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Aboriginal Legal Service NSW/ACT calls for urgent action on police violating right to silence

Dechlan Brennan -

The Aboriginal Legal Service (NSW/ACT) has called for urgent action by NSW Police and Attorney General in the wake of an independent inquiry finding "a systemic problem" around police interviewing vulnerable people.

Operation Mantus - a report to Parliament by the Law Enforcement Conduct Commission (LECC) - unearthed intrinsic problems with the NSW Police.

It found in a significant number of cases, police have been interviewing young people in custody - including Indigenous youth - in a way that compromises their right to silence.

Principal Legal Officer of Aboriginal Legal Service (NSW/ACT), Nadine Miles, said the right to silence for an accused person is a fundamental principle of the Australian legal system.

"(Y)et legal services have seen police coercing Aboriginal children as young as 10 to participate in interviews against legal advice," she said.

Operation Mantus was launched after the Redfern Legal Centre (RLC) reported the behaviour of NSW police during the arrest of a 14-year-old Indigenous child, known as YPM1.

After suffering a head injury and being hospitalised, YPM1 was questioned by two officers after being discharged back to the local police station, despite informing his Aboriginal Legal Service lawyer that he wanted to exercise his right to silence.

In their findings, the LECC said they had also received complaints from the Director of Public Prosecutions (DPP) about similar incidents where NSW Police had interviewed vulnerable people, despite their lawyers saying the client did not want to be interviewed.

"In 2004 and 2005 the NSW Police Force issued protocols instructing police how to properly deal with a young person who declines an interview," the LECC said.

"These protocols appear to have been forgotten and are no longer in use."

Under NSW law, a vulnerable person includes: a child under 18 years; people with impaired intellectual functioning; people with impaired physical functioning; Aboriginal and Torres Strait Islander people; and people who are of a non-English speaking background.

Young people are particularly vulnerable when in police custody, as their psychological and emotional development is generally less advanced than those of an adult. The LECC noted that young people were more likely to confess - even falsely - than adults.

19 recommendations were made by Operation Mantus, including that police should "urgently" advise custody managers to make a record when a young person declines to be interviewed - either directly or through a lawyer - and that they should not be asked to confirm this decision; and that police must assist vulnerable people to obtain further legal advice if they appear to change their mind regarding an interview.

The recommendations came about due to complaints from Legal Aid, ALS NSW/ACT and the DPP regarding improper practises by NSW police, including the offer of bail as a strategy to entice children in custody to participate in interviews against legal advice.

Chief Commissioner Peter Johnson SC said of the findings: "The NSW Police Force has failed to address interviewing practices which compromise the right to silence, despite a number of court decisions setting out the problems with these practices".

Ms Miles urged the state government to act on all the recommendations laid out by the LECC, allowing further access to the ALS Custody Notification Service for Indigenous people detained by police.

"We are calling on the Attorney General to urgently act on this recommendation so that Aboriginal and Torres Strait Islander people under arrest, including children, have further access to the ALS Custody Notification Service if they are at risk of being interviewed against legal advice," Ms Miles said.

The service is a 24-hour aid that NSW police are legally required to notify after the arrest of any Aboriginal or Torres Strait Islander person, providing culturally safe legal advice as well as an 'R U OK' wellbeing check.

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