FEDERAL COURT OF AUSTRALIA

Browne v Assistant Commissioner of Police, North West Metro Region [2026] FCA 15

ORDERS

THE COURT DECLARES THAT:

1.    The First Respondent’s declaration made on or around 25 November 2025 of a designated area under s 10D of the Control of Weapons Act 1990 (Vic) effective from 12.00 am on 30 November 2025 to 11.59 pm on 9 January 2026 (the Designated Area Declaration) was:

(a)    affected by jurisdictional error, and therefore invalid; and

(b)    incompatible with human rights within the meaning of s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter), and therefore unlawful; and

(c)    unlawful because, in deciding to make the Designated Area Declaration, the First Respondent failed to give proper consideration to s 13 of the Charter in the manner required by s 38(1) of the Charter.

THE COURT ORDERS THAT:

2.    The originating application be otherwise dismissed.

3.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BENNETT J:

1    This proceeding concerns the validity of the declaration of an area to be a designated area under s 10D(1)(b) of the Control of Weapons Act 1990 (Vic) (the Act) by the North West Metro Region Assistant Commissioner of Police (First Respondent) on or around 25 November 2025 (the Declaration). Generally, the effect of such a declaration under the Act is to confer upon police officers and protective services officers powers that are not ordinarily available to them. Those powers are explained in more detail below, but generally include the power to search a person or vehicle without a warrant or any suspicion of wrongdoing, and to direct a person wearing a face covering for a specified purpose to leave the designated area if they refuse to remove that face covering when requested by a police officer to do so. This proceeding also concerns a challenge to the constitutional validity of s 10KA(1) of the Act, the provision conferring the power in respect of face coverings just mentioned.

2    There are three applicants, Tarneen Onus Browne, Benjamin Zable and David Hack (the Applicants). Each of the Applicants are involved in rallies and protests from time to time. They allege that the Declaration was affected by material jurisdictional error and was therefore invalid in the period of its operation because:

(1)    The decision maker did not in fact form the state of mind required by the Act as a precondition to the exercise of the power (ground 1), or failed to do so on a correct understanding of the law (ground 2), or did so unreasonably (ground 3), such that the power was not in fact enlivened in the making of the Declaration.

(2)    If the power was enlivened, its exercise did not comply with the requirement that the declaration be no larger than reasonably necessary (ground 4), and no longer in duration than reasonably necessary (ground 5), for particular purposes.

(3)    If the power was enlivened, it was exercised for an improper purpose (ground 6) or otherwise unreasonably (ground 7).

3    The Applicants further allege that the Declaration was incompatible with human rights within the meaning of s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) (ground 8), or that the decision maker failed to give proper consideration to relevant human rights protected by the Charter (ground 9). The Applicants seek a declaration of unlawfulness in respect of the Declaration on Charter grounds, but do not press any argument that the alleged failure to comply with the Charter itself leads to invalidity of the Declaration.

4    In addition, the Applicants argue that s 10KA(1) of the Act, which empowers police officers to give directions to people wearing face coverings within an area designated by a declaration under s 10D or s 10E, contravenes the implied constitutional freedom of political communication. The burden on political communication is said to arise because s 10KA(1) limits the ability of people who wish to wear face coverings to rallies taking place within designated areas to do so, and because it limits the use of face coverings as a form of political expression. The Applicants seek either:

(a)    a declaration of invalidity in respect of s 10KA(1); or

(b)    a declaration that s 10KA(1) does not operate to authorise a police officer to request a person wearing a face covering to remove the face covering, or direct them to leave a designated area, if the person is wearing the face covering and is engaged in political communication.

5    Notices that the proceeding involves a matter arising under the Constitution under s 78B of the Judiciary Act 1903 (Cth) were filed and served. No Attorneys-General sought to intervene in the proceedings. While the timeframe for the notices was truncated due to the expedited manner in which the matter was heard, I am satisfied that proper notice was given.

6    For the reasons that I have explained in detail below, I have concluded that:

(1)    Grounds 1 and 2 are established because the First Respondent’s understanding of and approach to the statutory criteria was erroneous. That erroneous approach had the dual effect of meaning that the decision maker did not apply the correct statutory criteria and did not, as a matter of fact, reach the necessary state of satisfaction.

(2)    My conclusions in relation to grounds 1 and 2 make it unnecessary to consider grounds 3-7.

(3)    Grounds 8 and 9 are established because the decision maker failed to take into account certain Charter rights, in particular the right to privacy protected by s 13, and otherwise impermissibly limited those rights by making the Declaration outside of the power conferred by the Act. I consider it is appropriate to make a declaration following from those conclusions.

(4)    Section 10KA(1) of the Act does not contravene the implied constitutional freedom of political communication, and this aspect of the application is dismissed.

BACKGROUND

7    The Declaration was made on or around 25 November 2025 by Assistant Commissioner Curran, the First Respondent, being a delegate of the Chief Commissioner of Police of Victoria Police. It had the effect of declaring an area of Melbourne to be a “designated area” for the purposes of the Act, under s 10D(1)(b). The designated area was described as “Melbourne CBD and Vicinity” and was more particularly described in Government Gazette (Vic) (No S646, 25 November 2025) p 1 in which it was published. The Declaration was to operate from 12.00 am on 30 November 2025 until 11.59 pm on 29 May 2026, a period of nearly six months.

8    On 7 December 2025, Mr Hack was travelling to the State Library of Victoria for the purposes of attending a rally. He was stopped by police officers, who carried out a search of his bag. In doing so, the police officers relied upon the power under s 10G of the Act to search a person without a warrant within the area designated by the Declaration.

9    The Declaration was amended so that it came to an end at 11.59 pm on 9 January 2026. The evidence is tolerably clear that the First Respondent intends to make another declaration under s 10D in the very near future, potentially encompassing areas where the Applicants propose to protest on Australia Day. It is for that reason that the expedition afforded to the hearing of the present matter was maintained. A decision with reasons has been published within a week.

10    The First Respondent and the State of Victoria (together, the Respondents) relied upon the affidavit of Assistant Commissioner Curran, dated 14 January 2026 (the Affidavit). Assistant Commissioner Curran was delegated power to make a declaration under the Act by an instrument dated 21 August 2025. He was a sworn member of Victoria Police in various operational and management roles between 1981-2007, and has been again from 2014 until the present. He is the Assistant Commissioner of Police for the North West Metropolitan Region at Victoria Police and in that capacity leads approximately 3,800 staff in facilitating and managing the provision of policing services and community safety for the City and North Western Suburbs of Melbourne. I have considered his evidence in detail. He was cross examined and came across as an earnest, competent, and honest police officer. No criticism is made of him, nor is any warranted. The Affidavit sets out the following evidence:

(1)    Assistant Commissioner Curran’s understanding of the scheme under the Act, and the process for making declarations under it. In particular, he said that:

(a)    he has made 16 declarations under the Act over the past 12 months. In the course of his evidence he clarified that each of these declarations was for a period of no longer than 24 hours; and

(b)    he was aware of amendments to the Act made in March 2025 permitting the declaration of a designated area for up to six months. He had a conversation with a colleague in around 27 October 2025 about whether the Melbourne CBD and surrounding area could be declared as a designated area under the recently-amended provisions for a substantial period of time.

(2)    Assistant Commissioner Curran’s consideration of a document pack collated by others which assisted him in his analysis (the Document Pack).

(3)    Assistant Commissioner Curran’s decision making process involved reliance on the Document Pack and assessment of the intelligence within it. In cross examination he said that the Affidavit set out a complete record of his decision making process.

(4)    Assistant Commissioner Curran’s understanding of the statutory criteria relevant to the making of declarations under s 10D of the Act, expressed at a high level. In the course of cross examination, he said for the first time that he had the text of the Act before him at the time of making his decision. A dispute arose during cross-examination regarding the scope of the provisions of the Act which he had before him when making the decision, as the extract of it was not produced in evidence. In the particular circumstances of these proceedings, the Applicants did not press a further request for production of that extract of the Act after reasonable searches for it were made without success and the initial call for production was exhausted.

(5)    Assistant Commissioner Curran’s awareness of previous incidents of offences within Melbourne, including those involving weapons, in the previous 12 months, which included significant individual incidents. While some offending actively involved weapons, Assistant Commissioner Curran explained his understanding that weapons were likely to have been carried at the time of some of the violent offending even if they were not used. This understanding was not challenged in cross examination.

(6)    Assistant Commissioner Curran formed the view that the exercise of the powers conferred under the Act would lead to behavioural change in the designated area, including because of the publication of those powers, which would result in prevention or deterrence of weapons-related offending. The nature and extent of the publication of the powers was not in evidence, and Assistant Commissioner Curran was not cross examined about these views or conclusions.

(7)    Assistant Commissioner Curran’s view about the appropriateness of the geographic area of the Declaration and the identification of offending within it. There was no evidence about how the area was identified save in the most general sense (the Melbourne CBD and “nearby Key Locations”). His evidence is that he considered whether it was “appropriate to designate the entire area sought”. It is not clear who sought the area to be designated and this was not an issue that was cross examined upon.

(8)    Assistant Commissioner Curran’s view about the appropriate duration of the Declaration, which was to be six months. It is not clear how that duration was identified. The Affidavit stated that the duration included “warmer months” where there is typically a large number of events. His evidence was that he understood a purpose of the legislation to be to empower declarations of periods greater than 24 hours and up to six months in duration. He observes that he considered that a “six month declaration was reasonably necessary” but makes no mention in this part of the Affidavit of the requirement in s 10D(3) that the period of operation of a declaration must be no longer than is reasonably necessary to enable police officers or protective services officers to effectively respond to the threat of violence or disorder. He identifies a number of reasons why he considered the six month duration appropriate:

(a)    It was a “key consideration” to the approval of the duration that the powers would be exercised “only when authorised by leadership…”. I pause to observe that the powers available in a designated area apply continuously throughout the period and could not be activated and de-activated throughout that time.

(b)    A six month declaration would avoid the need for repeated designations over the period. In this respect, he considered that there were overlapping events and activities forecast over the period and from a “practical perspective it was appropriate to avoid operational and legal inconsistencies or ambiguity due to multiple intersecting declarations”.

(9)    Assistant Commissioner Curran’s consideration of other measures and police powers concluded that the declaration of a designated area was “the most effective deterrent to carrying weapons into a location” and set out his experience of previous operations which involved visible police presence. His views about the efficacy of the declarations were not the subject of cross examination.

(10)    Assistant Commissioner Curran’s consideration of a number of rights protected by the Charter. He says that his consideration was “by reference to” the Human Rights Risk Assessment in the Document Pack, as well as his general understanding of the Charter arising from his career in policing.

(11)    Assistant Commissioner Curran says that at the time of making the Declaration, his focus was on preventing and deterring violence and disorder through the use of search powers, and that protest activity was not his predominant purpose.

11    This summary of the evidence is not intended to be exhaustive. To the extent the detail of the Affidavit or its annexures are relevant to the issues in this proceeding, I have considered them in more detail below.

12    The intelligence and material in the Document Pack was received by him for the first time at around 9 am on 24 November 2025. He reviewed that information for roughly 2 hours before deciding to make the Declaration at 11.35 am that day (the evidence is that Assistant Commissioner Curran’s consideration of the material began at 9 am, paused between 10-10.30 am at which time he attended a meeting, recommenced at 10.30 am, paused for a call from 11.12 am to 11.15 am, and then continued until 11.35 am). There were nine documents in the Document Pack, including various intelligence summaries and maps of crime locations in the proposed designated area.

13    At the outset, I note that the Applicants generally bear the burden of establishing that they have identified error of the relevant kind, while the Respondents bear the burden of justifying any limitation of rights under s 7(2) of the Charter.

THE IDENTIFICATION AND APPLICATION OF THE STATUTORY CRITERIA IN S 10D(1)(B)

14    Grounds 1-2 challenge the decision makers’ understanding of the statutory preconditions to the exercise of the power in s 10D(1)(b), and seek to assert that the relevant state of satisfaction was not in fact reached, or was reached on the basis of an incorrect understanding of the law. In essence, each of grounds 1-2 centre around the proper identification of the statutory preconditions to the making of the Declaration. That is a task of statutory construction having regard to the text considered in light of its context and purpose (SAS Trustee Corporation v Miles [2018] HCA 55; 265 CLR 137 at [20] (Kiefel CJ, Bell and Nettle JJ); see also at [41] (Gageler J) and at [64] (Edelman J)). Accordingly, before turning to each separate ground, it is convenient to outline the history of the relevant provisions, analyse their text, and set out any relevant contextual matters.

Overview of the Act

15    The Act has as its purpose the regulation of weapons other than firearms, and body armour (s 1). It makes it an offence to possess, use or carry a prohibited weapon (s 5AA) and includes a range of powers and provisions apparently concerned with reducing the risk posed by weapons. Recognising that weapons (particularly illegal weapons) are often concealed, it is logical that the Act contains provisions related to searching of people or property in connection with the identification of weapons.

Searches without a warrant under the Act

16    At common law, police were not empowered to search a person or their property without a warrant, and the issue of warrants was permitted in limited circumstances (see generally George v Rockett (1990) 170 CLR 104 (Rockett) at 110 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ)). At a general level, the Court in Rockett described the common law as “jealous of the prima facie immunity from seizure of papers and possessions” (at [110]). The concept of a search without a warrant is relatively new, and is a creature of statute. In construing statutes authorising search and seizure powers the Court said in Rockett that “it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly” (at 110-111). In Trobridge v Hardy (1955) 94 CLR 147, the High Court considered a taxi driver who had been charged with failing to give his name and address to a police officer. Justice Fullagar said that the statute, if read literally, authorised a “constable to approach any person anywhere, though he has done no wrong and is suspected of no wrong, and demand his name and address” (at 153). Justice Fullagar considered such a power to be “drastic”, and said that if it was used “wantonly or otherwise than for the purpose of bringing an offender or suspected offender to book, there is an abuse of power which may give rise to a cause of action” (at 154). His Honour therefore read the power subject to an implied limitation to that effect. Generally speaking, the requirement that there are reasonable grounds for a suspicion prior to a search has been understood as a part of the need to protect individuals from arbitrary invasion of privacy and property (Murray (a pseudonym) v R [2017] VSCA 236 at [62] (Priest, Beach and Kaye JJA), in the context of analysing searches based on reasonable suspicion under the Drugs, Poisons & Controlled Substances Act 1981 (Vic)).

