Conspiracism

'Conspiracy theory, anti-globalism, and the Freedom Convoy: The Great Reset and conspiracist delegitimation' byr Corey Robinson and Scott D. Watson in (2025) Review of International Studies comments

In this article, we analyse how anti-globalist conspiracy theories were mobilised online to delegitimise national authorities and policies designed to curb the Covid-19 pandemic in Canada. These conspiracy theories attacked the political authority underpinning public health measures and targeted purportedly ‘liberal’ policies and ‘globalist’ actors. Our case study examines the Freedom Convoy, a series of protests against Covid-19 vaccine mandates that began in Canada but inspired global demonstrations. The Freedom Convoy fostered and relied upon anti-globalist conspiracy theories, including the ‘Great Reset’ and ‘Great Replacement’, both of which posit a global conspiracy to erode national sovereignty and impose a ‘liberal’ international order. We investigate far-right social media commentary from 4chan’s Politically Incorrect imageboard /pol/, Infowars, and Rebel News, showing how conspiratorial claims were marshalled in alt-tech spaces. These narratives were used to delegitimise public health measures to combat Covid-19 and the Liberal Trudeau government by linking them to various ‘globalist’ forces. In exploring three mechanisms of delegitimation – externalisation, personification, and Othering – we argue that far-right movements like the Freedom Convoy, motivated by anti-globalist conspiracism, mobilise the international realm by leveraging the legitimacy gap of international organisations and agendas to undermine the political authority of actors at the national level. 

 

The Freedom Convoy (FC) began in January 2022 as a series of protests, blockades, and online campaigns opposing Covid-19 vaccine mandates for commercial truckers crossing the Canada–US border. The protests quickly evolved into a broader movement, both within Canada and internationally, against ‘globalism’ and various issues associated with liberal global governance. These issues ranged from vaccine mandates to intentional depopulation and world government. The FC, which united a loose coalition of far-right groups alongside vaccine sceptics, organised via social media and travelled across Canada to gather in Ottawa and at key border points. The movement mobilised far-right anti-globalist conspiracy theories to articulate its opposition to a range of measures associated with the World Economic Forum (WEF) and the ‘Great Reset’. 

 

Using semi-trailer trucks, protestors established an encampment and demanded the repeal of public health measures and the dissolution of the Trudeau government. Sustained by the deafening chorus of honking from 400 to 500 semi-trailer trucks and supported by approximately $24 million CAD in online donations – 56 per cent of which came from the United States – the protests grew to an estimated 10,000 people in Ottawa’s downtown core, paralysing city services for over three weeks. The Ottawa protest sparked demonstrations at provincial capitals and blockades at numerous Canada–US border crossings. It obstructed at least 19 ports of entry, resulting in $3.9 billion CAD in lost trade activity. At the Coutts Port of Entry, along the Alberta border, police uncovered a cache of guns, ammunition, a pipe bomb, and body armour. Four protestors, some with alleged ties to Diagolon – a far-right accelerationist group – were charged with conspiracy to murder RCMP officers. 

 

Driven by anti-globalist conspiracies and extremist rhetoric, the FC and the Canadian government’s invocation of the Emergencies Act to end the protest garnered significant international attention, leading to smaller but notable copycat demonstrations worldwide. Countries such as Austria, Bolivia, Israel, France, the Netherlands, Belgium, the United States, Australia, and New Zealand saw groups rally against what they perceived as the authoritarianism of public health orders, framing the situation as a populist battle for ‘freedom’ against alleged government overreach and a ‘globalist’ agenda. In Wellington and Helsinki, vehicles blocked roads around Parliament, while Paris and Brussels took steps to prohibit anti-vaccine protests inspired by the FC. French police arrested dozens of individuals and intercepted vehicles heading to Brussels. In the United States, former president Donald Trump criticised Prime Minister Trudeau as a ‘far-left lunatic’ who ‘destroyed Canada with insane COVID mandates’. Senator Ted Cruz visited the ‘People’s Convoy’ in Washington, DC, to show his support, while Florida Governor Ron DeSantis vowed to investigate GoFundMe after the crowdfunding platform suspended fundraising for the protestors. Pierre Poilievre, leader of the Conservative Party and the official opposition in Canada, enthusiastically supported the FC as a popular campaign against Trudeau and the ‘gatekeeping elite’.  In his campaign to become the next prime minister, Poilievre continues to engage with many of the groups that participated in the Convoy and to weaponise conspiracy theories that found a discursive vehicle in the protests, such as the Great Reset. 

 

Focusing on the conspiracy theories surrounding the FC that circulated online, this article explores the question: how does anti-globalist conspiracism function in the delegitimation of political authority? Contextualising these transnational protests within broader scholarly debates about the global far right and populist internationalism, this article examines how far-right populists and movements have increasingly mobilised conspiracy theories to undermine national governments and ‘elites’ associated with ‘globalist’ institutions and agendas. 

 

Our analysis illustrates that the anti-globalist conspiracism surrounding the FC functioned discursively to delegitimise the political authority of the Canadian government (and public health measures like vaccine mandates) by associating them with international institutions and ‘globalist’ agendas held responsible for the pandemic response. As we show in the following sections, conspiracist delegitimation employs three primary mechanisms: externalisation, personification, and Othering. 

 

First, externalisation involves projecting problems of national politics onto the international level and attributing their causes to foreign actors, institutions, and agendas, to the exclusion of internal/domestic processes, policies, and complex, multilevel governance structures. This process redirects concerns about domestic issues onto representative figures of the global elite, delegitimising national actors (such as Prime Minister Justin Trudeau), international institutions (like the WEF), and agendas (such as the Great Reset). Of course, this is not unique to anti-globalism; identifying foreign, international actors as the driving force in history is a fundamental feature of conspiracy theories. External figures such as Klaus Schwab, George Soros, and Bill Gates were prominent in the Convoy discourse, as was the general term ‘globalists’. Externalisation functioned discursively by linking public health measures and post-Covid recovery policies to international organisations such as the WEF, the World Health Organization (WHO), and the United Nations (UN). At the same time, externalisation obscured key factors that shaped the response, such as the division of federal and provincial powers, and the rejection of legitimate democratic processes and actors, which were discredited through their association with the legitimacy deficit of international institutions. Externalisation thus served to delegitimise democratic norms and procedures by mobilising the international and the legitimacy deficit of international institutions and agendas. 

 

Second, personification entails reducing various processes and structures to the actions of single individuals or groups – what Popper referred to as ‘psychologism’ in his early critique of conspiracism – a phenomenon also captured by terms such as ‘hyperagency’. Personification assumes that individuals hold near-total control over outcomes and that outcomes are always intended. Consequently, it attributes both unintentional effects and negative outcomes of impersonal and abstract structures to the intentional conspiratorial design of powerful individuals or groups, such as Schwab, Soros, or Gates. Domestically, Trudeau personified the Covid public health measures associated with ‘globalism’, while externally, Klaus Schwab of the WEF was considered responsible for the ‘Great Reset’. The focus on Trudeau, along with his association with Schwab, obscured the mistakes and unintended outcomes that contributed to the pandemic and simplified complex global processes into a narrative of intentional design by individuals. These processes, and the complex governance of public health, border controls, international trade, and supply chains in Canada, were reduced to the intentions of specific elites. By focusing on Trudeau and associating him with Schwab and the WEF’s Great Reset, anti-globalist conspiracism offered a simplistic diagnosis of the pandemic that challenged the legitimacy of the Canadian government and public health measures by discursively linking the prime minister to elitist, illegitimate, and undemocratic forces of ‘globalism’. 

 

Finally, Othering draws on racist, civilisational, and gendered discourses to identify those allegedly engaging in or facilitating conspiratorial behaviour intended to alter social norms and practices against the values and interests of the national community. Certain groups are consistently Othered in anti-globalist conspiracism, including Jews, homosexuals, and communists, either explicitly or through the use of coded language like ‘globalists’. As we explore in subsequent sections, the FC online narratives focused their discursive energy on these ‘Others’, with communists (Trudeau and Castro), women and homosexuals (globohomo), and Jews (George Soros) all featured in the discourse about the FC. 

