Hopkins, Tamar --- "Racial profiling in contemporary Australian policing" [2020] PrecedentAULA 66; (2020) 161 Precedent 4

• RACIAL PROFILING IN CONTEMPORARY AUSTRALIAN POLICING
• By Tamar Hopkins
• Racism across policing and other institutions exploded into global focus on 25 May 2020 following the police killing of African-American man George Floyd. Far from being a problem exclusive to the US, racial profiling is a significant part of contemporary Australian policing and contributes to the over-representation of Aboriginal and Torres Strait Islander and other racialised1 people in the criminal justice system. Despite its impact on racialised communities, very few cases on racial profiling have been heard in Australian courts.
• The aim of this article is to provide criminal lawyers with strategies for identifying racial profiling and for ensuring that evidence obtained by police as a consequence of racial profiling is excluded by courts in criminal cases.
• DISPROPORTIONATE TARGETING BY POLICE
• Like all institutions wielding state power in Australia, the police force participates in the normalisation of whiteness and the criminalisation, distrust and devaluing of non-whiteness. This process is called racial profiling and it occurs when police disproportionately target Aboriginal and Torres Strait Islander and racially and/or ethnically diverse individuals for law enforcement attention. This disproportionate targeting can occur in the presence or absence of reasonable grounds.
• One example of disproportionate targeting of racialised people in the presence of reasonable grounds is revealed in WA traffic enforcement data, where a higher proportion of Aboriginal and Torres Strait Islander people received fines from police officers than through traffic cameras.2 This disparity could be explained by police concentrating their attention on Aboriginal and Torres Strait Islander people while ignoring others, or by police focusing their operations in communities with high Aboriginal and Torres Strait Islander populations. Regardless, both of these behaviours are examples of racial profiling.
• An example of targeting racialised people in the absence of reasonable grounds is seen in data from Flemington and North Melbourne, which reveals that African and Middle Eastern youth are 2.5 times more likely to be subject to a ‘field contact’ (a stop where no crime is discovered).3 There are many other forms of racial profiling including the discriminatory process by which personal details are collected and used in police databases,4 as well as the failure to provide adequate medical attention to Aboriginal and Torres Strait Islander people in custody.5 Unlike other countries such as the UK, Canada and the US, Australian police are not required to collect and release data to the public. As such there is limited data available that would invariably reveal the routine nature of increased police attention on racialised people.6 However the available data demonstrates very clear patterns of racial profiling in police decision-making.7
• Consequences of racial profiling
• Racial profiling is a highly relevant but underdeveloped area of law in Australia. Under s9 of the Race Discrimination Act 1975 (Cth) (RDA), racial profiling is an unlawful form of police misconduct with profoundly detrimental consequences.8 By targeting racialised populations at higher rates, police directly influence the colour of the criminal justice system. This targeting operates like a ratchet system: the increased rates of racialised people entering our criminal justice system feeds the stereotype of racialised people as criminals9 and subjects racialised people more frequently to the serious consequences of criminalisation.10 Furthermore, unjustified police contact, in and of itself, has a stigmatising effect on those who are subject to it.11 It leads to a cascade of psychological harms including helplessness, suicidal ideation and lower trust and participation in society.12 Racial profiling creates a racially stratified society, as those who experience it feel degraded and dehumanised13 and those who don’t are blind to the way their race affords them a free pass. Eliminating any role that racial profiling plays in the over-representation of Aboriginal and Torres Strait Islander and other racialised people in prisons and the criminal justice system should be a critical focus for criminal lawyers, magistrates and judges. Indeed the lack of focus by police oversight bodies14 means that judicial decisions are one of the only institutional avenues through which racial profiling can be identified and prevented.
• PREVENTION THROUGH THE COURT PROCESS
• Exclusion of evidence
• Currently the law in Victoria, WA and South Australia is understood to permit the random stopping of vehicles for Road Safety Act purposes only.22 However, if police stop a vehicle for the purpose of conducting inquiries into potential offences the driver and/or passengers may have committed, and they don’t have reasonable grounds to believe those offences have been committed, this is a pretext stop.23 This is an illegal purpose and any evidence obtained should be excluded.24 For example, in my opinion, the random stopping of vehicles to explore whether the occupant has breached COVID-19 restrictions has no legal basis. If police have reasonable grounds to believe a breach has occurred, such as a vehicle travelling during curfew hours, police would have grounds to intercept the vehicle. Pretext stops are an underdeveloped area of law in Australia25 and it is worth practitioners reading about them further.26

