Police handed extra powers to disperse protests

August 1, 2001



MELBOURNE — Civil libertarians and activist groups are gearing up for a campaign to defeat the Victorian Labor government's plans to introduce new legislation giving police wide-ranging powers to violently disperse political protests, demonstrations and picket lines.

Under the guise of recognising "the right to assemble peacefully" and abolishing the old Unlawful Assemblies and Processions Act 1958, the proposed bill will give police the power to use force to disperse any assembly they believe may involve unlawful damage to property or violence.

The proposed legislation removes many of the limited safeguards in the old legislation, such as requiring a magistrate to "read the riot act" prior to police dispersing an allegedly riotous crowd. This had enshrined the principle of civilian control over the actions of the police and provided limited protection based on the separation of powers.

Under the new laws people will have a "right to peaceful assembly" but this will be subject to restrictions deemed necessary in the interests of "public safety", "public order" and protection of the rights of the public and persons "to enjoy the natural environment" and "to carry on business".

In practice this means a police officer, of the rank of senior sergeant or above, may give a direction to an assembly of people to disperse if they are acting in a manner "involving unlawful physical violence to persons or unlawful damage to property". They even have the power to do so if they "reasonably believe" the assembly may act in such a way.

If people do not disperse after 15 minutes it will be "lawful for a member of the police force, using no more force than is reasonably necessary, to disperse or cause to be dispersed" the assembly of people.

The order for a dispersal can be given when the chief commissioner (or his/her delegate) "reasonably believes the assembly may become a riotous assembly".

Damien Lawson of the Western Suburbs Legal Service is concerned that the definition of "riotous assembly" is so broad that most demonstrations and picket lines could fall within its ambit.

"It is rare that any demonstration or picket line could not be portrayed as something that 'may' involve the possibility of damage to property or violence — even if the likelihood of this occurring is very remote."

The bill would also formalise the notion of collective punishment by making no distinction between those allegedly committing acts of unlawful violence or damage to property and others participating in the assembly.

Given past and recent experience, the bill will allow the police to use a high level of force against people who are merely standing or marching in a crowd of people.

"Police already have wide-ranging powers to use force to arrest people committing breaches of the criminal law, or even to prevent serious breaches of the law" said Lawson.

"This bill would allow police to punish people merely for being in an assembly where some individuals may have committed unlawful acts. Even people who are not physically mistreated as a result of the 'dispersal' may receive fines of $100 just for being in the crowd."

Jude McCullough is the author of Blue Army — Paramilitary Policing in Australia, which traces the steady increase in police powers.

She argues that this legislation will dramatically impact on the ability of people to protest by greatly reducing police accountability, while increasing the likelihood of police violence against protesters.

"The bill creates a legitimate legal space to do the things which have already been done at S11 and the Richmond Secondary [College] protests in 1994", she said. "In the past, police actions at these events were legally dubious at best but police will be in a stronger legal position to legitimately take such actions if their powers extend to dispersing protesters."

"And let's be clear that in practice, 'dispersing' is a euphemism for committing violence against protesters".

The government's supporting discussion paper suggests the bill reflects common law powers the police allegedly already have to disperse demonstrations and picketlines.

But if this is the case, Lawson argues, then there is no need for this legislation.

"Surely given the complexity of political protest and the varied policing involved, it would be better to leave the regulation of these activities to the courts who can examine the lawfulness or otherwise of police action in light of all the circumstances. This legislation raises the bar higher for finding police negligent for the use of force because it indemnifies police across a very broad range of circumstances."

McCullough notes that since the early 1990s, police "are using much higher levels of force, using batons rather than arresting and using the notion of collective punishment ... This legislation would make these practices unambigously lawful. It is the state legitimising past practices."

This notion of collective punishment may also lead to further changes in police practices.

Lawson is worried that "because the [bill] allows police to use force indiscriminately against a crowd, as opposed to particular individuals, there is concern that this could allow police to be more willing to use other types of weapons, such as tear gas and water cannons which target people indiscriminately".

Sarah Peart of the protest coalition O3-CHOGM Alliance is very aware of the timing of the legislation.

"The bill will be introduced into the spring session of parliament. We are concerned that they are trying to pass it before the Commonwealth Business Forum is held here in Melbourne from October 3-5."

She believes that, if passed, "It would give police far greater powers to do what they have already been doing at protest actions like S11 — indiscriminate baton charges, sending horses into peaceful demonstrations, provoking protesters before violently dispersing an action."

Said McCullough, "This bill requires a groundswell of opposition from outside the parliament in order to defeat it. Civil actions have kept police on a leash. This legislation takes them off that leash. It is difficult for the police to claim the high moral ground when they are breaking the law. This proposed legislation potentially changes that and we need to make sure it doesn't become law."

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