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87
Apply the principle of arrest as a sanction of last resort
That:
a) All Police Services should adopt and apply the principle of arrest being the sanction of last resort in dealing with offenders;
b) Police administrators should train and instruct police officers accordingly and should closely check that this principle is carried out in practice;
c) Administrators of Police Services should take a more active role in ensuring police compliance with directives, guidelines and rules aimed at reducing unnecessary custodies and should review practices and procedures relevant to the use of arrest or process by summons and in particular should take account of the following matters:
i. all possible steps should be taken to ensure that allowances paid to police officers do not operate as an incentive to increase the number of arrests;
ii. a statistical data base should be established for monitoring the use of summons and arrest procedures on a Statewide basis noting the utilisation of such procedures, in particular divisions and stations;
iii. the role of supervisors should be examined and, where necessary, strengthened to provide for the overseeing of the appropriateness of arrest practices by police officers;
iv. efficiency and promotion criteria should be reviewed to ensure that advantage does not accrue to individuals or to police stations as a result of the frequency of making charges or arrests; and
v. procedures should be reviewed to ensure that work processes (particularly relating to paperwork) are not encouraging arrest rather than the adoption of other options such as proceeding by summons or caution; and
d) Governments, in conjunction with Police Services, should consider the question of whether procedures for formal caution should be established in respect of certain types of offences rather than proceeding by way of prosecution.
They didn’t caution, no reprimand, no nothing, just, ‘You’re under arrest, you’re going to the station with us.’ It was so scary.
Aboriginal Justice Caucus Assessment
Recommendation 87 intended for Police Services to adopt and apply the principle of using arrest as the sanction of last resort when dealing with alleged offenders, and for police policies, practices and training to reinforce it.
Actions taken partially align with the intent of the recommendation. The Victoria Police Manual (VPM) requires that arrest is only to be used to prevent harm or support the purpose for which the arrest power has been conferred. Police are not incentivised or encouraged to make arrests via processes and paperwork, but they do have broad discretion in relation to arrest.
Based on data published by the Crime Statistics Agency, there was some evidence that a decreasing proportion of Aboriginal alleged offender incidents resulted in arrest between 2015 and 2025, but Aboriginal alleged offenders were more likely to be arrested than alleged offenders who were not Aboriginal.
There were differences across regions with higher proportions (than the state average) of incidents resulting in arrest in metropolitan areas and lower proportions (than state average) of Aboriginal offender incidents resulting in arrest in the Loddon Mallee, Hume, Grampians and Gippsland regions. These regions also had higher proportions of Aboriginal alleged offender incidents resulting in a summons, caution or warning, but there remain opportunities for police to make greater use of these options.
One of the things that we did for the Yallum Yallum program was get data on cautions in the Wimmera region. From 2015 to November last year [2024] no Aboriginal adult had been offered a caution. (John Gorton, Chairperson, Grampians RAJAC)
The establishment of the Aboriginal Youth Cautioning Program in conjunction with Aboriginal communities, has contributed to increased use of cautioning, particularly for young people, in recent years. However, for older cohorts, VALS lawyers reflected on cases where arrest was used as a first resort, and this was encouraged by senior police officers.
We support the Yoorrook Justice Commission’s recommendation to promote greater use of pre-charge measures and cautioning for Aboriginal adults and similar recommendations from other inquiries and reviews.
Priority for Further Work:
High
Relevance and potential impact | |||||
|---|---|---|---|---|---|
Low (0-2) | Moderate (3-4) | High (5-6) | |||
Extent of action taken and evidence of outcomes | High (5-6) | ||||
Moderate (3-4) | |||||
Low (0-2) | |||||
Potential Actions for Further Work
Pre-charge cautioning for adults
Access to pre-charge cautions in the adult criminal legal system in appropriate cases should be increased by all necessary legislative, administrative and others means including by:
(a) legislating a positive duty upon Victoria Police to:
i. take into account an Aboriginal person’s unique background and systemic factors when making decisions on cautioning or diversion
ii. demonstrate the steps taken to discharge this obligation, and
iii. record reasons for their decisions.
(b) introducing a legislative presumption in favour of alternative pre-charge measures in appropriate cases (for example, verbal warnings, written warnings, cautions and referrals to cautioning programs), and
(c) Victoria Police publishing cautioning data its Annual Report to Parliament, including specific data comparing cautioning rates for Aboriginal and non-Aboriginal people.
