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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2023-02-07 Daily Xml
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Custody Notification Service

The Hon. T.A. FRANKS (15:22): I seek leave to make a brief explanation before asking a question of the Attorney-General on the topic of the custody notification service.

Leave granted.

The Hon. T.A. FRANKS: A custody notification service (CNS) is designed to provide Aboriginal and Torres Strait Islander people who are taken into custody with two things: a welfare check and legal support. Both of these measures were deemed effective in reducing harm and deaths in custody. A CNS was an important recommendation of the Royal Commission into Aboriginal Deaths in Custody. A CNS was in fact recommendation 224 of that royal commission, which said that 'appropriate steps be taken to make it mandatory for Aboriginal Legal Services to be notified upon the arrest or detention of any Aboriginal person'.

SAPOL and the ALRM, previous to 2021, had informal arrangements that had been found to be inconsistently applied at times. Those informal failings made public led to a flurry of legislation. The then shadow attorney-general—yourself, now Attorney-General—and myself as Greens police spokesperson put forward legislation to address formalising a CNS.

The currently operating CNS was formally established in South Australia in October 2021 by the former Attorney-General, doing so not through legislation but through regulations rather than putting a bill through parliament. Despite these best endeavours, it appears that, in its current form, that custody notification service is now not working as the royal commission, the Greens or, I assume, the Labor Party and probably the previous Liberal government intended.

A lack of clarity in the wording of the regulations has resulted in an unfortunate loophole where the obligation to notify the ALRM being held by the 'responsible officer', not for example the 'arresting officer', has meant significant delay in the ALRM being contacted when a relevant person is detained or arrested.

What this means in a practical sense is that in our state an Aboriginal person can be arrested, transported and interviewed by police before the CNS even kicks in. This can be hours without the required life-saving welfare check and without appropriate access to the legal services anticipated. This is not what the royal commission called for, it's not what Labor or the Greens campaigned for and it's not what the parliament was led to believe would be effected and I trust that that was not what was intended by the previous government.

My question to the Attorney-General is: how will the Malinauskas government urgently ensure that the CNS will ensure that the ALRM is notified at the earliest point of detention or arrest, not at the much later point in the process, which has now become the case, to ensure that this recommendation of the Royal Commission into Aboriginal Deaths in Custody is fully and properly implemented?

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:25): I thank the honourable member for her question and her advocacy and interest in this area as evidenced by a number of things, including the private member's bill that the honourable member brought to this chamber in the last parliament.

As the honourable member points out, the establishment of a custody notification scheme in all Australian jurisdictions was in fact a recommendation of the 1987 Royal Commission into Aboriginal Deaths in Custody and, as the honourable member has pointed out, commencing on 1 October 2021 the former government commenced the Summary Offences (Custody Notification Service) Variation Regulations 2020 to establish a mandatory custody notification service in South Australia.

In recent times, I have had meetings and correspondence with both the South Australian police service and the ALRM about how the scheme is operating under the current regulations and, as the member points out, the wording and intent of the current regulations. I think my most recent discussion with the Aboriginal Legal Rights Movement was late last year in December. I'm happy to inform the honourable member and the chamber that we are looking at whether there needs to be wording changes or a change in the application of how the CNS works in South Australia.

We are particularly having a look at how similar CNSs work in other states, particularly states like New South Wales and Western Australia, so it is something that we are alive to. We will continue to have discussions with the ALRM and SAPOL to make sure that the CNS best meets the needs of Aboriginal people first and foremost who are taken into custody and about how the ALRM works and how SAPOL operate.

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