Identifying and Proving Racial Profiling
(This is an adaption of Chapter 3 and 4 of Tamar Hopkins PhD 2022 ‘Understanding Racial Profiling in Australia’)
To date there is no case law in Australia that defines the concept of racial profiling. Racial profiling however, is defined in Canadian case law. In R v Le [2019] 2 SCR 692 the Supreme Court of Canada defined racial profiling as conduct that:
occurs when race or racialized stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or suspect treatment. [76] [emphasis added]
Furthermore, in R v Brown, (2003) O.J. No.1251, Justice Morden Ontario Court of Appeal, set out a strategy, cited in over 200 subsequent cases, for how to prove it:
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…[w]here 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. [44-45] [emphasis added].
This test is called the ‘Correspondence Test.’
The fact that racial profiling is defined and a method for its proof is set out in the common law in Canada rather than in legislation suggests an approach that may be possible in Australia.
While Australia has no legal definitions for racial profiling, (though Victoria Police describe it in their VPM) we do have legislation on racial discrimination. (See a discussion of definitions of racial profiling here). Because the definition of ‘services’ in most state anti-discrimination laws excludes suspects from bringing claims against the police, the Racial Discrimination Act 1975 (Cth) (‘RDA’) is the primary mechanism to allege racial profiling in criminal, tort and discrimination proceedings. In the NT there is now a specific provision that over comes this issue: s49A NT Anti-Discrimination Act 1992. In Victoria and most other states, the ‘services’ does not impact on bringing a duty failure racial profiling claim through state legislation including the Equal Opportunity Act 2010 (Vic). It is also possible to allege racial discrimination through breaches of domestic human rights laws in criminal and tort proceedings in Victoria, ACT and Queensland. However breaches of these provisions cannot lead to awards of damages in tort or discrimination proceedings. It is also possible to allege a breach of Article 26 of the International Covenant on Civil and Political Rights (‘the ICCPR’).
Racial Discrimination Act 1975
Relevant parts of Section 9 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. [emphasis added]
Section 9 of the RDA makes it unlawful to do an act or omission based on race that impairs a person’s human rights. This would include freedom of movement, equality before the law (ICCPR and state-based human rights legislation), privacy, liberty, humane treatment in custody, freedom from arbitrary detention and freedom from ill-treatment.
For an action to be ‘based on race’ race must be a reason, but not necessarily the dominant or substantial reason, for the action. In Wotton, Mortimer J said that ‘it is well-established that the phrase ‘based on race’ in s 9 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’.
Furthermore, the activity does not need to be solely based on race. So long as race is ‘a factor’ leading to the detrimental action, it falls foul of s18 of the RDA.
Does the RDA require proof of intention to discriminate?
In Campbell v Northern Territory of Australia (No 3) [2021] FCA 1089 White J stated: ‘a motive or intention to discriminate is not an element of a contravention; Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56, (1989) 168 CLR 165 at 176; Waters v Public Transport Corporation [1991] HCA 49, (1991) 173 CLR 349 at 360; Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8 at 33‑34, 40‑41, although evidence of a motive or intention may be evidence that the conduct was engaged in for the requisite purpose’ [720(d)];
Standard of Proof
In Department of Health v Arumugan [1988] VR 319, 331 the court held that ‘racial discrimination is a serious matter which is not lightly to be inferred’. This statement implies that plaintiffs will need forceful evidence before a positive finding of fact can be made. In the RDA case, Ejueyitsi v The Commissioner of Police (Western Australia) (No 2.) [2015] FCCA 494 (WA) his Honour Lucev J quotes from the High Court in Neat Holdings Pty Ltd:
[There is a] conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449–50 per Mascon CJ, Brennan, Deane and Gaudron JJ (emphasis added).
There are three reasons why the standard of proof should not be very onerous in race discrimination cases involving the police.
Firstly, Neat Holdings clarifies that judges should not easily make findings in relation to behaviour that is out of the ordinary. However, racial discrimination is not ‘out of the ordinary’, like criminal conduct or fraud. To the contrary, racial discrimination is a standard police operational tool for determining suspicion and risk. (See Satzewich and Shaffir, 2009, Hopkins 2021). Furthermore data (described below) indicates that race consistently (and unlawful) influences police decision-making.
Secondly, in Qantas Airways Limited v Gama [2008] FCAFC 69 (2 May 2008) [133-136] Branson J describes that breaches of s9(1) of the RDA do not necessarily carry ‘moral opprobrium’ because act does not require a finding of purpose or intention behind the breach. Because breaches of the RDA can occur intentionally or unconsciously, a discriminatory act can be unlawful, while not necessarily carrying significant moral blame.
Thirdly, Branson J also notes in Qantas v Gama, that because race is only required to be ‘a factor’ in the decision it is not necessary to show it was we substantial or dominant reasons.
For these three reasons, once the underlying conduct is proven (i.e., an unjustified stop or a search) and the court is made aware of the social context of the impact of race on policing, through either taking judicial notice of it or the provision of evidence, a finding that a police stop was based on race should be a straightforward matter of inference based on the circumstances of the case.
What do we need to prove racial profiling in a court?
In the next section I discuss strategies for proving a breach of the RDA. Section 9(1) of the RDA does not require us to prove the person’s treatment was different because of their race through using a comparison with an actual or hypothetical other (ie white person). Section 9(1) of the RDA is a unique provision that allows courts to take a flexible approach to determining whether the impugned act was based on race (Zheng). Furthermore discrimination law expert Dr Alice Taylor argues that Australian lawyers should approach discrimination laws creatively, including through drawing on directions described in Canadian jurisprudence. In my view, in line with the flexible, creative approach outlined by Zheng and Taylor, the interpretation of s 9 (1) is highly compatible with the R v Brown correspondence test.
The R v Brown correspondence test requires us to demonstrate that the circumstances surrounding the stop/treatment correspond with the phenomenon of racial profiling.
It invites us to draw inferences of racial bias drawing on a full understanding the facts and their social context. In Australia, the courts have clarified that discrimination can be proven using inferences drawn from circumstantial evidence. In Anasis v Hume City Council (28 September 2020)[2020] VSC 620, Forbes J stated:
‘The Tribunal is not confined to acting on direct evidence. To confine consideration only to direct evidence would amount to an error of law. It is necessary for the decision makers to “address the circumstantial - or inferential - case that was put by the applicant”. (Ferris v State of Victoria [2018] VSCA 240 [23]).’
