This story was first published by Right Now

EIGHT years have passed. Daniel Haile-Michael no longer remembers the night as a moving image, only in snapshots: he is on the oval; then at the petrol station; he’s slumped on the ground, kneed by a police officer; he’s alone in the back of the police car. He is at the police station. He is crying.

Paperwork typed long ago – complaints, affidavits, outlines of evidence – reveal the scenes that once fixated his mind, but Haile-Michael doesn’t care to look at them anymore. He gives interviews to journalists often, and speaks at forums and conferences about his legal case. He is committed, yes, but he is weary.

His engineering assignments are waiting. As a reflex from those years, his academic confidence is low. After that night, and the hostile months that followed, he fell behind in class. Eight years later, he still postpones uni homework, listening to the small voice that insists: “I won’t be good at this.”

BACK THEN

It was October, muck up day, late at night. It was Ramadan and Haile-Michael was with two of his mates, Magdi and Ahmed, Muslims who had broken the day’s fast. The weather had been warm and humid, so the Year 10 boys stayed downstairs, beneath the Flemington high-rise where they lived. On the oval, between the flats and their school, they felt a breath of cool wind and exhaled.

Haile-Michael lived with his aunt, sharing a room with his younger cousin. He’d arrived in Australia, aged five, with his great uncle. The extended family was from northern Ethiopia; they spoke Tigrinya at home. But his great uncle had recently remarried. “You are going to live with your aunty,” he’d said, two months earlier.

His aunty did not have a choice and she was not happy. So Haile-Michael avoided going home – he studied late at school, then lingered downstairs at the flats with friends. Cramped homes, teen boredom and solidarity snared the lot of them in a web anchored at five points: school, Maccas, KFC, the basketball court and the oval. There was nowhere else to go.

This night, they crossed the oval and walked up the main road towards school to see if the older kids were up to trouble, but before they got there Haile-Michael felt apprehensive, watched. Under a yellow streetlight, they saw two security guards. The boys turned back, walking at first, then running to get away from the school.

Near the service station, they stopped. A divvy van pulled in and two police officers approached them.

What happened next is contested. It was slated for court so many years later, the belated consequence of an official complaint, then a human rights grievance and finally, unprecedented racial discrimination litigation in the Federal Court. Along the way, unpredictably, what happened that night became unimportant.

Maki Issa was one of Haile-Michael’s friends from the flats, and the next day, what had happened was very important to him. Issa lived with his mother and three brothers and sisters. Slight, but fast, he was signed to the Yarraville Glory soccer club, where he trained three times a week.

He was only 15, but had developed an abiding attachment to the mixed-up community at the Flemington Estate flats. There were more than 4,000 people living in the four 20-storey towers and dozen walk-ups, which were built over the site of an old colonial farm and tannery. Half the residents were under 25 years old, and four in 10 spoke an African language at home. Issa’s family, who had arrived from Djibouti, often exchanged food with their next-door neighbours, from Turkey.

Maki Issa, February 2013. Photo by Charandev Singh. 

Issa was already a volunteer. The year before, he had helped start a local soccer team, the North Lions, where he coached younger kids from the flats. His mother took to chiding him, affectionately: “Maki, you’re never going to be rich.”

The landscape changed when he heard Haile-Michael’s story. Among his friends, Daniel was the most reserved and considered – the one who spent the most time in the library. And another friend, too, told Issa he’d been hit by police the same day. There’d been trouble with the cops before, but not like this. In recent months, his friends had grown used to being stopped and sworn at, but they were mouthy too: they’d give it straight back. He knew there had been some robberies, but mostly it was people from Braybrook and Carlton, coming in and giving his friends a bad name. Mainly he’d blamed those guys for the crackdown, not the police. But this violence was different, he thought, and it freaked him out.

There was a social worker Issa knew, Simone Perkin, from the Mooney Valley council. With her encouragement, he and the other boys began to visit the Flemington and Kensington Community Legal Centre.

A SPATE OF ROBBERIES

In October and November 2005, police in the Mooney Valley area – comprising Flemington and surrounding suburbs in Melbourne’s inner north-west – noticed a trend. The region’s new inspector described it as a “spate of robberies, armed robberies and assaults”. He reported that a number of victims said “the offenders were groups of ‘dark skinned’ or African youths”, but local police couldn’t identify any suspects.

By December that year, senior police resolved to target the problem. The Flemington station would stage “Operation Molto” for a month, from early February to March 2006, coordinated by Acting Sergeant Nick Konstantinidis, who prepared the orders. “The as yet unidentified suspects for these serious offences are primarily young African males who either live at or from time to time attend the Flemington Public Housing Estate,” he wrote.

Konstantinidis noted that police were already speaking to boys around there, and that they didn’t like it. “The young African males stopped and spoken to by police on and around the Flemington area view this police activity towards them as racially motivated harassment and retaliatory incidents have occurred.”

Nevertheless, he determined that part of the mission of the operation was to “engage the African youth” and build “positive relationships where possible”.

SCORES OF COMPLAINTS

Tamar Hopkins had started working at the Flemington and Kensington Community Legal Centre a couple of months earlier, in August 2005. She arrived from Canberra, via the Tenants Union, with dreadlocks and a preoccupation with renters’ rights and social security issues.

Immediately, she noticed that young men were coming into her office with questions about police: “Can they take photos of you?” they asked. “Can they confiscate your phone?”

