Recommendation 14–1 Commonwealth, state and territory governments should review police procedures and practices so that the law is enforced fairly, equally and without discrimination with respect to Aboriginal and Torres Strait Islander peoples.
14.19 Throughout this Inquiry, a number of stakeholders informed the ALRC that police practices and policies contribute to the over-incarceration of Aboriginal and Torres Strait Islander peoples. In order to address over-incarceration, and provide for the equal application of the law, the ALRC recommends that governments specifically review police procedures and practices both in their design and implementation. Those reviews should consider the factors outlined above and involve a broad range of stakeholders including Aboriginal and Torres Strait Islander peoples.
14.20 This section highlights some aspects of police procedure and practice that warrant particular attention including the application of police discretion and any evidence of over charging by police.
14.21 Police discretion is an important and necessary feature of our criminal justice system. When a police officer suspects that a person has committed an offence they will exercise judgement (or discretion) as to how best to proceed. The officer will ‘consider not only the illegality of the offense but also contextual and mitigating factors.’ A key feature of policing in Australia is premised on the principle that ‘[s]trict adherence to the letter of the law in many cases would be too harsh and justice may be better served by not introducing an offender into the criminal justice process.’ That is, a police officer may elect not to proceed in response to a minor offence or may choose to otherwise divert the offender.
14.22 In other circumstances, the exercise of discretion relates to decisions about how to initiate a criminal justice response. There are two ways to charge a person: by way of a physical arrest (with or without a warrant) and taking into custody or by issuing a summons or attendance notice to attend court at a later date. Arrest is typically seen as an option of last resort, as it involves at least a temporary loss of liberty. It may be necessary, however, to protect community safety or to preserve evidence. Police discretion is regulated not just by laws and regulations but by policing manuals and instructions, as well as by directions from a more senior officer in certain circumstances.
14.23 Police discretion can work in favour of, or against, a person suspected of criminal conduct. A key focus of this recommendation is a review of inappropriate uses of police discretion and how best to ensure police policies and practices support the appropriate exercise of police discretion.
14.24 As set out in Chapter 3, Aboriginal and Torres Strait Islander people are seven times more likely than non-Indigenous people to be charged with a criminal offence and appear before the courts. In addition to the statistical overview provided in that chapter, specific research has focused on the rates of police cautioning for young people. This research suggests that Aboriginal and Torres Strait Islander young people are more likely to be arrested than their non-Indigenous counterparts even after other factors such as the offence, offending history and background factors are taken into account. For example:
Crime Statistics Agency Victoria (CSAV) found that from July 2016 to June 2017, Aboriginal and Torres Strait Islander people were 10% more likely to be arrested following an alleged offender incident, were less likely to be cautioned, and were also less likely to receive a summons or intent to summons than a non-Indigenous alleged offender.
In 2008, the Australian Institute of Criminology (AIC) examined differences in juvenile diversionary rates for Aboriginal and Torres Strait Islander and non-Indigenous offenders in New South Wales (NSW), South Australia (SA) and Western Australia (WA). It found that Aboriginal and Torres Strait Islander offenders were more likely to be referred to a court than non-Indigenous offenders whereas non-Indigenous offenders in all three states were significantly more likely to receive a police caution. 
14.25 Similar findings have been made by the Crime and Misconduct Commission in Queensland, the NSW Bureau of Crime Statistics and Research (NSW BOCSAR), and the Office of Police Integrity Victoria.
14.26 Redfern Legal Centre (RLC) submitted the following case study on the use of police discretion to arrest:
Case Study: Melissa – part 1
Melissa had been celebrating a friend’s birthday with a group of teenagers outside a McDonald’s restaurant. Several of the young people were intoxicated. Melissa’s friend was arrested for swearing at police. After Melissa tried to assist her friend by wrapping her arms around her, Melissa was arrested and charged with resisting and hindering police. The Constable who arrested Melissa tackled her to the ground, put her in a headlock, dragged her towards the back of a paddywagon, dropping her on the ground where Melissa hit her head and became unconscious. The Magistrate who dismissed the charges against Melissa found that police used “an inordinate amount of force.”
