Legal infrastructure, differentiated space and the spectacle of ‘lawful protest’: The Australian G20 (Safety and Security) Act 2013

by Anon. | 4 Nov 2014

Queensland is this year host to various G20 meetings, most prominently the Finance Ministers’ Meeting that was held in Cairns on 20 & 21 September and next month’s Leaders’ Summit in Brisbane on 15 & 16 November. At a cost of over $450 million, a massive security operation is being coordinated by the Commonwealth Government Taskforce (G20 Taskforce), together with the Queensland Police Service and other Commonwealth, State and Local government security agencies. In what is, as Queensland Police Service assistant commissioner Katarina Carroll, confirms, ‘arguably (the biggest) [police operation] in Australia, but definitely the biggest operation in Queensland’, 5000 police, from Queensland, the AFP, interstate forces and security personal will be on the streets of Brisbane on a 24-hour roster. Public transport services close to the summit site will be cancelled, a special public holiday has been called for Friday 14 November and residents of Brisbane encouraged to leave the city for the weekend.

Specific legislation, the G20 (Safety and Security) Act 2013 (QLD), has been enacted¹to grant extensive and broad ranging powers to the police and ‘appointed persons’, to criminalize ‘disruptive’ action and grant extensive powers to give directions, search (including to strip search), detain and hold people in order to maintain ‘public order’ during the various G20 meetings. The Act creates an environment of differentiated legal rules and differentiated police powers applied to different people and places through the classification of space into three types of ‘security areas’ (‘declared’, ‘restricted’ and ‘motorcade’), a classification of people (‘prohibited’, ‘excluded’ and ‘the rest’) and a classification of conduct (as either ‘disruptive’ and the ‘lawful’). The G20 legislation thereby constructs a specific legal cartography of the Brisbane CBD and creates a matrix of differentiated legality mapped onto the city’s space. These classifications enhance the capacity to exclude those who have been deemed ‘dangerous’ through their inclusion on a ‘prohibited person’s list’ and to mark a criminal delineation between modes of dissent. Greg Elmer and Andy Opel describe policing strategies organized by ‘spatial tactics’ including the erecting of barriers and police lines as methods of ‘preempting dissent.’ Such strategies, they argue do not simply regulate the space with which they are concerned, but actively create the types of spaces and their conditions through various barriers and other infrastructural forms, so that public space increasingly resembles a ‘military grid.’ Applying a similar analysis to the policing of the 2010 Toronto G20 Summit, Alessandra Renzi and Greg Elmer claim that an analysis of policing strategies needs to consider question of the built environment and its organization to recognize ‘the political economy of infrastructure as a key site in which capital and the state are working to securitise a neoliberal mode of unfettered accumulation.’² Space, however, is constructed not only through physical barriers but also the legislation that regulates and organizes it. Therefore an analysis of legislation needs to similarly account for the way a legal regime constructs the environment it regulates in specific ways and thereby seeks to organize the possibilities of action within that space. The G20 legislation is fundamentally concerned with the differentiation of spaces and of the population in order to restrict the possibilities of dissent by preempting and predetermining the modes by which any struggles become expressed and the scripts by which events become legible within that space.

This legislation has been highly controversial, however, most critiques adopt the liberal discourse of questioning whether an appropriate ‘balance’ has been maintained between a ‘right to protest’ and the purported ‘need for special powers at large international events’ or argue that the scope of the legislation is neither necessary, proportionate to the perceived threat or consistent with the values of democracy. Whilst the only criticisms mounted of the legislation by the Parliamentary opposition was that it didn’t go far enough, the legislation has been attacked by groups including the Human Rights Legal Centre and the Queensland Council of Civil Liberties as breaching of human right provisions, that have in the words of a criminal lawyer been ‘suspended and abrogated in the most draconian way.’ Media commentary has described the laws as providing ‘wide powers to government who want to silence dissent and quash protest.’ When even the Queensland Police Union President, Ian Leavers, agrees that ‘some of the powers may seem “excessive”’, his promise that these powers would be used ‘appropriately’ and that ‘as with all forms of legislation, powers which are beyond the norm we would only use as a last resort’, is not especially reassuring. In response to these concerns the Caxton Legal Centre is organising an Independent Legal Observer project that seeks to educate the public about the special legal provisions in place for the Summit (they have produced a legal information brochure and some FAQ about the legislation) and coordinating volunteer lawyers to act as Independent Legal Observers during the Summit.