 

Through an analysis of the anti-globalist conspiracy theories that discursively fuelled the FC, this article makes a twofold contribution to International Relations (IR). First, it adds to the emerging body of research situated at the intersection of IR, the global far right, and conspiracy theories by extending the study of anti-globalist conspiracism beyond the realms of populist foreign policy and far-right ideology to focus on alt-tech spaces, which are becoming increasingly influential in these movements. Second, this article advances the study of populist internationalism by highlighting the role of anti-globalist conspiracism in the FC’s resistance to the perceived forces of globalism, and by analysing the mechanisms of delegitimation directed towards national authorities, who were cast as front organisations for global elites. 

 

Before analysing the process of conspiracist delegitimation in the alt-tech space, the following section reviews the multidisciplinary literature on conspiracy theory. While existing scholarship identifies individual and cultural responses to globalisation, it has not sufficiently addressed the national and international political dynamics at the root of anti-globalist conspiracism. Subsequently, we examine the emerging scholarship on conspiracy theory in IR. We then turn quickly to the literature on the global far right, which has drawn attention to the internationalisation of the far right but has largely neglected anti-globalist conspiracism. Finally, before the empirical analysis, we outline our methodological approach.

Police Duty Of Care

The headnote for State of New South Wales v Cullen [2024] NSWCA 310 states 

The respondent, Ms Cullen, was a bystander at an “Invasion Day” rally held in Sydney on 26 January 2017. As the rally progressed up Broadway toward Victoria Park and stopped at Buckland Street, a Mr Dunn-Velasco addressed the crowd and appeared to prepare to set fire to an Australian flag. In response, police officers from the Operational Services Group (“OSG officers”) pushed through the crowd in order to extinguish any fire. Another police officer, LSC Lowe, was videoing what occurred from a short distance away. A rallygoer next to her, Hayden Williams, struck her arm and knocked the camera to the ground. Another officer, LSC Livermore, witnessed this assault. He moved towards Williams to effect an arrest and Williams moved away. They both eventually fell down, knocking over the respondent as they did so. The respondent fell heavily and was injured. 

The respondent brought proceedings in the Supreme Court against the appellant, the State of New South Wales, claiming that her injuries were caused by the negligence of the OSG officers and of Livermore, and further alleging that Livermore had committed the torts of assault and battery. The primary judge held in favour of the respondent on the basis of negligence as regards both the OSG officers and Livermore and awarded damages. His Honour rejected the claim in battery. 

The State appealed. In response Ms Cullen filed a notice of contention. Together they raised five issues:

(1) Whether s 43A of the Civil Liability Act 2002 (NSW) applied with respect to the acts of the OSG officers or Livermore; 

(2) Whether the OSG officers owed the respondent a duty of care and, if so, whether it was breached; 

(3) Whether Livermore owed the respondent a duty of care and, if so, whether it was breached; 

(4) If a duty was owed and breached by the OSG officers, whether their actions were legally causative of Ms Cullen’s injuries; and 

(5) Whether Ms Cullen’s claim in battery should be upheld on the ground that Livermore’s arrest of Williams was not “utterly without fault”. 

The Court (per Gleeson and Kirk JJA, White JA disagreeing on the second and fourth issues and dissenting) allowed the appeal, holding: 

As to s 43A of the Civil Liability Act: 

Per Gleeson and Kirk JJA: Section 43A articulates two connecting notions between the claim made and the exercise of, or failure to exercise, a special statutory power. One requires the liability in question to be “based on” the exercise of such a power, the other refers to acts or omissions “involving” an exercise/non-exercise of it: [38]. The former can be understood as requiring that the acts or omissions said to found the civil liability in question were ones which involved, in a significant way, the exercise of a special statutory power. So understood, the two connecting notions coalesce: [39]. ... 

2. With respect to the OSG officers, per Gleeson and Kirk JJA: It is not necessary to resolve whether their impugned acts, being them rushing into the crowd and using one or more fire extinguishers on the flag, can be characterised as use of force as authorised by s 230 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) in exercise of a common law power to respond to an apprehended breach of the peace. Even so characterised, invocation of s 230 is not to the point as what was impugned about the actions of the OSG officers was not any use of force: [42]-[43]. Nor were the officers exercising a power to enforce the conditions of the authorisation of the march. An assembly which is not an “authorised public assembly” under Pt 4 of the Summary Offences Act 1988 (NSW) is not by that reason alone an “unlawful assembly” for the purposes of s 545C of the Crimes Act 1900 (NSW): [44]. In any case anyone can do the actions here impugned without specific statutory authority. Section 43A thus did not apply, and the primary judge erred in finding to the contrary: [46]. ... 

Per White JA: The OSG officers were exercising a statutory power to prevent a breach of the peace, but it was not a special statutory power as a member of the public has the same right to intervene to prevent a breach of the peace: [218]-[219]. ... 

With respect to the actions of Livermore, per Gleeson and Kirk JJA: Livermore’s forceful arrest of Williams, subject to consideration of common law powers of arrest, was in exercise of a power that generally requires specific statutory authority: [48]. Williams was not arrested because of any apprehension or actual breach of the peace, but because of the criminal assault of Lowe that had just occurred: [50]. The offence of assaulting a police officer while in the execution of the officer’s duty, without causing actual bodily harm, is a “serious indictable offence” under the Crimes Act and can be characterised as a felony, for which an ordinary member of the public is authorised to arrest Williams under the common law. Section 43A therefore did not apply: [53]. ... 

Per White JA: Williams’ assault on Lowe was unquestionably a breach of the peace and a member of the public would have had the power to use reasonable force to arrest Williams: [219], [221]. 

As to duty and breach with respect to the OSG officers: 

Per Gleeson and Kirk JJA: The primary judge erred in identifying the relevant risk of harm in regard to the conduct of the OSG officers in the way he did. As to the scope of a duty of care, the issues of to whom was it owed and what risk of harm needs reasonable steps taken to avoid are linked: [68]. The duty of care owed by the OSG officers should be stated as a duty to take reasonable care to avoid the risk of the OSG officers’ actions inflicting physical injury on persons in the immediate vicinity of an operational response during the protest march: [72], [79]. ... 

As to breach, the primary judge failed to have regard to the obligations of OSG officers to take action to prevent breaches of the peace, even in crowded situations: [81]. The precautions which his Honour suggested the OSG officers should have taken were impractical and ignored the conflicting obligations of the OSG officers to prevent breaches of the peace even in crowded situations: [82]. His Honour failed to consider various concessions concerning the OSG officers’ conduct which Mr Halpin, a witness of the respondent, made in cross-examination: [85]. The finding of breach of duty by the OSG officers must be set aside, and that is so even if the risk of harm was as articulated by either the primary judge or the respondent: [88]. 

Per White JA, dissenting: Whilst the OSG officers were exercising a statutory power to keep the peace, this does not negate the existence of a duty of care. The fact that the officers were exercising statutory power does not mean that a common law duty of care only arises if the statute affirmatively indicates an intention that such a duty exists: [177]-[180]. Bystanders at the rally were vulnerable to the risk of injury if the police provoked violence. As the OSG officers had caused the mêlée that led to the respondent’s injury, they had used their powers to intervene in a field of activity that increased the risk of harm to bystanders: [182]. No authorities cited by the appellant suggested that a duty of care would be negated on the facts of this case: [183]-[197]. The OSG officers’ duty to prevent a breach of the peace and a duty to take reasonable care for the safety of bystanders who might be affected by a breach of the peace were congruent: [199]. ... 

The actions of the OSG officers were calculated to inflame the situation and create a mêlée as happened. They therefore breached their duty of care to the bystanders: [226]. 

As to duty and breach with respect to Livermore: 

Per Gleeson and Kirk JJA: It is sufficient for the purposes of this appeal to accept (without deciding) that Livermore owed a duty to take reasonable care to avoid the risk of inflicting physical injury on persons in the immediate vicinity of the arrest of another person: [91]. 

