Monitoring Racial Profiling – Introducing a scheme to prevent unlawful stops and searches by Victoria Police
A report of the Police Stop Data Working Group
This report examines eight key practical issues involved in the implementation of a racial profiling data collection scheme in Victoria, Australia and makes 20 recommendations. It is written in response to:
- The settlement in Haile-Michael v Konstantinidis (Federal Court, Melbourne, 2013);
- A series of critical recommendations arising from a 2013 review of Victoria Police’s field contact policies;
- Victoria Police’s policy commitment to a prohibition on racial profiling;
- Victoria Police’s ongoing commitment to exploring data collection and monitoring systems set out in its Equality is not the Same Three Year Report.
The intention of this report is to make researched, best practice recommendations to Victoria Police and the Victorian Government for the establishment of an effective racial profiling monitoring and prevention scheme.
The report’s recommendations arise following a systematic review of the specialised literature and references to the following international data collection sites:
- Metropolitan Police – London, UK.
- Kingston Police – Kingston, Ontario, Canada.
- Ottawa Police – Ottawa, Canada.
- New York Police Department, NYC, USA.
- Ferguson Police Department, Missouri, USA
- Baltimore Police Department, Maryland, USA.
- Minneapolis, Minnesota, USA.
- Melbourne, Victoria, Australia.
The issues are explored in eight separate chapters, as follows:
- What is Racial Profiling? What terms and definitions should a data collection scheme use to identify and monitor the incidence of ‘racial profiling’ and ‘reasonable grounds’ for police-initiated contact in Victoria?
- Why is it important to monitor racial profiling? What are the problems associated with monitoring it and how can these be resolved?
- How can issues of identifying race or ethnicity be resolved?
- How should reasons for stops and searches be recorded?
- What data needs to be recorded by police?
- Who should be responsible for collecting, analysing and making public the data? Should data collection be a trial or an ongoing practice? What is the frequency that data should be reported?
- What is the risk that data collection could be used to enhance rather than undermine race/crime stereotyping? How do we minimise these risks?
- What enforcement requirements for data collection should be imposed, or consequences for non-recording? Should data collection be required under legislation?
The recommendations in this report represent the views of an expert academic working group commissioned by the Police Accountability Project of the Flemington and Kensington Community Legal Centre. The report incorporates the ongoing feedback and suggestions from the working group from September 2016 to May 2017
Please note that references in this report to Victoria Police members and their powers in Victoria should be interpreted as including a reference to Protective Services Officers and their common law and statutory powers where applicable. Errors in the document are the responsibility of the author.
Racial profiling is a practice whereby police, consciously or otherwise, systemically stop and search Aboriginal and Torres Strait Islander peoples and racial minorities on the basis of stereotypes rather than reasonable grounds to believe an offence has taken place. Racial profiling is a form of biased and discriminatory policing, and its implications and impacts of racial profiling are profound. According to Wortley and Owusu-Bempah ‘racial differences in police stop and search activities directly contribute to the overrepresentation of black people in the Canadian criminal justice system.’ Racial profiling contributes to alienation and negative health outcomes in its targets. It is a key factor in the creation and perpetuation of a racial underclass and entrenching racial stratification in society. Furthermore, ‘unnecessary police contact undermines public support for police and undermines voluntary compliance.’ Racial profiling is a human rights violation with hugely significant implications (see Introduction).
Despite Victoria Police’s policy prohibiting racial profiling, and that it is unlawful under the Race Discrimination Act 1975 (Cth), there are no effective mechanisms that monitor its occurrence in Victoria. Victoria’s laws currently permit the stopping of pedestrians and vehicles without reasonable grounds. This leaves Victorians vulnerable to racial profiling. While Victoria Police policy now imposes a ‘reasonable belief’ standard on police officers before they submit a field report of their stops of pedestrians and vehicles, there is no requirement that the decisions to initiate stops meet this standard. Nor are there mechanisms for publicly reporting on whether these standards are being met or being applied consistently in the stopping of all racial/ethnic groups (see Chapter 1).
