LEGAL OBSERVER REPORT: The Policing of the IMARC Protests

Download a PDF copy of this 45 page report here.

Media: Legal observers find police ‘set tone of violence’ at anti-mining protests. Benjamin Miller, The Age, December 7, 2019.

 

Executive Summary

The police tactics, approaches and the behavior of individual police members during the IMARC protest events from Tuesday 29th to Thursday 31st October demonstrated that Victoria Police do not have the tactical or operational ability to manage peaceful but defiant protests of this nature without resort to excessive levels of coercive force that exceed their lawful powers and obligations under the Charter.

A Legal Observer stated; “From the moment we arrived at 6.30 on Tuesday, even with relatively small number of activists present the police were using violence and aggression. They were clearly not responding to ‘escalating tensions’ or ‘risks’ posed by protesters. Police set a tone of violence from the outset. Even before delegates or larger numbers of protesters arrived I witnessed police pushing people to the ground and reacting in a violent and aggressive manner.”

The protest activities that took place in the conference vicinity over the four days took various forms, including a ‘First Nations smoking ceremony, marches, a ‘die-in’, mock dinners, public speeches, musical performances, meditation, and a picket-line-style human blockade of several key entrances.

Most protest activities included or were accompanied by activists chanting, singing, or holding banners. Other blockade protests included people using superglue to attach their hands to roads or to surfaces to slow or prevent removal by police. One person was observed who had locked on to a handrail by a bicycle D-lock.

Prior to any police action, the picket involved activists linking arms and standing in lines in order to block venue entrances. A critical point to make here is that despite this configuration being disruptive and aimed at preventing access to an area or an entrance the actions of people standing in a line, linking arms were not physically threatening or violent in and of themselves (See Figure 1 above). It was the response by authorities to this protest activity that warrants attention.

We noted and were deeply concerned by the targeted arrests of protest organisers – some at the very moment they were addressing the crowd with a megaphone. The deliberate confiscating of megaphones, either during an arrest or by taking them off the ground when left unattended early on the Tuesday 29th was also concerning. This clearly limited protester’s ability to communicate political messages effectively to the large crowd and was specifically mentioned by police liaison and protest organiser’s as hampering their ability to prevent unnecessary escalations. It pointed to an antagonistic and stifling approach to the protest. More than anything it indicated police willingness to flagrantly ignore Charter rights to political expression, not to mention the freedom of political communication protected by the Constitution.

Legal observers witnessed, recorded and documented multiple incidents of excessive, unnecessary and potentially unlawful uses of force, either as a coordinated crowd control tactic or by individual police members using excessive force within a police maneuver or tactic. This policing had a series of obviously harmful physical, emotional and psychological effects on the individuals affected.

Inappropriate and mis-applied tactics

The use of force and crowd control techniques we observed being applied at the IMARC protest event were designed and developed for circumstances where police face direct physical threat.

At the IMARC protest event these same techniques were directed in most cases at people who were offering no direct physical threat to police. The police actions over those three days shocked many protestors, journalists and observers present. That people were scared, injured, and placed in excruciating levels of pain for what was an act of peaceful protest is greatly disturbing.

Victoria Police do not appear to have developed tactics and approaches that can be lawfully applied when a person is defiant or refusing to cooperate with their directives. As discussed in detail below, the law, and Victoria Police’s own internal Regulations and Guidelines clearly stipulate that OC foam cannot be used against a person who is “passively resisting,”[i] yet OC foam was sprayed in precisely these circumstances.

That stipulation is a critical human rights protection for citizens. It means that police cannot threaten or apply force solely to make a person comply with their directions unless there is a clear and proportionate rationale to do so.

Victoria Police appear not to have considered developing tactical options and approaches to managing protest events like this in the 13 years since Victoria enacted the Human Rights Charter.

This report asserts that Victoria Police cannot use the tactics we observed at IMARC and maintain their obligations under the Human Rights Charter.

It is the actions of police where use of force has been applied against protesters who were not physically threatening that will be the focus of this report.

Victoria Police Commander Libby Murphy was reported in the media as stating: “We are doing things lawfully and we are doing things in line with policy and anything that is of a concern to anyone we will review and make our own assessment.[ii]

“Everything the police are doing are [sic] predicated by the behaviour of the protesters,” declared Murphy.[iii]

Justifying or rationalising abuses by pointing to the poor conduct of some protesters is a common response by police during and after protest events such as these, and no doubt police were disturbed by the level of defiance and determination of protesters to physically blockade entrances to the conference venue, however it contradicts a basic principle of human rights protection: that the rights and dignity of a person must be observed despite the behaviour or criminality of that person or other people.

