Aboriginal people are over-represented in police custody, with higher rates of police bail refusal. Following the Royal Commission into Aboriginal Deaths in Custody, some protections have been implemented to reduce the risks associated with detention.

People are held in police custody when they are detained after being arrested (DOC2988). Unless police stop the arrest process, the person is usually taken to a police station or watch-house (DOC2988). It is different from prison custody, where a person is detained in a prison after being denied bail by a court or when serving a prison sentence.

Entry into police custody

The law sets out when police may arrest a person (DOC2988). Police can detain a person for up to six hours before charging or releasing them, unless an extension is granted (DOC2988).

The courts have said that arrest should only be used as a last resort (DOC6729), which is consistent with a recommendation by the Royal Commission into Aboriginal Deaths in Custody (DOC5114). However concerns have been raised that police often do not follow this principle and it has been suggested that it be put into legislation (DOC3623, DOC7232).

Aboriginal people are taken into police custody at disproportionately high rates (DOC3001). There are many complex and related reasons for this, including the role of police discretion (see SUB0421), the criminalisation of social disadvantage, the ongoing impact of colonisation and intergenerational trauma (DOC5114, DOC3623).

Denial of police bail

Bail is an agreement to attend court to answer criminal charges.

After a person is charged, police decide whether to release the person on bail (with or without conditions) or to deny them bail and keep them in police custody. Police can also decide to release a person without bail and give them a court attendance notice.

If police deny the person bail, they stay in police custody until they are ‘brought before a court … as soon as practicable’ (DOC2989), The court will then make a decision about whether to grant the person bail. If the court denies the person bail, they are taken into prison custody on remand. Remand is the time a person spends in custody while they wait for their trial or sentencing.

Police and courts must take several factors into account when deciding whether to grant bail (DOC7188). People making bail decisions must consider, among other things, 'any special vulnerability or needs ... because of being an Aboriginal or Torres Strait Islander’ (DOC7188).

In 2021, the NSW Bureau of Crime Statistics and Research (BOCSAR) released a report finding that Aboriginal people are 20.4% more likely to be refused bail by police than non-Aboriginal people (DOC3001).

A 2023 BOCSAR report found no evidence of individual bias by the people making bail decisions. However, the report acknowledged the possibility that ‘police officers may still exhibit bias earlier in the charging process’, such as when they are making the decision to arrest a person, and that there is the existence of institutional and historic discrimination in the criminal justice system (DOC7189).

There have been several amendments that have made it harder for people to get bail (DOC7234, DOC4246, DOC7190). In 2024, the Bail Act (Amendment) Act 2024 made it more difficult for young people to get bail if they were charged with certain offences while on bail (DOC7191, DOC7192), a law several judges criticised for creating a higher test for children than adults (DOC7282, DOC7349, DOC7350, DOC7351). In the second reading speech, the Attorney General acknowledged that the amendment had potential for serious consequences, particularly for Aboriginal young people (DOC7193).

Deaths in police custody

The NSW State Coroner must investigate any death that happens when a person is in police custody, escaping from police custody or as a result of police operations (DOC7194).

The 1991 Royal Commission into Aboriginal Deaths in Custody was called in response to the high rates of deaths of Aboriginal people in custody across Australia. Of the 15 NSW deaths investigated by the Commission, eight involved a death in a police station or watch-house, one was the result of police operations and the remaining six were in prison custody (DOC4236).

The Commission found that Aboriginal people die in custody more often than non-Indigenous people because they are in custody more often. As a result, the final report made many findings and recommendations about the factors that lead to Aboriginal people entering custody. This included recommendations that arrest be used as a last resort and broader comments about the relationship between police and Aboriginal people and the role of police discretion (see SUB0421) (DOC5114).

The Commission made also multiple recommendations about treatment of Aboriginal people once they enter police custody (DOC5114) including:

• screening protocols,
• the availability of medical care and medical information sharing,
• training programs to identify risks of self-harm
• regular checking of detainees and TV monitoring surveillance
• introduction of cell visitor schemes

In total, 37 recommendations were made about police custody (DOC5114).

The details of the Royal Commission and its recommendations will be covered by Towards Truth in a forthcoming subject.

From 1991-2025, 46 Aboriginal or Torres Strait Islander people died in police custody or custody-related police operations in NSW (DOC7196). This represents approximately 15% of all deaths in police custody or custody-related police operations in that time.

Police cells

There are specific protections in the law for Aboriginal people in police cells. When an Aboriginal person is placed in a police cell, they should be placed in a cell with another Aboriginal person wherever possible and are not to be placed alone in a cell ‘unless there is no reasonably practicable alternative’ (DOC4249).

An Aboriginal child is not to be placed in a police cell ‘except in exceptional circumstances that make it necessary for the well-being of the child’ (DOC4249).

Custody Notification Service

Since 1999, police have been required to notify the NSW Aboriginal Legal Service (ALS) when an Aboriginal person is taken into custody (DOC3575, DOC4250, DOC4249). This was a recommendation made by the Royal Commission into Aboriginal Deaths in Custody (DOC3764).

The Custody Notification Service has operated since 2000. When an Aboriginal person is taken into custody, NSW Police must notify the ALS. The ALS then contacts the person to provide immediate legal advice and to conduct a welfare check. This is a 24-hour service.

In 2016, Wiradjuri woman Rebecca Maher died while she was in police custody. Police did not have to contact the Custody Notification Service because Ms Maher was in police custody due to public intoxication, not in connection with a suspected offence. At the inquest into her death, the coroner recommended that the requirement to contact the Custody Notification Service be expanded to include people detained for public intoxication (DOC1402). This happened in 2019 (DOC7197).

The Custody Notification Service is funded with short-term Commonwealth funding through the ALS (DOC7242), with occasional NSW state government contributions. Federal funding was temporarily threatened in 2015 (DOC7245, DOC7251) and again in 2019-2020 amid legal assistance funding restructures, prompting public warnings from the ALS about possible service cuts (DOC7251).

Bail and Crimes Amendment Bill 2024 (NSW) - Second reading, Legislative Assembly, 12 March 2024