Deaths in custody on conscience of all Australians: SAVE THE CNS
29 May 2013
By John McKenzie, Chief Legal Officer, Aboriginal Legal Service (NSW/ACT)
In the early hours of 24 June 1987, Mark Quayle was taken by relatives to Wilcannia hospital suffering from alcohol withdrawal symptoms. By 8.30am, at only 22 years of age, he was found hanged from the police cell door by a strip torn from a blanket.
He had been taken from the hospital to the police station unlawfully. Once there, police failed to take reasonable care of him: they did not take him home, or inform his relatives, or keep him under observation at the police station.
These were the findings of Commissioner J. H. Wootten in the 1991 Final Report of the Royal Commission into Aboriginal Deaths in Custody.
“His death is a challenge to the conscience of all Australians,” Commissioner Wootten concluded.
The Royal Commission investigated many unnecessary and avoidable deaths.
Since the start of the Aboriginal Legal Service (NSW/ACT)’s Custody Notification Service in 2000, not one Aboriginal person has died in a police station in NSW or the ACT.
The Custody Notification Service (CNS) ensures every Aboriginal man, woman or child detained in police custody in NSW and the ACT has access to a trained lawyer over the phone before being asked to participate in investigative procedures. They receive legal advice about their rights. The lawyer can advocate on their behalf. And importantly, the question is asked “are you okay?”
In one area at least Australia can claim progress in the way Aboriginal people interact with the criminal justice system. The impending demise of this service should weigh heavily on the conscience of all Australians.
The CNS operates far and wide, from the top of the Darling River to the Murray below, from Surry Hills to outback Broken Hill.
An Aboriginal young person in remote towns such as Brewarrina might receive legal advice and comfort from a lawyer on the other end of the line in Redfern or Wagga Wagga. The tyranny of distance is overcome by technology. In this important way some of the realities of postcode justice in our vast state are overcome.
The CNS was a recommendation of the Royal Commission. It exists in recognition of the vulnerability of Aboriginal people detained by police and ameliorates somewhat the power imbalance.
The experience of CNS lawyers is that they regularly deal with distressed Aboriginal people who inform them of matters they may be reticent to tell police. In the saddest cases our lawyers deal with suicidal clients who threaten to make themselves another death in custody.
In early April this year, a very agitated Aboriginal person attempted to hang themselves by their underpants in the police cell. They spoke to the on-call ALS lawyer who took time to calm the person down and help them understand the legal process.
And just a couple of weeks ago, an Aboriginal person told our CNS lawyer they were very serious about committing suicide. The police hadn’t picked up on the issue. The lawyer successfully argued for police to send the person to a hospital for psychiatric treatment.
In these cases the CNS becomes more than a mere advice line, it can be a life line.
History shows that Aboriginal people are vulnerable to coercion in police custody and many miscarriages of justice have occurred as a result. Regularly our lawyers become aware that Aboriginal people are promised bail or other
inducements if they cooperate with police. Such practices tend to produce unreliable evidence.
Only last month a District Court judge in west NSW concluded that police had engaged in “real and substantial unfairness” in pressuring an Aboriginal man into taking part in investigative procedures in which he had indicated (on CNS legal advice) he did not wish to take part.
In 2010 another District Court judge ruled police had taken advantage of a vulnerable accused and not acted honourably in refusing to respect a young Aboriginal man’s insistence on his rights in custody.
These are real cases, involving real people. This is still part of today’s reality.
The 25th anniversary of Mark Quayle’s death marked almost to the day the end of federal funding for the CNS. His surviving brother John laments his loss: “he might have been still with us today” if the CNS had existed back then.
Now is not the time to be retreating from protections for vulnerable Aboriginal people such as the CNS.
The Aboriginal community knows well that much money has been wasted over the years on ill-considered, poorly planned and top-down policies and programs. Any citizen looking at state government budgets today would be horrified by the amount of taxpayer’s money that is spent on locking up Aboriginal people as opposed to what is invested in services proven to radically reduce criminal offending.
It is perhaps with these twin factors in mind that community outrage is growing over the impending demise of the tried, tested and successful CNS. A service that is Aboriginal run and led, that works, and that has seen no deaths in police custody since its inception. The CNS is a service that runs for the cost of locking up just two Aboriginal juveniles for a year, yet it assists over 15,000 Aboriginal people in custody every year.
The CNS will soon disappear because state and federal governments will not agree on whose responsibility it is to fund it.
The CNS is a national leader. No comparable service exists in any other state or territory. The service has been running since 2000 and was federally funded until June 2012. The service has only continued in the last twelve months because ALS staff gave up any incremental pay rises to keep the service going. A mere $500,000 of annual recurrent funding is needed to ensure over 300 advice calls per week for the state’s most vulnerable citizens can continue.
The ALS executive and Board of Directors call on state and federal governments to overcome the impasse and ensure this valuable service can continue.
Photo: by Chiwi, accessed here http://archive.indymedia.org.nz/article/73794/nz-says-no-howards-land-grab.html
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