ABC Radio National
the Law Report
with Chris Richards
on Tuesday 24/10/00
Protesting Legalities
Summary:
This week the Law Report looks at police power on the picket lines. A swag
of compensation claims are about to drop on the Victoria Police following
the hospitalisation of protestors at the World Economic Forum in Melbourne
last month. We visited the picket lines and spoke with legal obervers, to
find out how the law works at demonstrations. We also look at current
policing practice and strategy here and in Britian, and ask how a
'reasonable use of force' is determined in these kinds of volatile situations.
Details or Transcript:
Chris Richards: Today on The Law Report: police power on the picket lines.
a swag of compensation claims could hit Victoria Police within the next few
weeks. And it's the police use of force that will be in the firing lines.
The voices inside last month's World Economic Forum in Melbourne have now
died down. But the voices of protestors from outside the forum are rising
again. At issue now is not globalisation, but the right to protest about it.
Pearla: We were at the blockade this morning, sitting quite peacefully,
linking arms and legs, singing, chanting, being very, very non-violent, and
without any warning police started running at us, stamping on us, jumping
on us, kicking us, got their batons out, hitting us, I just heard people
going 'Let's just get out of here; let's get out of here.' So I started
trying to get up and I was being kicked down, I was being -
Chris Richards: By who were you being kicked down?
Pearla: By the police. And then eventually one of them just threw me over
to the side and I just ran, and that's it, that's what happened. Before
this happened, I was actually defending the police to people who were, you
know, shouting abuse at them and that sort of thing, and I said, 'You know,
everyone's human and they're only doing their job' and that sort of thing.
And after this, when I saw that, even people who were doing their job could
stand there and kick and hit people that were on the ground and just trying
to protect themselves, then it sort of makes me think that maybe they don't
feel, maybe they really don't care.
Chris Richards: Pearla from Perth. This was the first time she'd been at a
large demonstration. At the protest too was Adam Bandt, one of many lawyers
volunteering their time to ensure the protest was as peaceful as possible.
Adam Bandt: Well Pearla is one of many people this morning who was sitting
down, linking their arms when police came in in riot gear and charged over
them. Most of them were sitting with their backs turned to the police. From
what she and other people have told me, a lot of them were picked up and
dragged across the bitumen; some of them were stepped on, some of them were
held onto the ground, a couple of people got taken over to the other side
of the road and punched up, and a number of people like, I'm not sure if
Pearla required, but a number of people have required hospital attention as
a result of it. What we told Pearla and what we told everyone else who's
been involved in it, is that we're compiling all the reports about it;
we've complained to the Ombudsman about it; we're going to be complaining
to the Police Ethical Standards Department. A lot of people are still in
hospital as a result of it, and depending on what happens to them, it may
be pursued further legally.
Chris Richards: Adam Bandt and other legal observers at the protests have
handed the protestors' statements to Melbourne law firm Slater and Gordon.
Partner, Marcus Clayton, is checking out their claims.
Marcus Clayton: Well we've been contacted by a large number of people that
we're acting for, probably about 50 clients who were injured due to police
actions at the protests, particularly in the two baton charges that
occurred on Tuesday 12th September. But there are a number of other
incidents as well where people were injured. We've had a young man who's
got a fractured sternum, we've got a woman with a fractured vertebra on her
back, we've got young people with broken arms and cracked ribs, we've got a
large number of clients whose heads were split open and required stitches,
including quite a lot of women. I mean really, quite serious injuries
considering that I think it's common ground that in relation to the two
baton charges, that the protesters were doing anything other than passively
blocking a driveway, much in the way that protesters and demonstrators have
done since Adam was in short pants.
Chris Richards: Marcus Clayton. Whether protesters hurt by police force can
claim compensation depends on two main questions: first, are police
entitled to use force against protesters? Neither Victoria Police nor the
Minister for Police would agree to be interviewed for this program, so
Senior Sergeant Paul Mullett from the Victorian Police Association is
putting the police point of view.
Paul Mullett: Our members are highly trained in the use of force, and they
rely as well on their own experiences. We're very much a membership that's
reluctant to use force. However if the other side increase their level of
force, we have to counter that.
Chris Richards: Senior Sergeant, Paul Mullett.
Queens Counsel Dyson Hore-Lacy acts for two groups of Melbourne protesters,
protesters at Richmond Secondary College who were injured during a police
baton charge in December 1993, and protesters against North's Uranium
Mining at Jabiluka, who were injured in clashes with the police outside
North offices. He says police use of force on protesters depends on the
circumstances. But in the case of the World Economic Forum, he thinks it
may well have been unlawful.
