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ABSTRACT
This article draws conclusions about the existence of racial profiling by Victoria Police from the rich and varied data that emerged from the 2013 public settlement of Haile-Michael v Konstantindis, a racial discrimination claim filed in the Federal Court of Australia in 2010. The Federal Court may have made similar conclusions had the matter proceeded to trial. The data I draw on includes the text of a Flemington Police operational order, police field contact remarks, statistical data analysed by expert witnesses in the claim, a small sample of some of the complaints by the applicants, and public statements made by senior police. I argue that a triangulation of the data is consistent with a conclusion that Victoria Police engaged in institutional racial profiling.
Acknowledgements
Thank you to Janet Chan and Vicki Sentas for their comments.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1. See the order of Marshall J in Haile-Michael v Konstantinidis (Citation2013).
2. I do not disclose any confidential information gained from my involvement in the claim.
3. In this article, ‘child’ refers to a person 17 years old or younger and ‘youth’ to a person 24 years old or younger.
4. The claim was regularly updated.
5. Subsequently, Aboriginal residents of Palm Island made a claim under the Racial Discrimination Act (Citation1975) (Cth): Wotton v State of Queensland (No 5) (Citation2016). Justice Debbie Mortimer played an influential role in both Haile-Michael and Wotton.
6. During interlocutory proceedings to obtain a protective costs order, applicants agreed to forgo compensation to seek public interest outcomes.
7. Including Ahmed Dini, Ahmed Ahmed, Daniel Haile-Michael, Maki Issa, Reem Yehdego, Hannah Fesseha Simone Perkin, Sarah Joyce, Chantelle Higgs, Donna Williams and Bec Smith.
8. Fitzroy Legal Service and Simone Elias initially assisted the Flemington and Kensington Community Legal Centre.
9. Arnold Bloch Leibler’s Peter Seidel was instrumental in these proceedings.
10. Justice Debbie Mortimer (as she is now), Claire Harris QC (as she is now), Gabbi Craft, Emrys Nekvapil, Rachel Doyle QC, Phoebe Knowles, Jeremy Rapke QC, Ruth Shann and many others. Counsel involved in legal defence included Justice Jane Dixon (as she is now), Dyson Hore-Lacy QC and Emrys Nekvapil.
11. See also Ahmet v Chief Commissioner of Police (Citation2014).
12. All of the complaints made to the OPI were referred to Victoria Police for investigation.
13. This research has ethics approval from the University of New South Wales, HC180500.
14. The complaint was investigated by Victoria Police and was not substantiated.
15. These complaints were made to the OPI and found ‘unsubstantiated’ following a police investigation.
16. Complaint made to the OPI and not substantiated by police investigation. This matter was included in the Haile-Michael claim.
17. All allegations were found to be unsubstantiated in the police investigation that followed complaints to the OPI.
18. Personal knowledge of the author as the solicitor receiving the complaints. This claim was found to be unsubstantiated following a police investigation.
19. He took civil action that resulted in a settlement on the last day of the trial.
20. A freedom of information (FOI) request in 2019 for details about Operation Square resulted in no documents being found.
21. Personal knowledge as the complainants’ solicitor.
22. David Dixon et al. describe the ‘groups’ as including ‘unemployed, the socially marginal and ethnic minorities’ (Dixon et al. Citation1989, 187).
23. Le v State of New South Wales (Citation2017), [126].
24. Le v State of New South Wales (Citation2017), [133]–[136].
25. Operation Molto ran in February, the hottest month of the year.
26. Revised code of practice for the exercise by Police Officers of Statutory Powers of stop and search; Police and Criminal Evidence Act (Citation1984) (UK) (PACE), Code A [2.2B (a)].
27. A copy of the recommendations from this report was provided by Brett Guerin to lawyers at FKCLC in 2006. A copy of the full report was sought under FOI but refused at VCAT.
28. Ken Lay (no longer Chief Commissioner) now has a different perspective on racial profiling (see Waters Citation2018).
29. Victoria Police currently record ethnic appearance as follows: Aboriginal/TI, Asian, African, Caucasian, Indian, Mediterranean/Middle Eastern, Pacific Is/Maori, South American: Victoria Police, Field Contact Policy Fact Sheet, FOI release: 68186/19 (2019).
30. Lamberth (Citation2004, 28) and Wortley (Citation2019, 108) describe these as ‘odds ratios’, but they are actually relative risk ratios.
31. The differences here are small and Gordon notes that they are unlikely to be statistically significant (Gordon Citation2012b, 9).
32. Where Gordon identifies an outcome as ‘statistically significant’ in his reports, this refers to a probability or P-value of less the 0.05. This is the probability of the observed magnitude of the difference in the means of an outcome comparing one group with another group, assuming no true difference between the groups. When the P-value is small, and the result is statistically significant, the observed data are inconsistent with the assumption of no mean difference between the groups (Dr Sue Finch, email to author, 5 December 2019).
33. All contacts recorded in File 3 are not related to File 2.
34. My assertion is not unprecedented: see Ray (Citation2019).
35. Compare Goldsmith’s view with the decision in Le v State of New South Wales (Citation2017), where a stop without reasonable suspicion was treated as a false imprisonment.
36. Goldsmith agrees that these figures are prima facie ‘confronting’ (Goldsmith Citation2012, 8 para 26).
37. File 4 is a file containing police ‘remarks’, of which the details are too unclear to draw conclusions.
38. ‘Other’ here refers to all the racial categories not recorded as African, ‘black’ or ‘Afr/MiddleEast’.
39. PhD research by the author.
Additional information
Notes on contributors
Tamar Hopkins
Tamar Hopkins is a PhD candidate in the Faculty of Law, UNSW Sydney. She worked at the Flemington and Kensington Community Legal Centre from 2005 to 2016 as its Principal Solicitor. Alongside Peter Seidel from Arnold Bloch Leibler, she acted as solicitor for the applicants in Haile-Michael v Konstantindis FCA VID 969 of 2010.