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)

PRELIMINARY STATEMENT OF CONCERN: Policing of IMARC Protests

Tuesday 29 October 2019

Melbourne Activist Legal Support (MALS) fielded a team of Legal Observers at this mornings protest events at the International Mining and Resources Conference (IMARC) that took place at the Melbourne Convention & Exhibition Centre
South Wharf in Melbourne, Victoria.

The protest involved activists chanting, singing, holding banners, speaking and linking arms at the entrance of the Conference centre to block the entrance in a peaceful manner.

Image may contain: one or more people and people standing

Legal Observers were present at the site from 6.30am-12.00pm, observing, monitoring and recording police conduct and interactions with protesters. Over that time the team recorded behaviour and noted several areas of concern:

Excessive use of force.

Legal observers have recorded multiple instances of police shoving and pulling protesters with such force that they were propelled to the ground. Police have been observed pushing protesters down concrete stairs and kicking protesters without giving prior warning to move on. Police were observed grabbing and pulling protesters around the neck.  Multiple injuries of protesters have been reported including one protester who was thrown into a cement wall and hit the back of his head.

Use of mounted horses for crowd control.

Police mounted branch have been recorded moving directly into crowds to push back protesters. Multiple injuries have been reported including one activist at 8.00am who received medical attention by emergency service workers with a suspected broken arm and leg. It is well recognised that horses can cause severe, bone breaking injuries.

Legal Observers noticed that the horses were visibly ‘spooked’ by the presence of a large inflatable ‘Earth’ ball. (8:15am). In light of the above, MALS calls upon Victoria Police to immediately withdraw the mounted unit from crowded areas and prohibit their use on future days of the protest event.

Use of capsicum spray and police batons.

Legal Observers recorded police officers using police batons to strike and push back protesters. Several overhead baton strikes were recorded which contravene VicPol’s baton use guidelines.  OC foam and OC spray was also used multiple times by police officers on the crowd of protesters. Despite the crowds being loud and non-compliant, it appears the use of OC spray and police batons was a measure to force compliance with a direction to move on, rather than in response to violence or serious physical threat to police or bystanders, that would warrant such use of force under common law requirements or 462A Crimes Act.

Our observations were that in numerous instances the use of force was excessive, harmful, unnecessary and was well outside of Victoria Police’s Use of Force guidelines.

Removal by police officers of identification name tags and refusal to give identification when asked.

Legal Observers have observed police officers purposely removing their name badges and turning them around to obscure their identification.

Commentary:

By refusing to move IMARC protestors are committing, at worst very minor (Summary Act) offences. These offenses do not justify the use of batons, punches, kicks, dangerous use of horses. Police have a range of tactical options available to them that do not use force (ie. leave a protest in place for periods of time – the protest completed at approximately midday) and present far less risk to everyone. Police tactics such as crowd pushes and maneuvers directly into crowds by the mounted unit turned static and peaceful picket lines into dangerous commotions and generated high degrees of distress and chaos.   Many of the charges laid by police during the event were in direct relation to the actual actions of police. (ie the offense would not have occurred were it not for the police crowd control tactic itself).

At the time of writing, there were an estimated 200+ police officers present and approximately 40+ arrests. Melbourne Activist Legal Support will be attending the blockade each morning  until Thursday 31st to continue our observations.

This is a public document and can be quoted by media.

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To support Melbourne Activist Legal Support’s work in protecting your space to protest please donate now to our crowdfunding page:https://support-activists.raisely.com/

STATEMENT OF CONCERN: The Policing of ‘Extinction Rebellion’

Princess Bridge Blockade and dance protest event Saturday 14th September 2019, Melbourne, Australia

Please Note: A response by Victoria Police to the Statement of Concern is included below.

On Saturday 14th September 2019 Melbourne Activist Legal Support (MALS) fielded a team of eight (8) trained Legal Observers at the ‘Princes Bridge Block & Dance’ protest event that took place on St Kilda Road between the Flinders Street intersection and the Victorian Arts Centre precinct.

The protest was organised by sixteen local chapters of an international climate movement, Extinction Rebellion. The widely promoted event was billed as an explicitly nonviolent “powerful, fun and peaceful disruption”.[i] The protest was originally intended to go until 21:00 that evening.[ii]

Legal Observers worked in pairs and were interspersed across the protest site from 11:30 until 15:00, monitoring and recording observed police manoeuvres, conduct and interactions with protesters. The team observed several hundred police working in different Public Order Response Team (PORT) units, arrest teams, the Mounted Branch, plain clothes police prosecutors, the Evidence Gathering Team and witnessed up to forty-four (44) arrests by police.

Over that time the legal observers team noted several areas of concern as described below. Six recommendations to Victoria Police stemming from these observations are included at the end.

A downloadable copy of this Statement is available here (PDF).

1. The police cordon prevented hundreds of supporters from joining the protest thereby limiting the right to peaceful assembly.

From approximately 12:15 police began placing blue and white police tape across the road at the both the north (CBD) end and the south (Arts Centre) end of the protest area. This tape, combined with lines of police along and around the area affectively created a ‘protest zone’ on the Princess Bridge. Police started soon after (from 12:27 onwards) police began preventing people entering or moving through this area including the footpaths on either side of the bridge. By 12:30 the area including footpaths was entirely blocked by police cordons. People were directed to use other bridges to get to the opposite side of the Yarra River.

Importantly, this cordon was established and people actively prevented from accessing the protest prior to any warning of unlawful activity being provided by police.

Figure 2-3: Police establishing a cordon to restrict access to the peaceful assembly. [Photos by Legal Observers]

Reasons provided to Legal Observers and the public by individual police members as to why they were preventing access varied but many cited ‘public safety’ or ‘operational safety’ whilst numerous police members failed to provide any reason for restricting people’s right to attend the protest event.  By 13:00 several hundred people were surrounding the police cordon area at different points with many verbally expressing a desire to join the protest [see Figure 6]. Some protesters who had left the areas to use nearby facilities were not permitted back to the assembled protest. Legal observers witnessed several people attempting to enter or remonstrating with police to be able to enter and join the protest assembled on the bridge. Numerous people also expressed concern on social media (Facebook / Twitter) about not being able to join the protest as they had intended to do.

