On Australia Day in 1998, I was the legal observer for the ‘Nude Ain’t Rude’ rally at Belongil Beach.
There were hundreds of naked protesters, angry at the police for targeting hippies swimming in their birthday suits.
I was, by far, the most modestly dressed in my suitably long ‘Legal Observer’ t-shirt.
There were no arrests, and the constabulary stood on the sand hills and watched and took photos for their files.
Somewhere in a bottom (pun) drawer at Byron Bay police station, there are photos of Nudies Ain’t Rudies attendees flaunting their much younger stuff. It was only when we returned to our cars that we saw police handiwork.
Almost every car had a parking ticket or sticker or notification for defects.
All were false – mine was for a hair-thin crack in a wiper blade. Some just paid their fines, but those that fought, won.
Fast forward to May 2019, and an affable competent solicitor in a far north coast country town, not too far from Byron, who was representing a person with bikie connections in the local court.
The police were from strike force ‘Raptor’, otherwise known as the bikie busters.
The day before court, police held a briefing, where a senior police officer directed two junior plods to target the solicitor. One was told to ‘engage with him’, and ensure that ‘he does not make it to court’. And they dutifully waited outside his house and booked him for failing to indicate as he reversed out of his driveway.
Then they followed him and issued him with a major defect notice for an oil leak, banning him from using his car.
After he walked home and got his motorbike, they issued him with an environmental noise ticket, even though they had not heard the bike running.
He was so spooked he told the court he could no longer act, and requested permission from the magistrate to leave by the staff exit to avoid further interaction with the police.
This intimidatory conduct was not disputed when the matter went before the Law Enforcement Conduct Commission (LECC). It detailed the stalking, lying, bullying, false charges, humiliation and intimidation meted out to a lawyer just for doing his job.
And not just to him – to his partner, and even a taxi driver that dared to give him a lift.
There was no oil leak or adverse noise. It was an invention. The indicator offence was described as ‘deliberate, deceitful and malicious harassment’.
It illustrated the sense of entitlement that has developed within strike force Raptor, and that this represented a complete failure of management. The LECC found that the performance of the solicitor’s role was interfered with, and that the targeting was not done for a legitimate policing purpose. ‘Serious misconduct’ was the finding.
But the real sting of disappointment is in the consequences. I was reading through the report, expecting a recommendation of criminal charges, or at the least for sacking someone.
How wrong I was – no criminal charges, no sacking. Just a recommendation of reviewable action by the Commissioner against the police involved – an internal disciplinary process that could be like being slapped with a wet lettuce leaf. I don’t know what you have to do to be sacked or charged with perverting the course of justice in this day and age, but surely this was well and truly over the line?
But what do we expect when a policeman faceplants a young First Nations’ man into the ground (almost a year ago) in Sydney, and yet no charges or even a word on disciplinary proceedings have eventuated. That must be the longest investigation in human history, where all the evidence is actually on seventeen seconds of audiovisual footage we have all seen. And maybe we up here have been hardened by the dismissal of the case against a Byron Bay police officer who struck a young person 18 times with a baton, six of the strikes occurring after he was in two pairs of handcuffs and was being restrained by several police officers. Not guilty of assault. No word on disciplinary proceedings there either.
One of the key features of a police state is a lack of accountability of the police themselves. I genuinely fear for our fragile democracy.
Let’s not hear of any more tired analogies of ‘bad apples’ for two reasons. First, if you aren’t picking the rotten apples out of the box, their rot will spread. And secondly, bad apples come from bad trees.
Accountability breeds good practice; unaccountability is a blank cheque for misconduct.
I was asked recently, ‘Aren’t you afraid of the police because you speak out against them, aren’t you scared of retaliation?’ Well, yes, sometimes I am. So I check the rubbers on my wipers regularly, I don’t act for bikies, I don’t drug drive and I swim dressed in my worn out legal observer t-shirt at Belongil in an act that is part paranoia and part hypervigilance.
But actually, I keep speaking out because I’m more afraid of something else;
David Heilpern is a recently retired magistrate and the author of several law-related books, journal articles and reported judgments.
He was the youngest magistrate in Australia when appointed in 1998.