What’s next for Victoria’s efforts to stamp out racial profiling?
The Equality is Not the Same action plan implemented by Victoria Police was a three year program of reform.
Launched in December 2013, it introduced new anti-racial profiling policies, training that introduces new police recruits to the concept of bias and the trials of stop and search receipting.
The Victoria Police Manual now defines racial profiling as “making policing decisions that are not based on objective or reasonable justification, but on stereotypical assumptions about race, colour, language, ethnicity, ancestry or religion”.
It states that such profiling is “a form of discrimination” and is illegal. It requires officers to consider under what law or authorisation they are acting when they stop someone.
Police training sessions at the Academy level now recognises how conscious and unconscious bias can impact upon everyday policing decisions such as when to stop a person or how much force to use when apprehending someone.
However, despite these reforms above…
Racial profiling still happens
There remains a huge gap between the claims of Victoria Police to uphold the human rights of all Victorians regardless of race or ethnicity, and daily operational policing techniques, strategies and approaches.
The More Things Change, The More They Stay The Same report (July 2015) claims racial discrimination by Victoria Police continues throughout Metropolitan Melbourne despite recent efforts to curb racial profiling. Co-authored by Daniel Haile-Michael and Maki Issa — the lead applicants in the 2013 Federal Court racial discrimination case against Victoria Police – the report explores the policing experiences of young men of African and refugee backgrounds from Flemington, Sunshine, Noble Park and Dandenong.
Mr Haile-Michael said that despite their own experiences, he and Mr Issa were shocked by the extent to which police inflicted serious assault, harassment and public ridicule on young African men, as well as by how widely accepted such practices were within their communities.[Herald Sun]
Despite the three years of the Equality is Not The Same action plan there is still a long way to go. There are critical steps ahead towards a modern, professional police force that is trusted by and treats all Victorians with dignity and respect.
Three steps to end racial profiling
We believe that there are three clear steps to reduce or prevent racial profiling
Measuring the Problem: police stop data collection
Receipting going statewide
Legislative changes: a call for change
Letter to the Chief Commissioner
In June 2016, fourteen Victorian community associations, agencies and peaks, including the Victorian Equal Opportunity and Human Rights Commission (VEOHRC), the Islamic Council of Victoria (ICV), The Federation of Community Legal Centres (FCLC) and the Victorian Council of Social Services (VCOSS) sent a letter to the Chief Commissioner of Victoria Police Graham Ashton calling for the statewide rollout of stop and search receipting, introduction of police stop data collection and monitoring and anti-bias training to be provided throughout the service.
A copy of this letter is available here (PDF).
Measuring the problem – police stop data collection
Despite Victoria Police publicly stating its ‘zero tolerance for racial profiling’, in 2015 it continues to be the case that our African clients experience vastly disproportionate traffic and street stops by police.
A well-developed LEAP data monitoring system would provide a critical evidence base for all other policy, training and localised interventions to prevent discriminatory policing. The collection and public reporting of data about the (perceived) ethnicity and/or Aboriginality of those stopped helps identify whether field contacts and traffic stops are impacting racial groups disproportionately. Victoria Police and community agencies can then work out how to reduce this disproportionate police contact.
Victoria needs a comprehensive system of recording simple ethnicity data for all field contacts as indicated by a commitment in the original Equality is Not the Same report “We will revise our field contact data collection, monitoring, analysis and reporting.” (ENS report page 8).
The ENS report states at page 34: “We concur that “improving the quality of current data collection processes to monitor field contact activity, in order to identify potential over-representation of specific community groups” (Field Contact Policy review p.69); combined with the review of the policy and improved internal governance, will strengthen community confidence in the process.”
Despite the ENS report’s view on the importance of data collection to monitor potential over-representation of communities, this did not occur within last year’s receipting trials.
Collection of data on the race of people stopped is the critical tool in understanding and preventing racial profiling. It occurs in the UK, Europe, Canada and the US. Without data monitoring racial profiling will continue unchecked.
“You can’t fix a problem if you can’t first measure it.”
Social psychologist Dr. Philip Atiba Goff, President of the Center for Policing Equity in the United States, says, “You can’t fix a problem if you can’t first measure it.”