14.27 Legal Aid NSW submitted the following case study in relation to police discretion in enforcing bail regimes:
Case Study: Donna
Legal Aid NSW received an inquiry from a worker at a support service whose client, Donna, was an Aboriginal woman whose bail condition required her to live at a particular address. Donna was experiencing domestic violence at this address and spoke to police about her intention to live elsewhere. The police officer she spoke to said she would be arrested if she breached her residence condition.
14.28 Consistent with these cases studies, a number of stakeholders suggested that police discretion continues to be exercised inappropriately in regards to Aboriginal and Torres Strait Islander peoples. The Aboriginal Legal Service NSW/ACT (ALS NSW/ACT) submitted that their community consultations showed that:
The majority of participants considered there to be very little or nothing working well between the police and their community … A number of participants suggested that institutional racism has become a feature of policing in NSW. These participants noted that police offer very little discretion when dealing with Aboriginal people, and that many communities in regional and remote NSW communities suffer from over policing.
14.29 RLC submitted that the use of police discretion in relation to arrest was particularly important in order to ensure arrest remains a genuine ‘last resort’:
It is well established that in the common law, arrest is for the purpose of commencing proceedings against a person and is an action of last resort. In RLC’s experience arrest is routinely used against Aboriginal and Torres Strait Islander people as a first resort rather than utilising the range of alternatives available to police such as a Court Attendance Notice (CAN), warning or caution. These alternatives are outlined in legislation and guidance manuals for police. It is clear that meaningful action is required to ensure police arrest practices change. The support of police leadership across Australian police agencies to foster an understanding of and commitment to the principle of arrest as a last resort is needed.
14.30 In order to facilitate a decreased reliance on arrest, RLC suggested that NSW introduce a legislative reform so that ‘police are mandated in legislation to explicitly use arrest as a last resort when dealing with Aboriginal and Torres Strait Islander people. Police policy and training alone are insufficient.’
14.31 Caxton Legal Centre submitted that police should be required to report on their use of discretion in relation to Aboriginal and Torres Strait Islander people:
Whilst the reporting of engagement strategies may create positive impetus for their use, our view is that such reporting should also include full coverage of areas where police have discretionary powers including on the use of criminal infringement notices and the issuing of move on directions. Implementing such changes would shed light on how the use of discretionary police powers impacts on the involvement of Aboriginal and Torres Strait Islander individuals and the criminal justice system … It is hoped that by making such records public police would be deterred from having too many Indigenous entries on the record 
14.32 Another relevant aspect of policing practice concerns how local police commands prioritise resources to tackle crime. In NSW for example, the Suspect Target Management Plan (STMP) has been implemented. STMP is ‘a strategy to encourage local commands to target serious or repeat offenders across NSW’. It is premised on the belief that ‘targeting of recidivist behaviour is possibly the most efficient method of reducing crime’ Under STMP high risk suspects are subject to surveillance, monitoring, and strict enforcement of all requirements under any non-custodial order the person may be subject to (such as reporting for bail)—even where these requirements are ostensibly unrelated to reoffending.
14.33 There is some evidence that STMP also targets Aboriginal and Torres Strait Islander people with previous offending histories, particularly those subject to non-custodial orders, for frequent compliance checks—resulting in higher rates of breach and imprisonment, often for minor or ‘technical’ breaches.
Policing of bail conditions
14.34 Stakeholders to this Inquiry suggested that more proactive policing of bail conditions, particularly focused on technical breaches (rather than reoffending), is contributing to over-incarceration of Aboriginal and Torres Strait Islander peoples. RLC provided the following case study to this Inquiry:
Case Study: Toby, part 1
At the age of 15 Toby was on bail for charges of break and enter, larceny and goods in custody. Police deemed Toby a ‘high-risk offender’ and closely monitored his movements. In a period of four and a half months, Toby was subject to 155 bail checks. Police attended Toby’s home frequently and often after midnight, even when Toby was no longer subject to a curfew. On one occasion, Toby reported that Police attended the family home four times in a single night.
14.35 The ALRC recognises the importance of complying with conditions of bail. This was explained by Howie JA:
[I]f offenders do not treat the obligations imposed upon them by the bond seriously and if courts are not rigorous in revoking the bond upon breach in the usual case, both offenders and the public in general will treat them as being nothing more than a legal fiction designed to allow an offender to escape the punishment that he or she rightly deserved.
