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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-06-17 Daily Xml
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Summary Offences (Notification of Custody) Amendment Bill

Introduction and First Reading

The Hon. T.A. FRANKS (16:33): Obtained leave and introduced a bill for an act to amend the Summary Offences Act 1953. Read a first time.

Second Reading

The Hon. T.A. FRANKS (16:34): I move:

That this bill be now read a second time.

This bill seeks to legislate a custody notification service. A CNS provides a critical welfare check and fundamental legal advice to all Aboriginal people who are taken into police custody. We have had a similar service, but certainly not a legislated or mandated service, run by the Aboriginal Legal Rights Movement for some time, called the Aboriginal Visitors Scheme.

Following the establishment of that scheme in response to the Royal Commission into Aboriginal Deaths in Custody recommendations, I note that that scheme is stated by the ALRM to ensure that Aboriginal people who may be upset, lonely, angry or confused, may be having suicidal ideation or thoughts of self-harm, may be suffering underlying chronic health conditions, which maybe they might not be willing to disclose to police, are provided supports to ensure that police have a duty of care towards those detainees, and the presence of that Aboriginal Visitors Scheme visitor provides the valuable assistance that saves lives. That person can also provide relevant information to police in ensuring that SAPOL and the AVS work in partnership to safeguard the health and wellbeing of these detainees.

When an Aboriginal person is taken into police custody, police, it states in the ALRM annual report, are required to request a visitor from the AVS. The South Australia Police general orders custody management of Aboriginal prisoners states that, when an Aboriginal person is in custody, police should seek the assistance of the AVS as soon as reasonably practicable, and extend their full cooperation.

In addition to the police requesting the AVS, the detainee, their family and friends or their legal representative, can request the attendance of the Aboriginal Visitors Scheme. The AVS service operates between five and nine weekdays and 24 hours on weekends and public holidays, complementing the Monday to Friday nine-to-five service provided by the ALRM field officers and lawyers. It is an integral part of the invaluable 24/7 service provided to Aboriginal detainees in police cells. There is no doubt that it works quite effectively and has saved lives.

When an AVS visitor attends a police station: they assist police with their duty of care and responsibility for that detainee; they help keep open communication between the detainee and the police; they provide care and comfort to Aboriginal people in police custody; they consider any needs of the detainee, including medical, legal, counselling, family support and relationships with the police; they assess the condition of the detainee in police custody; and, they report to the officer in charge if any concerns or issues are identified. They also liaise with and access local community agencies that can provide additional support and assistance to the detainee.

So the concept is nothing new. In fact, we currently have at the Adelaide City Watch House, Elizabeth Police Station, Port Adelaide Police Station, Sturt/Christies Beach Police Station, and the Berri, Ceduna and Port Augusta police stations AVS workers. Between 30 June 2018 and 30 June 2019, according to the ALRM's annual report, there were requests to visit 258 people through this scheme. Aboriginal field officers can provide that AVS care, comfort and support to other 24/7 police custody facilities where the AVS staff are unavailable.

All well and good in theory, but what actually happens in practice is the reason that I bring a bill before this place today to mandate and legislate, as has recently been done in WA, as has recently been done in the Northern Territory, and has existed for many, many years in New South Wales, where it is often reflected that there has been only one death in custody since they legislated their custody notification service, and that was when the processes were not followed.

In South Australia I remember, around the time of the death of Wayne Fella Morrison, being contacted by someone who was known to me who had been part of the Aboriginal Visitors Scheme. She said to me that she was unsurprised by the death and that she had thought that it was only a matter of time before such a death would occur.

As I would hope all members are aware, currently there is an inquest underway into the death of Wayne Fella Morrison, who died on 26 September 2016. His cause of death is listed as 'medical episode following restraint' and the details that we know are that he died in hospital three days after he was restrained by 14 guards at Yatala Prison in South Australia on the morning of 23 September 2016; the CCTV's footage shows him being held to the ground and then carried, hooded, into a van; there is no video evidence from the van—something that would not be the case in other states, I note—and some guards involved in his transport have to date refused to give evidence. I would say the majority of guards involved in his transport have in fact refused to give evidence.

Further, the coronial inquest into his death, which began two years ago, was delayed when 18 prison guards and a nurse who had been called to give evidence at the inquest challenged the Coroner, Jayne Basheer's, validity in the Supreme Court, calling for her to be removed from the inquest. That was because she said to them that they had to give evidence.

I note that prior to this they had also failed to cooperate with the police investigation into this matter and that, contrary to any good practice, they had colluded and collaborated directly after the events rather than remaining separated, but that under our corrections laws the chief executive had no powers to order them to do otherwise, a failing in our current laws that a former minister and a current minister have assured me will soon be rectified.

I note that while the Deputy Coroner, Jayne Basheer, could not compel the guards to answer questions about their conduct, which may indeed open them to civil liabilities, that inquest is yet to report, but it came as no surprise to this person known to me, who contacted me at the time. I have asked her more recently to pull together what happened in her experience within the Aboriginal Visitors Scheme. She has let me know that her role was to visit First Nations people in the Adelaide City Watch House when they were arrested and they wanted a visitor. She was to check their welfare and that duty of care was being maintained.

