Police discretion 2002-present
The law places limits on how police operate. Within those limits, police have a large amount of discretion about how they act. The way police use their discretion shapes people’s experiences with the criminal legal system and has been repeatedly linked to the over-representation of Aboriginal people in custody.
The Royal Commission into Aboriginal Deaths in Custody found that the choices police made, such as who to stop, arrest, charge, and where to patrol was a driver of the high rates of Aboriginal people entering custody (). The Commission recommended that police practices be reformed to address this ().
Since then, similar findings and recommendations have been made by the Australian Law Reform Commission (), the Law Enforcement Conduct Commission (), as well as by lawyers and academics (, , , ). These reports and submissions say that police use their discretion in a way that has a disproportionate impact on Aboriginal people, and results in Aboriginal people entering custody in higher rates.
When do police use discretion?
Discretion is part of every step of the policing process. Police make decisions about whether to respond to a suspected offence or breach of bail, whether to stop and question a person, whether to search a person (and what type of search) (see SUB0423) and whether to use force against a person (and what type of force) (see SUB0397).
Police discretion also plays a role in the whether the police interact with a person, and each interaction creates the potential for escalation.
If police believe a person has committed an offence, they may also have a choice about whether to give an informal warning, a caution, or other diversionary measure, issue a criminal infringement notice, or to charge the person (see SUB0392).
If a person is charged, police can decide whether to issue a court attendance notice, or to arrest a person and take them into custody where they must make a further decision on whether to grant the person bail and, if so, what conditions will apply (see SUB0476).
Police also have discretion over whether to use pre-emptive policing practices such as bail checks (see SUB0561), police searches (see SUB0423), or the now ended Suspect Target Management Plan (see SUB0562).
Police guidelines on discretion
The NSW Police Force has policies, manuals and Standard Operating Procedures (SOPs) which guide police in how to use their discretion. However, many of these are not publicly available. As a result, it is not possible to know how police are being guided to use their discretion.
In 2023 the Law Enforcement Conduct Commission recommended that NSW Police
review its operational training and procedures ... to give practical instruction to officers about...how to exercise discretion within the law in ways that will avoid over-representing Aboriginal people in the use of those police actions ().
LECC was also concerned that the SOPs contained insufficient and even discriminatory guidance for police about how to make bail decisions for Aboriginal people and recommended these be reviewed (). There is no public information on whether NSW Police has acted on these recommendations.
The New South Wales Police Force’s 2024 Aboriginal Strategic Direction acknowledges the need to reduce Aboriginal over-representation in the criminal legal system. It largely focuses on strengthening community relations and diversionary measures, but does acknowledge the role of ‘police discretion when considering warnings and cautions for minor offences’ ().
However, the police have also said that it would be contrary to community safety to change police practices in order to meet Closing the Gap targets on Aboriginal over-representation in custody (). The Law Enforcement Conduct Commission, as well as members of parliament and lawyers have expressed serious concern about this approach (, , , ).
Impact of police discretion
The ways in which police use their discretion has an immediate impact on individuals, as it determines whether an individual will have an interaction with police and, if so, whether they will be issued a warning, a caution, a criminal infringement notice, be charged with an offence or be arrested.
Police discretion can also have a cumulative impact on an individual by shaping their future interactions with the criminal legal system. For example:
- The use of Criminal Infringement Notices (CINs) for offensive conduct or language, rather than taking no action. A 2009 report found Aboriginal people were disproportionately issued CINs (). This results in financial penalties, which, if left unpaid, can lead to loss of licence, driving offences and further criminalisation (, ).
- Charging a person with an offence, rather than issuing a caution or warning, can impact a person’s future eligibility for certain diversionary schemes (, ).
- The decision to proceed against a person for breach of bail, including technical breaches, can result in a person having their bail revoked by a court and entering remand (). Short term imprisonment, including remand, can have significant impacts on housing stability, family, access to drug and alcohol treatment and drive reoffending ().
There is also a community wide impact of police discretion. Multiple government inquiries and reports acknowledge that the way police use their discretion impacts Aboriginal people’s confidence in police and in the criminal legal system (, ). Police discretion can also undermine community confidence in police where certain offences are under-policed. especially in cases where Aboriginal women are victims of family violence (, ). Reduced community confidence in the police and the criminal legal system can reinforce cycles of criminalisation (, , ).
The law and policy in this subject is accurate as of 15 May 2026.