Per White JA, Gleeson and Kirk JJA agreeing as to the finding of no breach: Whilst Livermore did not owe a duty of care to Williams, he did owe a duty of care to bystanders: [201], [212]. The evaluation of police conduct in effecting an arrest must be conducted by reference to the pressure of events and the agony of the moment, rather than hindsight. As Williams would have escaped had an arrest not been effected, and it was not reasonable to simply ask the rallygoer to halt, it was reasonable to effect the arrest by tackling the rallygoer. Livermore therefore did not breach the duty of care owed: [209]-[212], [230]. ... 

As to causation: 

Per Gleeson and Kirk JJA: Section 5D(1)(b) of the Civil Liability Act provides that a determination that negligence caused particular harm requires not only that factual causation is made out but that it falls within the legal scope of liability. That is a legal, normative question: [94]. A decision by a person who was outside the relevant crowd to commit a criminal assault in order to impede the gathering of evidence of possible offences was not the “very kind of thing” likely to be sparked by the officers’ actions: [103]. Williams’ actions (leading to the respondent’s injury) cannot be characterised as occurring in the ordinary course of things which might flow from the actions of the OSG officers, taking account of the independent, free, deliberate choice made by Williams at a place materially distant from the melee catalysed by the action of the officers: [105]. The issue is one of fact and degree in all the circumstances: [95], [105] and [108]. It was the distinct, significant criminal action of Williams that led to Livermore undertaking the arrest. And it was the difficulty of effecting that lawful arrest which led to the respondent being injured. For legal purposes the chain of causation from their actions to her injuries was broken: [109]. ... 

Per White JA, dissenting: The police foresaw the risk that sudden and unexpected movements of participants in the rally arising from police intervention could result in officers being assaulted or hindered, and such a situation could clearly also result in injury to participants in the rally: [242]-[243]. It is enough that the incident leading to Ms Cullen’s injury was of a kind or class which might normally be foreseen or contemplated. The voluntary and unlawful actions of Williams and the resulting forceful arrest were a natural, probable and reasonably foreseeable consequence of the OSG officers’ actions. The chain of causation was therefore not broken by the unlawful actions of Williams, and the negligence of the OSG officers was causative of the respondent’s injuries: [245]-[247]. 

As to battery: 

The State could avoid liability for battery if Livermore acted without negligence, in the sense of being “utterly without fault”, in colliding with the respondent: [112] (per Gleeson and Kirk JJA), [237] (per White JA). Brereton JA in State of New South Wales v Ouhammi (2019) 101 NSWLR 160; [2019] NSWCA 225 stated the relevant standard as requiring that the defendant show that it could not possibly have prevented the impact by exercise of ordinary care and caution. Basten JA and Simpson AJA adopted a less demanding standard. If that lower standard was applied here then the claim in battery would fail on the basis that Livermore’s conduct did not breach any duty of care: [112]-[113] (per Gleeson and Kirk JJA). Assuming (without deciding) that the more demanding standard applied, where Livermore was not conscious of the presence of the respondent, was seeking to get away from members of the crowd who were seeking to assist Williams escape whilst effecting the lawful arrest of Williams, and all of this happened in the course of a few seconds, he could not possibly have prevented the impact with the respondent by the exercise of ordinary care and caution. His actions were utterly without fault. The respondent’s claim in battery is not made out: [115]-[116] (per Gleeson and Kirk JJA), [237] (per White JA).

Protests

The recommendations in the Hodgkinson External Review Report for the University of Sydney Senate, commissioned after protests mid-year, are as follows. The University has resolved to accept the recommendationsin principle. 

• The prohibition on encampments as a form of protest on any University campus should be maintained as part of the current review of the Campus Access Policy. 
• The prohibition against any form of protest within a building on the University campus, and the impeding of access to and exit from any building by protest, be maintained following the review of the Campus Access Policy. 
• The University prohibit any student from addressing those present in a lecture, seminar or tutorial prior to the commencement of the lecture, seminar or tutorial on any subject matter. A breach of the prohibition may be considered misconduct. 
• The University should hold Organisations responsible if posters identifying them or an event which they are involved in are put up on campus in breach of the Advertising on Campus Policy. 
• That the University develop a range of sanctions including the withholding of funding to an Organisation which can be imposed on an Organisation found to be in breach of University policy. 
• Where an Organisation is repeatedly acting in breach of University policy, consideration should be given to precluding its office and position holders (or some of them) from being eligible to hold an office in that or any other Organisation receiving University funding. 
• The University should continue to support its review of its complaints procedures with a view to a complete overhaul and simplifying every aspect of it. The review of its complaints procedures should consider establishing a single central office to receive and process all complaints. 
• The University should strengthen existing mechanisms for alternative dispute resolution processes, such as mediation, as part of its review of the complaints procedures. Complainants should be advised, where appropriate, that alternative dispute resolution is an option available to them. 
• The University should publish a regular report to the Senate containing the number of complaints received, the nature of the complaints, the number of complaints resolved since the last report and the timeframe for the resolution of outstanding complaints. The information contained in the report should be presented in such a way that it does not identify the individuals mentioned in the complaints. 
• The University should publish a public report that identifies the range of penalties imposed in matters where a breach of University policy has been substantiated. 
• The University should amend its policies and procedures to make clear that each person utilising a word or phrase is responsible at the time the word or phrase is used to identify to the audience the context in which it is used. (New Civility Rule) 
• A failure to conduct a lecture, seminar, tutorial or a meeting which takes place within any of the University’s facilities in accordance with the New Civility Rule should be recognised as misconduct and treated accordingly. 
• The University’s policies be amended to make clear that Organisations are responsible for conducting all meetings held by them using University facilities in compliance with the Civility Principles. Where an Organisation breaches this requirement, it will be liable to sanction for breach of the University’s policy. 
• The University policies should be amended to require Organisations, when conducting a meeting using University facilities, to comply with the University’s Civility Principles. 
• In order to hold an office or position within an Organisation the persons holding that office or in that position must have completed the Engaging with Civility module. 
• Where an Organisation permits a person to hold an office or act in a position, and that person has not completed the Engaging with Civility module, both the Organisation and individual should be held accountable. Where a person holds an office or occupies a position without completing the Engaging with Civility module, the person's breach of the policy would amount to misconduct. 
• An Organisation should be held responsible for a breach of the policy where it permits a person who has not completed the Engaging with Civility module to hold an office or occupy a position and subject to sanction which could include the withdrawal of their funding in whole or in part. 
• The policy review presently being undertaken and the Policy Working Group should be supported with a view to achieving a review of all of the University’s policies and the simplification of them. 
• The University should approach both the NSW Police and the Federal Police with a view to entering into with them formal protocols which set out how they can assist the University if the need arises. 
• That attaching banners to the footbridges be prohibited.

Protests

'An experimental study of support for protest causes and tactics and the influence of conspiratorial beliefs' (AIC Trends & issues in crime and criminal justice No. 702, October 2024) by Anthony Morgan, Timothy Cubitt, Alexandra Voce and Isabella Voce comments 

We conducted a randomised survey experiment involving 13,301 online Australians. Respondents were asked about their support for environmental, anti-lockdown and sovereign citizen protests. They were randomly allocated to one of three groups presented with different protest tactics—peaceful marching, disrupting traffic and violent clashes with police. Respondents were significantly more likely to oppose violent or disruptive protests than peaceful protests, regardless of the issue or movement in question. The strongest opposition was to anti-lockdown and anti-vaccination protests, followed by protests relating to the sovereign citizen movement. Protests about environmental issues had the most support. 

The effect of conspiratorial beliefs on support for protests varied by protest cause. Belief in conspiracy theories increased support for protest violence, relative to other tactics. Support for certain protest causes and tactics is shaped by a person’s ideological beliefs. 

