As police power increases, scrutiny of those powers diminishes …

One day in the middle of spring last year a member of the New South Wales Police Force grabbed me from behind, kicked and pushed me to the ground, arrested me and issued me with a fine for apparently breaching Covid-19 health orders. So began my unrewarding and troubling journey into the world of police accountability.

Phone camera footage of the arrest generated messages of concern and support from around Australia and the world, from former colleagues and students, acquaintances from international conferences, and people I simply don’t know.

Had the footage not been of a grey-haired man in a suit, it may have gone unremarked. All around me I saw young, peaceful protesters being assaulted by police, but it was my arrest that attracted wider attention and became a measure of how out-of-hand the policing of protests had become.

The protest was not about Covid-19 restrictions. It was a public expression of opinion about tertiary education policy. It was technically illegal, at a time when the NSW government’s health directions allowed increasing numbers of people to gather for private and commercial events and in public spaces, subject to density limits, but made no provision for protest gatherings. Masked and peaceful protesters were arrested and fined while larger numbers of people gathered unmasked on beaches.

Not only was the government making no allowance for protest gatherings, the police were also out in force, and I mean it when I say force. The NSW police are quite deliberately styled as a “Force”. For a time they were a “Service”, but in 2006 then police minister Carl Scully reinstated what he called “‘the more descriptive title” of NSW Police Force. Scully claimed a community desire for strong policing and promised strong, proactive policing that would not only be done but would be seen to be done.

A tendency towards “strong policing” has a long history in NSW. From the late 18th century, policing was carried out – often vigilante-style – by many different agencies for differing purposes and according to differing rules. The creation of a single state police “force” in 1862 was an attempt to bring policing in NSW under centralised control.

But a combination of a vigilante history and poor communication across vast distances meant that under-resourced and under-trained NSW police largely ran their own show, and their character was notorious. Sailing alone around the world, Joshua Slocum arrived in Sydney Harbour in 1896 and recorded in his journal that “Nothing escapes the vigilance of the New South Wales police; their reputation is known the world over.”

What I saw and experienced at the protest was the still vigilant NSW police doing their job with a strong and entirely disproportionate show of force. The police and I followed about 200 students around the university campus and adjacent streets. The students carried banners and chanted, protesting against federal education policy. They rambled past long lines of armed police in protective vests, members of Strike Force ODIN, members of the Public Order and Riot Squad in their black uniforms, black vans and SUVs, and a half-dozen mounted police.

Having watched and waited, the police suddenly moved in, on no apparent signal and for no apparent reason. I saw police tearing signs and megaphones out of the hands of protesters, three or four officers at a time forcing a protester against the fence or onto the ground. As an observer – and a citizen and a lawyer – I couldn’t stand by and watch this unwarranted use of force. It was when I challenged the police – “Why are you doing that?” – that I was grabbed and kicked to the ground and arrested.

The protest was peaceful and not disruptive. If anything, it was fairly ineffectual as a public statement. And although it was unauthorised, the police stood by and watched it happen, until they didn’t. I had the feeling that they were primed for action and were not going to leave without any.

Whatever the explanation for their conduct, one thing was apparent: the police had no hesitation, and did not hold back. They appeared to feel they could act with impunity. They seemed to have a deeply ingrained confidence that they could assault peaceful protesters to give effect to a public health order.

But who is custodian of the custodians? That is where I hit a wall. As well resourced as I am, I was in the same situation that anyone is when they are subjected to police misconduct, and now I know what a near-impossible situation that is. My options for holding the police accountable were to contest the fine, complain against the police, and to sue them.

Contesting the fine was going to be an indirect way of holding the police accountable. But after I entered my “not guilty” plea, the police withdrew the charge. Because of this, I would no longer have my day in court. The charge was probably withdrawn because police officers’ own body-worn video showed more than my walking separately from the protest. It showed the police assaulting me and the protesters. It showed conduct that police would not want replayed in public in a defended hearing.

I had access to the body-worn video through a freedom of information application. The NSW Police Force takes a position that the footage can be viewed only by the applicant and cannot be handed over or seen by anyone else. The NSW Civil and Administrative Tribunal decided in June that this position is wrong and that body-worn video camera footage should be accessible like any government information, but that came too late for me.

The obvious next step was to complain about the police misconduct. This is when I really started to appreciate the politics of policing in NSW, and to delve into the history, regulation and culture that researcher David Dixon identifies as the key to understanding policing.

When Neville Wran gave the NSW Ombudsman oversight of police investigation into misconduct complaints in 1978 he left a gap that continues to this day: actual independent investigation of police misconduct in their daily work. In 1996 the Wood Royal Commission into the NSW Police Service recommended that the Ombudsman’s office continue its mere oversight role and that a new agency be established to investigate complaints of “systemic and entrenched corruption”. This led to the Police Integrity Commission – the PIC – which operated alongside the Ombudsman’s office for 20 years.

During those 20 years the NSW Police Association remained strongly opposed to that degree of accountability, persistently attacking both the Ombudsman’s office and the PIC. The association has long been a vocal advocate for its members’ interests. Dixon comments on its “accustomed role of treating police powers as an industrial relations issue”. Research by Jenny Fleming and George Lafferty shows its success over the years in campaigning against government policy.

The Police Association’s lobbying efforts succeeded after Troy Grant, a police inspector with 22 years’ service, was made minister for Police in 2015. Grant dismantled Wood’s two-track police accountability structure and replaced it with a single agency, the Law Enforcement Conduct Commission – the LECC – the effectiveness of which was questioned at the time by the national Police Accountability Project.

The LECC investigates “serious” misconduct, “serious” maladministration, and “patterns” of misconduct. It is not obliged to do what the Ombudsman’s office used to do, and oversee the NSW Police Force’s own investigation of misconduct complaints. In short, the reforms moved the state further away than it had been from independent oversight of complaints about police misconduct.

Serious misconduct is a very high bar for a LECC complaint. The LECC would simply send my complaint about my arrest to the police to investigate themselves, without any guarantee of oversight. Budget cuts have significantly reduced the LECC’s capacity to investigate serious misconduct, let alone to oversee police investigation of their own conduct even if it chose to.

A final option for me would be to sue the police. But the NSW Police Force spends millions every year to settle civil suits and prevent the allegations from getting to court, and so close off another avenue of accountability.

This accountability void is in the context of what researchers Vicki Sentas and Michael Grewcock describe as the “deepening of police power” in NSW, effectively placing police power at the centre of what criminal law actually means. Rather than criminal law having an autonomous status that is enforced by police, it is shaped and driven by the way police exercise their increasingly broad powers.

This approach to criminal law and policing can be debated. Whatever its merits, the more power that is in the hands of the police, the more important is the need for at least independent oversight of police investigation into complaints.

Independent oversight is exactly what has not happened in NSW. As police power increases, scrutiny of those powers diminishes, to the point where I have no realistic prospect of holding the police accountable for conduct that was seen on phone camera footage around the world. What prospects then for the unfilmed and unreported conduct experienced by other, less well-resourced people, such as young people, migrants, homeless people and Indigenous people?

Police have a tough, thankless and important job. But that does not give them a free pass. If there is to continue to be no place for independent investigation into police misconduct in NSW, then at least the independent oversight of police misconduct complaints that was wound back in 2017 has to be restored.

Published as ‘Unstoppable police force ’ in The Saturday Paper, 25 September 2021