Excessive use of police powers in social justice contexts has been the topic of public criticism on numerous occasions, with respect to the impediment of individual rights to protest and right to privacy.
These concerns arose once again, ahead of the pro-Palestinian rally held on 15 October 2023 in Hyde Park, Sydney CBD. Comments by the NSW police Acting Commissioner, David Hudson, and NSW Premier Chris Minns advocated the use of “extraordinary powers” to search protesters without reason and arrest and charge those who refuse to identify themselves at Sunday’s planned pro-Palestinian rally.
Emergency Powers under Part 6A of the Law Enforcement (Power and Responsibilities) Act 2002 (NSW)
Introduced following the 2005 Cronulla race riots, these powers in Part 6A of the Law Enforcement (Power and Responsibilities) Act 2002 (NSW) assist police in defusing and controlling large-scale public disorder. The powers are enlivened when the threshold of an ‘actual or threatened large-scale public disorder’ is met. While what constitutes ‘large-scale’ is left ambiguous in the legislation, a ‘public disorder’ is defined in Part 6A as a ‘riot or other civil disturbance that gives rise to a serious risk to public safety, whether at a single location or resulting from a series of incidents in the same or different locations’. Once approved by either the Commissioner of Police, Deputy Commissioner or Assistant Commissioner, the powers enable the NSW Police Force to undertake a range of actions, including some of the following.
Section 87I - Power to place or establish cordon or roadblock
This power enables the police to establish a roadblock or place a cordon around a target area, for the purpose of stopping and searching people involved in the 'large-scale public disorder' or to prevent persons from entering or leaving the area without the permission of a police officer.
Section 87K - Power to search persons
Bodily searches without reasonable cause are authorised under this section, if a person is in an area where the power is authorised. A person can be detained by a police officer for as long as reasonably necessary to conduct a search.
Section 87L - Power to obtain disclosure of identity
Individuals in an area where use of the emergency powers are authorised, must disclose their identify if requested by a police officer to do so. Refusal to do so without a reasonable excuse will result in a fine or 12 months imprisonment.
Use of the Powers in the Context of Peaceful Protest
Violent behaviour and the chanting of antisemitic slurs at the earlier pro-Palestine rally in front of the Opera House on Monday were the primary justifications for use of the extended police powers. Notably, in the Parliamentary debate on the Part 6A emergency powers and Second Reading Speech, it was unequivocally affirmed that the powers would not be used in the policing of peaceful rallies and demonstrations. However, the Legislative Review Committee’s review of the Part 6A powers included criticisms that the right to peaceful assembly and right to privacy were affected by the extended powers (NSW Ombudsman, Review of Emergency Powers to Prevent or Control Disorder).
While the rally on Sunday was originally planned as a march, the failure of the organisers to submit a form for the protest 7 days in advance meant that the event was changed to a static rally. Reports following the rally confirmed that while over 6,000 people gathered, no arrests were made. Notwithstanding the positive and peaceful outcome of the event, it is important to keep note of the potential imbalances between the extension of police powers for public safety, against individuals’ rights to peaceful assembly and privacy. If arrested, individuals will often be required to participated in a police interview. It is important to note that individuals under arrest reserve the right to remain silent, and to seek independent legal advice before answering any questions.
If you or someone you know wish to discuss this issue further, then please do not hesitate to contact us on 02 8999 9809.