullion said it ‘beggared belief’ that the NSW Government wouldn’t fund the CNS. Previously funded through the Federal Attorney-General’s Department, the scheme will now be supported via the Commonwealth’s Indigenous Affairs portfolio.


In response to questions, Scullion noted the NSW Government is required by law to provide the CNS, and argued they should therefore hold responsibility for funding it. “If the NSW Government refuses to fund the service, I will look at options to deduct $1.8 million from other funding we provide to the NSW Government,” he said


“But we cannot stop with just NSW and the ACT. Western Australia and the Northern Territory urgently need a Custody Notification Service. 22-year-old Ms Dhu would not have died in the most deplorable manner in a Western Australian police watch house on August 4, 2014 if there had been a Custody Notification Service", urges Georgatos.


“Western Australia is Australia’s backwater. It is decades behind the times. The Custody Notification Service may soon be announced in Western Australia, but it is coming on the back of a death that never should have occurred and a relentless campaign. It also needs to be rolled out in the Northern Territory.


Western Australia must also end the jailing of fine defaulters, a practice that ended in NSW in 1988. There you go, 27 years later Western Australia is still jailing fine defaulters, who in other words are the extremely poor.”


Gary Oliver, CEO of Aboriginal Legal Service (NSW/ACT) says the Aboriginal community is very pleased about the funding reprieve“If a loved-one is picked up by Police, families have a very real fear of the person not being treated for health or other concerns while in custody,” said Mr Oliver.


“This was the case before the Royal Commission into Aboriginal Deaths in Custody [1987–1991] and remains the case today as we note the recent and very sad passing of Ms Dhu in Western Australia. All of this means a family’s fear never really goes away.


“That’s why the CNS is so important because it provides a safeguard against preventable deaths in police cell custody.


“We are pleased the Australian government has taken into account all the evidence demonstrating the success of the Custody Notification Service in NSW and ACT."


Hewitt Whyman, Chair of ALS says the CNS is an invaluable resource. “It ensures access to fundamental legal rights, no matter if a person is in an urban, rural or remote location,” said Mr Whyman. “And the health and welfare check by a trained solicitor means our people can feel safer in custody.


“Of course another distinct advantage of the Service is that it inherently demands a good working relationship with NSW and ACT police and we’re glad that that will continue.” 


The Australian government has funded the CNS through one-off annual grants since 2008. It costs $526,000 per year to operate the CNS, employing six solicitors working around the clock without penalty rates, and an administration officer. The current grant finishes on 31 December 2015.


“As the CNS has also been selected for an Australian Human Rights Award, it would seem our very successful programme assisting vulnerable Aboriginal people in custody is finally getting the top-level recognition it deserves.”


“And Aboriginal families who are at the coal-face can remain assured that a person’s legal, health and welfare concerns in custody will be addressed to the best of our abilities via the CNS, continuing the recommendation of the Royal Commission.”


“On behalf of the ALS Board and the Aboriginal community of NSW and ACT, I would like to thank the Australian community for their ongoing support for funding for the CNS. That includes over 50,000 petitioners, key peak legal bodies in NSW, Aboriginal and Torres Strait Islander Legal Services around Australia, sister Aboriginal organisations and bodies in NSW and around Australia, and a significant number of individuals who tirelessly helped us spread the word about the need for CNS funding.”


In the Senate, the opposition Greens had called on the federal government to provide full funding for the service and welcomed the “excellent outcome”. They also said, “The CNS has been hugely successful since its introduction to NSW in 2000.” Greens Member of the NSW parliament, Jenny Leong said the win is a credit to the strong campaign run by the community, including over 50,000 petitioners.


Greens MP and Justice spokesperson, David Shoebridge spoke of “an extraordinary moral failure by the NSW government not to contribute funding to the Custody Notification Service and to have engaged in brinkmanship with the federal government as the funding was due to dry up in a matter of weeks.


"What is now required is a rock solid commitment from all state and federal governments to ensure the service is a permanent, nationwide fixture in the criminal justice system.”



Indigenous Australians are 3% of the national population yet a quarter of those locked up in prisons. There are very few Indigenous extended families that have not had someone jailed. An Aboriginal or Torres Strait Islander child is 24 times more likely to go into detention than a non-Indigenous child. The rate of Indigenous incarceration has been called an epidemic, a state of emergency, a catastrophe and a national shame.





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