Introduction

The global justice movement, born from the globalisation of the 1990s that propelled the uprising of the internet-savvy Zapatistas and the anti-World Trade Organisation meeting protests in Seattle, is in its second wave. Inspired by the ‘Arab Spring’, the Spanish indignados and Occupy Wall Street, the Occupy Together movement went viral on the global day of occupation on 15 October 2011. Melbourne, along with hundreds of other cities, ‘protested income inequality, corrupt politicians, and economies rigged to benefit a wealthy few at the expense of everyone else’.^[1] Occupy Melbourne’s chosen site of occupation was City Square.

City Square is an underused dust bowl, owned by Melbourne City Council (MCC). It is across from the Melbourne City Town Hall and intersected by the city’s main artery (Swanston Street) and its main business street (Collins Street). On Friday, 21 October (the sixth day of occupation, and five days before the Queen’s visit to Melbourne) a fence was erected around City Square before Victoria Police evicted the occupiers from the Square (‘the eviction’). The eviction became a broader public order issue for police as hundreds of shoppers, observers, workers and supporters gathered on the streets and footpaths around City Square. They, too, were subject to force by police, before dispersing at Trades Hall in Carlton (‘the dispersal’). Occupy Melbourne was the first of the Australian occupations to be broken up. Strategic arrests, indiscriminate police force, bloodied civilians and volatility characterised the day, making the operation, which lasted ten hours, more like a ‘police riot’.^[2] This article, based on the experiences of David Vakalis on October 21 as a Legal Observer for the Occupy Melbourne Legal Support Team (OMLST), critically explores the police operation, and its relationship with military doctrine.

Something old: escalated force

In her biography, Christine Nixon argues that her philosophy while serving as commissioner of Victoria Police was to create a police service rather than a police force – or, as she puts it, ‘community policing’ and ‘problem-oriented’ policing.^[3] This claim was made despite a critical report by the Office of Police Integrity eight months following her resignation that stated that

[Victoria Police’s] senior managers have not demonstrated a commitment to building a culture that is based on safety first and measuring success by avoiding or minimising the use of force … [T]raining continues to rely heavily on operational safety equipment or hands-on tactics rather than communication skills.^[4]

Nonetheless, supporters of ‘traditional policing’, like commentator Andrew Bolt, have accused Nixon of ‘feminising’ Victoria Police. For Bolt and others of his ilk, the eviction of Occupy Melbourne from City Square on 21 October represented ‘no more Christine Nixon stuff’, as one officer stated that day.

So, how should protest be managed according to ‘traditional policing’ doctrine? The usual response is to adopt an ‘escalated force’ approach, a fairly resource-intensive form of policing that involves a significant ‘show of force’ against a perceived threat. Writing on American public order policing, Clark McPhail et al. identifies five key characteristics of this policing style, which was used notoriously in 1960s protest policing.^[5] These characteristics are discussed below in relation to the events of 21 October.

1. First Amendment rights (freedom of speech and the right to assembly) are ignored or disregarded.^[6]

At approximately 7 am, demonstrators at City Square were notified by Melbourne City Council that they were in violation of council bylaws. Namely, ‘camping’ and hanging ‘things’ without a permit.^[7] MCC stated that if occupiers did not leave by 9 am then the matter would be referred to the police for ‘further enforcement proceedings and/or trespass’.^[8] As has been argued in Muldoon v. Melbourne City Council,^[9] such a response ultimately impinges on the freedom of political communication and the right to assembly under Victoria’s Charter of Human Rights and Responsibilities Act 2006 and the Australian Constitution.^[10]

2. There is a lack of willingness to tolerate community disruption when unfamiliar forms of protest are used.^[11]

Occupy Melbourne was neither a typical street march nor a familiar blockade of a major international summit. Like the Arab Spring and the indignados movement, it was an occupation of public space for an indefinite period of time, operating as an example of direct democracy and counterculture. The decision by authorities to violently end the demonstration was based on the belief that the duration and extent to which people can exercise civil liberties is defined arbitrarily by the very powers being protested against. This was clear in the public discourse used by Victorian Police Commissioner Ken Lay and Lord Mayor Robert Doyle.^[12]

3. Overt communication with police is minimal.^[13]

In the days leading up to 21 October, police liaison officers met with demonstrators regularly. However, the established communication channels broke down during the operation to evict demonstrators. When one police liaison officer was asked to call for an ambulance to treat the injured, he stated that he had no influence over ‘operational matters’. Ambulances were eventually called and permitted entry by police. Communication was further eroded when the dispersal officers attempted to arrest one of two negotiators who had been representing protesters.