In the last few years protest activity has increased globally (van der Zwet et al. 2022). Australia has been no exception. Recent protest activity has advocated for a range of political and social causes, including support for increased action on climate change, opposition to public health measures introduced during the COVID-19 pandemic, women’s safety, Indigenous deaths in custody and other more extreme ideological movements. There were protests in response to lockdowns and social distancing measures from very early in the pandemic (McGowan 2020), including the emergence of the freedom movement in late 2020 (ABC News 2020). There was further protest activity following the rollout of the national vaccination program in early to mid-2021 (Noble 2021). While many of these protests were peaceful, there were numerous examples of disruptive behaviour and clashes between protesters and police, resulting in large numbers of fines and arrests, as well as the hospitalisation of police officers (Seyfort & Zagon 2021). This included notable anti-vaccine mandate protests in Melbourne, which attracted widespread condemnation (Marin-Guzman 2021). 

As frustration with public health measures grew, antisocial behaviour and threats of violence towards political leaders escalated (Butler 2021). In early 2022, several thousand Australians travelled in a ‘Convoy to Canberra’ to protest against a range of grievances, organised using social media and supported through crowdfunding (Britton 2022). While fringe and conspiratorial views were apparent in some of the earliest protest activity, the convoy exemplified the central role that conspiratorial beliefs, the language of the sovereign citizen movement and other ideological motives had come to play in pandemic protest narratives (Khalil & Roose 2023; Roose 2022). 

While COVID-19 protests garnered significant attention, protest activity occurred in support of several other movements in this same period. It too involved a mix of tactics. Following intense bushfires in the 2019–20 summer, tens of thousands of people protested nationally in support of action on climate change and environmental policy (Regan & Yeung 2020). Conversely, in mid‑2022, Blockade Australia disrupted traffic heading into the centre of Sydney during peak hour, while concurrently protesting through Sydney’s central business district (Thompson 2022). Despite involving no more than 60 individuals, there was significant disruption to the community and a number of protesters were arrested (McGuire 2022). Two large, nationally coordinated protests were also noteworthy. Marches against Indigenous deaths in custody and systemic racism occurred in mid‑2020 (Henriques‑Gomes & Visontay 2020), while the ‘March 4 Justice’ took place in March 2021 in 40 cities in response to high-profile cases of sexual violence, with estimates of up to 110,000 attendees (Gorman 2021). These were peaceful protests that, unlike much of the pandemic-related protest activity, were planned in consultation with authorities and held in accordance with public health measures. 

In attempting to draw public attention to their social or political cause, protesters may use disruptive and at times aggressive tactics (Andrews & Caren 2010). Often this depends on the perceived legitimacy of the government of the day—protest violence is more likely when the government is perceived as coercive rather than legitimate (Sullivan 2018). Some protest groups can be unpredictable and volatile, attracting individuals with a greater propensity for violence (Maguire et al. 2016; Tyler et al. 2018). However, it is also clear that protest violence can be specific to the situation and is more likely to occur when the action is disorganised or spontaneous (Gustafson 2020; Ives & Lewis 2020), when there are counter-protesters present (Australian Security Intelligence Organisation 2020), and during periods of heightened emotion and tension following some sort of triggering event (Nassauer 2016). The use of more assertive policing measures can lead protesters to escalate to violence in competition with police tactics (della Porta 2014). But this is not always straightforward. What constitutes lawful or violent protest can vary between places and also over time, particularly in political and legal environments where tolerance for public protest may be lowered. This has implications for law enforcement, whose role it is to maintain civil order and enforce protest laws, and can shape how they respond but also how that response may be perceived. 

The majority of Australians support the right to protest (Amnesty International 2022). However, public support for activism may be influenced by the tactics used by protesters, even among individuals who are personally aligned with the social or political cause (Feinberg, Willer & Kovacheff 2020; Muñoz & Anduiza 2019; Simpson, Willer & Feinberg 2018). Of course, what constitutes violent action is subjective, and can depend on the political beliefs of the individual (Hsiao and Radnitz 2020). Even so, the negative effects of violent protest have been shown in survey experiments (Simpson, Willer & Feinberg 2018) and in studies of real-world protest violence (Huet-Vaughn 2013; Muñoz & Anduiza 2019). Further, regardless of an individual’s core ideology, violent protest action can reduce support for the cause overall, and diminish identification with a movement, with observers reporting the action to be immoral (Feinberg, Willer & Kovacheff 2020). This can lead to fewer protesters being willing to engage in subsequent protest activity—although violence by the state can have the opposite effect (Steinert-Threlkeld, Joo & Chan 2022). 

Protest tactics can also be influenced by a group’s underlying ideology. The onset of the pandemic saw an increase in protests endorsing conspiratorial views (Khalil & Roose 2023), which have been associated with increased support for violence (Uscinski et al. 2022). Recent research has found that individuals who show greater commitment to conspiratorial beliefs are also more likely to endorse ideological violence (Vegetti & Littvay 2021). Further, these beliefs are associated with support for political violence, particularly where they co-occur with mental health issues (Baum et al. 2023). It is not clear how these findings apply to the Australian context, particularly as it relates to contemporary protest movements and the recent growth of certain ideological movements and conspiratorial beliefs. To measure differences in support for different protest causes and tactics, we conducted a randomised survey experiment. We examined scenarios involving fringe movements, including sovereign citizen and anti-lockdown and anti-vaccination protests (Khalil & Roose 2023), and more widely-accepted mainstream movements, including action on climate change (Bradley et al. 2022). We also examined the extent to which support was influenced by belief in conspiracy theories. This research has implications for both protest organisers seeking to generate community support for their movement and authorities who are responsible for ensuring that protest activity is lawful and non-violent.

Disobedience

'From Labor Sit-Downs to Civil Rights Sit-Ins: A Genealogy of Liberal Civil Disobedience' by William E. Scheuerman in (2024) The Review of Politics 1 - 25 comments 

Addressing the twenty-fifth anniversary convention of the United Automobile Workers (UAW) on April 27, 1961, in Detroit, Dr. Martin Luther King drew a direct line from the militant auto worker sit-down strikes of the mid-1930s to the recent wave of civil rights sit-ins at southern lunch counters. King praised the young activists for their “nonviolent and courageous struggles” against racial segregation, underscoring the kinship between their efforts and those of automobile worker sit-downers at Flint, Michigan, and elsewhere. The UAW strikers had been forced to confront “recalcitrant antagonists,” many of “which said to you the same words we as Negroes now hear: ‘Never . . . You are not ready . . . You are really seeking to change our form of society . . . You are Reds . . . You are troublemakers . . . You are stirring up discontent and discord where none exists . . . You are interfering with our property rights . . . You are captives of sinister elements who exploit you.’”  King lauded the trade unionists for forging “new weapons” that had inspired the civil rights activists engaging in nonviolent direct action: “in part of your industry you creatively stood up for your rights by sitting down at your machines, just as our courageous students are sitting down at lunch counters across the South.” Despite detractors’ claims that the original sit-downers “were destroying property rights,” the automobile industry had remained “in the hands of its stockholders and the value of its shares has multiplied manifold, producing profits of awesome size.” Sit-inners now faced the same groundless accusation that they threatened property rights. Nonetheless, King concluded, “we are proudly borrowing your techniques, and though the same old and tired threats and charges have been dusted off for us, we doubt that we shall collectivize a single lunch counter or nationalize the consumption of sandwiches and coffee.” Just as labor sit-downs that rippled across the country in the 1930s had resulted in a “better life” for workers and, indeed, “the whole nation,” so too would the lunch counter sit-ins improve the situation of black Americans and the entire country. 3 Neither movement constituted a violent attack aimed at dismantling private property. Aware of the sit-inners’ debts to the 1930s sit-downs, King was reminding its overwhelmingly white, male delegates of their influence on a new generation of young black activists. Historians have corroborated King's attempt to draw links between the civil rights movement and organized labor, in part by acknowledging the role of unions such as the UAW in supporting—and sometimes bankrolling—their efforts. They have also observed that the 1930s sit-downs inspired midcentury political activists affiliated with the Fellowship of Reconciliation (FOR), Congress of Racial Equality (CORE), and related organizations, some of whose leading figures (e.g., James Famer, James Lawson) served as mentors to the young activists responsible for the wave of lunch counter sit-ins that swept the South in 1960. With the exception of Marc Stears, political theorists and historians of US political thought have neglected those links. Despite her impressive recent discussion, Erin Pineda ignores the origins not only of the sit-ins, but also of the liberal theories they inspired, in 1930s US labor struggles. To correct for this oversight, I argue that Rawlsian ideas of civil disobedience that emerged in the 1960s and early ’70s can only be properly interpreted with recourse to the complicated history of the early civil rights movement's appropriation of the labor sit-down strike. In the spirit of Pineda's call for scholars of civil disobedience to read “political theory texts in context,”  I reinterpret Rawls in the context of a messy but basically successful effort by civil rights activists, sympathizers, and especially the lawyers who defended sit-inners in the courts to circumvent the repressive, ultimately disastrous state and legal response that the 1930s sit-downers had garnered. 

