Class actions firm Phi Finney McDonald, supported by Inner Melbourne Community Legal, initiated a class action against the Victorian Government relating to Victoria Police’s use of oleoresin capsicum spray (OC spray) on protesters outside the International Mining and Resources Conference (IMARC) in Melbourne in October 2019.
This is the first class action brought against Victoria Police in relation to its use of OC spray in a public protest and could set a precedent for how the force uses OC spray in future protests and in the public order policing context more generally.
The class action was initiated on behalf of protesters, led by the lead plaintiff, Jordan Brown, who was one of several people sprayed by police at the IMARC protest.
Mr Brown argues that use of OC spray on himself and other protesters by police was unlawful and in breach of his human rights when used as a coercive tool or where there was no immediate or proportionate threat to police officers or the public.
During the trial, he gave evidence that he was passively resisting and standing underneath a pole from which protesters had earlier hung a banner when he was sprayed a number of times by two senior police officers.
The State argued that the spray was deployed in self-defence and was reasonable and proportionate in accordance with the requirements in s 462A of the Crimes Act 1958 (Vic).
The trial commenced in the Supreme Court of Victoria on 17 February 2025 and was heard over three weeks before Justice Claire Harris. Closing submissions were held on 11 and 12 June 2025, with a decision likely to be handed down later in the year.
In addition to seeking damages for Mr Brown and other group members, it is hoped that the class action will serve as a reminder to police about the dangers of using non-lethal weapons in protests and hold them accountable for the unlawful use of weapons.
This case further highlights the increasing expansion of police powers in Victoria and the effect that this has to stifle our rights to peaceful assembly and the freedom of expression.
This concerning trend was observed during last year’s Disrupt Land Forces protests which, coincidentally, also took place at the same location as the IMARC protest. During the Land Forces exposition, we observed the police invoke their special police powers under the Terrorism (Community Protection) Act 2003, their designated areas search powers under the Control of Weapons Act 1990 and, concerningly, the use of flash bangs and rubber bullets at protesters.
More recently, we have seen the recent expansion of police powers through the passage Terrorism (Community Protection) and Control of Weapons Bill 2024 that expanded the police’s search powers and scope of designated search areas.
This climate demonstrates an increasing militarisation of Victoria Police’s responses to protests and their disregard for our civil rights to peaceful protest with no sign of accountability.
Protecting our rights to public protests
Set against this concerning background, the IMARC class action is even more important now that the Victorian government is currently seeking to increase the scope of police powers to suppress lawful protesting. Legislation will shortly be before Parliament seeking to ban the wearing of masks at public protests.
While the reforms were intended to remedy against the rising tide of anti-Semitism from the neo-Nazis and fascists who hide behind masks, the reality is that a blanket ban would only make it harder for legitimate protests to take place and will not be reasonably proportionate to the law’s intended purpose.
Police need to be accountable
As set out by senior counsel during the closing submissions for the plaintiff, the police have an important and difficult task of protecting the community. However, this does not give them licence to act beyond the lawful scope of their duties. When police have acted unlawfully, there is currently no other mechanism other than to engage in costly civil proceedings to bring police to account.
We cannot simply rely on police to investigate themselves. In Mr Brown’s case, he gave evidence that he had initially made a complaint about the use of capsicum spray to the police themselves, but his complaint was dismissed as ‘unsubstantiated’.
The class action further highlights why Victoria needs an independent Police Ombudsman.
Ordinary Victorians should not have to engage in costly civil proceedings to bring police to account for their unlawful actions.