The right to peaceful assembly is protected at international law. In Victoria, the Charter of Human Rights and Responsibilities Act 2006 (Vic) ss15 and 16;[iii] expressly protects and promotes the rights to assembly and expression. Police cannot place restrictions to arbitrarily and discriminatorily intervene in protest.[iv]

According to the Victoria Police Manual (VPM):

All police actions that limit another person’s human rights must be:

– lawful

– necessary, reasonable and proportionate, and

– in compliance with the Charter of Human Rights and Responsibilities Act 2006.

Where applied, any time, place or manner restrictions on protest must be in good faith, in accordance with law, and conform to the principle of necessary and proportionate limitation.

Figures 4-5: Police cordons established that prevented access to protest area. Note that no threat to safety was present. [Photos by Legal Observers]

‘Breach of the Peace” powers, often cited by police in these circumstances to move on members of the public, require imminent threat of violence or property damage to come into effect and are far too ill-defined to provide justification for a limitation such as this.

The United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association has stated that government action restricting protest need to be specific; they cannot be made in the abstract “or by indicating general, unspecified risks, but must be made in an individualized fashion, applied in the particular case or with a specific justification.”[v]

Melbourne Activist Legal Supports asserts that the police cordon established by Victoria Police around this protest from 12:15 until 15:00, unjustifiably limited people’s right to assemble together peacefully in order to protest. We contend that this limitation on the right to peaceful assembly was without lawful basis or rationale on the grounds of safety or public order. Despite a degree of ‘disruption’ caused by the protest event, this disruption was time limited and no more significant in affect than other large rallies and assemblies held regularly in the Melbourne CBD. There was no threat to public safety present or expressed.

It is the view of MALS that the police cordon was solely an operational tactic by police that allowed them to control the protest, limit its scale and therefore to more easily facilitate the affecting of arrests. This operational reason does not form a reasonable justification for the limitation of such an important right under Section 7 of the Victorian Charter.[vi]

Figure 6: Crowds of people being unable to join the peaceful assembly [Photo by Legal Observer]

2. Media representatives, journalists and camera operators were directed by police to leave the cordon ‘protest area’ from 13:00. This restriction on media ability to film, interview and cover the protest event was without a clear lawful basis.

Legal observers first noted police directing media to leave at 13.04 when Channel Nine news crew was directed to leave.   Other journalists and camera operators were directed to move to the other side of the police tape or cordon systematically over the next 15 minutes.

Police members provided various reasons when questioned by media personnel about why they were being directed to leave, citing ‘safety’ ‘operational safety’ or ‘police operations’. Legal Observers did not record any police providing a lawful reason or citing a legislative power for this action. Police have limited powers to move-on or direct a person to leave an area, particularly a protest or picket. It is not clear whether police were exercising powers under Section 6(1) of the Summary Offences Act 1966 or seeking to apply common law ‘breach of the peace’ powers. In either case is doubtful whether the criteria for the use of such powers would have been met in these circumstances.[vii]

It is an important principle that journalists should be allowed to carry out their duties reporting on a matter of public interest. Although safety was the most cited reason provided by police, media are well versed in covering arrest situations from a distance that does not hinder or endanger police or protesters. The restriction applied at this protest prevented interviews, footage and coverage of the protest being obtained and appeared to be without a clear lawful basis.

 

3. Obstruction of Legal Observers

Although police permitted some Legal Observers to remain within the cordoned ‘protest area’, at 12:47 several legal observers were directed by police to leave the cordoned area. Importantly, this direction severely limited the ability of legal observers to monitor arrest procedures and the use of force when carrying out an arrest. From the distance legal observers were not able to ascertain whether levels of force consistent with guidelines and lawful powers were being used.

Under the United Nations Declaration of Human Rights Defenders, Legal Observers have a right to fulfill their role unhindered and without obstruction. [viii]

Figure 7: Although some Legal Observers were permitted to remain in the cordoned area after negotiation, several LOs were directed to leave. [Photo, MALS]

 

4. Use of Mounted Branch at a peaceful protest

The Victoria Police mounted branch, (police horses) were present at this protest event, forming lines of police horse around the main protest group at the north and south end of the police cordon.

As we have stated previously the deployment of police horses for such public protest events is unwarranted an unnecessarily intimidating.

The legal observer team could see no operational reason for the Mounted Branch being deployed given the number of police present, the nature of the protest and presence of elderly, disabled and very young people. Any use of horses in public environments and amidst large crowds is by its nature extremely hazardous, due to the risk of uncontrolled and potentially fatal use of force. We reiterate our assertion that police horses should be prohibited from deployment in all crowd control applications.

Figure 8-9: Victoria Police Mounted Branch deployed when no operational reason evident. [Photo by Legal Observers]

 

5. Use of handcuffs and zip-ties when carrying out arrests

Legal observers noted multiple uses of metal handcuffs and plastic zip-ties being used as constraints during several arrests. Handcuffs were not used on all arrestees.

The use of handcuffs or similar restraints on a non-compliant person is considered a use of force and should only be used under particular conditions. In this circumstance there were no threats that warranted restraints being used.

Figure 10: Policing using a compliance hold unnecessarily whilst removing zip-ties from an arrestee [Photo by Legal Observer]

Handcuffs can cause ligament, arm or shoulder injuries, circulatory problems and severe bruising, particularly when people are being carried or moved by police.   One person arrested at this protest reported cuts on arms received during their arrest.   Anther protester reported that he was told by police that he was “resisting arrest” when he was only trying to stand up from a sitting position. Numerous people reported that they considered the use of restraints entirely unnecessary, as they had no intention of resisting the arrest process.

By taking a person into custody, police impact a person’s rights and freedoms under the Charter of Human Rights and Responsibilities Act 2006. “Any use of force must be justified and only to the level required to reasonably effect arrest or removal of persons.” – (VPMG Crowd Control)

In the circumstances observed at this protest event we do not consider the use of handcuffs and zip ties to be justified. We assert that hand cuffs or zip ties should not be used for non-resisting arrestees and not be used in circumstance where people are being carried or moved after choosing not to cooperate with their arrest.