Even the most exceptional circumstances such as a state of emergency do not justify a departure from basic human rights standards for law enforcement.

 

‘Disruption’ is not a justification for unlawful assault

‘Disruptions’ occur every day throughout metropolitan Melbourne. Road works, traffic accidents, street parades, despite their potential inconvenience to ambulances, people using public roads or amenities, or getting to and from work—are accepted by the public and policed in ways which reflect that acceptance and safely facilitate their existence.

When it comes to political protest the rhetoric of ‘balancing rights’ quickly becomes a useful justification to intervene and limit protest rights rather than a genuine attempt to uphold them. We see this in the arbitrary time limits police place upon protesters standing on a road. We also see it when levels of force are used to move protesters standing outside a building that are totally disproportionate to any harms caused by the protest itself.

This claim by Victoria Police of ‘balancing rights’ also creates the misconception that police must be acting impartially. The documented tactics, behaviour, and demeanour of police observed at the IMARC event were far from impartial.[iv]

International human rights jurisprudence clearly recognises that peaceful assembly, by its very nature, is disruptive, can inconvenience, and be perceived as a nuisance by some people, but that “rights worth having are unruly things.[v]

As discussed below, even if the actions of some or a minority of people involved in an event are unlawful, this does not remove the right of peaceful assembly for others collectively. Individual actions that are unlawful committed in the course of a demonstration cannot be used to justify the removal or limitation of the collective rights to peaceful assembly and expression.[vi]

The rights to peaceful assembly, association and expression are explicitly recognised and protected within Victorian legislation and international human rights law precisely due to their importance to the establishment and maintenance of a free, equal and democratic society. The freedom of political communication is likewise protected by Australia’s Constitution.

In essence, the bar to determine whether ‘disruption’ becomes a threat to ‘public order or safety or morality’ needs to be set quite high by police, courts and authorities.  Particularly in light of the extent of disruption caused regularly by other public events mentioned above.

Any policing of civil society actions or events that limits these Charter rights must be lawful; necessary, reasonable and proportionate as set our in et Charter itself.

The United Nations Code of Conduct for Law Enforcement Officials is also clear that police use of force must be strictly necessary and proportionate.[vii]

By refusing to move upon the direction of police, IMARC protesters were committing, at worst, very minor (Summary Act) offences. These offenses do not justify the use of batons, punches, kicks, the dangerous use of horses, or pepper spray. People should not suffer bruising, scratches, soft tissue, ligament damage and intense pain from chemical sprays for engaging in civil disobedience.

In many cases noted by legal observers, police failed to give directions, commands or orders prior to police use of force. In effect, protesters were engaged in civil disobedience in order to maintain a picket line or blockade of the conference. Despite chanting and yelling at times, the actions of the protesters, although they included periods of rapid movement and outright defiance of police directions, did not include physical violence.

Police will often use a legal construct called ‘Breach of the Peace[viii] as the reason to arrest, to move-on or use force against protesters—yet that legal term is extraordinarily vague and open almost entirely to the police member’s interpretation and ‘reasonable belief.’ It is not an offence found in the Summary Offences Act, but rather a so-called ‘common law offence’ that permits police to arrest the individual to prevent further breaches of the peace.

Figure 2: Use of police horses was particularly dangerous; Photo, Liam Petterson, Farago

 

The common law does, however, provide some guidance on what may be considered a breach of the peace. Common law courts (in Australia and the United Kingdom) have held that the following do not, in themselves, constitute breaches of the peace:

  • ‘Mere refusal of a trespasser to leave [a] premises’;[ix]
  • ‘Mere disobedience of a police direction’;[x] and
  • ‘Peaceful and non-violent’ protest, even if an activist is ‘loud and  assertive.’ [xi]

In the Max Brenner Case the court held that what constituted a ‘threat to public order’ needed to take the rights of protesters to express their political beliefs into consideration.[xii]

A colourful, loud, active protest that attracts public interest and generates robust discussion may be lawful and legitimate even if it causes inconvenience to the public.

The lawfulness of protesters’ conduct is contested. The various charges laid by police will be heard in court and are outside the scope of this report. A great many, if not most, of the charges laid by police were for an offence that would not have occurred if it were not for the police crowd control tactics employed—i.e. the offence would not have occurred were it not for the police action.