In Wotton v State of Queensland (No 5) [2016] FCA 1457 (5 December 2016), Mortimer J drew inferences of racial discrimination based on a detailed study of of police activities on Palm Island following the death of Mulrunji Doomagee at the hands of police. “[s]ection 9(1) is not just concerned with isolated and particular incidences of conduct against individuals, but can also apply to broader courses of conduct and events, which when taken cumulatively, indicate racially discriminatory treatment. This is important in clarifying that applicants need not point to multiple isolated incidents as each breaching section 9(1), but can rather refer to the broader context of that conduct to prove the breach.” (Alex Maschmedt, Human Rights Law Centre.)
Implicit in the R v Brown correspondence test is the requirement to prove two things.
1. Evidence of unreasonable/unjustified/unlawful/arbitrary behaviour by the police. This could be a failure to follow policy, an unjustified decision to stop someone, unnecessary directives, questions or commands, an intervention that would not usually occur, excessive force or a smoking gun (such as a racial epithet or admission) or an officer or operation that is focused on a racial group or an area highly frequently by a racial group; AND
2. An understanding of how the use of such police behaviour corresponds to racial profiling. This requires knowledge of the social context of policing and an understanding of the ways police frequently or routinely interact with racialised minorities and First Nations people.
Identifying Unreasonableness
The first stage of the correspondence test is to identify the unreasonableness involved in the police activity. In R v Brown, the circumstances that were identified to correspond to racial profiling included that a police officer drove next to Deroy Brown’s car to look at him and then pulled back; ran checks on Mr Brown through a mobile unit before pulling him over; made two sets of notes; lied about whether he could see into the car; stopped Mr Brown for speeding in circumstances when others were not stopped; and the fact that Mr Brown was driving an expensive sports car. While I provide some examples below, judges clarify ‘there are multifarious means by which racial profiling may become apparent. The catalogue in this highly fact-dependant context must remain open.’ R v Byrnes, 2019 ONSC 1287 (CanLII) [32].
· The police can offer no underlying observable crime for why they stopped a person and there is no underlying charge. David M Tanovich, ‘Using the Charter to Stop Racial Profiling: The Development of an Equality Based Conception of Arbitrary Detention’ (2002) 40(2) Osgoode Hall Law Journal 145.
· Police interest is triggered by noticing a racialised person driving an expensive car. R v Brown [2003] O.J. No. 1251
· The stop reason was so minor it would be unlikely an officer in normal circumstances would stop the person. R v Brown [2003] O.J. No. 1251
· The police were from a drug task force doing traffic stops; (i.e., the wrong task force to be doing traffic enforcement). Tanovich
· The police pull up to observe the driver before deciding to stop the vehicle. R v Brown [2003] O.J. No. 1251
· The police conduct a U-turn, crossing a line of traffic where there is no underlying offence. David Tanovich, The Colour of Justice: Policing Race in Canada (Irwin Law, 2006).
· Police called for back-up before the stop. David Tanovich, The Colour of Justice: Policing Race in Canada (Irwin Law, 2006).
· Police using an unjustified level of force or aggression. Phillip Ataba Goff et al, The Science of Justice: Race Arrests and Police Use of Force (Center for Policing Equity, 2007)
· Police questioned the passenger, David Tanovich, The Colour of Justice: Policing Race in Canada (Irwin Law, 2006).
· Police conducted a warrant search/other computer check before a stop.
· Police arrest the victim of family violence because the victim refused to call the police (due to distrusting the police).
What we can observe from this non-exhaustive list is that the circumstances that correspond to racial profiling are those where police actions are unnecessary, unjustified, unusual, arbitrary, excessive and/or unlawful.
I describe three (somewhat overlapping) categories of unreasonableness that could lay the foundation for a racial profiling claim:
An action that has no reasonable justification, or is not justified in law or policy. This could include the decision to pull over a vehicle without objectively reasonable grounds, failure to follow regulations about the maximum number of people in a police cell, etc.
An action that is harsh, cruel, excessive, inhumane, (such as handcuffing a person with a broken arm, or failing to call an ambulance, failing to investigate, using excessive force, investigating/charging the victim for an offence);
An action that is part of an oppressive or discriminatory operation (such as saturation policing in highly racialised areas). Evidence of a disproportionate racialised focus by an individual police officer, a station, or operation or by police in general.
It is worth noting that courts sometime conclude that a police action is reasonable by drawing on police ‘training and experience’ to explain what might otherwise be considered objectively unreasonable (see for eg Prior v Mole, The Queen v Gehan.) I suggest in both these cases decision-makers have failed to interrogate how police ‘training and experience’ is precisely the institutionalised mechanism through which the practices of racial and other forms of profiling are acquired and practiced by police.
Understanding how unreasonable behaviour corresponds to racial profiling
The second stage of the Correspondence Test requires us to develop an understanding about how the unreasonable police behavour corresponds to racial profiling. This requires an understanding of the social context of the police behaviour. There will be some judges and Magistrates who are aware of the way certain conduct corresponds to racial profiling. However, for many judges and Magistrates in Australia, lawyers will need to either call specific evidence, or ask the judge/Magistrate to take that knowledge on judicial notice.
Taking judicial notice of racism in Australia
In Koowarta v Bjelke-Petersen [1982] HCA 27 (11 May 1982) Murphy J took judicial notice of prevalence of racism in Australia stating as follows:
Australia's history since the British entry in 1788 to a land peopled by Aborigines has been one of racism and racial discrimination which persists strongly. The subsequent entry of non-British migrants in great numbers has meant that the racism and discrimination extends well beyond the Aborigines. [10]
To form this opinion he took into account numerous documents that I have copied at the end of this webpage. Since this decision there are numerous other documents that set out this context from which judicial notice can be drawn.
Evidence of Racism against Racialised people in Australia and Victoria in particular
Evidence from before 2000
In the Royal Commission into Aboriginal Deaths in Custody Commissioner Johnston writes:
13.2.3 It is my opinion that far too much police intervention in the lives of Aboriginal people throughout Australia has been arbitrary, discriminatory, racist and violent. There is absolutely no doubt in my mind that the antipathy which so many Aboriginal people have towards police is based not just on historical conduct but on the contemporary experience of contact with many police officer. (V2, p217).
