Over the last few years, we have witnessed the expansion of police powers and the encroachment on our rights to peaceful protest, with no corresponding measures to monitor or hold police to account when things go wrong.
On 11 September 2024, Victorians witnessed hundreds of police in riot gear, armed with batons and holding clear plastic shields lining the streets in Melbourne’s central business district and surrounds. Garbage bins were set on fire as police horses charged at the crowds. Videos circulated of wheelchair bound protesters forced out of their chairs.
Approximately 1,500 protesters attended a protest against the Land Forces Exposition being held at the Melbourne Exhibition and Convention Centre. The Land Forces Expo not only showcased defence gear, weapons and technology, but also housed a number of forums with domestic and international government decision-makers and military personnel. Against the backdrop of almost a year of bloody conflict in Gaza, many of the protesters attended to oppose the war and the sales of deadly weapons in their own backyard.
Inner Melbourne Community Legal received many complaints from people who attended the protests. They have shared with us their experiences of the indiscriminate use of oleoresin capsicum spray (OC spray) against peaceful protesters, elderly participants being shoved and injuries from the use of flash bang devices and hard foam baton rounds (which appear similar to rubber bullets). Media reports have emerged of a photographer requiring surgery after being hit by a round.
We heard accounts from independent legal observers and medics being assaulted and obstructed from carrying out their duties by police officers during the protests, with one medic recounting that they had treated at least 12 patients, half of whom required treatment from OC spray. Legal observers reported the dangerous use of non-lethal weapons, including tear gas, flashbang and kinetic impact projectiles onto large crowds of people who had their hands up or were otherwise immobilised.
With the increasing use of police powers and supply of weapons, what happens when police behave poorly? Who watches the watchmen?
For people who have been injured by police there few options available to bring police to account. They can initiate costly civil proceedings or make a complaint. Currently, the only way to make a complaint about police misconduct is through the Independent Broad-Based and Anti-Corruption Commission (IBAC) or directly to Victoria Police’s Professional Standards Command. IBAC Annual report shows that 99% of the matters they receive are referred back to Victoria Police for its internal investigation, notwithstanding serious concerns held by IBAC in 2018 about the poor management of conflict of interests and low rates of substantiation. Police have shown time and time again that they are incapable of conducting impartial investigations against themselves.
Protest powers creep
The police response to the Land Forces protests demonstrated the extraordinary powers available to police in Australia and confirmed the shift towards the use of these to stifle protests.
Overseen by more than 1,000 interstate and Victorian police, the area around the Melbourne Convention and Exhibition Centre was declared a designated area under section (s) 10D(1) of the Control of Weapons Act 1990 (Vic). This gave the police extra powers, including enabling police to stop, search, detain and seize any person in the area without a warrant.
The day before the expo, the Supreme Court of Victoria authorised special police powers to protect persons attending Land Forces from a terrorist act. This included special powers to obtain the identity of a person, search persons and vehicle, place a cordon around the target area and seize and detain objects.
These powers are usually adopted in counter-terrorism operations and are understandably secretive. However, in this context where they have been enacted to control a public protest, the lack of transparency about the targets of the authorisation and the basis for forming this view leaves it open for police to utilise their powers in an indiscriminate and arbitrary manner under the guise of national security.
Concerning use of force
While not all protestors acted appropriately, what stood out was the police’s excessive use of force, particularly indiscriminately towards crowds of protestors, including those seeking medical assistance.
The Victoria Police Manual (VPM) Operational Safety policyprovides ‘the success of a police operation will be primarily judged by the extent to which the use of force is avoided or minimised’. By their own definition, it appears the police operation at Land Forces was a failure.
Coupled with the widened ambit of police powers exercised by over 1,000 Victorian and interstate police officers (at the estimated cost of $10-15 million to the taxpayer), it was reasonably foreseeable that the use of force would result in lawful protesters being injured.
In April 2024, the IBAC released its thematic review into the use of OC spray by Victoria Police and found that police officers did not follow the VPM’s guidance that OC spray be deployed only when there are reasonable grounds to believe it is necessary and proportionate, and that it should not be used on people who are ‘passively resisting’. The IBAC also found the decisions and actions of police often escalated incidents or increased the risk of safety of those involved, and officers or investigators did not properly consider human rights when using OC spray.
A call for accountability
Victoria needs a Police Ombudsman now. With the rapid expansion of police powers in protests, It is alarming that the State has not implemented any corresponding measures to ensure the use of powers is monitored and can be independently investigated when these powers are misused.
Following the Royal Commission into the Management of Police Informants, the Victorian Government instituted its Systemic Review of Police Oversight to acquit recommendation 61 that:
That the Victorian Government, within two years, undertakes a review of institutional and legislative structures for the oversight of Victoria Police’s exercise of powers, to ensure that Victoria’s police oversight system is consistent and coherent and contributes to improved police accountability, including through outcome-focused monitoring of police decisions and actions.
Since 2022, this review has stalled.
The Chief Commissioner admitted during the Yoorrook Justice Commission that he saw benefit in the independent investigation of police complaints. More recently, in the family violence context, the expert panel for the Rapid Response into Family Violence Strategy reiterated calls for an independent oversight body for police and the need for accountability as a means of rebuilding trust and confidence for victim survivors.
The Greens referred Victoria Police’s response to protests last week to IBAC for an independent review into the use of force. This referral to IBAC has been described by Chief Police Commissioner Shane Patton as ‘rubbish’. He voiced his pride for his police officers and noted ‘the way they used restraint when confronted by people intent on provoking violence and using violence.’
In the absence of an independent police oversight and complaints option, perhaps the outcome of any complaints referred to Victoria Police has already been decided.