17    Thus warrantless searches have evolved over time in this context of common law scepticism. Various such powers now exist. In the context of the Act, in the absence of a declaration under s 10D or s 10E (or other valid authorisation) a police officer can only search a person or vehicle for a weapon without a warrant where they have reasonable grounds for suspecting that person is carrying or has in their possession in a public place a weapon contrary to the Act (s 10(1)(a); see also s 10AA(1) in respect of protective services officers). When that occurs, the police officer must inform the person of the grounds for their suspicion (s 10(1)(b)). Where there are reasonable grounds and the person the subject of the search has been informed of those grounds, the police officer can search the person and any vehicle or thing in his or her possession or under his or her control and seize and detain any item detected during the search which the police officer reasonably suspects is a weapon (s 10(1)(d) and (e)). There are various other statutory requirements that must be met before a police officer commences a search of a person under s 10(1) including that the police officer must do the things set out in s 10(3) (s 10(1)(c)), being:

(1)    inform the person of the police officer’s name, rank and place of duty (s 10(3)(a));

(2)    if requested by the person, provide the police officer’s name, rank, and place of duty in writing (s 10(3)(b));

(3)    produce his or her identification for inspection by the person, unless the police officer is in uniform (s 10(3)(c)); and

(4)    inform the person that the police officer intends to search the person or vehicle or thing for weapons and is empowered to do so under the Act (s 10(3)(d)).

18    A police officer can detain a person for so long as is reasonably necessary to conduct a search under s 10 (s 10(6)). The police officer must conduct the least invasive search that is practicable in the circumstances (s 10(5)).

19    Section 10AA applies to protective services officers when they are on duty at a designated place (defined in the Victoria Police Act 2013 (Vic), s 3). The powers and obligations of the protective services officer under s 10AA to conduct searches without a warrant generally mirror those applicable to police officers under s 10. The Chief Commissioner of Police must report to the Minister the number of searches conducted without a warrant under s 10 or s 10AA (s 10B(1)(a)).

Searches within a designated area

20    Section 10D(1) empowers the Chief Commissioner to declare an area to be a “designated area” if the criteria in s 10D(1) are met. Section 10D(1) provides as follows:

(1)    The Chief Commissioner may declare an area to be a designated area if—

(a)    the Chief Commissioner is satisfied that—

(i)    more than one incident of violence or disorder has occurred in that area in the previous 12 months that involved the use of weapons; and

(ii)    there is a likelihood that the violence or disorder will recur; or

(b)    the Chief Commissioner is satisfied that—

(i)    more than one incident of violence or disorder has occurred in that area in the previous 12 months that involved the use of weapons; and

(ii)     it is necessary to designate the area for the purpose of enabling police officers or protective services officers to exercise search powers to prevent or deter the occurrence of any violence or disorder that the Chief Commissioner is satisfied is likely to occur; or

(c)    the Chief Commissioner is satisfied that—

(i)    an event is to be held in that area and incidents of violence or disorder involving the use of weapons have occurred at previous occasions of that event (wherever occurring); and

(ii)    there is a likelihood that the violence or disorder will recur; or

(d)    the Chief Commissioner is satisfied that—

(i)    an event is to be held in that area; and

(ii)    by information known to the Chief Commissioner, there is a likelihood that violence or disorder involving the use of weapons will occur in that area during the period of intended operation of the declaration.

21    Section 10D(1A) provides context to the meaning of “likely” and “likelihood” in s 10D(1):

(1A)    For the avoidance of doubt, the Chief Commissioner may determine under subsection (1) that there is a likelihood that violence or disorder involving the use of weapons will occur or recur even if that likelihood is less than more likely than not.

22    Section 10D(2) and (3) provide:

(2)    The area designated must not be larger than is reasonably necessary to enable police officers or protective services officers to effectively respond to the threat of violence or disorder.

(3)    The period of operation of a declaration under this section (other than a declaration in relation to an event)—

(a)    must be not longer than is reasonably necessary to enable police officers or protective services officers to effectively respond to the threat of violence or disorder; and

(b)    in the case of a declaration—

(i)    under subsection (l)(a), must not exceed 24 hours; or

(ii)     under subsection (l)(b), must not exceed 6 months.

23    Relevantly, s 10D(3) provides that the operation of a declaration under s 10D “must not” be longer than is reasonably necessary to enable police officers or protective services officers to effectively respond to the threat of violence or disorder, and in the case of a declaration under s 10D(1)(b), such a declaration must not exceed six months (s 10D(3)(b)(ii)). There are various notice requirements after a declaration is made (s 10D(4) to (5)).

24    When a declaration under s 10D or s 10E is in place, the powers of a police officer to search persons are set out in s 10G, while the equivalent power for protective services officers is set out in s 10GA. In these reasons I have generally referred to the powers of police officers save where it is relevant to also refer to protective services officers.

25    The police officer continues to be required to use the least invasive search that is practicable in the circumstances (s 10G(3)) and is authorised to detain a person for only so long as is reasonably necessary to conduct a search under s 10G (s 10G(4)).

26    The powers of protective services officers are relevantly similar, save that the officer must be on duty at a designated place that is also within a designated area.

27    Schedule 1 to the Act applies to searches carried out by a police officer under s 10 or s 10G. Clause 3 of Sch 1 provides that a police officer who is authorised to search a person or thing under s 10G (being the power to search persons in designated areas) may carry out an initial electronic device search of that person or thing. If, as a result of the initial electronic device search, a police officer “considers” a person may be concealing a weapon, then the police officer may take the steps set out in cl 4(3), 5(3) or 5(4) of Sch 1. Clause 4(3) relevantly permits the police officer to:

(a)    request the person—

(i)    to produce and empty of its contents any bag, basket or other receptacle; or

(ii)     to turn out his or her pockets; or

(b)    search through any bag, basket or other receptacle; or

(c)    search through and move the contents of any bag, basket or other receptacle; or

(d)    if the police officer considers it appropriate in the circumstances, pat down the area of the person's pockets; or

(e)    search through and move the contents of the person's pockets turned out in accordance with paragraph (a)(ii) or patted down under paragraph (d).

28    Clause 5(3) of Sch 1 permits the police officer to run his or her hands over the person’s outer clothing. Clause 5(4) permits the police officer to ask the person to remove his or her overcoat, coat or jacket or similar article of clothing and any gloves, shoes or hat and the police officer may then:

(a)    pass an electronic metal detection device over or in close proximity to the person's outer clothing after the overcoat, coat or jacket is removed; and

(b)    run his or her hands over the person's outer clothing after the overcoat, coat or jacket is removed; and

(c)    search the person's items of clothing that were removed by examining the interior and exterior of the item and by passing an electronic metal detection device over or in close proximity to the item.

29    The police officer who searches a person under cl 5 must, as far as is reasonably practicable in the circumstances, inform the person to be searched of certain matters, being: whether the person will be required to remove clothing during the search (Sch 1, cl 6(2)(a)), and if the person will be required to remove clothing during the search, why it is necessary to remove the clothing (Sch 1, cl 6(2)(b)). The police officer must ask for cooperation (Sch 1, cl 6(3)) and must conduct the search in a way that provides reasonable privacy for the person searched and as quickly as is reasonably practicable (Sch 1, cl 6(4)(a)-(b)). The search must be the least invasive kind of search that is “reasonably necessary in the circumstances” (Sch 1, cl 6(5)). A search that involves running hands over the outer clothing of a person must, if reasonably practicable, be conducted by a police officer who is of the same sex as the person being searched (Sch 1, cl 6(6)).

30    Where a search of the person or thing in the possession or under the control of the person has been conducted under cll 4 or 5 of Schedule 1, and the police officer reasonably suspects that the person has a weapon concealed on his or her person, and the police officer believes on reasonable grounds that it is necessary to conduct a strip search of the person for the purposes of the search and that the seriousness and urgency of the circumstances require the strip search to be carried out, then the police officer can direct the person to accompany the police officer to a private area for the purposes of a strip search (Sch 1, cl 7(2)). Clause 9 of Sch 1 sets out rules for strip searches, including that it must be the least invasive kind of search that is reasonably necessary and that the strip search must be conducted in a manner that preserves the dignity and self-respect of the person being searched.

31    Where a police officer reasonably believes the person to be searched is a child, or has impaired intellectual functioning, additional rules apply, and they are set out in cll 11 and 12 of Sch 1, including the requirement that a parent or independent person be present for the search.

32    Section 10H concerns powers to search vehicles in a designated area without a warrant provided the vehicle is in a public place that is within a designated area and there is a person in or on the vehicle.

33    In addition, in an area designated under s 10D or s 10E, s 10KA operates. It provides:

10KA Other powers that may be exercised in relation to designated area

(1)     A police officer may direct a person wearing a face covering to leave a designated area if—

(a)     the police officer reasonably believes the person is using the face covering primarily—

(i)     to conceal the person's identity; or

(ii)     to protect the person from the effects of crowd-controlling substances; and

(b)     the person refuses to remove the face covering when requested by the police officer to do so.

(2)     A police officer may direct a person to leave a designated area if the police officer reasonably believes the person intends to engage in conduct that would constitute an offence under section 195H (affray) or 195I (violent disorder) of the Crimes Act 1958.

(3)     Before, or immediately after, a police officer gives a direction to a person under this section, the police officer must advise the person that a declaration is in force declaring the relevant area to be a designated area.

34    The effect of s 10KA(1) is, in summary, that a police officer may direct a person wearing a face covering to leave the designated area if the person refuses to remove the face covering when requested to do so and the police officer “reasonably believes” the person is using the face covering primarily to conceal the person’s identity or to protect the person from the effects of crowd-controlling substances (s 10KA(1)). Senior Counsel for the Respondents confirmed what is generally to be understood from the extrinsic materials – that, for present purposes, ‘crowd-controlling substances’ is a reference to capsicum spray. There is also a power for a police officer to direct a person to leave a designated area if the police officer “reasonably believes” the person intends to engage in conduct that would constitute an offence under s 195H (affray) or s 195I (violent disorder) of the Crimes Act 1958 (Vic) (s 10KA(2)). A person must not, without reasonable excuse, fail to comply with a direction given by a police officer under s 10KA(1) or (2) (s 10L(2)).

35    The Chief Commissioner is required to provide to the Minister a report containing the number of declarations made under s 10D and s 10E and information as to whether a power under s 10KA was exercised in the area the subject of the declaration (s 10KB).

36    It is an offence to obstruct or hinder a police officer in the exercise of their search powers under ss 10, 10G, 10H or 10J (s 10L(1)).

The history of the relevant provisions

37    The provisions of the Act which permit a designated area to be declared, and permit the search of people and their vehicles without a warrant within that area, were introduced as part of a suite of amendments by the Summary Offences and Control of Weapons Acts Amendment Bill 2009 (Vic) (2009 Bill). At the time of the introduction of s 10D, a declaration of an area to be a designated area was limited in its duration to no more than 12 hours and where there had been a planned designation, there could be no further designation of the same area for 10 days after the previous designation had ceased to have effect. It was recognised in the second reading speech for the 2009 Bill that the proposed provisions were “partially incompatible with the charter” but that the Minister considered them necessary and appropriate in light of the community’s concerns regarding weapons-related offending. The Statement of Compatibility tabled with the 2009 Bill frankly accepted that in general terms “a search of a person is an intrusion on a person’s privacy”, while noting that intrusions on privacy must pass a threshold of seriousness before the privacy right can be said to be engaged, and noted that the power in Sch 1, cll 4 and 5 to conduct pat down searches and to search outer clothing and belongings does amount to an interference with the right to privacy in the Charter. In concluding that the proposed s 10D interfered with the right to privacy, the Statement of Compatibility said that the:

power given to police officers … to search persons and vehicles in designated areas even though the police officer has not formed a suspicion on reasonable grounds that the person or vehicle is carrying a weapon is an unusual one that warrants careful scrutiny in order to determine its level of consistency with charter values.

38    The Minister identified two significant reasons to proceed with introducing the random stop and search powers in a designated area:

(1)    First: the detection of and prevention of weapons-related offending posed significant challenges for Victoria Police and the new search powers were said to provide a valuable tool to meet the challenges presented by the detection and prevention of weapons-related offending.

(2)    Second: the legislation had been “carefully tailored” to ensure that it provided significant safeguards whilst providing the police with an effective tool to meet those challenges. One of those carefully tailored aspects of the powers was described as follows:

[E]ach designation only operates for a limited time. In addition to the maximum durations of 12 hours, the period of operation of a designation must be for no longer than is reasonably necessary to enable the police to respond effectively to the particular threat (new sections 10D(3) and 10E(4)); …

39    Section 10KA of the Act was introduced in 2017 and has not since been amended. At the time that it was introduced, the original restriction on the length of time a declaration could remain in place operated. That is, a designated area declaration could only be in force for up to 12 hours. The potential for s 10KA to impact upon the rights of individuals participating in protests was understood in that context. The second reading speech for the Crimes Legislation Amendment (Public Order) Bill 2017 (Vic) (which introduced s 10KA) specifically considered the impact of the power on protestors, stating:

The bill provides additional powers for police to use within designated areas. These powers include the ability to require a person wearing a face covering to either remove their face covering or leave the area immediately. If a person chooses to remove their face covering, that person is free to stay in the area and continue protesting — peacefully. But if they refuse to remove their face covering, and refuse to leave the area, they will be committing an offence.

