Custody Notification Scheme

The CNS serving the Australian Capital Territory (ACT) and New South Wales (NSW) was established in 2000.[5] It is mandated under NSW law (cl. 37 of the Law Enforcement (Powers and Responsibilities) Regulation 2016) that officers must inform the CNS, but not in ACT.[6] The service has been successful and has since been cited as a model.[4] In 2016, one Aboriginal person died in custody in NSW; this was the first time an Aboriginal person had died in custody in NSW or the ACT since the CNSs were implemented.[1][4] Police failed to notify the CNS, rather than there being any problem with the service itself.[1][7]

In May 2016, a report recommended that Western Australia stop jailing people for unpaid fines. The report mentioned the death of Ms Dhu. The report was authored by Neil Morgan, Inspector of Custodial Services.[8] In October 2016 Nigel Scullion, the federal Minister for Indigenous Affairs, offered to fund the first three years of implementation for any state that legislated a CNS. The Western Australian government rejected the offer.[9] In March 2017, Dhu's family criticised both the major political parties in Western Australia for not supporting such a scheme. The incumbent Liberal Party voiced their opposition to the program, while the Labor Party said they would consider the scheme though had made no commitments.[7]

Attorney-General of Western Australia, John Quigley, supported such a program, saying "I think it [is] life-saving legislation. I'm sure if they took the late Ms Dhu into custody ... if the Aboriginal Legal Service [had] been contacted on day one it would have been a very different outcome". An online petition calling for the scheme was signed by almost 20,000 people in less than one week.[1]

On 21 May 2018, it was announced that the WA state government had reconsidered the offer from the federal government to fund a CNS, and that the service would be operational by the end of the year. The Aboriginal Legal Service of Western Australia would operate the service.[10][11][12] Funding negotiations held up the establishment of the service.[13] In November 2018 it was announced the service would be operational in the first half of 2019. The service would cost $952,000 per year, with the Federal Government and State Government contributing $750,000 and $202,000 respectively. ALSWA would employ five lawyers and two support staff to run the service.[14] The ALSWA commenced its CNS service on 2 October 2019. Under the Police Force Amendment Regulations 2019 (WA), Western Australia Police will be required to phone the CNS every time an Aboriginal person, child or adult, is detained in a police facility, regardless of the reason.[15]

In 2018, the Northern Territory agreed to implement a CNS.[13] The system attracted criticism for exempting protective custody and paperless arrests; for such arrests, police are not required to notify the CNS. There had previously been deaths in NT following exempted types of arrests. There are reports that the CNS legislation was substantially drafted by the police.[4]

Victoria had some non-legislative CNS-like requirements in Victoria Police Manual’s instruction 113-1,[4] with notifications are known as known as E* Justice Notifications.[16] In 2018 a proposed law was being reviewed by the Victorian legislature.[13]

On 13 June 2020 it was announced that the federal government would fund the Victorian Aboriginal Legal Service (VALS), which already provided an informal version, to deliver an expanded CNS service, after the Parliament of Victoria had passed new legislation. $2.1 million would be provided over three years to establish the service.[17]

In 2018, representatives from South Australia and Queensland argued they already had their own adequate systems in place, while Tasmania said they were considering the system but had not made a decision.[13] As of June 2020, Queensland, South Australia and Tasmania had not yet introduced a formal CNS.[17]