In a 1990 report commissioned by the National Inquiry into Racist Violence, for the Human Rights and Equal Opportunity Commission, Chris Cunneen concluded:
There is a history [of complaints] relating to police practices in Redfern which dates back at least to the original establishment of the ALS in 1970. Many of these [complaints] relate to both discriminatory policing practices and the excessive use of force by police. Redfern has often been presented by the NSW Police Association and the media as potentially a 'no-go, area’. There [sic]a however evidence of over-policing rather than under-policing, both in the level of intervention the number of police used in particular situations, the extensive use of foot and vehicle patrols) and in the nature of the intervention (the use of particular squads such as the TRG) (Cunneen, 33)
Evidence of racial profiling and over policing since 2000 in Victoria
2005 - Systemic Racism as a Factor in the Over-Representation of Aboriginal People in the Victorian Criminal Justice System - Harry Blagg et. al.
2009 - An Effective System for Investigating Complaints Against the Police - Tamar Hopkins
2010 - Boys Do You Wanna Give Me Some Action - Bec Smith, Shane Reside
2015 - The More Things Change the More They Stay the Same - (FKCLC) Daniel Haile-Michael, Maki Issa
2017 - Monitoring Racial Profiling - (FKCLC) Stop Data Working Group
2018 - Don’t Drag Me Into This: Growing Up South Sudanese in Victoria - Kathryn Benier et. al.
2020 - You are going to be in the System Forever: Policing Risk and Belonging in Greater Dandenong and Casey - Leanne Weber
2020 - The Lives Behind the Statistics: Policing Practices in Aboriginal Literature - Crystal McKinnon
2021 - Predictive Policing and Young People - (FKCLC) Adele Ulbrick
2021 - Why we organised Melbourne’s Black Lives Matter Rally - Tarneen Onus-Williams et. al.
2021 - Litigating Racial Profiling, Examining the Evidence for Institutional Racial Profiling against African Australians in Flemington, Victoria - Tamar Hopkins
2021 - Litigating Racial Profiling, the Use of Statistical Data - Tamar Hopkins
2021 - Accurate Identification of the Predominant Aggressor, Family Violence Reform Interim Monitor
2022 - Victoria Police Handling of Complaints made by Aboriginal People - IBAC
2022 - Understanding Racial Profiling in Australia - (UNSW PhD) Tamar Hopkins
2022 - Gendered Injustice: The Policing and Criminalisation of Victim-Survivors - (Fitzroy Legal Service) Emma Russell et al.
2023 - Policing COVID-19 in Victoria - (IMCL) Tamar Hopkins, Gordana Popovic.
2023 - Report into Victoria’s Child Support and Criminal Justice Systems - Yoorrook Justice Commission.
2023 - Racial Profiling, Australian Criminology and the Creation of Statistical ‘Facts’: A Response to Shepherd and Spivak - Amanda Porter et al.
2023 - Working Together - Action Plan to End the Over-Representation of Particular Groups of Young people in the Criminal Justice System - Smart Justice for Young People.
2023 - Visit to Australia: Report of the Working Group of Experts on People of African Descent - UN.
2024- Do Australian Police Engage in Racial Profiling? - Tamar Hopkins, Gordana Popovic.
2024- When Cops are Criminals - edited by Veronica Gorrie.
2024 - Submissions to the Missing and Murdered First Nations Women and Children Inquiry - various.
The Yoorook Justice Commission Interim Report also contains contextual information.
The Koori History website is document resource established by Professor Gary Foley. Professor Chris Cunneen’s research can be found here.
Statistical Data on Racial Profiling in Victoria
(Understanding Racial Profiling in Australia. published as: Do police in Australia engage in Racial Profiling?)
In 2018/2019 Tamar Hopkins conducted a survey on 981 Victorian’s experience of being stopped and subsequently treated by police in Victoria. Below are some of the results of this survey.
Table 1 contains the results of a ‘Threshold Analysis’ that shows the odds at which particular racial groups are stopped for high discretion compared with low discretion stop in Victoria by police compared with white people. The Table shows that racialised people have 2.8 times the odds of white people of being stopped for a high discretion compared with low discretion stop by police. It further shows that Aboriginal/African/Middle Eastern/Pasifika people have 3.6 times the odds of white people of being stopped for a high discretion compared with low discretion stop. High discretion stops are those where the the police have observed no offence at the time of the stop and the vehicle is singled out for for police attention (ie not part of a group of vehicle being simultaneously checked).
Table 1 - Vehicle Stops in Victoria 2018/2019
Table 2 below shows the odds that different racial appearance groups experience particular police tactics compared with white people. (From a survey of Victorian drivers in 2018/2019.)
COVID-19 Fine data in Victoria (based on FOI police data)
In 2023, Inner Melbourne Community Legal released a report demonstrating racial profiling in issuing of COVID-19 fines.
Victoria Police Search Data from 2018, 2019, 2022, 2023
In 2024, the Centre Against Racial Profiling launched the The Racial Profiling Data Monitoring Project which contains findings of racial profiling by Victoria Police based on FOI’ed police data. The project found that police searches produced lower hit rates when they searched of African, Middle Eastern, Asian and Indian people than white people. (See Figure 3 below) This indicates that police are searching these groups with less reasonable grounds.
The Project also found evidence that First Nations, African, Middle Eastern and Pacifica people were more likely to be searched than white people. Figure 7 below examines racial bias in police searches using a ‘Census Benchmarking Analysis’. To access a full explanation of Figure 7 go to. https://www.racialprofilingresearch.org/census-benchmarking Please note that Figure 7 below assumes that Police record people with Italian and Greek background as ‘Middle-Eastern/Mediterranean’. If police however, record them as ‘Caucasian’ or ‘White’, then over-representation of Middle-Eastern appearing people in the search data is likely to approach 5 times that of White people. Because the contraband find rate recorded by police when they search Aboriginal and White people in 2023 is approximately the same, the gross over-representation of searches of First Nations people provides clear evidence of racial discrimination (racial profiling) in overall police operations. See discussion here.
In Victoria, judicial notice is defined in section 144 Evidence Act 2008. See Hamer and Edmond on Judicial Notice.
In the landmark 1997 decision R v S (RD), [1997] 3 SCR 484, the Supreme Court of Canada held that in assessing the credibility of witnesses, social context evidence is an essential ingredient in creating impartial decision-making [506,507]. To that end, L’Heureux-Dube and McLachlin JJ stated:
[A judge] must be taken to possess knowledge of the local population and its racial dynamics, including the existence in the community of a history of widespread and systemic discrimination against black and aboriginal people, and high profile clashes between the police and the visible minority population over policing issues. [508]
More recently, in R v Le (2019) SCC 34 the Supreme Court of Canada was required to determine whether a reasonable person of a racialised background was likely to experience a state of psychological detention when facing requests from the police. After surveying the social science research, the Court stated:
We do not hesitate to find that, even without these most recent reports, we have arrived at a place where the research now shows disproportionate policing of racialized and low-income communities. Indeed, it is in this larger social context that the police entry into the backyard and questioning of Mr. Le and his friends must be approached. It was another example of a common and shared experience of racialized young men: being frequently targeted, stopped, and subjected to pointed and familiar questions. The documented history of the relations between police and racialized communities would have had an impact on the perceptions of a reasonable person in the shoes of the accused [97].