 

Although the story is a complicated one, a key problem faced by the 1960 sit-inners was clear enough: in National Labor Relations Board v. Fansteel Metallurgical Corporation (1939), the US Supreme Court had neutered the sit-down strike which had been one of organized labor's most efficacious political tools during its 1930s New Deal–era resurgence.  In a controversial ruling, the Court majority reversed a National Labor Relations Board (NLRB) order requiring Fansteel, a Chicago-area steel firm, to rehire dismissed sit-down strikers. The justices characterized the sit-down against Fansteel as a violent, lawless seizure of property incongruent with the rule of law and property rights. Predictably, when civil rights activists subsequently borrowed from militant labor's toolkit, they faced hostile voices that reproduced this take on the sit-down. Even former president Truman, in April 1960 comments at Cornell University widely reported by the media, accused the young sit-inners of simply imitating the (supposedly) “Red” sit-downs of the 1930s. When arrested and charged, sit-in activists soon faced state and legal action that deployed Fansteel to discredit them: hostile voices followed the Court majority by characterizing the sit-ins as illegal and also disruptive, violent, and destructive of property. Activists and their lawyers—in particular, the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund (LDF)—successfully responded by highlighting not just the sit-in movement's principled commitment to nonviolence, but also its focus on basic civil and political rights. The sit-ins, they emphasized, entailed no principled challenge to private property. 

 

My retelling of the familiar story of the sit-ins refocuses attention on the nexus between the labor and civil rights movements and resituates influential 1960s debates about civil disobedience. I argue that the Rawlsian interpretation of civil disobedience implicitly followed vital strands of the strategy of delinking the lunch counter sit-ins from the workplace sit-downs. David Lyons repeats a commonplace criticism of Rawls's model of civil disobedience as offering a philosophical codification of a distorted, sanitized interpretation of the civil rights movement. One immediate result, as critics such as Robin Celikates argue, has been an influential yet overly restrictive notion of civil disobedience. Although this article ultimately endorses elements of these views, Rawls built on a significant, politically as well as legally savvy, discursive strategy that emerged within the early civil rights movement itself. The move to distinguish civil rights struggles from those relating to economic justice was not foisted upon activists by ivory tower racial liberals; rather, it was a key component of the movement's own strategy. Those critical of Rawls downplay that crucial part of the story because their contextualization of the 1960s sit-inners misses major pieces of the puzzle. 

 

I begin by briefly revisiting the 1930s sit-down strikes, their impact on midcentury antiracist activists, and the legacy of Fansteel (section 1), before turning to the 1960s sit-inners and the exacting political and legal challenges they faced (section 2). After examining how one of the sit-in movement's key institutional players, the NAACP LDF, responded to those challenges (section 3), I revisit the 1960s and early ’70s debate about civil disobedience. As I hope to show, the NAACP legal strategy is absolutely essential if we are to make sense of that debate. By focusing on Rawls's liberal account and Michael Walzer's astute critique (sections 4–5), I offer a reinterpretation of the debate that properly foregrounds the civil rights movement's complicated relationship to the 1930s sit-downs.

Nannas and Implied Freedom of Political Communication

In Kvelde v State of New South Wales [2023] NSWSC 1560 Walton J has found that the Roads and Crimes Legislation Amendment Act 2022 (NSW) impermissibly burdens the implied freedom of political communication, in this instance regarding protest activity by the 'Knitting Nannas'. 

The Court states 

(1) The Court declares that subsection 214A(1)(d) of the Crimes Act 1900 (NSW) is invalid because the provision impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution. 

(2) The Court declares that subsection 214A(1)(c) of the Crimes Act 1900 (NSW), to the extent that the paragraph makes it an offence for persons engaged in the conduct specified in the paragraph to cause part of the major facility to be closed, is invalid because the provision, to that extent, impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution. 

It notes

 On 30 March 2022, the Roads and Crimes Legislation Amendment Bill 2022 (NSW) was passed in the NSW Legislative Assembly. The Roads and Crimes Legislation Amendment Act 2022 (NSW) (“Amendment Act”) commenced at the beginning of 1 April 2022 less than 30 hours after the Bill was introduced for the first time in NSW Parliament. The Amendment Act inserted, inter alia, a new Part 4AF titled “Major Facilities”, which consisted of ss 214A and 214B, into the Crimes Act. Section 214A(1) provides as follows: 

214A Damage or disruption to major facility 

(1) A person must not enter, remain on or near, climb, jump from or otherwise trespass on or block entry to any part of a major facility if that conduct— (a) causes damage to the major facility, or (b) seriously disrupts or obstructs persons attempting to use the major facility, or (c) causes the major facility, or part of the major facility, to be closed, or (d) causes persons attempting to use the major facility to be redirected. 

Maximum penalty—200 penalty units or imprisonment for 2 years, or both. 

The Amendment Act amended Pt 9 Div 7 of the Roads Act, including by expanding its application to major bridges, tunnels, or roads. The Roads Amendment (Major Bridges and Tunnels) Regulation 2022 (NSW) amended cl 48A to its present form to include the classification of a main road, highway, freeway and tollway in Pt 5 Div 1 of the Roads Act. 

On 12 October 2022, Ms Helen Kvelde and Ms Dominque Jacobs (the plaintiffs), sought declarations that s 214A of the Crimes Act 1900 (NSW) (“Crimes Act”) (“the impugned law or provision”) and cl 48A(1) of the Roads Regulation 2018 (NSW) (“Roads Regulation”) are invalid. The State of New South Wales (the State) opposed the relief sought. 

The plaintiffs both had a history of engaging in protest actions as part of the Knitting Nannas group, including protesting on or near roads, train stations and ports about environmental and climate change issues. Unless constrained by the impugned provisions, the plaintiffs intend to engage in conduct which it proscribes. They have, therefore, an interest in knowing whether they are required to observe the law. The Court held that the plaintiffs do not merely have strong political beliefs but rather also have a real and special interest in the validity of the impugned provisions, which have affected and will continue to affect, their ability to communicate their political beliefs through protest actions. 

The principal issues for the Court were: 

1. Whether s 214A of the Crimes Act is invalid because it infringes upon the implied freedom of political communication (“the implied freedom”) and thus, is beyond the power of the Parliament of New South Wales; and 

2. Whether cl 48A(1) of the Roads Regulation is invalid because it is beyond the scope of the regulation-making power contained in the Roads Act 1993 (NSW) (“Roads Act”). 

The Court held: As to s 214A of the Crimes Act 

1. Subsection 214A(1)(c), so far as the provision concerns the closure of part of a major facility and subs 214A(1)(d) impermissibly infringe the implied freedom of political communication. 

2. Environmental protests do constitute political communication on which the efficacy of electoral accountability for the exercise of legislative and executive power within the constitutionally proscribed national system of representative and responsible government depends. The nature of the burden is demonstrated by the impugned provisions directly targeting protest activities and is not eliminated or reduced to the point of insignificance by subss 214A(4), (5) or (6). 

3. The relevant burden is the incremental effect of the impugned law on the ability of a person to engage in a communication which the law may already validly prohibit. The impugned provisions in this case were found to restrict the implied freedom beyond valid existing laws, thereby constituting an incremental burden on the ability of persons to engage in political communications, such as environmental issues, which are capable of having a bearing on electoral choice. 