14.36 However, the focus of policing appears to be on technical rather than substantive breaches of bail conditions. PIAC explained that its clients were
being detained for ‘technical breaches’ of bail, a term which refers to the circumstances where a person is arrested for breach of a bail condition which in itself is not a new offence, and does not harm the young person, another person or the community. Examples of technical breaches including being five minutes late for curfew or being with a different family member other than the person specified in the bail condition. PIAC’s clients are frequently reporting a level of policing of their bail conditions that is out of step with the severity of the alleged offence, such as incessant checking of curfews throughout the night several nights per week. Excessive monitoring of bail conditions was also reported to the AIC, which found [in 2013] an Australia-wide practice of ‘overzealous policing of young people’s bail compliance and in some cases, a ‘zero tolerance’ approach to bail breaches’.
14.37 This is consistent with research by NSW BOCSAR which found that in 2015 the remand population was ‘much higher… than it was prior to the introduction of the NSW Bail Act (2013)’—and that the key driver of this growth was likely more proactive policing practices, not legislative amendment.
Charging practices and charge bargaining
14.38 A review of police practices should consider whether further guidelines or instructions on charging Aboriginal and Torres Strait Islander peoples should be developed and implemented.
14.39 Charging decisions are made by police based on whether the evidence obtained during an investigation has a reasonable prospect of sustaining a conviction. Where the charges relate to more serious or indictable offences, the Director of Public Prosecutions of that state or territory will, at various stages in the criminal justice process, provide advice to police on, and make decisions regarding, the appropriate charges to prosecute. This may result in charges being withdrawn, downgraded or added. A defendant may also seek to ‘charge bargain’—to have charges withdrawn in exchange for a guilty plea to a lesser charge.
14.40 The initial decision by police to charge can be made in fluid circumstances. Not all the evidence may have been obtained and decisions to charge may be made in the context of ensuring public safety. As the NSW Law Reform Commission explained: ‘The charge can be informed by evidence that may be changing and events that may still be underway.’
14.41 Nonetheless, charging practices can impact on the likelihood of an inappropriate guilty plea, the likelihood of bail refusal, and ultimately the likelihood of the accused receiving a term of imprisonment. Charging decisions interact with criminal justice systems which are designed to encourage and reward early guilty pleas with sentence discounts to save considerable public resources. It is in this context that ‘charge bargaining’ between prosecution and defence can occur pre-trial.
14.42 During the consultation process, the ALRC heard that police charging practices can result in an Aboriginal and Torres Strait Islander person being charged with multiple offences in relation to one incident or being charged too high for an offence, or both (so called ‘over charging’). However, a decision to withdraw charges may not necessarily mean that the initial charge decision was incorrect; it can simply mean that new evidence has come to light or a review by the Director of Public Prosecutions in indictable matters has meant that charges have changed.
14.43 The NT Royal Commission into youth justice also identified charging practices as contributing to youth incarceration: ‘Northern Territory Police over charge children and young people with offences. The extent to which this occurs could not be determined.’
14.44 Examples of overcharging in that report include:
A Supervising Summary Prosecutor from the DPP told the Commission of one example where a young person was charged with 169 offences arising out of one incident. The prosecution later proceeded on only 27 charges to which the young person pleaded guilty.
The Commission was also told in the Judges’ Roundtable Royal Commission into the Protection and Detention of Children in the Northern Territory that a child or young person may initially face, for example, in excess of 70 charges, later reduced to fewer than five.
It was noted at the Judges’ Roundtable that children and young people may remain in detention for an extended period while the charges that should not have been laid are considered by the prosecution and withdrawn.
14.46 The adverse outcomes attached to overcharging may be magnified for Aboriginal and Torres Strait Islander peoples who may be more likely than non-Indigenous people to:
- have other vulnerabilities, such as cognitive impairment or mental illness;
- have language barriers and other communication barriers;
- have a criminal record; and
- be bail refused, particularly on the grounds of homeless.
14.47 The initial charge needs to, as much as possible, reflect the actual criminal conduct for which a person is accused. The practice of over charging followed by negotiation to lessen the charges, or the number of charges, can be disadvantageous for Aboriginal and Torres Strait Islander accused. A review of police practices should focus on ways to improve the accuracy of charging decisions.
