Key Takeaways
- The Federal Court has found that a Victoria Police declaration giving officers greater stop-and-search powers in Melbourne’s CBD for six months was invalid and unlawful.
- The declaration was made under the Victorian Charter of Human Rights and Responsibilities, which includes freedom from arbitrary arrest, privacy, and freedom of expression.
- The court found that the Assistant Commissioner did not give proper consideration to the charter and made a jurisdictional error in declaring the designated area.
- The ruling has significant implications for the use of designated areas and stop-and-search powers by Victoria Police, and highlights the need for greater oversight and accountability.
- The decision is seen as a major win for human rights and the right to peaceful protest, particularly for Indigenous Victorians and marginalized communities.
Introduction to the Case
The Federal Court has made a landmark ruling in a case challenging the validity of a Victoria Police declaration that gave officers greater stop-and-search powers in Melbourne’s CBD for six months. The declaration, which was made in November, covered the city centre and several surrounding areas, and gave police officers and Protective Service Officers (PSO) additional powers to search people, their possessions, or vehicles for weapons, request someone to remove a face covering, and direct someone to leave the area in certain circumstances. However, the declaration was revoked on January 9, after a challenge was mounted by protest organiser and Indigenous Victorian Tarneen Onus Browne and performance artist Benny Zable in the Federal Court.
The Court’s Ruling
The court found that the declaration was invalid and unlawful, as the Assistant Commissioner did not give proper consideration to the Victorian Charter of Human Rights and Responsibilities, which includes freedom from arbitrary arrest, privacy, and freedom of expression. Justice Elizabeth Bennett said that there was a jurisdictional error in declaring the designated area, and that the Assistant Commissioner’s understanding and response to statutory criteria was "erroneous". The court also found that the declaration did not contravene the implied constitutional freedom of political communication. However, the court noted that the decision "failed to take into account certain [charter] rights" including the right to privacy, and had limited rights by "making a declaration outside of the power" conferred by the law.
Implications of the Ruling
The ruling has significant implications for the use of designated areas and stop-and-search powers by Victoria Police. The Human Rights Law Centre (HRLC), which represented the applicants in the case, said that the decision had "laid bare the significant and systemic failures in Victoria Police’s decision-making process" and highlighted that designated areas should only be applied in "extraordinary circumstances". The HRLC’s legal director, Sarah Schwartz, said that the case meant that Victoria Police could no longer infringe people’s fundamental human rights in designated areas, and that the decision put the legality of previous and current designated areas in question. Tarneen Onus Browne described the ruling as a "huge win" for Indigenous Victorians and those planning to attend rallies on January 26, saying that it would allow people to exercise their right to protest for First Nations justice in a safe way that’s free from police harassment.
Response from Victoria Police
A spokesperson for Victoria Police said that the force respected the court’s decision and would take time to consider its findings. The spokesperson said that there were no stop-and-search declarations planned for the Melbourne CBD on Australia Day, as there was currently no intelligence to suggest a heightened risk of violence. The spokesperson also said that the force’s intent had always been to protect the community and remove dangerous weapons from the streets. However, the ruling highlights the need for greater oversight and accountability of Victoria Police’s use of stop-and-search powers, and the need for the force to ensure that its actions are consistent with the Victorian Charter of Human Rights and Responsibilities.
Conclusion
The Federal Court’s ruling is a significant victory for human rights and the right to peaceful protest in Victoria. The decision highlights the need for Victoria Police to ensure that its actions are consistent with the Victorian Charter of Human Rights and Responsibilities, and that the use of designated areas and stop-and-search powers is subject to greater oversight and accountability. The ruling is also a major win for Indigenous Victorians and marginalized communities, who have long been subject to over-policing and harassment. As the HRLC’s Sarah Schwartz said, the decision means that Victoria Police can no longer infringe people’s fundamental human rights in designated areas, and that people will be able to exercise their right to protest in a safe and peaceful way.