Can You Record a Police Officer Without Permission?

By Sahar Adatia and Jimmy Singh

On Friday August 31, legal advocacy group, the National Justice Project, launched the mobile app, “Copwatch” in Dubbo, NSW, in a bid to target alleged police harassment of local Aboriginal communities.

The app – which was launched as a response to appeals from numerous Indigenous communities around cases of police violence against its members – is designed to empower Aboriginal communities by enabling them to film communications with authorities in order to hold them accountable when it comes to occurrences of police harassment. The app will help to advance engagement, trust and accountability between police and Aboriginal people.

The area of Dubbo was selected, in particular, following a recent police crackdown on youth crime in the area. In May, the Dubbo police district recorded 233 arrests, which sat at 40 per cent higher compared to any other NSW police district.

Alongside such statistics, the belief upheld by the local elders of Wiradjuri is that young Aboriginal people are being “harassed on a daily basis.”

As a consequence of the vast complaints and alleged maltreatment of Indigenous children by police, National Justice Project’s head solicitor, George Newhouse, deemed it vital to roll out the technology.

How Does Copwatch Work?

Copwatch operates in three ways: it outlines your rights; it immediately alerts your chosen contacts by sending a message (via text); and it allows you to quickly record when encountering police.

The recorded footages are then automatically uploaded to the cloud.

The fact that the footages automatically uploads to the cloud means, that the footage is still accessible from a device other than the mobile phone used to record it. The footage will not be deleted or hindered from being accessed if police take your phone.

Alongside its introduction, a training workshop was also run with the local Aboriginal communities by human rights lawyers and media professionals to educate on safely using mobile phones and social media to video and distribute recordings of incidences with the police.

Mr Newhouse expressed hope that the app and educational website will assist Indigenous residents to be aware of their rights when facing the police’s “hard-line stance.”

“Copwatch is a way of empowering young people in a legal and safe way,” Dr Newhouse said.

“Overseas experience shows both police and community members behave better when they’re under scrutiny, full stop,” he said.

Copwatch’s Inaugural Launch in Broken Hill Last Year

The Copwatch app was first introduced last year in Broken Hill. The National Justice Project raised more than $60,000 to launch the program and part of this included teaching a group of 25 Aboriginal community members, including adults, children and service providers, their legal rights around using mobile phones in terms of safe documentation of misconduct by authorities.

The program was led by lawyer and Aboriginal justice advocate Shaun Harris, who shared guidelines on how and when to film the police, what steps to take prior to sharing the recording on social media, along with ways to protect it.

The local Broken Hill residents who attended disclosed accounts of alleged racism, prejudice and aggravation by government agencies, in particular the police.

One resident, Julie Bugmy, expressed the workshop was crucial for the community and reassured them of their rights.

“I think it will be quite good for our people especially our young kids because I think a lot of it needs to be recorded,” Ms Bugmy said.

Backlash from Police About Authority Control

In response to the launch of the app, Commander Peter McKenna from the Orana Mid-Western Police District expressed disappointment that police nor himself were requested to attend the training workshop “to give a more balanced perspective.”

He stated his concern in speaking at this workshop to “dispel any myths that there is any type of targeting or hard-line police approach.”

“I can categorically state there is no racial profiling of any type in relation to our policing strategy, our policing strategy isn’t new, it’s about taking a proactive approach to disrupt criminal behaviour, it’s certainly not targeted at youth, however, it is targeted at the criminal element who would like to cause harm to our community,” Superintendent McKenna said.

At the same time, he has also advocated that he has no issue with people filming their experiences with police so long as it does not obstruct police work in any way.

“Our frontline police are doing exactly what this app will be doing, and that is video and audio recording their interactions with the community, especially at times of arrest,” Superintendent McKenna said.

Your Right to Film Using Copwatch

Mr Newhouse has assured that while recording the police can be a daunting activity for many people, filming authorities in public places is entirely legal.

“You are allowed to film police performing their duties in a public space,” he said.

“Of course, there are rules about obeying instructions, standing back, not blocking the road, not causing a danger. And provided you follow those reasonable instructions and stand back – and we do encourage people to de-escalate situations, we don’t want a confrontation – and generally if you follow those rules you won’t break any laws.”

Although some police officers may make attempts to prevent members of the public from filming them while on duty, police have no right to stop or prevent such filming in public unless the filming is causing obstruction or hinderance to police in executing their duty at the time.

For an outline of the law on whether police can confiscate your phone, click on our blog can cops take your phone.

Have a question on this topic? call our experienced criminal lawyers to arrange a free consultation.

What is the Law and Penalty for Obstructing an Officer in NSW?

The penalty for obstructing a police officer is up to 5 years imprisonment if guilty under section 58 of the Crimes Act 1900 (NSW).

You will be guilty of obstructing police if the prosecution can prove each of the following elements in court:

1. You interfered with the police’s duties. This can include threatening or preventing the officer from doing his/her duty; and
2. The officer was acting within his/her legal power under the law; and
3. the officer was either a police officer, sheriff’s officer, prison officer or any person acting in the victim’s aid.

If the police officer is being obstructed by your conduct, you cannot be guilty of obstructing the officer if the officer wasn’t acting lawfully. An example of police not acting lawfully can be where the officer was using excessive force than what was required in the circumstances of an arrest.

If you want to learn more about your rights using Copwatch, you can read about them here.

We also have an assault charge lawyer available in each of our offices in NSW to answer any of your further questions from this blog.

Hope for Fairness and Change with the App

Last week, according to the Law Council of Australia’s Justice Project Final Report, it was found that over-policing of Aboriginal communities leads to increased rates of Aboriginal incarceration – a figure which is now 12.5 times more than for non-Aboriginal people. Additionally, Indigenous women were imprisoned at more than 20 times the rate of non-Aboriginal women.

Aboriginal Legal Service Chair Bunja Smith commented on the circumstances, explaining that “after starting in Broken Hill last year, the Aboriginal Legal Service is pleased that Copwatch is being rolled out in Dubbo, where there’s been increasing concerns about over-policing and the adverse impact on Aboriginal communities, particularly on our younger people.”

“We’ve had reports that some young people who are rugged-up on a cold winter’s night, wearing hoodies, beanies and gloves, have been unfairly targeted and brought into contact with police after being stopped and searched while going about their business. It’s totally unwarranted.”

According to the Chair, it is this kind of over-policing that reveals the sheer need for “greater transparency and accountability in how police interact with local Aboriginal people.”

Thanks to Copwatch, Indigenous communities can be educated on their rights and how to use their smartphones as a tool to legally film their experiences with local authorities.

“The video they take can then be used in court as evidence, to expose any harassment, intimidation or misconduct and keep police accountable for their actions,” Ms Smith said.

“There is a long history of mistrust between police and Aboriginal people, particularly in remote and regional areas of NSW and that can only be changed if police work with us to develop better relationships with our communities.”

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