She held an information session at the local high school, then another at the community centre, where people told her they’d been assaulted by police, stopped several times in one day by the same officer, or that police had refused to give their names when requested. It was clear that something was going wrong.

Hopkins felt disoriented, paranoid. Could this really be happening in Melbourne? And there was nowhere to turn. In the past, she’d worked on domestic violence, which was troubling, but a remedy – of sorts – was clear: report the matters to the police and seek restraining orders through the courts. Now some clients asked if they could get a restraining order on Konstantinidis.

Hopkins started going to the police station whenever anyone was arrested. She and Perkin distributed their mobile numbers and ran informal 24-hour support hotlines. With volunteers, she collected stories. She woke in the night to the ring of her phone, and also, to the fear and powerlessness she had absorbed from her clients’ statements.

Once Operation Molto commenced, Perkin was bringing young people to the legal centre almost daily. For the few who were willing, Hopkins filed complaints to the Office of Police Integrity.

On 6 April 2006, she wrote to the OPI detailing an incident that included an alleged assault, racist taunts and confiscation of a phone. It was the twelfth complaint she had mailed in the past six weeks, and she was worried. “We ask that you investigate this matter urgently and with sensitivity,” she concluded. “We are very concerned by the continuing nature of these assaults on young people in the area.”

Nearly three years later, the OPI wrote back. It was a brief letter stating that the investigator had deemed the each of complainant’s allegations either “Not substantiated” or “Unfounded”.

In 2006, the legal centre lodged 17 complaints. One was withdrawn, but in every other instance, the OPI returned the same verdict: “Not substantiated”. In three of those matters, the complainants themselves had been charged with resisting, hindering or assaulting police, but they were each found not guilty before the courts.

When Hopkins saw that magistrates didn’t accept the police version of events, she began to guard a flimsy hope that the bench could help. But the incidents continued. By the end of 2008 she was exhausted. With her phone always on call, she judged that she’d been in emergency mode for two years. When the young men first arrived at her new office, she was shocked. When their visits became a pattern, she resolved that it was her responsibility not to walk away.

Above all, Hopkins was fed up with the force’s complaints system. Every letter returned with the same finding: “Not substantiated”. The OPI delegated its investigations to the force’s Ethical Standards Department, who weighted their fellow officers’ version of events above that of the complainants. Their conclusions were inevitable. She received a grant from the Victoria Law Foundation to examine complaints systems elsewhere around the world: six months to stop and sleep, study, and then start again with a different mobile number. She packed her bags and carried her guilt about those left behind.

AN ETHICAL HEALTH CHECK

In 2006, Ken Lay – now the chief of Victoria Police – was the assistant commissioner responsible for a region that stretched from the CBD to the outer edges of the city’s sprawl in the north and west.

Concerned by the number of formal complaints the OPI had received from the legal centre, Lay commissioned an investigation into the Flemington police station. One officer would review the specific allegations, and a second would review the operation of the station itself. This latter part, conducted by Inspector Mark Doney, was referred to as an “ethical health check”.

By mid-year, Doney reported back. His diagnosis was troubling – he was critical of the behaviour of both Konstantinidis and the officer-in-charge of Flemington police station, Mick Maloney. Quietly, both were moved elsewhere. (Maloney was aggrieved however, and eventually his agitation prompted another internal inquiry – this time, into Doney’s report. Victoria Police refuses to release either document.)

Despite internal tension, the force felt it was making progress. The September 2006 issue of the Police Association Journal carried an article about the Flemington community and refugees from the Horn of Africa. “Cultural differences and a mistrust of police because of experiences in their homelands have made policing in the area a challenge – a challenge the members at Flemington have tackled head on, with success,” it began.

Senior Sergeant Langdon, the new officer-in-charge, said he was proud of his team. “Our members are very professional and thorough. They are fantastic coppers and they are tireless. They are good, honest people and they do a good job. There is no bigotry. There is no racism and there is no unprofessional behaviour.”

Late that year, his station received the “Premier’s Award for Community Harmony”, one of the annual awards bestowed by the state’s multicultural commission for “outstanding achievements” by organisations that have “actively supported cultural diversity”.

Unfortunately, after only six months’ respite, complaints began to arrive again in early 2007. At the time, and throughout the years to come, police officers stationed at Flemington regarded the flats and the shops nearby on Racecourse Road as crime hotspots. The perpetrators of robberies were usually described as groups of “young African males”. It was a necessary part of their duties, they argued, to stop people in these areas, especially late at night.

In November 2007, the station conducted Operation Square, targeting “anti-social behaviour”. The order stated that local police had identified about 30 youths responsible, most of whom “identify themselves as the ‘Flem Boyz’”, but it did not name anyone specifically, stating instead: “Members are to use common sense when it comes to the type of people who are spoken to.”

A few weeks later, Chief Commissioner Christine Nixon received a long letter from Hopkins and others, complaining about chronic overpolicing and harassment of young African men. They suggested a policy of providing a receipt whenever officers stop someone – it would explain why they’d been stopped and create a statistical record that could be analysed. Police in London had implemented a receipting policy following an inquiry into the botched investigation of the murder of a young black man, Stephen Lawrence.

Delegated to respond on Nixon’s behalf, Superintendent Brett Guerin replied acerbically: “Unlike many of its critics who are conspicuously absent when the ‘heavy lifting’ has to be done with local initiatives, Victoria Police is committing human, physical and financial resources into improving a problematic environment,” he wrote.