40    Once again, a key reason that the additional provisions were viewed as appropriate was the limited nature of the declaration power, with the relevant Minister noting (emphasis added):

These laws respect the right of Victorians to engage in peaceful protest, whilst ensuring that police are able to deal with those who seek to disrupt peaceful protests and other events. They are powers for use in restricted circumstances, over a limited area and for a limited duration. A designation can only be in place for as long as necessary, and no longer than 12 hours. The area affected by a designation must be no larger than is reasonably necessary and the Chief Commissioner of Police will be required to report to the Minister for Police on the number of declarations made under sections 10D and 10E of the Control of Weapons Act 1990 and when the new powers are used.

The laws relating to face coverings apply only to face coverings worn primarily to hide the wearer's identity or to shield the wearer from capsicum spray. The powers do not apply to face coverings worn for religious or cultural purposes. Nothing in these laws will prevent a person from wearing a face covering for legitimate purposes, nor deter such persons from participating in peaceful protests.

41    Thus it is clear that at the time that s 10KA of the Act was introduced, emphasis was placed upon the temporal limitation which applied to a declaration, recognising the importance of that limitation to the right of people to engage in peaceful protest, while balancing the public interest in ensuring that police are able to respond to those who seek to disrupt protests and other events.

42    The version of s 10D of the Act in force at the time of the Declaration was inserted by the Terrorism (Community Protection) and Control of Weapons Amendment Act 2025 (Vic) in March 2025. That created a new basis upon which an area could be declared a designated area (s 10D(1)(b)) in respect of which the declaration could remain in force for up to six months (s 10D(3)(b)(ii)). In addition, the amendments meant that there only needed to be a gap of 12 hours between designations (reduced from 10 days under the previous statutory scheme: s 10D(8)). The maximum duration of six months did not appear in the Terrorism (Community Protection) and Control of Weapons Amendment Bill 2024 (Vic) as passed by the Legislative Assembly, but was introduced by an amendment proposed in the Legislative Council. It is for that reason that neither the Explanatory Memorandum, nor the second reading speech, address the newly introduced six month period of operation as a designated area, and its flow on effect of significantly enlarging the scope of s 10KA. However, that matter was referred to in the context of the subsequent Justice Legislation Amendment (Police and other Matters) Bill 2025 (Vic) (the JLA Bill) in November 2025.

43    The amendments posited by the JLA Bill provide for the inclusion of “key transit points” within a designated area, such points to be specifically identified, and concern the delivery of notices and searching of children. The power conferred by s 10KA(1) was considered in that context in the Statement of Compatibility tabled with the JLA Bill, which noted that:

This right [of a person to demonstrate their religion] is also relevant to the power of a police officer in a designated area to order a person to remove a face covering where the officer reasonably believes the person is wearing it to conceal their identity or shield themselves from capsicum spray, under section 10KA of the Control of Weapons Act. If the main purpose of wearing the face covering is for cultural or medical reasons, the power should not be used and police receive guidelines and training on the appropriate use of this power.

44    The time limit on the operation of a declaration of an area as a designated area was no longer identified as a safeguard on the operation of the scheme. That said, in considering the compatibility of the scheme with the Charter, the Minister concluded that the designated area scheme was subject to sufficient limits and safeguards to curtail any arbitrary interference with the right to privacy.

45    There are a number of observations that may be made about the legislative history that are relevant to the construction exercise:

(1)    The extension of police search powers by a declaration issued under s 10D was recognised as extraordinary, and requiring temporal and geographic limitation and strong public-interest justification.

(2)    Parliament recognised the potential for s 10KA to impact the right of individuals to participate in lawful protests. At the time it was introduced, one of the safeguards of that right was the time-limited nature of the power to make a declaration. That safeguard no longer exists to the same extent.

(3)    There is a recognition in the legislative history that s 10D and s 10KA engage rights protected by the Charter.

The text of the statute

46    The core concern of any statutory construction exercise is the text used by Parliament. It is a task that is centrally concerned with analysis of the text itself, which must be viewed in its context, including legislative purpose, legislative history and extrinsic materials (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ); Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 (SZTAL) at [14] (Kiefel CJ, Nettle and Gordon JJ)). Whilst the starting point of statutory construction must be the text of the statutory provision, context should be regarded from the initial phase of the process, and can be understood to include matters like the overall statutory framework, and the purpose that the legislation was enacted to serve (CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); SZTAL at [14].

The criteria in s 10D

47    Section 10D(1) permits the Chief Commissioner (or their delegate) to declare an area to be a designated area in four circumstances. In all four circumstances, the Chief Commissioner must be satisfied of different criteria. The requirement of “satisfaction” of this kind was explained by Gageler J (as his Honour then was) in Palmer v Western Australia [2021] HCA 5; 272 CLR 505 at [158] in the following way (citations omitted):

The requirement for the Minister to be "satisfied" … requires that the Minister in fact form a state of mind that can be described as one of satisfaction and implies that the Minister must form the requisite state of mind reasonably and on a correct understanding of the Act. To fulfil the condition of reasonableness, the state of mind formed by the Minister must be one that is open to be formed by a reasonable person in the position of the Minister on the basis of the information available to the Minister and must be one that is in fact formed by the Minister through an intelligible process of reasoning on the basis of that available information.

48    Thus, each time the Act calls for a state of satisfaction, it is necessary that the decision maker in fact form a state of mind that can be described as one of satisfaction, and do so on a correct understanding of the Act. It must be a state of mind that is open to be formed by a reasonable person in the position of the decision maker on the basis of the information available to them.

49    The four circumstances in which s 10D(1) permits an area to be designated are as follows:

(1)    First: where the Chief Commissioner is satisfied that more than one incident of violence or disorder has occurred in that area in the previous 12 months that involved the use of weapons, and there is a likelihood that the violence or disorder will recur (s 10(1)(a)).

(2)    Second: the power presently in issue, which arises where the Chief Commissioner is satisfied that there has been more than one incident of violence or disorder in that area in the previous 12 months that involved the use of weapons (s 10D(1)(b)(i)), and it is necessary to designate the area for the purpose of enabling officers or protective services officers to exercise search powers to prevent or deter the occurrence of any violence or disorder that the Chief Commissioner is satisfied is likely to occur (s 10D(1)(b)(ii)).

(3)    Third: The Chief Commissioner is satisfied that an event is to be held in that area and incidents of violence or disorder involving the use of weapons have occurred at previous occasions of that event (wherever occurring), and there is a likelihood that the violence or disorder will recur (s 10D(1)(c)).

(4)    Fourth: The Chief Commissioner is satisfied that an event is to be held in the area, and by information known to the Chief Commissioner, there is a likelihood that violence or disorder involving the use of weapons will occur in that area during the period of intended operation of the declaration (s 10D(1)(d)).

50    There are two types of powers: those which revolve around a future event (the third and fourth) and those which do not (the first and second). Of the powers which do not revolve around an event, there are two types of powers: that which is concerned with a risk of recurrence of violence or disorder (the first), and that which is responsive to the Chief Commissioner’s satisfaction that violence or disorder is likely to occur (the second). Similarly, the event-based powers are divided into two types: that which is concerned with the recurrence of violence (the third), and that which is concerned with the Chief Commissioner’s satisfaction (by information known to them) that there is a likelihood that violence or disorder involving the use of weapons will occur in the area during the intended operation of the declaration (the fourth).

51    All four of the powers are subject to the limitation in s 10D(2), and the non-event related powers are subject to the limitation in s 10D(3). These provisions impose the requirements that the area designated must not be larger than is reasonably necessary to enable police officers or protective services officers to effectively respond to the threat of violence or disorder (s 10D(2)). For the non-event declarations, the period must not be longer than is reasonably necessary to enable police officers or protective services officers to effectively respond to the threat of violence or disorder (s 10D(3)(a)), and in any event must not exceed the duration specified in s 10D(3)(b)(i) or (ii) as the case may be. Sections 10D(2) and (3) appear to have been adopted to ensure that uniform limitations are applied to all declarations to which those sections apply, even though different states of satisfaction may trigger the power to make the declaration. The limitation provisions underscore an overarching legislative intention that the declaration powers be limited as to size and duration.

Section 10D(1)(b)(i)

52    Turning more specifically to the criteria in s 10D(1)(b)(i), the Chief Commissioner must be satisfied that there has been more than one incident of violence or disorder in the area that involved the use of weapons. This makes clear that the precondition to the power is the risk posed by weapons, and not the conferral of broader policing powers untethered to that aim. There is no dispute as a matter of fact that the decision maker in this case could be, and was, satisfied that the criterion in s 10D(1)(b)(i) was met.

Section 10D(1)(b)(ii)

53    The criteria in s 10D(1)(b)(ii) sit at the core of the dispute in grounds 1-2. It is apparent that the Chief Commissioner must be satisfied that it is necessary to designate the area for a purpose. Expressed in a simplified way, the purpose is to prevent or deter the occurrence of any violence or disorder that the Chief Commissioner is satisfied is likely to occur. There are a number of matters that arise from a plain reading of the terms of s 10D(1)(b)(ii):

(1)    The purpose of prevention or deterrence is not at large. It is tied to any violence or disorder that the Chief Commissioner is satisfied is likely to occur.

(2)    Thus, the Chief Commissioner must first be satisfied that violence or disorder of some particular kind is likely to occur. It is violence or disorder of that kind that:

(a)    the Chief Commissioner is seeking to prevent or deter; and

(b)    the Chief Commissioner is satisfied that the designated area is necessary to prevent or deter by enlivening the additional search powers in the Act.

54    The Respondents argue that it is not necessary to identify the kind of violence or disorder with any specificity. They rely in particular on the word “any” in connection with the apprehended violence or disorder. While the word “any” imports a degree of breadth, it is immediately connected to violence or disorder that the Chief Commissioner is satisfied is likely to occur. While that specificity must be tempered by the fact that it is a predictive exercise and the likelihood can be less than more likely than not (s 10D(1A)), it does not remove it.

55    The decision called for by s 10D(1) is whether to declare an area to be a designated area. The Chief Commissioner can only do so if satisfied that it is necessary to “designate the area” for the relevant purpose. The notice of the declaration required by s 10D(4) demands the specification of the period of its operation (s 10D(5)(d)). As a practical matter, it is difficult to see how a person could know whether the declaration of an area was necessary for a particular purpose without turning their mind to the size of the designated area or duration of the declaration. Thus, in my view the decision called for by s 10D(1)(b) must involve consideration of whether the decision maker is satisfied that the area and duration is necessary for the stated purpose.

56    The Respondents argue that the size of the area and the duration of the declaration are matters that are considered by reference to s 10D(2) and (3) which use the term “reasonably necessary”.

57    Section 10D(2) and (3) are not expressed as matters of any person’s satisfaction. They are obligations in simple terms that the designation “must not be” larger or for longer than reasonably necessary for police officers to effectively respond to the apprehended threat of violence or disorder. They are properly understood as limitations on each of the four powers granted under s 10D(1). There is a difference between the purpose of the exercise of the power in s 10D(1)(b)(ii) and the purpose of the limit on the power in s 10D(2) and (3) respectively.

(1)    In the case of s 10D(1)(b)(ii), the decision maker must be satisfied that the designation of the area is necessary to enable police officers or protective services officers to exercise (the additional) search powers to “prevent or deter” the violence or disorder which they are satisfied is “likely”.

(2)    In the case of s 10D(2) and (3) the limitation is to ensure that any such area is no larger and is declared for no longer than reasonably necessary to enable police officers or protective services officers to effectively respond to the threat of violence or disorder.

58    It was not in dispute that s 10D(2) and (3) requires that the designated area must be no larger than is reasonably necessary for the specified purpose, and that the duration must be no longer than is reasonably necessary for the specified purpose – although the parties differ as to whether this Court could or should evaluate those matters for itself, rather than this being a matter left for the decision-maker to decide. It is not necessary to decide this issue for present purposes. At this stage it is useful to note that these provisions operate at a different stage, and look to different criteria than the powers in s 10D(1).

59    The violence or disorder that the decision maker identifies that is to be prevented or deterred must involve weapons, and this conclusion evidently flows from the overall focus of the Act. That view is reinforced by the terms of s 10D(1A) which makes clear that the likelihood of violence or disorder in issue involves the use of weapons. It is not necessary to decide this issue.

60    A degree of specificity in determining the kind of violence or disorder likely to occur is required to enable the evaluative formulation of what area it is necessary to designate in order to prevent or deter that violence or disorder by enabling police officers to exercise search powers. However, that specificity is not necessarily narrow. It will encompass a range of hypotheticals drawn from the decision maker’s experience. Drawing upon that expertise can be seen as being contemplated by the Act’s focus upon the rank of the decision maker: the Chief Commissioner is only permitted to delegate a power under s 10D to someone of Assistant Commissioner rank or above (s 10F). A person of that rank can be expected to bring strategic expertise to the statutory task entrusted to them by s 10D(1)(b).

61    This process under s 10D(1)(b)(ii) can be summarised as follows:

(1)    First, the Chief Commissioner must identify any kind of violence or disorder (which must be weapons-related violence or disorder) that they are satisfied is likely to occur within the particular area; and

(2)    Second, the Chief Commissioner must be satisfied that it is “necessary” to designate that specific area for the proposed period to enable police officers or protective services officers to exercise search powers to prevent or deter the occurrence of that kind of violence or disorder involving weapons that they are satisfied is likely to occur.

62    The core remaining issue therefore is what is meant by the requirement that the decision maker is satisfied that it is “necessary” to designate the area. It is to this issue that I now turn.

