14.9 Each state and territory, and the Commonwealth, has its own police service operating under state and territory and federal legislation. In the Australian Capital Territory (ACT), policing is carried out by the Australian Federal Police. In each jurisdiction policing covers four broad areas:
Community safety – Preserving public order and promoting a safer community
Crime – investigating crime and identifying and apprehending offenders
Road safety – targeted operations to reduce the incidence of traffic offences and through attendance at, and investigation of, road traffic collisions and incidents
Judicial services – support to the judicial process including the provision of safe custody for alleged offenders
14.10 As explained by Victoria Police:
The fundamental purpose of policing is the protection and vindication of the human rights of every citizen.
Equally, police must protect human rights in the exercise of their duty; every interaction between a sworn officer and a member of the public conveys strong signals about whether that person is treated with respect and dignity.
14.11 Effective policing in Australia relies on the principle of policing with the consent of the public. In 2015–2016, 75% of Australians were satisfied or very satisfied with police, rising to 85% of people who were satisfied or very satisfied with the service they received during their most recent contact with police. Unfortunately this survey did not provide figures in relation to Aboriginal and Torres Strait Islander peoples. However, evidence from a range of sources suggests that Aboriginal and Torres Strait Islander people continue to have less positive attitudes to police.
14.12 In describing the relationship between police and Aboriginal and Torres Strait Islander communities, the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) noted:
There is absolutely no doubt in my mind that the antipathy which so many Aboriginal people have towards police is based not just on historical conduct but upon the contemporary experience of contact with many police officers …
The challenge for police departments is to accept that there is a basis for Aboriginal resentment and suspicion about police conduct and to consider the Aboriginal perspective when devising policing strategies.
14.13 Much has changed since the RCIADIC. For example, The Royal Commission into the Protection and Detention of Children in the Northern Territory highlights a number of examples of positive interactions between police and communities in the Northern Territory (NT). However, issues continue to remain, particularly in relation to what has been described as over-policing of public order and criminal infringement offences, ‘proactive’ policing in relation to bail and residential checks, and under-policing of family violence when Aboriginal and Torres Strait Islander people, particularly women, are the victim.
14.14 The Public Interest Advocacy Centre (PIAC) has noted that over-policing:
has also continued to cement the precarious relationship between Aboriginal young people and adults with the police officers in their communities. Aboriginal Australians report a high level of discrimination across a range of settings, with one of the highest occurrences being when interacting with police, security people, lawyers or in a court of law. The very perception of discrimination has an impact on Aboriginal and Torres Strait Islander people’s well being; research has shown that just a perception can lead to changes in job seeking behaviour or dropping out of the work force. Discrimination can also be linked to negative health outcomes.
14.15 The role of the police, and the criminal justice system more broadly, in contributing to the over-incarceration of Aboriginal and Torres Strait Islander peoples was explained by the Honourable Wayne Martin AC, Chief Justice of Western Australia:
Over-representation amongst those who commit crime is, however, plainly not the entire cause of over-representation of Aboriginal people. The system itself must take part of the blame. Aboriginal people are much more likely to be questioned by police than non-Aboriginal people. When questioned they are more likely to be arrested than proceeded against by summons. If they are arrested, Aboriginal people are much more likely to be remanded in custody than given bail. Aboriginal people are much more likely to plead guilty than go to trial, and if they go to trial, they are much more likely to be convicted. If Aboriginal people are convicted, they are much more likely to be imprisoned than non-Aboriginal people, and at the end of their term of imprisonment they are much less likely to get parole than non-Aboriginal people.
14.16 A key issue identified by the Honourable Wayne Martin AC, was the initial decision by police to arrest. In this regard, the Human Rights Law Centre and Change the Record Coalition have pointed out the role that police discretion plays in determining incarceration rates:
ATSILS [Aboriginal and Torres Strait Islander Legal Services] have consistently pointed to a bias in the exercise of police discretion against diverting or cautioning Aboriginal and Torres Strait Islander people, particularly young people. Research in several jurisdictions has supported this view. There is evidence also that Aboriginal and Torres Strait Islander women are more likely to be arrested and charged with an offence compared to non-Indigenous women.