In 2013 Federal Circuit Court RDA claim of Barnes v Northern Territory Police & Anor [2013] FCCA 30 Federal Magistrate Raphael, drew on his knowledge of the social context of the relationship between the police and Aboriginal people and some evidence that arose in the hearing in drawing a conclusion of racial discrimination. In this case Mr Barnes brought an RDA claim against Officer O’Riordan for pulling up outside his house and mouthing swear words at him. The Court decided that evidence of the relationship between the Barnes family and the police was sufficient to draw an inference that Officer O’Riordan’s offensive behaviour towards Mr Barnes (mouthing of swear words) was because of race:
While there is certainly no evidence that the principal reason for the act was Mr Barnes’ ethnic origin the inference can I believe be drawn from the evidence of what is known about the relationship between Mr Barnes and his family and the Tennant Creek Police that a part, if only a small but not a trivial or insubstantial part, of the reason for why he acted as he did was Mr Barnes’ ethnicity [41].
Federal Magistrate Raphael’s use of evidence of the relationship between the police and the community provided him with the social context needed to determine that the conduct was because of race. The judge found that 90 per cent of O’Riordan’s work was with Aboriginal people. He found that Mr Barnes was an Aboriginal man, known to be a serial troublemaker and complainer by the Tennant Creek Police. It was this relationship that led him to infer that race was a part of the officer O’Riordan’s reason for behaving offensively. The judge went on to award Mr Barnes $3500 in compensation.
Calling specific social context evidence
As an alternative to providing the court with documents from which to take judicial notice, it may be possible to prove the localised social context of racism in Australia through calling experts, researchers or local community members with lived experience or local knowledge to give evidence. In the 2024 Federal Court case Faruqi v Hanson [2024] FCA 1264, the court heard from three experts on racism and a number of impacted community members to assist it to understand the impact of racism on racialised people. I list some examples of experts who you could consider calling at the end of the page ‘Evidence’.
In addition to its use in understanding the phenomena of racial profiling through the ‘Correspondence Test’, there two other ways that social context data and statistical data might be able to be used to prove racial profiling in Australia.
Uses of social context/statistic data on racism:
Assists in proving that the police behaviour corresponds to racial profiling; (correspondence test) Effectively, the data provides a lens through which to interpret otherwise neutral evidence.
Arguably shifts the common law burden of proof to the police to prove that they were not engaging in racial profiling; (This approach has not yet been adopted in Australia).
By evidencing the everyday/normalised nature of racial profiling, such data lowers the cogency of the evidence required to make a finding of racial discrimination. For a useful discussion on the standard of proof in RDA claims see Jonathon Hunyor’s piece here.
Shifting the burden of proof
Generally the common law places the burden of proof on the party making the allegation. However there are at least two reasons why in discrimination cases, once the applicant has made an arguable claim, the burden should shift to the respondent. Court findings of discrimination are extremely rare. This is the case even when evidence of systemic racism exists.
Courts should shift the burden of proof where evidence exists of a systematic pattern of discrimination
Under section 8 of the Charter of Human Rights, everyone has the right to equal and effective protection against discrimination. In order to ensure effective protection against discrimination, courts should shift the burden of proof to the respondent once an arguable claim, or prima facie claim of discrimination has been made. See for eg: EU Directive 2000/43/EC, Art. 21 In the European Union, Courts will shift the burden of proof is when there is evidence of a systemic pattern of discrimination. In D.H v Czech Republic, European Court of Human Rights, 2007 data on systemic racism and the absence of a reasonable basis on which a decision was made was sufficient to create a prima facie case or an arguable claim. This was then used to shift the burden of proof to the respondent. This approached was adopted by the European Court of Human Rights in the 2024 case Wa Baile. In this case a African appearing man was subject to an identity check in Swizlerand for no reason other that he looked ‘suspicious’, as a result of looking away from the police, as he was on his way to work. The Court found that the State had not provided sufficient evidence to rebut the presumption of discrimination created by statistical evidence of discrimination.
2. Courts should shift the burden when there is unequal access to information
The second reasons to shift the burden of proof is when there exists unequal access to information. In racial profiling cases, the police will always have access to more information than the complainant. Peart v. Peel Regional Police Services, 2006 CanLII 37566 (ON CA) This is also a point made by Christopher Roberts in a 2020 article.
In Sharma v Legal Aid Queensland [2001] FCA 1699 (4 December 2001) [60], Kiefel J accepted that statistical evidence ‘may be able to convey something about the likelihood of people not being advanced because of factors such as race or gender.’ While this does not shift the burden to the respondent, it indicates that statistical data can form part of circumstantial evidence in the applicants case.
For more detail on these methods, please click on and read the link to this article:
Tamar Hopkins ‘Litigating Racial Profiling: The Use of Statistical Evidence’ 37:2 Law in Context, (2021).
Key cases include:
Shaw v. Phipps, 2010 ONSC 3884
Peart v. Peel Regional Police Services, 2006 CanLII 37566 (ON CA)
Peel Law Association v. Pieters, 2013 ONCA 396 (CanLII)
D.H v Czech Republic, European Court of Human Rights, 2007
Barnes v Northern Territory Police & Anor [2013] FCCA 30
R v Brown, (2003) Ontario Court of Justice
Also see Alan Zheng, ‘Campbell v Northern Territory - The Lingering Uncertainty over Comparators and Comparisons in the Racial Discrimination Act’ on AUSPUBLAW (23 March 2022)
And: Zheng, Alan ‘Redressing State-Inflicted Racial Violence: A Federal Discrimination Law Remedy for Deaths in Custody after Wotton’ [2023] UNSWLawJl 2;
In Summary: The correspondence test does not require proof of a racist motive. (Neither does the RDA). It simply infers it in certain circumstances. This inference is possible because implicit in the test is the judicial awareness of the racialised social context of the unreasonableness. This includes an understanding of the interrelationship between racial profiling and its production of unjustified police decisions.