Meaning of “necessary”

63    One of the core issues in the present dispute is what is meant by the word “necessary” as it appears in s 10D(1)(b)(ii). Different formulations were proffered at different times. Ultimately, the Applicants assert that the word “necessary” in s 10D(1)(b)(ii) is used in a “strong” sense meaning “needed to be done”, “essential” or “required” in the sense of “requisite” or something “that cannot be dispensed with”. The Respondents ultimately asserted in effect that “necessary” means something that is “reasonably required in the circumstances” or “reasonably appropriate”. They argue that “necessary” cannot mean “absolutely necessary” in the sense of “essential” in the relevant statutory context as that does not fit the nature of the assessment called for under section 10D(1)(b)(ii) which is directed at anticipated threats of violence or disorder and prevention or deterrence of those future threats.

64    The word “necessary” can carry “different shades of meaning” (Mulholland v Australian Electoral Commission [2004] HCA 41; 220 CLR 181 (Mulholland) at [39] (Gleeson CJ)) depending on context. Those shades of meaning can mean that the word “necessary” could carry the meaning of “essential” or “required” (as contended by the Applicants) or a more proportionate concept such as “reasonably appropriate” or “reasonably required in the circumstances” (as contended by the Respondents).

65    Gleeson CJ in Mulholland noted that there was a “long history” of judicial and legislative use of the word “necessary” “not as meaning essential or indispensable, but as meaning reasonably appropriate and adapted” (at [39]). It is clear, therefore, that it is important to consider the context within which the word appears to understand its meaning. For example, in Mulholland, Gleeson CJ observed that “necessary” is less likely to mean “essential” where a court is evaluating a decision made by someone else who has the primary responsibility for setting policy (at [39]). His Honour referred to Ronpibon Tin NL and Tongkah Compound NL v Federal Commissioner of Taxation (1949) 78 CLR 47 at 56, where the Court held that the word “necessarily”, in the context of the allowability of deductions for expenditure necessarily incurred in carrying on a business, meant “clearly appropriate or adapted for”, not “unavoidably”, to reflect the intention that the primary decision as to what to spend was to be left to the taxpayer.

66    In NSW v Robinson [2016] NSWCA 334; 93 NSWLR 280 (Robinson), the Court considered s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). That legislation set out the circumstances in which an arrest could be effected without a warrant. Section 99 provided:

(1)    A police officer may, without a warrant, arrest a person if:

(a)    the person is in the act of committing an offence under any Act or statutory instrument, or

(b)    the person has just committed any such offence, or

(c)    the person has committed a serious indictable offence for which the person has not been tried.

(2)    A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument.

(3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one of the following purposes:

(a)     to ensure the appearance of the person before a court in respect of the offence,

(b)     to prevent a repetition or continuation of the offence or the commission of another offence,

(c)     to prevent the concealment, loss or destruction of evidence relating to the offence,

(d)     to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence,

(e)     to prevent the fabrication of evidence in respect of the offence,

(f)     to preserve the safety or welfare of the person.

(4)    A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.

67    The police officer in Robinson had given evidence that he suspected it was necessary to arrest the person he arrested to prevent a repetition or continuation of the offence of knowingly contravening an AVO. The trial judge concluded that the arrest had been unlawful because it was not relevantly “necessary”. On appeal, it was argued that it was not required that the arrest be necessary, simply that the arresting officer suspect on reasonable grounds that it was necessary (see [27]). Thus it was said that it was necessary for the arresting officer to honestly believe the arrest was necessary for a prescribed purpose, and that the decision to arrest, when reviewed according to the information known to the arresting officer, was made on reasonable grounds. It was said that the primary judge had fallen into error by requiring proof of the actual necessity of the arrest. Thus on appeal, the Court (Beazley P, Payne JA and Sackville AJA) was required to consider what was meant by the word “necessary” in the context of s 99(3). Their Honours surveyed the relevant authorities, noting that (at [41]-[42]):

All definitions of “necessary” in the Macquarie Dictionary are directed to something required or indispensable or imperative. Thus, when used as an adjective, it refers to something “that cannot be dispensed with”; when used as a noun, its meaning is, “something necessary, indispensable, or requisite”.

The Shorter Oxford English Dictionary defines “necessary” to mean “[t]hat which is indispensable; an essential, a requisite”. In the online English Oxford Living Dictionaries “necessary” is defined to mean “[n]eeded to be done, achieved … essential”.

68    Their Honours concluded that this last definition, extracted above, is the most apt to the meaning of “necessary” in s 99(3) (at [43]). The Court of Appeal accepted that the provision required that the arresting officer honestly believe that the arrest was “necessary” in that sense for a prescribed purpose.

69    Robinson was endorsed in the subsequent decision of Owlstara v State of New South Wales [2020] NSWCA 217; 285 A Crim R 53 (Owlstara). In Owlstara, the Court of Appeal was again considering s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). Meagher JA (Basten JA and Emmett AJA agreeing) said that what must be suspected is that “arrest is necessary in the sense of ‘required’ or ‘cannot be dispensed with’” (at [41]).

70    The provision considered in each of Robinson and Owlstara was then amended to adopt a “reasonably necessary” criterion. In analysing the amended legislation, Yehia J in Meredith v State of NSW (No 5) [2025] NSWSC 1133 (Meredith) said that this change reflected “a choice by Parliament to dilute the previous requirement” (at [162]). Thus, the “reasonably necessary” criterion was said to involve the notion of being “appropriate and adapted” to achieve one or more of the identified reasons (at [162]). Her Honour observed that another provision of the same legislation concerned with strip searches was not amended, and retained the word “necessary” (at [163]). In the context of the intrusive and invasive nature of the strip searches there under consideration, the Court had no difficulty in concluding that “necessary” in that context meant “needs to be done”, “required” or something “that cannot be dispensed with” (at [163]).

71    The Respondents argue that the words “necessary” and “reasonably necessary” are used in different ways: the first is directed to the prevention or deterrence of violence or disorder (in s 10D(1)(b)(ii)) while the second is aimed at enabling police to respond to the threat of violence or disorder (s 10D(2) or (3)). They argue that the differential use therefore does not reflect a constructional choice by Parliament to impose differential thresholds. I disagree. Either provision could have sensibly used either “necessary” or “reasonably necessary” and been effective to convey a higher or lesser standard of satisfaction, respectively. The choice within provisions that are so proximate to each other, dealing with similar subject matter, is an example of the well-known principle of statutory construction, that was also evident in the reasoning in Meredith. This is reinforced by my view at [57] that s 10D(1)(b)(ii) empowers the making of a declaration, while s 10D(2) and (3) operate as a check upon designation that the decision maker otherwise considers necessary.

72    Taken together a number of observations follow from these cases:

(1)    The statutory framework in Robinson and the cases which followed was different from the present insofar as it concerned the exercise of an actual arrest power, or more invasive search powers. They generally involved a greater interference with rights than contemplated by s 10D. Nonetheless, both statutory contexts involve the application of the concept of necessity to the dynamic circumstances of policing, and, in the case of Robinson, involved a degree of prediction of the future conduct of an offender. Overall, I consider that the statutory framework is sufficiently analogous to the Act to be of assistance in the present analysis.

(2)    In Robinson, the strict meaning afforded to the word “necessary” was conditioned somewhat by the requirement that the police officer “honestly believed” that state of necessity existed. That bears some similarity to the present case where power fastens upon the satisfaction of the Chief Commissioner (or their delegate) that it is necessary that the area be a designated area for the identified purpose.

(3)    In Meredith, the shift from “necessary” to “reasonably necessary” was understood to dilute the state of satisfaction required. In the Act, Parliament has used the condition of “reasonably necessary” in some aspects of the powers conferred in s 10D (i.e. in s 10D(2) and (3)) and has adopted the term “necessary” in relation to s 10D(1)(b). Parliament can be assumed to use different terms deliberately (Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196; 281 FCR 578 at [44]-[45] (Rares, Anastassiou and Stewart JJ), citing Commissioner of Taxes (Vic) v Lennon (1921) 29 CLR 579 at 590 (Higgins J); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71]; Construction, Forestry, Mining and Energy Union v Hadgkiss (2007) 169 FCR 151 at [53] (Lander J); Murray v Chief Examiner (2018) 273 A Crim R 135 at [41] (Whelan, Beach and Niall JJA)). This is a further contextual matter which supports the conclusions that:

(a)    each of “necessary” and “reasonably necessary” should be understood as having different meanings;

(b)    Parliament should be understood as having intended those different meanings in the context of the Act, where both are deployed in the course of the same section; and

(c)    The phrase “reasonably necessary” is apt to be understood as a “diluted” standard compared with the word “necessary”.

(4)    There is nothing about the predictive elements of the relevant necessity (some of which were required in Robinson) that renders the concept unworkable. A state of satisfaction that certain steps are “necessary” to prevent certain acts which the person is satisfied are “likely” does not require objective certainty that a particular outcome will follow – simply a state of satisfaction that it is essential to the end sought to be achieved that the designation is made. I accept that this accords a degree of latitude to the decision-maker attaching to their conclusion that the designation is necessary to achieve the identified outcome.

73    The Respondents relied upon Levi v ASIC (No 2) [2013] NSWSC 932; 277 FLR 461 (Levi) and Australian Society for Kangaroos Inc v Secretary, Department of Environment, Land, Water and Planning [2018] VSC 407 (the Kangaroo Case). Neither case concerns the operation of similar powers, nor are they otherwise similarly structured provisions.

74    Levi is a decision of the Supreme Court of New South Wales considering the power of a Court to impose suppression orders where doing so is “necessary” to prevent prejudice to the proper administration of justice. In that context, the term “necessary” was used to describe the connection between the proposed order and the identified purpose in circumstances where there could be no suggestion that the order was essential to the administration of justice itself. It was said that necessary should be understood as a power that is reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement. As the Court noted in John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 161 (Mahoney JA), the administration of justice would not collapse without the suppression order, but it could still be necessary in the broader sense of the word. Levi recognises that the meaning of the word “necessary” takes its meaning from its context. The context under consideration in Levi is quite different to the context of the operation of police powers presently under consideration. I therefore consider Levi is distinguishable. In any event, in more recent cases in this Court dealing with the concept of “necessary” in the context of suppression orders and whether they are “necessary to prevent prejudice to the proper administration of justice” it has been observed that the word “necessary” in that context is a “strong word” (Country Care Group Pty Ltd v Director of Public Prosecutions (No 2) [2020] FCAFC 44; 275 FCR 377 (Country Care) at [9] (Allsop CJ, Wigney and Abraham JJ) citing Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [30]). It was said that the word “necessary” is one of the reasons that orders of that kind are only made in exceptional circumstances, being “where necessity compels departure from the open justice principle” (Country Care at [8], emphasis added).

75    Similarly, the Kangaroo Case concerned whether the Secretary was relevantly satisfied that an authorisation was necessary to support a wildlife management plan. Justice Garde applied the meaning to the word “necessary” but noted that the same result was achieved whether a test of absolute necessity or indispensability was used (at [98]). In that case, his Honour considered that adoption of a more stringent meaning of the word “necessary” would “substantially defeat” the purpose for which the power was given (at [97]). That is not the case here. There is no difficulty in adopting the more essential meaning of “necessary” in the context of police powers: that course has been adopted in the New South Wales cases cited above.

76    Relatedly, the Respondents argue that if “necessary” were understood in the “essential” sense, it is difficult to see how randomised searches will ever be strictly “essential” or unavoidable in connection with prevention or deterrence of a future threat. I do not accept that submission: there remains scope for the reasonable belief of an operational police officer in the necessity of the randomised searches to prevent or deter certain kinds of violence – but the powers must be an integral part of deterring or preventing that violence. Senior Counsel for the Respondents candidly accepted that making a declaration is a significant matter. It plainly involves trespassing upon long-protected common law rights to not be subject to random searches, as well as enlivening the power to require a person to remove their face coverings, in the manner authorised by s 10KA(1). There was no evidence that there is any operational impediment to the operation of the provisions as I have construed them in accordance with orthodox principles of statutory construction. In any event, it is not to be assumed that Parliament could or would have understood the operational constraints for which the Respondents contend. There is no indication in any of the extrinsic material to which I was taken which explicitly makes this point.

77     I can see no practical difficulty with a police officer forming a state of satisfaction that a particular area has had weapons issues of a kind so that randomised search powers are required to prevent or deter the identified threat or risk. That enquiry is tethered to the risk of violence or disorder which the decision maker is satisfied is likely. Necessity in this sense remains a question for that person’s satisfaction of what is necessary to prevent or deter that risk. There was no evidence from Assistant Commissioner Curran that he considered such an approach unworkable. He was well in a position to give that evidence if it had been available. I see no reason to assume that s 10D(1)(b) cannot be applied in a pragmatic and appropriate manner.

78    The foregoing analysis supports the view that, in a statutory framework relating to police operations that has the potential to interfere with important rights, the word “necessary” ought to be accorded a stricter meaning than the Respondents submit. That conclusion is fortified by both the principle of legality and s 32 of the Charter, in the manner discussed below.

79    Section 32 of the Charter requires that so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. It is not controversial that a range of Charter rights are engaged by the making of a declaration under s 10D (refer to the analysis of grounds 8-9, below). The operation of s 32 was recently considered by Walker JA in Charisiou v The King [2025] VSCA 277 (Charisiou). While in dissent on the operation of the Charter in that case, I respectfully adopt her Honour’s analysis of the role of s 32 of the Charter in resolving issues of constructional choice connected with the meaning of words that are otherwise apt to engage rights protected by the Charter (see [135]-[138]). Applying her Honour’s analysis to this present construction exercise yields the following observations:

(1)    The construction of the word “necessary” for which the Applicants contend involves no alteration to the text at all, and certainly not beyond that which is permissible as a matter of statutory construction (Charisiou at [138]; see also Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 at [38]-[40], [50]-[51], [61]-[62] (French CJ), [146], [148]-[160] (Gummow J), [280] (Hayne J), [545]-[546], [565], [574] (Crennan and Kiefel JJ), [684]-[685] (Bell J)).

