Racial bias by police has been spotlighted overseas by protest movements such as Black Lives Matter. But does it exist in New Zealand? Nicholas Jones investigates.

Police had cut through a carpark to avoid nearby traffic lights when they noticed the Mazda Demio.

What happened next would go all the way to the country's second highest court, lead to accusations of racism and the dismissal of an apparently straightforward drugs charge.

The van stopped, and the driver's window rolled down. "Hey, what are you up to?" an officer called out to a young man walking to the car, whom he later described in court as a "large Polynesian male".

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When there was no reply, the licence plate was checked and returned no flags. Three officers from the downtown Auckland unit approached the car, by now blocked in.

One spoke to another man in the driver's seat and, seeing a grey craft knife in the inside pocket of the car door, initiated a search of the vehicle.

In the footwell of the driver's side was a bag. Inside that, an M&M container, and inside that, 1.5g of cocaine. The driver's Saturday night ended with a charge of possessing a class A drug for supply.

His lawyer, Maria Pecotic, argued at a pre-trial hearing police had no basis for approaching the tidy, registered and warranted vehicle.

They also said the craft knife was either in the boot or glovebox, and said the car door was not opened voluntarily. There was also a ready explanation for the knife – the driver was studying quantity surveying and worked for a construction firm.

In cross-examination, Pecotic told the officer: "You noted a dark-skinned male sitting in the driver's seat and watched a Polynesian male getting into the passenger seat and that was enough to raise a suspicion to want to search the car."

Lawyer Maria Pecotic argued her client and his friends were approached because of their race. Photo / Jason Oxenham
Lawyer Maria Pecotic argued her client and his friends were approached because of their race. Photo / Jason Oxenham

The constable rejected that, pointing to the behaviour of the man who didn't respond to his initial query. He "definitely looked like he didn't want to talk to us". The area was the subject of recent car crime.

Auckland District Court Judge Jonathan Down preferred the police version of events and ruled the inquiry was lawful and proportionate. Police are entitled to make inquiries of people in public, he noted, so long as those are reasonable, fair and respectful.

The Court of Appeal

Pecotic and Golriz Ghahraman – who is now an MP and the Green Party's police and corrections spokeswoman – appealed. Justices Helen Winkelmann, Joseph Williams and David Collins heard the case. Williams delivered the judgment, which was released to the Herald on Sunday.

The New Zealand Bill of Rights Act prohibits discrimination on the grounds of a person's race, colour and ethnic or national origins. Those protections must be applied in the real world, where racial bias is hidden in "unspoken and even unconscious" individual attitudes, the justices noted.

"There is ample research which shows that unconscious bias exists, though (for those not negatively affected) it is rarely obvious and easily overlooked."

Golriz Ghahraman helped take the case to the Court of Appeal. She has since become a Green Party MP. Photo / Doug Sherring
Golriz Ghahraman helped take the case to the Court of Appeal. She has since become a Green Party MP. Photo / Doug Sherring

A police internal survey of frontline police was cited that found racially biased attitudes in a minority of officers. Although the study was more than 15 years old, the criminal justice picture for Māori and other minorities had in some instances worsened, the court stated.

Research in the United States, United Kingdom and Canada suggested similar problems, and that police stop-and-search discretion "is a particular area where discriminatory attitudes and outcomes are apparent".

"Racial bias finds expression in policing as it does in other parts of the community."

No ruling was made on whether police approached the Mazda because of the suspects' race. However, the judgment found "a proper foundation" for the allegation – essentially ruling it was arguable.

"He was a member of the public walking towards a car in a carpark. That is what one would expect of a member of the public in such a place ... this was no polite inquiry of a passing citizen."

The district court had focused on the manner of the police inquiry, and not the reason for it. The officer should also have asked the driver why he had a craft knife before deciding there was no reasonable excuse and initiating a search.

"This question would undoubtedly have elicited the response, 'I use it in my work as a quantity surveyor'."

'You are free to go'

The matter was referred back to the district court and charges were dismissed after a re-hearing in April last year.

Taking another look at the case, Judge Down found the initial question of, "Hey, what are you up to?" was loaded and indicated suspicion, and agreed with the higher court that the failure to ask about the craft knife had led to a breach of rights.

He accepted the officer's statements he was not motivated by race. However, there was no good objective reason to approach the car and challenge the driver.

Why police approached a group of friends late one Saturday night was at the heart of the case. Photographer / Glenn Taylor
Why police approached a group of friends late one Saturday night was at the heart of the case. Photographer / Glenn Taylor

"Whether those actions arise out of unconscious racism or whether simply they arise from overzealousness, probably does not matter and I certainly am not making a factual finding that [the officer] acted in a racist way."

The "very small" amount of cocaine was ruled inadmissible as evidence, and charges were dismissed, just short of two years since the arrest.

Unconscious bias

Pecotic said, in her opinion, there were a number of cases in New Zealand where defendants had been stopped by police because of their race.

"But for whatever reason their cases don't manage to make it as far as this one did…it has never been directly raised in this way before. You go somewhere like America and it's raised all the time. It is across their headlines."

"I think day to day, you do have people that exhibit racism towards people. And it is nice to have a higher court openly say that if we don't keep a check on this, it is going to become a real problem."

Police told the Herald on Sunday they strongly reject the charge of racial discrimination or profiling – and say the main officer involved has since been promoted.