 

6. The carrying of long side handled batons and capsicum (OC) spray

Legal Observers noted multiple police members carrying long side-handled batons and holstered capsicum (OC) spray canisters at this protest event. Legal observer noted one police member carrying OC spray in an unclipped holster (photo available).

As required by VPMP Operational safety and equipment, the Police Forward Commander must give careful consideration to the type of operational safety or other protective equipment that will be carried or worn by members at planned public order operations. “The level of equipment carried or worn should be commensurate to the risk likely to be encountered.”

Figure 11: Long side-handled batons can only be used when a police member is facing a severe threat [Photo by Legal Observer]

The legal observer team asserts that the carrying of long batons and OC spray at this protest event was unwarranted given the risks likely to be encountered. The open deployment of police weaponry is always intimidating and can be perceived as threatening to the public. This threat and intimidation can be, in affect, a limitation upon the rights of peaceful assembly and association if people do not fee safe to come to or remain at a protest.

 

 

Other Observations

The legal observer team noted several warnings being provided by police by megaphone at different times and in different locations and that police provided an individual warning and an opportunity for people to leave the area prior to each arrest.

Legal observers also noted that arrest teams of six or more police members were used to affect each arrest. This provided enough members to carry those people who chose not to cooperate with the arrest procedure and ‘go limp’ relatively safely.  Aside from those issues referred to above this meant that people were not dragged or put in danger of injury by being carried by inadequate numbers of police.

 

Recommendations:

1. Victoria Police consult with bodies such as the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) to review its VPMP Police attendance at events and incidents, operational planning and operation orders in relation to all large civil disobedience protest events in order to ensure that the right to peaceful assembly and association is fully respected and not limited by police cordons and operational tactics that contain or restrict access to protests areas;

2. Victoria Police specifically note the role of civilian Legal and Human Rights Observers within its Crowd Control VPMG and for Forward Commanders to brief operational members of the requirement to ensure the safety and access of Legal Observers who may be present at subsequent protest events;

3. Victoria Police specifically note the role of media representatives and camera operators within its Crowd Control VPMG and for Forward Commanders to brief operational members of the requirement to ensure the safety and access of media who may be present at subsequent protest events;

4. The Victoria Police update the Use of Force and the Operational Safety and Tactics Training (OSTT) VPMG and associated OST training to specifically prohibit the use of handcuffs or other restraints in protest situations when a person is ‘passively resisting’ or ‘going limp’ and ensure that they not used in circumstances where the person is being carried;

5. Victoria Police ensure that Operation Orders contain risk assessments that acknowledge and incorporate the risk of limiting Victorian Charter rights through the open and visible deployment of police weaponry, police horses and intrusive surveillance by drone or Evidence Gathering Teams.

Policy Rules contained in the Victorian Police Manual (VPM) cited above 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.

This Statement of Concern is a public document and is provided to media, Victoria Police Professional Standards Command (PSC), Independent Broad-based Anti-corruption Commission (IBAC), the Victorian Equal Opportunity and Human Rights Commission (VEOHRC), Government ministers, Members of Parliament and other agencies upon request.

A downloadable copy of this Statement is available here (PDF).

For inquiries regarding this statement please contact: melbactivistlegal@gmail.com

About Melbourne Activist Legal Support

Melbourne Activist Legal Support (MALS) is an independent volunteer group of lawyers, human rights advocates and, law students and para-legals. MALS trains and fields Legal Observer Teams at protest events, monitors and reports on public order policing, provides training and advice to activist groups on legal support structures and develops and distributes legal resources for protest movements. MALS works in conjunction with law firms, community legal centres and a range of local, national and international human rights agencies. We stand up for civil & political rights.


Response by Victoria Police to Statement of Concern:

Received 3rd October 2019

Victoria Police functions include: preserving the peace, protecting life and property, preventing the commission of offences, detecting and apprehending offenders and helping those in need of assistance. These functions reflect the long standing role of police in our community in protecting the human rights of all people and to only limit the rights of individual people by the least restrictive means reasonably necessary in the delivery of policing services to the whole community.

The Victorian Charter of Human Rights outlines the human rights and responsibilities possessed of every person in Victoria. These include, within the context of public protest and demonstrations, the right to:

  • Recognition and equality before the law (and particularly to be treated with fairness and respect and in a non-discriminatory way)
  • Freedom of movement
  • Freedom of expression, unless this expression harms the rights and reputations of other people
  • Peaceful assembly and freedom of association
  • Be protected from having property taken, unless the law says it can be taken

The Charter also makes it clear in its preamble that “human rights come with responsibilities and must be exercised in a way that respects the human rights of others”. This principle applies equally to police in the exercise of their discretion, as much as it does to any person who may conduct themselves in a way which might affect the human rights of other people.

Victoria Police plays an important role in balancing the rights of all people in the Victorian community, and ensuring the safety and public utility of all public spaces including the Melbourne CBD.

The Melbourne CBD is the location of many protests, demonstrations and public assemblies throughout any given year, and Victoria Police recognises the importance of facilitating peaceful protests and gatherings as an important part of the democratic fabric that holds our community together.

In the context of public protest, Victoria Police officers are required to balance the rights of people to go about their lawful business without being adversely impacted by the unlawful conduct of other people. This ultimately reflects what it means to live in community.

As the Assistant Commissioner North West Metropolitan Region, I am responsible for balancing the rights of individuals to peacefully gather and protest in the Melbourne CBD alongside the rights of all other people in the CBD to go about their lawful business unhindered by the activity of others.

An important element of getting this balance right is ensuring all Victoria Police members understand their legal obligations to protect and promote the human rights of all people as protected in the Charter. I am taking this opportunity to outline how Victoria Police does this, partially in response to some public comments made by individuals who were part of a recent protest in the Melbourne CBD criticising the actions of Victoria Police, to explain to them and to the broader community why we work in the manner that we do.

It is important to recognise that all people have the right to peacefully assemble and protest under the Charter, but these rights are not unlimited and come with responsibilities too on the part of protestors. Also, my members in North West Metro have to lawfully limit the human rights of people in their roles at times, and I fully support them to do this.

