Occupy Policing: A Report into the Effects and Legality of the Eviction of Occupy Melbourne from City Square on 21 October 2011 (published October 2012)
Download the Report here.
This Report documents the personal experiences of those who participated in the Occupy Melbourne protests and their stories of policing and the forcible removal of Occupy Melbourne protesters from City Square on 21 October 2011. These stories demonstrate the effects that the forcible removal of Occupy Melbourne protesters and the manner in which this was carried out had on an emerging political movement and the individuals participating in it.
This Report complements these personal stories with an account of the relevant law, addressing three central interrelated questions:
- What are the effects and consequences of the policing of Occupy Melbourne on individual protesters and on the rights to freedom of assembly and political expression?
- What was the legal basis for the forceful removal of Occupy Melbourne protesters from the City of Melbourne?
- Were the tactics used by Victoria Police and Melbourne City Council against protesters lawful? Or in other words, was their use of force legally justified in the circumstances?
On the basis of the qualitative data of this report, the Occupy Melbourne Legal Support Team (OMLST) finds that:
- The policing operation to forcibly remove Occupy Melbourne protesters was harmful. It had harmful physical, emotional and psychological effects on the individuals affected. The policing operation creates problems of legitimacy for the police. Violent policing tactics also have harmful social effects, impacting upon peoples’ ability and willingness to exercise their rights and engage in political activity.
- The legal bases of the actions of Victoria Police and Melbourne City Council in forcibly removing Occupy Melbourne protesters from City Square raise serious and as yet unresolved questions of law. The multiple legal bases for the eviction may have included: breaches of local law; trespass in a public place; common law ‘breach of the peace’ powers, and; controversial statutory ‘Move-On’ powers. It is the qualified opinion of the OMSLT that none of these bases are substantiated and that the forceful removal of Occupy Melbourne protesters by Victoria Police and Melbourne City Council appears unlawful.
- There was extensive use of force against Occupy Melbourne protesters during the removal from City Square and throughout 21 October 2011. People experienced assaults and were restrained or detained simply for being there. This happened regardless of their motivations or their behaviour. Statements collected by the OMLST demonstrates that people who were uninvolved with the movement simply taking their lunch breaks on Swanston Street were also detained by police. The
force used by Victoria Police on 21 October was excessive, unnecessary and disproportionate. Victoria Police arguably acted outside of their own use of force guidelines.
- Approximately 100 protesters were detained on 21 October 2011. Protesters were taken to police stations including St Kilda, Heidelberg, St Kilda Road, North Melbourne, Moonee Ponds, Altona, Melbourne Custody Centre and Moorabbin. Others protesters were held for shorter periods. Some protesters were driven away from the Central Business District and released in seemingly random locations. A large proportion of protesters were held in custody for many hours, both in brawler
vans and at police stations across Melbourne. The conditions of confinement were inadequate. It is the qualified opinion of the OMLST that police were arguably acting outside of their legitimate power and internal guidelines in detaining people pursuant to ‘breach of the peace’ powers. It is the qualified opinion of the OMLST that the actions of police in detaining approximately 100 people on 21 October 2011 may well have exceeded their lawful powers and constituted false imprisonment.
- Private and communal property was confiscated and destroyed by the authorities who authorised and carried out the forcible removal of Occupy Melbourne protesters from City Square. These actions arguably breached the guidelines and processes outlined in Melbourne City Council Activities Local Laws.
- There are barriers to proper police accountability. These include the failure of police to wear name badges; the failure of police to recognise Legal Observers, and; the lack of redress through police complaint procedures.
This Report reiterates the calls for an Independent Inquiry into the forcible removal of Occupy Melbourne from City Square as well as the policing of protesters on 21 October 2011.
We call for an Independent Inquiry that documents and assesses:
- the legal bases of the forcible removal of Occupy Melbourne protesters;
- the decision-making processes within Melbourne City Council and Victoria Police prior to the forcible removal; and
- the legality of the use of force and tactics used by Victoria Police in forcibly removing and policing Occupy Melbourne protesters on 21 October 2011.
In order to make findings on these issues and authorise clear outcomes including (but not
- accountability processes for the individuals and organisations who authorised the forcible removal of Occupy Melbourne from City Square;
- accountability processes for police officers who acted unlawfully or used unnecessary, unreasonable and disproportionate force, whether through internal disciplinary processes or otherwise;
- compensation processes for protesters who were unlawfully detained, who experienced demonstrable injuries or other adverse effects during the forcible eviction of Occupy Melbourne from City Square; and
- compensation processes for protesters whose property was confiscated or destroyed during the forcible eviction of Occupy Melbourne from City Square.
This Report reiterates previous calls for an independent police complaints mechanism. Such a mechanism must provide:
- independence and impartiality in the investigation of complaints;
- prompt, competent and thorough investigation of alleged violations;
- the opportunity for the victim to participate in the investigative process;
- a level of public scrutiny to enable transparency, accountability, and public confidence;
- prompt responses to complaints and findings; and
- an effective remedy (including redress and reparations) for victims.