4. The State contended the implied freedom in this matter was “slight” and “so slight as to be inconsequential.” The submission conveyed that in those circumstances the first question should be answered in the negative. Having regard to the relevant authorities that proposition needs to be approached with considerable caution. The correct assessment is whether the impugned law has a real effect on the burden. It is not appropriate to examine the degree of the restriction effected by the provision in considering the first question. It cannot be a quantitative assessment. Thus, the inquiry is as to the character of the burden and whether there is an effective burden in qualitative terms. 

5. Hence, subs 214A(1)(c) (as to partial closure of a major facility) and subs 214A(1)(d) effectively burden the implied freedom in their terms, operation, and effect and must be justified. 

6. The purpose of the impugned provisions is legitimate in its purpose. 

7. The impugned provisions are capable of preventing serious disruption or obstruction and therefore, the impugned provisions were found to have a rational connection to the purpose of deterring disruption and therefore suitable for the legitimate purpose. It is unclear on the authorities whether the test of capability might properly be conditioned by a requirement that there needs to exist a real, substantial, or direct connection to the purpose. However, the Court held that the test is no more demanding than that the law is simply capable of realising the purpose of the law. 

8. The impugned provisions have failed at the stage of ‘reasonable necessity’. The second alternative means (or a law of that kind) advanced by the plaintiffs may be reasonably expected to have imposed a significantly lesser burden upon the implied freedom and still achieved Parliament’s purpose to the same or a similar effect. 

9. The effect of the impugned provisions on the implied freedom significant outweighs benefit sought to be achieved by more effectively deterring any conduct that may disrupt major facilities themselves and hence, s 214A(1) is not adequate in its balance. 

As to cl 48A(1) of the Roads Regulation 

1. The challenge to the validity of the Regulation (cl 48A(1)(a) and (f) must fail. Clause 48A(1)(a) does not conflate two concepts which the legislation intended to be separate. Ultimately, cl 48A(1)(a) and (f) of the Regulation do not transgress the high threshold for unreasonableness. 

2. The exercise of power conferred by s 144G(6) and s 264 is complete by the Governor prescribing major bridges, tunnels or roads by reference to the defined terms in the Roads Act. Regulation 48A(1) does not delegate the prescription of major bridges, tunnels or roads, to some other person or entity. When the Minister exercises the power conferred by ss 46, 47, 48 and 52 of the Roads Act (corresponding to the provisions in cl 48A(1)(a)–(e)), the Minister is not exercising the power to prescribe a bridge, tunnel or road as a “major bridge tunnel or road.” The question of an improper purpose does not arise in the present context. No impermissible sub-delegate has occurred by cl 48A(1) of the Regulation.

Dignity

'Dignity and the Australian Constitution' by Scott Stephenson in (2020) 42(4) Sydney Law Review 369 comments

Today dignity is one of the most significant constitutional principles across the world given that it underpins and informs the interpretation of human rights. This article considers the role of dignity in the Australian Constitution. The starting point is the 2019 decision of Clubb v Edwards, which marked the arrival of dignity in Australia. In that case, the High Court of Australia found that laws restricting protests outside of abortion facilities were justified under the implied freedom of political communication partly on the basis that they protect the dignity of persons accessing those facilities. The article argues that dignity was used in two ways in the Court’s decision: first, as a means of distinguishing natural persons from corporations; and second, as one purpose that a law can pursue that is compatible with the implied freedom. The article develops and defends the first use of dignity, while identifying some challenges that arise with the second use of dignity. 

Stephenson argues

 Since the middle of the 20th century, dignity has become one of the most significant principles in both public international law and domestic public law across the world. The reason being that dignity is ‘a central organizing principle in the idea of universal human rights’. As the recognition of human rights has spread around the globe at the domestic and international level, so too has the recognition of dignity — sometimes understood as a foundation for human rights, sometimes as a freestanding right and sometimes as a principle that guides the interpretation of other human rights. This seismic shift in the legal landscape has largely passed by Australia due to the lack of a national bill of rights. While the International Court of Justice, the European Court of Human Rights, the European Court of Justice, the Inter-American Court of Human Rights, the Federal Constitutional Court of Germany, the Supreme Court of the United States, the Supreme Court of Canada, the Supreme Court of Israel, the Constitutional Court of South Africa and many other courts have issued important judgments on the meaning and use of dignity, the High Court of Australia has said almost nothing about the concept. The High Court’s 2019 decision in Clubb v Edwards is, therefore, a major development because it represents the first time that the concept of dignity has been used to help interpret the Australian Constitution. The case involved a challenge to the constitutional validity of Tasmanian and Victorian legislation prohibiting protests held outside facilities where abortions are provided. The plaintiffs contended that these laws infringed the implied freedom of political communication. The Court dismissed the challenge, with a number of judges holding that the laws were enacted for the purpose of protecting the dignity of persons accessing the facilities and that this purpose is compatible with the constitutionally prescribed system of representative and responsible government. The protection of dignity thus now appears to be a principle with a degree of constitutional recognition in Australia, capable of justifying the imposition of restrictions on the implied freedom. 

This article interrogates the introduction of dignity into the Australian constitutional landscape, advancing three claims. First, the High Court’s decision in Clubb suggests there are two different ways in which dignity might be used in Australia. It can be used in the broad manner mentioned above — to identify one purpose that a law can pursue that is compatible with the constitutionally prescribed system of representative and responsible government (dignity as a legitimate purpose). But it can also be used in a narrower manner as a means of distinguishing the position of natural persons and corporations under the implied freedom. Natural persons have an interest that corporations do not — the protection of their dignity (dignity as a distinctive characteristic). In Clubb, Kiefel CJ, Bell and Keane JJ gesture towards this second use of dignity when they distinguish the case from the situation in Brown v Tasmania, where the Court invalidated legislation prohibiting protests near the site of forestry operations. The protests outside abortion facilities generated a form of harm that was not generated in the case of protests outside forestry operations — harm to the dignity of persons accessing abortion facilities. 

Second, the article develops and defends the narrower use of dignity as a distinctive characteristic. It argues that corporations have generated two challenges under the implied freedom that have presented difficulties for the High Court in recent years. One is the extent to which the political communication of corporations is protected under the implied freedom. Evaluating the Court’s decisions in Unions NSW v New South Wales and McCloy v New South Wales, the article suggests that the Court has not identified a satisfactory legal, as opposed to a factual, means of justifying its conclusions as to when legislatures can restrict the political communication of corporations. It argues that dignity as a distinctive characteristic might provide such a justification. The second challenge is the extent to which restrictions on political communication can be imposed to protect corporations from harm. The article argues that dignity as a distinctive characteristic, as gestured towards in Clubb, is a useful and justifiable way of differentiating between, on the one hand, the scope of the legislature’s ability to protect corporations from harm and, on the other hand, the scope of the legislature’s ability to protect natural persons from harm.   

Third, the article considers two issues that arise with the broader use of dignity as a legitimate purpose. One issue is the uncertainty that surrounds the meaning of dignity. As dignity has many different, and sometimes contradictory, aspects, the Court will need to provide further guidance as to what the term means in the Australian constitutional context. This will be no easy task. Take, for example, the aspect of dignity that was the focus of Clubb — the prevention of unwanted messages being forced upon people. The difficulty is that almost every political protest involves forcing unwanted messages upon people — people passing the protest in the street, people entering the legislative building, and so on. It cannot therefore be the case that the prevention of unwanted messages being forced upon people is compatible with the constitutionally prescribed system of representative and responsible government in all circumstances. It must be understood as the protection of particular messages being forced upon particular people in particular circumstances. 

 The second issue that arises with the broader use of dignity as a legitimate purpose is the uncertainty that surrounds the use of dignity. In Australia, there is a risk that dignity will only be recognised as relevant to the law’s purpose, not also the law’s effect on speakers, due to the limited scope of the implied freedom of political communication. The article identifies two related problems with this path. One is that it creates a partial and distorted conception of dignity. As all natural persons are understood to have dignity, it is misleading to recognise the dignity of listeners and disregard the dignity of speakers. The other is that it flips the principal objective of dignity on its head. Dignity is understood, first and foremost, as a justification for the existence of rights and freedoms, not as a justification for their abrogation. If the High Court were to use dignity only as a legitimate purpose, it would turn the concept solely into a vehicle for limiting rights and freedoms. 