(2)    The construction requires “close attention” to the particular rights said to be engaged by the statutory provision that falls for interpretation (Charisiou at [130]; Director of Public Prosecutions (Vic) v Smith [2024] HCA 32; 98 ALJR 1163 at [58] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ)). The fact that a number of Charter rights are engaged is accepted by the Respondents. It is appropriate that there be scrutiny of and around the necessity of the declaration which provides for the diminution of those rights. Thus, the stricter construction of the word “necessary” is consistent with the obligation in s 32 of the Charter.

80    In a similar vein, and for similar reasons, the principle of legality (North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; 256 CLR 569 at [11] (French CJ, Kiefel and Bell JJ)) also supports the stricter construction of the word “necessary” in a manner that means “essential”.

81    The Respondents submit that the Applicants’ construction imposes a requirement for certainty that is inconsistent with the predictive nature of the assessment. I do not accept that analysis. I do not consider that a stricter understanding of the word “necessary” requires objective certainty. I accept that the necessity required is based on the satisfaction of the decision maker. That satisfaction must be genuinely held. The relevant state of satisfaction is directed in part to anticipated threats of violence or disorder that must be understood at some level of specificity, and includes deterrence of those threats. It may be accepted that reasonable minds could differ about what is necessary, given the range of factors likely to be relevant to the analysis, but that does not detract from the conclusion that the decision maker must be satisfied as to the essential (i.e. necessary) nature of the exercise of the power to achieve the relevant purpose in making the declaration in a particular instance. The authorities surveyed above make clear that policing often requires an analysis of what is necessary to achieve a particular end. It is not such a foreign or burdensome concept as to make it unworkable in the statutory context within which it appears.

82    The Respondents submitted in writing that s 10D(2) and (3) of the Act are inconsistent with the construction that I have adopted because a strict construction of “necessary” in s 10D(1)(b)(ii) would require the size and duration of the declaration to already be as restricted as possible, such that those provisions would be otiose. It is not clear if that argument was ultimately pressed. In any event, I do not accept it. Section 10D(2) and (3) provide overarching limitations on the power, and serve as a powerful parameter which prevents the decision maker from declaring a designated area that is inconsistent with those two provisions.

83    In this overall statutory context I turn to consider grounds 1-2.

GROUNDS 1-2: THE OPERATION OF THE STATUTORY CRITERIA

84    It is convenient to commence with ground 2 because it concerns the construction of s 10D(1)(b)(ii) while ground 1 is concerned with the manner of its application.

Ground 2: Was the state of satisfaction formed on an incorrect understanding of the law?

85    Ground 2 is expressed as follows:

The First Respondent did not form the state of satisfaction required by s 10D(1)(b)(ii) based on a proper understanding of the law.

86    A number of particulars are identified in the context of this ground, centring around the following concepts:

(1)    That there is no evidence that the First Respondent was satisfied that an identified occurrence or occurrences of violence or disorder involving the use of weapons was likely to occur within the designated area, or what that identified threat was.

(2)    That there is no evidence that the First Respondent considered how and to what extent the exercise of the search powers in the designated area would prevent or deter the identified threat.

(3)    That there is no evidence that the First Respondent considered how and to what extent making the Declaration would prevent or deter the identified threat.

(4)    That there is no evidence why the decision maker considered making the Declaration was necessary (in the sense of essential, or, alternatively, reasonably necessary) to enable police to exercise their search powers to prevent or deter the identified threat.

(5)    That there is no evidence that the decision maker considered the availability and feasibility of any alternative measures to prevent or deter the identified threat as part of any assessment of what was “necessary” or whether those measures would have a less restrictive effect on human rights protected by the Charter.

87    The grounds were drawn prior to the filing of any affidavit. The affidavit of Assistant Commissioner Curran was filed the day before the commencement of the trial. Assistant Commissioner Curran gave evidence that the Affidavit set out his reasoning process to the best of his recollection, as at the date he made the decision. He accepted that the Affidavit was a “complete record” of his reasoning process to the best that he could recollect and produce it. As the argument evolved, it was evident that the core of the dispute was around whether Assistant Commissioner Curran had properly apprehended that the designated area in the Declaration was relevantly “necessary” for the purpose contemplated by the Act and whether he had analysed the proper threat of violence or disorder required to carry out the assessment contemplated by the Act. These issues are encompassed within the particulars accompanying ground 2, and were met by responsive submissions filed by the Respondents.

88    It is uncontroversial that the decision maker was required to form the required state of satisfaction based on a correct understanding of the applicable law (Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [34] (Kiefel CJ, Gageler and Keane JJ); Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144 at [59] (French CJ)).

89    For the reasons that I have set out above, I have concluded that the term “necessary” in s 10D(1)(b)(ii) carries a meaning more consistent with “essential” than the broader concept of “reasonably required in the circumstances” or “reasonably appropriate” embraced by the Respondents. It follows that the First Respondent formed his understanding of the statutory test based on a misapprehension. The Respondents argued that even if they were wrong in their construction, the Court could still conclude that the statutory threshold had been met, or that any departure from it was not material. I do not accept that submission, as discussed in respect of ground 1 below. Regarding materiality, there is a material difference between what the decision maker could consider “necessary” and what could be viewed as “reasonably required in the circumstances” or “reasonably appropriate”. The latter constructions apply a lower standard. Given the evaluative nature of the analysis the decision maker was required to carry out, there is a realistic possibility that the decision that was made could have been different if the correct standard had been applied. That is sufficient to establish that the error was relevantly material (LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 (LPDT) at [7], [14] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ)).

90    It follows that the second ground is established. The question of what relief should follow due to that conclusion is addressed at the conclusion of these reasons.

Ground 1: Was the state of satisfaction formed in fact?

91    Ground 1 is closely tied with ground two. It is as follows:

The First Respondent failed to independently turn his mind to and consider each of the relevant mandatory statutory criteria for exercising the power in s 10D(1)(b).

92    As explained above, the decision maker was required to identify any violence or disorder involving the use of weapons that he was satisfied was likely to occur. The word likely was defined as being concerned with likely to involve weapons. The Respondents asserted that the threat identified was set out in Assistant Commissioner Curran’s affidavit as follows:

I was aware that there had been a significant number of offences that involved the use of weapons or likely involved the use of weapons in the CBD and vicinity in the previous 12 months and that this included significant individual incidents which had caused concern among the public and members of Victora Police.

I believed that similar incidents would likely occur within the six-month period specified and within the area designated for the OMNI.

93    This is sufficient to engage the first criteria in s 10D(1)(b)(i). The “similar incidents” referred to by Assistant Commissioner Curran above are said to be the risk of violence or disorder which he was satisfied was likely to occur for the purposes of s 10D(1)(b)(ii).

94    The core issue for ground 1 is whether or not the decision maker properly identified what was “necessary” for the purposes of s 10D(1)(b)(ii).

95    Assistant Commissioner Curran relied upon the intelligence in his briefing material. There were the following categories of data in the materials:

(1)    Mapping data showing incidents from 1 November 2024 until 31 October 2025 within the proposed designated area. That mapping data was based on information extracted from police databases that was said to be filtered by:

•    Offence type: assault, robbery, weapons/explosives, and behaviour in public where linked offending includes assault, weapons/explosives or behaviour of public offences.

•    Removal of family violence incidents.

•    Data was geocoded to the designated area.

•    Perusal of leap narratives, interpose information reports, CAD data and IFS were conducted for qualitative analysis.

(2)    Of the 4332 offences yielded from this exercise, the following break-downs were provided:

•    There were 818 counts of ‘Weapon/Explosive’ offences during the analysis period. These mostly consisted of “possess/carry/use controlled weapon without excuse (476), ‘possess/carry/use prohibited weapon without excuse’ (102) and other ‘possess Dangerous Article in Public Place’ offences (58).

•    There were 2723 ‘Assault’ related offences recorded during the period. Of these, ‘Unlawful Assault’ was the most prominent (1514), followed by ‘Recklessly Cause Injury’ (309) and ‘Assault Police Officer (Crimes Act) (86). There were 74 incidents of ‘Assault with Weapon’ that occurred during the period.

•    There were 258 ‘Robbery’ offences recorded during the period. Of these, 169 were ‘Robbery’, 80 were ‘Armed Robberies’ and eight (8) ‘Carjacking’ offences, two (2) of which involved weapons.

•    There were 424 ‘Behaviour in Public’ related offences, mostly consisting of ‘Behave Riotous/Indecent/Offensive Manner’ (108), and ‘Affrays’ (76).

•    The quantity of offences remained relatively constant during the 12-month analysis period.

•    Afternoon shift had the most recorded incidents with 1739, followed by dayshift (1233), nightshift (1063), and ‘undetermined’ (188).

•    Offences resulting in 'Serious' Injury (Medical attention) were elevated during Nov-2024 to Jan-2025, Apr-2025, and Aug-2025 and have since declined.

(3)    Various charts showing the times of day that various offences occurred, and the days of the week. They disclosed no discernible pattern, except perhaps that offending tends to be higher on the weekend and in the evening.

(4)    Various charts showing the incidence of offending per month. They disclosed no discernible pattern.

(5)    Maps showing the location of certain offences (“assault”, “behaviour in public”, “robbery” and “weapons/explosives”) in the proposed designated area between 1 November 2024 and 31 October 2025.

(6)    Information provided about 12 “incidents of note”. There is no explanation for who extracted this information or for what purpose. They cover a period from 6 April 2024 until 25 October 2025. They are incidents that were generally, but not exclusively, within the proposed designated area.

(7)    Information provided about “information reports” about six incidents between 30 April 2025 and 26 September 2025.

(8)    Information provided about previous operations involving the use of a declaration.

96    Assistant Commissioner Curran acknowledges in the Affidavit that the intelligence that he relied upon was “at times … high level” and that there was “no consistency with the timing of offences involving weapons, because the offences occurred at different times, days and months”. The data he relied upon does not show a connection with an increase in crime in months of warm weather, or events (eg Australian Open and Boxing Day Test) that were to be encompassed by the proposed declaration.

97    There is no evidence about how the area of the proposed designation was identified. It is apparent from the briefing materials, that almost all of the data concerned crime within the area that was already proposed to be designated. The evidence of Assistant Commissioner Curran was that he considered “the scope of the area and whether it was appropriate to designate the entire area sought”. He said that one of the reasons he considered it “appropriate” to designate the entire area was that “I could not discount the carriage or use of weapons anywhere within the proposed designation area”. Assistant Commissioner Curran went on to say that:

I determined that the area included hot spots, transit points, staging points and places of occasional mass gatherings (Key Locations). I considered the boundary carefully and concluded that having a clear boundary incorporating these high risk locations would be easiest to enforce for police and provide clarity to members of the public, ensuring that the Declaration was effective in its purpose.

98    He said further that he was satisfied that the (emphasis added):

proposed area was confined to the CBD and nearby Key Locations. In my opinion it was reasonably necessary to include these areas to enable police and protective services officers to effectively respond to any threat of violence or disorder and to also proactively attempt to prevent any such violence or disorder.

99    Thus, in various different parts of his analysis, Assistant Commissioner Curran focused variously upon what was appropriate, whether he could “discount the carriage or use of weapons”, what would be the “easiest to enforce for police” and what was “reasonably necessary”. While I accept the Respondents’ contention that one should not read the Affidavit with the precision of a statute, these matters demonstrate the material difference between the focus called for by the Act, and the task undertaken.

100    Separately, Assistant Commissioner Curran asserted in the Affidavit that the mapping data satisfied him that there was a likelihood of violence or disorder involving use of weapons in the proposed designated area in the future “at various times and locations”. The times and locations are not disclosed. It is not possible to determine which areas Assistant Commissioner Curran considered violence or disorder was likely to occur, and which areas were included because they represented “transit zones”. Of course, it is not for this Court to second-guess the analysis of the decision maker or to engage in merits review. However, given his evidence that the Affidavit was a complete record of his decision making, this lack of focus is consistent with a failure to reach the necessary state of satisfaction due to a misapprehension of the statutory task.

101    The Affidavit also states:

I was of the opinion that the nature of the powers under the Declaration, the publication of them and the exercising of the powers by frontline operational police officers and protective services officers would act as a deterrent to offenders.

I considered this to be both a specific deterrent of those offenders subject to the powers as well as a general deterrent to any other person holding an intent to enter the designated area under the Declaration and potentially commit an offence using a weapon.

I formed the view that the exercise of these powers would lead to behavioural change in the designated area by any would-be offenders generally.

In my opinion, the powers were reasonably necessary to allow Victoria Police to efficiently respond to threats of violence or disorder in the future, which I considered to be likely to occur.

102    The final paragraph extracted above is no more than a recitation of the paraphrased statutory criteria. The balance of the views are proffered without any connection being identified with the violence or disorder that is said to have been apprehended. It may be accepted that enhanced police powers will generally enhance policing: the reasoning in the Affidavit, which Assistant Commissioner Curran said reflected his actual reasoning process at the time of the decision, does not go far beyond that high level proposition. Importantly, it does not connect the nature of the violence or disorder which he was satisfied was likely to occur with the necessity for the declaration which he was satisfied existed.

103    I accept the Respondents’ submission that it is not appropriate to focus on individual words used, or to examine the Affidavit or annexed documents with an eye keenly attuned to error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ)). I further accept their submission that it is appropriate to carry out an overarching analysis of the materials, taken together. However, in this instance, having carried out that high level analysis, I have concluded that Assistant Commissioner Curran did not understand that the “necessary” criterion in s 10D(1)(b)(ii) was to be formed on the more stringent basis that I have explained in these reasons. I am satisfied having particular regard to the aspects of his reasoning highlighted above that he applied a less strict formulation consistent with the submissions which the Respondents proffered in the course of this hearing, and that in doing so, he did not, as a matter of fact, form the state of satisfaction required by s 10D(1)(b)(ii).

