SIMON:

When I saw police behaving, I thought, with unnecessary force...

Archival Tape -- sounds of police sirens

Archival Tape -- Unidentified Speaker:

“Fuck you coward”

SIMON:

...physically manhandling the protesters, I asked them, I actually said, ‘what are you doing?’ And they didn't answer me and I asked them again, ‘why are you doing that?’ Then I was grabbed from behind...

Archival Tape -- Unidentified Speaker:

“What the fuck, that is fucked!”

SIMON:

And frogmarched along and I, then, for the third time asked a question and I said something like, you know, ‘what have I done? Why are you doing this?’ And that's when I was kicked to the ground and told I was resisting arrest.

Archival Tape -- Unidentified Speaker:

“Let him go, let him go…”

SIMON:

So it all happened very quickly. It went from being an academic in a suit observing a protest to finding myself sitting on my backside with my forearms on my knees, looking up at police officers, standing over the top of me. It all happened in about 20 seconds.

[Theme Music Starts]

RUBY:

From Schwartz Media, I’m Ruby Jones. This is 7am.

In October last year, Simon Rice found himself in an unusual situation. As a professor who teaches protest law at the University of Sydney, he’d gone to observe a rally on campus with his students.

But then, police moved in, and Simon was physically restrained, arrested and fined.

When he tried to challenge the fine, he discovered a serious lack of accountability at the heart of the police force. Today, contributor to The Saturday Paper, Professor Simon Rice, on the loophole that lets police avoid scrutiny, and their creeping authoritarian role.

It’s Monday September 27.

[Theme Music Out]

RUBY:

So, Simon, last year you were arrested by police while attending a protest. Could you start by telling me about that protest, what were you doing there?

SIMON:

So I'm a professor of law at the University of Sydney. One of the courses that I teach is called Law Reform, where we examine the way laws come into being and the way the laws operate and how laws can be changed. One of the things that we examine is civil action, different ways of bringing about change. And I had said to the students: look, we're talking about protests, we're looking at protest rights and means of expression, if you want to, let's go watch a protest. And as their teacher, I thought I would watch it too.

Archival Tape -- Unidentified Speaker:

“And so they cut 2 billion from higher education and this will mean university is more expensive, this will mean 25% fee increase for students! Why should we stand for this?”

SIMON:

So I was observing a tertiary fees protest.

Archival Tape -- crowd chanting:

“No cuts, no fees, no corporate universities!”

SIMON:

And it was happening at a time of anxiety about Covid and protests. I think it was probably about 11:00 in the morning. There were some speakers and I was watching the speakers and then the students gathered and set off across campus. So I set off, I and a lot of police, all set off following them.

RUBY:

Right, so you were at the protest, observing what was happening - which was a lot of students with signs and slogans, protesting the rise in fees and job losses in the sector - and police were watching these protesters. So at what point did things change, when did the protest turn violent?

SIMON:

The student protests, or the march, arrived at the main road and the police were lined up along the road to keep the students, or the protesters, on the footpath, and they were like a blue line, a long blue line. And the students were on the path and the police were standing just off the path on the road. The students were wondering where to go next, and they started wandering up the hill, which is where I started to go as well. And then for no apparent reason, suddenly the blue line moved in and the police started to grab the student's bodily and their possessions.

Archival Tape -- sounds of police sirens

Archival Tape -- Unidentified Speaker:

Oi! Fuck you coward!

Archival Tape -- sounds of angry crowd

Archival Tape -- crowd chanting:

“Cops off campus! Cops off campus! Cops off campus!”

SIMON:

I saw them push a woman up against the fence and take the megaphone out of her hand. And I said, ‘why are you doing that?’. And they didn't answer me. And I turned around and saw it happening behind me and asked the same question. And as I was asking the same question the second time, I was grabbed from behind.

Archival Tape -- Unidentified Speaker:

He got held back, like the cops physically, like, held him back.

SIMON:

To grab me from behind, kick my feet from out underneath me, push me back down on the ground was entirely unwarranted. I asked some of my own questions, I did ask ‘why I was being arrested?’. And I debated with them a bit because they were alleging my involvement in the protest and I was saying that I wasn’t.

RUBY:

So when you were arrested, can you tell me what you did? What happened after that?

SIMON:

Yeah, look, it hadn't happened to me before. I'd never been in this position. I'd certainly never been kicked to the ground and stood over and told I was under arrest. But they then took my details and said I'd be getting a fine in the mail and I went away. So it was all over quite quickly. And I just left with a thousand dollar fine pending in the mail.

RUBY:

Mm. And what did that experience trigger for you? Can you tell me about the things that you started to think about and the actions that you started to take?

SIMON:

Look reflecting on that goes in many directions. And keep in mind I was also teaching it at the time. So, of course, the next day my lesson plan went out the window and the students wanted to talk about this. And it was a great teaching moment because we were able to reflect on protest as an expression of opinion. One of the things I reflected on is that I am a very well resourced victim of police behaviour. And while I was pretty shaken afterwards and probably for some time, for some weeks later, I felt a bit funny about remembering it. I thought to myself, what must it be like to not have the resources that I have? What must it be like to be a young person, an indigenous person, a migrant person.

Really, I was thinking about the massive disproportionate power relationship, and if I'm one of the most able of arrestees, then it gave me a lot of insight into what a lot of people live with every day when they have interactions with the police. The other thought was that I thought I'd been wronged and I wanted to do something about it. So I then went on a journey for the next nine months or so trying to find out how I could get a remedy for the wrong that had been done to me.