The article is divided into three parts. Part II advances the first claim by providing an overview of the High Court’s invocations of dignity in Clubb. Part III makes the second claim by analysing the Court’s approach to corporations and the implied freedom, and the role that dignity as a distinctive characteristic has played and could play in the future. Part IV puts forward the third argument by highlighting the challenges that the Court will need to confront if it intends to use dignity as a legitimate purpose.

Cancellations

'Private Confederate Monuments' by Jessica Owley, Jess R Phelps and Sean W Hughes in (2021) 25(1) Lewis & Clark Law Review comments 

As public confederate monuments finally begin to come down across the nation, we are beginning to see a new emergence of confederate monuments on private lands. The number of private confederate monuments is increasing both with the construction of new monuments and, more significantly, the relocation of monuments from public land. This Article explains why private confederate monuments are likely to be the next battleground over these controversial and troubled statues. Through ten detailed examples, we show how private confederate monuments emerge and how communities are responding. The challenges related to monuments on private land are different than those on public lands, and previous activism and research in this area is only of limited use in grappling with this category. This Article addresses the difficult issues with private confederate monuments. We urge communities to be thoughtful in their relocation efforts and to contextualize (and distance themselves from) all confederate monuments. This Article serves as a cautionary note to communities looking to dispose of their monuments by donating or returning these resources to private groups and encourages communities to fully evaluate the impacts of their removal and relocation plans to ensure they do not lead to unintended consequences or creates issues for another community.

G20 Protests and Surveillance

'How to Govern Visibility?: Legitimizations and Contestations of Visual Data Practices after the 2017 G20 Summit in Hamburg' by Rebecca Venema in (2020) 18(4) Surveillance & Society 522-539 comments 

Technological changes shift how visibility can be established, governed, and used. Ubiquitous visual technologies, the possibility to distribute and use images from heterogeneous sources across different social contexts and publics, and increasingly powerful facial recognition tools afford new avenues for law enforcement. Concurrently, these changes also trigger fundamental concerns about privacy violations and all-encompassing surveillance. Using the example of police investigations after the 2017 G20 summit in Hamburg, the present article provides insights into how different actors in the political and public realm in Germany deal with these potentials and tensions in handling visual data. Based on a qualitative content analysis of newspaper articles (n=42), tweets (n=267), experts’ reports (n=3), and minutes of parliamentary debates and committee hearings (n=8), this study examines how visual data were collected, analyzed, and published and how different actors legitimated and contested these practices. The findings show that combined state, corporate, and privately produced visual data and the use of facial recognition tools allowed the police to cover and track public life in large parts of the inner city of Hamburg during the summit days. Police authorities characterized visual data and algorithmic tools as objective, trustworthy, and indispensable evidence-providing tools but black-boxed the heterogeneity of sources, the analytical steps, and their potential implications. Critics, in turn, expressed concerns about infringements of civic rights, the trustworthiness of police authorities, and the extensive police surveillance capacities. Based on these findings, this article discusses three topics that remained blind spots in the debates but merit further attention in discussions on norms for visual data management and for governing visibility: (1) collective responsibilities in visibility management, (2) trust in visual data and facial recognition technologies, and (3) social consequences of encompassing visual data collection and registered faceprints. 

 Venema argues

 “It is an amount of visual data never seen before in the criminal history in Germany” (Monroy 2017), “a new standard of proof” (Monroy 2018); “we enter uncharted technological territory” (Bürgerschaft der Freien und Hansestadt Hamburg 2018: 8). With these words, the chief inspector of Hamburg’s criminal investigation department praised the wealth of images and the pivotal role of facial recognition tools that were used for police investigations after the 2017 G20 summit in Hamburg. Protests had culminated in various violent confrontations between protesters and the police as well as in severe riots (for a detailed chronology and an in-depth analysis of the dynamics, see Malthaner, Teune, and Ullrich 2018). In the subsequent prosecutions against individuals accused of, for example, disturbing the peace, assault, civil disorder, damage to property, or looting, the police collected more than 100 TB of photographs and videos and analyzed them with the help of a third-party facial recognition tool. Moreover, the police published more than two hundred pictures of suspects online in several waves of national, and later European, public searches. 

These practices reflect important shifts in how visibility can be established, governed, and used in highly visualized and datafied societies: Both protests and public life in general are increasingly videotaped or captured by photographs—be it by the police, video surveillance cameras, people who attend an event, or those who simply pass by a given public place. Vast numbers of digital images taken and shared in private and public contexts can be widely distributed, combined with images from other sources, and (re)used across different social contexts and publics. Visual data, that is the combination of a given photograph or video sequence with specific metadata, such as GPS coordinates or the date or time at which a picture or video was taken, can detail fundamental personal information such as a person’s whereabouts at a given time, individuals’ physical and facial traits, or how people interact with each other. Moreover, increasingly powerful tools for algorithmic analyses, such as facial recognition tools, now promise significant advancements for scanning large data sets, mapping facial features from a photograph or video, and identifying individuals or tracking their movements. 

These changes and characteristics have implications for how the police and public, private, and voluntary sector partners interact in policing strategies (see Spiller and L’Hoiry 2019; Trottier 2015). Furthermore, they entail both myriad potentials as well as possible risks. On one hand, extensive and heterogeneous visual data and facial recognition tools might be beneficial in situations such as searching for terrorists or a missing child. In fact, they can open up significant opportunities for safeguarding public security and for supporting policing operations, as the case of the Boston marathon bombing has shown (Mortensen 2015). On the other hand, ubiquitous visual technologies, the potentially broad reach of images or videos, and biometric analyses may also be considered fundamental threats to civil liberties and an intrusive shift in control capacities (Crawford 2019). In fact, encompassing visual data can also contribute to exclusion, repression, and targeted control when pictures or videos published online are used to monitor and collect information about individuals or groups of people, their activities, interactions, and associations (see, e.g., Pearce, Vitak, and Barta 2018; Lane, Ramirez, and Pearce 2018; Uldam 2018; Dencik, Hintz, and Carey 2018). 

How images were handled in the G20 investigations triggered controversial public and political debates. In these debates, the crucial steps of (visual) data management and governing visibility—that is, how to collect, how to analyze, and how to use and distribute data—moved to the center of public attention. The ways in which facial recognition was used even led to a precedent lawsuit in Germany (Caspar 2019). This makes the 2017 G20 investigations a timely case study to investigate discourses on visual data practices and to examine how ethical and legal norms for handling visual data and for governing visibility are currently discussed. Visual data practices are thereby understood as practices of collecting, analyzing, and publishing visual data. Tracing these practices and debates on visibility management and law enforcement is vital as they provide insights into an urgent social concern (Flyverbom 2019) and are a key site for understanding the politics of datafied societies in general (Hintz, Dencik, and Wahl-Jorgensen 2018). 

So far, insights into how different authorities and stakeholders in the political and public realm deal with potentials, risks, and normative questions related to visibility and visual data are scarce. Based on a qualitative content analysis of newspaper articles, tweets, experts’ reports, and minutes of parliamentary debates and committee hearings, I seek to address this gap in a twofold way. First, I compile publicly available information about visual data practices. Second, I examine how different actors in mediated public and political debates legitimated and contested visual data practices. 

I start by outlining the theoretical concepts of visibility and visibility management. I then conceptually discuss how changing visual practices shift visibility and surveillance constellations. The subsequent review of previous research and the empirical study focus on how different actors such as political decision-makers, journalists, or citizens make sense of these shifts and their implications. Based on the empirical findings, I discuss three topics that remained blind spots in the debates but merit further attention in discussions on norms for visual data management and for governing visibility: (1) collective responsibilities in visibility management, (2) trust in visual data and facial recognition technologies, and (3) social consequences of encompassing visual data collection and registered faceprints.

