Class action launched over police use of capsicum spray at IMARC blockade

September 5, 2022
A still taken from a video of police spraying capsicum spray into protesters at IMARC. Photo/video: Zebedee Parkes

A class action against Victoria Police’s use of capsicum spray at the October 2019 blockade of the International Mining and Resources Conference (IMARC) was initiated in the Supreme Court of Victoria on September 2.

A coalition, known as Blockade IMARC, protested the three-day conference, which aimed to link mining companies with investors, describing it as a “gathering of corporate criminals …  [complicit] in creating the climate crisis that is threatening the world with extinction”.

Police deployed aggressive force against the protesters, using batons, horses and capsicum spray.

The class action alleges that police breached the Victorian Charter of Human Rights and Responsibilities 2006 by using capsicum spray in a way that is coercive, with no immediate or proportional threat to officers or the public.

Section 16 of the Charter states there is a right to peaceful assembly. Under section 38(1), it is unlawful for public authorities to act in a way that is incompatible with a human right.

Section 462A of the Crimes Act 1958 states that person may only use proportionate force that is reasonably necessary to prevent a serious crime from being committed or to help in the arrest of a person committing that crime, or suspected of committing that crime.

Lead plaintiff for the class action, Jordan Brown, is alleging the police conduct outside the IMARC breached the Crimes Act, the Victoria Police Manual and the force’s internal instructions for the use of capsicum spray.

Class action law firm Phi Finney McDonald and Inner Melbourne Community Legal (IMCL) are seeking compensation, as well declarations from the court that the police breached human rights.

IMCL principal solicitor Gregor Husper said: “We’re concerned about the rising militarisation of Victoria Police and the protection of protest rights under Victoria’s human rights laws. The rights for peaceful assembly and freedom to demonstrate are integral to a functioning democratic society.”

Legal observers at the protest reported the indiscriminate use of Oleoresin Capsicum (OC) foam by the police. The Melbourne Activist Legal Support’s 45-page report noted that the police “set a tone of violence” with their actions.

Victoria Police’s internal guidelines on capsicum spray state: “[Police officers] should not use OC aerosols when a person is only passively resisting.” In other words, capsicum spray should not be used in an indiscriminate manner, as a form of crowd control, or to enforce compliance.

Police behaviour at the blockade was another demonstration of the Daniel Andrews government’s ongoing militarisation of the force. A swathe of military-grade equipment, including projectile weapons, were purchased for the police in 2016.

The Operations Resources Unit of Victoria Police received $35 million over five years to acquire weaponry, such as 175-shot pepper ball semi-automatic rifles, 50-metre-range launchers and grenades that can release rubber pellets.

These weapons are being increasingly used at protests, including at the 2017 No Pride in Hate protest and during anti-lockdown demonstrations last year. All Protective Services Officers are now also armed with tasers.

Lead plaintiff Brown stated that the case is about “holding the police to account for [their] actions and decisions”.

The class action proceedings are continuing in the Supreme Court.

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