She notes that some SAPOL staff she encountered were incredibly understanding of the aims and the needs of the AVS program and they were very supportive and cooperative, but unfortunately there were others who were not, and they made it clear that they thought it was all a bit of a joke. On one occasion, she was called in to the Adelaide City Watch House to visit a young man who had been arrested shortly after 5pm on a Friday night. Upon arrival, the desk sergeant warned her, as he was showing her to the interview room to speak with this man, that the man was not making much sense and might have a mental health problem or 'be on drugs'.

When the man was brought in to speak with the Aboriginal Visitors Scheme person, he was rambling, emotional, crying and pleading. She instantly recognised that he was not making sense and that his behaviour was extremely heightened. She tried to speak with him and ascertain what he was upset about, but it became very clear that something was quite wrong and he appeared to be delusional.

She noted that the man was possibly experiencing some sort of psychosis. She explained to that man that she was concerned he may need medical attention and that she would like to suggest to the police that they take him to the hospital. The man cried and begged and pleaded to be taken to the hospital. She approached the desk sergeant and said that she was concerned the man was mentally unwell and therefore unsafe, and thought that he needed to be taken to the hospital.

The sergeant flatly refused, saying, 'I don't think he needs anything of the sort.' She persisted with her advocacy, reminding him that duty of care extends to mental as well as physical health. The sergeant locked his hands over his head and said he would not be sending the man to the hospital and 'How dare I tell him how to do his job', she informs me.

She reminded him that this was exactly what her job was about, that this man was at risk and that he, as the sergeant, was responsible for maintaining the duty of care. She pulled out her mobile phone, which she had always been allowed to have previously as a tool of her work, and she rang the ALRM. They tried to speak with the sergeant, but the sergeant was unrelenting and complained to the ALRM, 'I don't appreciate your workers coming in here telling me how to do my job.'

Her phone was handed back to her and her boss advised her that the sergeant was being uncooperative but that he had agreed that he would send the man to hospital if he became a threat to himself or anyone else. They said that she should try to calm the man down and assure him that she would be ringing back through the night to check on him.

She returned to the interview room, where the man was sobbing. She proceeded to advise him that he could not be taken to the hospital because the police would not agree that he needed to go. The man then started to cry very loudly and was making no sense. Feeling very much out of her depth and becoming increasingly distressed by the situation, she rang the ALRM again and asked if they could speak with the man and then put the man on the phone to them. The man rambled and continued to make no sense, and then they handed the phone back to the person known to her and her boss acknowledged that the man was sounding very mentally unwell.

The man then stated, 'My grandmother was a strong woman and she killed herself, and I am strong enough to do the same.' He then started hitting his head against the wall. The ALRM, hearing this via the phone, advised the worker to go back directly to the sergeant again and report that the man was making these threats of self-harm.

As she did, she kept the phone on and her mobile in her hand. Yet again, the sergeant at first was not cooperative but then finally agreed that the man would be taken to hospital. The worker rang the following morning to follow up on the welfare of this man and was told that he had been admitted to the hospital and was indeed incredibly unwell and that he had not been returned to the City Watch House for his court appearance.

In the weeks that followed, she was continuously obstructed from performing her job at the Adelaide City Watch House. She was told that she could not have belongings with her, as she had done previously to this instance. She was told that she could not even have paper and a pen with her, and she certainly was told she was not allowed under any conditions to have her mobile phone.

She was then prevented from even entering the Adelaide City Watch House to see people in their cells or the interview room, as she had been allowed to do for well over a year prior. Instead, she had to speak to vulnerable people at volume through glass, which of course is a most inefficient way to ascertain their wellness.

She did make complaints. She sought to make complaints about the behaviour of the SAPOL officers at the City Watch House, but the reality was, given she had been barred from entering, given SAPOL were refusing to explain or justify or enter any discussions about her barring, they had made a decision that meant she was unable to do her job.

It became clear that because of the lack of a legislative framework and mandated power that the Aboriginal Visitors Scheme currently has and that given the police had barred her she could no longer do her job. She therefore stated to me:

I left quietly and didn't make too much noise about it. I wanted to make a…police complaint at the time, and certainly felt one would be justified, but was concerned about the potential impact this could have on Aboriginal prisoners and ALRM as a whole.

That is the situation we currently have in South Australia, where on paper we say that we are complying with our implementation of the recommendations of the royal commission, where on paper we say that we are complying with our obligations under various international human rights instruments, but in practice, if somebody who is working in this scheme decides that a prisoner needs health care and the police officer takes umbrage, the police officer can make it impossible for that person to continue to do their job.

Other instances in South Australia of Aboriginal deaths in custody include situations where I believe an Aboriginal visitor scheme or, preferably, a custody notification service may well have helped. Certainly, one of the examples given by the police commissioner in his opinion piece earlier this week is often cited to me. It is yet to have an inquest. The man is known by his initials of P.R. and his cause of death was 'medical episode following restraint' in Parafield Gardens on 26 May 2017.

