LONSW has collected evidence and testimony from protestors charged following the 9th February Herzog rally arrests and protestors considering submitting evidence to the LECC investigation into police actions on February 9th. The ongoing arrests have restricted the capacity of community members to provide evidence to the LECC investigation due to the risk of police raising prosecutions on the basis of relatively minor conduct. Further, the deployment of high levels of police resources for early morning home raids on protestors have created an ongoing intimidatory effect for community members who participate in protest, indefinitely putting at risk people’s right to protest safely and without fear of police violence. The cumulative effect of these policing practices creates both a chilling effect and a concrete risk of further criminalisation on spurious grounds over relatively minor conduct. These factors can reasonably be expected to reduce the number of people who choose to come forward and engage with the LECC process, raising questions about the completeness of the LECC’s eventual findings.

Following February 9, officers attached to Central Metropolitan Region established Strike Force Laine to investigate the actions of participants. Police have since arrested at least 16 more individuals who participated in the protest. In April, police informed a lawyer representing protestors, Nick Hanna, that they would be making an additional 30 arrests over April and May. Police have continued laying charges relying on PARD powers even after these were declared unconstitutional on 16 April, with at least two protestors charged since then having the PARD used as part of the basis for their charges.

On 24 March, two people were subject to police raids on their homes and arrested, a 27 year old woman from Potts Point, charged with assaulting a police officer and other offences, and a 31 year old woman from Kellyville, charged with affray and other offences. 

On 26 March, police carried out a 5am raid on the home of a 42 year old person who had attended the protest. Police forced entry into the person’s home while they was asleep. They were taken to Burwood Police Station and charged with hindering/resisting police, intimidating police without actual bodily harm, throwing a missile at police, and using indecent language. Police alleged they threw a water bottle at an officer during the February 9 rally and threatened to assault another officer. The person had no prior criminal history. Police seized their phone and required them to provide the passcode. The level of police resources used and the tactic of carrying out a home raid in the early morning are highly disproportionate to the charges laid and the conduct alleged. 

These home raids are part of a broader pattern of protest policing recorded by rights groups nationally where police act with the goal of intimidating and constraining protest networks, using powers ordinarily reserved for networks of organised crime. This includes both intimidatory raids and the use of bail conditions to constrain contact with other protestors and restrict freedom of movement. Two protestors charged at the Herzog rally have received non-association conditions, at least one person is subject to an overnight curfew and at least one person has to visit a police station 3 times a week. The overnight curfew condition was imposed on a protestor after he refused a bail condition to not enter the Sydney LGA. The non-association conditions have affected the defendants’ living arrangements, which could be seen to be unduly onerous under the Bail Act. Multiple people were banned from entering the CBD or indeed the entire City of Sydney LGA. It is unclear what specific risk or bail concern such a condition would mitigate. Bail variations applying to remove curfews and place restrictions have been successful, indicating that the Courts did not deem these conditions necessary/minimally onerous. While bail variations have resulted in more restrictive bail conditions being dropped, this takes time and legal resources to challenge. Police have also continued to impose similar onerous conditions to ones removed by the Court on newly arrested protestors even after the Court decisions removing these conditions for protestors charged on 9 February.

These arrests have a direct impact on the LECC investigation into police conduct on 9 February, Operation Makalu. Evidence submitted to the LECC may be revealed to police as part of a private examination concerning a particular incident or public hearings. The LECC has no legislative powers to ensure that this evidence is not subsequently used by police as part of criminal prosecutions. This means individuals submitting LECC complaints have no protection from either self-incrimination or incriminating others. Several community members have reported to LONSW that fear of police pursuing criminal prosecution on the basis of the evidence they submit to the LECC has stopped them putting in complaints. At least one of the people arrested as part of Strike Force Laine was a witness to the police assault of Derek Jones, a protest attendee who was grabbed and punched by police officers during the rally and is now pursuing a civil claim against police. The criminal charge makes it very difficult for the person to provide evidence to the LECC investigation without risk to their own criminal liability, as doing so could involve disclosing evidence that may be used against them by police in a criminal proceeding. The ongoing arrests of protestors therefore directly constrain the evidence available to the LECC investigation. Redfern Legal Centre has warned that these arrests are “having a chilling effect on community members who might otherwise come forward with evidence to the LECC” and stated that their clients are fearful about participating in the ongoing investigation by the LECC due to ongoing police actions. 

In a media release on 8 April, Samantha Lee, Assistant Principal Solicitor, Redfern Legal Centre said:

“These very public arrests by NSW Police are being used as a deterrent and a demonstration of state power.

“RLC is gravely concerned that this disproportionate use of police power is designed to punish, intimidate, and discourage members of the community from coming forward to the Commission about their experiences at the protest.

“This conduct appears to be improper and unreasonable and may amount to interference with a Law Enforcement Conduct Commission investigation. 

“There are serious concerns about police conduct on 9 February.”

“Police actions since the protest are causing further distrust within the community.”

“These excessive police actions risk undermining the LECC investigation entirely, by deterring witnesses from engaging with the process out of fear or intimidation.” 

“This investigation into alleged misconduct by NSW Police must be allowed to proceed without obstruction or intimidation.” 

“Any conduct that undermines public confidence or interferes with the LECC’s work should be urgently stopped and independently investigated.”

The targeting of protestors with home raids and arrests while police conduct is the subject of an active LECC investigation is in effect intimidatory. It has actively frightened and in turn discouraged affected protestors and witnesses away from providing footage, statements and other evidence to the very body tasked with scrutinising police conduct. This directly undermines LECC’s ability to conduct a complete and accurate investigation. The consequence may be that serious misconduct escapes accountability as protesters or witnesses are deterred from providing evidence. Where critical evidence is unable to be provided, police accounts may go untested and the LECC investigation may be compromised.