104    While I have reached these conclusions by examining the manner in which Assistant Commissioner Curran analysed various factors, I have not myself weighed those factors, nor considered whether they could or should be part of an analysis as to what is “necessary”. If and when another decision maker approaches the issue of identifying what is necessary for the purposes of s 10D(1)(b), that task may well involve consideration of the kinds of issues that were identified by Assistant Commissioner Curran, albeit through the lens of “necessity”, rather than “reasonable necessity” or some other, lesser, standard.

105    The Respondents urge the conclusion that any departure from the statutory criteria was not material. In the circumstances of a complex and multi-faceted analysis such as the present, it must be that a different outcome could have arisen if the proper standard had been applied. That is not a matter about which it was necessary to cross examine Assistant Commissioner Curran; it follows due to the fundamental importance of that concept to the overall analysis. Whether a different decision would ultimately have been reached is not necessary or appropriate for me to determine, lest I stray into impermissible review of the merits of the decision (LPDT at [7], [14] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ)). I am therefore satisfied that ground 1 has been established.

ALTERNATIVE GROUNDS ALLEGING INVALIDITY

Grounds 3 – 7

106    Grounds 3-7 are alternative grounds of attack upon the decision to make the Declaration. Ground 3 is based on legal unreasonableness. My conclusions in relation to grounds 1 and 2 make it hypothetical and unnecessary to consider whether a reasoning process which embraced the incorrect statutory test was separately unreasonable or illogical.

107    Grounds 4 and 5 arise only if the power in s 10D(1)(b)(ii) was enlivened. Because Assistant Commissioner Curran did not properly exercise the power it was not in fact enlivened, so it is not necessary to consider those grounds.

108    Ground 6 concerns whether the power was exercised for an improper purpose and ground 7 is concerned with unreasonableness. Because I have already found that the power was not exercised properly, considering whether the purpose was improper given the misapprehension of the statutory test is not appropriate. Similarly, the unreasonableness ground in ground 7 does not add to the analysis. It is often appropriate that the Court should confine itself to determine those matters dispositive of the justiciable controversy, particularly in cases calling for particular efficiency (DBB16 v Commonwealth of Australia [2022] FCA 783 at [17] (Raper J); see also DXJL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1124 at [9] (McEvoy J)). This is one such case.

109    Because grounds 1 and 2 are dispositive of this issue, it is not necessary or appropriate to further consider grounds 3-7.

THE CHARTER

110    It was common ground that making the Declaration involved a decision by a public authority for the purposes of s 38 of the Charter. Section 38 of the Charter relevantly provides:

38 Conduct of public authorities

(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

Example

Where the public authority is acting to give effect to a statutory provision that is incompatible with a human right.

(3) This section does not apply to an act or decision of a private nature.

111    Section 38 requires that a public authority not act in a way that is incompatible with a human right, and give proper consideration to a relevant human right (Certain Children v Minister for Families and Children (No 2) [2017] VSC 251; 52 VR 441 (Certain Children) at [190], [195] (John Dixon J)). By grounds 8 and 9, the Applicants allege non-compliance with both the substantive and procedural limbs of the Charter respectively.

112    The relevance of the Charter was recognised in the Statement of Compatibility for the Crimes Legislation Amendment (Public Order) Bill 2017 (Vic), which introduced s 10KA, which stated:

As I have noted, the bill provides additional non-search-related powers to be used by police in areas designated under the Control of Weapons Act 1990. …

The amendments contained in this bill will not expand the use of search powers; instead they create new powers for police to manage public safety issues in respect of those who conceal their faces in a designated zone. I will now discuss the compatibility of the new powers in the bill with human rights under the charter.

Freedom of movement (section 12)

Section 12 provides that every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it.

This scheme will create a justifiable limit on the right to freedom of movement under section 12 of the charter by providing special powers for temporary use by police in designated areas.

A designation can only be made when the Chief Commissioner of Police is satisfied that it is necessary to prevent or control outbreaks of violence and public disorder and protect the safety of all people in that area. This bill will allow police to issue a direction to leave a designated area in two situations. The first of these situations relates to a person wearing a face covering primarily to obscure the person’s identity or to shield the person from capsicum spray. New section 10KA(1) created by clause 5 of the bill will allow a police officer to order a person wearing a face covering to leave the designated area if the officer reasonably believes the person is wearing a face covering for this purpose and that person has refused a request by the officer to remove it. This power is only available if the officer reasonably believes the person is wearing it to conceal their identity or shield themselves from capsicum spray. If the main purpose of wearing the face covering is for cultural or medical reasons, the power should not be used and police will receive guidelines and training on the appropriate use of this power. Violent behaviour committed by masked individuals has induced additional fear in members of the public and created significant issues for police in identifying offenders and controlling crowds in situations such as the Moomba riot and the protest in Coburg in 2016.

…

Freedom of religion and belief (section 14), cultural rights (s 19) and equality before the law (section 8)

Section 14 of the charter protects the right of a person to demonstrate his or her religion or belief in public. Section 19 of the charter provides that all persons with a particular cultural, religious, racial or linguistic background must not be denied the right, in community with other persons of that background, to enjoy his or her culture, to declare and practise his or her religion and to use his or her language. Section 8 of the charter provides that every person has the right to enjoy their human rights without discrimination, including on the basis of religious belief or activity. These rights are relevant to the power of a police officer, in a designated zone or event, to order a person to remove a face covering. This power is only available if the officer reasonably believes the person is wearing it to conceal their identity or shield themselves from capsicum spray (clause 5). As I stated earlier, if the main purpose of wearing the face covering is for cultural or medical reasons, the power should not be used and police will receive guidelines and training on the appropriate use of this power.

…

Freedom of expression (section 15) and the right to peaceful assembly (section 16)

The rights to freedom of expression and to peaceful assembly are protected under sections 15 and 16 of the charter. Section 15 provides that every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds. Section 16 provides that every person has the right of peaceful assembly and the right to freedom of association with others.

These rights are relevant to the powers that police will have available in designated areas to direct a person to leave, particularly where the direction is to leave a protest. As I have noted above, the scope for police to use these powers is circumscribed and proportionate; police can only use these powers in the two ways described above. Section 15(3) provides that special duties and responsibilities are attached to the right to freedom of expression and the right may be subject to lawful restrictions to respect the rights of other people (such as other civilians or protesters) and for the protection of public order. I consider that the powers described above likely fall within the internal limitation in section 15(3).

…

Protection of families and children (section 17)

Section 17 of the charter provides that every child has the right, without discrimination, to such protection as in his or her best interests and is needed by him or her by reason of being a child.

The new powers proposed in the bill will apply to all persons, including children, while present in a designated areas. Recent outbreaks of violence and public disorder during events such as Moomba and at the Summersault Festival have highlighted the need for these new powers to protect the safety of all attendees, including children.

Ground 8

113    Ground 8 is:

The making of the Designated Area Declaration was incompatible with human rights, and therefore unlawful under s 38(1) of the Charter.

114    The act of a public authority will be “incompatible with a human right” if it limits the relevant right in a manner that is not reasonable and demonstrably justified as set out in s 7(2) of the Charter. Section 7(2) provides:

(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

115    The Respondents accept that the Declaration has the power to limit Charter rights. In particular, the Respondents accept that the exercise of search powers pursuant to the Declaration will limit:

(1)    the right to privacy protected by s 13 of the Charter;

(2)    the right to liberty and security of the person protected by s 21 of the Charter; and

(3)    the rights of children under s 17(2) of the Charter insofar as the search powers might be exercised with respect to children.

116    These rights are self-evidently burdened by the Declaration. The Respondents argue that each decision to actually stop and search a person (for example) will be a separate “act” for the purposes of s 38(1) and must itself be undertaken in a manner compatible with the Charter. While subsequent uses of the power must be Charter-compliant, the exercise of the declaration power operates to create a zone within which individuals have fewer rights to resist being stopped and detained for the purposes of a search. They likewise have an attenuated entitlement to wear face coverings for any reason (noting that it is only a category of circumstances in which face coverings can be subject to a removal direction). This is similar to the analysis in Certain Children. In that case it was argued that certain steps were taken (like the establishment of the place of detention, or an exemption permitting the possession and use of certain weapons by prison officers), but that any actual burden on rights was a subsequent, separate issue which may or may not occur, and which would be subject to regulatory oversight if a decision was made to send a child to the place of detention, or to use weapons upon the child. John Dixon J reasoned (at [196]) that:

Administrative orders permitting prison officers to possess, carry and use extendable batons and OC spray may also engage Charter rights, regardless of whether the powers are used. For example, s 22(1) of the Charter protects every person’s right to humane treatment when deprived of liberty. Section 17(2) protects a child’s right to protection in his or her best interests. The act of authorising new categories of weapons that may be used in a place where children are detained itself raises the question of the compatibility of the use of those particular weapons in that place with Charter rights.

117    In a similar way, while I accept that the burden on rights which the Respondents are required to justify is not the same as the burden that arises at the time that the powers are used, there is nonetheless a burden on the rights identified, and that burden requires justification (Mallard v Homes Victoria [2025] VSCA 339 (Mallard) at [189]-[190] (Niall CJ, Kennedy JA and J Forrest AJA), citing Thompson v Minogue [2021] VSCA 358; 67 VR 301 (Thompson) at [74] (Kyrou, McLeish and Niall JJA)). In this respect, I do not accept that the burden on rights is lower at the time that the declaration is made, but I do accept that different considerations may apply at different points in time.

118    The standard of proof for a justifying party is high (Certain Children at [203]). The Respondents argue the limitations are reasonable and demonstrably justified within the meaning of s 7(2) of the Charter, following an objective assessment of the public authority’s conduct, and the competing considerations that were brought to bear (Thompson at [97]). I accept that in doing so, it is appropriate to give some weight to the experience of the public authority as is appropriate in the circumstance (Thompson at [100]; Mallard at [191]). As observed above, the obligation that the power be exercised by a person of a particular rank suggests that Parliament intended operational and strategic considerations of a person with that level of experience and expertise to be deployed in making any decision.

119    Nonetheless, it is for the Respondents to justify the limitation (Thompson at [48]). They seek to do so by asserting that the Declaration was necessary in its size, scope and duration, and the fact that the powers exercisable within the area were subject to express statutory safeguards and ongoing Charter obligations. The justifying party must show that any limit on the human right is imposed under law (Certain Children at [200]), a requirement that (at [202]):

dictates that any limiting act must conform with the legislation that authorised the decision maker’s action, and any limit on human rights that is not compatible with the law relied upon to authorise the limit on the right cannot be said to be ‘under law’ for the purposes of s 7(2) of the Charter.

120    Thus, the question of justification must be considered in light of my earlier conclusions that the Declaration was made in excess of jurisdiction by reason of the misapprehension concerning the statutory criteria. The statutory criteria, being principally the identification of the necessary area for the identified purpose, is one which is part of the statutory safeguards on the exercise of a power which the Respondents accepted was a significant matter. The error made by Assistant Commissioner Curran was, more importantly, jurisdictional in nature. It is established that a limitation is not capable of meeting the requirements of s 7(2) of the Charter, and therefore constituting a reasonable and justified limitation on a relevant human right, if the limitation is unlawful (Marrogi v Secretary, Department of Justice and Community Safety (No 1) [2026] VSC 4 at [127] (Harris J), citing Thompson at [58], [70] (Kyrou, McLeish and Niall JJA).

121    Thus, while it may be accepted that Assistant Commissioner Curran considered that the Declaration was directed to a legitimate purpose, that understanding was premised on an excessively broad understanding of the statutory guardrails around the exercise of the power in s 10D(1)(b)(ii).

122    It follows that I am satisfied that the Respondents have not discharged their burden of satisfying the Court that the limitation was justified within the meaning of s 7(2) of the Charter.

123    The Applicants assert that other rights are also burdened by the Declaration including:

(1)    the right to freedom of movement protected by s 12;

(2)    the right to freedom of expression protected by s 15;

(3)    the right to peaceful assembly protected by s 16;

(4)    the right to equality protected by s 8; and

(5)    the right to cultural rights protected by s 19 insofar as search powers and face covering powers are said to be particularly intrusive and disadvantageous to persons with protected attributes under s 6 of the Equal Opportunity Act 2010 (Vic) including race, religious belief or activity, age and disability.

124    My conclusions set out above, established on the basis of the rights which the parties agree were engaged, make it unnecessary to determine whether and to what extent these further rights were engaged by the Declaration.

Ground 9

125    Ground 9 concerns the procedural limb of the Charter, being the requirement for a decision maker to take into account Charter rights in making their decision. The process was summarised by Tate JA in Bare v Independent Broad-Based Anti-Corruption Commission [2015] VSCA 197; 48 VR 129 (Bare) at [288] in the following way:

for a decision maker to give ‘proper’ consideration to a relevant human right, he or she must: (1) understand in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision; (2) seriously turn his or her mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected person; (3) identify the countervailing interests or obligations; and (4) balance competing private and public interests as part of the exercise of justification.

126    The authorities are clear that s 38(1) does not require the proper consideration of human rights to involve a “sophisticated legal exercise” on the part of the decision maker (Castles v Secretary of the Department of Justice [2010] VSC 310; 28 VR 141 at [185] (Emerton J, as her Honour then was)). Justice Riordan in De Bruyn v Victorian Institute of Forensic Mental Health [2016] VSC 111; 48 VR 647 at [141] explained the obligation in this way:

(a)    The decision-maker must seriously turn his or her mind to the possible impact of the decision on the person’s human rights and the implications thereof for the affected person; and identify the countervailing interest or obligations.

(b)    The proper consideration requirement would not be satisfied by merely invoking the Charter ‘like a mantra’. By this statement, Emerton J in my opinion was saying that it will not be sufficient for an authority to identify the Charter, or even the particular sections, and provide a pro forma explanation.

(c)    On the other hand, it is not necessary that the decision-maker identify the ‘correct’ right which it may interfere with (ie the correct section under which the right is protected) or explain any content of any right by reference to legal principles or jurisprudence. It is necessary to identify in general terms the nature and extent of effect of the decision on the person’s rights.

