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Gray, Ian --- "Police- VALS Notification System Breakdown" [1982] AboriginalLawB 61; (1982) 1(6) Aboriginal Law Bulletin 3


Police – VALS Notification System Breakdown

by Ian Gray

In recent years, Victorian Aborigines have been served by guidelines under which the Victorian Aboriginal Legal Service (VALS) was informed when Aborigines were in Police custody. The guidelines meant some protection from possible abuses of Police arrest and interrogation procedures and some bottom-line guarantee of rights for suspects and accused persons in Police custody. The system was never perfect. It operated unevenly but it was better than nothing and was achieved and operated as a result of co-operation between VALS and the Victorian Police.

During 1982, however, the system has broken down and is now a dead letter. It seems the Police have undermined the spirit of the guidelines and adopted an artificial interpretation of their wording; the guidelines have been emasculated.

Victoria's notification system

The reasons for the development of notification systems in several Australian States have been set out and discussed elsewhere. The case for `special rules' for Aborigines needs no restatement here.[1] Because various Police Forces have agreed to participate in notification systems, it can be inferred that those Forces accept, however reluctantly, the case for `special rules' (or at least parts of that case).

A notification system began in Victoria by virtue of an obligation imposed on courts and then the Police by -the Aboriginal Affairs Act 1967 requiring that the Director of Aborignal Affairs be notified when an Aborigine had been charged with an offence.[2] Following the transfer of responsibility for Aborignal affairs to the Commonwealth,[3] agreement was reached with the Victoria Police for a notification provision to be included in Police Standing Orders. That required Police to notify VALS when Aborigines were arrested. The system was applied unevenly, or not at all, and generally speaking, it did not work.

A streamlined procedure

Late in 1980, a streamlining of the procedure was agreed upon by VALS and the Victoria Police, and early in 1981, the following direction was issued to all Police:

Where a person who is of Aboriginal ancestry, or whose appearance indicates Aboriginal ancestry, or who claims to be of Aboriginal ancestry is arrested for any offence (other than drunkenness) or on a Care application, the arresting member shall promptly telephone particulars to the Missing Persons Bureau.

This direction was incorporated as an amendment to the Police Manual (para. 17.2) and was published in the Police Gazette. A new series of procedures were agreed upon and adopted; offences were divided into `serious' and `other'. If `serious', the Missing Persons Bureau was required to notify VALS at any time around the clock. If offences were not `serious', delayed notification took place. These procedures established the `arrest' as the trigger event. No debate or correspondence was entered into) at that time concerning the meaning of `arrest'. The VALS view was that it meant detention in custody, de facto or otherwise.

Throughout 1981 the procedures operated erratically. Police at some stations adhered strictly to the guidelines. It would appear that others did so when it suited them (making a choice as to the point in the investigation/ arrest /interrogation process when they would make the notification). Still others appeared to ignore the guidelines, some claiming never to have heard of them. It seemed that whim, memory and convenience determined the attitude of many police and as a result, the fate of many Aborigines in custody.

The result was that in some cases, VALS solicitors or field officers were able to advise clients of their rights before interrogation and interview procedures. In the large majority of cases, however, notification took place after admissions had been made.

As Rees has noted, `The Victoria police have . . . construed the notification provisions narrowly and claim there is no obligation to contact VALS until a person has been charged, [4] In the view of VALS, the Police interpretation has never been a correct application of the procedure embodied in paragraph 17.2 of the Police Manual.

When should notification occur?

In January 1982, at the request of VALS, a meeting took place to review the system. The Police were quick to concede that they had failed to educate their members sufficiently, especially in the country, and they undertook to correct that. VALS raised the. vexed question: at what point in time should notification occur? VALS restated the view that the proper procedure, because of use of the word `arrested', meant that notification in `serious' cases should immediately follow detention in custody, and not come at some later point in time, e.g. at the time of charging. The Police were unsympathetic to this view but it was agreed there would be no change in the wording of the guidelines without further consultation.

