Are NSW police racially profiling young offenders?

Junkee, 26 October 2017:

A NSW Police intelligence program that uses secret algorithms to identify suspects who may commit a “future crime” is disproportionately targeting young people and Aboriginal and Torres Strait Islander people, according to a comprehensive new report.

The ‘Policing Young People in NSW’ report was published by the Youth Justice Coalition, a network of youth workers, lawyers, academics and policy experts. It was written by Dr Vicki Sentas, an academic at the University of New South Wales, and Camilla Pandolfni, a solicitor at the Public Interest Advocacy Centre.

The report is the first comprehensive look at the Suspect Targeting Management Plan (STMP), a NSW Police program that “seeks to prevent future offending by targeting repeat offenders and people police believe are likely to commit future crime”.

The STMP involves the use of “risk assessment tools” and algorithms that take into account a series of “risk factors” to identify potential future criminals. Suspects in the program are categorised on a scale from “low risk” to “extreme risk” and then targeted by police officers through regular house visits and the use of stop and search powers.

The criteria used to identify suspects is not publicly available, and individuals targeted through the STMP are not notified of the reasons behind their risk categorisation. The whole program is managed internally by the police and there are no specific laws or regulations governing its operation.

Excerpt from Youth Justice Coalition Report, Policing Young People in NSW: A study of the Suspect Targeting Management Plan:

The preliminary findings based on this research are:

* Disproportionate use against young people and Aboriginal people: Data shows the STMP disproportionately targets young people, particularly Aboriginal and Torres Strait Islander people, and has been used against children as young as ten.

* Patterns of ‘oppressive policing’ that may be damaging relationships between police and young people: Young people targeted on the STMP experience a pattern of repeated contact with police in confrontational circumstances such as through stop and search, move on directions and regular home visits. The STMP risks damaging relationships between young people and the police. Young people, their families or legal representatives are rarely aware of criteria used to add or remove people from the STMP. As the case studies show, young people experience the STMP as a pattern of oppressive, unjust policing.

* Increasing young people’s costly contact with the criminal justice system and no observable impact on crime prevention: The STMP has the effect of increasing vulnerable young people’s contact with the criminal justice system. Application of the STMP can be seen to undermine key objectives of the NSW youth criminal justice system, including diversion, rehabilitation and therapeutic justice. The research has identified several instances where Aboriginal young people on Youth Koori Court therapeutic programs have had their rehabilitation compromised by remaining on the STMP. There is no publicly available evidence that the STMP reduces youth crime.

* Encouraging poor police practice: In some instances, the exercise of police search powers in relation to a young person on the STMP have been found unlawful by the courts. The STMP may be inadvertently diminishing police understanding of the lawful use of powers (set out in the Law Enforcement Police Powers and Responsibilities Act 2002 (NSW) (LEPRA)) and thereby exposing police to reduced efficacy and civil action. * No transparency and an absence of oversight, scrutiny or evaluation: The operation of the STMP is not transparent or accountable. Criteria for placement on the STMP are not publicly available, individuals cannot access their STMP plan and it is unclear what criteria are used by police to remove a person from the STMP…..

Based on the research and findings presented here, the report recommends that:

1. NSW Police discontinue applying the STMP to children under 18. Children suspected of being at medium or high risk of reoffending should be considered for evidence-based prevention programs that address the causes of reoffending (such as through Youth on Track, Police Citizens Youth Clubs NSW (PCYC) or locally based programs developed in accordance with Just Reinvest NSW), rather than placement on an STMP.

2. NSW Police make the STMP policy and operational arrangements publicly available to enable transparency and accountability.

3. NSW Police amend the STMP policy so that any person considered to have a ‘low risk’ of committing offences not be subject to the STMP.

4. NSW Police amend the STMP Policy to mandate formal notification by police to any individual placed on a STMP, including reasons for placement on the STMP and the date of next review. Subsequent notifications to individuals on an STMP should outline the outcome of the review and reasons for the STMP being maintained or discontinued.