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RACIAL PROFILING IN CONTEMPORARY AUSTRALIAN POLICING
By Tamar Hopkins
Racism across policing and other institutions exploded into global focus on 25 May 2020 following the police killing of African-American man George Floyd. Far from being a problem exclusive to the US, racial profiling is a significant part of contemporary Australian policing and contributes to the over-representation of Aboriginal and Torres Strait Islander and other racialised^[1] people in the criminal justice system. Despite its impact on racialised communities, very few cases on racial profiling have been heard in Australian courts.
The aim of this article is to provide criminal lawyers with strategies for identifying racial profiling and for ensuring that evidence obtained by police as a consequence of racial profiling is excluded by courts in criminal cases.
DISPROPORTIONATE TARGETING BY POLICE
Like all institutions wielding state power in Australia, the police force participates in the normalisation of whiteness and the criminalisation, distrust and devaluing of non-whiteness. This process is called racial profiling and it occurs when police disproportionately target Aboriginal and Torres Strait Islander and racially and/or ethnically diverse individuals for law enforcement attention. This disproportionate targeting can occur in the presence or absence of reasonable grounds.
One example of disproportionate targeting of racialised people in the presence of reasonable grounds is revealed in WA traffic enforcement data, where a higher proportion of Aboriginal and Torres Strait Islander people received fines from police officers than through traffic cameras.^[2] This disparity could be explained by police concentrating their attention on Aboriginal and Torres Strait Islander people while ignoring others, or by police focusing their operations in communities with high Aboriginal and Torres Strait Islander populations. Regardless, both of these behaviours are examples of racial profiling.
An example of targeting racialised people in the absence of reasonable grounds is seen in data from Flemington and North Melbourne, which reveals that African and Middle Eastern youth are 2.5 times more likely to be subject to a ‘field contact’ (a stop where no crime is discovered).^[3] There are many other forms of racial profiling including the discriminatory process by which personal details are collected and used in police databases,^[4] as well as the failure to provide adequate medical attention to Aboriginal and Torres Strait Islander people in custody.^[5] Unlike other countries such as the UK, Canada and the US, Australian police are not required to collect and release data to the public. As such there is limited data available that would invariably reveal the routine nature of increased police attention on racialised people.^[6] However the available data demonstrates very clear patterns of racial profiling in police decision-making.^[7]
Consequences of racial profiling
Racial profiling is a highly relevant but underdeveloped area of law in Australia. Under s9 of the Race Discrimination Act 1975 (Cth) (RDA), racial profiling is an unlawful form of police misconduct with profoundly detrimental consequences.^[8] By targeting racialised populations at higher rates, police directly influence the colour of the criminal justice system. This targeting operates like a ratchet system: the increased rates of racialised people entering our criminal justice system feeds the stereotype of racialised people as criminals^[9] and subjects racialised people more frequently to the serious consequences of criminalisation.^[10] Furthermore, unjustified police contact, in and of itself, has a stigmatising effect on those who are subject to it.^[11] It leads to a cascade of psychological harms including helplessness, suicidal ideation and lower trust and participation in society.^[12] Racial profiling creates a racially stratified society, as those who experience it feel degraded and dehumanised^[13] and those who don’t are blind to the way their race affords them a free pass. Eliminating any role that racial profiling plays in the over-representation of Aboriginal and Torres Strait Islander and other racialised people in prisons and the criminal justice system should be a critical focus for criminal lawyers, magistrates and judges. Indeed the lack of focus by police oversight bodies^[14] means that judicial decisions are one of the only institutional avenues through which racial profiling can be identified and prevented.
PREVENTION THROUGH THE COURT PROCESS
Exclusion of evidence

Despite its importance as a police accountability measure and a means of responding to racial profiling, applying to exclude evidence on the basis of unlawful police conduct is an underutilised mechanism in the lower courts.^[15] Where, in obtaining evidence, police have engaged in illegal or improper conduct, it can be appropriate to ask the magistrate or judge to exclude that evidence. In states and territories where the Uniform Evidence Act 1995 (Cth) (UEA) applies, s138 of the UEA provides the mechanism to exclude evidence obtained as a consequence of racial profiling. In common law states, Bunning v Cross^[16] provides the equivalent mechanism. Section 138(1) of the UEA creates a balancing mechanism, meaning that:

‘Evidence that was obtained – (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law – is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.’