Unless there is a ‘smoking gun’, such as an admission or racialised slurs or comments, R v Dudhi, 2019 ONCA 665 [62] the ‘correspondence test’ requires two pieces of information for a court to make a determination of racial profiling. The first is an assessment about whether the police were ‘unreasonable’ in their policing of the racialised individual. The second is an understanding of the phenomenon of racial profiling: that is information about the social context of the interaction and, in particular, the way racialised people are disproportionately treated as suspicious, untrustworthy and dangerous by police.
Applying social context data in Australian cases
In the following Australian cases, I explore how social context evidence of racism could have been used by the litigants.
RDA claims
In Ejueyitsi v The Commissioner of Police (Western Australia) (No 2.) 2015, Vincent Ejueyitsi brought a claim of racial discrimination under the Racial Discrimination Act 1975 (Cth), including a claim of racial profiling against WA Police in relation to two vehicle stops, his subsequent treatment and a personal search conducted at the police station after his arrest. Mr Ejueyitsi is African-Australian. The two distinct traffic stops analysed in the judgement occurred within a number of months of each other. On each occasion, police put Mr Ejueyitsi’s car registration details through a mobile police data base while they were driving. On both occasions, the mobile database revealed that the car was registered to a person who was not licensed to drive. Federal Court Judge Antoni Lucev found that because the police had a reasonable and lawful basis to pull over the vehicle, Mr Ejueyitsi was not a victim of racial profiling.
However, neither the court, nor the unrepresented applicant, explored whether the police decision to enter Mr Ejueyitsi’s details into the police mobile database involved racial profiling. As in R v Brown, police on both occasions denied noticing that Mr Ejueyitsi was black until they had pulled him over. However, a series of issues went unexamined. How did the police select registration numbers to enter into their database? What led them to decide to commence an investigation into Mr Ejueyitsi’s registration details? Were police looking for ‘suspicious individuals/vehicles’? Unless police were using Automatic Number Plate Recognition technology, it is inconceivable that they entered the details of every vehicle they observed on their patrol into their database. It is far more likely they were responding to cues, or hunches. In this case, given the use by police of race as a proxy for suspicion, (Janet Chan, Changing Police Culture: Policing in a Multicultural Society (Cambridge University Press, 1997) 169–70) it is likely that their decision to investigate Mr Ejueyitsi was due to the fact that he was an African man driving a luxury car: a Hyundai Sonata in the first stop and a Mercedes-Benz in the second. In spite of their denial, it seems more likely than not that Mr Ejueyitsi’s race was a factor in the police decision. This analysis reveals the importance of stepping slowly through each decision-making point when police determine to stop a vehicle. Furthermore, it points to an issue raised in the Canadian case of R. v. Dudhi, 2019 ONCA 665 – that if race was a factor in the decision, subsequently established reasonable grounds will not render the stop lawful: Brown v Durham Police Force (1998) 131 CCC3d 1 (Ont CA). Recent data from the WA Police provides evidence of a pattern racial bias in police stops. Geoffrey Barnes, ‘Lifetime Traffic Penalty Comparison, Briefing Note’ (WA Police, released under FOI to The Guardian Australia, 13 February 2019)While not available at the time of the case, this data provides additional social context evidence of a pattern of racial profiling in WA.
Raising racial discrimination in tort claims
To date, racial discrimination, such as a breach of the RDA has not been pleaded as part of a reported tort claim in Australia. But doing so would increase the visibility of the way race impacts the formation of suspicion. Tort claims are currently structured to make racism invisible. This means that in cases where racism is present, judges are not required to make findings of it as part of the claim. However, there is no reason why racial discrimination, such as a breach of the RDA, should not form part of tort pleadings. Section 26 of the RDA states that unlawful racial discrimination is not an offence. It is silent, however, on whether unlawful discrimination creates a civil liability. This contrasts with, for example, the Equal Opportunity Act 2010 (Vic) s 188, which states that unlawful discrimination does not create a civil or criminal liability. A similar provision – stating that no criminal or civil liability is created – exists in the Commonwealth Disability Discrimination Act 1992. Consequently, it is arguable that breach of the RDA gives rise to an implied tort claim for breach of statutory duty. See arguments for doing so in Jane Stapleton, ‘The Golden Thread at the Heart of Tort Law: The Protection of the Vulnerable’ (2003) 24 Australian Bar Review 135; Rakhi Ruparelia, ‘I Didn’t Mean It That Way’ (2009) 44 Supreme Court Law Review 83.
It is also arguable that there exists a common law tort of racial discrimination. In Constantine v Imperial Hotels, Ltd [1944] KB 693, the refusal of an inn to provide a person accommodation because of their race created a liability in tort. This case was referenced but the issue not decided in the Australian cases of Commissioner of Police v Estate of Russell & Ors [2002] NSWCA 272; (2002) 194 ALR 319 and Webb v State of Queensland (Queensland Health) [2005] QADT 26 (3 October 2005).
Furthermore, racial discrimination breaches the state’s obligations under the ICCPR and ICERD. Separately, it is possible to argue that by engaging in racial discrimination, the police are not acting lawfully when they stop, search, arrest, use force or question someone. This type of determination is highly relevant to a tort claim against the police. In all of these ways, race can be made relevant to tort claims in Australia. I will now examine four tort claims where racial discrimination could have been part of the pleadings of the tort claim.
In Myer Stores Ltd v Soo [1991] 2 VR 597 a common law tort claim for false imprisonment in Victoria, security guards wrongly identified an Asian man as being the person captured in video footage two days earlier at a Myer department store stealing a crystal ball and a salt and pepper shaker. The Victorian Supreme Court of Appeal found that there was no basis from the footage to identify Mr Soo. It found that both Myer Stores, and the police in subsequently detaining him for questioning and then in obtaining a warrant to search his home for the items, were engaged in false imprisonment. The evidence was that Mr Soo was an Asian man and the person on the footage may have been an Asian man. In this case Myer Stores employees, the police and a magistrate who subsequently authorised a search warrant for the items at Mr Soo’s house all permitted the detention and investigation of Mr Soo on an extremely poor suspicion threshold. This element of unreasonableness, coupled with evidence at the time of heightened suspicions against Asian people corresponds with the phenomena of racial profiling: Rob White et al, ‘Ethnic Gangs in Australia: Do They Exist? Report No. 1 – Vietnamese Young People’ (Australian Multicultural Foundation, 1999); Emma Field, ‘Former Victorian Police Asian Squad Detective Warns Farmers over Foreign Labour’, The Weekly Times (Victoria, online, 20 May 2014).