The structure and form of the legislation builds upon previous interstate legislation enacted to specifically address protest at international events, and adopts and develops their legislative template of organizing a differentiated space as a way of managing a population imagined as unruly and disruptive. The explanatory notes explicitly recognizes that ‘appropriate provisions’ from the Commonwealth Heads of Government Meeting (Special Powers) Act 2011 (WA) and the APEC Meeting (Police Powers) Act 2007 (NSW) ‘have been adapted and incorporated into the Bill.’³ Remarkably, within mainstream discourse the claim that it is necessary to implement repressive legislation of limited duration to address protest at major summits, has become incredibly normalised, despite having a history of less than a decade. Police claims about the ‘necessity’ of such legislation and the inadequacy of ‘ordinary’ police powers and the criminal law for such international events has been readily accepted by ‘scrutinizing’ parliamentary committees. Before the parliamentary committee examining the Bill, Deputy Police Commissioner Barnett recognized the exceptional nature of these laws and the ‘additional’ power it accorded to police. He, however, argued that

We believe that they are essential for us to be able to deliver the mandate and the heavy responsibility, can I say, that has been placed on this department to facilitate effectively the largest peacetime security operation in Australia’s history, which is what G20 will be.⁴

Justifications of such draconian legislation focus on its ‘exceptionality’⁵ – the fact that its operation is limited to a short time period and to a specific geographical area – thereby eluding the more pervasive and structural ‘mission creep’ that occurs as these forms of legislation and the policing tactics they enable become normalized. As is recognised by Assistant Commissioner Katarina Carroll, one can expect to see these modes of enforcing ‘public order’ filter into day-to-day policing operations. She recognizes that the G20 operation will leave an ‘extraordinary legacy’ for the Queensland Police Service, given the new technologies purchased and the ‘capacity and skills’ learnt through training for these large-scale policing operations. Justification of this legislation seeks to portray those effected by its extraordinary reach as personally responsible for an impact they brought onto themselves. A climate of justificatory fear is created through sensationalized accounts of ‘anarchist’ political violence⁶ and reports of over 1,100 arrests at the 2010 Toronto G20 Summit, accounts that deliberately ignore that fact that of these 800 were released without change and only 44 were found guilty. If the experience of the Toronto Summit should be invoked as a warning, it is as a warning of police violence: a scathing report by the Office of the Independent Police Review Director that documented excessive use of police force and violations of civil rights during that policing operation.

The G20 (Safety and Security) Act clearly states its purpose as the management of civil disobedience, enumerating its primary objective as ‘protect(ing) the safety or security of persons attending any part of the G20 meeting’, alongside objectives to ‘ensure the safety of members of the public from acts of civil disobedience in relation to the G20 Summit’ and to ‘protect property from damage from civil disobedience.’ Other objectives include ‘prevent(ing) acts of terrorism’ and ‘regulat(ing) traffic and pedestrian movement.’⁷ The legislation, however, is not so much directed towards the silencing protest and quashing dissent, but rather the management of carefully controlled protest, by allowing within strictly determined parameters a limited space for ‘lawful’ dissent provided such protests remain an undisruptive spectacle. A specific section of the Act defines ‘lawful assembly’ in order to ‘allow for lawful assemblies in declared areas while ensuring the safety and security of the G20 meeting.’⁸ The ‘lawfulness’ of an assembly is defined by both its location (permitted in a declared area but not in a restricted or motorcade area)⁹ and also its mode of conduct. An assembly will be considered ‘lawful’ if it ‘does not disrupt any part of the G20 meeting’ but becomes unlawful if two or more protestors commit an offence (under this Act) acting in concert, or if a protector commits a ‘violent disruption offence’¹⁰ or an offence involving damage or destruction to property.¹¹ The Vice-President of the Queensland Law Society, Ian Brown has expressed serious concerns about what he describes an ‘all-pervasive concept of ‘disruption.’ He argues that ‘many of the impacts that will occur to peoples’ rights are associated with the concept of a disruption to the G20’ especially given the ‘vague and loose’ nature of this concept and high degree of legal indeterminacy about what constitutes ‘disruption’, warning that ‘disruption could simply be yelling very loudly.’ These provisions on lawful protest also enable the explanatory note to declare that the Act ‘appear[s] to be in conformity’ with the International Convent on Civil and Political Rights¹² and for politicians and police to express their support for ‘legitimate protest.’ Police Minister Jack Dempsey stated:

