Inside Story

A friend on the outside

Two major inquiries have recommended a simple measure to reduce Aboriginal deaths in custody. So why have most states taken so long to act?

Robert Milliken 12 June 2020 1612 words

Aboriginal leader Tom Calma sees “glimmers of hope.” Lukas Coch/AAP Image

The American civil rights campaigns of the 1960s reverberated too, but never like this. Halfway across the world, Australians have finally taken up the cause of finding a way to stop Aboriginal people from being targeted by police and dying in custody. And one important measure, long proposed and long ignored, could once again fly.

Many of the thousands of Australians who started demonstrating in early June carried placards bearing the acronym of the American campaign: BLM, for Black Lives Matter. They could have added another abbreviation, CNS, for “custody notification service,” a straightforward scheme that has been shown to bring down the number of deaths in police custody in the few places where it’s been tried.

The battle to have custody notification services introduced across the country stretches back almost thirty years to the 1991 report of the royal commission into Aboriginal deaths in custody. At their heart is a simple requirement: that Aboriginal people are given twenty-four-hour telephone access to legal advice once they’ve been taken into police custody. It doesn’t seem much to expect of police themselves, and it’s been shown to be effective, but until New South Wales introduced a CNS in 2000, federal, state and territory governments had ignored the option, and most still do.

The need grows ever more pressing. Even as demonstrators thronged across Australia on 6 June, with more rallies planned, the Guardian Australia revised from 432 to 434 its count of Aboriginal deaths in police and corrective services custody over the twenty-nine years since the royal commission’s report; three days later, it revised the figure again to 437. Started two years ago, the Guardian’s “Deaths Inside” project, partnered by the University of Technology Sydney, is the only up-to-date database. The Australian Institute of Criminology provides its own count, but less regularly; it stands at almost 400 deaths.

The unacceptably high arrest and incarceration rates that lie behind these numbers have not fallen since the royal commission’s report. So bad are they that the Australian Law Reform Commission conducted its own inquiry three years ago. With 3 per cent of Australia’s population, Aboriginal people comprise 27 per cent of adult prison inmates; among Aboriginal women the rate is even higher, at 34 per cent. The commission found that overall Aboriginal incarceration rates had risen 41 per cent in the decade to 2016, and the gap between Aboriginal and non-Aboriginal imprisonment had grown wider.

Consultants PwC Australia calculated that Indigenous incarceration could cost the Australian economy almost $10 billion in 2020, and twice that figure by 2040 if nothing is done.

With numbers like these, it was little wonder that the law reform commission repeated the royal commission’s call for custody notification services when it presented its report to federal attorney-general Christian Porter in late 2017. There should be a “statutory requirement for police to contact an Aboriginal and Torres Strait Islander legal service,” it said, “as soon as possible after an [Indigenous] person is detained in custody for any reason — including for protective reasons.”

This call, too, has mostly gone unheeded. Tom Calma, a senior Aboriginal figure and a member of the inquiry’s advisory committee, tells Inside Story that a CNS gives Aboriginal detainees a “friend” on the outside whom they can speak to and trust: “It’s so sad governments haven’t adopted it broadly.”

New South Wales introduced the first custody notification service in 2000. It obliges police to put Aboriginal people in touch with the state’s Aboriginal legal service once they’re taken into custody. Nadine Miles, principal legal officer of the Aboriginal Legal Service (NSW/ACT), describes what happens next: “We provide legal advice and conduct a welfare check, asking how they’re feeling, if there’s any medication they need — matters like that. We inform family members and encourage them to attend if instructed. If further conversations are needed, we call back. For police, all this reinforces the obligations under their duty of care.”

The approach has succeeded — with one fatal exception, which pointed to a simple flaw in the NSW scheme. Rebecca Maher died in a police cell in Maitland in July 2016 after being detained by police because she appeared intoxicated in the street. She was not charged with any crime. Police did not seek medical help, and nor did they put Maher in touch with the custody notification service. At the time, the law didn’t require them to take that extra step.