Dyson Hore-Lacy: They have the power to arrest people who are committing
offences in their presence. They've got power to arrest people, this is
without warrant, who they believe on reasonable grounds have committed
serious indictable offences.
Chris Richards: Without arrest, without effecting an arrest, they have now
power to utilise force, in your view?
Dyson Hore-Lacy: Not that I'm aware of. They've got the power to utilise
force to prevent a breach of the peace, there is an offence of 'besetting a
building' which makes it an offence for a person to effectively stop people
going about their business in relation to buildings, which would seem to be
appropriate in this particular case. But that's the power of arrest, and it
didn't seem to me as a bystander that the police were exercising a power of
arrest, they seemed to be choosing to make an entranceway for a few
busloads of delegates to the conference.
Chris Richards: I'm thinking about a breach of the peace, and a possible
use of force in that regard; does the arrest power need to be harnessed for
a breach of peace or is it sufficient that you defray that breach of peace
with force?
Dyson Hore-Lacy: The police may argue that there was a threatened breach of
the peace, but I'm not too sure that the action they took in forcing a
passage through the protesters was a proper exercise of a threatened breach
of the peace, that's if there was one. The argument would be that even if
they were exercising that power, what they did wasn't really in support of
the exercise of that power. That was merely to ensure that the delegates
got through to the conference.
Chris Richards: But say a court finds that police could use force on the
protesters, the next question is whether that force was excessive.
Dyson Hore-Lacy: And it would be an argument no doubt by some that the
advancing or charging or whichever way one likes to describe it, and willy
nilly forcing a path would certainly, in relation to a number of people
there, would not be regarded as an exercise in reasonable force.
Chris Richards: It's difficult for police I should imagine, trying to
adjudicate for themselves on the ground without lawyers being present, what
is appropriate use of force on the arrest power, and what isn't.
Dyson Hore-Lacy: This is a discretion which police officers have to
exercise all the time. Every time they exercise a power of arrest, whether
it be outside a hotel or a motorist or whatever, there are sensible
guidelines which police have, and the most appropriate one is there must
only be reasonable force utilised when exercising the power of arrest.
Chris Richards: I'm wondering whether the use of a baton is justified, say
for instance, if somebody is physically resisting arrest and perhaps trying
to escape being physically taken by the police to a divisional van.
Dyson Hore-Lacy: Well in some circumstances use of a baton may be quite
appropriate. It depends. There may be two or three offenders and one police
officer, in which case it's necessary. On the other hand there might be
three or four police officers and one offender, in which case most people
would say it wasn't necessary. If the person's armed at all, or the
suspect' s armed at all, then most people would say it probably be
necessary. It depends on the circumstances.
Chris Richards: Barrister Dyson Hore-Lacy. Lawyer Marcus Clayton has a more
direct assessment.
Marcus Clayton: In the case of the Tuesday night for about 30 protesters to
be seriously injured enough to be taken to hospital, seems to me to
indicate clearly that the force used by police was excessive.
Chris Richards: Senior Sergeant Paul Mullett puts the police union's view.
Paul Mullett: The protesters commenced to use inappropriate force against
our members, and basically were being totally unco-operative, particularly
with people that had to enter Crown Casino and who were leaving, and
pedestrian traffic, members of the ordinary community, who were bypassing
Crown Casino at the time were certainly being hindered by these protesters.
Chris Richards: At what stage does your information say that force was
used, or unreasonable actions came forward from the demonstrators?
Paul Mullett: We can't provide definitive detail in that regard, but
overall we have a law enforcement role and if people are breaking the law,
our members have a sworn duty to ensure that peace is maintained.
Chris Richards: But your members would be directed to go through the arrest
procedure wouldn't they? If somebody was breaking the law.
Paul Mullett: Certainly our members have an arrest power, we don't dispute
that. But circumstances in a protest are very different to normal
policing-type duties. Again you've got to rely on your training, your
judgement and your experience, but our members have to ensure that law and
order is preserved.
Chris Richards: It must be difficult for police officers actually. They're
down at the picket lines, there is a level of verbal abuse, sometimes
directed towards them; what mechanisms are in place to ensure that they
keep a lid on their own temper?
Paul Mullett: Our members are highly trained and with the levels of
experience they have, they do show extreme levels of constraint as a result
of that training and the experience they have. Particularly our members,
the Force Response Unit, who receive extensive training in that regard.
Chris Richards: And there's good reason why police on the picket lines
should be constrained. Because the very reason why pickets are policed,
keeping the peace, may rely on it. Police Studies Lecturer at Deacon
University, Dr Jude McCulloch.