For protestors, they’ll still be able to peacefully protest, there are areas set aside for those wanting to protest and we respect their rights to being able to protest and voice their opinions, but I encourage them… In the next 12 months the police will be engaging with these protest groups to ensure obviously that they are able to get their message across in a safe manner that respects all the other people attending.

Queensland Police Service Assistant Commissioner Katarina Carroll reiterated this message about official support for ‘peaceful’ and ‘lawful’ protests, but also additionally underscored the strong police response to any protest action exceeding these delineated parameters:

Historically, G20s do attract protests. We do expect that people will protest and from the very outset, we’ll support peaceful and lawful protests … Obviously if it becomes unlawful and there’s disruption of the event, or the destruction and damage to property, there’s more affirmative action we can take.

This provision on ‘lawful assembly’ and a carefully constrained ‘right to protest’ thereby operates to allow but also restrict and constrain protest, effectively placing responsibility on protesters and protest organizers to self-police to ensure containment within these delineated boundaries. This framing requires protestors as a condition of their public ‘legitimacy’ to continuously reemphasise through actions and words their commitment to lawfulness and peacefulness and to explicitly condemn alternative forms of protest or political expression.¹³

The terrain of dissent: security areas and their laws

The Act establishes three types of ‘security areas’: declared, restricted and motorcade. Restricted areas (marked on the map in blue) cover the Summit venue¹⁴ as well as the accommodation of leaders attending the Summit¹⁵ and additional areas that may be declared.¹⁶ The Police Commissioner has described restricted areas and their regime of access as follows:

Restricted areas will have the highest level of security and associated police powers. Access to a restricted area or part of a restricted area will only be authorised under an accreditation issued by the Commonwealth or by approval of a police officer of at least the rank of Superintendent. lt is expected that approval access by a police officer will only be required in exceptional circumstances.¹⁷

The legislation also provides for temporary restricted areas or ‘motorcade area’ to restrict access to roads while they are being used for G20 purposes and the movement of delegates.¹⁸ Entering or attempting to enter a restricted area¹⁹ or motorcade area²⁰ (without specific justification) is criminalised. Declared areas span several suburbs – including Brisbane City, parts of South Brisbane, Petrie Terrace, Spring Hill as well as Gate 20 of Brisbane Airport – and authorize extensive police powers to stop individuals, demand identification, search and direct people to move. On 26 September 2014 the G20 (Safety and Security) Regulations commenced. These regulations have the effect of extending the restricted areas to cover the South Bank Central Precedent and Piazzi as well as the Treasury Casino and Hotel and other hotels.²¹ The geographical area of the Brisbane CBD declared areas has not changed (there have been minor remote additions)²² however declared areas are now operative from 8-17 November 2014 (previously only applicable from 14-17 November). Deputy Police Commissioner said that ‘part of the reason why these changes have been made is that we’ve become aware that there will be a series of protests from the 8^th onwards,’ referring to the Brisbane Aboriginal Sovereign Embassy against the Genocidal20 in Musgrave Park that will set up camp on 8 November.

