Police in Western Australia will now be required to notify Aboriginal legal service solicitors whenever an Indigenous person is detained after the state government finally committed to a new program this week that is designed to stop deaths in custody.

Partially funded by the Commonwealth, the custody notification system (CNS) is closely modelled on a system in place in New South Wales since 2000. Prior to the introduction in WA on Monday, NSW and the ACT were the only states and territories in Australia to have formally implemented the CNS. The commitment comes 27 years after the Royal Commission into Aboriginal Deaths in Custody recommended the introduction of a national CNS, and four years after similar recommendations made by the coronial inquiry into the death in custody of WA Aboriginal woman, Ms Dhu.

WA has a poor record of Aboriginal deaths in custody. Figures show Western Australia had 97 deaths in custody from 1988 to 2013. The state’s Minister for Aboriginal Affairs Ben Wyatt says the new program will be operational before the end of 2018, but close observers and advocates remain hopeful that it will be in place before the end of June.

Custody Notification Service Implementation Monitoring Director Bruce Campbell, a former chairperson of the Deaths In Custody Watch Committee (WA) welcomed the announcement, saying it was an “overdue” step in reducing the over-representation of Aboriginal people in custody. “At this stage it’s time to briefly applaud the WA government, and time to ramp up the pressure on the NT, SA, Qld, Victorian and Tasmanian Governments to implement a CNS in their jurisdictions. The CNS Implementation Monitoring project will apply pressure to these governments until they implement a CNS,” he said.

The federal government offered to financially support CNS programs in all states and territories in the wake of coronial recommendations in the case of Ms Dhu and then again following revelations that led to the royal commission into juvenile protection and detention in the Northern Territory.

CNS has been in place in NSW for almost 20 years and costs approximately $500,000 each year to administer. In 2016, the Minister for Indigenous Affairs Senator Nigel Scullion wrote to attorneys-general in all states that did not have a CNS in place to offer federal funding to support the adoption of such a scheme. After initial knock-backs in 2016 and early 2017 by the former Colin Barnett-led Liberal-National state government, only WA has moved to formally introduce a CNS scheme.

Cheryl Axleby, chief executive of the Aboriginal Legal Rights Movement (ALRM) in South Australia says she would welcome a similar commitment by the SA state government. She says the ALRM advocated for the CNS to be adopted by the state’s previous Labor government only to have the former attorney-general John Rau decline the offer made by Scullion, despite ALRM support for the state to endorse the proposal.

“No reason nor rationale [for the rejection] was provided in any detail to ALRM by the attorney,” she said.

ALRM has recently met with the newly appointed SA Attorney-General Vickie Chapman and requested a review of the decision, says Axleby.

In Queensland, Aboriginal and Torres Strait Islander legal service (ATSILS) chief executive Shane Duffey says that despite making ATSILS’ support for a CNS scheme clear to the Queensland Police Minister and commissioner “time and time again”, both offices have ignored his view.

“We support a CNS fully funded by the Commonwealth with the proviso the state government commits to funding the CNS service recurrently once the Commonwealth funding ceases,” he said.

Queensland has an Indigenous population of 186,482, second only to NSW.

Elsewhere, a CNS scheme has been unofficially in operation in Victoria – a state containing an Indigenous population of 47,788 — for several years, although advocates for the scheme say they remain concerned that it may be ceased at the whim of the justice department and call for CNS to be legislated by the Andrews’ Labor government. 

Where a CNS scheme is in place, police must call a 24-hour hotline whenever an Aboriginal person is taken into custody. The Aboriginal person then receives early legal advice from an Aboriginal legal service lawyer. The lawyer also assesses the health of the detained individual before notifying the person’s family and an Aboriginal field officer.

In NSW and the ACT the CNS takes 300 calls per week. The telephone hotline is credited with saving the lives of thousands of Aboriginal people taken into custody in New South Wales each year. Advocates say it needs to be the first step in any legal reforms aimed at reducing extraordinary rates of Indigenous incarceration around Australia.

George Newhouse – principle solicitor at the National Justice Project who acted on behalf of the Deaths in Custody Watch Committee of WA in the coronial inquest of Ms Dhu, as well as for the families of David Dungay and Wayne Morrison who both died in custody in 2015 and 2016 – says CNS has been a great success where it has been implemented.

“Dozens of Aboriginal lives could have been saved in the last 27 years if this scheme had been implemented earlier, as recommended by the 1991 Royal Commission into Aboriginal Deaths in Custody,” he said.

Whilst I congratulate the WA government on this belated initiative that State must do more to divert young offenders from custody. There is just not enough investment in diversionary programmes for kids and drug and alcohol counselling. The WA Government also needs to cease criminalising poverty by ceasing the practice of issuing warrants for the arrest of fine defaulters. There is no justification for a person to be imprisoned for not paying a fine.

Since the 1979, more than 492 Indigenous people have died in custody around Australia.