Federal Court Rules Victoria Police Declaration Invalid
The Federal Court has determined that a declaration made by Victoria Police, which granted officers increased stop-and-search powers in Melbourne's CBD for a six-month period, was both invalid and unlawful.
The declaration, which began on November 30 and designated the CBD and surrounding areas as a "designated area," provided police and Protective Service Officers (PSOs) with expanded authority. These powers included the ability to search individuals, their possessions, or vehicles for weapons, request the removal of face coverings, and direct individuals to leave an area under specific circumstances.
Victoria Police revoked the declaration on January 9. This revocation occurred weeks after protest organizer Tarneen Onus Browne and performance artist Benny Zable, represented by the Human Rights Law Centre (HRLC), initiated a challenge against the Assistant Police Commissioner in the Federal Court.
Legal Basis for the Ruling
The applicants argued that the designation violated the Victorian Charter of Human Rights and Responsibilities, citing concerns regarding freedom from arbitrary arrest, privacy, and freedom of expression. Lawyers also contended that the face covering provision infringed upon the constitutional right to political communication and peaceful assembly. They further argued that a six-month designation over such a large area was invalid.
Justice Elizabeth Bennett found that a jurisdictional error occurred in declaring the designated area, rendering it invalid. The decision was also deemed unlawful because the Assistant Commissioner did not adequately consider the Victorian Charter of Human Rights and Responsibilities. Justice Bennett stated that the decision-maker's interpretation and application of statutory criteria were "erroneous" and that certain charter rights, including the right to privacy, were not taken into account.
However, the court concluded that the declaration did not contravene the implied constitutional freedom of political communication.
Impact and Reactions
Following the ruling, HRLC legal director Sarah Schwartz stated that the case highlighted "significant and systemic failures in Victoria Police's decision-making process." She emphasized that designated areas should be applied only in "extraordinary circumstances" and that the ruling prevents unchecked police powers in such areas from infringing on fundamental human rights, particularly concerning peaceful protest.
Tarneen Onus Browne described the decision as a "huge win" for Indigenous Victorians and those planning to participate in rallies, stating it would allow for the exercise of protest rights "free from police harassment."
A spokesperson for Victoria Police indicated that the force respects the court's decision and would review its findings. The spokesperson added that no stop-and-search declarations are currently planned for the Melbourne CBD on Australia Day, as intelligence does not suggest a heightened risk of violence. Victoria Police stated its intention to protect the community and remove dangerous weapons from streets.