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Discretion is how an individual comes up with a decision depending on several courses of action. In the criminal justice field, the utilization of discretion is very essential. Police officers are taught during their training on different types of circumstances that they might encounter in the field. The main challenge comes up when they encounter some situations in the field, which they were not trained about since the training cannot capture all the situations that one experiences in the field. In addition, there are some situations that are not covered clearly by the laws, hence the police officers may end up ignoring their interpretation and utilize their own discretion in making the final decision. Police discretion is utilized by the officers mostly when they encounter circumstances that require a decision to be made from several available choices. In the criminal justice field, judges, police, and prosecutors utilize the level of discretion in deciding on the person who will face criminal penalties and the techniques that will be used be punish the person. For instance, a police officer might choose the person to officially charge with a felony; in a traffic offense, the officer might give a caution or warning. The practice of discretion by the police, prosecutors, or judges is a natural feature of judicial autonomy under the principle of the isolation or separation of authority/powers (Walker 2004, p.1). This paper will examine the over-policing of Australian aboriginals since there have been some facts or evidence to show that police discretion is being abused and that abuse is discriminatory in nature.
If people think that the role of a police officer is to implement laws and regulations, then if the officer disregards or ignores these laws and regulations or utilizes discretion, it becomes a concern of whether the laws are being followed appropriately or not. The temperament of the police structure simply indicates that police organizations would mislay a sense of confidentiality on what they practice if they encourage the use of discretion. Therefore, if any organization encourages the use of discretion there is a great chance of allowing control from other people from outside the organization. An authoritative image or representation of the police officers indicates the relationship they have with the public. Hence, the image of the police officer shows authority or power; however, if discretion is mentioned or identified, a police officer will feel as if their representation or image is being affected.
Factors that lead to the discretion
There are three major factors that lead to discretion; individual, environment and administration. When one looks into the police officers’ environment, the utilization of discretion is applicable in the entire environment of the police. For instance, a patrol officer is required to make several decisions during his time of service while in the field. Looking at such an example, the officer has little or no supervision and at times he encounters situations that require instant solutions. In such a case, discretion has to be used so that the officer and his responsibilities can be accepted and appreciated by society. Secondly, the administration aspect or factor that contributes to discretion focus on the laws and regulations, and the concept that some laws have a different meaning. Thirdly, the individuality aspect of discretion focus on the idea that every person has his or her character and thoughts hence they can easily decide if they encounter any situation. Police officers are also human beings and are prone to committing mistakes just like any other citizen. Therefore, the issue of discretion comes up since not all officers make the same decisions in similar situations. An example of individuality and police discretion is when comparing the concepts of a rookie or recruit officer and an experienced police officer. A seasoned or experienced officer has used discretion for many years while a rookie officer has never used discretion hence he or she is new to the idea. Therefore, a recruit or rookie officer is only interested in enforcing the right laws while an experienced officer knows that every law has an extent for discretion (Rivera 2006, p.2).
Crime and Ethnicity
Recently, sectors of the media and population in Australia have shown their concern over the involvement of individuals of ethnic groups in a felony. This is not distinctive since throughout North America and Europe discussion on race linkage and participation of individuals of migrant associations in felony has been distributed all through from the late 1980s. Moreover, less privileged or minority groups experience some barriers in their contacts or relationships with the criminal justice structure. For instance, if a decision like prosecution or warning is to be made, social-economic background factors especially family strength play a major role. Suspects from families that are less privileged mostly have difficulties in making an important decision. This condition can affect decisions at the subsequent or next steps of the criminal justice structure (Mukherjee 1999, p.2).
A research carried out by the Crime Victimization Surveys and the Crime and Safety Surveys in Australia indicates that many people do not report cases of victimization to the police department or any other government organization. The research showed that approximately 40 percent of the victims are the ones who report to the police. When a felony is reported to the police department, they first seek to confirm the crime and may fail to record the felony for the purpose of statistics. For all filed felonies, police officers may have information about the occurrence and victims but fail to have details of an offender. Details of an offender are only accessible after the detainment or recognition of a suspect has cleaned a felony. In Australia, the police officers clear approximately 25 percent of the filed cases; that’s means that about ten percent of the felonies reported annually in Australia are tackled. Though there may be speculations that there is a relationship between the detainment data and felony data, it is abhorrently incorrect to think that suspects recognized or arrested for about ten proportions of the cleaned cases are represented statistically for the 90 percent of felonies, which remain unresolved (Mukherjee 1999, p.3).