Moses v State of New South Wales (No 3) [2010] NSWDC 243 was a common law tort claim involving the police acting upon a very limited suspect description. The police were searching for an alleged bag snatcher who was described as being an Aboriginal man of a certain height and age. Based on this description, eight undercover police arrested an innocent, but apparently Aboriginal, youth, David Moses, who identified as being of Jewish and Filipino heritage, using a high degree of force. A witness describes Mr Moses being hit and punched on the head, the sides and the back, and the arresting officers telling him ‘You’re fucked, you’re going to gaol for six months.’ The witness, Mr Kawenga, describes running from the police before being stopped and kneed in the face and arrested himself. He, too, was innocent. Moses sustained facial and chest injuries from the incident.
Justice Gibson of the NSW District Court found that the arrest and use of force against Moses was not reasonable. Gibson J stated that the law ‘does not entitle police to stop, search or arrest any person who has a prior criminal record, or is from the same racial background as an offender; the information relied upon must have “some probative value”’.[227] While Gibson J was not asked to rule on whether the arrest of David Moses was racial profiling, the implication of his decision is that the unjustified arrest was triggered by race. If Moses’ lawyers had added a breach of RDA claim to the common law tort pleading, racial profiling may have been a finding of this court and led to additional damages.
The final tort claim I examine is Exton v State of NSW [2017] NSWDC 83. In this case, police officer Chapman ordered Aboriginal man Mr Exton to leave the back seat of a vehicle with no reasonable basis on which to make that order. Mr Exton reluctantly and resentfully started to comply with this unlawful order and was subsequently violently removed from the vehicle, assaulted, handcuffed and pepper sprayed. The District Court of NSW awarded Mr Exton $38,072 in damages for assault, battery and false imprisonment as well as awarding aggravated and exemplary damages. I contend that the facts in this case could have led to an inference of racial profiling. Following the line of reasoning in the Canadian cases, it is possible to argue that the historical and contemporary expectations by police of Aboriginal compliance and docility explains the extraordinarily aggressive police force when those expectations are not met Abbott v Toronto Police Services Board, 2009 HRTO 1909.
Furthermore, there is substantial social context evidence of aggressive police treatment and over-policing of Aboriginal people in Australia. Chris Cunneen, ‘Aboriginal Police Relations in Redfern: With Special Reference to the “Police Raid” of 8 February 1990’ (Australian Human Rights Commission, 1990); Chris Cunneen, Conflict, Politics and Crime: Aboriginal Communities and the Police (Allen & Unwin, 2001); Laura Murphy-Oates, ‘“Enough Is Enough”: Video of Police Slamming Indigenous Boy Face-First to Ground Rekindles Father’s Rage’, The Guardian (online, 20 January 2021)
This framework leads us to understand Exton’s unlawful and aggressive treatment by police as corresponding with the phenomenon of racial profiling. Additionally by pleading racism, a higher award may have been possible and the systemic issue of the unnecessary and excessive policing of Indigenous people becomes a focus for the court.
Raising racial profiling in criminal cases
Proving the existence of racial discrimination or a breach of the RDA makes visible a form of unlawful conduct that is very relevant to criminal matters, too. Proving that police have engaged in racial discrimination has three potential effects on a criminal matter. Firstly, evidence obtained in consequence of racial discrimination can be excluded under s138 of the Evidence Act. Secondly, proving racial discrimination can mean that the police decision to search was not made on reasonable grounds because police have impermissibly considered race as a factor in their decision-making. Thirdly, racial discrimination is a ground of unlawfulness that means police are not acting in the execution of their duty. To date, there are no finding of racial discrimination in reported criminal decisions in Australia.
R v Armstrong (1989) 53 SASR 25 is a South Australian criminal case involving a successful appeal against conviction of receiving stolen goods. South Australia is a jurisdiction in which police do not need a reasonable suspicion to stop a vehicle for road safety purposes. (Police v Prince (Unreported, Supreme Court of South Australia, Bleby J, 26 February 1998): police in South Australia have the power to stop vehicles without reasonable suspicion for the purposes of the Road Traffic Act 1961 (SA).) In this case, police stopped a car with five men, four of whom were Aboriginal, on the outskirts of Port Augusta. The police said they did not recognise the car, the occupants were not locals and that ‘the police like to know who’s just passing through our town’. They claimed it was ‘just a routine check’. King CJ found these reasons to be inadequate, as it was inconceivable that the police stopped all people they did not recognise. He said:
The basis upon which the car was stopped is important. If it was stopped for no better reason than the racial characteristics of the occupants or the absence of an air of affluence about them or about the car, the action of the police would have to be characterised as high-handed and arbitrary. Harassment on such grounds could not be tolerated. [28].
Because the legality of the stop was not an issue in the case, and no issue of racial profiling or pretext stops had been raised at trial, the appeal judge did not rule on the stop’s legality. However, in a step that closely approaches the making of adverse findings about the police conduct the judge did say, ‘I think there is sufficient material … in the evidence to justify some inquiry by the Commissioner of Police into the circumstances in which the car came to be stopped.’ Cox J, who also determined the appeal, agreed, saying ‘I also express my concern about the way the car was stopped and searched. The matter should be investigated.’ Unfortunately, if the judges did not make findings of racial discrimination, there is minimal chance an internal police investigation will do so. However, it is important for our purposes, to consider whether a finding of racial profiling would have been possible had R v Brown been applied. In this case, a car containing four Aboriginal men is stopped by police for reasons not considered adequate by the judges. The boot of the car is subsequently searched (by consent) and a microwave oven spotted inside. It is likely, if asked, the officers would deny race impacted on their decision-making. In my analysis applying Canadian common law principles, the facts disclose a series of unreasonable police actions. In the context of heightened police suspicion of Aboriginal people in Australia, these circumstances could be said to correspond to the phenomenon of racial profiling. The stop in this case is a pretext stop, as the police immediately question the driver about matters not related to road safety and then look inside the boot. Furthermore, the judges fail to consider whether the defendant was under a psychological detention when he ‘consented’ to the police looking in the car boot. Drawing on Canadian common law concepts of pretext stops, psychological detention and racial profiling, would have been possible for the court to conclude that this was a racially motivated pretext stop.
