Brown v State of Victoria: A win for the right to protest?
By Principal Lawyer Jeremy King and William Bonney, Police and Prisons Team, Robinson Gill
When analysing and assessing civil litigation involving protesters, courts must strike a balance between safeguarding the rights to protest and free speech, while ensuring that protests are safe and that criminal behaviour can be addressed by police.
It has become a common sight for Australians to see protesters on our streets voicing concerns about a range of issues, including climate change. These protests are often controversial and have been the subject of numerous judicial pronouncements ranging from judicial review to civil claims for compensation.
The Victorian Supreme Court decision of Justice Harris in the matter of Brown v State of Victoria (No 3)[1] (Brown) is the most recent judicial decision in respect of protestors. This was a class action brought against Victoria Police (State of Victoria – the State) and relates to, inter alia, the use of oleoresin capsicum (OC) foam by Victoria Police officers at a climate change protest. The protest was held between 29 and 31 October 2019 outside the International Mining and Resources Conference (IMARC) in Melbourne. The lead plaintiff, Jordan Brown, alleged that he had suffered injury as a result of being unlawfully subjected to OC weaponry by two officers. The primary issue was the extent to which police officers tasked with policing protests can lawfully use force in situations which are “dynamic and occasionally chaotic”.[2]
Protests, free speech and human rights
When discussing protest cases, it is important to note the value and importance of protest and free speech in an open democratic country. The importance and breadth of free speech was confirmed by our High Court in the case of Levy v State of Victoria (1997):
“Speech is the chief vehicle by which ideas about government and politics are communicated. Hence it is natural to regard the freedom of communication about government and politics implied in the Constitution as a freedom of speech. But actions as well as words can communicate ideas …”[3]
Further, the use of protest as a critical vehicle for free speech has been enshrined in our common law in cases, such as New South Wales Commissioner of Police v Bainbridge (2007):
“In a democratic society such as ours, providing those feelings do not lead to breaches of the law, they are entitled to be communicated. One of the ways in which judgments of this kind are communicated in a democratic society is by public assemblies which seek to persuade other citizens of the cause espoused by those demonstrating and to indicate to those citizens who are of a different view that they are mistaken. The other purpose of such a demonstration is so that those of one mind upon the particular question can encourage and support each other.”[4]
In Victoria, we are fortunate to have the benefit of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), which contains several critical human rights relevant to free speech and protesting, including the right to freedom of expression and peaceful assembly.[5] Victoria Police are also expressly defined as a “public authority” within the meaning of the Charter.[6] This means that it is unlawful for police to act in a way that is incompatible with a human right, and they must give proper consideration to relevant human rights when making decisions.[7] This obligation extends to decisions made in the context of policing protests, such as decisions concerning the use of weapons by police.
Statute and common law also contain restrictions on police powers at protests, such as the lawful use of force. Police can lawfully use force, inter alia, to effect a lawful arrest, to prevent a breach of the peace, and in defence of themselves or another. Further, the Crimes Act 1958 (Vic) allows police to use force so long as the force used is not “disproportionate to the objective”.[8] That is, the officer must believe on reasonable grounds that the force was necessary to effect an arrest or prevent an indictable offence being committed.[9] Where forced is used without a lawful justification, such as an arrest power, the officer will have committed the tort of battery.
These police powers are significant and must be carefully managed to ensure that protesters’ democratic rights are upheld. In the Brown decision, Harris J made the following observation about the interaction between police, civil rights and the public at large:
“What is required is that the police officer seriously turns his or her mind to the rights of a person against whom they may use force; the rights of others who may be impacted by the use of force; how those rights may be affected and whether in those circumstances the use of force is proportionate and justified.”[10]
Policing protests and OC weaponry
Since the IMARC protest in 2019, Victoria has seen numerous protests met with a heavy-handed police response. The protests against pandemic restrictions in 2021 garnered widespread media coverage, and the response from Victoria Police also resulted in litigated claims.[11] At the Disrupt Land Forces protest in 2024, protesters faced a highly armed police presence and were subject to the use of “non-lethal weapons”, which included extensive use of OC weaponry.[12]
OC foam has been used as a tactical weapon by Victoria Police for over ten years. However, the decision of Brown is illuminating in its discussion of the chemical weapon. Justice Harris detailed the restrictions placed on police officers by their own manuals, including relevant Victoria Police Manuals (the VPMs), which state that—
“OC aerosols should only be used where there are reasonable grounds to believe the use is necessary and proportionate in situations:
- of violence or serious physical confrontation
- where violent or serious physical confrontation is imminent
- where a person is involved in violent or other physical conduct and likely to seriously injure themselves or result in suicide”.[13]
The Court also considered the Oleoresin Capsicum Manual 2019 (the OC Manual), an internal police document that describes the effect of OC weaponry as “rapid and debilitating” both physically and psychologically.