See, eg, Redfern Legal Centre, Submission 79; Caxton Legal Centre, Submission 47; Human Rights Law Centre and Change the Record Coalition, above n 9; Aboriginal Legal Service of Western Australia, Submission 74; National Aboriginal and Torres Strait Islander Legal Services, Submission 109; North Australian Aboriginal Justice Agency, Submission 113.
Richard Wortley, ‘Measuring Police Attitudes toward Discretion’ (2003) 30(5) Criminal Justice and Behavior 538, 540.
Jonathon Hunyor, ‘Imprisonment: Paperless Arrests and the Rise of Executive Power in the Northern Territory’ (2015) 8(21) Indigenous Law Bulletin 3, 7.But see Vicki Sentas and Rebecca McMahon, ‘Changes to Police Powers of Arrest in New South Wales’ (2013) 25 Current Issues Crim. Just. 785.
Crime Statistics Agency Victoria, Indigenous Alleged Offender Incidents—Year Ending June 2017 (2017) table 6.
Lucy Snowball and Australian Institute of Criminology, ‘Diversion of Indigenous Juvenile Offenders’ (Trends & Issues in Crime and Criminal Justice No 355, Australian Institute of Criminology, 2008). The effect was reduced but still statistically significant after controlling for variables.
Crime and Misconduct Commission, Policing Public Order—A Review of the Public Nuisance Offence (2008) 92.
Clare Ringland and Nadine Smith, ‘Police Use of Court Alternatives for Young Persons in NSW’ (Contemporary Issues in Crime and Justice No 167, NSW Bureau of Crime Statistics and Research, January 2013) 10.
Office of Police Integrity Victoria, Talking Together—Relations between Police and Aboriginal and Torres Strait Islanders in Victoria: A Review of the Victoria Police Aboriginal Strategic Plan 2003–2008 (2011) 20.
Redfern Legal Centre, Submission 79.
Legal Aid NSW, Submission 101.
Aboriginal Legal Service (NSW/ACT) Supplementary Submission, Submission 112.
Redfern Legal Centre, Submission 79.
Caxton Legal Centre, Submission 47.
NSW Ombudsman, Improving the Management of Complaints: Police Complaints and Repeat Offenders (Special Report to Parliament under s 31 of the Ombudsman Act 1974, September 2002).
Redfern Legal Centre, Submission No 30 to Senate Standing Committee on Finance and Public Administration, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (23 April 2015).
See Vicki Sentas and Camilla Pandolfini, ‘Policing Young People in NSW: A Study of the Suspect Targeting Management Plan’ (Youth Justice Coalition, 2017). See also Redfern Legal Centre, Submission No 30 to Senate Standing Committee on Finance and Public Administration, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (23 April 2015).
Redfern Legal Centre, Submission 79.
DPP v Cooke  NSWCA 2 (7 February 2007) .
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).
Don Weatherburn and Jacqueline Fitzgerald, ‘The Impact of the NSW Bail Act (2013) on Trends in Bail and Remand in New South Wales’  Crime and Justice Statistics: Bureau Brief, Issue 106 1.
Australian Law Reform Commission and NSW Law Reform Commission, Family Violence—A National Legal Response, ALRC Report No 114, NSWLRC Report No 128 (2010) [26.58].
Office of the Director of Public Prosecutions New South Wales, Prosecution Guidelines (2007); Director of Public Prosecutions for the State of Victoria, Policy of the Director of Public Prosecutions for Victoria.
This is also known as ‘charge and fact bargaining’ whereby the number and level of charges may be reduced in return for the defendant entering a guilty plea to some or all charges. Such bargaining may also involve the prosecution agreeing to present a recommendation for sentence, including on the basis of an agreed summary of facts. See Australian Law Reform Commission and NSW Law Reform Commission, Family Violence—A National Legal Response, ALRC Report No 114, NSWLRC Report No 128 (2010) [26.58].
NSW Law Reform Commission, Encouraging Appropriate Early Guilty Pleas, Report 141 (2014) 58.
Clare Ringland and Lucy Snowball, ‘Predictors of Guilty Pleas in the NSW District Court’ (Number 96, NSW Bureau of Crime Statistics and Research, 2014) 1.
Commonwealth, Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory, Findings and Recommendations (2017) 249.
Commonwealth, Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory, Report (2017) 248.
See chs 1 and 2.