To exclude evidence of racial profiling, defence lawyers must prove that evidence against their client was obtained illegally or improperly and that the harm caused by its use outweighs its benefits. In some cases, proving both of these issues may benefit from the use of expert evidence. Where legal aid is not available for this purpose, given the novelty and importance of racial profiling case law in Australia, the Grata Fund is accepting funding requests in these circumstances.^[17]

To successfully raise s138(1), the defence must request a voir dire to allow the decision-maker to determine whether or not to exclude the evidence.^[18] Situations where an application under s138(1) should be considered include:

• Allegations of racial profiling and/or other forms of stereotyping;

• Pretext stops (where the true purpose of the stop differs from the legal basis on which it was justified);

• Consent searches;

• Unnecessary street stops that escalate into charges (such as failure to provide name and address, offensive language, resist, hinder, assaulting a police officer);

• Unjustified vehicle and street stops;

• Stops where there is a pattern of over-policing of a community (such as WA police-initiated fines); and

• Stops as a consequence of a person’s name being unfairly placed on a police suspect management database.^[19]

Important questions to ask in these situations are whether there was a failure to caution the individual once they felt singled out by the police; at what stage did they feel required to remain with the police; and whether the police had reasonable grounds to suspect a particular offence had been committed by them at the time they were singled out by the police for attention.

It is also worth being aware of the underutilised s139(5) of the UEA, which considers evidence obtained by police in the absence of a caution to be improper where ‘the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so’.^[20] Due to the coercive nature of police-civilian interactions, conditions where people feel obliged to remain with a police officer arise in many street and vehicle stop encounters. This is particularly the case for racialised youth.^[21]

A few points about pretext vehicle stops

Currently the law in Victoria, WA and South Australia is understood to permit the random stopping of vehicles for Road Safety Act purposes only.^[22] However, if police stop a vehicle for the purpose of conducting inquiries into potential offences the driver and/or passengers may have committed, and they don’t have reasonable grounds to believe those offences have been committed, this is a pretext stop.^[23] This is an illegal purpose and any evidence obtained should be excluded.^[24] For example, in my opinion, the random stopping of vehicles to explore whether the occupant has breached COVID-19 restrictions has no legal basis. If police have reasonable grounds to believe a breach has occurred, such as a vehicle travelling during curfew hours, police would have grounds to intercept the vehicle. Pretext stops are an underdeveloped area of law in Australia^[25] and it is worth practitioners reading about them further.^[26]

Establishing racial discrimination

Relevant parts of s9 of the RDA are as follows:

‘(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.’^[27]

Section 9 of the RDA makes it unlawful to do or omit to do an act based on race that impairs a person’s human rights. This would include an act that restricts a person’s freedom of movement,^[28] privacy, liberty, humane treatment in custody, freedom from arbitrary detention and freedom from ill-treatment.^[29]

Section 18 of the RDA clarifies that the act could be based on one or more reasons so long as one of those reasons is race. Consequently, it is necessary to prove that the police acts were, in part, based on race. In Wotton v The State of Queensland, Mortimer J said ‘it is well-established that the phrase “based on race” in s9 does not imply any causal requirement but connotes that the act involving the distinction, exclusion, restriction, or preference be done, or undertaken, by reference to race.’^[30]

Proving racial profiling

The Canadian Ontario Court of Appeal decision of R v Brown^[31] provides a clear description of how to prove a claim of racial profiling in a road stop:

‘A racial profiling claim could rarely be proven by direct evidence. This would involve an admission by a police officer that he or she was influenced by racial stereotypes in the exercise of his or her discretion to stop a motorist. Accordingly, if racial profiling is to be proven, it must be done by inference drawn from circumstantial evidence. Where the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why he or she singled out the accused person for attention, the record is then capable of supporting a finding that the stop was based on racial profiling [emphasis added].’^[32]

