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The dilemmas of policing protest

August 8, 2012

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The policing of protest is complex, unpredictable and problematic; it challenges police organisations to balance public order and civil rights. Historically in Australia, police with superior numbers have dealt aggressively with public protest and disruption. Advocates of radical causes and social change (miners’ strikes, suffragettes, civil rights campaigners, anti-apartheid demonstrators) have encountered police intervention and opposition. It has been police tactics, rather than actual involvement, that have often provoked criticism.

Police today are expected to intervene and act legally and decisively, but fairly and appropriately. Force, when applied (including arrests), must be lawful, reasonable and effective. Although public order law is by necessity general, vague, uncertain and even cumbersome, it achieves reasonable effects.

Last week, Magistrate Simon Garnett dismissed trespass and besetting charges against 16 Palestine solidarity activists of the Boycott Divestment and Sanctions campaign who had protested on 1 July 2011 at Max Brenner’s chocolate and coffee store at Melbourne’s QV Square. Activists said they opposed the Jewish-owned franchise company (whose parent company is the Strauss Group) aiding the Israeli Army. It was basically a non-violent but boisterous protest with no breach of the peace; three police officers suffered minor injuries. 

Garnett’s findings, championed by activists as a victory for the right to protest, have ignited controversy over definitions of public space and obstruction, and the right to protest. The right to freedom of expression and freedom of assembly are juxtaposed against security and protection of business interests. Such is the policing dilemma in terms of public protest.

Should police disperse protesters at the behest of private businesses? In this particular case, it is ironic that the magistrate concluded that it was the police line, based on faulty advice from the Government Solicitor’s Office, which prevented customers entering Max Brenner.

Magistrate Garnett dismissed the charges because protesters were exercising their human rights in a peaceful protest and “had a lawful right to enter QV Square” which is a public space, even though it is privately owned. The protest failed to cause “any obstruction, hindering or impediment to members of the public” and Garnett directed some criticism at “heavy-handed” police arrests.

Police, including the Chief Commissioner, expressed concern that the judgement could be deleterious to their role at demonstrations. The Police Association secretary lamented “What in God’s name are we going to do?” Police are seeking legal advice about the practice of placing a line of officers between protesters and a commercial building, thus creating a human barrier. 

Defence lawyer Rob Stary has been publicly outspoken about what is possibly a landmark decision with “very, very wide ramifications” for various forms of protest, including similar Occupy Melbourne protests and potentially industrial picketing such as that recently at Coles, Somerton. The Baillieu Government is investigating whether to introduce harsher legislation to prevent left-wing political protests that affect business operations. The Premier has expressed grave concern about “any protest that seeks to close down a business”. Police are unlikely to seek meaningful consultation with radical protesters whom the Premier renamed “Bigoted, Dangerous and Shameful”.

The Magistrate’s hearing provided evidence of “a number of meetings” between police and the Melbourne Central Management between May and July 2011; what is unknown is the extent of meetings between police and protest organisers. Police-protester dialogue demands a preparedness to accommodate the other side in good faith. Limits exist to police legitimacy in using force, but police with invested powers will always remain in control of negotiations. In recent years, Victoria Police’s negotiation strategy has achieved some success in keeping the peace with protesting groups. The 1998 national waterfront dispute demonstrated police effectiveness in avoiding violence by negotiation and established protocols with the union movement.

Her Majesty’s Inspectorate of Constabulary’s report (Adapting to Protest, 2009), which resulted from an official inquiry into the policing of London’s 2009 G20 anti-globalisation protests, criticised the police strategy of planning too much on confronting violence instead of facilitating peaceful protest. A former Metropolitan Police Service commander and distinguished member of the policing establishment, Denis O’Connor, the report’s author,  instructed police that the initial planning should “not be defining protest as lawful or unlawful” but “the presumption should be in favour of facilitating peaceful protest”.

O’Connor demanded that police “show a certain degree of tolerance towards peaceful gatherings where demonstrators do not engage in acts of violence, even if these protests cause a level of obstruction or disruption”.

O’Connor’s recommendations challenge both the traditional police public order strategy that police should plan for the worst case scenario and the perceived police mindset of making protest experience unpleasant in order to discourage further protest activity. Prior to the September 2007 APEC summit in Sydney, police established a 5km exclusion zone around the CBD, displayed a newly-acquired water cannon and repeated warnings of police snipers on rooftops: these tactics successfully discouraged protest recruitment prior to the event.   

Whenever feasible, best practice requires clear communication and liaison between police leadership and protest organisers, with no surprises. Protesters and the public should be made aware of likely police action in order to make informed decisions. Police should facilitate peaceful protest; after all, protesters are citizens too.

David Baker

This post was previously featured on the Monash University website

http://www.monash.edu.au/news/show/the-dilemmas-of-policing-protest

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