He dismissed the receipting policy as impractical, and maintained that Flemington police had worked hard to improve their relationship with young African people in the area, listing a number of community policing initiatives, such as sporting programs and a joint expedition to the Kokoda Track.

“I encourage you and your staff to become involved in some of these programs… so that you may gain a more balanced perspective of the relationship between police and the local community, especially as it relates to some young people who have benefited from their interaction with police.”

The station had a multicultural liaison officer and a youth officer, who organised the activities with the local community.

One day, the whole station was required to attend a training session about people from the Horn of Africa. Subsequently, one officer explained that the session had helped him understand “why African youths could be overrepresented in the justice system”. He recalled being told that “a number of the local African youths may have grown up in refugee camps and therefore may find it difficult to identify with a particular race or culture”.

The particular training session, a seminar called “African/Sudanese Community Cross Cultural Advice”, was delivered to over a thousand members of the force between 2007 and 2010. One slide, titled “Working with African/Sudanese Young Men” stated that they “are typically inducted into a rebel army or warrior tribe as part of their teen years and consequently, develop a strong ‘warrior’ ethic”. They “will openly challenge anyone who threatens them regardless of potential consequence”. Among its “Final Words of Advice” was this: “despite not even knowing you, they may hate you”.

The training was shelved after a complaint from Kot Monoah, an unsworn liaison officer who was born in Southern Sudan. He had attended a session, and left with his blood boiling – he couldn’t sleep properly for days afterwards. In a statement sent to senior police, Monoah described the seminar as “gross professional negligence” and “not cultural awareness, but… misinformation and ridicule”, which only depicted stereotypical images. Monoah quit his job with Victoria Police shortly afterwards.

THE COURTS

Frustrated with all the dead-end complaints, Hopkins had met with Peter Seidel and his team at the Collins Street law firm Arnold Bloch Leibler. Seidel was the partner responsible for the practice’s public interest and native title work – he had represented the Yorta Yorta people in their protracted native title claim over land near the junction of the Murray and Goulburn Rivers.

The legal centre had received advice from Debbie Mortimer SC – now a Federal Court judge – suggesting the young men had a racial discrimination case worth pursuing. At first, as Hopkins told Seidel her story, she felt overawed by the firm’s luxurious office, but by the end of the meeting her nervousness was supplanted by giddiness: Seidel offered to work on the case pro bono.

Progress was slow, due both to the lawyers’ busy schedules and the boys’ relaxed attitudes towards appointments. The boys were under pressure at home too – many elders counseled against complaining. “You’re new in this country,” they would tell Haile-Michael. “The police are untouchables, so why are you being silly?”

But the young men, who had grown up in Australia, viewed the situation otherwise. On the street, their aggressive response to questioning had welled up from a sense of injustice. “It’s our home,” they thought. “Why should we be treated any differently?”

Finally, in December 2008 – already more than three years after Haile-Michael’s bad night, and just before Hopkins went on study leave – the matter was lodged with the Australian Human Rights Commission. The lawyers, and Mortimer, had collated the stories of 16 young men who said they were repeatedly stopped, harassed and abused by members of the Victoria Police. They detailed about 140 incidents, and alleged that they comprised a systemic pattern of racial profiling, constituting a breach of the Racial Discrimination Act 1975.

Nearly two full years passed in delays and fruitless conciliation. The commission had no power to decide whether or not discrimination occurred. It could only help parties reach agreement, and these parties could not agree.

In November 2010, seventeen young men – including Haile-Michael and Issa – lodged their case in the Federal Court. The application named several individual police officers, together with the chief commissioner and the State of Victoria.

Over the course of nearly 50 pages, the statement of claim documented scores of incidents: assaults, abuse and misuse of power. As they had in the Human Rights Commission, the young men alleged that, cumulatively, these incidents revealed a pattern of racial profiling. Members of the African community were suspected of committing crimes, and singled out for rough treatment, by reason of their race.

The team’s new pro-bono barristers, Rachel Doyle SC, Emrys Nekvapil and Phoebe Knowles, had helped shift the focus of the complaint before it had transferred from the commission to the court. Previously, they’d been preoccupied with the violent confrontations. But although it would be satisfying to prove that police had used excessive force in various encounters, even if they could pull it off, it wouldn’t say anything about systemic racism. To make a case about racism, the lawyers needed to show that Africans were being disproportionately targeted.

For the young men, being stopped by police was unremarkable, like seeing a beggar on a city street. Haile-Michael guessed it happened to him every week or two. Issa estimated that in the two years from 2006, he was asked for his name and had his bag checked at least 100 times. One day, he was asked five times. It happened so often, one officer would greet him by name – and then insist on asking for his ID. “Is this guy sick?” Issa wondered. “Or is it me?”

When someone came into the legal centre’s office to detail an altercation, Hopkins would ask how often they’d been stopped. Invariably, they replied: “All the time.” The lawyers had anecdotes, but they needed statistics.

In New York, four men were suing the police department in a similar case, arguing that it racially profiled people and undertook “suspicion-less stop-and-frisks”.

Crucial evidence had come from Dr Jeffrey Fagan, professor of law and public health at Columbia University, who analysed six years of data from the police. He found that “unconstitutional stops” by the NYPD were “more likely to affect Black and Latino citizens”. The pattern was evident, even after adjusting for factors such as crime rates, social conditions and the allocation of police. In 2009, half a million New Yorkers were stopped; nine-out-ten were “Black” or “Latino”.

