Legal and welfare checks should be extended to save Aboriginal lives in custody

12th Sep 2019

As the inquest begins into the death in custody of Yorta Yorta woman, Tanya Day, who fell asleep on a train in Victoria before she was arrested for public intoxication, questions are being asked about what it takes to stop Aboriginal people dying in custody.

Earlier this month was the fifth anniversary of the death of Ms Dhu, a young Yamatji woman who died after four days in South Hedland police lockup. The WA coroner said: 

‘In her final hours she was unable to have the comfort of the presence of her loved ones, and was in the care of a number of police officers who disregarded her welfare and her right to humane and dignified treatment.’

And in 2016, Wiradjuri mother Rebecca Maher died in custody after police failed to conduct any physical checks for her safety or take her to hospital, where expert evidence indicated she could have survived.

A recent research paper released by Federal Labor frontbencher, the Hon Dr Andrew Leigh MP, reported that Australia’s incarceration rate is sitting at 0.22%, the highest it’s been since 1899, with Indigenous people making up 28% of those in prison. Tanya Day, Ms Dhu and Rebecca Maher are among the 400 people who have died in custody, more than 25 years since the Royal Commission into Aboriginal Deaths in Custody.

But how many deaths could have been avoided? 

In Ms Dhu and Maher’s inquests, the families believed access to a custody notification service would have been an important check in the absence of police care.

A custody notification service is a 24/7 ‘telephone hotline’ for Aboriginal people to receive legal advice and a welfare check. The Royal Commission into Aboriginal Deaths in Custody recommended that it be mandatory for police to notify Aboriginal Legal Services upon the arrest or detention of any Aboriginal person. 

A custody notification service is necessary to communicate health and legal issues, including to alert police when a person needs medical help and to make crucial referrals to community-controlled health and legal services.

However, existing custody notification services aren’t accessible to people in protective custody, such as for intoxication. And the services that are available operate inconsistently across Australia, on short-term funding arrangements. Often they do not enable the person in custody to speak directly to the person at the other end of the line. Generally, the police are the ones who contact the service.

If Aboriginal deaths are to be prevented, a custody notification service needs to be funded nationally and implemented locally. It must encompass a well-being and legal service to Aboriginal people in police custody, a direct line to the Aboriginal person in custody and a mechanism for police accountability.

Northern Territory: Too little and too late

The NT government made regulations for a custody notification service only last month (see the Police Administration Amendment Regulations 2019). It was the last Australian jurisdiction to commit to such a service. While the new regulations provide little detail, they do have two notable exclusions: protective custody and paperless arrests.

In the NT, protective custody was introduced to decriminalise intoxication. But it has led to police stations becoming known as ‘drunk tanks’ exclusively for Aboriginal people. Between 2003 and 2012, eight Aboriginal people (both men and women) died in the NT while in, or associated with, protective custody.

The regime of paperless arrests allows police to take a person into custody where they would otherwise receive an on-the-spot fine. Warlpiri artist and children’s book illustrator Kumunjayi Langdon died on a concrete bench in police lockup in Darwin in 2015 from treatable heart disease following a paperless arrest.

Both paperless arrests and protective custody already provide fewer procedural protections than arrests for an offence that results in charges. Removing access to the custody notification service for Aboriginal people detained under these laws is another denial of safeguards.

New South Wales is leading by example

New South Wales led the way with its state-wide custody notification service, implemented in 2007. Unlike other custody notification services in Australia it allows direct contact with the person in custody.

Like the NT and most other Australian jurisdictions, NSW police have the power to detain an intoxicated person for their own protection.

Maher died in custody in 2016 within five hours of being held in protective custody for intoxication. Because she was held under pt 16 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), which allows for the detention of intoxicated people, she didn’t receive the benefit of a notification to the Aboriginal Legal Services given to those arrested under pt 9 of the same law.

In July 2019, the NSW coroner in the inquest into Maher’s death said that the custody notification service was too narrow in its application and recommended that: 

  • Aboriginal people detained under pt 16 of LEPRA be given the same access to the service as an Aboriginal person held under pt 9; and 
  • the custody notification service be sufficiently funded to extend to these people. 

What’s more, the federal government is working with the NSW government to ensure that the custody notification service is funded so it ‘extends to protective custody’.

A custody notification service needs to be rolled out to protective custody across the nation to enable Aboriginal and Torres Strait Islander people in custody to have a direct line to the service.

For this service to effectively stop deaths in police custody, it must be fully funded, consistently funded and available to all Aboriginal and Torres Strait Islander people in custody, not only those arrested.

This is an edited version of an article previously published in The Conversation here. It has been republished with the author’s permission.

Professor Thalia Anthony is an Associate Professor in Law at the University of Technology Sydney. Her expertise is in the areas of criminal law and procedure and Indigenous people and the law, with a particular specialisation in Indigenous women’s experience of the criminal justice system and Indigenous community justice mechanisms. Thalia is currently working on an Australian Research Council (ARC) project addressing: the sentencing of Aboriginal women (which includes focus groups with Aboriginal women in prison); the criminalisation of homeless people and the role of Night Patrols in Aboriginal safety and wellbeing. She recently received ARC funding to develop a trial of Aboriginal Justice Reports for sentencing in Koori Courts, with a focus on preparing the reports for Aboriginal women. Thalia’s major books include Indigenous People, Crime and Punishment (2013) and Decolonizing Criminology (2019).

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: police powers police Incarceration Aboriginal and Torres Strait Islander people protective custody deaths in custody custody notification service police accountability