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Aboriginal and Torres Strait Islander viewers are advised that this website contains the names and images of people who have passed
This is a RCIADIC recommendation
224
Mandatory notification of Aboriginal Legal Services
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.
Aboriginal Justice Caucus Assessment
RCIADIC found that giving Aboriginal people an opportunity to speak with a culturally competent lawyer who was highly training in criminal law could assist in minimising the distress caused by arrest and could prevent self-harm and suicide. Further the opportunity to obtain legal advice from the outset would contribute to better legal outcomes for Aboriginal people accused of a crime.
In Victoria it is mandatory that VALS is notified within 60 minutes of an Aboriginal person being taken into police custody. VALS operates a 24-hour service monitoring these notifications and conducting welfare checks as well as providing pre-interview legal advice.
There is limited information on the compliance of police with their duty to ask about Aboriginality and notify VALS.
In the Nelson Inquest, the Coroner found that Veronica Nelson was not given a meaningful opportunity to engage with VALS regarding her welfare and legal issues. The Coroner found it was unlikely that Nelson had her right to speak with someone from VALS properly explained to her in terms she understood or was given adequate time to decide about speaking with VALS. Further the power imbalance between police and a detainee (especially an Aboriginal woman) requires that police are supportive and encouraging of people exercising their rights to speak with VALS. The Coroner recommended amendment to the VPM to ensure a person under arrest has a meaningful opportunity to make an informed decision about communicating with someone from VALS.
Priority for Further Work:
Moderate
Relevance and potential impact | |||||
|---|---|---|---|---|---|
Low (0-2) | Moderate (3-4) | High (5-6) | |||
Extent of action taken and evidence of outcomes | High (5-6) | ||||
Moderate (3-4) | |||||
Low (0-2) | |||||
Potential Actions for Further Work
Appropriately funded CNS
Ongoing funding that increases over time as notifications increase.
Background
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) found that providing Aboriginal people with the opportunity to speak with a person highly trained in the criminal law and in representing Aboriginal people would serve to calm an otherwise distressed person and may prevent self-harm or suicide. Further, it was believed that custody notification would allow Aboriginal people to receive legal advice delivered in a culturally sensitive manner at the earliest possible opportunity in order to prevent them from acquiescing to police demands in a manner which could jeopardise subsequent court proceedings.
Actions Taken Since Last Review
In 2020 the Commonwealth Government provided $2.1 million over three years to VALS to establish a formal, dedicated custody notification service (CNS) in Victoria, in line with legislation passed in Victoria in 2019.
In 2023, Victoria Police assessed Recommendation 224 as fully implemented as procedures in Victoria require police officers to contact the Victorian Aboriginal Legal Service (VALS) within 60 minutes, or as soon as practicable, of an Aboriginal person being taken into custody for any reason. Legislation to make this requirement mandatory commenced on 1 October 2019. Notifications are made through an automated process which occurs once a person is entered into the police attendance module when brought into a police station. The introduction of hand-held Iris devices for frontline officers in 2019-20 has allowed police officers to provide VALS notifications in the field, in environments such as hospitals or other settings.
Impact
Outcomes
Between 1st July 2021 to 30th June 2022, the Custody Notification Team at VALS processed over 11,800 individual notifications from police stations regarding Aboriginal people in custody.
On average each notification generates a minimum of five additional calls ensuring the clients wellbeing is being monitored, liaising with police, providing legal advice, notifying family or friends, and locating other appropriate supports services. The CNS program conducted in excess of 69,000 phone calls during this period.
In 2020, a review conducted by NATSILS found, the effectiveness in terms of compliance is ad hoc. Issues that prevent effectiveness are delays in notifications and failure to notify. Having said this, in the majority of cases compliance is effective.
Community Views
• Police are supposed to also call when they put through an electronic notification. VALS CNS staff reported an example of an occasion when there was a technical glitch with the email notification system at their end. Despite fifteen electronic notifications being made during the timeframe of the glitch, not a single phone call was made by police. Fortunately nothing serious happened with the people who missed out on a CNS service on that occasion, however it was noted that there was an unacceptable level of risk, and that checks balances and accountability needed to be strengthened.
• CNS calls are hourly until the Aboriginal person in custody is granted bail or remanded. In the case that they are remanded in prison then the matter is closed for the CNS.