I note that he became unresponsive in July 2017, after being arrested, handcuffed and placed in a prone restraint position by South Australia Police outside his house in Parafield Gardens. Witnesses have told the media he had repeatedly asked for his heart medication once arrested, but that request was denied by police. An ambulance was called, but he was unable to be revived. I guess we will find out when the inquest happens, but my intent is that we do not have as many inquests and that we do have a strong and mandated custody notification service in this state.

As I mentioned in a previous contribution to a previous matter, former minister Nigel Scullion offered South Australia money for such a service. He wrote to every single state and territory minister when he stumped up to help New South Wales with their scheme and said, 'You legislate a custody notification service and I will come to the party and I will pay for it for three years.' Back in 2016, those letters to the South Australian government went unanswered, unimplemented and certainly unlegislated.

I will not be holding my breath for real action from the opposition for much longer. I welcome their support of a custody notification service in opposition, which they had every ability to implement in government and which they were offered money to implement in government back in 2016. I also welcome the fact that in fact the offer is still on the table. The current minister in this area, Ken Wyatt, has a similar offer for funding for a custody notification service. Should any members of this chamber or the other place feel a little bit of concern that we will have to pay some money up front very soon to avoid these quite avoidable harms for Aboriginal people in our custody, know that the federal government is actually trying to help us do the right thing.

It is time for action on this. We cannot sit on our hands and make pretty speeches any longer. I do welcome the Labor opposition's indication that they will be supporting a custody notification service. I hope that they will be joined in that support not just by members of the crossbench, of course, but by the government. I note that this bill, which I have consulted on with the ALRM but I would prefer to consult more widely now that it is introduced into this place, is more comprehensive and carries a greater penalty than the Labor opposition's bill.

My information is that the scheme in Western Australia was expanded by regulation to ensure that those in mental health detention were also covered by the scheme. It was my intent that this bill do that, but my understanding is that, with the peculiarities of differences of our acts to theirs, that was a little difficult for the drafters to translate. However, I believe it would be the intention of any government that legislates for a custody notification service that it shall cover those placed in mental health detention in those very crucial first hours where people are incredibly vulnerable to self-harm in particular and where the anxiety is so great that they need those supports.

In New South Wales, where this scheme runs, it is not just a legal service, it is also a welfare service, and the first questions that is asked is, 'Are you okay? The first check is a welfare check, noting that at these times in people's lives they are incredibly vulnerable and providing that support, indeed, saves lives.

I note the ALP version of the bill has been applied to youth detention. I asked similar questions of the drafters and was told this bill did apply to children so perhaps the advice differed from parliamentary counsel to myself and them but certainly they are questions that I would welcome a conversation across all parts of the parliament about to ensure that we cover people who are in mental health detention, youth detention and, of course, any form of custody.

What I will not stomach is a bill that does not have any real penalty for police who do not follow the law. The bill that I have put before the parliament has a financial penalty as well as a potential level of imprisonment for those police who do not comply. This is high stakes here and we are talking about people's lives. That one example I have given you I understand is not a sole example of the kind of attitude that some police in SAPOL have to the Aboriginal Visitors Scheme. If we have a custody notification service, not only must it be implemented, it must be respected.

Therefore, it is reasonably appropriate that a penalty of some $2½ thousand may apply if the law is not followed. A period of imprisonment of up to 6 months may indeed apply in some of the most serious breaches of this provision. The other part of my bill that is quite different to the Labor Party's bill is the requirement for some transparency about how the scheme is running so we can make sure that it actually is doing the job that we are charging it with doing. That includes an annual report from the commissioner, which is similar to those required under the Police Act.

Indeed, those reports would include the number of notifications made to the ALRM for each police station or designated police facility, the number of Aboriginal or Torres Strait Islander persons held at that police station, also the number of times that a charge is laid for an offence under this provision where failure to comply with the enactment of a custody notification service occurs, and any other information that is requested by the minister.

My bill, knowing what happens when people are taken into custody and often the Aboriginal Visitors Scheme is chasing them around unable to determine where they are and the fact that sometimes they get moved, captures that situation. So it has a requirement not just for the location of that prisoner to be made known to the ALRM that first time but on any subsequent moves to ensure that nobody is able to be hidden in our system from the protections afforded by this particular service.

New South Wales has a very good working model that this is based on. We know that this saves lives. We also know that the Labor Party came before this place just a few short weeks ago with a COVID care bill to afford presumptive care under our Return to Work scheme that actually has no coverage under their scheme for GPs or people working in COVID clinics doing the tests unless they work on hospital premises. At that time, the Labor Party said that my bill was pretty much the same as their bill, but they preferred theirs.

I have to tell you that unless we are going to have something where the police are held accountable, I would urge this council to look at the bills, judge them on their merits, work together and amend them if need be, but that we do not see a repeat of the sloppy decision-making of a few weeks ago that now sees that presumptive COVID care in the Labor legislation not afforded to GPs or people out at the coalface of the COVID pandemic performing COVID tests, those two categories being, I would have thought, the most high-risk people and workers in our pandemic.

So while the Labor Party also has had 16 years in government and a previous offer of money to make this happen, I do welcome their support for the concept and look forward to their support for this bill.

Debate adjourned on motion of Hon. J.S. Lee.

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