The ‘funding cuts’ protest on 14 October was yet another demonstration of passionate, peaceful students’ action. Except that this one received media coverage for all the wrong reasons.
The real news story – staff and student anger at the federal government’s crude working over of tertiary education – is not getting media attention. The focus instead is on the protests themselves, and on police conduct.
NSW Police officers’ violent conduct on 14 October – evidenced in part by the Honi Soit video – has been reported around the world. NSW is seen to be coming down hard on protest activity, whether about indigenous justice, environmental and climate concerns, animal cruelty, or tertiary education.
Perhaps that is why, on 23 October the Public Health Restrictions on Gathering and Movement Order was amended to add an exception for ‘protest or demonstration about a governmental or political matter.’ This is the language of the implied constitutional right to free political communication.
While protest is now possible, the right is conditional: max 500 people, according to a Covid health plan, and on ‘a governmental or political matter.’ So it remains important to watch how it is policed. Police maintain their ‘move on’ powers and summary offence powers (such as offensive language and obstructing traffic). These are powers that the police can use to constrain the way in which the right to protest is exercised.
That brings us to the issue of how the police behave. It is not only at protests that police are behaving badly. One example is when a court recently dismissed charges against a man sleeping in a park who was handcuffed, pepper sprayed and tasered by police.
NSW Police Commissioner Mick Fuller said he feels ‘sympathetic’ for officers that deal with ‘drunken idiots every night.’ Missing from the Police Commissioner’s opinion is what is missing from the conduct of police on the frontline: any sense of proportionality.
Dealing with ‘drunken idiots every night’ does not justify handcuffs, pepper spray and tasers. Supervising a peaceful protest does not justify force, arrest and the intentional inflicting of harm.
This is not modern policing. This is not policing that serves the community. Yes, the police have a tough job; that’s what they are trained for. Yes, the police face difficult situations; that’s what they are trained for. What they do not seem to be trained for – or given leadership by example – is decision-making.
Unwarranted use of force is frightening, not reassuring. It undermines trust. What happened on 14 October made a lot of people realise that they too are vulnerable to the risk of arbitrary use of force. Just because a protest is Covid-permitted does not change the risk of police misuse of power.
What is to be done? Consistent news coverage and commentary is important. The NSW government and police need to know that their reputation and credibility are under scrutiny, and that they will be judged by their treatment of protesters.
Accountability measures are important, if hard to pursue. Depending on the circumstances, fines can be contested (protesters who are fined should contact Redfern Legal Centre for expert advice and assistance). Police conduct can be complained about, and it will be important, quite quickly, to make a GIPA application to the police to obtain their body-worn camera video footage.
The police complaint system in NSW is inadequate; a complaint can be made to the Commissioner of Police (Mr Fuller; see above), or to the Law Enforcement Conduct Commission. But the Commission has a high threshold, such as corruption, meaning that there is no independent body to receive complaints about police misconduct.
A third avenue is to sue. Again depending on the circumstances, police officers can be sued for, for example, unlawful arrest and assault. Private solicitors represent people in these civil claims, usually on a ‘no win no fee basis’; protesters who want to pursue this should get independent legal advice on the fee arrangements (‘the retainer’) that the private solicitor proposes.
A common form of police accountability in the UK is the court’s administrative oversight of police power and discretion. Going to the courts for that purpose has not been happening much in Australia, but that should change. And the end of the accountability line is to go to the United Nations’ Human Rights Committee, as Christina Horvath did, successfully, against Victoria Police.
And finally on what is to be done, the politicians need to know. Every protester’s local NSW parliamentarian (MLA) needs to hear firsthand about the treatment of their constituents. They need to respond, and to take responsibility.
In the meantime, whether excepted from the Public Health Restrictions or not, protests will continue and people will peacefully exercise their rights to free speech and movement. The world is watching.