Police and Invasion Day rally organisers clashed in the Federal Court over the timetabling of a legal challenge into the now-revoked declaration that allowed police to conduct warrantless searches in Melbourne’s CBD.
A challenge against a declaration that would have allowed police to stop and search anyone without reasonable grounds around the Melbourne CBD will continue as planned later this week, Justice Elizabeth Bennett ordered in the Federal Court on Monday (12 January) morning.
It followed submissions from Sarah Keating SC that complex issues have come up in the last 48 hours and it was no longer in the interests of justice for the proceedings to continue on the expedited timetable.
However, Justice Bennett said the interests of justice were better served if the proceedings continued on 15 and 16 January, but allowed police until late on 14 January to file evidence given the ongoing bushfire response.
Police issued the six-month declaration last November to allow officers and protective services officers (PSOs) to search without warrant in the CBD and surrounding suburbs, including Docklands, Southbank, and parts of East Melbourne and South Melbourne.
In addition to requesting that face coverings be removed, police would have had the power to direct someone to leave the area if they refused.
The declaration was due to end in late May but was revoked on 9 January. Police did not provide a reason for the early revocation.
The case management hearing commenced on Monday morning with submissions from Andrew Woods SC, counsel for Invasion Day rally organiser Tarneen Onus Browne and activist Benny Zable.
Woods applied to have a third applicant joined in response to the revocation, telling the court his standing was “incontestable” because he had his person and belongings searched within the designated area.
He added there was “sufficient apprehension” that a second declaration would be made ahead of the Invasion Day rally on 26 January.
“[There is] nothing from the respondents to suggest the power won’t be used. My immediate concern for today is protecting all three of my clients’ interests on an urgent basis,” Woods said.
Asked by Justice Bennett whether there was a plan in place to make a second declaration, Keating said the court “could consider that there would or could be a new declaration as at 26 January”.
“What that would be, what its scope might be, and what basis it might be made … we do not know,” Keating said.
Keating said the late filing of evidence from the organisers and the request to join the third applicant meant there was not enough time for police to prepare their material ahead of the 15 and 16 January trial.
This was despite statements from Woods that the third applicant would adopt “in full” the existing submissions of Browne and Zable.
“We say interests of justice do not favour expedition of this proceeding in the way it has developed to date. [That’s] not to say it can’t happen in a relatively efficient and effective time frame, but we are rebutting the 15th in terms of our current request for further time,” she said.
The court heard prior to the joinder application, the police respondents intended to apply for summary dismissal of the applicant’s case on the grounds they lacked standing now that the declaration had been revoked.
In ordering the trial will continue as planned, Justice Bennett clarified the parties would not be shut out from bringing “future and appropriate applications”, including those going to the joinder and standing issues.
The matter will return on Thursday, 15 January.