(Yoorrook for Justice - Recommendation 28)
Background
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) explored the underlying causes of the disproportionately high arrest rates of Aboriginal people across Australia. It identified several contributing factors including political pressures, the way police resources were allocated, performance incentives based on arrest numbers, and inadequate oversight of police powers. The Commission linked these problems to the historical role of police in the control and dispossession of Aboriginal communities—a legacy that continues to shape modern-day practices of over-policing and constant surveillance.
A case highlighted in the report was ‘Operation Clean-up’, a police initiative intended to reduce public drinking in a tourist area. However, rather than addressing alcohol-related offences, the operation led to the arrest of many Aboriginal people for unrelated minor offences. One of these arrests resulted in a death in custody.
The Commission also identified incentives that encouraged arrests regardless of necessity. These included using arrest numbers as a measure of police performance, offering allowances for meals provided to detainees, and paying women—often officers’ spouses—to search female detainees. Such practices created a culture that prioritised arrest over appropriate discretion, reinforcing patterns of unnecessary detention.
To address these issues, the RCIADIC recommended a shift towards non-custodial measures, such as issuing warnings, cautions, or summons instead of defaulting to arrest. It called for a broader cultural change within police forces, where restraint and good judgment are seen as indicators of effective policing.
What is required is that the atmosphere inside the police force be such that not arresting (other than where essential) is regarded as good, intelligent policing; that a tough policy of arresting whenever you can is not regarded as good policing.
The Commission concluded that reducing the reliance on arrest is essential for tackling the over-incarceration of Aboriginal people and preventing further deaths in custody.
Actions Taken Since Last Review
Victoria Police
In 2023, Victoria Police assessed Recommendation 87 as fully implemented noting:
Part a)
The Victoria Police Manual (VPM) requires that arrest is only to be used to prevent the harm, or support the purpose, for which the arrest power has been conferred – that is, a limited set of welfare purposes. Arrest is not used as a sanction or punitive measure.
The VPM Arrests and Warrants to Arrest states that at law police members have broad discretion in relation to the arrest of persons who have committed an offence. The exercise of this discretion involves balancing the rights of individuals to liberty against the need to take action to ensure the safety of persons or to take action against those who break the law.
Arresting children – Generally only arrest where it is a serious offence, and the child is likely to repeat the offence or commit other offences at the time.
Part b)
See above.
Part c)
i) Police are not incentivised via any means including allowances to make arrests.
ii) The relevant data is monitored and published by the Crime Statistics Agency (CSA).
iii) Police supervisors at Sergeant and Senior Sergeant level provide oversight of all persons in police custody. Further to this, Victoria Police established the Oversight of Aboriginal and Torres Strait Islander Children and Young People in Police Custody model. It places greater accountability on police to justify their decision when not issuing a caution and includes centralised oversight of decision-making. Supervisors have oversight of arrests to ensure arrest is appropriate in the circumstances. When a child who identifies as Aboriginal and/or Torres Strait Islander comes into police custody the custody supervisor at the location where the child is brought into custody must immediately notify the on-duty senior sergeant. The role of the on-duty senior sergeant is to provide oversight to ensure that an Aboriginal and/or Torres Strait Islander child in police custody is managed in accordance with this instruction and the policies referenced above.
iv) Victoria Police have a merit based promotional model which is not linked to statistical evidence of arrests or charges.
v) Police members are not encouraged to make arrests, including via processes and paperwork. Members have broad discretion in relation to arrest. The exercise of this discretion involves balancing the rights of individuals to liberty against the need to take action to ensure the safety of persons or to take action against those who break the law. Members are encouraged to assess the circumstances of an offence when considering arrest and give persons an opportunity to establish their innocence or to explain their actions that form the basis of the arrest.
Victoria Police established an Aboriginal Youth Cautioning Program (AYCP) in conjunction with Aboriginal communities to promote greater use of cautioning and provide a connection to culturally appropriate community support. The AYCP was launched as a pilot in three sites in 2019, before being expanded to over 20 sites in 2021. The program will continue to achieve state-wide expansion, with future sites to be identified in collaboration with the Aboriginal Justice Caucus.