According to the Ontario Human Rights Commission (OHRC) Chief Commissioner Barbara Hall “Race-based data collection is an important tool that can help police both respond to allegations of racial profiling and provide bias-free services.”
In June 2013, the Equality and Human Rights Commission (EHRC) in the United Kingdom announced an 18-month programme to reduce the disproportionate targeting of stop and search on black and Asian people had led to fairer and more efficient use of the powers. Police use of stop and search had been cut by up to 50% in five areas, including London and the West Midlands, without slowing the fall in the crime rate, according to the report.
Mark Hammond, the EHRC chief executive, said “This report shows clear evidence that where forces use an approach based on evidence rather than hunches or generalisations, they have not only seen reductions in crimes rates in line with overall trends, but have also increased public confidence in the police.”
The use of ethnicity data to understand and reduce discrimination is well demonstrated by the UK Human Rights and Equality Commission’s Stop and Think Again Report
Victoria Police’s receipting pilots ultimately failed to deliver on the promises made to the applicants in the Haile-Michael case and to the Victorian public at large.
As a consequence of the Haile-Michael settlement, Victoria Police authorised a review into field contact practices. The CIRCA review in 2013 made it clear that that:
‘The main focus of monitoring should be to assess if specific community groups are over-represented in field contact activity’.
We will revise our field contact data collection, monitoring, analysis and reporting. We will examine receipting options to scope, develop and trial a receipting pilot.
The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) released a statement on the receipting trial saying:
“In order to answer community concerns around whether particular groups are being subjected to over-policing, we need to have an understanding of whether there are systemic trends. Without the collection and monitoring of data in this area, these questions will not be answered.”
Victoria police have cited differing community opinions about whether ethnicity data should be collected by police. However, much of this indicates community concern and mistrust of Victoria Police in how the data would be used and published and reflects the tendency for ethnicity crime data to be misinterpreted or distorted by police, media or commentators.
Victoria Police, along with such bodies as the Crime Statistics Agency and VEOHRC, have an opportunity to provide the public with accurate, independently analysed and verified data – not on crime rates – but on the extent of police contact experienced by each community in Victoria make a significant step in restoring community trust and confidence.
This level of transparency and accountability we see is essential to fair and impartial policing in Victoria. We remain committed to seeing ongoing statewide stop-data monitoring being implemented on a state-wide level.
Receipting going State-wide
In 2016, Victoria Police will decide whether to roll out stop and search receipting state-wide. It will signify a new stance of respect for Victorian diverse communities when it is. This important initiative deserves the support of all Victorians.
Stop and Search Receipting was originally proposed by the Flemington & Kensington Community Legal Centre and Arnold Bloch Leibler in 2010. Victoria Police ran a trial of stop & search receipting during 2015. It was the first such trial in Australia.
Receipting can increase the transparency of policing by ensuring people who are stopped or searched by police are given a receipt setting out the legal reasons they were stopped or searched. It should be combined with field contact data collection and analysis.
The StopWatchVic monitoring project that ran throughout 2015 has determined that receipting was received favourably by young people in Moonee Valley and Dandenong, that it made them feel safer and that they knew where they could go if they had a problem with a police encounter. Many respondents stated that it should be rolled out state wide.
Comments from young people included:
“It makes things easier if we are stopped again.”
“I think it’s more safe when you are stopped where there are no people around. “
“I think it gives us an idea of number of stops.“
“I think it should happen in Footscray as well.”
“I think it’s great to have because this gives us the power to report and makes it easier to know who we’re reporting. “
“It’s a great thing to have.”
“Yes, this should happen state-wide.”
We want to see the policy of providing a simple receipt to every person stopped by police in Victoria to be made a permanent Victoria Police practice. It will soon become a routine police practice of accountability and respect.