Both International Human Rights Law and Victorian Law protects the right to peaceful protest, and Victoria Police recognises that this includes some protest forms that inconvenience the public utility that would otherwise be enjoyed by other people in the community. The protest on September 14 is no exception to this, and Victoria Police allowed individuals to protest on the Princes Bridge in a manner that impeded traffic, trams and pedestrians in order that protestors could convey their political messages in a peaceful way.

On September 14, my operational commanders in charge of policing this protest, having identified risks:

  • public safety
  • of breaches of the peace
  • the commission of other offences, and
  • the rights of other citizens not involved in the protest being unlawfully infringed.

They then made a lawful decision to limit the rights of protestors by dispersing protestors after the protest had been underway for some time. The commentators who have criticised this decision of police note that they had intended that the protest ‘go on until 21:00 that evening’. The operational decision of Victoria Police was that this would disproportionately impact the rights of others and the movement of traffic through the Melbourne CBD, and consequently did not allow this to occur.

To be clear, the policing tactics and response on 14 September 2019 were undertaken to achieve the following ends:

  • to protect public safety (the safety of people not involved in the protest, as well as those who were participating in the protest)
  • to prevent possible breaches of the peace and the commission of other offences, and
  • to ensure the rights of people not involved in the protest were not unlawfully infringed.

All Victorians can expect that Victoria Police will continue to apply this approach in its policing of future planned and unplanned demonstrations in the Melbourne CBD and I would hope that any human rights lawyers and human rights monitors operating in this space would likewise have regard for the rights of all people and consider that with rights come responsibilities.

I fully support my staff in their decisions in this protest, and in the exemplary work they do in policing the many protests that occur throughout the Melbourne CBD.

Assistant Commissioner Luke Cornelius APM, Northwest Metropolitan Region, Victoria Police

3/10/2019

 

 

 

 


Endnotes to SoC:

[i] ‘Melbourne: Princess Bridge Block and Dance’ Facebook event. https://www.facebook.com/events/346436272910163/

[ii] Event description and sign up form https://www.actionnetwork.org/forms/september-14-dancing-on-bridge/

[iii] https://humanrights.vgso.vic.gov.au/charter-guide/charter-rights-by-section/section-16-peaceful-assembly-and-freedom-association

[iv] Lashmankin and Others v. Russia (European Court of Human Rights, Third Section, Applications nos. 57818/09 and 14 others, 7February 2017).

[v] Maina Kiai, FOAA Online!: The Right to Freedom of Peaceful Assembly (April 2017) <http://freeassembly.net/wp-content/uploads/2017/09/FOAA-Online-The-Rightto-Freedom-of-Peaceful-Assembly.pdf&gt;, 20.

[vi] https://humanrights.vgso.vic.gov.au/charter-guide/charter-rights-by-section/section-15-freedom-expression/reasonable-limits

[vii] Police have an ill-defined ‘power’ to direct a person believed to be breaching or likely to breach the peace to leave a particular location. Breach of the peace is any disturbance of public order involving the threat of violence or harm to property.

“This power extends to directing people to move on, or to refuse them entry into an area if such direction is reasonable to prevent an anticipated breach of the peace. The Summary Offences Act provides specific powers to issue a direction to move on if the member or PSO suspects on reasonable grounds that the person is breaching the peace or likely to breach the peace endanger the safety of any other person or behave in a manner likely to cause injury.” (Victoria Police Manual VPM – Procedures and Guidelines – Breach of the Peace. January 2019)

[viii] Declaration on Human Rights Defenders <https://www.ohchr.org/en/issues/srhrdefenders/pages/declaration.aspx&gt;

STATEMENT OF CONCERN: Policing of Invasion Day March 2019

On Saturday 26 January 2019 Melbourne Activist Legal Support (MALS) fielded a team of ten (10) trained Legal Observers at the Invasion Day march that took place in Melbourne’s Central Business District.  The march, which was organised by the group Warriors of Aboriginal Resistance, began with speakers at Victoria’s Parliament House on Spring Street, proceeded down Bourke St, turning south down Swanston Street and culminating at the intersection of Swanston and Flinders Streets out side Flinders Street Station.

Legal Observers monitored and recorded interactions between Victoria Police and protesters throughout the four hour event.

Areas of Concern:

We are concerned about several aspects of the policing of the event that in some instances pose unjustified limitations of rights within the Victorian Charter of Human Rights & Responsibilities Act (2006) and the implied freedom of political communication in the Constitution.

High-level of policing

  • Legal Observers noted the high level of police presence for a peaceful event, namely the deployment of a brawler van and other public order vehicles, the use of mounted police, the Public Order Response Team (PORT), a Critical Incident Response Team (CIRT), and an Evidence Gathering Team that was filming attendees throughout the event. We stress that these annual Invasion Day rallies and marches have been  solemn, entirely peaceful and well-organised commemorative events involving tens of thousands of people, including families, children and elderly people. This highly visible level of policing understandably causes anxiety among attendees and may dissuade people from attending and/or bringing their children to the event in future. It also creates the impression among onlookers and the general public that the attendees pose a risk and must be policed. As we have stated previously, we believe that over-policing such as displayed at this event constitutes a form of discrimination.

Prevention of public address system

  • Police refused to allow a vehicle with a small public address (PA) system) to accompany the march to its ending point at the corner of Swanston and Flinders Streets.  No clear reason for this restriction was provided to organisers. The same vehicle was utlised in the 2018 march safely and effectively with no problems reported by police.  A police member involved in negotiations with the event organisors was reported to have stated that the command not to allow the PA vehicle to proceed this year came from an Assistant Commissioner.  Organisor attempts to compromise and have the vehicle meet the march at its end point were also prevented by police.  This restriction on the peaceful assembly effectively removed the ability for march organisers to communicate important messages to the many thousands of attendees and therefore increased risk to attendees.   Organisers of the march were reduced to using small megaphones to direct, provide instructions and communicate with attendees. These could not be heard by the vast majority of the many thousand people who occupied several city blocks at any one time.  We believe this limitation by Victoria Police to be unjustified, dangerous and a form of suppression of political communication.