4. The manner and extent of arrests are strategic and forceful, and may be accompanied by physical violence.^[14]

It is unclear even now if occupiers were arrested or merely removed during the eviction. In at least some cases, it certainly appeared that people were being processed as if under arrest: demonstrators were restrained, taken to a police vehicle or station, sometimes photographed and/or had their property confiscated and their details collected.

Arrests/removals were strategic and forceful, and sometimes accompanied by physical violence. Members of the Force Response Unit (FRU) worked strategically in groups to arrest/remove demonstrators who linked arms together in an act of non-violent resistance. The officers would pick out specific protesters, charge at them and rapidly push their necks forward using both hands while other officers forcefully jabbed their elbows down on the demonstrators’ linked arms. Once protesters released their hold, groups of FRU officers hastily removed as many as they could. The use of these overly forceful tactics was witnessed by hundreds of spectators.

In contrast, the dispersal did not appear as precise as the eviction. A routine did, however, develop eventually. Police used arrest/removal as a dominant tactic in their interactions with citizens during the dispersal. While officers did not exclusively target protesters, arrests/removals were conducted tactically, with the FRU using  military-style ‘snatch squads’ and ‘flying wedges’. Approximately 100 people were arrested/removed during the operation, with only a fraction currently charged with offences.  Further, several of those arrested/removed were given an order banning them from the city for a month under dubious common law ‘breach of the peace’ powers.

5. The extent and manner in the use of force with, or instead of, arrest is significant.^[15]

The FRU played a leading role in the police operation. Other specialist units like the dog squad and mounted branch assisted, along with operational police. In addition to the violent manner of arrests mentioned above, FRU officers randomly arrested people every few minutes as the crowd was corralled and herded through Melbourne by other police.

Further examples of excessive force and police violence used during the operation include eye gouging;^[16] the use of pressure point and strangle holds;^[17] a disabled woman being struck with shields by FRU officers and trotted over by them; police kicking a male youth in the groin as others held him in place; police on horseback advancing towards a mother and her child; an eighteen-year-old having his head repeatedly slammed on the road as officers pinned him down;^[18] the use of capsicum spray, including against children;^[19] punches to various parts of the head;^[20] and horses trampling over people. By 23 October – only two days after the operation – the OMLST had collected forty-three statements from demonstraters relating to arrest/removal and police violence.^[21]

Something new: using bylaws

Although many laws are used to police Occupy Melbourne , it is council bylaws that are most frequently referenced. Indeed, the first law cited by authorities was for breach of MCC’s Activities Local Law 2009, which relates to ‘camping’ and hanging ‘advertising signs’ or ‘things’ without a permit.^[22] Despite the enforcement of bylaws being relatively unheard of in Australian protest policing, the MCC bylaws have been by far the most mobilised by authorities against Occupy Melbourne . Not even in the most comprehensive – and perhaps the only – book dedicated to Australian protest law enforcement is the use of bylaws discussed.^[23]

This is not to say that Occupy Melbourne alone has been policed under bylaws within Australia, or internationally. Every month for six years Radical Women and the Campaign for Women’s Reproductive Rights have both been counter-protesting the Helpers of God’s Precious Infants outside the East Melbourne Fertility Control Clinic. Since February 2010, the two groups have been accused by MCC of breaching bylaws by placing a political banner on council property without a permit at their monthly actions. This restriction on displaying ‘things’ is one of two clauses of the bylaw that Occupy Melbourne was accused of breaching on 21 October, though this was subsequently upgraded to trespass.

In a study of the militarised policing of protests in the United States, Luis A Fernandez notes that bylaws were used against the first wave of the global justice movement.^[24] He cites the case of the 2003 protest in Miami against the Free Trade Area of the Americas summit. This is similar to Occupy Melbourne as protesters have not actually been charged or fined for breaching the bylaws.^[25] In an additional similarity, authorities have reverted to familiar laws (assault, hindering and criminal damage) to remove/arrest/charge Occupy Melbourne protesters with.