The benefits of transparent monitoring for the presence of racial profiling are clear: Communities are provided with information that can reinforce or dispel their concerns. Further, police managers, accountability institutions and the public are provided with information needed to ensure policy initiatives are being put into practice. For example, the monitoring of data on stop and search in New York has been followed by a dramatic reduction in stop and search and crime rates continue to fall. Similarly, transparency in police stopping practices in the UK has enabled the Equality Commission to take compliance action against a handful of problematic forces (see Chapter 2).
There are a number of alternative methods for monitoring racial profiling by police forces. Methods such as benchmarking data against ‘available populations’ are circular and fail to address systemic and institutional forms of racial profiling. Other methods such as identifying disproportionality in stop and search rates against resident populations are useful in identifying the overall experience of different populations and should be undertaking for this purpose. However, the most useful methods for examining racial profiling involve an analysis of the outcomes or ‘hit rate’ of stops and searches in conjunction with an analysis of the presence of ‘reasonable grounds’ before a person is stopped and/searched (for a detailed analysis, see Chapter 2).
Consequently, a robust racial profiling monitoring scheme must be capable of capturing information relevant to demographics, outcomes and reasons for police intervention in all police-initiated street and vehicle interactions (see Chapters 4 & 5).
Essential to the scheme is the collection of the race or ethnicity of those stopped and searched as perceived by the police officer. It is currently optional for Victoria Police members to collect data on the perceived race or ethnicity of those they stop. A data collection scheme will require the collection of this information to become mandatory (see Chapter 3).
Data required for the scheme is largely already collected by Victoria Police on its L19 and L19C forms for stops, searches and the issuing of directions to move on. The scheme will require these forms to be completed on all occasions that police officers intervene to stop a person.
Both independent and internal police monitoring needs to be conducted to ensure that officers are recording their genuine reasons for stopping and searching people and that these are meeting the relevant initiation standard (see Chapter 4).
De-identified raw data should be provided to an external monitoring body such as a university research team (during the trial and perhaps beyond) and—if resourced through legislation and funding—potentially an agency such as the Australian Human Rights Commission, the Victorian Human Rights and Equal Opportunity Commission, or the Victorian Crime Statistics Agency for analysis and regular public reporting. This reporting is important for the purpose of identifying local and overall trends in stop and search patterns that may indicate unfair targeting or the application of lower standards for intervention against Indigenous or racial minorities and to permit external compliance action (see Chapters 6 and 8)
An effective racial profiling monitoring scheme requires effective regulation. An important method of regulation is for Victoria Police to develop key performance indicators that monitor the appropriateness and effectiveness of stops and searches, rather than their quantity. Are police stopping people based on reasonable grounds? Are stops and searches generating arrests?
In addition some important legislative amendments are required such as:
- A legal requirement for the collection of relevant data;
- A legal requirement for the data to be provided to an independent external agency for monitoring and regular public reporting;
- A legal requirement that Victoria Police have a reasonable belief that an offence has been committed before a pedestrian or traffic stop is initiated (except for random drug/alcohol testing at established stations and when stopping witnesses to an incident such as under section 456AA of the Crimes Act 1958 (Vic));
- A definition of ‘reasonable grounds’ and ‘racial profiling’;
- Mechanisms for individual and systemic enforcement both within Victoria Police and externally by individuals and agencies such as the Victorian Human Rights and Equal Opportunity Commission or IBAC (see Chapter 8 and 1).
Concerns have been raised by Victoria Police that the collection of data for a racial profiling monitoring scheme could damage the relationship between Victoria Police, Indigenous peoples and racial minorities in Victoria. However as demonstrated by the Haile-Michael case and numerous other reports, the relationship between Victoria Police and these communities is already damaged by racial profiling. A racial profiling monitoring scheme is not concerned with alleged crime rates of different racial and ethnic groups within Australia. Sensational reportage of crime rates has the capacity to generate stereotypes and entrench prejudicial attitudes. In contrast, a racial profiling monitoring scheme aims to identify bias in police practices by monitoring any unfair targeting or reduction in suspicion thresholds when police initiate street based criminal investigations into Indigenous people and ethnic minority Australians. The collection and reportage of this information offers the opportunity for police to both increase their efficiency and improve their relationships with the community (see Chapter 7).