5. NSW Police make data on the STMP publicly available through the NSW Bureau of Crime Statistics and Research (BOCSAR). Available data should include demographic information (age, Aboriginal or Torres Strait Islander status, ethnicity, Local Area Command LAC), as well as data on the length of time enrolled in the STMP and the category of risk determined.

6. NSW Police commission BOCSAR to evaluate whether the STMP is reducing youth crime.

7. NSW Police provide all police officers with formal training on the STMP which:

i. Clarifies its status as an intelligence tool;

ii. Provides guidance on the criteria for inclusion and exclusion from the program and the alternative programs available;

iii. Sets out its operational requirements, and limits; and iv. Provides guidance on the relationship of the STMP to the law. For example, training should clarify that a persons’ inclusion on an STMP cannot provide a basis for grounding a reasonable suspicion (either on its own or together with a number of other factors) under LEPRA.

8. The Law Enforcement Conduct Commission (LECC) conduct a comprehensive review of the STMP.1 The terms of reference of the recommended LECC review should include consideration of whether the STMP:

i. is effective and appropriate in dealing with the risk of offending in young people under 25 and children;

ii. is effective and appropriate in dealing with the risk of offending in adults;

iii. is effective and appropriate in relation to other vulnerable people (as defined in clause 28 of the Law Enforcement (Powers and Responsibilities) Regulation 2016), including those with impaired intellectual or physical functioning, Aboriginal and Torres Strait Islander peoples and persons from non-English speaking backgrounds;

iv. is consistent with NSW policy and practice for juvenile justice including principles of diversion from the criminal justice system as well as NSW law, including the Young Offenders Act 1997 (NSW), and the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW); and

v. is consistent with NSW Police policies and practices for policing children and young people, including the NSW Police Force Youth Strategy, as well as the Aboriginal Strategic Direction and Aboriginal Action Plans, the NSW Domestic Violence Strategy, the NSW Police Disability Inclusion Action Plan and all other policies and procedures regarding vulnerable persons.

In the course of the review, the LECC should consult with other professional disciplines such as mental health practitioners, Family and Community Services Managers, the Department of Justice, and community workers about best practice in diversion, crime prevention and the needs of young people.

Finally, this report is the first publicly available study about the STMP. The unjustified secrecy around the STMP has prevented appropriate, transparent, program evaluation and more thorough examination of the impact the STMP is having on young people, crime prevention and police practice. This report’s conclusion that the operation of the STMP is likely to be having damaging effects on young people is compelling grounds for further investigation and external scrutiny.

National ID Database: so you think if you do nothing wrong you'll have nothing to fear?

“There is also a tendency for technologies to converge, allowing for the creation of devices with increased surveillance capabilities. CCTV, for example, may be combined with facial recognition technology….to identify individuals from their images. Another example is modern mobile phones, which combine telephonic services with GPS tracking software, digital visual and sound recording capabilities, and connection to the internet. A consequence of the convergence of surveillance technologies is the greater ability of surveillance users to compile detailed pictures of members of the public, making it increasingly difficult for individuals to maintain their privacy and anonymity.” [Victorian Law Reform Commission – Surveillance in Public Places: Final Report 18, 2010]

This month the Turnbull Government, state and territory governments have agreed to add the photo IDs of all registered drivers to the Facial Biometric Matching Capability (FBMC) database (est. 16 November 2016) which already has access to passport photographs, visa application photos, airport surveillance images and arrest ID images from the criminal justice system.

Additional images will probably be harvested from social media and added to this database which is to be used with CCTV footage of the general population going about their daily lives when considered necessary by police and security services. The biometric 'map' of an individual's face created by FBMC being easily applied to searches of video footage from public venue, shopping centre, street and road cameras as CCTV technology is now capable of recognising faces of people, vehicles, animals and bags automatically.

FBMC will involve using a Face Verification Service , Face Identification Service, One Person One Licence Service and Facial Recognition Analysis Utility Service in identity matching, along with a the Document Verification Service, Identity Data Sharing Service and/or any other government identity matching or data sharing service and, of course one of the areas it will be used is in so-called crime prevention.