Fernandez writes that the apparent enforcement of by/laws is ‘less to do with actually arresting [or sanctioning] activists than with expanding the powers of surveillance and intimidation’.^[26] This is because of the military doctrine that has crept into domestic policing that emphasises that potential threats – including citizens – must be identified ‘before their deadly potential is realised, at a point when they are effectively indistinguishable from the wider urban populace.’^[27] As McCulloch states, ‘no political activism is above suspicion, spying on those engaged in such activities [peacefully protesting] is seen as vital’.^[28]

Something borrowed: asymmetrical policing

One key characteristic said to distinguish liberal democracies from repressive regimes is a distinction between the police and military. A close ideological and operational alliance between the police and military, and particularly the use of the military against citizens, is usually associated with totalitarian governments. In Australia, the military is used for ‘external threats’, while the police force is used for ‘internal security’. Theoretically, ‘police are duty-bound to protect life and to operate using ‘minimum force’. The military, on the other hand, is trained to kill and may use ‘maximum force’ to overcome an enemy.’^[29]

The Australian Constitution contains provisions that imply a clear division between the military and the police. In reality, the last three decades have seen this distinction incrementally eroded, with serious ramification for policing, citizens and the nature of democracy. Some of these consequences were on display on 21 October.

Certain citizens – particularly Indigenous people, workers, the poor and protesters – have consistently been treated as enemies against whom executing a high level of force is justified. Such a characterisation underpins a history of repressive and often brutal policing.

The policing of the unemployed movement in the nineteenth century provides a typical example. By 1893, nearly one-third of Melbourne’s workers were unemployed; families and communities were close to starving. Public assemblies that included speeches about socialism, anarchy and other ‘social reforms’ often attracted thousands of people.^[30] The police force was used to contain protests and undermine the political organisation of the unemployed, and, because of the relatively few number of police, a particularly savage approach was taken. As the historian Bruce Scates notes, ‘Defenceless men were beaten [with truncheons] in a “brutal fashion” and women and children were pushed and abused’.^[31]

In addition, police used a range of laws to persecute the politically active unemployed. A famous Melbourne activist was arrested and jailed as a vagrant; others were arrested for ‘seditious language’, ‘disturbing the peace’ and holding processions without permission from the Mayor [PDF].

Likewise, during the Great Depression, strikers and demonstrators were arrested, and the police used batons and even bullets against them. In 1928, police infamously fired on striking waterside workers, wounding four, one fatally.

In the anti-Vietnam War movement, ‘[a]llegations of police brutality flew as thickly and freely as boots and fists when police and protesters clashed [at rallies].’^[32] Clearly, the historical policing of dissent has parallels with the approach and some of the tactics used by Victoria Police against supporters of Occupy Melbourne.

History shows that police repression and brutality defies the neat distinction between the police and military. It demonstrates that minimum force is not the rule; rather, the intensity of repression and force waxes and wanes for a number of reasons. ‘Police knowledge’ suggests that the broader political context, the attitude of the media, the outlook of police leaders and police culture can influence responses to protest.^[33]

The ideological lens through which protesters are viewed is another important variable. Up until the late 1970s, protesters tended to be seen as subversives or communists. Since the Cold War, however, terrorism has come to dominate the characterisation of protesters. By the end of the 1970s, long before 9/11, the ideological lens of ‘terrorism’ was used to whittle away the distinction between the police and military. The continuum view of terrorism – the idea that it is but a small step from a march to a bomb^[34] – has permeated policing at a structural, training and equipment level, and this has made it easier for protesters to be characterised as enemies against whom it is ‘reasonable’ to use high levels of force.

The influence of ‘counter-terrorism’ on policing has intensified following 9/11. Specialist squads like the FRU, the military-trained Special Operations Group (SOG) and the ‘counter-terrorism’ Security Intelligence Group (SIG) were rationalised on the basis of ‘terrorism’. These squads have gradually come to have a greater influence on regular policing, particularly the policing of protests. Many of the most controversial and problematic policing incidents in Victoria since the early 1980s, including assaulting peaceful protestors and using pressure points and neck holds, can be linked to the SOG or its influence over operational tactics.^[35]

Former members of the SOG are heavily involved in the training of crowd control groups [like the FRU] and members of the SOG sometimes move into and operate as part of the crowd control groups.^[36]

Overwhelmingly, the majority of instances of police violence and excessive force observed by Vakalis on 21 October was executed by the FRU, which works alongside the SOG in the Specialist Support Department.^[37] The FRU comprises specialists teams know as Critical Incident Response Teams, which function to ‘provide support to operational police involved in unplanned critical incidents or where police are carrying out planned operations involving an identified risk’.^[38] The SIG also aids these branches, as they did on 21 October.

In addition, weapons formerly available exclusively to specialist squads, like the SOG such as capsicum spray/foam – which was originally justified as an alternative to firearms – are now being used every day by police to punish and gain compliance.^[39] Given this context, it is not surprising to see militaristic weapons and tactics used against occupiers. The case of Occupy Melbourne ultimately suggests that police view citizens exercising their civil liberties as an enemy threat to be overcome using excessive force.