In their evidence, senior police officers had differing views on whether the VPMs and OC Manual were mandatory minimum standards which officers were required to follow.[14] Her Honour found that the circumstances in which OC weaponry “should only be used” was a mandatory instruction rather than a guideline, consistent with the legal restrictions on the use of force considered by the Crimes Act.[15] It was clear that the relevant officers were aware of the harmful effects of OC weaponry and the restrictions on its lawful use.
Spraying the protest
In the lead up to the alleged batteries in Brown, two protesters had climbed two separate poles (the “East Pole” and the “West Pole”) using ropes and a harness with the goal of unfurling a protest banner.
Police made a tactical decision to arrest the climbers once they had descended the poles on the basis that the offence of trespass had been completed.[16] Police faced some resistance from the protesters, who formed a circle around the East Pole.[17] Police formed a wedge and attempted to enter the group of protesters near the East Pole.[18] Several police officers in the wedge began using OC foam, which made contact with approximately 15 to 20 protesters’ clothes, bodies and faces.[19]
Meanwhile, the East Pole climber detached himself from the group and ran from the vicinity of the protest.[20] At this time, the West Pole climber had almost descended. Officers moved in a wedge formation through a group of protesters who had crowded around the West Pole.[21] The wedge dispersed and police began spraying the climber and various protesters. Police gained access to the climber and brought her behind the police line.
As this occurred, Sergeant Guthrie joined the group of police pressing against protesters near the West Pole. Justice Harris described how Guthrie “reached over police officers … towards the West Pole, and deployed OC foam in a long spray” which hit the plaintiff and other protesters.[22] This was described as “the first battery”. In her evidence in the proceeding, Guthrie stated that she had not heard the radio direction to arrest the West Pole climber and had not witnessed the West Pole climber do anything dangerous.[23]
Mr Brown moved away from the West Pole, towards the Yarra River, past a line of police supervised by A/Sergeant Bolzonello, who had been attempting to arrest the East Pole climber.[24] As Mr Brown moved past, he was grabbed by another member of the police line and then let go. Bolzonello sprayed OC foam in Mr Brown’s direction as he moved past, hitting the plaintiff on the side of the face, which was described as “the second battery”.
During an informal debrief with other officers after the event, Bolzonello was recorded as saying: “Yeah. Well mine’s empty. I just was just like cch cch cch cch cch” (in reference to deploying his OC canister) and “yeah don’t f**k with us any more”.[25] It was not in contention that Guthrie and Bolzonello deployed OC foam against Mr Brown.[26] However, the State argued that the officers’ use of OC foam was authorised by s322K (in self-defence) of the Crimes Act and/or s462A (use of force to prevent the commission of an indictable offence).
Was the use of OC foam unlawful?
Justice Harris found Guthrie’s deployment of OC foam was a battery and that there was no basis for the allegation that the use of force was in relation to a breach or imminent breach of the peace. Indeed, it was noted that Guthrie did not see Mr Brown doing anything other than standing with his arms linked with other protesters.[27] It was also found that Guthrie could not rely on s462A as she stated she was not assisting in the arrest of the plaintiff.[28]
In response to Guthrie’s reliance on s322K that her actions were in self-defence or defence of others, her Honour found that:
“[Guthrie] believed that there was some pushing from protesters and police around her, but not from the plaintiff. The deployment of OC foam in response to that belief was an entirely disproportionate response to the circumstances that she perceived and was not a reasonable response in the circumstances.”[29]
Her Honour also found that Bolzonello’s deployment of OC foam was a battery. Her findings were made on the basis that it was not in defence of others, as the plaintiff had been merely moving into clear space.[30] Her Honour also determined that Bolzonello could not rely on s462A, given his belief that the West Pole climber had already been arrested. He also stated in evidence that he used OC foam to keep the area clear of protesters,[31] which her Honour found was “counterproductive” and not necessary or proportionate.[32]
Impact on the Charter of Human Rights
One intriguing aspect of the pleadings in Brown were the allegations that the officers had breached the plaintiffs’ rights under the Charter. The Charter is often pleaded in civil cases but rarely decided upon. In the case of Brown, her Honour found that the actions of the officers limited the plaintiffs’ rights under the Charter, specifically the protection from being treated or punished in a cruel, inhuman or degrading way, the right to freedom of movement, and the right to peaceful assembly.[33] The plaintiffs sought declarations against Bolzonello, Guthrie and other officers to the effect that police officers failed to give proper consideration to the human rights of protesters when making decisions in relation to planning, arrests and the deployment of OC foam.[34]
