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Your rights if you’ve been racially profiled by police in Australia

What are your rights if you're stopped by Police in Australia (AAP Image/Supplied by NSW Police) Source: NSW POLICE

“Racial profiling is the “disproportionate” and “unreasonable” use of police powers against racial minorities and indigenous people.”

“When he was out for a jog, and the police came past, he would stop because if he was seen to be running, he would definitely be stopped by the police. 

“Even just mere acts of getting your exercise have implications for whether or not you’re going to be stopped. Your race will play a factor in that.” 

That’s Tamar Hopkins describing a situation as told to her by an Australian man of African origin about how he had to change his behavior to avoid being stopped and questioned by police, when no laws have been broken. 

“There are examples of people choosing not to walk in groups of more than three, as they would stopped repeatedly and being asked for details”, she says. 

Tamar Hopkins with her clients in Melbourne in 2013
Tamar Hopkins with her clients in Melbourne in 2013
Charandev Singh (Supplied)

Ms Hopkins is currently researching racial profiling and police accountability as a PhD student at the University of New South Wales. 

Arbitrary roadside vehicle stops by police is another common example she came across during her former role as the principle solicitor at Flemington and Kensington community legal center. 

“Amazing stories of people being stopped, for no reason and having passengers questioned, being asked to get out and sit in the gutter, while police perform searches of their vehicles, when there are no grounds”, she says. 

Ms Hopkins has represented members of African Australian communities over alleged racial profiling against Victoria Police in the state’s court systems, eventually settled out-of-court, with police commencing a public enquiry to change police practices. 

The number of examples of alleged racial profiling by police is also worrying legal experts across the border in New South Wales. 

Samantha Lee is a solicitor with the police accountability practice at Redfern Legal Center in Sydney. 

“We often see clients of Aboriginal descent, First Nation’s persons who come in to complain that they are being stopped by police on a regular basis, for no apparent reason, other than the fact that they are under some form of idea of suspicion by police”, says Ms Lee. 

Samantha Lee from Redfern Legal Centre
Samantha Lee from Redfern Legal Centre
Supplied

According to data obtained by the Redfern Legal Centre, 11,304 people were strip-searched by NSW Police since 2016. 10% of these searches were on Aboriginal and Torres Strait Islander people

“The number may vary across various states, but there are some cultures, people of different cultural backgrounds, who do seem to get targeted more than others.”

A recent report published by Guardian Australia, obtained under freedom of information laws, found Aboriginal drivers in Western Australia received 3.2 times more fines from being pulled over by police than non-Aboriginal drivers. 

What is racial profiling? 

Racial profiling is the “disproportionate” and “unreasonable” use of police powers against racial minorities and indigenous people says Tamar Hopkins. 

However, defining what disproportionate and unreasonable may be could be debatable. 

But for Ms Hopkins, reasonable policing is about lawful policing, policing that follows human rights standards and follows legislation and common law. 

The targeting of persons based on their race is illegal under law but can happen in practice explains Samantha Lee. 

“If it does happen then there are avenues for recourse, but obviously, it has wide ramifications for those that are subject to such discriminatory actions.” 

Two NSW police officers have been found to have engaged in serious misconduct by racially abusing two Afghan women at a traffic stop in Western Sydney.
Two NSW police officers have been found to have engaged in serious misconduct by racially abusing two Afghan women at a traffic stop in Western Sydney.
Supplied

Stopped by police, what are your rights?

Laws may vary across various states in Australia, depending on whether someone is stopped by police while on the street or while driving a vehicle. 

“If you’re on the street and you’re just going about your daily life, a police officer then stops you and asks you questions. Obviously, you can answer questions if you want to but you have no obligations to”, says Ms Lee from Redfern Legal Centre. 

What if you’re asked to produce identity documents? 

You have no obligation to produce ID in Australia when asked by police. 

According to Ms Lee, the only situation where you’d have to show your ID is if there has been something found on you after a search.

Read about your rights relating to police strip searches. 

Also, if police believe that the person has either committed or witnessed a serious offence can be asked to show their ID adds Tamar Hopkins. 

“If that’s the case then the police should tell that person, that’s why they’re requiring their ID details. Otherwise the person is absolutely free to say no to that request.” 

However, refusing to provide identity documents to police may not be as easy for many people of migrant and refugee backgrounds. 

“This is why the police should be required to not go up to members of the public unless they have reasonable, lawful grounds to require that information”, says Ms Hopkins. 

If a person is not carrying an ID then they can provide their details to police, if they choose to. 

“But there’s no requirement that you must provide proof of the name and address that you’ve given to police officers. They can’t detain you in order to prove who you are.” 

Tamar Hopkins
Tamar Hopkins (left) speaks during a press conference at Parliament House in Melbourne 2018. (AAP Image/Stefan Postles)
AAP

Rights while driving

Laws around police powers can be different when driving a motor vehicle. 

“In Victoria, police can pull over a vehicle for the purpose of doing a license and registration check, so they don’t need to have any particular suspicion that a person has committed an offence”, explains Hopkins. 

But this only applies if the police stop someone for license and registration check. 

“If the police then go on to question the person about why they’re driving in that particular area, what they’re doing that day, to ask to search the vehicle, all those things provide evidence that the purpose of the stop was not just to check license but was a pretext stop to do a criminal investigation on that individual.” 

Similar laws exist in New South Wales and other Australian territories. 

“In NSW, the police are required to have reasonable grounds to suspect that an offence has been committed, before they can stop a vehicle.” 

“The stop is subject to a threshold in New South Wales.” 

In Victoria, South Australia and Western Australia, the police can stop your car without reason but that’s restricted to the purpose of registration and license check.” 

Legislation to allow preliminary breath testing to be carried out by police also means the drivers can be breath-tested when stopped on the roadside. 

“Particularly, police don’t have powers to question the passengers in vehicle for information.” 

120 people have been strip-searched in NSW since the start of the year.
AAP

Tips if you think you’re being racially targeted by police

Here are some tips by Samantha Lee and Tamar Hopkins:

  • Always ask why you’ve been stopped – if you’re being asked for details then don’t assume police are entitled to ask for those details.
  • Try and get the police officer’s name, where they work, date and location of the incident.
  • Say “I do not consent to any form of search”.
  • Pull over if you’ve been asked to do so but if you think you’re being stopped because of your race then consider making a complaint.
  • Complaints can be made to the police watchdog and oversight agencies or to the Human Rights Commission.
  • Speak to your local community legal centre.
  • Talk about your experience with others.
  • Talk to your local member of parliament.
  • Police must abide by the law.
  • Try and slow down what’s happening - understand what's happening, ask questions.
  • If you can, record what’s going on. People are legally allowed to film police.
  • Film it from a distance, get someone else to record the incident.
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