 StopWatch Vic collated survey results – (unpublished)
Legislative changes: A Call for Change
In order to build upon and support the initiatives committed to by Victoria Police in its Equality is Not the Same report, and to ensure fair and impartial policing in Victoria we call upon the Victorian Government to publicly commend and actively support the Victoria Police for the initiatives currently underway to eliminate racial profiling:
Pass an amending act (the “Anti Racial Profiling Amendment Act”) (Amending Act) that enacts legislative amendments which would:
A) prohibit the practice of racial profiling by:
- amending the Equal Opportunity Act 2010 (Vic) (EOA) to explicitly define the term “service” in section 44 to clarify that Victoria Police provide services to all people including those they question, investigate, stop, or detain. This would ensure individuals or groups alleging racial profiling could bring disputes to the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) or the Victorian Civil and Administrative Tribunal (VCAT); and
- inserting racial profiling as a breach of discipline into section 125 of the Victoria Police Act 2013, with a reverse onus of proof (Racial Profiling Breach of Discipline); and
- requiring reasonable suspicion of an offence before authorising police to conduct all street and vehicle stops (other than preliminary breath testing station stops). This would require legislative changes to section 59(1) of the Road Safety Act 1986 and a general section added to the introduction of other police power legislation).
B) introduce into legislation the practice of receipting and statewide data collection, when people are stopped on the street or in their cars; and
C) fund an advertising campaign to inform the public about these initiatives including new stop and search data collection and receipting requirements;
D) provide additional support to VEOHRC to assist in the independent monitoring of racial stop data collected by Victoria Police and make recommendations to the Victorian Government, VicPol and IBAC.
Further legislative mechanisms recommended to eliminate racial profiling include an independent complaint investigation system and a racial profiling tort. Each of these reforms would increase community support for policing and work towards the elimination of racial discrimination.
The issue of racial profiling is complex and cannot be addressed through internal police administrative and policy means alone.
In keeping with international best practice, it is critical that racial profiling be addressed legislatively in order to clearly identify the obligations and rights of the police and the community.
These legislative changes, combined with the next phase of Victoria Police reforms, would substantially improve the way in which police work with newly arrived, immigrant and culturally diverse communities in Victoria.
For a more detailed analysis of the Equality Report and the Action Plan, please also see FKCLC’s ‘Analysis of the “Equality is not the Same” and consultant reports’ (February 2014).
The 3-Year Action Plan
In December 2013, Victoria police launched a three year action plan to address community concerns about discriminatory policing after many years of relentless campaigning by community, legal and human rights groups.
“It’s the outcome of everything we’ve been fighting for, and it kind of justifies what we’ve fought for,” Maki Issa – ABC News (31/12/13)
Victoria Police released a report into the historic inquiry into racial profiling and launched a 3 year action plan to address community concerns about discriminatory policing and racial profiling.
For a detailed analysis of the original Equality Report and the Action Plan, see our ‘Analysis of the “Equality is not the Same” and consultant reports‘ (February 2014).
Equality is not the Same
The ‘Equality is not the Same’ report and two accompanying consultant reports are available on the Victoria Police website here and below.Equality is not the same… PDF
‘Victoria Police Contact Policy and Processes’ prepared by the Cultural and Indigenous Research Centre Australia (CIRCA) (November 2013) Victoria Police Field Contact Policy and Processes PDF
‘Learning to Engage: A review of Victoria Police cross-cultural training practises’ prepared by the Centre for Cultural Diversity and Wellbeing, Victoria University (December 2013) Learning to Engage PDF
The 6 month Inquiry in 2013, the result of a settlement as part of the Haile-Michael Federal race discrimination action, has resulted in some key community recommendations being adopted including Australia’s first trial of stop and search receipting, monitoring of who is being stopped by police, policy reforms concerning police field contacts, and substantial reform of cross-cultural training provided within Victoria Police.
The ‘Equality is not the same’ report includes recommendations to:
- Review and amend field contact policy to prevent racial profiling, including the revision of definitions for ‘reasonable suspicion’ and ‘high crime locations’, and the education of all police members on the revised policy and practices,
- Amend the Victoria Police Manual so it directs members to inform individuals of the reason why they were stopped, and to develop a trial of receipting which requires police members to document the details of each contact,
- Collect aggregated data on field contacts to monitor whether they are being applied disproportionately, and to develop processes for independent review of this data monitoring,
- Establish stakeholder advisory groups to provide advice and guidance to Victoria Police on the development of policy, processes, data collection requirements and community engagement initiatives,
- Review and evaluate training to ensure ongoing cross-cultural training for all serving officers, and
- Create education material with an understanding and recognition of unconscious bias and how it impacts on operational decision making.