Jude McCulloch: Much of the research that's been done on the type of
policing used there tends to suggest that that heavy-handed policing, or
paramilitary policing in fact, escalates violence, so that it becomes a
self-fulfilling prophecy. If you use very heavy-handed policing tactics,
then it provokes, escalates violence which becomes the justification for
those heavy-handed tactics.
Chris Richards: At the World Economic Forum last month, police training and
experience didn't stop them from using force against protesters. Other
pressures on police may explain why. Senior Sergeant Paul Mullett again.
Paul Mullett: What we saw during the course of WEF were members being
deployed from outlying stations and having to work excessive shifts to
ensure that WEF was looked after again. They were working double shifts,
and some given travel time were working up to 18 hours.
Chris Richards: I mean I must say that must be really hard on a police
officer in terms of their judgement about how to deal with situations that
arise down at the picket line. They're tired, they've been in an intense
situation for a very long period of time. Did you get feedback like that
from your members?
Paul Mullett: Policing isn't really for the faint-hearted. They certainly
worked in very trying circumstances during a tough period. There were some
accommodation problems, some meal problems.
Chris Richards: How many police would have been assigned to policing WEF?
Paul Mullett: We don't have the exact figures.
Chris Richards: I read 4,000 at one stage.
Paul Mullett: There would have been well over 2-1/2-thousand. Members had
their leave cancelled, there was a leave embargo placed on them during that
particular period. Bear it in mind we had other major events here in
Victoria at the same time.
Chris Richards: These pressures can push police over that thin line between
acceptable and unacceptable levels of force. They're pressures felt by
police on pickets around the world. Britain's Brian Hilliard is a former
police inspector and Editor of Police Review. He's recently compared a
number of protests in England where police force has and hasn't been used.
Brian Hilliard: During the miners' dispute about ten or twelve years ago,
we had a Conservative government and a population that was really
antagonistic to the waning power of the trade unions. They'd had an earlier
strike in which they'd besieged a colliery that was sending coal out, and
had introduced what they called flying pickets which meant that miners came
from all over the country to one particular mine, rather than picketing
their own mine. That was seen as almost un-British, and miners lost
popularity when the general mine strike started some years later. There was
no public sympathy for them. And it was expected that police would deal
harshly with them.
Now police have always denied it, but quite clearly they were under
government directions there. There was very aggressive policing on many of
the strike lines, and also it was at a time when police were very popular.
They still had a great deal of respect with the public. Their aggressive
tactics were, as I said, almost approved of. And there was also a very
gung-ho attitude in that police were being paid a great amount of overtime.
And there are still what they call 'Scargill Greenhouses'. Scargill was the
leader of the miners, and a lot of policemen afterwards had expensive
holidays, built additions to their houses and greenhouses, and improved
their properties no end through the overtime money that they made. Now that
contrasted with today; we're looking over a lot of discontent over pay; we'
ve also got a government that doesn't seem to be as sympathetic to the
police service. Perhaps police budgets are not going to pay anybody
overtime now, so there's going to be a lot of hardship over policing after
hours.
Chris Richards: You've mentioned three factors there Brian. You've said
that public opinion plays a large part in the reaction that police actually
display to protesters; that budgetary restraints will sap confidence, as
will an unfavourable government attitude. I'm just wondering, let's take
the public opinion part of it first: can public opinion actually be seen
down at the picket lines in terms of the police attitude to the protesters
there, and can you give me an example.
Brian Hilliard: The fuel blockade appears to have been a spontaneous
protest by lorry drivers and other people in the transport industry over
the high rate of tax on fuel here. Before the fuel blockade, we were paying
about 79.9pence for a litre of unleaded petrol, the same price for diesel.
That represents in this country a tax of about 60-pence on every litre, so
the fuel costs less than 20-pence, the tax is over 60-pence on it. In these
two instances, in the two strikes, it's quite clear that public opinion was
on the side of the fuel blockade. The demonstration got very favourably
covered in television. So if police are relying on public opinion, I think
in this case they were, they could see that to act against the force of
public opinion would really diminish the police reputation even a bit
further than it's gone already, so I think they were very careful to stay
out of it.
If you're policing a refinery, say, in Cheshire, where you've got local
police officers who know the people demonstrating and who know the tanker
drivers, there's going to be less trouble than in an area where you bring
in police from outside who don't want to be there in the first place, want
to get it finished as quickly as possible, they've got little sympathy with
the demonstrators who they see as taking them away from more important
duties, and there's certainly going to be a great deal of policing patience
and even loss of temper in those circumstances.
