"Appropriate" Police Discretion and Indigenous Over-Representation in the Criminal Justice System

The appropriate use of discretion is frequently identified as critical in the policing of Indigenous people ' in particular, for reducing the over-representation of Indigenous people in the criminal justice system. The NSW Police Aboriginal Strategic Direction 2007 ' 2010, for instance, has as its seventh objective: Reduce offending and over-representation of Aboriginal people in the criminal justice system. And one of the strategies listed for achieving this objective is 'Encourage the appropriate use of discretionary Police power' (2007, p. 47). This claim about the efficacy of appropriate use of police discretion is then taken to imply the normative assertion that police ought to use their discretion appropriately to reduce Indigenous representation in the criminal justice system ' which seems reasonable, given the various issues that arise from contact with that system, together with the gate-keeping role that police play in relation to it. Just as reasonable, however, is the claim that in obliging police to use their discretion appropriately we must be assured that they can use it appropriately ' that they know what appropriate use of discretion actually entails. My argument in this paper is that the ability of police to use discretion appropriately is compromised by the fact that the concept 'appropriate use of discretion' has not been rendered conceptually precise. To ground the claim that police ought to use their discretion appropriately to reduce Indigenous representation in the criminal justice system, we first need to clarify exactly what appropriate use of discretion entails and, specifically, what it entails in the context of policing Aboriginal people.