Essential to what Stephen Graham calls the ‘new military urbanism’ is the belief that wealthy, highly populated metropolises are the battlegrounds of our increasingly urban world.^[40] In light of this observation, it is hard to imagine Victoria Police’s response to Occupy Melbourne if the site being occupied was not the Victorian capital. Nonetheless, the perception that dissenting citizens are threats to be overpowered, rather than an obstacle requiring patience, is not as recent as the overt creeping philosophy underpinning asymmetrical warfare articulated by Graham. While the attitude towards protesters that fosters high levels of force is a perception borrowed from the military, police throughout history have tended to view certain groups, particularly those on the Left, as appropriate targets for excessive force.

Something blue: conclusion

When examined in isolation, the tactics used by authorities during the 21 October operation do not appear particularly new or exceptional in terms of protest policing; considered as a whole, these tactics appear exceptional. The sequence of events, the combination of tactics and the disproportionately high level of force – ‘non-lethal weapons’, assaults, neck holds and pressure point tactics, the use of horses and attack dogs, and specialist ‘critical incident’ squads – make the police actions of 21 October significant. It is debatable whether the occupiers were seen by police as lab rats in an exercise to refine ‘asymmetrical policing’ systems (a view held by Jacob Grech, one of the demonstrators liaising with police on the day)^[41] or whether they were really viewed as an enemy threat that needed to be overpowered. Nonetheless, the operation was a ‘very dangerous’ and ‘unnecessary’ confrontation.^[42]  As lawyer Meg Fitzgerald from the OMLST states:^[43]

I realise there’s a context and [the police] are trying to achieve certain outcomes, but there’s ways to do that peacefully and they take longer and they cause greater inconvenience but it does mean that at the end of the day peaceful protesters aren’t walking home with serious injuries.

The violence that occurred on 21 October and the ongoing harassment by authorities have, understandably, led to a substantial decline in support for the movement. Occupy Melbourne occupies City Square each Friday. This is their eighth relocation since their eviction. While Occupy Melbourne now features rarely in the media and the occupiers are significantly demoralised, the movement has focused some much needed attention on key issues relating to protest. For instance, the extent of people’s rights to protest through the occupation of public space will go under scrutiny in a case before the Federal Court in March. Further, some occupiers are in the process of pursuing civil actions for confiscation/destruction of property and for the use of force by police. Whatever the outcomes of these cases, the fact remains that on 21 October the mostly youthful occupiers encountered a disproportionate use of force.

