Opinion

Anthony Kelly
Brutality checks on activists

For those who have watched the evolution of public-order policing in Victoria over recent years, the sort of police violence we saw at the International Mining and Resources Conference (IMARC) protests in Melbourne would’ve come as no real surprise.

Over four days in late October, an alliance of activist groups – concerned about the social, environmental and climate impacts of the global extractive industries – stood outside the Melbourne Convention and Exhibition Centre, determined to disrupt the ability of industry leaders to behave as if nothing was awry. Early each morning, a long human chain would form, with activists linking arms at the centre’s entrances. Soon after, Victoria Police’s control imperative was on display.

Activists were shoved, yelled at, pushed from behind, punched, slammed into walls and whacked with batons. Organisers were “snatched”, along with their megaphones, and arrested. Horses were pushed into crowds with a ferocity that sent two protesters to hospital with many almost trampled. By the third day, more than 50 people had been covered in the relentlessly burning oleoresin capsicum (OC) foam. Others reported head, limb and back injuries.

Despite what some would have you believe, it is not the behaviour of individual protesters, nor the degree of “lawfulness” of any given protest, that determines the police response. The key determinant of whether police will use force is the extent to which police perceive they are in control of the situation. Police will often use extraordinary levels of force against activists who are entirely nonviolent but also defiant and determined to hold their space.

In the world of public-order policing, control is paramount. Control of space, control of numbers, control of the narrative – all come into play in the operational orders that guide such policing.

Legal observers present at the IMARC protest stated police “set the tone for the protest from the outset”. Police surges into the crowd, and their hostility and aggression, were “clearly not responding to any ‘escalating tensions’ or ‘risks’ posed by the protesters” – in fact, observers noted that before many police manoeuvres, protesters were standing in lines, listening to speakers, singing and chanting. The angry, chaotic scenes captured by television news cameras were the direct aftermath of crowd surges by a phalanx of police, injurious use of force or pushing police horses into a crowd.

On the first day of IMARC, long before any protesters had arrived at the convention centre, Melbourne’s Herald Sun went to print with an editorial titled “Latest protest may turn ugly”, which used descriptors such as “wild mobs”, “criminals”, “socialists” and “held parts of Melbourne hostage”. This narrative continued throughout the four days of the conference.

“Everything that the police are doing is predicated by the behaviour of the protesters,” declared Victoria Police commander Libby Murphy on day three. Justifying or rationalising abuses by pointing to the poor conduct of some protesters is a common tactic in the public-order policing handbook. But it also contradicts a basic principle of human rights protection – that the rights and dignity of a person must be observed despite the behaviour or criminality of that person or others. Even the most exceptional circumstances, such as a state of emergency, do not justify a departure from basic human rights standards for law enforcement.

Legal observers are trained to be objective and to assess police behaviour against the various laws that govern policing as well as Victoria Police’s own “use of force” guidelines. They are also trained to observe context. OC aerosols can only be used lawfully in situations “of violence or serious physical confrontation”. It cannot be used against people who are “passively resisting”, going limp or “refusing to comply with instructions only”.

Yet at IMARC, legal observers recorded the use of OC against those who were clinging to each other in protection, against activists moving away from police and onto people on the ground trying to get up. It was used to force noncompliant protesters to move. It was used to restore control.

Police are often oblivious to, or wilfully ignorant of, their own unlawfulness. They believe they are the “rational centre” of sociopolitical issues: unbiased protectors of democracy who face the challenge of balancing competing rights or two sides.

But policing of public-order events is hardly about “balancing rights”. Renowned researchers Donatella della Porta and Herbert Reiter say influences on protest policing are filtered through “the police’s perception of external reality, which shapes the concrete policing of protest on the ground”. In no small way, the decision police made to control the IMARC protest so forcefully was influenced by their negative assessment of the protest groups involved, by the Herald Sun’s red-baiting, by public opinion, by the premier’s and Police minister’s vocal encouragement – and by the relative power and prestige of the mining executives trying to get into the conference.

Many in police command sincerely believe they are the arbiters of what is legitimate and lawful protest and what is unnecessary or unlawful protest. So many human rights atrocities around the world originate from that delusion. To rationalise the use of bone-breaking levels of force against a person standing in a picket line is difficult – unless that person and the protest they are taking part in has been substantially delegitimised and devalued.

The policing we saw at IMARC was unique in that it was well covered by multiple cameras – the vast amount of police misconduct occurs far away from public view in suburban or regional streets, homes and custody cells. For well over a decade, the Police Accountability Project, run by the Flemington and Kensington Community Legal Centre, has been tracking excessive use of force, racially discriminatory policing, unlawful strip searches and police duty failures when responding to family violence. The project has found that OC foam is being used by police and protective services officers almost routinely as a method to force people to comply with directions.

I think of John, an invalid pensioner in Preston, who was pepper-sprayed when he refused police directions to come out of his home. Three police officers were charged after his story broke in the national media. The week before the IMARC protests, more stories of police brutality emerged after a joint investigation from The Age and 60 Minutes, including that of a Warrnambool man who is now a quadriplegic after police allegedly dragged him from his home by his neck.

These, and many other cases over recent years, have highlighted the inability of Victoria’s Independent Broad-based Anti-corruption Commission (IBAC) to investigate allegations of police misconduct. Woefully under-resourced, it can investigate only about 2 per cent of the complaints it receives. This means that currently everything from deaths in custody to police shootings, allegations of racial abuse and sexual assault and the misuse of police weapons, such as OC spray, are being investigated by colleagues of the police involved.

Any allegations of human rights abuses that arise from the IMARC protest will almost certainly be investigated by other police and, as such, collusion, cover-ups and extraordinarily low substantiation rates will continue. It also means operational practices that may be unlawful, discriminatory or just unsafe – for both police and members of the public – persist unchanged.

Last year, a wide-ranging inquiry into police oversight in Victoria recommended the establishment of a police misconduct and corruption division within IBAC. It also called for an increase to IBAC’s powers. The parliamentary committee acknowledged the clear public interest in a complaint system where allegations of serious misconduct are independently investigated by trained and unbiased IBAC investigators, not by other police.

Fourteen months on, there has been no response from the Andrews Labor government.

Meanwhile, the Andrews government has provided extraordinary increases to the police budget since it was elected, overseeing a massive expansion in police numbers, capacity, weaponry and powers. And yet Premier Daniel Andrews seems resistant to the idea of strengthening the state’s police accountability system.

A responsible government – recognising that people have been injured, with an international student hospitalised and dozens of other citizens subjected to a painful chemical agent at the hands of its own police force – would have faced the media last week and reminded Victoria Police its actions and methods must be explicitly authorised by law and subject to review by a fully independent complaint and investigation body.

Why the Victorian government did not is a question we should all be asking.

This article was first published in the print edition of The Saturday Paper on Nov 9, 2019 as "Brutality checks". Subscribe here.

Anthony Kelly
is the executive officer of the Flemington and Kensington Community Legal Centre.