The first Aboriginal death in custody for 16 years in NSW has highlighted the effectiveness of a Custody Notification Service, which WA has yet to implement. By Denham Sadler.

WA still waits for Indigenous Custody Notification

They only stopped when they heard a thud.

The two prison transport contractors heard the noise from the steel cell at the back of the van as they approached Kalgoorlie in Western Australia. They had been driving for nearly four hours in temperatures well above 40 degrees. The man in the back – highly regarded Aboriginal elder Mr Ward – had been arrested the night before for a driving offence.

For the entire journey he had only a small bottle of water, and there was no relieving airconditioning.

After hearing the thud, the contractors checked on Mr Ward and found him unconscious with third degree burns to his chest from lying on the floor of the cell. A doctor would later describe how opening the van door felt like a “blast from a furnace”.

Mr Ward died from heatstroke in Kalgoorlie hospital an hour after the contractors had heard him collapse.

Eight-and-a-half years later, advocates are still campaigning for a simple, cheap service that they say could have saved Mr Ward’s life, along with several other Indigenous Australians who have died in police custody.

In 1991, the Royal Commission into Aboriginal Deaths in Custody passed down 339 recommendations to help prevent Indigenous Australians from dying in police custody. The 223rd was for a protocol to be established that set out “procedures and rules which should govern areas of interaction between police and Aboriginal people”, while the next set out a mandatory requirement for the Aboriginal Legal Service (ALS) to be notified upon the arrest of an Aboriginal Australian.

Today, nearly 30 years later, New South Wales is the only state to have implemented these two recommendations. The latter concept – the Custody Notification Service (CNS) – has been successfully operating in NSW and the ACT since 2000.

Until July this year, no Indigenous Australians had died in police custody in NSW in the 16 years of the CNS. This week the ALS (NSW/ACT) announced that a 36-year-old Aboriginal woman, Rebecca Maher, died in a police cell last month. According to the legal group, the CNS had not been used by the police due to a “procedural failure”.

“If the CNS had been used by police when they detained Ms Maher,” the service’s CEO Gary Oliver said in a statement, “there may have been a different outcome.”

The CNS is as simple as it is effective. When an Aboriginal person is taken into custody, the police are required by law to call a phone line manned by a qualified lawyer with the Aboriginal Legal Service. The lawyer can discuss legal rights and other issues with the person in custody, and pass on any possible health problems to the police.

In NSW the service costs just $526,000 annually to run, with each call costing $39 and possibly saving a life.

It provides transparency and makes the police accountable for how they deal with Indigenous prisoners. It is regularly referred to as a “lifeline” in NSW.

Had the police officers who arrested Mr Ward in 2008 been forced to use the Custody Notification Service, he would still be alive today, Deaths in Custody Watch Committee (WA) chairman Bruce Campbell says.

“Essentially, if a lawyer was able to engage with police at the point of Mr Ward’s arrest they would’ve been able to determine that there was no need for him to be placed in custody in the first place,” Campbell says. “He would’ve simply been processed as per a person in the city, then some elders would’ve picked him up and he wouldn’t have been in custody at all.”

The coronial inquest into Mr Ward’s death found a “number of deficiencies” in the police’s arrest and refusal of bail for the man. The CNS is designed to overcome these breaches of justice and inform Indigenous Australians of their legal rights to prevent unnecessary and dangerous detentions.

With a functioning notification service, Campbell says, Mr Ward would not have been held in the 50-degree furnace of the steel cell, and he would not have subsequently died in a Kalgoorlie hospital.

In 2014, it seemed that WA would finally get a CNS similar to the one that has been functioning in the country’s east for more than 15 years. Premier Colin Barnett made a promise to the mother of Ms Dhu, an Aboriginal woman who had also died in police custody.

In August 2014, 22-year-old Ms Dhu was held by police in Western Australia for unpaid fines. Despite her repeatedly saying she was in physical pain and begging for assistance, a coronial inquest found that police officers believed she was “faking” it.

The next morning, Ms Dhu went into septic shock and later died from septicaemia and pneumonia.

Following this tragic and avoidable death, and a renewed campaign for a CNS, Barnett made a “personal commitment” to reduce the number of Indigenous Australians in jail in the state and the numbers of deaths in custody, including the implementation of such a service.

Another core function of a CNS is identifying possibly fatal health risks of those held in custody who may sometimes be unable or unwilling to inform police of the dangers.

According to human rights campaigner and long-time prison reform advocate Gerry Georgatos, the CNS would have saved Ms Dhu’s life.

“I truly believe that had Ms Dhu been supported by a stout CNS advocate that we would not have lost her,” Georgatos wrote for news site The Stringer.

The premier appeared to have delivered on this promise in March this year when the state government announced it would be implementing a CNS-style service in WA. But when details of the service were revealed, advocates quickly slammed the proposal, dubbing it a “disappointing reductionist” version of the one in NSW, and a pointless exercise in government bureaucracy.

The plan will give an Aboriginal person in custody the option to request access to a 24-hour hotline manned by representatives from the Aboriginal Visitors Scheme (AVS). Two major factors differ here from the NSW CNS: this service will be operated by the government through the Department of Corrective Services, and those on the other end of the phone will not be qualified lawyers.

According to Campbell, these two distinguishing features render the service virtually useless.

“It’s mind-blowing that they have the answer provided with the ALS in NSW and all they need to do is copy that,” he says. “They have an existing model that has worked well, but they still chose to tinker with it and produce something that the AVS workers may not be across.

“They’ve looked at doing something within the existing framework in Western Australia rather than engaging with the ALS.”

Although even a flawed service might be considered a step forward, several months after the government’s announcement, the CNS still isn’t operating in Western Australia.

“There hasn’t been any word on it since,” Campbell says. “We’ve continued to engage with the government and no implementation date has been indicated to us. It’s a classic case of it being a priority when it’s a relatively fresh event and when the family is protesting out the front of parliament, but it’s a huge issue advancing the cause when time takes its course and you’re waiting for coroner’s reports and the public interest dilutes and the government interest in the matter is distracted.”

And it’s an increasingly frustrating fight for Campbell.

“Our primary objective is calling for a proper Custody Notification Service to be implemented not only in WA but across the rest of Australia,” he says.

Even in NSW, where the service has demonstrable evidence of success, there is a continual fight to maintain it. After a large campaign last year, the ALS (NSW/ACT) received $263,000 in federal funding to help operate the phone line.

For advocates such as Campbell, another avoidable death in custody seems inevitable, another devastated family will join the CNS campaign. It’s a frustrating cycle when an inexpensive solution is tested and available.

“It’s all there ready to go,” Campbell says. “You don’t need to invent it.”

This article was first published in the print edition of The Saturday Paper on August 20, 2016 as "Waiting for a lifeline".

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Denham Sadler is a freelance writer living in the Kulin Nation.

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