(d)    After identifying the actual rights affected, the decision-maker will be required to balance the competing private and public interests.

(e)    There can be no formula for the exercise and it should not be scrutinised over-zealously by the courts.

127    The evidence in this case (which was not challenged) is that Assistant Commissioner Curran identified a range of rights under the Charter as being relevant to his consideration of the proposed designation:

(1)    the right to protection from degrading treatment under s 10 of the Charter;

(2)    the right to freedom of movement under s 12 of the Charter;

(3)    the right to take part in public life under s 18 of the Charter;

(4)    property rights under s 20 of the Charter;

(5)    the right to liberty and security of person under s 21 of the Charter;

(6)    the right to humane treatment when deprived of liberty under s 22 of the Charter; and

(7)    the rights of children in the criminal process under s 23 of the Charter.

128    Assistant Commissioner Curran referred to the Human Rights Risk Assessment that was included in the Document Pack in order to identify the Charter rights that he considered relevant. Where the Human Rights Risk Assessment included rights that are not listed in his Affidavit, I have concluded that is because he did not identify that Charter right as relevant. This is not a conclusion that requires cross examination: it is based on his unchallenged evidence that the Charter rights which he identified “would be relevant to” his consideration of the proposed declaration were those listed in his Affidavit. This conclusion is fortified by Assistant Commissioner Curran’s evidence that the Affidavit was a complete record of his considerations in making the Declaration. Critically for the purposes of this analysis is the right protected by s 13(a) of the Charter: privacy. While the right to privacy was referred to in the underlying documents, it was not identified in the Affidavit as being relevant to consideration of the proposed declaration.

129    In addition, the Affidavit discloses no consideration given to the effect of s 10KA(1) on any rights at all. The underlying materials which informed Assistant Commissioner Curran gave no consideration to the impact of s 10KA(1) on any rights at all.

130    It is apparent that s 10KA(1) limits the rights of people within the area designated to wear a face covering. It does so by subjecting them to the possibility of being required to remove it if a police officer forms a reasonable belief that the face covering is being worn for one of two identified reasons.

131    The right protected by s 13(a) of the Charter is sometimes referred to as a right to privacy, but is more properly described as a right not to have the person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with. Privacy is a broad term, like the similar term “private life” used in art 8(1) of the European Convention on Human Rights (ECHR), and encompasses physical as well as social identity (Pretty v United Kingdom (2002) 35 EHRR 1 at [61], cited in Director of Consumer Affairs Victoria v The Good Guys Discount Warehouses (Australia) Pty Ltd [2016] FCA 22; 245 FCR 529 (The Good Guys) at [117] (Moshinsky J)). The right to private life in the ECHR has been held to encompass a person’s picture (Von Hannover v Germany (2005) 40 EHHR 1 at [50]-[51], cited in The Good Guys at [118]).

132    A person’s face is a primary way in which they are identified in interpersonal interactions. Like their picture, it conveys their identity, or information about their identity. This is recognised by the terms of s 10KA(1) itself, which is concerned with the removal of a face covering where the police officer is satisfied that the covering is being used to conceal identity. Identity is generally a matter which a person is entitled to maintain in privacy, subject to lawful limitations. I therefore accept that s 10KA(1) involves a limitation on the right to privacy protected by s 13(a) of the Charter.

133    I accept that the limitation on the right to privacy by s 10KA(1) is more attenuated than the limitation imposed by the search powers in s 10G or s 10GA, because the former is separated by the additional step of the formation of a reasonable belief as to the primary purpose for which the face covering is used. It is nonetheless the case that it causes a limitation on the right to privacy because it prevents a person from maintaining their identity as private. They are forced to reveal themselves because they are within the designated area and the police officer reasonably believes that they seek to conceal (or keep private) their identity.

134    The Respondents concede that the search powers enlivened by s 10D limit the right to privacy protected by the Charter. There is mention of the right to privacy in the underlying materials (including the Human Rights Risk Assessment) informing Assistant Commissioner Curran’s decision as it relates to the search powers, and brief analysis of the means by which the risk of limitation of that right could be mitigated. However, I consider that the lack of any engagement with the right to privacy in the Affidavit (which is said to be a complete record of Assistant Commissioner Curran’s decision making process) makes clear the limitation on the right was not considered by him. It may be that by electing not to cross examine Assistant Commissioner Curran’s assertion that he considered the rights listed in the Affidavit, the extent to which the Applicants can criticise the degree of that consideration is limited. But no such argument can arise in relation to the right to privacy, which was not identified in the Affidavit as being considered at all.

135    The failure to refer to the right to privacy in the Affidavit suggests that Assistant Commissioner Curran failed to engage with that right, even in general terms by reference to the nature and extent of any impact on the right to privacy of a person who may be subjected to exercises of the power in s 10KA(1) and of the search powers more broadly.

136    It is therefore apparent that one of the consequences of making the Declaration, being the impact on the Charter right protected by s 13(a), was not considered at all by Assistant Commissioner Curran. Even accepting that the analysis is not to be undertaken at a level of legal sophistication, I am satisfied that the failure to consider the privacy implications of either the search powers or s 10KA(1) is a breach of s 38(1) of the Charter. This is sufficient for the purposes of establishing ground 9.

137    The Applicants also criticise a number of aspects of the Human Rights Risk Assessment which informed Assistant Commissioner Curran’s Charter analysis, including its conclusion that because the searches that would be carried out would be random, there would be no burden on particular groups. There are some difficulties with this analysis: it fails to grapple with the potential for indirect impact on people with a disability with respiratory vulnerabilities who may be subject to an impact by reason of the Declaration in conjunction with exercises of the power in s 10KA(1) reducing or removing their entitlement to wear a face covering in certain areas. There is a live issue as to whether people in that situation have their right to recognition and equality before the law (protected by s 8 of the Charter) limited to any extent. This issue was not fully ventilated in the compressed timeframe within which this matter has been heard and determined. Given my conclusion that ground 9 is otherwise established it is not necessary or appropriate to reach a concluded view on this issue, or the balance of the Charter rights raised by the Applicants. Nonetheless it is appropriate to note that the bare proposition that a random search is not capable of having a discriminatory effect may be doubted.

THE IMPLIED FREEDOM OF POLITICAL COMMUNICATION

138    At the time the proceeding was commenced, the Declaration was in force, and all three of the Applicants gave evidence as to their intention to attend rallies or protests within the area covered by the Declaration on 26 January 2026. The Applicants gave evidence about their personal experiences of being subjected to exercises of the power in s 10KA(1), or search powers within designated areas, as well as their apprehensions about how those powers might be exercised in the context of future protests including the protest on 26 January and the impact this would have on their ability or willingness to engage in political communication within a designated area. The Applicants submit that their evidence provides examples of some of the ways in which the power in s 10KA(1) burdens the implied freedom of political communication, and that this burden is impermissible.

139    Since the Declaration came to an end early due to a further decision by Assistant Commissioner Curran, there may appear to be no basis to proceed to consider the constitutional question. The High Court has been clear that constitutional issues should not be determined unless it is necessary to do so (Clubb v Edwards [2019] HCA 11; 267 CLR 171 (Clubb) at [332] (Gordon J) and the cases there cited). However, the evidence of Assistant Commissioner Curran is that he intends to make a new declaration after reconsidering aspects of the Charter. There is otherwise evidence that such a declaration will be made shortly, and in any event prior to the protests planned for 26 January 2026. The Applicants also continue to press the constitutional challenge insofar as anticipated future declarations would similarly enliven the exercise of the power in s 10KA(1) with respect to the planned protest on 26 January 2026, and thereby burden the implied freedom in that context. In Unions NSW v New South Wales [2023] HCA 4; 277 CLR 627, the majority (Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ) said (at [27]) that:

in some cases, a plaintiff may be able to show that there will be foreseeable consequences from the grant of a declaration where the plaintiff can satisfy the Court that, even though the asserted wrong has ceased, there is a risk of repetition.

140    Such an apprehension may be sufficient to make it appropriate to proceed to consider the constitutional issue, which has been fully argued, and is likely to return for further consideration in the event of a further declaration (see Clubb at [242] (Nettle J)).

141    The question therefore is whether, upon the proper construction of s 10KA(1), it infringes impermissibly on the implied freedom of political communication. That analysis proceeds on the basis of constitutional facts that are not disputed, which are, in summary, that face coverings are capable of being, in certain instances: (a) a form of political expression, and (b) intimidating, or used in aid of persons seeking to perpetrate violence or disorder (either by concealing their identity or to avoid the effects of crowd-controlling substances). The first proposition was evidenced by the affidavit of Sarah Schwartz affirmed on 7 January 2026, which exhibited various instances in Australia and globally of face coverings being used to convey political messages. Even in the absence of any evidence in relation to the second proposition, I consider it to be a sufficiently uncontroversial matter of common knowledge of which I can take judicial notice (Evidence Act 1995 (Cth), s 144).

142    Mr Zable gave unchallenged evidence that he had been asked to remove his face covering while attending a protest while he believed that a previous declaration was in force. Mr Zable does not recall whether the police officers who asked him to remove his face mask referred to the designated area. He said that after he removed his face mask, he stayed at the protest without it. He says that this has made him concerned that he will be required to remove his face mask at future protests. The declaration that was in force at the time that he was asked to remove his mask is not presently in force. He further gave uncontradicted evidence that he was in his costume (which includes a face mask) during a protest on 4 January 2026 (when the Declaration was in force) and was not asked to remove any part of his costume. The evidence of Mr Zable provides an example of the kind of costuming that might include a mask as a form of political expression. However, this case is not concerned with the determination of any particular instance of the application of the law in question.

143    The implied freedom of political communication exists because of the system of representative government adopted in the Constitution (Comcare v Banerji [2019] HCA 23; 267 CLR 373 (Banerji) at [20] (Kiefel CJ, Bell, Keane and Nettle JJ)). It “denies legislative and executive power to restrict freedom of communication on governmental or political matters unless the restriction is imposed to fulfil a constitutionally legitimate purpose and the restriction is reasonably appropriate and adapted to advance that purpose by constitutionally legitimate means” (Farmer v Minister for Home Affairs [2025] HCA 38; 99 ALJR 1408 (Farmer) at [1], (Gageler CJ, Gordon and Beech-Jones JJ)). It “extends only so far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution” (Banerji at [20]).

144    There are three steps relevant to the determination of this issue:

(1)    First: whether s 10KA(1) imposes an effective burden upon political communication in its terms, operation or effect.

(2)    Second: whether any such burden can be explained by the pursuit of a “legitimate” purpose in the sense that it is compatible with the maintenance of the constitutionally prescribed system of government.

(3)    Third: whether any such burden is “justified” in the sense that it is “reasonably appropriate and adapted” to its pursuit of that legitimate purpose in a manner that is compatible with the maintenance of the constitutionally prescribed system of government (McCloy v New South Wales [2015] HCA 34; 257 CLR 178 (McCloy) at [126]-[132] (Gageler J); Farmer at [39]-[40], [53]-[54], [56]-[57] (Gageler CJ, Gordon and Beech-Jones JJ), [165] and [193]-[194] (Gleeson J)).

145    If the first question is answered “yes”, and either of the second or third questions is answered “no”, the law is invalid (Farmer at [39]). It is important to recall that the implied freedom is not a personal right. The authorities emphasise that the critical issue is the free flow of political communication (Farmer at [45]).

Is there an effective burden upon political communication?

146    A law will effectively burden the implied freedom where “…the effect of the law is to prohibit, or put some limitation on, the making or the content of political communications” (Farmer at [40] (Gageler CJ, Gordon and Beech-Jones JJ), [194] (Gleeson J)).

147    The Respondents accept that the power in s 10KA(1) has the capacity to burden political communication, but argue that any such burden is indirect and not significant. This is addressed below.

148    I accept that s 10KA(1) burdens political communication. The nature and extent of the burden is relevant to the question of whether the law is reasonably appropriate and adapted to the pursuit of its legitimate purpose (Farmer at [57] (Gageler CJ, Gordon and Beech-Jones JJ), [165] (Gleeson J)) and it is to that issue which I now turn.

Is the burden such as can be explained by the pursuit of a legitimate purpose?

The nature and extent of the burden

149    The Respondents argue that the burden on political communication is indirect because s 10KA(1) is not directed to any form of political communication, but that it is instead directed to the use of face coverings to conceal a person’s identity or to avoid the effects of crowd-controlling substances. It may be accepted that neither the Act as a whole, nor s 10KA(1) specifically, are directed to political communication per se (although it should be noted that the second reading speeches outlined above contemplate the impact of a declaration under s 10D on protest). The Respondents argue further that a direction for a person to leave a designated area can only be issued in limited circumstances: a police officer must form the relevant reasonable belief, issue a request that a person remove their face covering, and then have the person decline to comply with the request.

150    The Respondents relied upon the purportedly indirect nature of the burden as a reason that it is not a significant burden. The distinction between direct and indirect burdens has been considered in various cases considering the implied freedom (notably Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; 177 CLR 106 (ACTV) and Hogan v Hinch [2011] HCA 4; 243 CLR 506 (Hogan)). In McCloy, Nettle J observed that the “weight given to putative less restrictive means will vary according to the nature and intensity of the burden” (at [253]). It may be as a matter of logic that a law which seeks to restrict political communication will be more difficult to justify than a law whose character is that of a law with respect to some other subject, and whose effect on such communications is unrelated to their nature as political communications (Mulholland at [40], citing ACTV at 169). I accept that the restriction of political communication is not the aim of the law, but it is a logical sequel, and one that was foreseen at the time of its enactment. The justification exercise is undertaken in that context.