The categories of phenomena that correspond to racial profiling are not clearly established. Each case must be examined in light of its particular circumstances. However, facts that could be used include statistical evidence showing patterns of police conduct, or circumstantial evidence indicating an inappropriate, unjustified or heightened level of suspicion towards a racialised person in the absence of justification. Examples of such evidence with respect to police conduct during vehicle and pedestrian stops include:

• Offering no underlying and observable crime for why they have stopped a person;

• The stop reason includes, for example, gang appearance, a group of Africans/Aboriginal/Pasifika people, suspects of a particular operation,^[33] appearing suspicious, fitting a description without a description being provided, appearing not to have anything to do, being present without reason, driving an expensive car, looking away, appearing fearful, or running from the police;

• Police conducting traffic stops are from the wrong task force, for example a drug task force;

• Calling for backup before the stop;

• Use of an unjustified level of force or aggression;

• Questioning the passenger;

• Conducting a ‘consent search’;

• Conducting a search with low justification;

• Performing a warrant search/other manual computer check before stop;

• Unreasonable length of time of stop;

• Failure to provide routine, standard care and assistance (including medical treatment); and

• Poor relationship between the police and the community.^[34]

In these cases, along with your client’s evidence, useful evidence to subpoena from police includes body-worn camera footage, police radio communications, police notes, history of police database checks, use of force forms, field contact forms, and police manuals and procedures.

If the police conduct corresponds with racial profiling then it will not be difficult for an inference to be made under Brown.^[35] You will need to prove on the balance of probabilities that one of the reasons behind the police conduct was race. Ask: is race a reasonable explanation for the police behaviour in this case? If yes, racial profiling should be inferred and evidence obtained as a consequence should be excluded.

CONCLUSION

Aboriginal man Korey Penny says he was violently assaulted and racially abused by police while riding his bike to work in Melbourne on 3 September 2020. He said, ‘if I was a white guy in a suit I would still be riding my bike’.^[36] Australian courts and practitioners are well-versed in avoiding the obvious. Mentioning ‘racism’ sparks bristling defensiveness from prosecutors and some judicial officers. So often we don’t speak of the elephant in the room. And yet without courageous lawyers who are prepared to use their privilege to listen to and act on the real injustice inflicted on their clients, rather than pursuing the convenient but silencing strategies they may be used to, racial profiling will remain hidden in plain sight.

This article has provided some tools for practitioners to raise racial profiling in legal defences. There are a number of other legal strategies to consider when thinking about how to prove racial profiling. Some of these strategies are discussed in a paper that will be published in the Open Access journal Law in Context in 2021, as part of a series of papers on ‘Using transparency to achieve equality’. Please contact the author for a draft copy of this paper if you are interested.

Tamar Hopkins is a lawyer and researcher currently undertaking a PhD at UNSW in understanding and preventing racial profiling by police in Australia. EMAIL [e-mail].

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^[1] In this article I use the word ‘racialised’ to describe all non-white people. This description identifies the process in white-dominated societies where whiteness is normalised while non-whiteness is racialised.

^[2] G Barnes, ‘Lifetime traffic penalty comparison’ (Police briefing note, 13 February 2019).

^[3] T Hopkins, ‘Litigating racial profiling: Examining the evidence for institutional racial profiling by police against African-Australians in Flemington, Victoria’, Australian Journal for Human Rights, 2020 (forthcoming).

^[4] V Sentas and C Pandolfini, Policing Young People in NSW: A Study of the Suspect Targeting Management Plan (Report, 2017).

^[5] State Coroner Fogliani, ‘Record of investigation of death of Ms Dhu’ (Inquest record, 2016).

^[6] T Hopkins, Monitoring Racial Profiling Introducing a Scheme to Prevent Unlawful Stops and Searches by Victoria Police: A Report of the Police Stop Data Working Group (Report, 2017).

^[7] M McGowan and C Knaus, ‘NSW police pursue 80 per cent of Indigenous people caught with cannabis through courts’, The Guardian, 10 June 2020, <https://www.theguardian.com/australia-news/2020/jun/10/nsw-police-pursue-80-of-indigenous-people-caught-with-cannabis-through-courts?CMP=Share_iOSApp_Other>.

^[8] Barnes v Northern Territory Police & Anor [2013] FCCA 30 (Barnes); Wotton v The State of Queensland (No 5) [2016] FCA 1457 (Wotton).