11:46 am  Police speaking to driver of one of two PA vehicles which were prevented from accompanying the march. Photo: MALS.

Temporary restriction of march

  • At 11:30am, minutes after the march had begun and moved forward for one block, a line of standing police blocked the march proceeding down Bourke Street. This caused a delay for approximately ten minutes and created a range of potential issues for the march including increasing the risk of a crowd crush as thousands of people moved forward, and health impacts of keeping people longer in the midday sun. It is not clear why the decision to prevent the march was made by police at this point however it occurred at the time when negotiations about the PA vehicle were underway.   In this scenario, police ought to have deferred to the well-organised and easily identifiable rally marshals to allow the march to proceed or pause as required for cohesion.

    Police forming a physical barrier to prevent march continuing down Swanston St. (Photo: Facebook)

    11:34am Police forming a physical barrier to prevent march continuing down Swanston St. Photo: MALS

     

  • It was observed by and reported to Legal Observers that on numerous occasions, police presence intimidated attendees by positioning themselves, horses or large police vehicles in very close proximity to attendees, often following, or parking very close to people.  Police should be aware of the impact of their presence upon members of the public. We recommend that police maintain safe and reasonable distances from members of the public during public events.

11:38am Brawler van positioned facing attendees at a distance of approximately five metres Photo: MALS

11:38am A large police brawler van and large buses followed the march at often close proximity. Photo: MALS

Use of Mounted Unit

  • The deployment of the Police Mounted Unit at the front of the march was unnecessary, and as noted above, signaled to the public that the march posed a public threat. The presence of police horses in crowd situations pose a significant risk of injury especially given the size of the crowd, the presence of children, prams, people with disability access requirements and the inability of people to freely move out of the horses way if they are maneuvered close to crowds. While they were not utilised to control crowds, their presence remains unnecessarily intimidating and increases the risk of severe injury to attendees. We remind readers that the past six Invasion Day marches have proceeded entirely peacefully and without any incident that would warrant the use of horses.

11:55am Police Mounted Unit at the front of march down Bourke Street. This is what the public saw as the march approached. Photo: MALS

Open carriage of weaponry

  • Legal observers noted police members openly carrying paramilitary-style equipment such as flash/noise distraction devices designed to shock and disperse crowds, and possibly the newly acquired stinger grenades. As we have asserted previously, the open and visible deployment of repression technology at peaceful events serves no safety or operational purpose aside from intimidation. For example, one police officer was observed casually carrying a container of OC spray outside a vehicle for no operational purpose.

11:52am Police Evidence Gathering Team were observed constantly videoing attendees throughout the event.  Photo MALS

ID Badges

  • Some Victoria Police were observed without official ID badges on display. We continue to stress, as we have in past years, that by their own regulations, VicPol members in uniform are required to wear current issue name tags that specify first name or initial/s, surname and rank (Victoria Police Manual, Uniform and Appearance Standards, Oct 2016).

General observations

We note that no rally attendees were arrested, but observed two far-right supporters being arrested and removed from the area directly in front of the Flinders Street Station clocks (1.20pm).

Legal Observers also noted numerous incidents of police speaking with, deterring or preventing far-right, nationalist or patriot identified individuals or small groups from approaching the march throughout the day.  While we note that Victoria Police were cognizant of the risk that far-right ‘patriot’ groups or individuals would attempt to counter-protest or antagonise the march, MALS does not believe this accounts for or justifies the level of over-policing, tactics, and open carrying of weaponry witnessed.

END

This Statement is a public document and is provided to media, Victoria Police Professional Standards Command, the Victorian Equal Opportunity and Human Rights Commission (VEOHRC), and other agencies upon request.

For inquiries please contact: melbactivistlegal@gmail.com

https://melbourneactivistlegalsupport.org/

Who’s who in Victoria Police

Image may contain: 2 people, outdoor

Public Order Response Team (PORT)

Identifying police at protests can be tricky business.

There are often different units with different uniforms and gear, different ranks and then police come to protests with specialist roles.

The identification of individual officers goes to the heart of accountability. It is useful for Legal Observers, journalists, street medics and activists to have an idea who is who. With accurate identification we can get a sense of how different police units might act and more accurately identify police in the case of an incident or for an eventual complaint or legal action.

The Victorian State Government has been investing a significant amount in specialist teams since 2009 when the large Operations Response Unit was established,  including protective armor, new equipment and specialist training. The latest increase in police numbers announced by Premier Andrews in December 2016 included as least 40 new Public Order Response Team (PORT) officers to increase capacity to rapidly respond to incidents involving “hostile crowds”.

The use of specialist, paramilitary style police units has been the subject of much research, analysis and commentary, in particular since the high toll of police shootings in Victoria, many by the Special Operations Group (see below) in the late 80’s and early 90’s and has been driven in part by internal police union agitation to lower police injuries with protective gear and equipment that reduces physical contact (such as tasers and OC spray) for occupational health and safety reasons. But the global policing trend toward military-like tactics, training, uniforms and equipment has undoubtedly been driven by the enormous growth in the highly lucrative international trade in repressive technologies. The rapid investment in counter-terrorism since September 11, 2001 has also resulted in a massive transfer of tactics, knowledge and equipment between police and militaries. Professor Jude McCulloch’s Blue Army, Paramiltary Policing in Australia is a great place to start if you want to delve into this more.

As David Vakallis and Jude McCulloch argue, since 2001 the trend towards more militarised policing at Victorian protests has “escalated such that the clatter of riot shields and the acrid sting of capsicum spray have become something to expect from police at protests.”

A more general discussion on why police choose certain tactics at protests can be found here.

This article, however, is focusing upon identifying the name, rank of individual police and distinguishing between the various police units at protest events in Victoria.

