Did Police Use 'Proportionate Force' On Film Protesters?

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Police have charged six men following the anti-film protests in Sydney on Saturday. One awaits charging, and a 15-year old boy has been cautioned. Most were charged with various offences of affray, riot and resisting arrest after, police allege, they threw glass bottles and "other missiles" at police officers, "forcing officers to deploy OC spray in an attempt to subdue and disperse the crowd".

In a statement following the "riot", police Superintendent Watson said, "In NSW there is a right to peaceful protest — a right to express our view — but there are rules to follow… This group did not advise police of their plans, there was little or no organisation or control of what they were doing, and their actions were disgraceful."

But how well do the police’s claims stack up? New Matilda spoke with David Porter, a lawyer at the Redfern Legal Centre experienced in the legalities of public protest, about common police behaviour at public demonstrations. "You’ve got many protests that happen where there are no incidents… it’s just when police feel less in control they sometimes aggravate or escalate the situation rather than keeping a cool head," he said.

This seems to be the case at the anti-film march on Saturday. Activists involved with Freedom Not Fear, attending a separate rally in Hyde Park to protest the global war on terror, reported online that their assembly was ordered to disperse as the anti-film protest made its way up Martin place. Police could not keep a presence at both positions, and allegedly told them to disperse because "they’re Muslims and they’re angry".

Such an attitude, that sees "any large gathering of people for a particular purpose is suspicious or that it might escalate out of control, can in some ways become self-fulfilling prophecy," Porter says. "If you’re gathering for a lawful purpose and then have pressure applied to disperse, any group of individuals is going to have people who react in different ways."

Eyewitness accounts have verified that bottles and the like were then thrown at police, who confronted the rally en masse. Officers wearing riot gear were in attendance. Police used pepper spray and police dogs to try and disperse the crowd. Two protestors were hospitalised with dog bites. Two protestors (it is unknown at this stage whether they are the same people) have been charged by police with "commit an act of cruelty upon an animal". New Matilda confirmed with NSW police that the alleged offence was committed against the police dogs.

Police claim they were "forced" to use the OC spray, but legally they are required to use "proportionate force" — such force as is "reasonably necessary", Porter says. "Once force is used, once violence breaks out — whether that violence is lawful or unlawful – it’s very much a turning point in the demonstration — it’s essentially over."

"Even a lawful use of force by the police will be interpreted by many people demonstrating as a provocative act, which puts the police in a very difficult position," he says.

Inflammatory placards such as the "behead" signs seen on Saturday may also contribute to tensions between police and protestors, if police suspect that "anyone in the crowd is causing a ‘reasonable person’ to have a fear of violence".

For Porter, the key police issue is control, which is why police insist upon protest permits. If they are aware of the duration, route and likely size of a rally, they are much more likely to keep cool heads. "[But] they get very anxious when they don’t know those sorts of things, because what they have are a group of a few hundred motivated people and they’re not sure what those motivations are," he says.

But the police’s insistence that "there are rules to follow" is at odds with the existence of a common law right to peaceful assembly in NSW.

"It is in NSW lawful to assemble, but there’s a mechanism for having an authorised public assembly. That doesn’t mean that if you’re not authorised you’re not lawful. It demonstrates that the law wants to regulate protest but can’t get away from the general common law right to assemble."

Police responses to public assemblies exist on a "continuum", Porter says, not necessarily along racial or cultural grounds, but on familiarity with a particular group.

If the police response on Saturday to a group of "angry Muslims" was at one end of the spectrum, the other end seems obvious:

"If you want an example of a large public demonstration that can occur outside Parliament house in the middle of the business week with no problems with police cooperation, you’d look at the Police Association protests," Porter says.

New Matilda

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