PULLING OUT

By 2010, Haile-Michael was living in a public housing flat in Clifton Hill, and was enrolled in civil engineering at Victoria University. His aunt had kicked him out long ago – she was suspicious of his trouble with the police, and to make things worse, he’d fought badly with her son. During his final years at school, and afterwards, he lived off-and-on with friends and other family members and then in temporary accommodation in West Footscray.

When the police trouble had first blown up, Haile-Michael’s first instinct was to make himself scarce – he was never the kind to talk back – but there was nowhere to hide. All the public spaces near his home were targeted by police. He channeled his worry somewhere productive, and began doing community work.

Daniel Haile-Michael in February 2013. Photo by Charandev Singh.

He and Issa were both involved in a drama collective, the Flemington Theatre Group. Their first play, Black Face White Mask, wove fictional stories of several young African-Australian people, including some who’d clashed with police. In the play, one of the characters argued with his girlfriend about racism: “The police, the politics won’t accept us,” he said.

After school, Issa began a diploma in liberal arts, and then switched into community development. He was still getting stopped from time to time, but the worst seemed to pass after he walked the Kokoda Track with some officers. Before long, however, most of those police had moved elsewhere. Overall, he judged it another failed attempt. Things might have been different if they’d stayed.

Issa wasn’t going anywhere. Sometimes his mother talked about leaving Flemington, but he refused to budge; living there, he felt part of something bigger. He was less certain about the legal case.

The lawyers had applied for a protective costs order to guard against financial ruin if they lost. Without it, none of the guys would have stuck around – they’d be in debt for years if it turned out badly. But with the order, they couldn’t receive compensation if they won. Several decided to pull out. The case was a grind, costing time off work or uni, and for what?

Whenever someone left, Seidel would invite them for lunch. A couple of times, he shouted them at Strozzi, an upmarket Italian restaurant favoured by Collins Street corporates. If he could not persuade them to hang in, then at least he would dignify their effort in style.

Then, their morale worsened. Chief among the remedies the young men sought was a receipting system to record stops and searches, as well as an independent complaints system and training for police about racial profiling. But these claims had to be dropped, because the judge did not have the power to make those kinds of orders. When the lawyers informed him, Issa walked out of the meeting. Hopkins followed him out and he told her he couldn’t understand how they didn’t know earlier. “That was our fight,” he said. “Our fight was for the receipting policy – there’s nothing left.”

Afterwards, more of the young men left the case. Those remaining wavered, wanting to forget about it and move on with their lives.

Finally only six remained. Haile-Michael and Issa stayed in. Partly their decision was one of inertia – they’d been in for so long already – but it also encompassed a change in mindset. Haile-Michael now knew that the justice system could not give them justice. But he thought it could provide the media coverage to spark a public campaign. This case, as well as his community work, had taught him something: if you put a spotlight on something shadowy, people of goodwill are drawn to you.

EXPERT REPORTS

In August 2012 Seidel wrote to Professor Ian Gordon, a statistician at the University of Melbourne, asking him to analyse a number of files from the police database. The data comprised interactions between police and young men who had lived in North Melbourne or Flemington from 2005 until 2008.

Two weeks later, Gordon wrote back: he’d found that young men of African ethnicity were two-and-a-half times more likely to be stopped, relative to their population in the neighbourhood. But compared to young men of other ethnicities, they had committed fewer crimes, on average.

Quickly, Seidel forwarded the material to Professor Chris Cunneen, a criminologist from James Cook University who specialised in the policing of Aboriginal people.

In his report, Cunneen drew on international case law, and his own research on Aboriginal people and policing, which had shown that racial profiling was already occurring elsewhere in Australia. One study found that search powers were used more frequently in the parts of NSW with large Aboriginal populations, and a higher proportion of them were unsuccessful. In Bourke and Brewarrina nine out of every 10 searches were unsuccessful.

He wrote that racial profiling involved “police making decisions to initiate contact with individuals on the basis of their race or ethnicity”. Typically, that meant stopping, searching, questioning or asking people to move on because of their race, rather than any reasonable suspicion. After analysing Gordon’s statistics, Cunneen concluded that racial profiling was happening in Flemington.

By now, Seidel and his team were feeling cautiously optimistic. One of his colleagues had secured an expert report from Associate Professor Yin Paradies, a Deakin University academic who had reviewed international research about the health effects of racism and racial profiling. At a public presentation months later, Paradies summarised what he’d found: the research showed a strong connection between racism and depression, anxiety and behavioural problems. “Importantly, this association was causative,” he said. “The longitudinal studies showed that racism came first and these effects came afterwards.” One New Zealand study showed that young people who’d experienced police racism reported worse general health, smoked and drank more, and had more symptoms of depression.

Taken together, Seidel thought the experts’ evidence was damning. There was no doubt in his mind that there was a culture of institutional racism in the force. But going to court was a lottery – racism is notoriously difficult to prove, especially while picking over the specifics of an incident.

Much would come down to credibility. Haile-Michael and Issa were cleanskins with extraordinary resumes of community service. Even so, they would be cross-examined on the minutia of events long since passed, and any inconsistencies would be exploited. Some of the other applicants had chequered records – in the intervening years, two had spent time in jail. But Seidel had been working on the case for several years, and not once had their stories deviated. He trusted that.