Name Tags

By their own regulations, VicPol members in uniform are required to wear current issue name tags that specify first name or initial/s, surname and rank. (Victoria Police Manual, Uniform and Appearance Standards, Oct 2016)
Despite calls by legal and human rights groups for many years, Legal Observers still note that the wearing visible name tags at protest events is inconsistent and that the ease of obscuring or removing a name tag poses serious problems for accountability.
If police officers cannot be identified then they can act with a high degree of impunity; research suggests that police officers who wear nametags are more conscious of the needs of the general public they are interacting with. Nametags, therefore, are an important safeguard that can help ensure individual police are held responsible for their actions.
By foregoing a nametag, police are able to assume the power of a collective identity without exposing their individuality. This is a process known as de-individuation, and can lead to higher instances of negative or socially irresponsible behaviour.
‘I tried to avoid the police without name badges, it seemed clear to me that they
were more prepared to be aggressive. I witnessed one police officer without a
badge punching a protester in the face.’ Jing, 27. Occupy Melbourne protester 2011

Identifying Police by Rank

Firstly – there are 13 different ranks in Victoria Police – from Constable to Chief Commissioner. The main ones you will see at a protest event are pictured below.

When you are liaising with police take note of their rank.  You should be speaking with someone who is a Sergeant or above and if you want to speak with a senior officer then look for the three pips. Often Inspectors are the Forward Commanders for any large protest but you can always ask for the senior officer or OIC – Officer In Charge –  when you want to speak with the most senior police officer present.

screen-shot-2017-01-03-at-10-29-04-pm

At large protests police will be drawn from other duties and also from specialist units, depending upon the size, scale and the police’s assessment of the nature of the protest.

OPERATIONS RESPONSE UNIT (ORU)
screen-shot-2017-01-05-at-10-12-17-pm

The Operations Response Unit (ORU) is a highly visible and trained response team tasked to tackle high-priority public safety, road policing and crime issues across the state.

Operations Response Unit, which was set up around 2009 employs 250-300 staff, has an intelligence cell and has access to about 68 vehicles. It is designed to provide rapid and ready response to major incidents and disasters at short notice.

The ORU members are trained to tackle issues such as CBD violence, rural traffic issues, weapons searches and crime or drug operations.

The massive investment in this new unit was authorised by former Chief Commissioner Simon Overland and boosted by his successor Ken Lay as part of a push to reintroduce ‘low-tolerance and pro-active’ policing across the state. The idea is that if police can deploy in large numbers as early as possible their presence will deter violence. The sheer scale of policing we have seen at recent Melbourne protests have reflected this ‘force of numbers’ approach.

 

PUBLIC ORDER RESPONSE TEAMS (PORT)

The Public Order Response Team (PORT) pictured above and below, are part of the ORU and includes 200 or so police members drawn from general duties who have been provided with specialist crowd control training. PORT is designed to provide a rapid and ‘force of numbers’ response to public order incidents and has dedicated vehicles and riot control equipment.

It was formed in June 2011 partly in response to a spate of ‘out of control’ suburban teenage parties and also in the wake of the London riots of that year. The primary objective of PORT is to “restore and maintain public order in volatile and/or hostile crowd environments and certain emergency management situations.”

They are often sent out to back local police targeting anti-social behaviour and public drunkenness but are also regularly deployed at protest events.   Not all PORT members wear the helmets and protective gear but are most often deployed in formations, lines or units at protests. Depending upon the weather and conditions PORT will have standard yellow vests, clear goggles and look like general duties police.

The several hundred PORT members are trained in specific tactics to deal with public order and “riot” situations.

What is defined as a ‘riot’ and who defines it is extraordinarily problematic.  We know that they have trained with tear gas and full length riot shields that we have not yet seen on Melbourne’s streets.  You can see some of this training on YouTube here.

A note on training. Police training in relation to protests tends to influence the approach taken to protesters.  If police training implies that protesters are akin to insurgents or terrorists and that crowds are inherently dangerous, and concentrates or tactical issues related to riot control, then the attitude of individual police to protesters is likely to be harsh. As we can see in this Victoria police YouTube video, out of uniform police members playing the part of protesters in the training exercise are violent, abusive and throwing objects. Undoubtedly this sort of training would colour the attitudes of police and their approaches to protesters.

http://cdn.newsapi.com.au/image/v1/209ea34605f0291d19d307ab749637d3

PORT in the Carlton Gardens. Picture: Stuart McEvoy

 

CRITICAL INCIDENT RESPONSE TEAMS (CIRT)

Launched in 2004, Critical Incident Response Teams, (pictured below) provide 24 hours a day, 7 days a week response, which includes a negotiator capability, to incidents  involving firearms, suicide, consular threats or forced entry searches that not meet the criteria of the Special Operations Group (SOG).

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CIRT members at a protest (2016)

They have access to tasers, beanbag (extendable baton) rounds, and machine guns, body armour and helmets as well as armoured vehicles.  CIRT were the first in Victoria to be provided with OC spray / foam and are only rarely present at large protest events where police anticipate violence, (or large assertive crowds that they fear that they wont be able to control without sub-lethal weaponry.)  If deployed, CIRT will usually be kept in the background at protests. They are also likely to have a different chain of command than PORT.

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CIRT at a Melbourne protest, December 2016

SPECIAL OPERATIONS GROUP

The elite paramilitary Special Operations Group (SOG) respond to incidents that are beyond the scope, experience and skill level of (CIRT) at any time.  SOG will be rarely, if ever, deployed to protest events. The SOG are highly trained in anti-terrorism tactics, building entry skills, and conducting high risk searches. Formed in 1977 its main function was, and remains, to provide a response to politically motivated and criminal terrorist activity. They have been known to refer to themselves as the “Sons Of God”.

MOUNTED BRANCH

The Mounted Branch are hard to miss at protests in Victoria and remain one of the more dangerous and controversial units in Victoria Police having been responsible for a huge number of protester injuries over the past decade or more.  Police horses are used to provide support to police at events “requiring crowd control, protests or marches needing public order management”.

Image result for Victoria Police horses

Source: Wikipedia

The Mounted Branch members train with other specialist police units, including the Public Order Response Team (PORT) and are most commonly deployed into crowds when police perceive that police on the ground are loosing control or at risk.   Lines of police horses are used as cordons when stationary, or as moving cordons behind marches, but can also be run directly into crowds, sometimes quite rapidly, to disperse or move people away from buildings or away from police lines. The use of police horses is always problematic in that the risk of serious and life threatening injury to people in crowd situations is extraordinarily high.  When horses are run directly into or near large crowds of people who can not move back it  is too easy for people to be violently pushed by the horses, to fall under, and be trampled.

