Days before the Invasion Day rally, the Federal Court found a declaration that would have allowed police to conduct warrantless searches to be incompatible with human rights and unlawful.
In a decision handed down on Friday (23 January) afternoon, Justice Elizabeth Bennett of the Federal Court of Australia found the approach of Assistant Commissioner of Police, North West Region to a November 2024 declaration was “erroneous”.
Up until it was revoked on 9 January, the declaration allowed police and protective service officers (PSOs) to conduct searches without warrant or reasonable grounds within the CBD and surrounding suburbs, including Docklands, Southbank and South Melbourne.
It also allowed police to request people within those areas remove face coverings, and arrest and remove them if they refused.
The declaration was due to last until May, meaning it would have affected protestors at the Invasion Day rally on Monday, 26 January.
Before it was pulled, rally organiser Tarneen Onus Browne and activist Benny Zable – and a third man said to have been searched during the relevant period – brought a claim in the Federal Court to challenge the validity of the declaration and designated area.
Their counsel, Thomas Wood, told the court that allowing police to make protestors remove face coverings would take away “a particularly powerful form of political communication”.
Although the original declaration was no longer in effect, the court heard evidence that a new declaration would have been made ahead of the Invasion Day rally and likely captured the same powers.
Justice Bennett found the Assistant Commissioner, Brett John Curran, did not apply the correct statutory criteria and did not meet the necessary state of satisfaction in his November decision.
During cross-examination, Curran said he checked the authorities at length because he had never “done a declaration of that length before”.
In addition to being incompatible with the Controlled Weapons Act 1990, Justice Bennett said the decision was affected by jurisdictional error, and was incompatible with human rights, and therefore invalid.
Declarations were made to give effect to these findings.