During the first half of 1982, VALS received either no notification or late notification in cases ranging from burglary and armed robbery to murder. In June, a further meeting took place with Police. Again it was readily conceded that a number of Police were still not familiar with the guidelines and that others were avoiding compliance with it. Again the question of when an arresting officer was obliged to make the notification came up. In the course of the usual arguments being canvassed, the senior officer at the meeting blandly announced that a meeting of senior Police in April had decided that `arrested' in paragraph 17.2 in the Manual was from that time on to bear the same meaning as `charged'. At the June meeting, all Police present accepted that there was absolutely no common law basis for such an interpretation. The Officer in Charge of the Missing Persons Bureau went further and suggested that the notification procedure should be triggered as soon as someone was taken into Police custody (the VALS view throughout) and that for the purposes of the procedure, the words `in custody' should have the meaning they now have under paragraph 8.36 of the Police Standing Orders.[5] It was again agreed that there would be no change to paragraph 17.2 of the Manual without prior consultation.

If it had not been before, it was now obvious that the Police Department was determined not to allow the notification procedure to operate so that Aborigines in custody in Victoria would receive legal advice before being questioned. The self-serving interpretation of `arrested' provides a convenient `out' for the Police and effectively undermines the procedure.

Notification: at whose convenience?

But there was more to come. At 5.15 p.m. on 12 July, a VALS field officer was notified by the Missing Persons Bureau that a 20 year old Aborigine had been charged with murder. Inquiries the. following day revealed the person had been arrested at 9.37 a.m. on 12 July, held in custody as a suspect and finally charged at about 3.15 p.m. In the meantime, the person had made a lengthy statement and submitted to a filmed reenactment of the alleged crime. It was then disclosed by senior Police that from 29 April 1982, the Missing Persons Bureau had been instructed not to notify VALS until a `suspect' had been formally charged.

This change in procedure had been effected without notice to VALS. It was not disclosed to VALS representatives at the June meeting that the procedure then under discussion had in fact already been changed. Moreover at both the January and June meetings it had been agreed that there would be no changes to the guidelines or practice without prior discussion.

‘Rights’ become a hollow promise

Again VALS arranged a meeting. This 'time the State Government was represented (by Dr K. Coghill M.P., assisting the Premier in Aboriginal Affairs). A Deputy Commissioner of Police was present - the third different senior officer to represent the Force in as many meetings. VALS put its view on the breakdown of the notification system, the unilateral change in practice and suggested solutions. Without so much as a faint demur, the Deputy Commissioner suggested that `arrested' should be replaced by either `detained at a Police Station for any reason' or detained `in custody' (as in Standing Order 8.36). The VALS view exactly!

But this proved no more than a public relations exercise. The officer in question had power only to report back to a meeting of Police Commissioners.

Policy policy and practice concerning 'the notification procedure have not changed. VALS is currently preparing a submission for the State Government. Meanwhile, Aborigines `detained in custody' in Victoria can confidently expect to see a VALS solicitor or field. officer only after they have been charged and as often as not, after they have been locked up in the cells. A citizen's right to legal advice upon arrest has become, for Victorian Aborigines at least, a hollow promise.


[1] See Neil Rees, `Police Interrogation of Aborigines' in J. Basten et al. (eds.), The Criminal Injustice System, ALWG and LSB, 1982, pp. 37-54; and House of Representatives Standing Committee on Aboriginal Affairs, Aborignal Legal Aid, AGPS, 1980, pp. 80-84.

[2] Section 37. This section was subsequently amended by the Aboriginal Affairs (Amendment) Act 1968.

[3] See Commonwealth Aboriginal Affairs (Arrangements with the States) Act 1973 and the Victorian Aboriginal Affairs (Transfer of Functions) Act 1974.

[4] Rees, note 1 above, p. 52.

[5] Para. 8.36 (1)(a): A `person in custody' means any person suspected of the commission of an offence who is at a police station or other police premises in connection with the investigation of an alleged offence.


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