The police’s expert statistician largely accepted Gordon’s report, although he differed on the statistical significance of some findings. Their criminologist, however, had criticised Cunneen’s conclusions, arguing that while the evidence indicated the “possibility that racial profiling has taken place”, it could not be demonstrated for sure – other factors, such as the officers’ state of mind and what they knew about each situation needed to be considered too. Correlation is not causation, they would argue.

Victoria Police maintained it had taken all reasonable steps to prevent discrimination, by means of its training, supervision, and community and multicultural initiatives. And, even if it had occurred, there was no detriment. Its lawyers had assembled more than 100 officers to take the stand – they would say they were just doing their jobs, as usual: investigating crimes, apprehending offenders or responding to public requests for assistance.

But as Seidel and his team trawled through the officers’ evidence, they realised that the police had inadvertently made a case for the applicants.

Professor Gordon had found that when police recorded the stops of African youths in their database, they were more likely to use words like “gang” or “negative attitude”, or to state they had “no reason” or “nil reason” for being where they were.

Now, the lawyers saw those phrases connected with their clients.

During Operation Molto, Haile-Michael was stopped one Friday afternoon on the housing estate, while he was with four friends. The police record of the incident stated: “all part of gang activity in the area… targeted as part of Operation ‘Molto’”. A few hours later he and his friends were stopped again, at the housing estate on Racecourse Road, by the same officers. This time the record read: “In area of recent robberies and crim activity. 2 part of larger gang.”

Neither record made mention of any suspicious behaviour. It was Friday night, and all the places Haile-Michael would usually hang out had become regarded as areas of high crime.

One of the boys was stopped with a friend late one night in the car park at the flats. The policeman wrote that they were “known criminals loitering in the area”. Then, in his statement for the case, the officer had tried to explain: “the term ‘known criminals’…  did not necessarily mean that the people concerned had been convicted of criminal offences. It was a shorthand term that may have meant that the people concerned had been charged with minimal offences or had otherwise come to the attention of police as being potentially involved in criminal offences.”

Another boy was checked with two friends at 8:30 pm one evening, just downstairs from his home in the high-rise. He was 16 at the time. The police record read: “Checked loitering around park bench near basketball court. High criminal area of robberies and assaults. All wearing ‘home boy/gangstar’ clothing.”

At a minimum, the officers’ notes indicated they were influenced by implicit or unconscious racial biases. Despite long years of difficult work on the details of legal cases, Seidel had not lost his habit of enthusiasm. Whenever he explained what they’d come across in the police records, he became effusive: “That’s racial profiling from central casting!”

THE SUBPOENA

In February 2013, two weeks before the case was scheduled to begin, the applicants’ lawyers subpoenaed Ken Lay. The police chief would be the first witness in the case. He would be cross-examined by Jeremy Rapke QC, the former director of public prosecutions, who was now acting for the young men.

At a preliminary hearing, Rapke indicated his line of questioning: he would press Lay on the inquiry he had ordered into the Flemington police. Those documents had not been made public – indeed, it appeared that parts of the inquiry had never been completed. Why? What had Doney recommended? And what had Lay done, and not done, in response?

Suddenly, Victoria Police was eager to settle the case. It was more than four years since the complaint was first lodged with the Human Rights Commission. Seidel estimated that his firm’s forgone fees would have accrued to about $2 million, and the various barristers fees, more than $1 million. The police acknowledged its defence had cost more than $3 million. Within a fortnight, the two sides agreed.

A MONUMENTAL EVENT

The seats in the Federal Court room were full, and two dozen people stood awkwardly along the side. It mattered little, because the session was brief.

“The police commissioner is off the hook,” Justice Shane Marshall noted, dryly. He congratulated the parties for settling the matter before the trial, which had been scheduled to last two months, and then read the agreed statement.

Victoria police still denied the allegations, but agreed to hold twin inquiries, reporting by the end of the year, into its cross-cultural training and the way officers deal with people they stop in the street.

There was another unprecedented element: there would be no gag order. The young men were free to talk to the media – although only Haile-Michael and Issa were willing – and most of the documents from the case would be made public, including the experts’ statistics.

After such a long build up, the rapid conclusion was vertiginous. One of Haile-Michael’s friends approached him for an explanation. He was incredulous when he learned the case was over within 10 minutes. “What?” he exclaimed. “I took the day off for that?”

From left: Daniel Haile-Michael, Peter Seidel and Tamar Hopkins outside the Federal Court. Photo by Charandev Singh.

It was a warm, windy morning and Haile-Michael and Issa joined Hopkins and Seidel for a press conference in the shade. Before the cameras, Seidel lauded the courage of the young men, including those who had dropped out along the way. “It’s an incredible gift they’ve given to the public,” he said.

Haile-Michael hadn’t prepared, but as he began, he found himself asserting something unforeseen – this case, brought by teenagers, represented a coming of age. “I share the same opinion that this is a monumental event,” he said. “For our community, it’s finally time.”

But the courts alone were not sufficient to end racial profiling, he said. It was up to the people. “So what we’re striving for is a political movement, for people to become aware of these issues. I’m sure the public will get behind this great cause.”

