Civil rights and crossing the line

Civil rights and crossing the line

This piece was originally published by The Age

Given Victoria Police use force, on average, every 2.5 hours, it seems they might have achieved their monthly quota in the space of last Friday morning. An alarming statistic when one considers that the spike was due not to a surge in knife crime or even petty theft, but a gathering of people seeking to exercise political freedoms protected under the law.

Whatever one's views on the Occupy Melbourne protesters and their aims, the decisions and actions taken by lord mayor Robert Doyle and the Victoria Police to forcibly evict peaceful demonstrators from City Square raise a number of serious questions about infringement of fundamental civil and political rights and the excessive use of force by Victoria Police. Importantly, in Victoria, these human rights have legal force, through the Victorian Charter of Human Rights and Responsibilities, our version of a human rights act.

Doyle has a democratic duty as a public official, and a legal responsibility as a "public authority" under the charter, to act compatibly and give proper consideration to human rights when making decisions. These rights include freedom of expression and the right to peaceful political assembly, as well as the right to liberty and security of person. The decision to forcibly evict the protesters should be carefully scrutinised against these obligations.

The onus lies on Melbourne City Council and Victoria Police to justify the necessity for the forcible eviction of the protesters. It is also incumbent upon the authorities to demonstrate the action taken was necessary and proportionate in the circumstances. It is difficult to see how the stated objectives of restoring the amenity and aesthetic of City Square could justify substantial interference with fundamental rights and freedoms.

Police have responded to criticism by stating that they were obliged to act after the council decision. Regardless of whether the decision to evict the protesters was lawful or not (and arguably it was not), the use of force by Victoria Police must comply with the law, in particular the legal responsibility to respect human rights when carrying out their duties.

Police officers should only use force as a last resort and only when strictly necessary. It should be used with the utmost restraint and in a manner which minimises damage and injury. For example, the use of capsicum spray is only justified if there is an imminent threat of serious injury and officers have attempted other non-violent means. It is incumbent upon Victoria Police to demonstrate the force used was necessary.

The use of temporary fencing to contain the protesters should also be scrutinised. "Containment" is a tactic used by police to contain and eventually disperse large groups of protesters. Victoria Police contained the Occupy Melbourne protesters with some success to effect their eviction from the City Square. The High Court in England considered this issue in relation to the G20 protests in London and police were found to have acted unlawfully in containing non-violent protesters. The court said containment of protesters was only justified in "truly extreme and exceptional circumstances" where no other means were available to prevent an imminent breach of the peace and only "as a last resort catering for situations about to descend into violence". It is difficult to see how Victoria Police's containment of protesters was justified measured against these threshold requirements.

Excessive use of force is not a new issue for Victoria Police. The Human Rights Law Centre and other community organisations have long campaigned for reform of the regulation, training and monitoring of police use of force. The events serve to underline the need for a fully independent, adequately resourced body to investigate police misconduct and incidents involving the excessive use of force. Such an independent investigatory body would not only reduce the risk of collusion or corruption, but increase public trust in police processes.

In recent years, Victoria Police has improved training on the use of force; including by promoting the importance of human rights and increasing the emphasis on communication and conflict de-escalation. Victoria Police has said that "human rights protection is synonymous with good policing in liberal democratic societies". The recent actions of Victoria Police in forcibly evicting peaceful protesters and suppressing the rights to freedom of expression and assembly, however, show further reform is necessary to "uphold our rights".