When a suspect has been arrested or recognized, their age, gender, marital status, aboriginality or country of birth, race, occupation and employment status among others are filed or recorded. However, the statistics or data on aboriginality in Australia cannot be utilized since they are recorded depending on the thoughts or perceptions of the recording police officers. When the statistics are collected and recorded properly, they will be utilized in examination of accusations of participation in felonies and will encourage the communities to study the welfare of their people and seek assistance when necessary. In addition, crime and ethnicity data or statistics ought to be gathered at all steps of unlawful justice structure or system. Moreover, any gathering of information should start from the police level. Though police data of the suspects cannot explain the occurrence of felony in a society, they are the best and closest to the felony situation, which can be gathered and are preferred to the offender information filed by the victim or any safety surveys (Hazlehurst 1987, p.6).
Statistics on arrests recorded by the Victoria police in Australia clearly indicates that this statistics are classified according to the country of birth or aboriginality. Hence a technique need to be identified that can be used in collection of data in all jurisdictions from all the arrestees dealt with. This will offer an important database that will help in explaining the relationship between crime and ethnicity reliably and adequately. In addition, the information will give the period of experience to the Australian way of living and the type of exposure since an individual arrived in Australia. For instance, individuals who came into Australia when they were young will have a completely different exposure compared to those who came when they were in their thirties (Mukherjee 1999, p.6).
The issue of aboriginality does not only apply to the adults, it also affects young people. According to the statistics recorded by the Victoria police, aboriginal young people do not obtain the same opportunities as the non-aboriginal people do on police caution (Doherty 1997, p.3). The Victorian Aboriginal Legal Service (VALS) knows that the aboriginal condition of the young individual has some influence on how police make decisions to caution. Moreover, VALS agrees that there are several reasons that contribute to police difficult to warn aboriginal young people. These factors or reason are as follows; aboriginal young person reoffend at a higher rate compared to the non-aboriginal young persons. Hence if the arrestee has a previous case, a caution is not appropriate. Secondly, VALS recommend arrestees to say ‘no comment’. Therefore, it is until the arrestee accepts the crime that a prudence or caution is appropriate. Thirdly, the parents of the aboriginal young person are not available and for there to be prudence, guardians or parents must be available or present. The fourth factor is that aboriginal young persons are less supportive or co-operative; hence, a caution is not applicable (Victorian Aboriginal Legal Service n.d, p.1).
Statistics from Victorian police shows that from July 2000 up to June 2001, aboriginal juveniles got minimum caution or prudence in all the felony groups apart from rape cases than the non-aboriginal juveniles. For instance, bicycle theft cases ended up with cautioning of 6.7 percent for the aboriginal juveniles while for non-aboriginal juveniles it was 22.6 percent. In addition, cases of regulated public order led to 10.5 percent cautioning while non-aboriginal led to 30.7 percent. The other example shows that the total cautioning rate for aboriginal juveniles resulted to 13.3 percent while non-aboriginal resulted to 30.8 percent (Victorian Aboriginal Legal Service n.d, p.2).
Research done by the VALS indicate that some of the factors that contribute to aboriginal young people receiving higher rates of cautioning than the non-indigenous is because they contact the police officers earlier. However, the data showed that there were major differences in police activities across the state that clearly shows that police officers do not use discretion all the time in a continuous manner. For instance, Morel and Barnsdall as cited by Victorian Aboriginal Legal Service (n.d, p.4) cautioned 100 percent of the first arrestees while the lowest cautioning rate was 63 percent given by Shepparton (Victorian Aboriginal Legal Service n.d, p. 4). Indigenous young persons are mostly likely to get more cruel results from the police verdicts to understand and prosecute, though the cases and unlawful history variations are managed. Therefore, it shows that young indigenous persons have a range of 10 to 15 percent higher chance of being taken to the court instead of getting a lawful police caution. Though this dissimilarity is not big, the intensifying effects after a long period may be very great, especially regarding conclusions relating to the first arrestees where the achievement of an unlawful record affects future discretionary conclusions or decisions (Cunene & White 2002, p.5).