Generating chaos and confusion

Police tactics such as crowd pushes and manoeuvres directly into crowds by the Mounted Branch turned static and peaceful picket lines into dangerous commotions, and generated high degrees of distress and chaos.  The policing tactics understandably caused confusion and alarm amongst protesters.

Legal observers present at the IMARC protest stated that police “set the tone for the protest from the outset,” and that police surges into the crowd, and their hostility and aggression, was “clearly not responding to any ‘escalating tensions’ or ‘risks’ posed by the protesters.” In fact, observers noted that prior to many police manoeuvres, protesters were standing in lines, listening to speakers, singing and chanting like many protests.

The angry, surging, chaotic scenes covered in the television news footage were often the direct aftermath of a crowd surge by a phalanx of police, injurious use of force or a push by police horses into a crowd.

Much has been made in the media commentary of the chaotic, seemingly aggressive nature of the crowd behaviour.

We note that many commentators, including the Police Minister, the Premier of Victoria and the Deputy Prime Minister, would have only seen footage provided by news channels, most of which captured this chaotic, angry aftermath of a police use of force tactic. We advise commentators and external parties to consider the context of news footage prior to making broad public statements about the nature of a complex event such as this. (See Recommendation 9).

This dynamic of police actions generating chaotic and uncontrolled crowd reactions is well documented in the literature of public order policing.[xiii] Even unintentionally, police crowd control tactics can cause panic, distress, generate anger, confusion and create enormous harms far worse than the supposed offence or ‘breach of the peace’ that the tactic is intended to mitigate.   These tactics therefore affect people arbitrarily including the media, legal observers, first aiders, the elderly, the disabled, the young and the less physically robust people present. This is what we saw at IMARC.

 

Tactical options & alternative approaches

Police have a range of non-force tactical options available to them at public order events that present far less risk to everyone. As an example to illustrate this, had the disruption to the conference been a gas leak rather than a protest, police would have facilitated foot and vehicular traffic safely around the disruption, planned alternative access measures with conference organisers and sought to minimise risks to the public and maintain safety. In some circumstances this may have involved finding an alternative venue. The principles of safety and minimising risks to the public would have guided a policing response to many other significant disruptions to an event, building or public thoroughfare such as a traffic accident or medical emergency. As the protest completed soon after midday each day, police had the option to leave a protest in place for periods of time and direct conference attendees well away from the protest area.

As illustrated below (See 1. Police Negotiators) police did not take a Negotiated Management approach to this event.

Notably, the Melbourne Convention & Exhibition Centre has approximately 39 different access points including the car park. As part of their operations, police, undoubtedly in collaboration with building security, locked multiple entrances and left only a few open and accessible to conference attendees. Although there may have been several operational reasons for this decision, it had the effect of most conference attendees having to make their way inside the building via one of the few entrances where protesters were concentrated.   In some cases, police and private security were seen directing or shepherding attendees toward entrances already blocked by the protest picket line. Police were specifically requested not to do this by protesters engaged in police liaison roles. Whether intentional or not, this had the effect of maximising the contact between conference attendees and protesters, which in-turn meant police using the levels of force as described below in order to make a gap in the picket line.

We noted that on the Tuesday police created an entry point for delegates at the Clarendon Street entrance and protesters responded by stretching their blockade line further to prevent that entrance being used as well.

We acknowledge that the protest groups were mobile and determined to block all access to the conference if possible and that police would have been concerned about protesters entering and disrupting the conference from inside had more entrances been available.

It was noted however that by the final day of the conference, venue staff were directing attendees to other building access points, which significantly reduced police and protester contact. It remains unclear why this was not done earlier.

Overall it appears that police did not plan for or did not take up numerous opportunities for a negotiated management approach to this protest event. This is discussed further in 1. Police Negotiators below.

It remains concerning that police chose to apply coercive tactics that maximised the risks to members and the public. Police tactics shifted static, managed, and relatively well–behaved crowds into chaotic scenarios; and, utterly failed to take into account the safety, well-being, or rights of people who were protesting.

Police were obviously concerned about potential ‘breaches of the peace’ and had publically stated their concern over some protester behaviour toward conference attendees. Legal observers present did not directly observe any physical interactions between protesters and conference attendees, although we noted some reported in the media.[xiv]

In general we observed the police response to the public was plainly excessive and generated more harm than that which the police were supposedly attempting to prevent. Police teams would run out of the police line, push, shove, and in some cases arrest people who were simply holding banners or making a speech through a megaphone. Observers noted that police were often confused, reactive and often appeared unsure as to the purpose of a particular tactic.