These ‘security areas’ are the legal techniques by which a differentiated legal geography that authorizes differentiated police powers is organized. The legislation gives police and ‘appointed persons’ extensive powers to request someone provide their personal details, both as condition entry into a security area²³ and when stopped within a security area.²⁴ Police can request someone’s personal details if they suspect that a person has committed or is about to commit an offence which may or is intended to disrupt the G20 or ‘is posing or may pose a serious threat to the safety and security of the G20 meeting.’²⁵ Police have additional powers to give any direction they consider necessary²⁶ for the safety and security of the G20 meeting or for a G20 purpose.²⁷ Police have the power to conduct ‘basic’²⁸ and ‘frisk’²⁹ searches on anyone attempting to enter, about to enter or leaving a restricted area or a motorcade area and have the power to strip search³⁰ anyone attempting to enter, about to enter or leaving a restricted area or a motorcade area who does not have Commonwealth accreditation.³¹ This power extends to any vehicle attempting to enter or in a restricted or a motorcade area³² or that an officer suspects contains a prohibited item within a declared area.³³ Anyone attempting to enter, about to enter, in or leaving a declared area can also be searched by police, or strip searched if the officer suspects they may be in possession of a ‘prohibited item’ (without a lawful excuse) or that they are either a ‘prohibited’ or ‘excluded’ person.³⁴

Prohibited Items

The legislation contains an extensive list of prohibited items that must have, as Mike Seccombe writes, been written by someone with a ‘heck of a criminal imagination.’³⁵ The legislation criminalises the possession or any attempt to take any ‘prohibited’ items into any security area, without reasonable excuse.³⁶ The effect of this provision that potentially criminalises an excessively broad range of conduct – that technically includes being in possession of common household items such as glass jars, remote control toy cars and eggs within an area that spans multiple high density suburbs – is to provide for an excessively large degree of discretionary and arbitrary subjective executive police decision regarding what constitutes a ‘reasonable excuse.’³⁷ It is not fanciful that there will be hundreds – if not thousands – of instances over ‘prohibited items’ being in possession of someone within a declared area over the G20 period; these actions could all potentially be criminalized, unless the person in question can demonstrate the ‘reasonableness’ of their actions, an assessment of which is made by an individual police officer.³⁸

Prohibited persons list and ‘exclusion notices’

The Act gives the police the power to effectively ‘blacklist’ people by compiling a ‘prohibited person’s list’³⁹ of persons that may disrupt the G20 meeting⁴⁰ in order to bar the people on this list from entry into any of the security areas⁴¹ and to criminalise any such entry or attempted entry.⁴² The Queensland Council of Civil Liberty has contested these provisions arguing that the ‘Police Commissioner should not have the power to trash a person’s reputation in such a way’ and describing the claim that there is a ‘right to review’ as misleading, however it is the designation of some people as ‘dangerous’ based on potential action that is especially concerning. Police additionally have the power to issues an ‘exclusion notice’ (applicable until midnight 17 November) for a range of reasons spanning from failing to disclose ones details to being arrested in relation to the G20 meeting.⁴³

Other offences and arrest process

The legislation also makes it an offence to (or attempt to) climb onto, over, under or around, move or replace a barrier, road cordon, a road impeder or a waterway restricted that has been placed in a specific locale for a ‘G20 purpose.’⁴⁴ There is a broad exception to this criminalization to protect the activities of police officers and ‘appointed persons’ acting in the course of their duties and people acting on the instructions of police officers.⁴⁵ This again introduces a massive element of police discretion. The legislation also makes it an offense to light a fire within a security area, with reasonable excuse exceptions to cover, for example, chefs lighting barbeque at a restaurant.⁴⁶

The legislation also criminalises climbing a building or structure that is not necessarily in the security area but is in view of the security area if one does so with intent to cause injury or alarm to someone associated with the G20 meeting, damage property associated with the G20 meeting or in any way impede or disrupt the G20 meeting,⁴⁷ again a criminalisation of conduct hinging on the indeterminate question of what constitutes ‘disruptive’ behavior.

