Aboriginal people and the law - Legal Information Access Centre

2 Aboriginal people and the law 47Rates of arrest and imprisonmentAlthough the Royal Commission into Aboriginal Deaths inCustody recommended that police seek to avoid arrestingIndigenous people wherever possible (Recommendation87), the arrest rate for Indigenous people remainsdisproportionately high.Similarly, the rate of imprisonment remains disproportionatelyhigh, even though the key recommendations ofthe royal commission were directed at reducing theover-representation of Indigenous people in jails, andcertain safeguards have been put in place for Indigenouspeople (see Circle sentencing at [2.220]).[2.150] Limitations on policepowersThere are specific limitations on police powersto arrest, detain, search or issue directionsin relation to both Indigenous andnon-Indigenous people:• An Aboriginal person who has beenarrested can be detained for questioningfor up to two hours. This may be extendedto eight hours, with a magistrate’sapproval, if the offence being investigatedis punishable by imprisonment for morethan 12 months.• The investigating police must notify anAboriginal legal aid organisation whenan Aboriginal person is arrested. Theperson is entitled to have a legal practitionerpresent to give advice duringquestioning.• If the person is arrested more than oncein 48 hours, the investigation period foreach arrest is reduced by the period of theprevious investigations.• At the end of the investigation period theperson under arrest must be released,either unconditionally or on bail, orbrought before a magistrate as soon aspracticable.• A person who has not been arrested maynot be detained against their will.• The person being investigated must becautioned, in a language in which theycan communicate with “reasonablefluency”, that they do not have to sayanything during questioning. In somecircumstances an interpreter is needed.The person must be told of their right tocommunicate with a friend, relative orlawyer, and be allowed to do so. Ifpracticable, the caution should berecorded.• An Aboriginal person under arrest isentitled to have a friend or supportperson present during questioning.Investigating police do not have to notify anAboriginal legal aid organisation or permit afriend to be present if the detainee’s educationand understanding means they are notat a disadvantage.Police questioning before arrestPrior to arrest, police officers have the powerto demand the name and address of anyperson:• in relation to certain motor traffic anddrug offences• where the police hold a reasonable suspicionthat the person:– was a witness to a crime– has stolen goods in their car– has a dangerous implement, or– possesses or is consuming alcohol in apublic place.There are no special provisions in the NSWCrimes Act 1914 or Evidence Act 1995 requiringAboriginal people under arrest to betreated any differently when being interrogatedby police.[2.160] Forensic proceduresFollowing the introduction of the Crimes(Forensic Procedures) Act 2000 (NSW), thereare clear rules as to how police may obtainbodily samples for forensic purposes.A distinction is made between intimateand non-intimate procedures.Non-intimate proceduresA non-intimate sample might consist of:• fingerprints• hair• nail scrapings• body moulds• photographs (s 3(1)).A non-intimate procedure can be carried outunder an order from a senior police officer(Crimes (Forensic Procedures) Act 2000, s 17).