Use of this facial recognition database will also be available to authorised private sector agencies and, like many new tools it is likely there will be function creep so that photo IDs will be required by more government agencies and private businesses when interacting with individuals in the future.

The Facial Biometric Matching Capability database will function alongside the Biometric Identification Services (BIS) which features national identification capability using fingerprints, palm prints, foot prints and facial recognition, person identity and evidence image case management, image enhancement tools and record auditing, matching services of one to one, one to few, one to many, and many to many, as well as photobook, photo line-up and witness viewing services.

But what’s the worry? After all if you are an ordinary person not committing a crime you have nothing to fear. Right?

Well there is this on the horizon…………..

Monash University, Research Spotlight: Crime, Risk and Security:

Criminologists at Monash undertake cutting edge research in the areas of risk and security that is theoretically sophisticated, innovative and highly relevant to areas of pressing national and international concern. The discipline hosts two recipients of the Australian government’s prestigious Future Fellowship Award, Professor Sharon Pickering and Associate Professor Weber, both undertaking programs of research on border policing. Their jointly authored book Globalization and Borders: Death at the Global Frontier was awarded Australia’s most significant criminology publication award in 2013. The Border Crossing Observatory is the online repository of all border-related research undertaken by Monash Criminology and our national and international partners. Criminologists at Monash have received multiple highly competitive Australian Research Council grants to investigate a host of risk and security related topics, amongst them, counter terrorism laws and policing, immigration and exploitive labour practices, deportation, regional security, and the gendered nature of border crossing and transnational law enforcement. Our risk and security research expertise includes the interrelated topics of borders, counter terrorism, state crime, transnational crime, irregular migration, human trafficking, risk and disability, and pre-crime. [my yellow bolding]

What is “pre-crime”?

Put simply, “pre-crime” activity is a crime not yet committed – it is the suspicion that an individual might be capable of breaking an unidentified law at some unspecified time in the future.

Such suspicion does not mean there is a need to charge, prosecute or convict for a specific crime. Intervention at “pre-crime” stage is supposedly risk containment.

You don’t have to be researching bomb-building or Googling how to buy a weapon online to commit a “pre-crime” activity - it can be your thoughts and political opinions spoken aloud or written down, as well as your actions at a public meeting or protest rally.

It can even be allegedly ‘guilty knowledge’ in that you knew the time and place a small environmental activist group was going to confront their local MP or you saw a person painting an anti-government picket sign ahead of a planned street march.

Going to the media – social or mainstream – with a genuine complaint against a government department might be considered a “pre-crime” if you visibly persist in seeking answers, redress or apology. You could easily be labelled "fixated" by police if a government minister takes offence and decides to complain.

If you make a small donation to a group the police or government consider problematic, troublesome or obstructive of the aims of government or big business you may at some time in the future be considered politically partisan and displaying “pre-crime” tendencies.

These are just some of the groups that are already complained about by big business and politicians: Environment Victoria, Wilderness Society (Australia, Victoria & Queensland), Friends of the Earth, Victorian National Parks Association, Australian Conservation Foundation, Lock the Gate Alliance, 350.org Australia, the Nature Conservation Council of NSW, the Australian Youth Climate Coalition, the Australian Marine Conservation Society, Australian Marine Conservation Society, Friends of the Earth Australia, Politics in the Pub and GetUp! as well as Greenpeace and Sea Shepherd.

Just belonging to a group or community association which speaks up on matters of social, economic, environmental or political concern could see you being eyed off as part of a potential conspiracy in the making.

In at least one Western country pre-crime can also manifest itself as a suspicion that you have come into a city centre with the intention of having a drink or two and you will be given a 48 hour direction-to-leave order.

With the notion of “pre-crime” there is no presumption of innocence and little more than lip service to due process if any arm of state or federal government decides you are a person of interest.