An ABC journalist wearing a Panama hat pressed him on how he could justify settling the case, if police had assaulted him. “I myself have been beaten up,” he replied, “but it’s not a personal thing. We understand it’s a systemic issue and that’s why we’re trying to address it in a systemic way. It’s not about one police officer, it’s about changing a whole system.”

POSTSCRIPT

In mid-September, Ken Lay met the incoming Victorian Equal Opportunity and Human Rights commissioner, Kate Jenkins, at the commission’s office on Lygon Street, just north of the city. Lay wore the force’s new, darker uniform – ‘Salute’ blue – which only the top brass had received so far. They discussed the race discrimination case.

In its submission to the police inquiries, the commission had recommended, among other things, that the force conduct a six-month trial of a receipting policy, review its complaints-handling procedures, and “deliver targeted anti-racism and unconscious bias training that educates staff at all levels”.

Already, the commission had begun working with the police on its complaints system and its human rights and race discrimination training.

Afterwards, Lay told me that for Victoria Police, the case had been the kind of “crisis of confidence” that occasionally jolts an organisation into radical change. He said the force would become more open to outside scrutiny; its training would change; and, most likely, the way officers interact with people on the street would change too.

“It’s like a waypoint,” he said. “We were going along and we hit this point, and now we’re going in a different direction.”

Six months earlier, immediately on settling the case, Lay had struck a different note. At his press conference, he denied any possibility of systemic racial bias: “I do not believe our members would identify people and harass or continually check them simply because of their ethnicity,” he said.

But in the meantime, the public conversation seemed to shift. Lay had been embarrassed by revelations that officers in three stations had printed stubby holders with racist slurs mocking the Sudanese, Aboriginal and Vietnamese communities.

The force had received 68 submissions to its inquiries. IMARA Advocacy, a youth-led lobby group on racial and religious profiling, had coordinated a “People’s Hearing on Police and Racism” to gather the stories of young people who would not otherwise contribute.

Also, an instance of crowd abuse during the AFL’s annual “Indigenous Round” had sparked a news storm about racism in society. Collingwood player Harry O’Brien criticised his club’s president Eddie McGuire, for what he dubbed “casual racism”. Much of the response was unpleasant. But Jenkins, on starting her new role, interpreted the furor as progress: while the conversation didn’t play out as she would have liked, at least the complexities of unconscious and institutional racism were being debated beyond the small realm of human rights advocates.

“This particular case is a very practical outcome,” she told me. “If a group of 16 youths and a very passionate and committed community legal service can bring about very serious cultural change to the whole of Victoria Police – then that’s an amazing achievement. We will see how much change occurs, but my sense is that this doesn’t only affect African youths. These changes will also assist Aboriginal people and a whole range of other people.”

That is exactly what Issa was hoping for. At the lowest point in the case, after Hopkins had trailed him out of the meeting, he made her promise that the legal centre would not stop fighting until it had achieved systemic change. To do so, the centre started a specialist “Police Accountability Project”, beyond its normal legal services. Hopkins delayed having a baby, not wanting to break her word. At last, with the case over and the inquiries pending, she was on maternity leave when she heard she’d been named a finalist in the 2013 Australian Human Rights Law Award.

In July, Issa and Haile-Michael had flown to Cairns to accompany Hopkins at the annual conference of community legal centres, along with the cofounders of IMARA Advocacy. The group spoke to people from Aboriginal communities in Redfern and Darwin, who were interested in running “People’s Hearings” of their own.

During their session, entitled “The national implications of Victoria’s race discrimination claim against the police”, they stressed that the legal challenge would not have been possible without the support of youth workers initially, and, as time went on, a community campaign.

In September this year, not long after Lay met with Jenkins, Haile-Michael and Issa spent a day shooting a documentary about the case. It was the mid-semester break, and Haile-Michael should have been catching up on his assignments. Issa, too, should have been elsewhere. The Flemington Theatre Group’s latest play, called Fate, was scheduled to open in two months, and he was still writing the script. But they’d decided to promote their cause however they could, fielding requests from interstate and even overseas.

Today’s shoot, surprisingly, was for an Iranian English-language television channel, called Press TV. The journalist asked if they believed genuine change would take place. “We’re optimistic,” Issa replied. “Because it has created dialogue in public. It’s given people with the same issues the opportunity to stand up and talk. That’s how all movements start.”

Filming dragged on much longer than they expected, and afterwards, Haile-Michael was tired. He was more cautious than Issa, wary of an empty response to the inquiries, which are due before new year. But he was hopeful. “You can’t be in this line of work and not be an optimist,” he said.

This essay was originally published on www.rightnow.org.au, an online human rights magazine, with the assistance of the Australian Government through the Australia Council, its arts funding and advisory body.

Can private wealth cure social ills, at a profit?

An edited version of this story was published in Smith Journal, Volume 8

THE Peterborough prison was opened in 2005, at the old Baker Perkins engineering works, half a mile from the centre of town. Where once they had manufactured industrial machinery, now they would punish and rehabilitate humans.

The jail was designed and managed by Sodexo, a French multinational hospitality company; the UK’s prisons chief said it would provide a blueprint for prisons of the future. But initial results were troubling: after just three years, a leaked assessment revealed that Peterborough, an hour north of London, ranked last out of 132 clinks across the country. Among other deficiencies, it had scored poorly for reducing the rate of re-offending.

What to do? The authorities doubled-down on privatisation.

