Cutting the Aboriginal custody helpline
The phone often rings in the middle of the night.
A lawyer will always answer. On the other end is often a desperate, confused and alone person who has just been taken into police custody.
This simple phone line is often referred to as a lifeline by those who have had to use it. At the end of June, it will be cut off.
Officially the line is known as the Custody Notification Service (CNS) and it is operated by the Aboriginal Legal Service NSW/ACT. Every time an Aboriginal person is taken into police custody in New South Wales or the Australian Capital Territory, police must call the CNS, providing the opportunity for the person to speak with an ALS lawyer. The service is designed to prevent deaths in police custody and ensure Indigenous Australians fully understand their legal rights.
The ALS’s annual application for funding through the government’s community funding program, the Indigenous Advancement Strategy, was recently rejected, leaving the organisation with the likely prospect of having to close the service.
From all accounts the CNS has been successful in its aims. Since it was introduced in 2000, no Aboriginal person has died in police custody in either jurisdiction. This is a “huge statistic”, ALS NSW/ACT acting CEO Kane Ellis tells me.
Robyn Hakelis, an acting principal legal officer at ALS NSW/ACT, is one of seven lawyers who operate the phone 24 hours a day, seven days a week. With an average of about 300 calls a week, she says it can be unnervingly busy. “If it is ever quiet, it’s really unusual, so you’re constantly checking the phone to make sure it’s working,” she says. “You’re paranoid that you’re missing a phone call.”
The CNS emerged from the recommendations passed down by the Royal Commission into Aboriginal Deaths in Custody, which advised the development of a protocol of notifying the ALS when an Aboriginal person was arrested or detained, before an interview is conducted.
Indigenous incarceration rates in Australia have reached new levels. In NSW, rates of incarceration are severely disproportionate to population, with more than half of young people and a quarter of adults in detention being Aboriginal. Many have called for a simple program such as the CNS to be rolled out across the country as a way to combat this crisis, but it currently operates solely in NSW and the ACT and, come July, it will cease to exist.
The CNS has been funded by the federal government in the form of one-off annual grants since 2007, having received NSW government funding in earlier years. A decision to renew the service’s funding is made each year, leaving its operations under the same shroud of uncertainty and confusion endured by many Indigenous legal services. With funding a year-to-year proposition, there is little scope to plan operations more than 12 months in advance. While the ALS should be concentrating on reducing the dire Indigenous incarceration rates, it often has to focus on finding the funds to survive.
On-again, off-again past funding
The funding required by the CNS is spare change in comparison with the money being provided to other community legal services and through the Indigenous Advancement Strategy. Each call to the service costs $39 in resources and the CNS has overall operational costs of $526,000 a year, paying for its roster of seven lawyers and one administration officer. “That’s the same amount as holding two juveniles in a detention centre for one year,” Ellis points out.
The federal government’s rejection of its annual funding application has baffled him. “We don’t know, we just don’t know,” he says.
A campaign to save the CNS is already in full swing. An online petition has more than 35,000 signatures. But there’s little indication that the government will change its mind. “We just wish the federal government would have the same views,” Ellis says. “It’s not a hell of a lot of money in the scheme of things, but it helps so many people.”
The ALS is used to these sorts of struggles. Government funding was cut in 2012, too, leaving the staff battling to keep the phone line open when no alternative money was found. They eventually won that battle, with the government later approving a grant, but now only two-plus years later they are again fighting for the service’s survival. The same change.org petition is being used this time around.
“It’s devastating,” Ellis says. “It’s a sad time when such a successful program is coming to an end, and it’s not going to be funded again.”
If the CNS is shut down, many fear more Aboriginal people will die in police custody and incarceration rates will increase. It’s all about the accountability that such a service puts on the police, Hakelis says.
“There’ll be no one to check that police are doing the right thing, that they’re calling the ambulance,” she explains. “If they weren’t accountable to us, the question is: would they call? Would they always call? Police really live up to their duty of care now because they know that they’re accountable to us.”
The CNS is a disarmingly simple concept, but one that has proved to be overwhelmingly successful. Police must immediately call when they bring an Aboriginal person into custody, and explain the situation to an ALS lawyer. They’ll then ask if the client wants to speak to the lawyer. Hakelis says some clients don’t want to speak to her, but most jump at the chance.
The very first question Hakelis always asks has nothing to do with the legal side of things. “The first thing we’ll say is just, ‘How are you going, are you okay?’,” she says. “Generally they’ll be fine, but if they do have a problem, it’s really important, and we can then explore that with them.”
This is perhaps the most crucial role of the CNS. It’s not just to explain basic legal rights to people who may not fully understand the process in an unfamiliar and potentially scary environment, it’s also about simply ensuring that vulnerable people are safe and being adequately looked after. “It’s not just about the legal stuff; it’s about their welfare, about them being okay,” Ellis says.
He recalls when an Aboriginal man was taken into custody suffering from severe dehydration and sunburn. “[Their condition] wasn’t picked up [by police], but it was by the phone call,” he says. “We got that person taken to hospital straight away, when it could’ve been a pretty bad outcome.”
On another occasion, an ALS lawyer managed to calm down an agitated Aboriginal person who had just attempted to hang themself. Many other times people have informed lawyers via the CNS of serious medical conditions when they haven’t felt comfortable or willing to tell the police.
Importance of consultation
Hakelis says these consultations are especially important for Aboriginal Australians. “When Aboriginal people go into custody they’re horribly isolated, and it’s a way that we can communicate with them, and they know that somebody knows where they are and are checking that they’re okay,” she says.
The phone call will then turn to the legal technicalities. The lawyer will clearly explain the charges to the client, and that they have a legal right to silence. “Often that’s a really confusing concept, particularly in the Aboriginal community,” Hakelis says. “There’s a lot of shame and often being honest might be the best way to go about it. But they don’t have to, and that’s not going to help them.”
Such phone calls can go for hours. “They want you to call family members and tell you their story,” Hakelis explains. “It’s really important – sometimes you’re the only person they have to talk to, and you have to listen.”
For the ALS lawyers, operating the CNS is a unique and sometimes difficult experience, one that can take a significant emotional toll. “It can be tough,” Hakelis says. “If someone is really frustrated and doesn’t understand why they’re in custody, that can get you down.”
The shifts are split into three across the day, and one that stretches from midnight until 8am. “You can’t sleep because you’ll get a call every hour at least,” she says. “You have to watch a lot of movies and stay up all night, then sleep all day. It’s a really crazy time of your life – it’s like being back at uni.” Ultimately, Hakelis says, it proves to be a rewarding experience for those involved.
Now with funding for the CNS due to be cut this month, the ALS and its many supporters vow to keep fighting. “We’re going to be pushing all the way through to 30 June,” Ellis says.
For him, and all the others involved, the service is just too important to lose.
“It’s a lifeline,” he says.
This article was first published in the print edition of The Saturday Paper on Jun 20, 2015 as "Cutting the lifeline". Subscribe here.