Wally Haumaha, police assistant commissioner and deputy chief executive Māori, pointed out that of the four officers in the van that night, one was Māori/Cook Island and another Chinese. The outcome showed the officers' instincts were correct.

"An illegal drug was located and two other people in the vehicle [were] arrested, three counts of breach of bail and one for possession of utensils for conversion," Haumaha said.

"The main constable involved has since been promoted to sergeant and is a very valued member of our organisation."

Ministry of Justice research has found Pacific New Zealanders are twice as likely to be apprehended, prosecuted and convicted than Pākehā. The picture is bleaker for Māori, who make up about half of New Zealanders in prison, despite accounting for only 15 per cent of the general population.

Police Commissioner Mike Bush in 2015 said Māori over-representation in offender statistics could be partly explained by unconscious bias among officers.

Police Commissioner Mike Bush. Police strongly reject accusations of racial bias or discrimination. Photo / Michael Craig
Police Commissioner Mike Bush. Police strongly reject accusations of racial bias or discrimination. Photo / Michael Craig

That realisation came after police analysed how officers were using alternate resolutions including pre-charge warnings, colloquially known as "tag and release".

Separate work by the Independent Police Complaints Authority found pre-charge warnings – which allow officers to arrest a person and then issue a warning as an alternative to prosecution – found warnings were much more likely to be given to non-Māori.

In Waikato, for example, 55 percent of non-Māori offenders qualifying for warnings were given one, compared to just 24 percent for Māori. However, because previous convictions are considered when a warning is given, the IPCA found no evidence that clearly demonstrated differential treatment based on ethnicity.

"The first thing you have to do is acknowledge that [unconscious bias] exists," Bush told TV show The Nation.
"We're moving closer to not having a problem, but you should never be complacent."

Haumaha said efforts were stepping up. Officers and new recruits received training on recognising and minimising unconscious bias.

"Work is under way to develop an online learning opportunity for staff also ... unconscious bias is something all humans have – it is not racism and it is not about any specific demographic," Haumaha said.

'You can't delve into someone's mind'

Nowhere has the intersection of policing and race received more recent attention than in the US.

The 2014 police shooting of Michael Brown, an unarmed black teenager, triggered national protests and ultimately the Black Lives Matter movement. NFL players have "taken a knee" during the The Star-Spangled Banner to highlight the treatment of black Americans.

Scott Optican, an Associate Professor at the University of Auckland's law faculty whose research includes police powers and the NZ Bill of Rights, said the New Zealand context was very different, but some of the core legal issues remained.

New York USA Protesters for Eric Gardener and Michael Brown Brown during a hands up protest walk into Times Square. Photo / Getty Images
New York USA Protesters for Eric Gardener and Michael Brown Brown during a hands up protest walk into Times Square. Photo / Getty Images

"No one specifically says, 'This is racial profiling'. And I will tell you why – because they can't. How can they? You can't delve into someone's mind."

In the US, racial profiling cases were formed around years or decades worth of data showing patterns of police behaviour, for example if many more black drivers were being stopped for traffic offences.

Nothing like that had happened in New Zealand, Optican said. Police who searched the Mazda had credible grounds to deny a racial motivation and could point to other facts that aroused suspicion.

The Court of Appeal decision was the first to explicitly recognise racial profiling could be an issue for police, and to rule such profiling could be grounds for a claim to have evidence ruled inadmissible.

"You have got a court one below the Supreme Court recognising it could be an issue ... the other thing is it suggests in New Zealand, even if police are able to make enquiries of anybody – which they can – motivation for doing so may matter."

However, the courts had not found racial profiling took place.

"What the Court of Appeal is saying is, 'Look, there is evidence from other jurisdictions that racial bias – conscious or unconscious – can creep into the way decisions are made.

"And I think they are saying it is not just policing. It can creep into other aspects. Theoretically, it could creep into judicial decision making. Or jury decision making. Or reporter decision making – you, me. Nobody is immune to any of this."

'Peel back the scab'

Ground work is taking place for a new "Justice Sector Māori Strategy" that was initiated under the last Government and will include police, justice, welfare and other agencies.

Justice Minister Andrew Little's office referred questions to Police Minister Stuart Nash, who said through a spokeswoman there should be no tolerance of discrimination.

The Government wants to boost police numbers by 1800, and Nash "expects those recruits to include sizeable numbers of Māori and Pasifika candidates; to include women; and to represent the ethnic diversity of the wider population".

Maori Party co-leader Marama Fox has previously spoken of the discrimination her children have encountered. Photo / Mark Mitchell
Maori Party co-leader Marama Fox has previously spoken of the discrimination her children have encountered. Photo / Mark Mitchell

Māori Party co-leader Marama Fox was at Waitangi last year when Commissioner Bush and Secretary of Justice Andrew Bridgman fronted iwi leaders and asked for help to improve outcomes for Māori.

"Unconscious bias is the palatable way of saying the institution of the police themselves suffer from institutionalised racism," Fox said.

"We are neglecting the opportunity to really peel back the scab of injustice in this country, and the subsequent harm imposed on generations, if we don't hold a mirror to ourselves."

That can be uncomfortable, Justices Williams, Winkelmann and Collins noted in their judgment. Few who discriminate on the basis of race will admit it and some will hide it.

"Most will be unaware of it and so will find the suggestion they do insulting."