Police use of force that falls outside police guidelines and regulations is serious and could be determined to constitute unlawful assault by a court.

This report highlights multiple incidents which, if brought before a court, or if were independently investigated, we believe would likely found to be unlawful.

Policy Rules contained in the Victorian Police Manual (VPM) cited below are mandatory and provide the minimum standards that employees must apply. Non-compliance with or a departure from a Policy Rule may be subject to management or disciplinary action.

Amongst other findings, we argue below that it is not possible for Victoria Police to deploy horses as a use of force technique and still abide by its own Use of Force policy, practices and procedures. (see Recommendation 2)

Complaints and accountability

We understand that numerous formal complaints have been submitted to either Victoria Police or IBAC since the IMARC protests. We also understand that many people have decided not to submit complaints due to lack of confidence in the current system of internally handled complaint investigation. It is of deep concern that the vast majority of the many allegations of potentially unlawful police behaviour documented in this report are unlikely to ever by adjudicated independently. To date the current police oversight body IBAC have not scrutinised the varied controversial issues with public order policing in Victoria in any systemic way.

We have included a recommendation for the Victorian Government to enact and resource a Police Misconduct and Corruption Division within IBAC that can independently investigate allegations of serious police misconduct.

A PDF copy of the full 45 page report is available here.


[i] Victoria Police Manual (VPMG Crowd Control)

[ii] https://www.abc.net.au/news/2019-10-30/climate-rally-police-pepper-spray-protesters-imarc-melbourne/11652182

[iii] https://www.theage.com.au/national/victoria/police-insist-actions-showed-fine-restraint-despite-violent-clashes-with-protesters-20191030-p535wk.html

[iv] The two most prominent cases of a police demeanour could be exemplified through the reports of one police officer having been disciplined for posting a sticker on his police-issued Body Worn Camera that said, “EAD hippy,” where ‘EAD’ is slang “Eat A Dick.” Another officer was observed to have been making racist comments and was later reprimanded for flashing a white-power hand gesture, to which the media revealed a context of his apparent affiliation with white-supremacist groups on social media. In both cases, Victoria Police at first vehemently denied the reports, and even questioned the credibility of those making the claims, only to admit a short time later that they were accurate, and that they were “extremely disappointed by the situation.” These were the most publicised cases, but can reflect the general attitude and demeanour of the police presence observed throughout the IMARC event.

[v] In considering the need for tolerance of disruptive protest (whether intentional or collateral) the words of Laws LJ in Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23 are insightful:
“Rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them.” (at [43]).

[vi] Strasbourg case law which emphasises that a protester does not lose the right to assemble/protest peacefully unless they themselves are violent:
“an individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration if the individual remains peaceful in his or her own intentions or behaviour”. (Ziliberberg v Moldova, App no 61821/00 Admissibility decision of 4 May 2004).

[vii] https://www.ohchr.org/EN/ProfessionalInterest/Pages/LawEnforcementOfficials.aspx

[viii] https://www.findlaw.com.au/articles/4539/what-is-breach-of-the-peace.aspx

[ix] Jordan v Gibbon (1863) 8 LT 391, cited in White v South Australia (2010) 106 SASR 521 [399].

[x] R v Reid (No 2); Forbutt v Blake (1981) 2 A Crim R 28, cited in White v South Australia (2010) 106 SASR 521 [399].

[xi] Percy v Director of Public Prosecutions [1995] 1 WLR 1382.

[xii] Max Brenner (Unreported, Magistrates Court of Victoria, 23 July 2012). As a Magistrates Court case, it has limited precedential value, but it is significant as it is the first case to examine trespass laws in public places in light of the Charter.

[xiii] See for example: della Porta, D. and Reiter, H., eds., 1998. Policing protest: the control of mass demonstrations in contemporary democracies. Minneapolis, MN: University of Minnesota Press.

[xiv] https://www.theaustralian.com.au/nation/police-clash-with-climate-activists-outside-mining-conference-in-melbourne/news-story/3426da4225b27a15848edbeb1019193c (Mining conference delegates tell of abuse by climate change protesters, The Australian, Nick Evans, Tessa Akerman and Scott Henry)

One thought on “LEGAL OBSERVER REPORT: The Policing of the IMARC Protests

  1. Pingback: What is ‘Strategic Incapacitation’? | Melbourne Activist Legal Support

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