151    The Applicants argue that there are two scenarios where political communication will be burdened by s 10KA(1):

(1)    First: when the power is exercised in respect of a person wearing a face covering as a form of political communication. This is said to directly prohibit the making of a political communication in the designated area. This is said to be a direct and substantial burden because wearing face coverings is, it is submitted, a “powerful form of symbolic expressive conduct”. The Applicants rely upon the comments of Gageler J in Brown v Tasmania [2017] HCA 43; 261 CLR 328 (Brown), who noted the communicative power of on-site protests being a matter which lies in the generation of images capable of attracting the attention of the public and of politicians to the particular area of the environment that is claimed to be threatened and sought to be protected (at [191]).

(2)    Second: where a person is wearing a face covering to facilitate their engagement in political communication (for example, attending a protest) in the designated area, they will be limited in their ability to participate in the relevant form of political communication in the sense that continued participation will be conditional upon them removing their face covering. This potential is recognised in the second reading speeches extracted above.

152    I accept that each instance identified by the Applicants involves a burden on political communication. However, it is important to note that the burden is limited in important ways:

(1)    First, by the obligation upon the police officer to form the relevant state of mind, on reasonable grounds, that the person is wearing a face covering primarily to conceal their identity, or protect themselves from the effects of crowd-controlling substances. While I accept that the potential for mistaken application of the power, and its chilling effect, are relevant (Brown at [79]-[80] (Kiefel CJ, Bell and Keane JJ), [225]-[227] (Gageler J), [292]-[295] (Nettle J)), the contingent nature of the obligation to remove a face covering is relevant. In particular, a face covering worn primarily to communicate a political point, or to facilitate the communication of a political point because it is worn for medical or cultural reasons, will not, prima facie, empower a police officer to give a direction to remove the face covering.

(2)    Second, because the circumstances in which a face covering, as a modality or form of political expression, is itself central to the communication of the overall political point is more limited than was the case vis-à-vis the modality of protest in Brown. In that case, the issue concerned protests at certain places, where the sites of the protest were connected with the political decisions being protested; the modality of an on-site protest was closely connected to the political communication being made. However, in this instance, the personal preference to use a mask to communicate a political point is less intrinsically connected with the overall capacity to engage in protest as a form of political communication. It is a less significant aspect of a person’s preference about the manner in which they exercise their capacity or desire to protest.

153    In relation to those who may be less likely to attend a rally, there is a legitimate concern that people with respiratory vulnerability may be genuinely deterred from attending a rally where they would be precluded – by reason of a medical need to wear a face covering – from participating. The Respondents’ answer is that the person would not be subject to s 10KA(1) because the face covering would be primarily for medical purposes. Once again, that is premised upon the perfect application of the law – a difficult and problematic premise – and the complexity of a person who may seek to protect themselves from crowd-controlling substances because of a pre-existing vulnerability. A similar concern arises in respect of people who may be deterred from attending a protest because of a cultural or other need to wear a face covering.

154    I therefore consider that the burden on political communication is not as minimal as the Respondents contend. However, nor do I accept that it is a “substantial” burden in the manner suggested by the Applicants. The burden is moderate in the sense that it is capable of applying to protests, but it is heavily conditioned by the requirement that the police officer be reasonably satisfied as to the purpose of the wearing of the face covering. The contingent nature of the burden is demonstrated for example by the evidence of Mr Zable, who was not required to remove his face covering on one occasion on 4 January 2026 during the operation of the Declaration (although his evidence is that he had been requested to remove his face covering whilst attending protests on previous occasions). Moreover, it is clear that on those previous occasions where he was asked to remove his face covering, he was able to continue to effectively participate in the protest, even if not in the exact form which he wished. A protestor being required to continue protesting without their face covering is distinguishable from a protestor being required to remove themselves from a politically significant area as was the case in Brown.

155    I am troubled by the second category of protestors, for example who may have health or cultural reasons for masking and may therefore be deterred from attendance. However, the nature of the reasonable belief required as a precondition to the exercise of the power will prevent its operation upon people who are wearing a face covering for these reasons. Nonetheless, it is the chilling effect on attendance of these people, including because of the potential for mistake in the operation of the law, which causes me to conclude that the burden is moderate, rather than slight.

The legitimate purpose

156    The object of the impugned provision is a question that is concerned with determining what object or purpose the law is designed to achieve in fact (Farmer at [54]). The Respondents submitted that the purpose of s 10KA(1) was: “(a) to protect the safety of people in a designated area from violence or disorder; and/or (b) to assist police to protect the safety of people in a designated area from violence or disorder”. I accept that, understood in its proper context, those are the purposes which the provision pursues. That purpose is plausible and legitimate in the sense that it is compatible with the maintenance of the system of representative and responsible government (Brown at [207]).

Conclusion on the second issue

157    It follows from the foregoing analysis that the law in question pursues a legitimate purpose in the sense contemplated by the authorities. In doing so, it moderately burdens the implied freedom of political communication. The issue which then arises is whether that burden is justified in the pursuit of that legitimate purpose. It is that issue to which I now turn.

Is the law justified?

158    This question looks to the means that the law pursues to achieve its identified purpose, and asks whether it is reasonably appropriate and adapted to advance that legitimate purpose in a manner that is compatible with the maintenance of the constitutionally prescribed system of government (Farmer at [56]).

159    For the reasons that I have explained in relation to the second question, I have concluded that the burden is only moderate. It nonetheless requires justification from the Respondents.

160    Prior to Babet, the third issue was addressed by reference to “structured proportionality” involving analysis of suitability, necessity and adequacy in balance. The High Court in Babet made clear that this approach was properly understood as a tool of analysis which was not necessary in every case (at [49] (Gageler CJ and Jagot J)). In this case, the general framework provides some assistance in the analysis. I have found it useful to address the issues by reference to that tool.

Suitability

161    Suitability looks to whether there is a rational connection between the impugned provision and the legitimate purpose which it pursues, such that that purpose is furthered. In this case, the issue is whether the aim of reducing weapons-related violence is suitable and whether it is furthered by giving additional powers to police in relation to individuals who are wearing face coverings in a designated area.

162    The Applicants submit that s 10KA(1) does not ensure any degree of proportionality between the power and the identified purpose. That is because the power can be exercised against a person who poses no threat of any violence or disorder. Put another way, s 10KA(1) assumes that a person who is within the area designated by a declaration presents a risk if they seek to conceal their identity or avoid the effects of crowd-controlling substances. That is, in the submission of the Applicants, a false proxy: they argue that it is not correct to assume that a person present within the designated area presents a risk merely because they are using a face covering primarily to conceal their identity, or to avoid the effects of crowd-controlling substances.

163    I accept that the rational connection between s 10KA(1) and the identified purpose would be less compelling (and potentially absent) if the construction of s 10D advanced by the Respondents as to the manner in which the designated area is to be identified were correct. A large area, designated for six months, with little analysis as to the nature of the risk that is to be addressed by the declaration, is not a clear proxy for the risk of weapons-related violence or disorder.

164    If it is “necessary” to designate the area for the purpose specified in s 10D(1)(b)(ii) of the Act, the decision maker is satisfied that violence or disorder is likely to occur there. A person seeking to conceal their identity or avoid capsicum spray has a closer connection with the risk presented by the apprehended violence or disorder. It is not a matter for this Court to evaluate if the correct legislative response has been chosen. Instead it is necessary that the impugned provision is relevantly proportionate to the burden on political communication.

165    The Applicants argue that there are legitimate reasons that a person may seek to cover their face, and that s 10KA(1) does not account for those matters sufficiently. They argue (with some force) that in its real world application it may be difficult to identify a “primary reason” why a person is wearing a face covering, and that there is in this sense insufficient protection for those who may wear face coverings for good reason. They point to the fact that the statute does not require any inquiries to be made of the person wearing the face covering prior to forming the reasonable belief (although the person must be asked to remove it before they are directed to leave the area). However, s 10KA(1) does not empower the police officer to require the person to remove the face covering, only to leave the designated area if they refuse a request to do so.

166    Nonetheless, a person can wear a face covering for a range or purposes without the power under s 10KA(1) being enlivened. They importantly include where the primary purpose is not one of the two specified. This means that face coverings worn primarily for medical and cultural reasons are not subject to the power. Those protections are enhanced by the operation of the Charter at the point that the power is exercised – including by reference to the right to privacy. Even accepting the possibility for mistaken exercise of the power does not undermine the conclusion. That risk is not of the kind that is so significant that it makes the law unsuited to its aim.

167    I therefore consider that the law is relevantly suitable. I emphasise in this respect that conclusion is based upon an understanding that the power to designate an area is a serious one, that will be confined to what the decision maker identifies as “necessary” in the manner discussed above.

Necessity

168    Necessity looks to whether there is an alternative measure that is equally practicable having regard to the purpose being pursued, but less restrictive of the communication protected by the implied freedom.

169    The Applicants argue that there are obvious alternatives that would serve the same purpose, with less restrictions on the freedom (Brown [139]), for example a power dependent upon a reasonable belief that the person may have committed or is likely to commit an offence. They note that s 10KA(1) sits alongside s 10KA(2) which empowers police officers to direct a person to leave the designated area if they believe that a person is going to engage in conduct that would constitute an offence under s 195H (affray) or s 195I (violent disorder) of the Crimes Act 1958 (Vic), as well as the powers in s 10G and s 10GA to search persons for weapons without any reasonable belief or suspicion. In oral submissions, reference was also made to the newly passed laws under the JLA Bill which operate more specifically upon face coverings in the context of protest. That Bill amends the Summary Offences Act 1966 (Vic) by empowering a police officer to direct a person to cease and not resume wearing a face covering where the police officer believes on reasonable grounds that the person has committed or intends to commit an offence at a public protest.

170    It is a matter for the legislature to select the means by which a statutory purpose may be achieved. The implied freedom is not an opportunity for judicial legislation. An alternative must be “obvious and compelling” and result in “a significantly lesser burden on the freedom of political communication” (Babet v Commonwealth [2025] HCA 21; 99 ALJR 883 (Babet) at [186] (Edelman J) and the cases there cited).

171    Where the designated area is confined to those areas that are relevantly “necessary” to the statutory purpose, the additional preconditions that the Applicants identify would do little, in my view, to significantly lessen the burden, which I have already identified as being only moderate.

Adequacy

172    As to adequacy in balance, a law is “regarded as adequate in its balance unless the benefit sought to be achieved by the law is manifestly outweighed by its adverse effect on the implied freedom” (Farm Transparency International Ltd v New South Wales [2022] HCA 23; 277 CLR 537 at [55] (Kiefel CJ and Keane J), citing Banerji at [38] and LibertyWorks Inc v Commonwealth [2021] HCA 18; 274 CLR 1 at [85] (Kiefel CJ, Keane and Gleeson JJ)). The plurality in Clubb observed at [72]:

It is important to be clear that what is involved is not a comparison of the general social importance of the purpose of the impugned law and the general social importance of keeping the implied freedom unburdened. Rather, what is to be balanced are the effects of the law – in terms of the benefits it seeks to achieve in the public interest and the extent of the burden on the implied freedom.

173    The benefit of the law is that it allows police officers to require people to leave the designated area if they refuse to remove their face covering in certain circumstances. Such people are not otherwise suspected of any crime or wrongdoing. The obligation to remove a face covering only arises where the area in question is identified as one that meets the statutory criteria in s 10D(1), and where the size of the area designated is the minimum size reasonably necessary, and the period of the delegation is the minimum reasonably necessary. Accordingly, the obligation to remove a face covering only exists in the narrow circumstances in which it can arise as a response to the risk presented by weapons-related violence. The risk posed by weapons-related violence in a properly designated area is, in my view, sufficient to justify the burden on the implied freedom that is imposed by the law.

Conclusion on the implied freedom

174    Even a law specifically directed at political communications will not necessarily infringe the implied freedom. The High Court considered a law of this kind in ACTV, one of the earliest cases in which the implied freedom was recognised. On the issue of infringement, Mason CJ said at 142-143 (citations omitted):

The guarantee does not postulate that the freedom must always and necessarily prevail over competing interests of the public. Thus, to take an example, Parliament may regulate the conduct of persons with regard to elections so as to prevent intimidation and undue influence, even though that regulation may fetter what otherwise would be free communication.

175    In this case, there are legitimate interests on each side of the debate. I consider that to the extent a restriction is imposed upon political communication by s 10KA(1), it is appropriately constrained by the proper exercise of powers under s 10D, in particular, where there is an apprehension of weapons-related violence or disorder.

176    It follows that the Applicants have not established that s 10KA(1) is invalid by reason of the implied freedom of political communication and therefore, it is not necessary to consider whether it ought to be “read down” in any sense.

RELIEF AND CONCLUSION

177    For the reasons that are set out above, the Declaration was made in excess of jurisdiction. Given it has ended in advance of the hearing, the only remedy sought is a declaration to that effect. There is no discretionary reason not to grant such a remedy, particularly given the Third Applicant was directly searched under that power. That declaration will therefore be made.

178    In relation to the Charter, the Respondents more forcefully argued that the premature end to the Declaration meant that the Charter grounds were effectively a dead letter and that, in the exercise of the Court’s discretion, no declaration should issue. I do not agree. The failure to comply with the substantive and procedural limbs of s 38 is significant. There has been no disentitling conduct by any of the Applicants. There is utility in a declaration to make clear that the important obligations of the Charter were not, on this occasion, properly applied. A declaration to that effect is “often the primary remedy that a complainant seeks as it is a vindication of a wrong done to them by a public authority” (Bare at [152] (Warren CJ), quoted in Certain Children at [556] (John Dixon J)). I can see no discretionary reason that I would not make a declaration.

179    The balance of the application, insofar as it seeks a declaration of invalidity in respect of s 10KA(1) of the Act, will be dismissed for the reasons I have outlined above.

180    Prior to the hearing, the parties agreed that there should be no order as to the costs of the proceedings and so there will not be. In this respect, I commend the parties for their cooperation in running the matter in an effective and professional manner in a significantly constrained timeframe. Those acting for the Applicants are likely to have done so without expectation of a fee, in the best traditions of the Bar.

Associate:

Dated:    23 January 2026