A legal challenge to Victoria Police's decision to declare the entire Melbourne CBD a "designated area" — granting officers expanded warrantless stop-and-search powers — will proceed, despite police revoking the declaration four months ahead of schedule.
Victoria Police made the six-month declaration in late November, a move which drew strong criticism from legal and Indigenous organisations, many of which raised concerns about alleged racial profiling by the force.
Last week, police revoked the declaration without providing a reason, just days before the Federal Court was due to begin hearing a challenge brought by Gunditjmara, Yorta Yorta, Bindal and Meriam community organiser Tarneen Onus Browne and activist Benny Zable.
The applicants argue the designation raised serious concerns about "basic human rights and safety" in Melbourne and breached the Victorian Charter of Human Rights and Responsibilities, including the rights to peaceful assembly, privacy, freedom of expression, and protection from arbitrary arrest and detention.
On Monday, Elizabeth Bennett ruled the challenge could continue, after the applicants pointed to a Victoria Police statement indicating the force was considering a new designation. The matter will be heard in the Federal Court on Thursday and Friday.
Onus Browne, who regularly helps coordinate the annual Naarm protest on January 26, said they welcomed the early end to the declaration.
Nonetheless, they said the legal challenge needed to continue so people can protest peacefully at the Invasion Day rallies without being subjected to warrantless searches, noting the police powers would not only affect First Peoples, but anyone entering the CBD.
"This is about all of our basic human rights and safety in our city," Onus Browne said.
The Human Rights Law Centre, which is representing the applicants, said the challenge was about resisting the expansion of police powers.
"This case is about pushing back against ever-expanding police powers in Victoria, which make all of us less safe in our own city," the Centre's legal director, Sarah Schwartz, said.
"Giving police free rein to exercise search and unmasking powers in designated areas achieves nothing and represents a severe encroachment on our fundamental rights and freedoms."
Court documents filed by lawyers for Victoria Police urged the court to reject arguments challenging both the lawfulness of the declaration and the constitutional validity of a section of the Control of Weapons Act 1990.
They argue the "designated area" declaration does not burden political communication, nor prevent a person from engaging in political communication.
Last week, a Victoria Police spokesperson said the force continues to use "weapons search declarations to keep the public safe, with several made in just the last few weeks".
"We also maintain a highly visible police presence in Melbourne's CBD through targeted and regular operations," the spokesperson added.
Under the legislation, it is an offence to prevent or resist police conducting a "pat down" search, electromagnetic wanding, or the removal of items of outer clothing, including headwear, scarves or jackets.
Police may also require a person to remove a face covering if they reasonably believe it is worn primarily to conceal identity or "protect from the effects of crowd-controlling substances", and can direct people to leave a designated area.
Onus Browne said warrantless search powers should not be available to police, arguing they deter free expression and assembly through fear.
"We know they target First Nations communities, and deter First Nations people and allies from showing up and exercising their right to protest and gather for First Nations justice," they said.
"For me, human rights are the tools we use to fight for the basic rights and freedoms that belong to every person in the world, from birth until death. They're how we insist that every person — no matter your background, whether you've been here for five years, five generations or 5,000 generations we all deserve safety and respect."
Last year, National Indigenous Times reported data showing Aboriginal people are 15 times more likely to be searched by Victoria Police than Caucasian people.
Despite racial profiling being banned in 2015, Freedom of Information data showed Victoria Police were also 10 times more likely to use force against a person they perceived as Aboriginal than someone they perceived as White in 2024, and 10.6 times more likely to use force against an Aboriginal woman than a White woman.
A Victoria Police spokesperson told this publication at the time the force "has zero tolerance towards racial profiling".
"Our officers are well trained to police in response to a person's behaviour, not their background," they said.
"If you aren't carrying a weapon, you don't have anything to worry about."