Smart Justice for Young People provided a short statement on these outcomes.
The Victorian Human Rights and Equal Opportunity Commission have also produced this public statement and response (PDF) to the 3 year action plan.
The launch prompted another significant editorial from The Age which stated; “There are six people in particular who deserve lasting gratitude: the young African-Australian men who courageously and tirelessly sought justice for what they rightly saw as a threat to their basic rights.” We heartily agree.
Submissions to the Inquiry
Flemington Kensington Community Legal Centre, Arnold Bloch Leibler, Jeremy Rapke QC, Emrys Nekvapil and Phoebe Knowles provided the following substantial 132-page submission.FKCLC / Arnold Bloch Leibler Submission
The Ethnic Communities’ Council of Victoria’s submission was ‘made with a view to the specific concerns and needs Victorians of refugee and migrant background and members of culturally and linguistically diverse communities’.ECCV Submission
The Fitzroy Legal Service made a submission focussing on field contact reports and complaints procedures.Fitzroy Legal Service Submission
Human Rights Law Centre made a submission entitled ‘Human Rights in Police Stop and Search Practices’.Human Rights Law Centre Submission
Smart Justice for Young People made a submission entitled ‘Safeguards Against Discriminatory Policing’.SJfYP Submission
The Victorian Aboriginal Legal Service Co-Operative Limited made a submission informed by their ‘long experience working with Aboriginal and Torres Strait Islanders who have contact with the justice system’.Victorian Aboriginal Legal Service Submission
The Victorian Human Rights and Equal Opportunity Commission made a submission calling for a stop and search receipting pilot in an regional and metropolitan police region.VHREOC Submission
Victoria Police commitments to end racial profiling
This historic inquiry and community consultation is the result of a settlement between six courageous young men and Victoria Police as part of the Haile-Michael Federal race discrimination action.
Individuals, organisations and agencies affected by racially discriminatory policing made a total of 70 submissions to the consultation. Ten of these are available for viewing via the Victoria police website here.
FKCLC and law firm Arnold Bloch Liebler made a comprehensive 132-page submission that sets out the key strategies required for genuine change and compliance with human rights and is available here.
An overwhelming majority of the community submissions called for significant changes to current Victoria Police field contact practices and training programs. All of the submissions viewed by us have clearly recommended the introduction of stop and search receipting to support data collection and monitoring, as well as enhanced and targeted anti-racism and racial profiling training.
In discussing the inquiry, Chief Commissioner Ken Lay was quoted as saying, ‘This is almost a new start for us. Never before have the Victoria Police consulted so widely with the community about the way we engage’.
The Victoria Police inquiry into racial profiling and the resulting three year action plan represents a real hope for substantial reform and an end to racial profiling in Victoria. They are to be congratulated for having conducted such a rigorous inquiry within this short time frame.
Addressing racially discriminatory policing would substantially improve the way in which police work with newly arrived, immigrant and culturally diverse communities in Victoria, and see a rise in community confidence, trust and respect for Victoria Police.
What we think needs to happen
Flemington Kensington Community Legal Centre has outlined in detail the steps we believe will adequately address the problem of racial profiling. A complete copy of these steps for Victoria Police, the State Government and the community is available here.
Racial profiling must be specifically trained against – otherwise implicit racial stereotyping will occur.
Policy must reflect the fact that racial profiling of any type is unlawful and contravenes basic human rights.
Furthermore, practise must ensure that any racial profiling be identified through statistical collection and a stop and search receipting system (such as the one implemented in the United Kingdom). Under this system, Victoria Police would be required to collect demographic data, develop procedures to respond when racial bias appears, and develop policies to discipline officers who engage in the practice.
Finally, to clearly end the practise, the stage is set for Victoria to take the lead and introduce specific anti racial profiling legislation. Legislation would also create an enforcement mechanism to ensure that police anti-profiling policies are being followed and victims of profiling are able to seek redress. Unless racial profiling by law enforcement agencies is specifically made unlawful, as it is in other countries, incidents such as those that prompted the Haile-Michael case will continue to occur.
We owe it to the courage and tenacity of the six young men involved in this case that will put an end to racial profiling once and for all.
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