RUBY:

We’ll be back in a moment

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RUBY:

Simon, we're talking about your search for accountability after you were arrested by police alongside protesters. Can you tell me about that journey, the steps that you took to try and seek accountability from police?

SIMON:

Yes. So the first thing I had to face was that there was a fine. And the fine is like a traffic fine, it's like a speeding fine, except it was a thousand dollars. And it was for something that I didn't do because the fine was for participating in a protest and I wasn't participating in a protest. I was a bystander and there were plenty of bystanders around the place. So I had to contest the fine. Part of contesting the fine was to get evidence and the police in New South Wales, wear body worn videos in their vests. So with a Freedom of Information request, I was able to get access to that video and to know that the video showed that I wasn't participating in a protest. And the video also showed the police behaviour.

But then that avenue was cut off when the police withdrew the charge, they sort of took court away from me as a forum for accountability. So I was no longer able to show the video and question the police and challenge their version of events and to tell my story. So that was the, that was the first thing. The second thing is, I think what most people think about if you're facing a problem with the police, you complain to the ombudsman, you complain to some independent oversight agency. And there is no independent oversight in New South Wales. The ombudsman doesn't have a role anymore in overseeing complaints.

I can complain to the police and they can do an internal investigation. That doesn't inspire confidence, the idea that the police would investigate their own conduct. Or I can complain to a corruption commission, but I'm not alleging that it's corruption and it's like there's this gap in between, somewhere between corruption and an internal investigation. There's nowhere for the bulk of daily policing to be scrutinised.

RUBY:

Right. So why is that? What, how did that come about - this situation where there isn’t an independent body where a person can go to complain about police conduct?

SIMON:

So since the early 80s, late 70s, in New South Wales, the New South Wales ombudsman, had the power to oversee police complaints and investigations, and that would have given me some confidence, knowing that if I was going to make a complaint about the police and it was going to get investigated, that investigation would be either done or overseen by the ombudsman.

Under a police minister who himself was a former police officer, the police association achieved the reform that they wanted and they managed to get rid of the ombudsman's oversight jurisdiction and to shift that oversight jurisdiction to the new corruption commission but only when the conduct is very serious. So they opened up this gap and it suited them to know that, yes, they could be investigated for corruption or they could conduct their own investigations. But there was a large area of their work that would remain largely unseen.

RUBY:

Right. So where did all of this leave you then, Simon? You couldn't go and have any of this heard in an open court because police had actually withdrawn the charge and the fine. You didn’t feel confident that police would be able to investigate themselves, and the corruption commission wasn’t useful because you’re not alleging corruption. So do you have any other options in a situation like this?

SIMON:

The option that everybody then has, when you've been assaulted, is to sue for assaults, for damages. That's a very personal remedy. I mean, that might get me some compensation but that doesn't change behaviour. It might if I could go down that long, slow, expensive path of running a court case and ended up with my day in court. But the New South Wales police spend millions of dollars every year to settle these cases. So if I was to sue, the chances are pretty high that the police would attempt to settle the litigation and write me a check. I'm not interested in that. I want, I want a public scrutiny of police behaviour. My energy now is directed to supporting others who have been similarly mistreated and who are contesting fines, who don't have a thousand dollars at hand and the charges are being pursued, to publicise it in discussions like this so that there might be some political reaction and reservations.

RUBY:

And so what are your thoughts on the fact that there is this lack of independent oversight? What does that mean for us if we have a police force that really isn't being held to account? There's no mechanism, necessarily, to do that.

SIMON:

I think it's really troubling. It's more troubling now than it has been for a long time. We've got, we know, a global trend which is reflected in Australia to an extent towards authoritarianism. There's increasing confidence on the part of the state that it can act aggressively, ostensibly to protect our interests, and that we seem to be willing to allow that to happen. And the checks and balances are falling away. So that's my concern, is that, sure, this was a student protest that I got caught up in. It's fairly benign in the larger scheme of things but it's indicative of a confidence that through the police, the state have in exercising power and authority. And I think we're losing the balance.

RUBY:

And since your arrest, we’ve seen more protests, on a range of issues, and we have also seen police continue to be granted unprecedented power to enforce lockdown restrictions. As you’ve observed that, what have you thought?

SIMON:

So I think what has changed is police being more willing or feeling that they're more able to exercise those discretions and those judgements in a way that perhaps they would have been more careful about before. So in the absence of a sense that you're subject to review, discretions you exercise are going to be less considered more reckless. And I think that's the territory we're in.

RUBY:

Simon, thank you so much for talking to me about all of this.

SIMON:

Thanks Ruby, I enjoyed it.

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RUBY:

Also in the news today…

The Prime Minister, Scott Morrison, has announced that his government is in the process of developing a plan to reach net zero emissions by 2050, but senior Nationals figures are reportedly resistant to the proposal.

Meanwhile, former cabinet minister, Darren Chester, has announced he will temporarily stop attending Nationals’ party room meetings, as a result of party leader Barnaby Joyce’s failure to rein in outspoken MPs like Matt Canavan and George Christensen. And in Victoria some restrictions are set to ease on Tuesday night when the state is projected to reach the 80 percent single dose target. Outdoor sports like golf and tennis will resume and the travel limit will be extended to 15km.

I’m Ruby Jones, this is 7am, see ya tomorrow.