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Use of force & the law

Application of law

Police tend to enforce the law if and when it suits their aims of maintaining or restoring control over a protest. As mentioned in the introduction to this section, police do not mechanically enforce the law and will often ignore minor breaches.  People who toot their car horns in support when they drive past a picket are committing an offence but this will generally be ignored by police attending the picket.

However, police can sometimes utilise minor offences to control or harass activists. For instance, police may conduct detailed roadworthy checks on protester’s cars on their way to a forest blockade.

Police may use particular offences to target particular activists. For instance, particular activists at a large rally may be picked out and charged if they are known to police.  The application of the law can also be applied in a discriminatory way. Members of the movement who are of a particular cultural or ethnicity, or perceived to be by police, may be targeted.

While protest actions may involve breaches of the law, police response to protesters should be strictly within the law. When police claim to enforce the law by breaking it their moral authority is undermined. Protesters who break the law are still entitled to the protection of the law. Where police break the law by, for example, using excessive force to arrest or disperse protesters legal remedies, such as civil actions or formal complaints that might lead to disciplinary action should be pursued. See Complaints against the police section.

Theoretically individual police could also be subject to charges for assault if they use excessive force against protesters. In reality this is unlikely to happen because the police organisation itself is the 'gatekeeper' of the criminal justice system and it is unlikely that the organisation will lay charges.

In order to make the police accountable to the law for their actions at protests it is important that the identity of individual officers involved in incidents be recorded. This is sometimes difficult where police remove their badges and when riot helmets with visors obscure their faces.

Use of arrest "snatch squads"

Police may use their power of arrest strategically. Arrests at demonstrations may be targeted towards people whom police have identified as ‘leaders' or ‘agitators’. In this way, police aim to remove certain people from the action to undermine the action by a strategic application of the law.

The police sometimes use ‘arrest teams' or 'snatch squads' to pick out and arrest identified people from a crowd of activists. Police may use horses or batons to force the crowd away and literally 'snatch' a person suddenly and take them physicality behind police lines.

Dispersal

Police may choose to disperse a crowd rather than arrest individual members. Dispersal may be achieved by way of batons, horses or physical force such as pushing and dragging. Police may opt for dispersal when they don't have the facilities or the resources to engage in mass arrests. Dispersal tactics sometimes appear to be designed to punish protesters, which is legally outside the role of the police.

Dispersals are less targeted than arrests and may impact on people who are only marginally involved in protest activity. Dispersals generally involve higher levels of overall force than arrests.

In addition to taking action to prevent a 'breach of the peace', police may have the situation declared as a riot by having a Magistrate read aloud the riot proclamation. This is an extremely rare occurrence.

Use of ‘reasonable force'

In many circumstances, police are legally empowered to use 'reasonable force' in executing their powers. This includes the power of arrest, the power to take finger prints and forensic samples and the power to detain. Police also now have the power to use capsicum spray and in some instances stun guns to restrain people who are violent or threatening violence.

See Police Powers and your rights.

What is 'reasonable force'? This depends upon the circumstances. A good guide is that the police are entitled to use whatever force the average person would accept as necessary and proportionate in the circumstances. The greater the physical threat to the police, the greater force it may be acceptable to use to detain a person.

'Reasonable force' does not include assaulting people on arrest, arbitrary use of hand-cuffs or verbal intimidation.

Ultimately, the courts decide what constitutes reasonable force when police action is challenged. In circumstances where there are a large number of protesters engaged in resolute civil disobedience police may choose not to arrest, or only arrest selected protesters. They could also engage in mass arrests or use dispersal tactics.

If mass arrests are beyond the capacity of police, such as where police are outnumbered by civilly disobedient activists, police can either tolerate the breach of the law or disperse using force. Whether police choose to tolerate or disperse is likely to depend on the type of factors outlined below.

Excessive and unlawful levels of violence by state security forces remains one of the primary impediments to civil and political rights throughout the world. It is incumbent upon police in Australia to demonstrate that as institutions they are capable of managing politically motivated demonstrations without recourse to actions that contravene fundamental human rights.

See Why do police choose certain approaches?.

Pressure point holds

According to Victorian police guidelines, police must not use nerve pressure points above the shoulder level as a control technique in crowd control situations due to the risk of death or serious injury. A range of physical pain compliance techniques are routinely used by Victoria police however such as wrist and arm holds. All such holds are a use of force and should only be used when considered ‘reasonable’. 

Use of non-lethal weapons

Police in Victoria have an array of 'non-lethal' repressive technology at their disposal which may be used to control, prevent or disperse demonstrations. Special police units such as the Force Response Unit often receive specialised training in particular weapons and may be called in at particular actions. There are guidelines for the use of such weaponry which theoretically mitigate against their use in dangerous, inappropriate or illegal ways.

Batons

Long-side handled batons have been used by police at various demonstrations in Victoria including against a community picket line at the Richmond Secondary Collage in 1993 and at the protests against the World Economic Forum in September 2000.  Their use has been curtailed due to complaints and community condemnation but they are still available to special units.  Advice to Victoria Police from the Office of Forensic Medicine and contained in the Victoria Police Defence Tactics - Operational Survival Instructions makes clear that the use of batons is potentially hazardous and blows to the person in areas of high risk are unpredictable and should be avoided. The areas to avoid are stated as being the head, face, and front of neck, back of neck, abdomen, kidney region and spinal region.

Capsicum spray

Capsicum spray uses capsaicin, the active chemical ingredient in chillies or capsicums, to incapacitate people exposed to it. Although police guidelines restrict its use to protecting life and controlling violent people, police in NSW and South Australia have used it at peaceful demonstrations.

Capsicum spray poses a particular danger to people with asthma and heart problems. It only works if inhaled and/or sprayed in the eyes. If police use any sort of gas or spray, protect your mouth and eyes with some cloth material and keep asthma medication within reach. The most effective first aid for capsicum spray is prolonged dousing of face and eyes with water. Make sure you know where to go for first aid (for more information on capsicum spray see McCulloch 2000).

Horses

Police have used horses against activists throughout history. The Police Mounted Branch often is seen at protests, marches or rallies in Melbourne. They are commonly used to push groups of activists away to clear an area or as containment lines to prevent access. As a form of crowd-control they can be an extremely dangerous and unwieldy tool.

When you are conducting police liaison meetings, always stress that horses should not be used at the protest for this reason.

The presence of a horse amongst activists creates a sense of alarm as hard feet look for purchase amongst human limbs and horse flanks batter the crowd. Like all Police, mounted Police have tools such as batons at their disposal.

Public opinion is very hostile to suggestions that protesters have caused injury or harm to police horses. Police sometimes maintain that protesters have used pins or marbles against horses. Whether these claims are true or not they undermine the legitimacy of protests and are seen to justify a harsh police response.