Over-policing in Australia
According to the police instructions or guidelines, it is indicated that second cautions are only suppose to be offered in exceptional situations. Police says that one of the factors that have contributed to them offering less cautioning to the aboriginal young people is because they are less co-operative. It ought to be stressed that most of the aboriginal persons in Victoria believe that police authorities or powers are utilized incorrectly to over-police and examine them in the perspective of racism (James 2000, p.6).
Australian Aboriginal Legal Services (AALS) also reported some concerns of over-policing on Wiluna. In the year 1994, Wiluna had 250 people where 200 of them were aboriginal Mardu individuals. Report by AALS indicated that in the seventh month, 297 individuals were charged over 1000 cases, of which 99 percent of them were indigenous persons. Approximately 80 percent of the cases were for offences from the street. About 200,000 dollars were imposed as fines on the society or community at that time. There were approximately 23 persons in the police cells daily, in which 17 of them did not manage to pay the fines. In addition, the police officer on duty was getting meal allowance each day of more than 13 dollars per prisoner. In total the police officer on duty was getting approximately 96,000 dollars annually in allowances coming from or arising directly from the imprisonment of Mardu people (Cunene 2001, p.86).
Traditionally, Australian Aboriginal individuals have not focused on the fundamentals of nationality and instead have been a priori unlawful in dealings with the non-indigenous system. Over-policing by the aboriginal societies has been a significant hindrance or barrier to the legitimization of the non-indigenous legal procedures by indigenous or aboriginal individuals. Research carried out by the Human Rights and Equal Opportunity in the year 1991 has attracted interest to the discriminatory character of over-policing in aboriginal societies (like harassment, acts of violence and intimidation) and the criminalization of the aboriginal young people. A national investigation by the police youth associations discovered that the great concern on the discriminatory over-policing of aboriginal young people were like the pervert and over-utilization of the arrest authority or powers, the rebuff of the procedure rights of juveniles, summary penalty and kerb-side fairness (Morris & Maxwell 2001, p.231).
Questions about children and legal procedure in Australia discovered convincing facts or evidence of the discriminatory effect or impact of the legal procedures on aboriginal young people. These queries were focused on the lack of power over the utilization of discretion powers by the police officers. The examination observed that diversionary programmes used in Australia did not take enough account of the specific requirements of aboriginal young people. In addition, according to the enquiry, the degree of police participation in most of conferencing patterns is principally challenging for aboriginal young persons (Morris & Maxwell 2001, p.231).
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Similarly, over-policing concerns were raised by Human Rights and Equal Opportunity Commission 1997 (HREOC 1997) which was referred to as Stolen Children questions. The major issue in the question correlated to the historical responsibility practiced by the police officers in the elimination of the children and the enforcement of discriminatory or biased government policies against aboriginal individuals. The inquiry also related to the ways that current police officers performance have completed their responsibilities through an over-dependence on detainment or arrest and prosecution (Morris & Maxwell 2001, p.232).
In summary, it is very essential to understand that despite what seems to be the major concept of administrative methods or techniques in distributing resources, the naturally discretionary character of the police officers will influence directly any pattern for workload evaluation. It has been known for a long time that policing techniques like aiming at or targeting specific ethnic groups or offences will have amplificatory consequences. Dynamic or proactive over-policing will create more of their workload. Therefore, any state in Australia whose population is made up of many indigenous or aboriginal persons, over-policing, bearing in mind the character of indigenous police officers relations, is likely to cause disagreement between the groups and hence the need for extra police involvement. Such extra police involvement may result to the conclusion that more dictatorial and imprudent methods of policing are the most applicable policing strategies.
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James, S. 2002. A Study of Aboriginal and Police Relations in Victoria. Victorian Aboriginal Legal Service. Melbourne.
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