In mid-2010, the justice minister Crispin Blunt went on location to announce a world first: private investors would fund a scheme that worked with 3000 short-term jailbirds to help them stay out, once they got out. He called the initiative a “social impact bond”. Investors would provide the cash to pay for the social workers and support staff, and if reoffending fell by more than the target amount, the government would give their money back, plus 13 per cent interest.

The payoff hasn’t yet come, but already the Peterborough bet has been replicated elsewhere around the world. In New York, Boston, London, Leeds, Manchester and Sydney, on recidivism, chronic homelessness and child welfare: private investors are now speculating on cures to society’s most challenging problems. It is only the beginning. Governments in Canada, Scotland, Germany, Israel and Ireland are eyeing the bonds too.

“This promising financing model has potential to transform the way governments around the country fund social programs,” said Michael Bloomberg, mayor of New York, announcing a plan to work with young men at Rikers Island prison, bankrolled by $10 million from Goldman Sachs.

Mayor Bloomberg’s personal philanthropic foundation guaranteed a loan on the scheme. “Social impact bonds have potential upside for investors,” he says, “but citizens and taxpayers stand to be the biggest beneficiaries.”

In early spring last year, academics, bureaucrats, bankers and do-gooders gathered at the Sydney Harbour Marriott Hotel, near Circular Quay, for the “Inaugural Social Finance Forum”, organised by the Centre for Social Impact, at the University of New South Wales. For a day, they debated social impact bonds.

The first speaker was Peter Shergold, formerly Australia’s top public servant under Liberal prime minister John Howard. His talk was called “Creating a win-win for government, social enterprise and investors”. He stressed the financially volatile times in which we live, when governments face increasing pressure on their budgets. It was an oft-repeated theme, including in the keynote speech, by David Hutchison, the CEO of Social Finance, and the broker of the Peterborough bond.

Hutchison described the government spending cycle in the grip of austerity: funds are directed to acute needs and cut from prevention; over time, this leads to more demand for crisis services, and further diminishes the budget for prevention – and so on. Social impact bonds, he argued, break the cycle by funding early intervention.

Earlier in 2012, the New South Wales government had announced a pilot scheme comprising three “social benefit bonds”: two would aim to reduce the number of children in out-of-home care, and the other, like Peterborough, would target recidivism.

For now, more than two-in-five prisoners in the state are back in the slammer within two years of being released. Cameron Robertson is the treasurer of Mission Australia, the large charity that is negotiating the recidivism bond, together with private prison operator The GEO Group. Financially, reoffending is costly all the way along the line, he explains, from the policing and the courts, all the way to the building and running of jails.

“If a program reduces reoffending it brings savings to everyone – that’s the financial side. More importantly, there’s a significant benefit to the individual and to society more broadly.”

Even before his bond has been issued, Robertson is confident that on the financial markets, there’s “significant demand for this type of product” among “high net-worth individuals, super funds and corporates”.

The investors in the Peterborough bond were almost exclusively charitable trusts. They’ve funded a program that works with criminals sentenced to fewer than twelve months. The men receive additional support inside jail and on the outside, and so too, do their families.

This June, the UK government announced interim results – a slight fall in reconviction rates from 41.6 per cent to 39.2 per cent. Elsewhere around the country, re-offending has risen by 2 per cent over the same period.

The measures were different to the ones specified in the bond, so it isn’t clear whether or not the program will meet its target for investors. The philanthropists won’t know until halfway through 2014 if they’ll get their money back. Nevertheless, Chris Grayling, the justice minister, described the results as “very encouraging indeed”.

The market for social impact bonds is a tantalising prospect: investors make money, governments save it, and prisoners, the homeless and broken families make good.

At the social finance conference at the Sydney Harbour Marriott Hotel, Shergold put it this way: “In the best of the possible worlds, this can be a win for the private sector, a win for the public sector, and a win for the community sector.”

That day, several speakers turned their minds to the obstacles between the world as it is, and the preferable world – the one with social impact bonds. Among the chief difficulties is the task of creating a market – establishing buyers and sellers, prices, measurements and yields – where once there was only taxing and spending, philanthropy, or nothing at all.

Shergold, who is now a key advisor to the New South Wales government on social investment, observed that no one knows whether investors will come. “Information is scant. Risks are hard to predict,” he said. Even so, he predicted that public sector contracting “will increasingly take the form of bonds”.

When Hutchison launched the Peterborough initiative, a big investor enquired about a derivatives market – four or five social impact bonds combined in a portfolio and exchanged like stock options, say, or sub-prime mortgages.

But even if there can be such a market, should there be?

***

In Australia and the UK, citizens volunteer to donate their blood to strangers for uses they will never know. In the US, some people donate theirs, while others sell to commercial blood banks as a way of making money.

The market for blood, thought British sociologist Richard Titmuss, is a market well worth dissecting. In his book, The Gift Relationship, published in 1970, Titmuss analysed the practicalities of blood supply and use. He argued that commercial exchange was less efficient: wastage and costs were higher in the US than in the UK, shortages more frequent, administration more excessive, and the risks of contamination more acute.

Titmuss began with those details – “the particular and microscopic” – but zoomed out to questions about the role of altruism in society. One consequence of blood money, he argued, was the creation of a new class: “an exploited human population of high blood yielders”. The redistribution of blood “from the poor to the rich appears to be one of the dominant effects of the American blood banking systems”, he said.

