Your Rights if Racially Profiled by Police

Australia is not immune to issues relating to racism. And Police Officers in the States and Territories of Australia are not immune to racial profiling.

Just over one year ago, Victoria Police broke a man’s arm when they arrested him, noting that he ‘looked Middle Eastern’. While the parallels between the deaths of George Floyd in the US and David Dungay Jr right here in Sydney are striking.

And that’s not to mention the 434 Indigenous deaths in custody since 1991.

We’ve written this blog post in support of the (incredibly important) Black Lives Matter and Aboriginal Lives Matter movements.

We’re going to outline what to do if you are racially profiled by police while you’re driving in Sydney and NSW. If you’re from another state, you might want to check your local laws since they do differ state-by-state.

Racial Profiling: what is it?

Racial profiling is where police officers use someone’s race or ethnicity (and skin colour) as a basis for their suspicion that a person has committed a crime.

It is unfair. It is racist. And it is unfortunate that it is still happening today.

In fact, statistics show that Indigenous drivers are more likely to be fined by police in WA than they are by traffic cameras. Since traffic cameras aren’t capable of bias, these statistics are fairly telling.

So, what rights do you have if you are pulled over by the police?

Before we dig into your rights, remember: you don’t need to memorise them all.

You have every right to ask the police officer who has pulled you over whether you legally have to comply with any requests they might make.

Bear in mind: being impolite isn’t an offence, but it certainly helps if you remain civil. Police are only human and aggravating the situation is rarely helpful. .

When can you be pulled over by police in NSW?

Police don’t have to suspect you of doing anything wrong to pull you over, so they are within their rights to stop anyone (regardless of whether they’ve seen you commit a traffic or other offence).

This is largely due to their prerogative to conduct ‘random breath tests’.

If a police officer signals for you to pull over, follow those directions (even if you believe it’s only due to your race).

There are significant penalties in NSW if you speed away from a police officer – in fact, you can be put in prison for up to 3 years and your driving licence can be suspended for up to 3 years too! (Read more here)

Identifying yourself to police while driving

If asked, you must tell the police your name and address if you are driving or supervising a learner driver. You also have to give your driver’s licence to the police, if asked. Driving without your licence is an offence – so you might receive a fine if you can’t show them. (Read the law here)

Police can ask you to adjust or remove facial coverings for the purpose of identification.

Passengers must also tell police their names and addresses if the vehicle is suspected of being used for a serious offence. If not, your passenger doesn’t have to identify themselves to the police.

Your rights if you’re pulled over for a breath test

It’s an offence to refuse to provide a breath sample for a random breath test. And the penalties for refusing to provide a sample are often worse than if you were charged with high-range drink driving.

It’s usually worthwhile to just submit to the breath test and deal with the consequences – with an experienced DUI lawyer on your side to assist.

Naturally, you’ll still need to identify yourself when asked also.

Speeding Police Car — Image by NSW Police

Police search: you and your car

Police can search you if they suspect you are carrying:

Stolen goods
Prohibited drugs
An item used in a serious crime
Knives and other weapons
Laser pointers

They can search you and your car if they suspect your car:

Was used in connection with a serious offence
Contains any of the above items.

Police can also search your car if they suspect someone in the car is wanted for arrest.

The suspicion the police hold must be reasonable. The colour of your skin is not a reasonable ground for a search!

If Police are planning to search your car, be sure to ask whether it’s a search on any lawful grounds. If not, you don’t have to provide consent to a search of your person or your car.

Call a lawyer if you are arrested

If you are arrested, the police should give you a document that tells you your rights.

Other than your name and address, you don’t need to answer any questions the police ask. You have a right to ask for a lawyer and you have the right to remain silent.

Tips if you think you’re being targeted by police because of your race or ethnicity

Ask why you’ve been stopped.
Ask the police officer for their name and station. If they are in plain clothes, they should provide you with ID (and a chance to see it) to prove they are a police officer – though they don’t always have to.
Consider whether filming your interaction with the police will help. It is not an offence to film police in public in NSW – just remember to turn off your car first!
Say that you don’t consent to any form of search.
You are allowed to complain to the Human Rights Commission, the NSW Ombudsman, and your lawyer