Arrest process and reversal of the presumption of bail

Police powers to arrest someone without a warrant⁴⁸ are broadened to authorize police to arrest anyone they reasonably suspect has or is committing an offence under this Act.⁴⁹ If a person is arrested they are required to be taken to a ‘processing facility’ where they may be held for the time ‘reasonably necessary’ to establish their identity and make a decision about whether to charge the person (and either release on bail or remand them), release without charge or release and issue an ‘exclusion notice.’⁵⁰ One of the most controversial element of the Act has been the way it reverses the general presumption for bail, in relation to offences involving assaulting or ‘throwing, propelling or discharging a missile or a substance’ at a police officer or ‘appointed person’ or G20 participant, damaging or destroying property or ‘disrupting or attempting to disrupt any part of the G20 meeting.’ In effect these provisions mean that the default position is that people arrested and charged will be refused bail, almost without exception until the end of the G20 meeting.

Conclusion

While the neoliberal politics that the G20 represents are being contested and challenged around the world, the G20 (Safety and Security) Act 2013 speaks of the legal violence involved in the criminalization and the preemptive prevention of political dissent to securitize the organization of continued capitalist accumulation. The scope of the legislation is truly exceptional, with even mainstream news services recognizing that it creates an enabling environment for a police state. Alongside general draconian powers this legislation provides for differentiated application of police powers according to a legal organization of space and a preemptive categorization of certain people and specific objects as potentially dangerous. In doing so the legislation drastically increases the scope of executive power exercised subjectively, and quite possibly arbitrarily, by individual police officers regarding what actions will and will not be criminalized; to take an extreme example, the very ‘ordinary’ activity of eating a breakfast egg in a suburban home technically breaches legislative provisions, however, their enforcement is dependent upon subjective and arbitrary individual police discretion. This legislation is not simply retrospective, in that it provides the power to prosecute actions after they are taken, but preemptive, in that it seeks through its organization of space to restrict the possibilities of dissent by predetermining the ways in which events become legible within that space. The challenge for social movements is to find ways of opposing not simply the extreme nature of the categories established by this legislation, but the capacity of law to organize, define and differentiate expressions of public dissent. It is therefore not surprising that proposals have emerged putting forward a ‘Plan B’ and calling for ‘people to form affinity groups in their home towns and autonomously organize decentralized direct action against the G20 and the capitalist occupation of our lives’ rather than to ‘march into the traps they have set for us.’ Spectacle within predetermined parameters does not constitute dissent; rather the expression of dissent requires also the possibility of constructing the terrain for its self-expression and for the realization of alternatives beyond capital.

Disclaimer: While every effort has been made to ensure the accuracy of the information included in this analysis (which was current on 22 October 2014) it should not be relied upon as legal advice. If you require legal advice please see a specialist lawyer.