14.17 The Victorian Equal Opportunity and Human Rights Commission has noted the significant power that individual police have in exercising their discretion:
Victoria Police officers have significant discretionary powers and play an important role as the entry point to the justice system. Every decision made (such as whether to investigate, question, search, arrest, caution, charge and prosecute) involves an element of discretion on the part of the officer … Given the scope and significance of police powers, and the harm that can be caused if decision-making is not undertaken with people’s rights being fully considered, discretion should be exercised appropriately.
14.18 The link between police discretion and incarceration rates of Aboriginal and Torres Strait Islander peoples has been acknowledged previously in the Aboriginal Strategic Direction 2007–2010. That direction focused on the need to use discretion as an alternative to arrest in order to ‘[r]educe offending and over-representation of Aboriginal people in the criminal justice system.’
See, eg, Victoria Police Act 2013 (Vic); Police Service Administration Act 1990 (Qld); Police Act 1990 (NSW).
ACT Government and Australian Federal Police, An Ongoing Arrangement between the Minister for Justice of the Commonwealth and the ACT Minister for Police and Emergency Services for the Provision of Policing Services to the ACT: Commencing June 2017 (2017); ACT Government and Australian Federal Police, Agreement between the ACT Minister for Police and Emergency Services, Australian Federal Police Commissioner, and the Chief Police Officer for the ACT for the Provision of Policing Services to the Australian Capital Territory 2017–2021 (2017).
Productivity Commission, ‘Report on Government Services 2017’ (Volume C: Justice, Produced for the Steering Committee for the Review of Government Service Provision, 2017) 6.1.
Victoria Police, above n 1, 9.
See, eg, Ibid 10; Colin Prof Rogers, ‘Maintaining Democratic Policing: The Challenge for Police Leaders’ (2014) 2(2) Australian Institute of Police Management 1.
Productivity Commission, above n 5, 6.15-6.16.
See, eg, Daphne Habibis et al, Telling It like It Is: Aboriginal Perspectives on Race and Race Relations: Early Findings (2016) 8; Reconciliation Australia, State of Reconciliation in Australia: Summary (2016) 7. See, also, Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 5 recs 60–1, 79–91, 214–33; Human Rights Law Centre and Change the Record Coalition, Over-Represented and Overlooked: The Crisis of Aboriginal and Torres Strait Islander Women’s Growing Over-Imprisonment (2017) 22; Victorian Equal Opportunity and Human Rights Commission, Unfinished Business: Koori Women and the Justice System (2013) 42; Senate Standing Committees on Finance and Public Administration, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (2016) 70, 80; Senate Select Committee on Regional and Remote Indigenous Communities, Parliament of Australia, Indigenous Australians, Incarceration and the Criminal Justice System—Discussion Paper (2010) 36; Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice and Native Title Report 2016 (Australian Human Rights Commission, 2016) 40–2; Inquest into the Death of Ms Dhu (11020–14) (Unreported, WACorC, 16 December 2016).
Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) Vol 2 [13.2.2]–[13.2.19].
Commonwealth, Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory, Findings and Recommendations (2017) recs 25.1–25.22.
Public Interest Advocacy Centre, Submission No 17 to Senate Finance and Public Administration References Committee, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (30 April 2015).
Chief Justice Wayne Martin, ‘Indigenous Incarceration Rates: Strategies for Much Needed Reform’ (Speech, Law Summer School, 2015).
Human Rights Law Centre and Change the Record Coalition, above n 9, 32.
Victorian Equal Opportunity and Human Rights Commission, Unfinished Business: Koori Women and the Justice System (2013) 43.
NSW Police Force, Aboriginal Strategic Direction 2007–2011 (2007) 46.