The Victorian Parliament have not had any regulatory oversight on how police horses are used for many decades and their use arguably impinges upon the right to peaceful assembly.

SEARCH AND RESCUE

The Victoria Police Search and Rescue squad (SAR) conduct land and water search and rescue operations including people missing in remote and difficult areas.  They are equipped with climbing and cutting equipment.  Search and Rescue are commonly called out to protest events when activists chain, lock, U-bolt or otherwise physically attach themselves to buildings or equipment or are required to be removed from tripods, tree-sits or high-location banner-drop actions.   Generally, Search & Rescue members are professional and courteous with activists and many of them have experience with various activist lock-on devices and high location protests.

 

References and further reading:

Vakalis, D., McCulloch, J., 2012, Something Old, Something New, Something Borrowed, Something Blue, Militarized Policing and Occupy Melbourne http://overland.org.au/previous-issues/issue-occupy/feature-jude-mcculloch-and-david-vakalis/

McCulloch, J., 2001, Blue Army: Paramilitary Policing in Australia, Melbourne University Press, Carlton South Vic Australia.

Specialist Roles with Victoria Police http://www.policecareer.vic.gov.au/police/about-the-role/specialist-roles1

An Tien Hsieh and Shu-Hui Hsieh, ‘Dangerous Work and Name Disclosure’ (2010) 38
W. Heck, ‘Police who Snitch: Deviant Actors in a Secret Society’ (1992) 13

Calls for ban on police horses at public protests Peta Carlyon 26 Oct 2011, ABC http://www.abc.net.au/news/2011-10-26/calls-for-ban-on-police-horses-at-public-protests/3600874

OCCUPY POLICING A Report into the Effects and Legality of the Eviction of Occupy Melbourne from City Square, Occupy Melbourne Legal Support Team October 2012.

Do Not Resist” and the Crisis of Police Militarization, Dexter Filkins, The New Yorker, 13 May, 2016,

Police Miltarisation, ABC Radio National Sunday Extra (Audio), Sunday 24 August 2014

Public Statement: Reclaim Australia and Counter Rallies 18/7/2015

18 July 2015, Melbourne, Australia

On Saturday the 18th of July 2015 Melbourne Activist Legal Support (MALS) fielded a team of eight (8) trained Legal Observers at the Reclaim Australia and counter rallies that took place near the intersection of Spring and Bourke Streets in Melbourne’s Central Business District.

Legal Observers monitored the actions of Victoria Police and recorded evidence throughout the 5 hour event.

We note that Victoria Police had a large presence and cordoned off the entire intersection in front of Parliament House. MALS acknowledges that Victoria Police efforts were directed at maintaining space between two opposing political groupings on the day in order to avoid physical confrontation.

Areas of concern:

Legal Observers noted several incidents of use of OC foam/spray by a specialist unit of Victoria Police at the event. According to the Melbourne Street Medics upwards of 100 people had to be treated because of the use of this spray. OC spray/foam causes severe burning for several hours, incapacitation and can affect the respiratory system causing breathing difficulties.

A particular area of concern was an incident that occurred at the corner of Spring and Little Bourke Streets at approximately 12:43 PM.  An ad-hoc medic triage station had been set up on Little Bourke Street near the corner. One patient was semi-conscious on the ground and under the care of the Street Medics and waiting for the ambulance. A physical altercation between rival protestors began directly in front of the medic station when Police rushed around the corner and immediately and without warning sprayed into the crowd of 60-80 people present. Street Medics and other volunteers who were trying to keep the medic triage area clear were severely affected by the OC foam as were most people in the area (including journalists and bystanders). The injured person receiving care was again affected by the OC spray.

According to Legal Observers present the OC foam was not directed towards individuals who were threatening police or engaged in violence but instead was directed over and onto the entire crowd of people present. For this reason the MALS Legal Observer Team identifies the use of OC foam in this circumstance as indiscriminate and therefore unlawful.

MALS condemns the use of OC Foam against members of the public who were already injured and medical staff whose presence was made clear to police on a number of occasions before this incident occurred.

In the future as our group increases in capacity we hope to be able to provide more comprehensive assistance in such instances, however we would like to share the following information in the meantime:

We encourage people who want to take further action to immediately record all details from the event, including as much factual detail as possible, and to make duplicates of any footage of incidents depicting inappropriate use of force.

If any individuals or groups wish to submit a formal complaint about police conduct during the event please contact:

Police Complaints Advice Clinic

Flemington and Kensington Community Legal Centre
Phone: (03) 9376 4355
Email: fklegal@fkclc.org.au

& Website

If you would like to make a complaint directly without checking in with Flemington Kensington:

Police Conduct Unit

GPO Box 913
Melbourne VIC 3001
Telephone: 1300 363 101
Email: PSC-POLICECONDUCTUNITCOMPLAINTSANDCOMPLIMENTS@police.vic.gov.au

Check this page on the activist rights website for more information about making a complaint about police conduct.

Occupy Policing: The Eviction of Occupy Melbourne

Inspired by the global call for action by the Indignados movement in Spain, the protests and revolutions across the Arab World and the Occupy Wall Street protests in New York City, activists organised to launch Occupy Melbourne in City Square on 15 October 2011. Occupy Melbourne sought to transform City Square into a ‘common’ space of political demonstration where people could learn, discuss and demonstrate about issues of concern. In particular, the abuses of political and corporate power, globalised neo-liberalism, the imposition of austerity, and the privatisation of public services.

Six days later, in the early hours of Friday 21 October 2011, Occupy Melbourne protesters were requested by Melbourne City Council to leave City Square. A few days earlier, Lord Mayor Doyle claimed that the protesters had a ‘right to protest’ but that this right was time-restricted. ‘A week’, claimed Doyle, ‘was a reasonable time for their mindless shriek of protest’. Assistant Commissioner Fontana was reported as saying: ‘They’ve [protesters] had more than ample time to make their point in terms of what their protest is about and I think it’s time to give the City Square back to the citizens of Melbourne.’ If it is to be meaningful, any political ‘right to protest’ needs to protect how protesters make their point. Continuous protest in the form of an ‘occupation’ was central to the mode of protest that the Occupy Movement took. Placing time restriction on this defeats the specific objective of the global Occupy movement. Therefore many protesters remained in the City Square, and others joined them in asserting the ‘public’ nature of the Square and the right to be in and create open spaces for political demonstration and communication. The Square was fenced off from protesters, and basically surrounded by police.

