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Report on the NSW Government's Implementation of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody
Police to arrest juveniles as a last resort That governments should review relevant legislation and police standing orders so as to ensure that police officers do not exercise their powers of arrest in relation to Aboriginal juveniles rather than proceed by way of formal or informal caution or service of an attendance notice or summons unless there are reasonable grounds for believing that such action is necessary. The test whether arrest is necessary should, in general, be more stringent than that imposed in relation to adults. The general rule should be that if the offence alleged to have been committed is not grave and if the indications are that the juvenile is unlikely to repeat the offence or commit other offences at that time then arrest should not be effected. Government’s original position: Supported Revised government position: Supported Agencies responsible for implementation: Attorney General’s Department; NSW Police Service Implementation report The NSW Police Service instructs police officers: ‘do not arrest an alleged offender for a minor offence when a summons would be effective in having the person appear before the court (Commissioner’s Instruction 96.01). This instruction is linked to Commissioner’s Instruction 37 on arrest. Part 1 (37.01) of this instruction outlines the following for police: “although the law has given you broad powers of arrests, the circumstances of each offence will determine whether, in the particular case, the extreme action of arrest is warranted in the public interest”. In addition, Commissioner’s Instructions 75 outlines police procedures for child offenders and Commissioner’s Instruction 76 outlines police procedures for the care and protection of children. On 6 April 1998, the Young Offenders Act 1997 came into effect. The Act aims to provide a more appropriate response to youth offending by ensuring criminal proceedings are not commenced against a child if there is an alternative and more appropriate means of dealing with the offence. Alternative interventions include cautions and youth justice conferences. The Act recognises that the child’s family and community, together with victims of crime committed by children and young people should play a part in responding to, and holding young people responsible for, their behaviour. Where a caution is considered the best option for a young person and the young person agrees to be cautioned, the Act allows for the caution to be given by a respected member of the community. For example, where the young person is a member of an Aboriginal community, a respected member of the community, usually an elder, may be invited to give the caution. Some Local Area Commands, working closely with local Aboriginal community members, have established a pool of Aboriginal Elders who are available to give cautions. The Act allows for members of a child’s family including extended family or a respected member of the community chosen by the young person to be present during a caution. Youth justice conferences are designed to facilitate the full participation of the child’s family (including extended family), community and the victims of crime in the determination of an appropriate outcome plan. Sixteen conference administrators have been appointed statewide. The positions at Armidale, Kempsey and Dubbo are identified as Aboriginal and Torres Strait Islander positions. All conference administrators are responsible for recruiting, selecting, training and managing conference convenors. Convenors organise and facilitate a conference after extensive liaison with the young person, their family (including extended family), the community, victims and the police. There are currently 27 Aboriginal convenors out of a total of approximately 350 convenors who have been recruited, trained and accredited to facilitate conferences. An additional 20 identified Aboriginal candidates have now been approved to undertake training as convenors. Conference administrators also maintain regular contact with Aboriginal communities to promote conferences as an appropriate consultative pre-court diversionary mechanism and to discuss any issues relating to the operation of the scheme. The Youth Justice Advisory Committee is responsible for monitoring and overseeing the evaluation of the Act. The Department of Aboriginal Affairs and the Aboriginal Justice Advisory Council are both represented on this committee which regularly enquires as to the number of young Aboriginal people who attend conferences and the support in terms of family/extended family they receive. The Police Service is monitoring the use of the Act by operational police. Since December 1999, a new data base has been in place and contains a wider range of statistics, including summonses. Youth Justice Conferencing is to be evaluated after three years of operation. Steps are now being taken to ensure a full and independent evaluation of the operation of the scheme under the Act, as required by its terms. Implementation status Partially implemented Future reporting in Part A |
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