Ahead of an Invasion Day protest in Melbourne’s CBD, lawyers for the organisers have made a bid to the Federal Court to prevent police from being allowed to search attendees without a warrant or reasonable grounds.
Organisers behind Melbourne’s Invasion Day protest on 26 January have argued that police powers likely to be introduced within the next fortnight could impose a burden on their freedom of political communication.
Rally organiser Tarneen Onus Browne brought the action following a November declaration that allowed police and protective services officers to search without warrant in the CBD and surrounding suburbs, including Docklands, Southbank, and parts of East and South Melbourne.
The declaration came to an early end last Friday, 9 January, but Browne said it is likely a new one will be made ahead of the protest.
In addition to the warrantless searches, organisers are most concerned with the power to request that people remove their face coverings and the ability for police to arrest and move them from the area if they refuse.
In written submissions filed with the Federal Court, the powers would impact protestors like second applicant Benny Zable, who has been wearing his Greedozer costume (pictured) for 45 years at events like environmental rallies, Palestine rallies, and other anti-war events.
In past Invasion Day rallies, protestors have also been encouraged to wear face masks to protect themselves from spreadable diseases, or to prevent the painful effects of crowd-control substances like capsicum spray.
The organisers said this burden in particular would be “direct, substantial and potentially discriminatory”, according to the written submissions.
Thomas Wood, counsel for Browne, Zable, and a third applicant, said the powers were “extraordinary” and not proportionate to the desired achievement to request that people remove their face coverings in an attempt to curb violence within public spaces.
To support this argument, Wood questioned the practicality of how an officer would be able to tell the difference, or form the belief, that the primary reason for a face covering is for violence rather than protest.
“Attendance at a protest becomes contingent on a police officer and what they have directed you to do, and we say that is a restriction on the way a person wants to engage in political expression.
“Is that power justified in a sense it is reasonably necessary to prevent violence and disorder? We say no because there is no requirement in the scheme to think about whether a person is thinking about committing violence or disorder – it is only about what they are wearing on their face and the primary reason for that,” Wood said.
Justice Elizabeth Bennett questioned whether a person could continue protesting even after they were asked to remove their mask, but Wood said this would still impose a burden on political communication.
“Wearing a face mask is a powerful form of expression because it conveys something other forms can’t … [such as] wearing costumes on the steps of Parliament House conveys a message that cannot be conveyed in the same way as posting on Facebook.
“It is taking away a particularly powerful form of political communication [and] it is [excluding] that form of political communication from the free flow of political communication generally,” Wood said.
In response, Sarah Keating SC said the provision would not be directed to political communication, and this meant any burden imposed on political communication by its operation “will be incidental and insufficient”.
“It is not a power that can be exercised within the community at large; it is in a designated area. It is not directed at protestors; it is not directed at political communication – the direct effect of the provision is on the use of face coverings to conceal identity and crowd-control substances,” she said.
Further, Keating argued the powers would allow police to identify troublemakers who “think they can act without consequence” because their identity has been concealed.
The matter will return on Friday with a cross-examination of Victoria Police Assistant Commissioner Brett Curran.