At around 11:30am, Victorian Police officers from the Public Order Response Team in groups of 4–6 officers advance towards Occupiers and physically remove them one by one, carrying or dragging them out of City Square. Occupiers who have linked arms are wrenched out of that formation. Over 100 people are removed in this way from City Square. Communal and private property was removed from the site. Prior to this violent eviction from City Square a crowd of hundreds gather to watch and support protesters in the Square.

screen-shot-2017-01-08-at-10-01-38-amOne year on from the controversial eviction ‘Occupy Policing: A Report into the Effects and Legality of the Eviction of Occupy Melbourne from City Square on 21 October 2011‘ is highly critical of the authorities—Melbourne City Council and Victoria Police—who authorised and effected the eviction. The Report documents the personal stories of people who took part in the Occupy Melbourne protests and their experiences of policing. It complements these personal stories with an account of the relevant law. The Report was published by the Occupy Melbourne Legal Support Team (‘OMLST’) and is endorsed by the Flemington and Kensington Community Legal Centre, Fitzroy Legal Service, the Federation of Community Legal Centre and the National Police Accountability Network.

The Report documents the harmful effects of this policing operation both on individuals and also on the capacity and willingness of people to engage in political dissent. ‘Today my whole perception of what freedom means to me in Australia was turned on its head as I witnessed the scariest brutality I have ever seen police conduct’, Emily, 37, stated to the OMLST. The effects of such violence can be traumatising. Many protesters at Occupy Melbourne were new to activism and had no previous experiences of the violence inflicted in the name of ‘public order’. Protesters’ statements collated in the Report speak of the terror experienced from policing operations, including mounted police charging through the protest and the use of dog squads. The Report documents physical injuries sustained in the policing of Occupy Melbourne, cuts, grazes and bruises as well as serious injuries including broken noses, black eyes and back injuries. It also documents longer-term psychological effects. ‘For a while I would feel a wave of anxiety/panic come over me whenever I walked past or saw a police officer’, Sasha, 25, told the OMLST. The Report also argues that such violence has broader political effects in that it has a ‘stifling’ effect and acts as a deterrent to people joining and participating in movements for progressive social change.

The Report examines the various legal bases used to justify the eviction of Occupy Melbourne; breaches of local law; trespass in a public place; common law ‘breach of the peace’ powers, and; controversial statutory ‘Move-On’ powers. The Report finds that none of these bases are substantiated, and that the forceful removal of Occupy Melbourne protesters by Victoria Police and Melbourne City Council appears to have been unlawful.

These findings endorse the comments made by Liberty Victoria President Spencer Zifcak who described the legal grounds relied upon by Melbourne City Council and Victoria Police as ‘flimsy’ and ‘uncertain’. Its analysis highlights the problematic nature of police use of breach of the peace powers to justify repressive action, and points to how breach of the peace powers give police large amounts of discretion and have been used by police to instigate ‘order’ and suppress dissent, especially because these laws are difficult to challenge on the spot.

The use of force in removing Occupy Melbourne protesters from City Square and policing the subsequent protest in the Central Business District shocked the national and international community. Occupy Melbourne protesters were the first in the Occupy movement globally to be subjected to a violent policing intervention. The Report argues that there is ample evidence available as a matter of public record of excessive and unnecessary use of force. The Report documents police use of bodily force such as grabbing and dragging protesters by the neck, legs, arms; throwing and pushing protesters to the ground; punching and kicking protesters, including in the face; use of chokeholds and pressure points; and kneeing protesters in the face and groin. It further argues that such use of force arguably breaches legislative restrictions on the use of force including Victoria Police’s own internal guidelines and that individual police officers need to be held accountable for these breaches. The Report also documents the use of chokeholds, horses and OC spray in ways which were both harmful and arguably in breach of internal guidelines.

Through the course of the morning much larger numbers of Melbournians gathered in the Central Business District. Some gathered to support, some to observe, and some to demonstrate against the forcible removal and policing of Occupy Melbourne. Between 11:45 and approximately 5pm, this protest was pushed by police up Swanston Street, along Lonsdale and Russell Streets. During the afternoon, police used ‘snatch squads’ to grab people—some who appeared to be protest ‘leaders’ and others who were simply bystanders on their lunch break—from the street. Over the afternoon, approximately 100 people were taken into police custody. Protesters were taken to police stations including St Kilda, Heidelberg, St Kilda Road, North Melbourne, Moonee Ponds, Altona, Melbourne Custody Centre and Moorabbin. Others protesters were held for shorter periods. Some protesters were driven away from the Central Business District and released in seemingly random locations, including a paddock in Altona. A large proportion of protesters were held in custody for many hours, both in brawler vans and at police stations across Melbourne. The conditions of confinement were inadequate. The Report argues police were arguably acting outside of their legitimate power and internal guidelines in detaining people pursuant to ‘breach of the peace’ powers. It finds that the actions of police in detaining approximately 100 people on 21 October 2011 may well have exceeded their lawful powers and constituted false imprisonment.

One year after the events of the eviction, as far as the OMLST has been able to ascertain, no protesters have been charged with trespass or with any violent offences relating to 21 October 2011. One year later, the authorities which authorised the eviction and the policing operation have not been held accountable for their actions, individual police officers who acted contrary to guidelines on use of force also have yet to be held accountable for their actions. One year later, it is urgently time for an independent investigation to document and assess the events of the 21 October 2011 in order to authorise such accountability processes. As Tamar Hopkin, Principle Solicitor, Flemington and Kensington Community Legal Centre writes in her forward to the Report, such an independent inquiry is ‘not only necessary to restore the community’s faith that the rule of law still operates in Victoria, but is required under international human rights law where allegations of human rights abuses have been made.’

The Report can be downloaded from the Resources page here.

Julia Dehm and Sara Dehm