He believed that his subject illustrated something corrosive about economic thinking: rather than simply expanding people’s choices, as economists argued, establishing market mechanisms can take something important away. The commercialisation of blood “erodes the sense of community” and “represses the expression of altruism”, he said. Why give when others are earning?

“The ways in which society organizes and structures its social institutions – and particularly its health and welfare systems – can encourage or discourage the altruistic in man; such systems can foster integration or alienation; they can allow the ‘theme of the gift’ – of generosity towards strangers – to spread among and between social groups and generations,” he wrote.

“Where are the lines to be drawn – can indeed any lines at all pragmatically be drawn – if human blood be legitimated as a consumption good?”

***

As with Titmuss and the buying and selling of blood, the arguments against social impact bonds can be marshalled along both practical and ethical lines.

First, the practicalities – measurement. In the case of the Peterborough bond, Professor Sheila Bird, from the University of Cambridge, observes that it “might well be a brilliant success; it might achieve little. But we aren’t going to know either way.”

Neither the prison, nor the prisoners were chosen at random. The warden nominated his facility, and participation is voluntarily. Their reoffending rates will be compared against other convicts who don’t receive support, but under these circumstances, Bird says, no one can be sure it’s a good comparison. Did those crims have better attitudes, or fewer drug and mental health problems? Did the hard cases stay clear? Did the warden’s enthusiasm make a difference?

Neither will the trial explain attribution. Should the results be put down to the particular social work program, to the extra money alone, or to the innovative private funding mechanism?

To know if government is getting a good deal, these are crucial questions. Assessing impacts is always complex – arguably too complex to form a base for a financial product. It’s complex no matter who funds the program, but with bonds, the stakes are higher.

The Benevolent Society is one of the charities taking part in the New South Wales trial. Together with Westpac and the Commonwealth Bank, they’ll run a program designed to keep vulnerable children safely at home, and out of the child protection system.

At the social finance forum, Jocelyn Bell, the charity’s business development manager, referred to modelling on the scheme’s results. One option, she said, is to provide a level of service that ensures the highest number of children stay home, and therefore, offers investors the maximum return. But that level of service “would not sufficiently support children to thrive in a home environment”. There’s a trade-off between the interests of the kids and the money-makers.

The second practicality – money. This one, says Christopher Stone, from progressive think tank Centre for Policy Development, is one that should be apparent to economists: why pay more, when you can pay less?

“Governments could borrow that money at a far lower rate than the private sector does, and they won’t expect to make a profit,” he says. “Logically, government investment in these same programs would be more sensible than private investment.”

With social impact bonds, the public sector ends up paying anyway – it just pays significantly more. Year upon year, bond upon bond, the extra costs will mean governments can afford fewer programs overall.

At the social finance forum, Hutchison – the founder of the Peterborough bond –noted that public servants in the UK had struggled to justify high payments for bonds, when they could borrow at a risk-free rate and deliver the services directly. He believes the bonds are worthwhile because they’re more likely to succeed and the public won’t pay if they fail.

Stone is sceptical. He was one of the authors of ‘Big Society and Australia’, a report on the privatisation policies of the Conservative government in the UK and how they might apply in Australia. “There’s a question about whether government can ever really transfer risk,” he says. “And there are examples where even when the outsourced firms fail, they can still win.” Most of the claimed benefits of the bonds, he argues, such as extra investment in prevention, or a rigorous focus on outputs, can be achieved by other means.

He’s concerned about transparency too. In New South Wales, the government says modelling of the costs and benefits of its pilot social bonds, undertaken by the consultants KPMG, demonstrates the good value for taxpayers. But that modelling? You can’t see it. It’s confidential.

***

Titmuss died in 1973. In the four decades that have passed, market values have encroached on social policy in such a way as to support his warning that “no lines can be drawn”. Although markets have not yet acquired blood donation in Australia and the UK, many other elements of the welfare, education and health systems have been privatised or outsourced, at least in part.

Social impact bonds advance the project in a way likely unimaginable to Titmuss: where previously the rich were taxed to reduce inequality and pay for social programs, now they can earn a healthy return on them instead, directly underwritten by taxpayers.

“All policy would become in the end economic policy and the only values that would count are those that can be measured in terms of money,” Titmuss wrote. These are ethical objections to the bonds: they undermine the obligations of governments and wealthy citizens to the struggling. They alter the meaning of philanthropy, too. Why give when others are earning?

Cameron Robertson, the Mission Australia treasurer, acknowledges the experiment: “If, in five years’ time, we haven’t increased the pool of funding, and the wealthy philanthropist who was previously donating his money is now putting it in a bond, then we won’t have been successful.”

He’s hoping they’ll keep the donations and add something extra on top. “If we can get even a small portion of industry superannuation fund money, for example, then we’ll have increased the amount of capital and the number of programs.”

Just before Titmuss died, the philosopher Peter Singer wrote an essay defending the sociologist against economist Kenneth Arrow. In a critique of The Gift Relationship, Arrow had argued that altruism was a scarce resource – we’d better save it for when it really matters, rather than squander it where a price will work instead.

Singer disagreed. Altruism was not limited in supply, like crude oil, but more like sexual potency: “much used, it constantly renews itself, but if rarely called upon, it will begin to atrophy”.

For Singer, the matter came down to a choice of questions: “We must ask ourselves not ‘How can we obtain the most blood at the least cost?’ but ‘What sort of society do we want?’”