M2 - Learner Manual

8. Conflicts between Aboriginal & Torres Strait Islander cultural needs & bail requirements

The Aboriginal Legal Service provides an important telephone advice service (custody notification service - CNS) which is staffed by ALS lawyers to give legal advice and check on the person’s welfare. In some circumstances the lawyer assisting can help to negotiate bail for the person in custody with the custody manager. Police are required under the NSW Law Enforcement (Powers and Responsibilities) Regulations 2016 (NSW)   to notify the Aboriginal Legal Service NSW/ACT when an Aboriginal or Torres Strait Islander person is taken into custody (see regulation 37: http://classic.austlii.edu.au/au/legis/nsw/consol_reg/learr2016542/s37.html)

There is a distinct lack of culturally appropriate diversion programs, mental health and alcohol and other drugs programs which would support an Aboriginal and Torres Strait Islander person applying for bail. The lack of programs was recognised in the 2017 ALRC Pathways to Justice report (see recommendation 5-2) at this link to the report: https://www.alrc.gov.au/publication/pathways-to-justice-inquiry-into-the-incarceration-rate-of-aboriginal-and-torres-strait-islander-peoples-alrc-report-133/1-introduction-to-the-inquiry-18/

The Australian Law Reform Commission in its Pathways to Justice Report (2017) comprehensively discusses issues relating to bail and culture in Part 2 of its report which can be found at this link: https://www.alrc.gov.au/publication/incarceration-rates-of-aboriginal-and-torres-strait-islander-peoples-dp-84/2-bail-and-the-remand-population/background-28/

Further resources:

Denning-Cotter (2008), Bail Support in Australia, Indigenous Justice Clearing House: https://www.indigenousjustice.gov.au/wp-content/uploads/mp/files/publications/files/brief002.v1.pdf