So how will pre-crime activity be monitored by police and security services? Well one of the methods used will be surveillance and this surveillance may involve use of the Facial Biometric Matching Capability database created by the Turnbull Government.

Surely this couldn’t possibly happen in Australia? you say. Think again. 

We already keep individuals in gaol long after their court-imposed sentence has been fully completed under continuing detention legislation, have preventative detention without charge and control orders which can be applied to both minors and adults, police are known to use spyware to enter, monitor and control home computers and, in certain circumstances your home can be entered and searched without your knowledge by police and security services.

And here in Australia we have a history of unwarranted surveillance based on an individual's political association (1950s Cold War era) and political dissent (1960s & early 1970s Viet Nam War era) as well as virtually unchallenged unlawful use of coercive powers (Border Force 2014 to 2017).

Police and security agencies are constantly pushing for more legislation which would allow amongst other matters the creation of a raft of pre-emptive, punitive measures based solely on suspicion and an individual’s “pre-crime” tendencies.

Right now in Australia governments are all about political and physical control of the population - they are not about human rights, 'civil liberties' or a free, open and democratic society.

As a society Australia has been sliding down that slippery slope towards an authoritarian destination for years now and in 2017 we appear to have reached the bottom of the slope.

COAG, INTERGOVERNMENTAL AGREEMENT ON IDENTITY MATCHING SERVICES, 5 October 2017.

Barrister @BarnsGreg says the public shouldn't accept claims by politicians that #terrorlaws take precedent over #civilliberties | #COAG pic.twitter.com/rUXFY5Vn3b

— ABC News (@abcnews) October 5, 2017

“For years, there’s been ample evidence that authoritarian governments around the world are relying on technology produced by American, Canadian, and European companies to facilitate human rights abuses.  From software that enables the filtering and blocking of online content to tools that help governments spy on their citizens, many such companies are actively serving autocratic governments as "repression’s little helper."

The reach of these technologies is astonishingly broad: governments can listen in on cell phone calls, use voice recognition to scan mobile networks, read emails and text messages, censor web pages, track a citizen’s every movement using GPS, and can even change email contents while en route to a recipient. Some tools are installed using the same type of malicious malware and spyware used by online criminals to steal credit card and banking information. They can secretly turn on webcams built into personal laptops and microphones in cell phones not being used. And all of this information is filtered and organized on such a massive scale that it can be used to spy on every person in an entire country.” [Electronic Frontiers Foundation, accessed 7 October 2017]

“Australia’s leading privacy and civil liberties organisations condemn the decision by the Council of Australian Governments (COAG) to provide all images from state and territory driver’s licence databases to the federal National Facial Biometric Matching Capability.

These organisations are the Australian Privacy Foundation, Digital Rights Watch, Queensland Council for Civil Liberties, NSW Council for Civil Liberties, Liberty Victoria, South Australian Council for Civil Liberties and Electronic Frontiers Australia.

The creation of such a comprehensive national facial database is an unnecessary and disproportionate invasion of the privacy rights of all Australians, is the foundation for suspicionless, warrantless mass surveillance and is fundamentally incompatible with a free and open society.

David Vaile, Chair of the Australian Privacy Foundation said, “This government has proven it is blind and deaf to privacy and personal information security threats. Make no mistake – this database will affect all Australians, even the most conscientious and law-abiding. It will likely generate massive ‘false positive’ lists that will flood our very effective police and security services with useless distractions. We’ve already seen calls for ‘scope creep’ to cover welfare enforcement, and there’s every reason to expect this capability will come to be used to identify people with unpaid fines and other minor issues that have nothing whatsoever to do with terrorism.” [Electronic Frontiers Australia, 6 October 2017]

“Every single portion of human rights activism overlaps, manifests or is exercised with the use of technology. That alone caused attackers and adversaries to recognize that technology itself is a good vehicle to get to these people and interfere with them or cause them harm.” [Claudio Guarnieri of Amnesty International quoted in Threat Post at Kapersky Lab, 4 October 2017]