Chris Richards: Police inspector, Brian Hilliard. When that loss of temper
results in serious breaches to fundamental rights, compensation pay-outs
can be swelled by exemplary damages (or, as they say in the movies,
punitive damages). For instance, they were awarded against police when they
beat up a woman and ripped her clothing during a wrongful arrest and
detention. The exemplary damages made up $120,000 of the $170,000 award.
The case is Lee and Kennedy and Others, a decision of the New South Wales
Court of Appeal in June this year. It may explain why police at the World
Economic Forum didn't want to be identified, as Damien Lawson, a legal
observer at the protest, showed me.
Damien Lawson: So as you can see, 90% of the police are not wearing their
badges. Neil O'Loughlin this morning in the media said that all police
would be wearing their badges. If you actually read police operating
procedures, Admin procedures 7.1.4.2 says 'All officers must wear
force-issue name tags displayed at right chest at all times' and that's not
what's going on now.
Chris Richards: Do you know who's in charge here?
Man: That officer.
Chris Richards: Excuse me, Sir, I'm just wondering why officers aren't
wearing badges.
Man: Most of them got ripped off, when we were trying to get in here
yesterday morning.
Chris Richards: Well all of them aren't wearing badges.
Man: Well that's why.
Chris Richards: All of them got ripped off?
Man: That's right.
Damien Lawson: Well here we are at another of the blockades and once again
you'll see almost every police officer is not wearing a badge. Clearly
there 's been either a decision that police should remove their badges, or
a decision not to enforce the requirement that individual police wear their
badges, and there's now systematic and widespread practice of the police
not wearing them.
Chris Richards: I mean is that so that if assaults occur, no officer can be
held individually accountable?
Damien Lawson: That's absolutely right; it creates anonymity and with that
anonymity comes a degree of impunity in the use of force by police, and
that 's part of the reason why we've seen unreasonable and excessive force
by police down here. Certain instances, probably unlawful force.
Chris Richards: Damien Lawson, who also tells me that video footage taken
at the World Economic Forum will identify some police using excessive
force. That doesn't mean that they'll be personally liable, as the
Victorian Police Association's Paul Mullett explains.
Paul Mullett: If there are potential civil writs issued, we'd suggest that
recent amendments to the Police Regulation Act come into play where our
members are now indemnified from a vicarious liability point of view and
we' d be suggesting forcibly that government and the Victoria Police Force
would be responsible to provide representation and funding for any members
that found themselves incurring civil litigation.
Chris Richards: What does the regulation have to say?
Paul Mullett: Section 123 of the Police Regulation Act now provides members
with indemnity for performing their duties where they are performing those
duties in good faith.
Chris Richards: And I suppose the argument would be whether or not you can
use any force at all if you're not using the arrest power. Has that been
discussed at all?
Paul Mullett: Well we'd suggest firmly that Section 123 in this instance
would cover any member potentially served with civil process.
Chris Richards: Letting police off the hook may help explain why there's
been a change of strategy in Victoria to policing pickets. Dr Jude
McCulloch has written a book on policing, Paramilitary Policing in
Victoria, which is about to be printed. She compares the conciliatory
during the MUA 'Docks' dispute before these new police regulations were in,
with the situation now.
Jude McCulloch: One of the contentions the Victoria Police Force had with
the previous Kennett government was that civil actions, damages payments
that had been awarded against the police, or had been settled out of court,
that the Kennett government wasn't willing to pay out of general revenue,
but the police had to take out of their own budget. So there is also
speculation about the Docks, that one of the reasons why the police
wouldn't use legally dubious but more heavy-handed tactics down at the
docks, is they didn't want to be sued, and they didn't believe the State
government would support them financially if they were.
Chris Richards: If the government don't support you financially, and it
does fall to police revenue to pay out those damages claims, or indeed the
pockets of the police officers who are actually on the picket lines, one
would think by giving government endorsement in that way, that it takes
away a disincentive to violent action on the picket lines.
Jude McCulloch: Absolutely. I think that civil actions are increasingly in
Victoria and internationally, becoming an important form of accountability
for police. And they're an important feedback mechanism; the courts make a
judgement and say that what the police did was inappropriate, and the hip
pocket nerve in policing can be powerful. If you're going to be sued and if
the police force is going to have to pay out damages, that gives a very
good policy reason for the police to look at their tactics and make sure
they get legal advice before using them, make sure they're lawful, make
sure they're appropriate. But if you remove that restraining factor, then
that certainly makes the police less accountable.