In her finding on Maher’s death, the acting state coroner, Teresa O’Sullivan, suggested Maher might have lived if the CNS had come into play. She criticised the fact that police were obliged to notify the service only if someone was in custody for an offence, not if he or she were detained while drunk. O’Sullivan recommended that NSW legislation be amended to cover this circumstance; it was changed in 2019.

Some lawyers agree with O’Sullivan’s call for a wider definition of police custody for the CNS; they argue it should cover a process of police arresting someone or taking any steps that bring someone under police control.

Outside New South Wales, the rollout of custody notification services has been patchy. The former federal Indigenous affairs minister, Nigel Scullion, once called for a “consistent national approach,” yet it wasn’t until last year that Western Australia and Victoria legislated for their introduction. The failure to achieve national consistency boils down to one main factor: funding for legal services.

Scullion provided three-year funding for the NSW service to 2019. It was extended to 2020, and Ken Wyatt, his successor, has recently extended it again, but only for another three years. Scullion also dangled the prospect of federal funding for similar programs in all states and territories. But he insisted not only that the rest of the states and territories pass legislation to make CNS a mandatory process (as the royal commission had demanded), but also that the states pick up funding after three years. Some states have still not passed such legislation, although they claim to offer legal help for Aboriginal people in custody. And most states have been slow to offer money.

The fact that all states still don’t provide what Scullion called a “critical service” for Aboriginal people in custody seems staggering. Nadine Miles calls for a change in political will. With the states responsible for running their own criminal justice systems, she understands Canberra’s push for them to underwrite the Aboriginal legal services for CNS. “That said, the constant argy-bargy means the Aboriginal people lose out,” she says. “Funding for CNS is a constant conversation.”

Nerita Waight, of the National Aboriginal and Torres Strait Islander Legal Services, says Victoria’s CNS has had about 1200 calls a month from incarcerated people since it started eight months ago. “And that’s a good month,” she adds. “It can rise dramatically.” Instead of arguing over funding, she says, governments should develop “urgent partnerships” with Aboriginal legal services: “Deaths in custody should be a paramount issue for the Commonwealth.”

On their own, custody notification services won’t stop high rates of Aboriginal imprisonment. But they can form part of a broader “justice reinvestment” approach that both the royal commission and the law reform commission recommended. This involves putting less public money into building yet more prisons and more into social programs designed to keep people out of them. It also allows Aboriginal leaders to be at the forefront of such reforms. Bourke, in outback New South Wales, has taken Australia’s most innovative approach so far, and is bringing incarceration rates down.

Governments will also have to be more upfront about recognising Australia’s historical legacy as a source of Aboriginal inequality. Nearly three decades ago the royal commission identified Aboriginal inequality as “a direct consequence of their experience of colonialism and, indeed, of the recent past.” It’s striking how Australia’s leaders by and large still shy away from debate about this central fact.

Just last week prime minister Scott Morrison responded to the outcry over George Floyd’s death in police custody in America by calling it “upsetting,” before adding: “And I just think to myself how wonderful a country is Australia.” Morrison’s complacency contrasts with the greater willingness of Canadian prime minister Justin Trudeau to confront a problem that festers in both countries.

On 11 June, Trudeau said that “systemic racism is an issue right across the country, in all our institutions.” He added, “It is recognising that the systems we have built over the past generations have not always treated people… of indigenous backgrounds fairly through the very construction of the systems that exist.” When Scott Morrison was questioned that same day about statues linked to slavery being pulled down in other countries amid the Black Lives Matter campaign, he dismissed the notion that Aboriginal people in Australia had ever undergone slavery: “This is not a licence for people to just go nuts on this stuff.”

As he spoke, plans for more Black Lives Matters protests were going ahead. A court had banned marches in New South Wales, citing coronavirus concerns, and Morrison had warned that those who attended could be charged. But Aboriginal leaders still see the marches having a positive impact on dealing with deaths in custody. “That’s not to say there isn’t systemic racism that stops some people from taking the issues seriously,” says Nadine Miles. “But I think we have in Australia a population who are interested in hearing more and understanding the issues.” For his part, Tom Calma sees “glimmers of hope” that the national cabinet could come to grips with these issues. •

Funding for this article from the Copyright Agency’s Cultural Fund is gratefully acknowledged.