Hannah Thomas: NSW police use emergency riot powers to justify arrest of pro-Palestine protester
The 35-year-old was arrested at a pro-Palestine protest in Sydney on 27 June that was attended by about 60 people. She was subsequently taken to hospital and this week will undergo a second round of surgery amid fears she could lose sight in her right eye.
Thomas was a Greens candidate who ran against the prime minister at the federal election.
Last week, Thomas was charged with resisting police and refusing or failing to comply with a direction to disperse. It was revealed on Monday that Thomas's arrest documents show that her second charge cited emergency police powers under part 6A of the Law Enforcement Powers and Responsibilities Act (Lepra).
The laws, which were introduced in the wake of the Cronulla riots, require authorisation and give police a series of powers to quell 'large-scale public disorders'. An authorisation can be given by the police commissioner or by a deputy or assistant commissioner of police.
The NSW Greens MLC Sue Higginson on Monday wrote a formal complaint to the police watchdog – the Law Enforcement Conduct Commission (Lecc) – against the assistant commissioner Brett McFadden. She alleged he had 'issued an unlawful or retrospective authorisation to use emergency powers in violation of their conditions'.
The complaint, seen by Guardian Australia, is also against the arresting officers who Higginson alleged had 'issued unlawful move-on orders and made unlawful arrests'.
Five protesters, including Thomas, were arrested and charged at Belmore.
McFadden, in a statement prior to the complaint being filed, said that he had put in place a process last Monday to review the charges laid against Thomas.
'I put in place a process to review the charges laid in this matter to ensure the relevant and most appropriate charges are applied. The review is part of normal critical incident protocols,' he said.
McFadden said NSW police were unable to provide further information given the matter was now before the courts and subject to a critical incident investigation overseen by the Lecc.
Higginson noted in her letter to the Lecc that an authorisation to use the emergency powers required an officer to have reasonable grounds for believing 'there is a large-scale public disorder occurring or a threat of such disorder occurring'.
She wrote that for a commissioner to have reasonable grounds for this belief, they needed to establish a riot or other civil disturbance that 'gives rise to a serious risk to public safety' was occurring or was about to occur. They also need to establish that the 'exercise of those powers is reasonably necessary to prevent or control the public disorder'.
Higginson said video from the scene showed police officers issued move-on orders and then arrested protesters after they questioned what Lepra powers were being relied on.
Video footage suggested one of the protesters later charged, Zach Schofield, was grabbed by a police officer after he asked what legislation empowered the officers to move on the protesters.
In the video, an officer can be heard telling the protesters they are being issued a move-on order and are required to leave Belmore and not return for 24 hours.
A protester can be heard saying: 'What legislation is empowering you to do this? Can you name it please because this is actually counter to Lepra.'
The protester is cut off mid-sentence when asking about the legislation as police officers move to grab him. A scuffle ensues, according to the video footage seen by Guardian Australia.
Higginson argued in a statement about the complaint that 'there was no evidence whatsoever to form the basis to invoke the extraordinary police community control powers'.
'The event was intended and was a small lawful gathering of people protesting about SEC Plating and the genocide taking place in Gaza,' she said.
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'When an officer exercises these powers after being authorised, any person given the direction must be informed that the direction is to prevent or control a public disorder.'
Higginson said the appearance of the emergency powers on the arrest documents for Thomas was 'concerning' and suggested an assistant commissioner or above 'must have authorised their use and they must have believed that a large-scale public disorder was about to take place'.
'The other possibility for these emergency powers to be mentioned is that the NSW police are currently engaging in reverse engineering evidence to justify the [alleged] assault of an innocent member of the community.
'At no point over the last 10 days have any of the police, the premier, or the minister for police referred to public disorder, let alone large-scale public disorder.'
The 27 June protest was outside SEC Plating, which protesters claimed was manufacturing parts used in the F-35 jet program. However, SEC Plating has denied this is the case.
When part 6A of Lepra was introduced in response to the Cronulla riots, then premier Iemma Morris stated that 'these powers are not intended to be used in respect of peaceful protests, union demonstrations and the like'.
In October 2023, the NSW deputy police commissioner David Hudson told reporters during a press conference that he was seeking to enable the riot powers before a rally in Sydney's Hyde Park.
The announcement came amid fierce backlash against a 9 October rally outside the Sydney Opera House during which some people – who were not part of the initial protest – were chanting antisemitic slurs.
On Friday, during an upper house parliamentary inquiry into antisemitism, Hudson defended the right to protest at that 9 October rally.
'We can't prevent the free movement of people throughout the city just because you're in a protest. You can walk down the street, the footpath,' he said.
'Bearing in mind, at that particular protest at the Town Hall, there were a lot of women, children [and] women pushing prams.
'It's not like we were going to put walls up and start boxing on with these people who have a right to protest.'
Comment was sought from NSW police on Monday.
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