In the defended criminal hearing of Nguyen v Elliot (Unreported, Supreme Court of Victoria, Hedigan J, 9 February 1995) two undercover police officers conducted surveillance of a group of young Asian men sitting on a park bench in Footscray, Melbourne. Young men came and went from the gathering. The police described one of the young men, Thuat Thu Nguyen, as appearing nervous. The police did not witness any packages changing hands; however, they approached him and asked him if he had any drugs. Nguyen said that he was sick of being searched and swore at the police. Police asked him to accompany them to a laneway. Nguyen then actively resisted the attempt to search and detain him and was assaulted (requiring stitches). The police placed him in a police van and took him to the Footscray Police Station. The police then charged him with resist and assault police and intentionally cause injury (to one of the police officers). The magistrate hearing the original matter found that the police did not have a reasonable suspicion that Nguyen had drugs on him but, instead, were merely curious. Rather than a case involving application to exclude evidence, the issue the defence raised was whether the police were acting lawfully when Thuat Thu resisted and assaulted them. The appeal court found that without a reasonable basis on which to search or arrest Thuat Thu, his resistance was lawful and the police were not acting in the execution of their duty. The poverty of the excuse used to detain Thuat Thu provides evidence that Mr Nguyen’s racial background was an important factor in the decision to detain him. Furthermore, the police commented that he used ‘martial arts’ against them and spoke ‘in a foreign language’. This is further evidence of stereotypical thinking by the police. By failing to identify race as the factor the police were using to select Thuat Thu for scrutiny, this case, despite the importance of its reasoning in other respects, continues the line of racially blind legal reasoning in the Australian legal system. The failure to condemn the use of race by police in decision-making leaves the underlying practice of racial profiling untouched. From a legal perspective, the identification of racial profiling in the criminal claim would have added a ground of unlawfulness to the claim that the police were not acting in the execution of their duty.
The final case in this section is Prior v Mole [2017] HCA 10. In this case the High Court examined whether Constable Blansjaar had formed a reasonable belief that Aboriginal man, Anthony Prior, was drunk and likely to commit an offence under s128 (1)(a) of the Police Administration Act (NT). Mr Prior, who had been drinking with a number of other Aboriginal men in a public place outside a bottle shop when the police drove past, gave the officers ‘the bird’ and they did a U-turn and stopped next to him. The officers emptied Mr Prior’s container of wine and, after Mr Prior said ‘You are all cunts’, decided to arrest him. In order to arrest him, they had to form the belief that he was (a) drunk and (b) likely to either (i) cause harm to himself or others; (ii) intimidate, alarm or annoy others; or (iii) commit an offence.
The Court accepted that Officer Blansjaar personally held the belief that Prior would commit an offence. The question for the Court was whether this belief was based on reasonable grounds. In forming the view that the officer had reasonable grounds for his belief, Nettle J one of the judges in the majority, drew support from the US Supreme Court decision in Terry v Ohio. Nettle J stated:
Granted, experience may sometimes breed prejudice, which is regrettable … Prejudice is irrational and does not afford reasonable grounds for decision- making, and in the case of a police officer it is unacceptable. But knowledge born of experience is not irrational - it is empirical – and, depending on the experience of a police officer, may properly comprise a significant part of the officer's crime detection and prevention armoury … Accordingly, where a police officer encounters circumstances of a kind which, by reason of his or her previous experience, he or she rationally associates with an identified class of committed or anticipated offending, the occurrence of those circumstances may reasonably lead the officer to conclude that there is a significant probability of that identified class of offending taking place. As was observed by the United States Supreme Court in Terry v Ohio ‘although little weight can be given to an officer’s “inchoate and unparticularized suspicion or ‘hunch’” due weight must be given to the specific reasonable inferences which a police officer is entitled to draw from the facts in light of his or her experience’. [71](emphasis added).
Nettle J’s reasoning raises a number of issues. Nettle J places favourable reliance on the US Supreme Court decision in Terry v Ohio. This case, however, was widely cited as laying the legal framework for New York’s discredited stop and frisk program and for effectively legalising the harassment of African-Americans (racial profiling) Brian L Withrow and Jeffery Doug Dailey, ‘Racial Profiling Litigation: Current Status and Emerging Controversies’ (2012) 28(2) Journal of Contemporary Criminal Justice 122.
In Terry v Ohio, the US Supreme Court granted authority to police to stop and frisk a person on the basis of reasonable suspicion arising from their training and experience instead of probable cause. While judges in Terry made strong statements about the harm of forming suspicions based on race, Terry v Ohio (1968) 391 US (1) per Warren CJ, 12, 14, 15, the reality is that the race of the suspect becomes operable when officer ‘experience’ rather than objective facts is made relevant to the formation of suspicion. ‘Suspicious’ classes of persons – whether so classified because of their profession (e.g., sex-workers Shaw v Keyte & Ors (Unreported, County Court of Victoria, Ravech J, 15 April 1997), status (e.g., concession card holders, Le v The State of NSW [2017] DCNSW, hire car drivers R v Watson [2017] QSC 4) or racial identities (African, Indigenous, Asian) – can provide a basis for suspicion when officer experience is treated as relevant: Paul Quinton, ‘The Formation of Suspicions: Police Stop and Search Practices in England and Wales’ (2011) 21(4) Policing and Society 357, 364.
Futhermore, deferring to police experience, ignores research that clearly identifies the way race is used by police as a driver to engage in further investigation: Chris Cunneen, Conflict Politics and Crime, Aboriginal Communities and the Police, (Allen & Unwin, 2001) 1-16, Julian R Murphy, ‘Unreviewable Police Powers? The Reliance on Past Policing Experience in Prior v Mole’ (2017) 8(29) Indigenous Law Journal 18. Justice Nettle’s and the Terry position contrasts with the UK’s PACE Code A, which states that reasonable suspicion can never be supported on the basis of generalisations or stereotypes: UK Home Office, ‘PACE Code A’ effective at 12 March 2015 [2.2B].
A second point about Justice Nettle’s reasoning set out above is his description of officer experience as ‘empirical’. This language elevates police bias developed on the job to a quasi-scientific status, potentially legitimising statistical or rational racism. While Nettle notes that prejudice is ‘regrettable’, this officer’s experience was not interrogated for racial bias. A police officer’s interpretation of a particular event can be influenced or distorted by racial bias. Any racial bias held by Blansjaar, or generated by his everyday practices, was left unexamined, partly as a result of it not being raised at trial in cross-examination. Suppose, however, that Blansjaar’s professional experience was 12 years of continuous, everyday racial profiling. This continuous targeting of Aboriginal people creates ‘knowledge born of experience’. By deferring to past experience, courts risk legitimising longstanding racist practices.
