The Crimes Legislation Amendment (Powers, Offences and Other Measures)
Bill 2017 (the bill) would make a number of changes to the Australian
Federal Police Act 1979 (AFP Act), Crimes Act 1914 (Crimes Act), and
Criminal Code Act 1995 (the Criminal Code).
Labor Senators make the following additional comments in relation to the
proposed amendments to the Aboriginal and Torres Strait Islander custody
notification scheme found in the Crimes Act.
Problems with these proposed amendments
Schedule 2 of the bill would amend aspects of the Crimes Act as they
relate to the questioning of people of Aboriginal and Torres Strait Islander
origin, by investigating officials. It purports to both:
rectify the problematic judicial precedent in R v CK
 ACTSC 251, in which the Australian Capital Territory Supreme Court found
that, due to a legislative drafting error, the words used in section 23H did
not require an investigating official to contact an Aboriginal legal aid organisation
before commencing questioning; and
'clarify' the content of the notification obligation itself.
Labor Senators support the amendment insofar as it will rectify the
judicial finding in R v CK. The provisions in the Crimes Act which deal
specifically with the process of questioning a person of Aboriginal or Torres
Strait Islander origin exist to provide those individuals with extra protection
when engaging with the criminal justice system. If those provisions did not
require an investigating official to contact an Aboriginal legal assistance
organisation before questioning began, the capacity of those provisions to
achieve that goal would be fatally compromised.
However, the proposed amendments would not merely fix the drafting error
which led to the decision in R v CK. They would change the content of
the custody notification scheme from an absolute requirement to notify an
Aboriginal legal aid organisation (to now be known as an Aboriginal legal
'assistance' organisation), to an obligation to take 'reasonable steps' to
notify said organisation, and provide a two hour window for that organisation
to contact the individual to be questioned.
The term 'reasonable steps' is vague and poorly defined. The Explanatory
Memorandum provides little explanation of what reasonable steps might entail in
[T]his could include an investigating official leaving a
voice message on a custody notification telephone service. This clarification
will take into account that in some instances an Aboriginal legal assistance
organisation may be unable to answer a telephone call or immediately respond to
a notification by an investigating official. The officer should therefore be
permitted to make reasonable attempts to notify such an organisation and
request a response when a representative from the organisation is available,
rather than, for example, having to continually call the organisation until
actual contact is made.
The Explanatory Memorandum does not expand on whether 'reasonable steps'
would entail one phone call, or one voice message, or an attempt to reach out
to just one Aboriginal legal assistance organisation where more than one may be
able to assist. The definition offered by the Attorney-General's Department,
'"reasonable steps" means investigating officials must take all
reasonable steps to make contact with an [organisation]' does nothing to
clarify what this phrase actually means.
These issues are compounded by the inclusion of a two hour window during
which an Aboriginal legal assistance organisation can get back in touch with
the investigating officials before the individual will be questioned. The
policy rationale behind this two hour window is unclear. The Explanatory
Memorandum does not state why a two hour window, rather than a four hour window
(for example), is reasonable. It does not link the proposed window of time to
the length of time during which an individual may be held in custody before
they must be released if no charges have been laid (for example). It does not
set out any practical justifications for the proposed window of time, outlining,
for example, a series of instances in which investigating officials have waited
significant lengths of time for an organisation to contact an individual in
custody so that questioning may commence.
A poor solution
Labor Senators believe that a recommendation to amend the Explanatory
Memorandum to update the definition of the phrase 'reasonable steps' is insufficient.
The words should be removed from this bill.
The intention of the legislation as it stands is that such an
organisation is notified in every instance that an individual is taken into
The proposed introduction of an obligation to take 'reasonable steps' to
notify an Aboriginal legal assistance organisation is a poor legislative response
to the recognised vulnerabilities of Aboriginal and Torres Strait Islander
people who come into contact with the criminal justice system. Labor Senators
do not agree with the department's assertion that the inclusion of this phrase
is not intended to dilute the custody notification requirement.
Clearly, it would water down the provisions of the Crimes Act which should
protect these individuals, and weaken custody notification laws.
As the Aboriginal Legal Services of Western Australia and NSW/ACT, and
the CCL noted,
it is entirely conceivable that a legal assistance organisation may be
uncontactable for a range of reasons—for example because they are in a rural
area visiting clients, or the call comes in very late at night or early in the
morning. Even a carefully drafted definition of 'reasonable steps' would not
guarantee proper notification for people in these circumstances.
Labor's alternative approach
An absolute obligation to notify an Aboriginal legal assistance
organisation prior to questioning a person of Aboriginal or Torres Strait
Islander origin must be maintained.
It is well-established that custody notification prevents Aboriginal and
Torres Strait Islander deaths in custody.
The NSW Council for Civil Liberties (CCL) argued that the NSW legislative
scheme—which requires that police must defer an interview until a lawyer can be
contacted—is a preferable custody notification model.
The Council highlighted that the NSW legislative scheme can be connected to the
low levels of deaths in custody in the state, despite the state also having one
of the highest per capita rates of Aboriginal people in police custody.
Last year the Government agreed to fund the States to implement 24 hour
custody notification services.
Instead of watering down the protections for Aboriginal and Torres Strait
Islanders, the Government should honour this commitment to establishing
nation-wide Custody Notification Services.
Labor urges the Government to quickly establish the Custody Notification
Services and maintain the absolute requirement to notify.
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