Chris Richards: That will leave Victoria Police and the Victorian taxpayer
footing any compensation bill. For police departments and governments,
there 's no clear financial reasons why force should be carefully managed.
Jude McCulloch: There's been a number of civil actions taken against the
Victoria Police over the last six years, and most of them would relate to
use of excessive force by the police. Some of them relate to police
shootings, some of them relate to raids on people's homes, some of them
relate to protest actions like Richmond Secondary College, and a protest
where police used pressure point neck-holds. So there is a growing trend
towards civil actions in Victoria as maintaining a degree of police
accountability and providing compensation to victims of police excessive
use of force and illegal activity.
Chris Richards: How much on your research has been paid out to date?
Jude McCulloch: In the last six years it appears to be, or according to the
figures the police have given me, $8-million. But that amount I would
expect to be growing fairly substantially, because I think there are about
23 actions in the Richmond Secondary College baton charge that have been
issued, and under discussion about the amount of payments the plaintiffs
are to get. But they will, as I understand it, be settled some time in the
near future.
Chris Richards: I'm wondering how Victoria and that $8-million figure
stacks up internationally.
Jude McCulloch: It's very small beer compared to what's happening in some
places in the world. There's a growing trend internationally to sue police,
as a way of providing compensation to victims and making the police
accountable. For example, the Los Angeles Police Department is being sued
for approximately $125-million at the moment; there is talk that that will
break the police force. Really I think police forces have to sit up and
look to those litigation red lights, because litigation doesn't tend to go
away, it tends to explode, and if you're not putting in risk management
strategies, then the public ultimately bears the cost, and I think that
that 's a problem in Victoria. We had the Richmond Secondary College
incident, and we had the pressure point neck-holds and flowing on from that
successful civil action, that should have been litigation red lights to the
police here, they should have been looking at risk management, but what
appears to have happened is they've exposed themselves and the Victorian
public to picking up the tab for those actions in civil litigation.
Chris Richards: At the end of the day, the right to protest is the central
issue. As Pearla, our protester from Perth, and lawyer Marcus Clayton explain.
Pearla: I really hope that something from our point of view goes on,
because there's been so much mainstream media that's been putting us in a
bad light, and it's just horrible to read, because we're all here for a
good cause and there's people that have come from everywhere just because
they believe in it so much. And we're fighting for everyone, not just for
ourselves.
Marcus Clayton: I think that any case involving a very controversial action
such as this one has a wider public interest aspect. In this case, it
raises the whole question of people's democratic right to protest. In this
case peacefully, around some issue that they regard as important. If the
police believe they're breaking the law, then they can of course be
arrested and charged and dealt with by the courts. It seems to me to be a
very dangerous precedent if the law and if the community accepts that
rather than being dealt with in that way by due process, that police are
licensed to beat people up and put them in hospital.
Jude McCulloch: There's a long history of civil disobedience in Australia
and Victoria; perhaps we could go back to 1854 in the Eureka Stockade,
there is the civil disobedience by Selectors against Squatters; there is a
great deal of civil disobedience by the unemployed during the Depressions
in the 1890s and again in the 1930s; there's a great deal of civil
disobedience by anti-war protesters in the 1960s and early '70s. And
history, both in Victoria, Australia and overseas, has tended to view those
protests and the protesters rather kindly. Whereas if you look back at the
accounts at the time, the protesters were often vilified, particularly by
people in authority, even when they enjoyed sections of popular support.
Protesters have been dealt with often in a very heavy handed way by the
police in Victoria, batons, even guns used against the protesters, people
have died in protests, and generally the authorities, when I say the
authorities I'm talking about the government of the day, and the police
authorities, have been damning of the protests and the protesters, and the
media has often taken a very strong and angry view against the protesters,
but when you look back over time, those protesters often achieve things
that we view now as progress and are viewed rather kindly by history.
Chris Richards: Jude McCulloch, finishing off this week's edition of The
Law Report. Thanks to Sian Prior and also to Brendan, for both of their
hands in putting together this week's program. 'Bye for now, and talk to
you soon.
MUSIC
Guests on this program:
Pearla
WEF protestor from Perth
Adam Bandt
Volunteer legal observer at WEF protest
Marcus Clayton
Lawyer, Slater and Gordon
Snr Sgt Paul Mullett
Victoria Police Association
Dyson Hore-Lacy
QC
Dr Jude McCulloch
Police Studies lecturer, Deakin University
Brian Hilliard
British former Police Inspector, editor of 'Police Review'
Damien Lawson
Legal observer at WEF protest
Damien Lawson
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