The majority decision in Prior v Mole is a good example of the way police practices in Australia exert influence on judicial thinking and the way judges defer to police experience. Australian judges are not isolated in this regard. Nettle J views officer training and experience as empirical (i.e., scientific), [71] while English judge Lord Eaton in Gillan and Quinton v The United Kingdom ECHR (2010) Application (4158), describes it as ‘intuition’. Either way, these judicial members view police decision-making as beyond the comprehension of a court. This, according to Prior v Mole’s sole dissenter, Justice Gageler, is unsatisfactory. Gageler J argues that it is the role of the court to review the legality of police activities and not leave this determination to the police.[27] He sets out a three-stage test to assess reasonable belief by a police officer:
1. Did the officer hold the belief?
2. What were the objective circumstances that this belief was based upon?
3. Do the objective circumstances provide a sufficient foundation for the reasonable person [including the Court] to form a belief?[25-27].
In answering questions 2 and 3, Gageler cautions strongly against judicial deference to police officer opinion on the reasonableness of their own actions:
[T]his is not an occasion on which a court can be justified in giving weight to the opinion of the repository whose exercise of power is the subject of judicial review … That the member, as an experienced member of the Police Force, might have thought that his belief was reasonable is not to the point.[27]
Gageler J reminds us that it is reference, not to experience, but to objective, identifiable facts that a court must use in reaching a conclusion about whether there is a sufficient foundation for an officer to arrest. This very much accords with the European Court of Human Rights decision on appeal from the House of Lords in Gillian and the UK’s PACE Code A.
Gageler J found that while the arresting officer may have had a hunch, it was unreasonable to believe that Anthony Prior was likely to commit a future offence or intimidate others, for two reasons. Firstly, Gageler J reasoned that Mr Prior’s language was only directed at the police, not members of the public. Once police left, the language would not continue.[39-40] There was no evidence, until the police arrived, that Mr Prior would have caused offence to anyone. For example, the police were not responding to a complaint when they arrived. [122, 124].Secondly, he reasoned that Prior would not have been able to purchase more liquor because he was drunk and it would be an offence for an outlet to serve him. [66] Alternatively, he would have had to organise someone who was not intoxicated to buy it for him. Both of these require acts of illegality on the part of other people, before Mr Prior would have been able to commit this crime. [66].
The court determined it could not take race into account because questions about racism had not been put to the police officer at trial. However, assuming Blansjaar would have denied that race played a part in his decision, the arrest of Anthony Prior contains sufficient facts for an inference to be made that race influenced the decision to stop and the subsequent and escalated decision to arrest. The police stop to deal with an Aboriginal man after he shows them a sign of disrespect. After the police prevent him from drinking by pouring out his wine, he shows them a further sign of disrespect by calling them ‘cunts’. Mr Prior has failed to show the respect required of him in the ‘masculinity contest’ on the streets. The police take no steps to de-escalate the situation. Prior’s disrespect leads to arrest. This is not a case about crime control, as there were others drinking on the street. This is a case about the police winning a power contest over Anthony Prior, in a situation where, at least in the view of dissenting judge Gageler, the exercise of power is unreasonable.
In Abbott v Toronto Police Services Board, 2009 HRTO 1909, the Ontario Human Rights Tribunal explained how, both historically and into the present day, police expect black people to ‘know their place’[45] and behave with docility and compliance. The Tribunal noted that police tend to ‘impose harsh consequences’ on those who do not meet their expectations. [46]. It is possible to characterise Blansjaar’s harsh response to Anthony Prior as a consequence of Mr Prior’s failure to meet his expectation that Aboriginal people should put up with and comply with the routine intervention of police in their lives.
This could have been an important case to present evidence about the routine and unnecessary interference of police in Aboriginal people’s lives. This social context evidence would have supported a finding of racial profiling in this particular case.
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Documents used by Murphy J in taking Judical Notice:
Annual Reports of Commissioner for Community Relations, especially Annual Report 1978, Ch.5, Discrimination in Queensland, pp. 9-22.
Australian Law Reform Commission Discussion Paper no. 17, Aboriginal Customary Law - Recognition? 1980.
Bandler, Wacvie (1977).
Berdoukas, et al., Content Analysis of N.S.W. Primary School Social Studies
Textbooks with respect to the Development of Racial Attitudes in Children (1970)
Brown, Hirschfeld and Smith, Aboriginals and Islanders in Brisbane, Australian Government Commission of Inquiry into Poverty (1975).
Coombs, Kulinma - Listening to Aboriginal Australians (1978).
Eggleston, Fear, Favour or Affection (1975).
Evans, Saunders and Cronin, Exclusion, Exploitation and Extermination: Race
Relations in Colonial Queensland (1975).
Foley, "Black Queenslanders on Reserves - What Laws do They Want?" (1978) Legal Service Bulletin 3, p. 97.
Gale and Brookman, Race Relations in Australia - The Aborigines (1975).
Gilbert, Because a White Man'll Never Do It (1973).
Gilbert, Living Black (1977).
Hunt, "Aboriginal Women and Colonial Authority", in In Pursuit of Justice;
Women in Australia 1788-1979, Mackinolty and Radi, eds. (1979) p. 32.
Kalokerinos, Every Second Child (1974).
Lippman, Words or Blows: Racial Attitudes in Australia (1973).
Malezer, Foley and Richards, Beyond the Act (1980).
Nettheim, Outlawed - Queensland's Aborigines and Islanders and the Rule of
Law (1973).
Nettheim, Victims of the Law - Black Queenslanders Today (1981).
Parker, "Social Agents as Generators of Crime" Case Study: Aborigines in Western Australia (1974)
Report on Aboriginals and Torres Strait Islanders on Queensland Reserves, Senate Standing Committee on Constitutional and Legal Affairs (1978).
Reynolds, The Other Side of The Frontier (1981).
Rowley, Destruction of Aboriginal Society (1970).
Rowley, A Matter of Justice (1979).
Ryan, The Aboriginal Tasmanians (1981).
Stone, Aborigines in White Australia: A Documentary History of the Attitudes
Affecting Official Policy and the Australian Aborigines 1697-1973 (1974).
Taft, Attitudes of Western Australians Towards Aborigines in Attitudes and Social Conditions (1970).
Tatz, "Aborigines: Equality or Inequality", (1966) Australian Quarterly, p. 38.
Torry, Double Jeopardy - Black and a Woman (1975).
Walker, My People (1976).
Watson, "Black on Black", in Future Directions 1980 Conference Report, Henry and Thomson, eds. (1980) p. 142.
Women's Health Conference Report 1975, Health, 25, p. 4. (at p243)