John Morris reports that the first two trials arising from the February demonstrations opposing the visit of Vice President Dick Cheney have seen dismissal of all charges for both defendants, Jo Ball, a disability worker, and Jasmine Ali, a student. More broadly, arguments raised by the defence in both trials raise significant operational and legal responsibilities for the NSW Government and its police force.

These responsibilities are relevant for the upcoming APEC demonstration in September and apply irrespective of the specific APEC laws introduced into the NSW State Parliament.

Primarily, police can no longer maximise arrests and charges and expect these to be successfully carried through the court system, especially given successful legal arguments based on "reasonable self defence" under common law.

For the NSW Government's part, the summation of magistrates from bail hearings through to the trial results is cogent. The State Labor government, in the context of embarrassment regarding traffic delays related to the arrival of the QE2 and QM2 luxury liners only days earlier, talked up a "pro arrest" policy. However the courts admonished such hype and attempted perversion of the rule of law.

During the trial of Jo Ball regarding an obstruction charge the police responded to a presiding magistrate's query that not only was Vice President Cheney not coming near the demonstration in the Sydney CBD, but that he was not even in the country at that time! During previous bail hearings, Magistrate Maloney said "Why did Mr Cheney come here anyway? Why didn't he just pick up the phone and call John [Howard]".

Also established was that the 350 person rally had been authorised under the legal principles of Section 23 of the Summary Offences Act. This act places the onus on the police commissioner to gain a court injunction in order to prevent a street march from occurring. In February the police failed to do this and then subsequently failed to prevent the demonstration from marching even despite the use of force.

The State Government, indeed governments more broadly across the nation, cannot expect that politically expedient posturing can overcome basic principles of the rule of law, and given that the Cheney protesters successfully fought to march in February, stand on notice that citizens seem well prepared to challenge arbitrary use of authority and denial of their fundamental rights.
As to the police, the onus of their duty , especially that akin to the duty of care bestowed on teachers, nurses and other professionals, has been further defined.

The case of Jasmine Ali brought a legal argument of "reasonable defence" from the defence legal team of Simon Lusk and Craig Hyde of DLA Phillips Fox legal firm. The argument was based on Section 418 of the Crimes Act, specifically sub section 2 "Defence of yourself or other person". Further precedence tendered included the appeal court judgement in the high public profile case of Will Burgess and David Saunders, who painted "No War" on the Opera House, who claimed a defence based on preventing the loss of life in Iraq. The Supreme Court found the argument valid but in their case the link was deemed tenuous.

Video evidence to support the self defence argument, although discontinuous, showed a violent charge by two "snatch squads" of police officers seeking to arrest two people alleged to have dressed as police officers. As one of these people withdrew into the crowd, the police continued forward, knocking over several people and causing panic and distress. Adding to the emotional shock was that the rally, which had been conducted peacefully for over an hour, was in its final stages and likely to disperse.

Jasmine Ali reacted, grabbing the arm of an officer gripping the neck of a friend. The court regarded this as reasonable self defence of another person, in the circumstances. It is these circumstance that the police commissioner and Police Minister must consider. The use of aggressive tactics such as pro arrest, snatch squads, throat grips, sudden charging, containment contrary to right to march authorisation and dressing up legal charges, have been show to cause chaos and subsequent surges of emotional distress. This chaos leads to a further breakdown of police coordination and then escalation, as police react with increasing and less discriminating force.

The responsibility for this escalation lies not with individual officers, but with the senior police prior to such operations and then with commanders on the ground during such incidents. The NSW Police must return to a less confrontational style, less "pro arrest" rather more akin to a UN peace keeper "monitoring" role.

However, ill omens exist with the formation of a permanent "Riot Squad", the OSG (Operational Support Group), purchase of black windowed "rapid response" four wheel drives and even a water cannon present at one of the Cheney demonstrations. During cross examination an OSG officer demonstrated the detached, sectional nature of the group by refusing to answer the question "Where is the OSG based?" University students are well aware of the increased presence of the OSG - as well as special police infiltrating their ranks, as reported by Edmund Tadros of The Sydney Morning Herald (18 June). Ironically, the "Christmas tree" like flashing lights of a dozen special police vehicles trailing student marches into the city of Sydney tends to double their apparent size and impact!

The inability of either the NSW government or its police force to learn from the Cheney or similar demonstrations will be at the peril of their credibility to engage professionally with the basic and legally undeniable human right to protest. Paddy Gibson, from the Stop the War Coalition, stated after the acquittal of Jasmine Ali, "I know heaps of activists who would not have suffered previous convictions with that defence [ reasonable self defence ]".

In this era of global electronic communication and instant SMS messaging, it is more than likely protesters against the APEC visit of the Iraq War burdened President George Bush, are well aware of the shifting legal ground. The State Labor government, with a nominal party position for the removal of Australian troops from Iraq, is best advised to monitor and take note of public dissent. Failure to do so may well result in another burden which Premier Morris Iemma, currently coping with crisis from trains to ministerial impropriety, most certainly does not need.

John Morris

John Morris is a school teacher, Secretary of the Canterbury-Bankstown branch of the NSW Teachers Federation and one of the arrestees at the VP Cheney demonstrations.