During the recent Senate Estimates, I questioned the AFP about whether they were under orders not to intervene during protests when offenses, such as the flying of illegal Hezbollah and Hamas flags, were observed.

The AFP clarified that they were under no such orders and explained that maintaining peace at rallies and protests is primarily the responsibility of State and Territory police as frontline officers. They also noted that decisions on whether to intervene may depend on tactical considerations and safety concerns.

Transcript

Senator ROBERTS: On to another topic, are Australian Federal Police officers under any orders at certain demonstrations to not intervene when they see an offence being committed? 

Ms Barrett: No. 

Senator ROBERTS: We see the issue of illegal flags being raised at some demonstrations—illegal Hezbollah flags and Hamas flags. Why wasn’t action taken? 

Ms Barrett: There are a few things I would say to that. Primarily, it’s our state and territory colleagues that are policing public order in protest activity. The AFP doesn’t generally have a frontline presence at protest activity. 

Senator ROBERTS: You haven’t got jurisdiction, say, in Sydney at a big protest—only in Canberra? 

Ms Barrett: It’s not our primary role. It’s primarily the role of the states and territories. They are better equipped and trained to deal with large public order matters. We obviously provide support to them and some specialist capability where it’s required, but they are primarily the ones on the front line at the protest activity. They also have access to utilising this legislation and, in fact, there have been other state and territory colleagues and counterparts that have used this legislation in relation to the prohibited hate symbols. The other point I would make is that there are a lot of tactics that go into policing protests and into maintaining law and order and public order, particularly in mass protest activity. It is quite a simplified expectation that police officers would be immediately arresting on the spot. There is a lot of consideration that would go into tactical decision-making around whether it would be the right decision to immediately intervene and arrest in a mass protest activity, and that is where our state and territory colleagues have the specialist skills and training. 

Senator ROBERTS: Thank you. I have two questions. Do you have jurisdiction in Sydney, for example, or in the state, apart from airports? 

Ms Barrett: We have jurisdiction for Commonwealth offences, so under Commonwealth legislation. Our state and territory colleagues have state legislation that allows them to enforce public order in those situations. As I’ve already said, they also have access to Commonwealth legislation around some of these applicable offences. 

Senator ROBERTS: Last question: is one of the considerations as to whether or not to take action to arrest someone who’s demonstrating with a hate flag or hate symbol the need to be seen to be enforcing the law? People are just shocked that these people are getting away with breaking the law willy nilly in front of the police’s eyes. 

Ms Barrett: There are a number of grounds that have to be satisfied before a police officer can arrest someone under the Commonwealth legislation. There are six or seven grounds for arrest, so it’s not as simple as just making a decision to arrest somebody. It has to be either to prevent the continuation of offence, prevent a loss or destruction of evidence, ensure a person’s appearance before court—there are a number of elements that you have to satisfy yourself of before you make a decision to deprive someone of their liberty. I can tell you that every police officer takes the decision to make an arrest very seriously because, as I said, you are depriving someone of their liberty. The other thing I will just make the point of is that every police officer has the independent office of constable. I can’t direct someone to make an arrest in any situation. It is an individual decision made by the individual police officer, and they themselves have to be satisfied that they’ve met the grounds for arrest under the Commonwealth legislation. 

Senator ROBERTS: One of those grounds was the continuation of an offence. Isn’t letting people continue to march with a hate symbol a continuation of an offence? 

Ms Barrett: Yes, in most circumstances it could be. But I will take you back to my earlier point—that there are a lot of other factors, particularly in mass protest situations where you’ve got big crowds, high emotions, a lot of passion and a propensity for violence or disorderly behaviour. There are a lot of tactics that go around policing large demonstrations like that, not least in terms of officer safety as well. 

Senator ROBERTS: Thank you, Chair.