This report recommends the implementation of a co-operative three-year racial profiling data collection trial and evaluation process, capable of extension in perpetuity.
We believe that the implementation of the 20 recommendations listed at page 12 of this report will assist in placing Victoria Police at the forefront of fair, effective and efficient policing efforts against racial profiling in Australia, making it a model for other states and federal agencies to replicate.
Finally, we note that a racial profiling data-monitoring and prevention scheme is only one of a number of strategies needed to reduce the likelihood of allegations made by the applicants in Haile-Michael v Konstantinidis from being made again. Additional strategies sought by the Haile-Michael litigants include independent investigation of police complaints and greater transparency of conduct within police stations and homes.
A full copy of the report can be downloaded here (PDF).
 Cultural and Indigenous Research Centre Australia, ‘Victoria Police Review of Field Contact Policy and Processes’ 2013, Victoria Police, recommendation 17.
 Victoria Police, ‘VPMP Human Rights Equity and Diversity Standards,’ 2015, Victoria Police, 2.
 Victoria Police, ‘Equality is not the same, Year Three Report’ 2016, Victoria Police, 30.
 Scot Wortley & Akwasi Owusu-Bempah (2011) The usual suspects: police stop and search practices in Canada, ‘Policing and Society’, 21:4, 395-407,
 Alpa Parmar (2011) Stop and search in London: counter-terrorist or counter-productive?, ‘Policing and Society’, 21:4, 369-382.
 Yin Paradies, ‘Racial Profiling and Health’ 2013 < http://www.communitylaw.org.au/flemingtonkensington/cb_pages/files/Yin%20Paradies%20On%20Racism,%20Racial%20Profiling%20and%20Health.pdf>
 Charles Epp, Steven Maynard-Moody, Donald Haider-Markel, ‘Pulled Over, How Police stops define race and citizenship,’ 2014, University of Chicago Press, 15.
 Ben Bowling & Leanne Weber (2011) Stop and search in global context: an overview, Policing and Society, 21:4, 486. See also the Coronial investigation into the Death of Michael Atakelt Coroners Court of Victoria delivered 28 August 2014.
 New York Civil Liberties Union, ‘Stop and Frisk Data’ 2016 <http://www.nyclu.org/content/stop-and-frisk-data>
Disaster Center, ‘New York Crime Rates 1960-2015’ accessed 2017 <http://www.disastercenter.com/crime/nycrime.htm>
 Michael Shiner, Regulation and Reform in Delsol, Rebekah; Shiner, Michael (ed), Stop and Search, the Anatomy of a Police Power 2015, Palgrave Macmillan, 154
 See for example the Ottawa Traffic Stop Race Data Collection trial <https://www.ottawapolice.ca/en/news-and-community/Traffic-Stop-Race-Data-Collection-ProjectTSRDCP.asp>
 A group of academics from three universities including Arizona State University analyse data in Missouri for the Attorney-General on an ongoing basis: <https://ago.mo.gov/home/vehicle-stops-report
 See for example, Ethical Standards Department Victoria Police and Department of Justice Indigenous Issue Unit, ‘Koori Complaints Project 2006-2008’ (2008), 11, Daniel Haile-Michael and Maki Issa, ‘The more things change, the more they stay the same’ (Flemington & Kensington Community Legal Centre, 2015), Harry Blagg et al, ‘Systemic racism as a factor in the over-representation of Aboriginal people in the Victorian Criminal Justice System’ (Victorian Equal Opportunity and Human Rights Commission, 2005) 112, 181.
 This includes vast improvements in the effectiveness of FOI and the mandatory use of and access to CCTV in cells: communication with Maki Issa in February 2017.
 Letter to Victoria Police, 2016 <<http://www.policeaccountability.org.au/racial-profiling/whats-next-for-victoria-efforts-to-end-racial-profiling/>
 Tom R Tyler, Phillip Ataba Goff and Robert J MacCoun, ‘The Impact of Psychological Science on Policing in the United States: Procedural Justice, Legitimacy, and Effective Law Enforcement’ (2015) 16 Psychological Science in the Public Interest 75, 11.
 Other than genuinely random drug testing at established testing stations and approaching witnesses.
A full copy of the report can be downloaded here (PDF).