^[9] BE Harcourt, Against Prediction, Profiling, Policing and Punishing in an Actuarial Age, University of Chicago Press, 2007.

^[10] M Alexander, The New Jim Crow, Mass Incarceration in the Age of Colorblindness, The New Press, New York, 2011.

^[11] J Gunnar and D Marvin, ‘Labelling, life chances, and adult crime: The direct and indirect effects of official intervention in adolescence on crime in early adulthood’ in Juan Del Toro et al (eds), The Criminogenic and Psychological Effects of Police Stops on Adolescent Black and Latino Boys, 2019; RD Crutchfield et al, ‘Racial disparity in police contacts’, Race and Justice, Vol. 2, No. 3, 2012, 179.

^[12] AN Doob and R Gartner, Understanding the Impact of Police Stops (Report, 2017).

^[13] L Weber, You’re Going to Be in the System Forever: Policing, Risk and Belonging in Greater Dandenong (Report, April 2020).

^[14] Flemington and Kensington Community Legal Centre, Independent Investigation of Complaints Against the Police (Policy briefing paper, 2015).

^[15] In 2018 and 2019 an AustLII search reveals no such applications made in reported Victorian Magistrates Court cases. See also B Presser, ‘Public policy, police interest: A re-evaluation of the judicial discretion to exclude improperly or illegally obtained evidence’, Melbourne University Law Review, Vol. 25, 2001, 757.

^[16] [1978] HCA 22.

^[17] Communication with the author on 14 August 2020. The Reichstein Foundation is also an important potential funder for those in Victoria. Possible Australian experts to consider calling on this issue (and by no means a complete list): Thalia Anthony (UTS); Chelsea Bond (UQ); Harry Blagg (WA); Chris Cuneen (UTS); David Dixon (UNSW); Gary Foley (Vic Uni); Ghassan Hage (Uni Melb); Clare Land (Vic Uni); Dave McDonald (Uni Melb); Nyadol Nyuon (Vic); Yin Paradies (Deakin); Amanda Porter (Uni Melb); Victoria Sentas (UNSW); Raul Sanchez Uribarra (La Trobe); Leanne Weber (Monash).

^[18] A recent example of a voir dire in the Victorian Magistrates Court is Victoria Police v Todero [2016] VMC 30.

^[19] Sentas and Pandolfini, above note 4.

^[20] Uniform Evidence Act 1995 (Cth), s139(5).

^[21] H Blagg and M Wilkie, Young People and Police Powers, The Australian Youth Foundation, 1995; R v Le 2019 SCC 34.

^[22] DPP v Kaba [2014] VSC 52.

^[23] R v Arthur [2018] SADC 116 (Arthur).

^[24] Ibid.

^[25] The Victorian cases of DPP v Kaba [2014] VSC 52 and Marshall v DPP [2017] VSCA 276 both concerned unrecognised pretext stops. South Australian case Arthur, above note 23, is the first case in Australia to name the issue of pretext stops. Other useful decisions to consider are R v Buddee [2016] NSWDC 422 and R v Nguyen (2013) 117 SASR 432.

^[26] A good case on pretext stops is the Canadian case R v Gayle, 2015 ONCJ 575.

^[27] Racial Discrimination Act 1975 (Cth), s9.

^[28] International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969), art 5; International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR); Charter of Human Rights and Responsibilities Act 2006 (Vic), s12; Human Rights Act 2004 (ACT); Human Rights Act 2019 (Qld).

^[29] See for example ss2, 10, 13, 16 and 21 of the ICCPR; Charter of Human Rights and Responsibilities Act 2006 (Vic), s12; Human Rights Act 2004 (ACT); Human Rights Act 2019 (Qld).

^[30] Wotton, see above note 8, [551].

^[31] [2003] OJ No 1251 (Brown).

^[32] Ibid.

^[33] Hopkins, above note 3.

^[34] Barnes, above note 8.

^[35] Brown, above note 31.

^[36] T Jacks, ‘Aboriginal man accuses police of violent assault and racist abuse’, The Age, 4 September 2020, <https://www.theage.com.au/national/victoria/aboriginal-man-accuses-police-of-violent-assault-and-racist-abuse-20200904-p55si9.html>.