These declarations are prima facie available under s39(1) of the Charter. However, in this case, the declarations sought were against individual officers, whereas the defendant was the State of Victoria by operation of ss 72 and 74 of the Victoria Police Act 2013 (Vic) (VPA). These sections provide that a police tort claim must be made against the State, unless the State pleads that the tortfeasor’s conduct amounts to serious and wilful misconduct.[35] Section 72 of the VPA defines a police tort as “a tort committed by a police officer or protective services officer in the performance or purported performance of the officer’s duties”. This State did not seek to invoke the “serious and wilful” misconduct defence in this proceeding and so the officers were not parties to the proceeding. As such, the State submitted that declarations could only be made against the defendant, but that the State was not a public authority within the meaning of s38 and was therefore not bound by any obligations under the Charter.[36]
Justice Harris observed that to make a declaration against any individual police officer would necessarily involve making a finding that they had committed a tort, which was precluded by s75(1) of the VPA.[37] Her Honour also noted that to make a declaration against an individual not party to the proceeding would be to deny that person procedural fairness.[38] Her Honour ultimately accepted that Parliament plainly intended for the VPA to limit the ability to bring tort claims against individual officers in order to protect them from personal liability and the stress of litigation arising out of the performance of their duties. Her Honour therefore found that it is not implausible for the Charter to be limited in a similar manner.[39]
As such, although the Court made findings of fact that the officers had breached the plaintiff’s human rights under the Charter, the Court declined to make any declarations against the individual police officers. The findings of fact were perhaps cold comfort to the plaintiffs, and to others more broadly who may seek to rely on the Charter as a mechanism of enforcing their human rights.
On one view, the decision in Brown could be said to create a legal discrepancy whereby the Charter cannot be directly enforced against police officers. Police officers have significant powers to lawfully infringe upon the human rights of individuals in our community. If the Charter cannot be used to impugn their behaviour when they act unlawfully and inconsistently with those human rights, then the Charter arguably becomes little more than a toothless tiger. There is little doubt that parliamentary reform is required to address these situations and ensure that courts have sufficient power under the Charter to at least make declarations against police officers concerning violations of human rights.
Damages and compensation
Having found that the officers acted unlawfully, the Court was then required to assess and award damages to Mr Brown. Her Honour gave a relatively modest award for general damages in the sum of $40,000 due to the limited nature of the plaintiff’s injuries and the lack of impact on his capacity to volunteer at other protests.[40] The Court also found that the tortious conduct involved a “reprehensible disregard for the plaintiff’s rights” and he was awarded a further $10,000 for aggravated damages. The plaintiff had also claimed exemplary damages on the basis of the egregiousness of the conduct, the comments made by Bolzonello in the informal debrief, and the lack of aftercare provided.[41] Surprisingly, however, her Honour found that none of these factors rose to the level at which an award of exemplary damages would be warranted.[42]
Entitlement to damages for non-economic loss – Significant injury certificate
The Brown decision also examined whether the plaintiff was required to have a “significant injury” certificate under the Wrongs Act 1958 (Vic) to claim damages for non-economic loss. Section 28LE of the Wrongs Act prevents a plaintiff from recovering damages for non-economic loss (that is, pain and suffering damages) unless they have suffered a “significant injury”. In this case, the plaintiff did not satisfy the significant injury threshold and was therefore required to demonstrate that pt VBA of the Wrongs Act did not apply to his claim.[43] As such, the plaintiff needed to prove that this was a claim where the fault concerned was, or related to, an intentional act done with the intent to cause injury.[44]
Her Honour’s analysis focused on whether the deployment of OC foam was done with the intent to cause injury, and whether the transient effects of OC foam amount to an “injury”. Importantly, the Court did not accept that “injury” as defined in the Wrongs Act should be construed as requiring something greater than a temporary injury, as had been argued by the State.[45] Therefore, the severe eye pain and burning of the skin which resulted from the OC foam amounted to an “injury” as required by the Wrongs Act.[46]
The State also argued that Guthrie and Bolzonello’s deployments of OC foam were not done with the relevant intention required under the Wrongs Act and that the officers’ intent was to move or gain the compliance of the crowd.[47] Her Honour found that while the overall purpose of the officers’ deployment of OC foam may have been to change the behaviour of the protesters or gain compliance, the officers knew that this change could be effected due to the physiological effects of OC foam.[48]
In relation to the arguments of the State, her Honour noted the powerful effect of the OC weaponry:
“I also observe that referring to deployment of OC foam as being to achieve a ‘change of shape, change of behaviour’ is an unhelpful euphemism. It obscures the fact that deployment of OC foam is deployment of a weapon with injurious and potentially harmful and serious effects.”
