Ms Dhu lost her life on August 4, 2014 in a Western Australian police watch house. Ms Dhu must never be forgotten. On that fateful day I received distressing phone calls from her family. In listening to the family, I sunk with sadness in understanding that if West Australia had a Custody Notification Service that in my view Ms Dhu would still be with us. I was also told that Ms Dhu was arrested for unpaid fines – mostly traffic infringements. Western Australia’s Fines Enforcement Registry was the nation’s only such Registry issuing police warrants for impoverished fine defaulters – annually on average 2,400 warrants.
In memory of Ms Dhu and so many others we had to change this.
Deaths of detainees in police custody led to a royal commission that stretched from 1987 to 1991. Several recommendations from that inquiry called for immediate support to detainees through skilled advocates.
This support exists through the Custody Notification Service (CNS) but till recent announcements the CNS was only in NSW and the ACT. The CNS is a 24-hour legal advice and helpline for First Nations people who have been taken into police custody.
Under NSW legislation the police must contact the Aboriginal Legal Service whenever they detain a First Nations individual. The detainee is subsequently provided with support, with early legal, health and welfare advice. This system has saved lives, and – because anxiety levels have been reduced – has also led to fewer Aboriginal and/or Torres Strait Islanders convicted in NSW when compared with other states where there is no CNS.
The 223rd recommendation called for the establishment of notification protocols for police to the Aboriginal Legal Services “when Aboriginal people are arrested or detained.” The 224th recommendation argued for “mandatory” notification to “Aboriginal legal services… upon the arrest or detention of any Aboriginal person.”
In 1998, NSW amended the Crimes ACT to make it compulsory for police to notify the ALS when a First Nations person was arrested. In 2005 the mandatory caveat was enshrined in the Law Enforcement (Powers and Responsibilities) Regulation.
The Minister for Indigenous Affairs agreed and hence championed the campaign and offered each State and Territory that if they established a CNS that the Commonwealth funds the first three years. It has taken more than four years of relentless advocacy and meetings but at long last Western Australia and the Northern Territory Governments have confirmed the establishment of the CNS, operational from March 2019.
Each year in Western Australia, police lay charges against at least 10,000 First Nations individuals from a total population around 100,000 only. Western Australia incarcerates Aboriginal people at the world’s highest rate – and abominably one in 12 of the State’s First Nations adult males is presently incarcerated. In the Northern Territory, police lay charges against at least 13,000 First Nations individuals from a First Nations population of less than 80,000. Thousands more are arrested and locked up for a night or two without being charged. The Northern Territory has long cried out for the CNS, and after Western Australia, the NT has the worst loss of life record in police custody in the nation.
The Custody Notification Service will ensure a firmament of psychosocially positive responses for detainees with their health, welfare and legal rights, what should have been long ago, for their rudimentary rights.
With so many of the nation’s arrests comprising Aboriginal and Torres Strait Islanders, it is unjustifiable that the rest of the nation has not implemented this service.
It is beyond exasperating that right-mindedness has been sidelined for so many years by one government after another and in turn many lives lost. It is not only the tragedy of lives lost, but of human beings who have been stranded in seriously high levels of distress, who have been hit with further charges, compounded into a constancy of traumas, with some degenerating from broken to ruined lives, to irreparable damage.
The death of 22-year-old Ms Dhu in a WA police watch house should have led to the immediate establishment of the CNS in that state. The memory of Ms Dhu had been betrayed by the WA government.
All anti-discrimination, anti-racism and cross-cultural training teaches us to recognise that every workplace is tainted by racism and discrimination and only with the first port of call in recognising this can there be striving in managing and reducing the racism and discrimination. Governments are no exception to this.
With West Australia we had to end the arrest and jailing of fine defaulters. This draconian law led to Ms Dhu’s death. Thousands of impoverished people unable to afford fines were till recently jailed. Last year a mother of five children was arrested on unpaid fines after a distress call to police about a violent visitor. She had no criminal history but was arrested and locked up after a background check found outstanding fines relating to an unregistered dog.
We lobbied for an end to Western Australian Fines Enforcement Registrar’s power to issue warrants to nail fine defaulters. Early this year I met with the Registrar and was relieved after four years of meetings and campaigning that the issuing of warrants by the Registrar were at an end. People could now call police for assistance without fear of being arrested themselves because of poverty. However, the campaign is not over, not till the Western Government amends legislation to reflect the removing of the Registrar’s powers to issue warrants.
We now begin a new campaign. Fines must be affordable or otherwise they are discriminatory. Fines should be income assessed, their affordability ensured. Scandinavian models have demonstrated that this can be achieved. We now have the West Australian Government considering this. West Australia, the last jurisdiction in the nation to end jailing of fine defaulters – 30 years after NSW led the way – now has the opportunity to lead the way as the first jurisdiction to determine the size of a fine in accordance to income.