[1] Andy Kroll, ‘How Occupy Wall Street Really Got Started’, in Sarah Van Geder & Yes! Magazine (eds), This Changes Everything: Occupy Wall Street And The 99% Movement, Berrett-Koehler Publishers, San Francisco, 2011, p. 21.
[2] Rodney Stark, Police Riots: Collective Violence And Law Enforcement, Wadsworth Publishing Company, California, 1972.
[3] Christine Nixon & Jo Chandler, Fair Cop, Melbourne University Publishing, Carlton, 2011.
[4] Office of Police Integrity, Review Of The Use Of Force By And Against Victorian Police, Victorian Government Printer, Melbourne, 2009, p. 12.
[5] Clark McPhail, David Schweingruber & John McCarthy, ‘Policing Protest In The United States: 1960–1995’, in Donatella della Porta & Herbert Reiter (eds), Protest Policing: The Control Of Mass Demonstrations In Western Democracies, University of Minnesota Press, Minneapolis, 1998, pp. 49–69.
[6] McPhail p. 51.
[7] Melbourne City Council, eviction flyer, received 21 October 2011
[8] Melbourne City Council, eviction flyer, received 21 October 2011.
[9] 2011, FCA 1306.
[10] Charter of Human Rights and Responsibilities Act 2006 (Vic), section 15(2); Susan Bird & David Vakalis, ‘Kyle Magee: Ad-Busting, Exclusion And The Urban Environment’, Southern Cross Law Review, no. 14, 2011, pp. 170–1.
[11] McPhail, p. 52.
[12] Jon Faine, ‘The Big Banks Go Silent After Rate Cut … And The Chief Commissioner Fends Off Occupy Melbourne’, Hectic Half-Hour, 744 ABC Melbourne Radio, Australian Broadcasting Corporation, online podcast, <http://www.abc.net.au/local/programs/melbourne/programs_m35/melbourne_mornings.rss>, accessed 5 January 2012; Robert Doyle, ‘Selfish Rabble Got What It Deserved: Mayor Praises Police Action’, Sunday Herald Sun, 23 October 2011, p. 6.
[13] McPhail, pp. 52–3.
[14] McPhail, p. 53.
[15] ibid, pp. 53–4.
[16] ‘Occupy Melbourne’, Done By Law, radio podcast, 25 October 2011, <http://www.donebylaw.org/2011/10/25/occupy-melbourne-23-october-2011/>, accessed 5 January 2012.
[17] ibid.
[18] Peter Munro, Deborah Gough & Mark Russell, ‘Doyle Defiant As Protesters Plan Legal Action’, Age, 23 October 2011, p. 5.
[19] ‘Occupy Melbourne’, op. cit.
[20] Ibid.
[21] ‘Occupy Melbourne’, op. cit.
[22] Activities Local Laws 2009 (MCC), clauses 2.11, 4.6.
[23] See Roger Douglas, Dealing With Demonstrations: The Law of Public Protest and Its Enforcement, Australian Legal Monographs 6, The Federation Press, Sydney, 2004.
[24] Luis A Fernandez, Policing Dissent: Social Control and the Anti-Globalization Movement, Critical Issues in Crime and Society 2, Rutgers University Press, New Jersey, 2008, pp. 70–3.
[25] ibid., p. 73.
[26] ibid.
[27] Stephen Graham, Cities Under Siege: The New Military Urbanism, Verso, London, 2010, p. xii. For a brief account of the development of political surveillance in Australia, see Jude McCulloch, ‘Paramilitary Surveillance: S11, Globalisation, Terrorists And Counter-Terrorists’, Current Issues In Criminal Justice, no. 13, pp. 26–7.
[28] Jude McCulloch, Blue Army: Paramilitary Policing In Australia, Melbourne University Press, Carlton South, 2001, p. 179. A recent series of articles on the surveillance of protesters demonstrates this further: Philip Dorling, ‘Spies Eye Green Protesters’, Age, 7 January 2012, p. 1; Philip Dorling, ‘Private Agency Paid to Monitor Protest Group’, The Sydney Morning Herald, 7 January 2012, p. 2; Philip Dorling, ‘AFP Spies Targeting Green Activists’, The Sydney Morning Herald, 7 January 2012, p. 1; Richard Baker & Nick McKenzie, ‘The Spying Game’, Age, 16 October 2008, p. 17; Richard Baker & Nick McKenzies, ‘The Outing of a Rat in the Ranks’, Age, 17 October 2008, p. 2.
[29] Jude McCulloch, ‘Paramilitary Surveillance: S11, Globalisation, Terrorists and Counter-Terrorists’, Current Issues In Criminal Justice, vol. 13, no. 1, 2001, p. 28.
[30] Charlie Fox & Bruce Scates, ‘The Beat Of Weary Feet’, in Verity Burgmann & Jenny Lee (eds), Staining The Wattle: A People’s History Of Australia Since 1788, McPhee Gribble, Fitzroy, 1988, pp. 133–5.
[31] Bruce Scates, ‘A struggle for Survival: Unemployment and the Unemployment Agitation in Late Nineteenth-Century Melbourne’, Australian Historical Studies, vol. 24, no. 94, 1990, pp. 41–63, p. 60.
[32] Barry York, ‘Baiting The Tiger: Police And Protest During The Vietnam War,’ in Mark Finnane (ed.), Policing In Australia: Historical Perspectives, New South Wales University Press, Kensington, 1987, p. 171.
[33] Donatella della Porta, ‘Police Knowledge and Protest Policing: Some Reflections On The Italian Case’, in Donatella della Porta & Herbert Reiter (eds), Policing Protest: The Control Of Mass Demonstrations In Western Democracies, Social Movements, Protest and Contention 6, University of Minnesota Press, Minneapolis, 1998, pp. 228–52.
[34] For example, see James Crown, Australia: The Terrorist Connection, Sun Books, South Melbourne, 1986, p. 90.
[35] McCulloch, Blue Army, p. 2.
[36] McCulloch, ’Paramilitary Surveillance’, p. 25.
[37] Officer of Police Integrity, op. cit., p. 30.
[38] ibid.
[39] ibid, p. 26.
[40] Graham, op. cit.
[41] kenjiwardenclyffe, ‘Occupy Melbourne Interviews – Jacob Gretch (Trades Hall Caretaker)’, YouTube, 5 January 2012, <http://www.youtube.com/watch?v=zF-koKyIFUk&feature=share>, accessed 6 January 2012.
[42] ‘Occupy Melbourne’, op. cit.
[43] ibid.

Authored by David Vakalis and Jude McCulloch. Jude McCulloch is a professor of criminology in the School of Political and Social Inquiry at Monash University.