Accordingly, the Court found that the officers had the requisite intention to injure the plaintiff and, as such, pt VBA of the Wrongs Act did not apply to his claim. This finding is significant for protestors in Victoria. If the Court had found that protestors were required to have a significant injury certificate to claim pain and suffering damages for being sprayed with OC weaponry, this plausibly could have had a chilling effect on civil litigation against police. The logical consequence of this would have been to embolden police in their use of OC weaponry and other chemical munitions, given the reduced risk of civil litigation and against the backdrop of broader deficiencies in Victoria’s police accountability regime.[49]
Is it a win for protesters?
At a minimum, the Brown ruling is a win for protesters in the sense that it avoids a scenario which would have left police powers, with respect to the use of chemical weaponry, largely unchecked. The ruling instead reaffirms the legal parameters for police officers when using OC weaponry, particularly in the context of a protest involving a large crowd. Her Honour accepted that the use of OC foam constitutes the use of a weapon and a deployment of force with serious and debilitating physical and psychological effects.
This decision makes clear that the use of OC weaponry must only be for lawful purposes such as to effect an arrest or in lawful self-defence. It is not sufficient that it is used to effect some intermediate step towards that objective (such as clearing space). In this way, the decision should be seen as a win for those wishing to exercise their protest rights without fear of arbitrary interference from chemical munitions. The Court’s decision is an important step forward in recognising the limits on police power when engaging with people exercising their democratic rights to free speech and protest. However, the Court’s decision not to make declarations against individual officers falls short of providing comprehensive protection and enforcement of the human rights of protesters. Addressing these gaps will likely require legislative change.
Jeremy King is a Principal Lawyer and head of the Police and Prisons team at Robinson Gill. He has undertaken extensive litigation and advocacy work in the police accountability space. He is also an LIV Accredited Specialist in Personal Injury and has a Master of International Human Rights and Criminal Justice from Utrecht University. He has played a key role in shaping legislative reform.
William Bonney is a junior lawyer in the Police and Prison team at Robinson Gill with two years’ experience assisting the team as a law clerk prior to his admission. He previously volunteered in community legal centres assisting vulnerable members of the community, including refugees and people seeking asylum.
1 [2025] VSC 765 (Brown v State of Victoria (No 3).
2 Ibid [5].
3 189 CLR 579, 594.
4 [2007] NSWSC 1015; 175 A Crim R 226, [3].
5 Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 15–16.
6 Ibid, s4(d).
7 Ibid, s38(1).
8 Crimes Act 1958 (Vic), s462A.
9 Ibid.
10 Brown, above note 1, [166].
11 For example, Smit v State of Victoria [2024] VCC 1411, a false imprisonment claim.
12 Melbourne Activist Legal Support, The Policing of the DLF Protests (January 2025, Legal Observer Team Report).
13 Extract of Victoria Police Manual, “Operational Safety Equipment”, [5.3].
14 Brown, above note 1, [152]–[153].
15 Ibid [156]–[157].
16 Ibid [216], [219].
17 Ibid [231].
18 Ibid [239].
19 Ibid [240], [334].
20 Ibid [242].
21 Ibid [247].
22 Ibid [263]–[264].
23 Ibid [284].
24 Ibid [337].
25 Ibid [341].
26 Ibid [11].
27 Ibid [303]–[304].
28 Ibid [305]–[306].
29 Ibid [320].
30 Ibid [353].
31 Ibid [359]–[360].
32 Ibid [366].
33 Ibid [498], [513] and [520].
34 Ibid [9].
35 Victoria Police Act 2013 (Vic), ss 74–75.
36 Brown, above note 1, [447].
37 Ibid [469].
38 Ibid [477].
39 Ibid [479].
40 Ibid [606].
41 Ibid [621]–[624].
42 Ibid [625].
43 Ibid [567].
44 Wrongs Act 1958 (Vic), s28LC(2)(a).
45 Brown, above note 1, [580].
46 Ibid [586].
47 Ibid [589].
48 Ibid [595]–[597].
49 Integrity and Oversight Committee, Parliament of Victoria, Inquiry into the adequacy of the legislative framework for the Independent Broad-Based Anti-Corruption Commission (Final Report, December 2025) 95–99.