In response to barriers to cautioning identified by Aboriginal communities, Victoria Police amended the Child Cautioning Policy in the VPM in 2021. These amendments included: removing the requirement for young people to admit responsibility for an offence in order to receive a caution, clarifying that there is no limit on the number of cautions that a young person can receive, and noting that a young person is still eligible for a caution, even if they have a prior offending history.
Victoria Police Custody Policy Review
In 2024, Victoria Police sought feedback from the Aboriginal Justice Caucus (AJC) on relevant sections of draft custody-related policies and a practice guide. The VPM Management of People in Police Care or Custody requires that if an Aboriginal child is held in custody, the on-duty senior sergeant must:
- provide oversight of the custody process and ensure compliance with custody procedures
- ensure the custody supervisor records the justification for the decisions made on Oversight of Aboriginal and Torres Strait Islander Children in Police Custody (VP Form 1515)
- review and endorse the completed VP Form 1515.
The Priority and Safer Communities Division of Victoria Police is responsible for quality assurance and oversight of completed 1515 forms. The AJC highlighted the need for greater accountability to the Aboriginal community, which could be achieved through providing data on the outcomes of this policy to the Aboriginal Justice Forum and/or making it publicly available, with particular emphasis on demonstrating arrest is a sanction of last resort.
Impact
Outputs
- Changes to Victoria Police policies, guidance and associated training.
- Oversight of Aboriginal and Torres Strait Islander Children in Police Custody model.
- Data published by the Crime Statistics Agency (CSA) in the Aboriginal Justice Indicators Dashboard and alleged offender incident tables.
Outcomes
Aboriginal Justice Indicators Dashboard
The Aboriginal Justice Indicators dashboard is produced by the Crime Statistics Agency (CSA) to provide publicly accessible data and statistics on Aboriginal and/or Torres Strait Islander people and their contact with Victoria Police. The dashboard is released bi-annually and includes data on the outcomes of incidents where an alleged offence has occurred, this includes whether a person was arrested, cautioned, summonsed or otherwise by police.
The data shows:
- The number of alleged offender incidents involving Aboriginal and/or Torres Strait Islander individuals increased between October 2023 and September 2025.
- A decreasing proportion of Aboriginal alleged offender incidents resulted in arrest (from 52% in 2016 to 46% in 2025).
- Aboriginal alleged offenders were more likely to be arrested than alleged offenders who were not Aboriginal (46% compared to 39% in 2025).
- There was significant variation across Regional Aboriginal Justice Advisory Committee regions.
- Higher proportions (than the state average) of Aboriginal offender incidents resulted in arrest in metropolitan areas than across regional Victoria.
- Lower proportions (than the state average) of Aboriginal offender incidents resulted in arrest in the Loddon Mallee (44%), Hume (42%) Grampians (41%) and Gippsland (35%) regions. These regions also had higher proportions of Aboriginal alleged offender incidents resulting in a summons, caution or warning.
Coronial findings
I find that, had the RCADIC recommendations been successfully implemented by the Government and its agencies, Veronica’s passing would more likely than not have been prevented. (Coroner McGregor, January 2023)
The coroner referred to the relevance of this recommendation in the inquest into the passing of Veronica Nelson in custody, specifically parts (a), (c), and (c)(v).
Community Views
Victorian Aboriginal Legal Service
VALS lawyers shared mixed experiences with some suggesting the practices of Victoria Police were ‘the opposite’ of applying the principle of arrest as a sanction as a last resort. Examples were provided of arrest being generally used as a first resort and actively encouraged by some senior police officers; and junior officers being reprimanded by superiors for hesitating to arrest.
VALS lawyers were aware of summons being used in specific types of circumstances such as where there is a personal, pre-existing relationship between an officer and an alleged offender, and some trust of the person by police.
A significant portion of calls received by the VALS police accountability team are around under-policing issues, for instance not receiving appropriate support from police around sexual assault or domestic violence incidents. They also flagged incidents of victims being arrested, and the complexity of family violence situations often being not carefully considered by police, especially where the perpetrator is a child.
Our Youth, Our Way
Perspectives of young people gathered during this inquiry into the over-representation of Aboriginal children and young people in the Victorian youth justice system, included:
They didn’t caution, no reprimand, no nothing, just, ‘You’re under arrest, you’re going to the station with us.’ It was so scary.