Republished from Upswell

1
The Queensland Act was passed by the Queensland Parliament on 29 October 2013 and commenced on 7 November 2013.
2
Alessandra Renzi and Greg Elmer Infrastructure Critical: Sacrifice at Toronto’s G8/G20 Summit (Arbeiter Ring Publishing, Winnipeg, 2012), 11.
3
Explanatory notes, page 16.
4
Transcript of Proceedings (Hansard), Public briefing, Legal Affairs and Community Safety Committee, 13 September 2013, page 3.
5
In justifying the infringements of civil liberties, as not ‘an unrealistic imposition on a person’ the explanatory notes places heavy emphasis on the ‘level of security that must be maintained during the G20 meeting to ensure the safety and security of delegates and members of the public’ whilst also stressing the temporary nature of the suspension of ‘normal’ processes.
6
See in particular several articles (here and here)by a Professor of Policing, Intelligence and Counter Terrorism, based on an factually inaccurate idea of the Black Bloc as an ‘international anarchist organisation’ and responses here and here.
7
Section 2.
8
Section 16(1).
9
Section 16(2) and section 18(1)(a)&(f).
10
A violent disruption offence is described as an offence that involves violence against a person or damage to property that is intended to or likely to disrupt any part of the G20 meeting (Section 18(2)).
11
Section 18(1)(c)-(e). In addition a separate provision makes it an offence to ‘disrupt, interfere with, delay or obstruct the conduct of any part of the G20 meeting or an activity associated with any part of the G20 meeting’ or ‘interfere with the reasonable enjoyment of any part of the G20 meeting.’ Section 74. Maximum penalty is a fine of $5,500 (50 penalty units). This offence of ‘disruption’ is in addition to other legislative provisions in QLD that have the potential to be used to criminalise protest. The G20 legislation supplements these by creating an additional offence of assaulting or obstructing an ‘appointed person.’ Section 75. Maximum penalty is a fine of $4,400 (40 penalty units).
12
Article 21 and 22, EN, p 12.
13
The G20 spokesperson Brisbane Community Action Network (who are planning a Peoples’ Summit and a Peoples’ March to express opposition to the G20 and promote alternatives) was in this way ritually required by the media to express that ‘we will be protesting in a responsible and law-abiding manner’, to eschew violence (‘I cannot see any of the violence associated with other G20 Summits across the world occurring in Brisbane’) and to commit to ongoing dialogue with police around protect activities.
14
The Brisbane Convention and Exhibition Centre and the Royal National Association Showground (including the International Convention Centre).
15
Treasury Casino and Hotel, Rydges, Hilton, Marriott, Novotel, Pullman, Royal on the Park, Sofitel, Stamford ‘Plaza’ Hotels) and the Suncorp Stadium Bus Terminal.
16
Additional declared and restricted areas can be confirmed through regulation, a written order of the Police Commissioner with Ministerial approval and must be publicized on the website (Section 12). Additional ‘emergency’ security areas can be declared by the Police Commissioner if he is satisfied that such a declaration would ‘assist in the promoting the safety and security of the G20 meeting or the safety and security of the public’ and it is necessary to make such a declaration as a matter of urgency (Section 13).
17
Letter from the Office of the Minister for Police and Community Safety, 5 September 2013, Attachment, pages 2–3
18
Declared motorcade areas will not remain in continuous effect during the entire period of the G20 meeting as doing so would prevent those roads from being used by members of the public for several days. Instead, ‘motorcade areas’ is a temporary designation, a ‘temporary restricted zone’ for the period of time necessary to ‘conduct a motorcade with the required level of security’ whose declarations remain in force until the revoked by a police member of sufficient rank.
19
Section 70. Maximum penalty $5,500 (50 penalty units).
20
Section 71. Maximum penalty $5,500 (50 penalty units).
21
An additional restricted area near Brisbane Convention and Exhibition Centre (1-17 November), at Four Points by Sheraton Hotel (1-11 November), Gambara Hotel (14-17 Nov), Intercontinental Hotel Sanctuary Court Resort (9-17 November), Southbank Cultural Precinct (midnight 14 November – midnight 15 November), South Bank Piazza (12-17 November), Treasury Casino and Hotel (midnight on 8 November – midnight 9 November).
22
However an updated map is provided in Schedule 2 Part 2 of the regulations. The following Declared areas were added: Brisbane Airport, Eagle Farm (14-17 November), Intercontinental Hotel Sanctuary Cove Resort (9-17 November), Surfers Paradise Marriott Resort (9-17 November) and Palazzo Versace, Main Beach (9-17 November).
23
Section 37(1)(a).
24
Police have the power to request anyone’s details within a ‘declared area’ (Section 37(1)(b)) and police and ‘appointed person’s have the power to request anyone’s details within a restricted or motorcade areas (Section 37(2)(b)).
25
It is an offence not to disclose ones identity in such circumstances. Section 68. Maximum penalty is a fine of $1200 (10 penalty units)
26
Including direction to not enter an area, leave an area or stand in a specific place in an area, to any person or a group of people.
27
Power to give direction, Section 48. Offence provision Section 69. Maximum penalty is a fine of $5,500 (50 penalty units). In addition the legislation states that if a direction is given to a group, it is presumed that all members of the group heard that direction unless the contrary is proven.
28
‘Basic searches’ are those using an electronic screening device, Section 20.
29
A ‘frisk search’ can involve quickly running hands over a person’s outer clothing, searches of easily removable clothing and headwear, gloves, footwear and other outer clothing Section 21.
30
This is described in the legislation as a ‘specific search’: Section 22.
31
Section 23 (for restricted areas) and Section 25 (for motorcade areas).
32
Section 31.
33
Section 32.
34
Section 24. These search powers extend to premises with police authorized to search without a warrant any premises within a ‘restricted’ area (primarily hotels, with a few additional safeguards included to restrict this power in relation to placed used for residential purposes) (Section 33).
35
Schedule 6. The list includes firearms, knifes, slingshots, bows, swords but also more common place items such as glass or metal bottles or jars, stones, ball bearing and eggs, handcuffs, a banner more than 1m x 2m which had a pole attached to it, graffiti instruments, reptiles(!), lock-on devices, chains or things capable of securing objects together, communication devices (other than mobile phones) such as two-way radios, kites, remote controlled cars, planes or drones, and fake Commonwealth of Police identification cards. A police officer can seize or require someone to surrender any prohibited item (Section 60).
36
Section 63(1)&(2). Maximum penalty is a fine of $5,500 (50 penalty units). It is also an offence to use a prohibited item ‘in a way that it, something contained in it or on it or produced by it may enter a security area.’ Section 63(3). Maximum penalty is a fine of $12,000 (100 penalty units)
37
The legislation lists as examples of a ‘reasonable excuse’ situations including ‘a family using knives to consume food at a barbecue at South Bank Parkland’, ‘a child playing with a radio controlled toy car in the yard of the place where the child lives in a security area’ or ‘a person who purchases a longbow from a sports store in a security area and then carries the longbow in a case to the person’s vehicle to take it home.’
38
Whilst some of these questions might ultimately be adjudicated in a court, months if not years subsequent to the event, this involves a massive temporal delay, and fails to provide any real limitation on the way this discretionary executive power is deployed on the ground.
39
The Police Commissioner must (if reasonable practicable to do so) serve a notice to those people who are on the prohibited person’s list. Section 51(1). If a person on the prohibited person’s list writes to the Commissioner the Commissioner must provide them with reasons about why they were included on the list unless a number of exceptions (including nationals security considerations) apply and reconsider their inclusion on the list. The list (including photographs and reasons) may also be publically published including on websites, newspaper or social media (Section 52(2)&(3)) but there is no requirement for the prohibited person’s list to be made public (Section 52(4)).
40
The Police Commissioner may place someone on this list if they believe the person may pose a serious threat to the safety or security of persons and property in a security area, cause injury to persons or damage to property outside a security area through activities opposing the G20 or disrupt any part of the G20 meeting. Section 50(2).
41
Section 50(1). Prohibited persons can be prevented by police officers or other authorized officers from entering any restricted, declared or motorcade areas and can with their belonging we removed from a security area. Section 54
42
It is an offence for a prohibited person to enter or attempt to enter any security area. Section 72. Maximum penalty $12,000 (100 penalty units). This is justified as follows: The explanatory notes state: ‘Given the magnitude of the G20 meeting, the status of those persons attending, and the international obligations Australia has to protect the safety and security of Internationally Protected Persons and international events held in Australia, it is necessary that a person falling within the ambit of a prohibited person is excluded from all security areas during the G20 period.’
43
An exclusion notice can be given if a police officer is ‘reasonably satisfied’ a person has failed ‘without lawful excuse’ to do any of the following: disclose their personal details when asked to do so, comply with a police request or has (‘without lawful excuse’) resisted, hindered or obstructed a police search, is in possession of a prohibited item in a security area, is on a closed road, participates in any rally or assembly in a security area with the intension of disrupting the G20 or is arrested for an act related to the G20 meeting. (Section 55(1)). The officer must ask the person to whom the exclusion notice is being given whether they have a reasonable excuse but the discretion about assessing the reasonableness of the conduct lies entirely with the individual officer (Section 55(2)-(6)). It is an offence for an excluded person to enter or attempt to enter any security area from which they have been excluded (Section 73. Maximum penalty is a fine of $12,000 (100 penalty units)).
44
Section 64. Maximum penalty is a fine of $5,500 (50 penalty units)
45
Section 65.
46
Section 67. Maximum penalty is a fine of $12,000 (100 penalty units).
47
Section 66. Maximum penalty is $12,000 (100 penalty units).
48
See for example Police Act, section 365.
49
Section 78.
50
Section 79.