Sentencing for assaults on public officers

The Queensland Sentencing Advisory Council report Penalties for assaults on public officers refers to the expectation of the community and government that public officers should not be the subject of assault during the execution of their duties, and the need for public officers to have confidence that the criminal justice system properly reflects the inherent dangers they face. 

 The report states 

'Public officer’ was defined for the purposes of the review to include police and other emergency service workers, corrective services officers, and other public officers engaged to perform public duties on behalf of the State of Queensland. Its meaning as this applies to offences charged under section 340(2AA) of the Criminal Code (Qld) and whether its scope should be expanded was a key focus of the review. 

The Council’s analysis was limited to assaults and assault-related offences that could be readily identified as involving a public officer victim. Fatal assaults and sexual assaults were scoped out on the basis that these were not the intended focus of the current review. Limited analysis of other offences charged was undertaken based on data provided by the Queensland Police Service (QPS), Queensland Corrective Services (QCS) and the Department of Youth Justice. ... 

It goes on to state 'the case for reform' - 

Section 340 — broad in scope, confused in focus, and with overlapping provisions

The main focus of this review has been on the offence of serious assault under section 340 of the Criminal Code as this applies to assaults on public officers. 

Section 340 makes certain kinds of assaults against certain people a more serious offence than assaults committed on other people that are charged, for example, as a common assault or assault occasioning bodily harm (AOBH). It relies on the same definition of ‘assault’ as for these other offences, but, unlike the other Code offences, applies higher maximum penalties based on specific scenarios and victim characteristics. Serious assault formed part of the original 1899 Criminal Code and was initially classified as a misdemeanour carrying a maximum penalty of 3 years. It applied in six different specified circumstances including assault of a police officer while acting in the execution of his or her duty, or any person acting in aid of a police officer while so acting, and assault of any person on account of any act done by that person in the execution of a duty imposed by law. 

From 1988 to 2020, there have been 16 amending Acts making changes of substance to this section, including: • the reclassification of serious assault from a misdemeanour to a crime; • an increase in the maximum penalty from 3 years to 7 years; • the extension of the section to assaults on victims aged 60 years or older, as well as those who rely on a guide, hearing or assistance dog, wheelchair or other remedial device; • the insertion of a separate subsection (s 340(2AA)) targeted at assaults on ‘public officers’; and • the introduction of circumstances of aggravation, such as biting, spitting on, and throwing bodily fluids or faeces at a victim, or causing bodily harm, to which a 14-year maximum penalty applies. This was initially limited to assaults on police but was later extended to assaults on public officers and, much more recently, to assaults by prisoners on corrective services officers. 

The many amendments have resulted in an offence provision that is very broad in scope, capturing assaults both on victims who are vulnerable due to their occupation or the functions they are performing, and those whose vulnerability arises from their age and/or physical disability, and applying both to assaults as well as to acts of obstruction. 

There is significant overlap in the conduct and victim classes captured across the various subsections of section 340 as these apply to public officers. For example, charges of assault on police are most commonly charged and sentenced under section 340(1)(b), but also found among cases dealt with under sections 340(1)(a), (c), (d) and (2AA). The existence of a separate subsection dealing with assaults by prisoners on corrective services officers (s 340(2)) also gave rise to confusion about whether assaults on corrective services officers involving circumstances of aggravation could be charged under section 340(2AA), which applies to the broader category of ‘public officer’. This has led to recent amendments to this subsection to import the same circumstances of aggravation into section 340(2). 

Given these many overlapping provisions, the problem of ensuring people are correctly charged, identified by the Court of Appeal in 1995 and well prior to a number of these changes, has probably become even more pronounced. 

Another issue raised with the Council has been the uncertainty about the definition of a ‘public officer’ and what categories of officers are, and are not, included within its scope. 

The many amendments made over time, and uncertainty about definitional issues, has resulted in a provision that the Council considers is confused, awkwardly structured, and unclear in its intention and focus. This lack of clarity, in the Council’s view, has contributed to unhappiness by some groups that they are not expressly named, and by implication, excluded from its scope. 

Taking these problems into account, the Council’s view is that those falling within section 340 need to be more clearly and narrowly defined so the application of this provision more closely reflects the section’s original intention. The Council’s recommendations are set out in Chapter 8. 

Making clear to the public the aggravating nature of offences committed on workers providing essential public services to the community 

Many of those who are vulnerable to assault due to their occupation or working environment do not meet the current definition of ‘public officer’ for the purpose of section 340. For example, they may provide services to the public in a private capacity or be engaged as a contracted service provider. This includes a wide range of people from service station attendants, to bus drivers, taxi drivers and others in the transport industry, private security guards, general practitioners, and other health-service providers. In circumstances where an assault occurs, a charge must instead be brought under one of the offence provisions available under the general criminal law, such as common assault (Criminal Code, s 335) and AOBH (Criminal Code, s 339). 

However, the fact that there is no special offence (such as serious assault) established to reflect the special vulnerability of these specific victim classes does not prevent a court from taking this factor into account in sentencing. Sentencing courts have always taken relevant common law circumstances of aggravation into account, unless legislation displaces their ability to do so. Given the broad features of section 9(2) of the Penalties and Sentences Act 1992 (Qld) (PSA) (which applies to any sentence)2 and judicial discretion, the fact that a person was assaulted while doing his or her job, if relevant, will be considered. 

The Court of Appeal has made repeated statements recognising the need for deterrence, denunciation and a salutary penalty in the case of assaults of police, the interests of protecting them and their authority, and reflecting community support for them. It has made similar comments in relation to offences against specific classes of victim including railway guards, court clerks, corrections officers, and local council officers. 

The Court of Appeal has further long acknowledged that some groups of people in regular contact with the public in the course of their employment are at increased vulnerability, such as taxi drivers,8 service station attendants and convenience or takeaway store staff, and that this should be reflected in the sentence imposed. The Court has recognised such workers (often working night shifts, sometimes alone) as a vulnerable cohort, serving the community while at risk of attacks that can cause physical and psychological harm. It has restated the importance of deterrence in sentencing and made strong statements to this effect for at least the last 25 years. 

One benefit of the flexibility under existing law is that courts have the ability to recognise new categories of workers without the need for legislative change. As one example, the introduction of rideshare services means the risks that once applied primarily to taxi drivers now apply to a new category of worker. The advent of the COVID-19 pandemic in more recent months has heightened awareness of the risks of assault posed to retail workers, which may not only result in physical injury but also the fear of contracting what is a highly transmissible and potentially deadly virus. 

The difficulty, however, is that the increased seriousness with which assaults on specific workers are viewed may not always be clear to members of the public, or to those workers who may feel vulnerable to such assaults. This is because, rather than pointing to a specific offence that carries a high maximum penalty, it relies on the public and workers in these industries being aware of how courts apply the general provisions contained in the PSA and the common law. 

During this review, there were a number of industries strongly advocating for their workers to be included within the scope of section 340 on the basis that a higher maximum penalty applies to these assaults. This provides some evidence of a belief among some workers and in some industries that the fact an assault has occurred at work will not be treated as more serious unless it is expressly stated to be so. The Council considers the best way to address this problem is through the introduction of a new aggravating factor, which would make the increased seriousness of assaults that occur in this context clear. This is discussed in Chapter 10 of the Council’s report. 

Achieving greater uniformity in summary assault and obstruct provisions 

The Council was asked to consider whether to retain separate summary offences that can be charged in circumstances where a public officer has been assaulted, with express reference being made to section 790 of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA) and section 124(b) of the Corrective Services Act 2006 (Qld) (CSA). 

There are over sixty other Queensland Acts that carry offence provisions relating to persons acting in roles such as ‘authorised officers’. They target assault and various acts including wilful obstruction, intimidation and attempts (‘obstruct’ is defined under a number of provisions as including assault). Many of these provisions state this conduct is an offence ‘unless the person has a reasonable excuse’. 

The maximum penalty for these summary offences ranges from a modest fine to a large fine or period of imprisonment (for example, 2 years under section 124(b) of the CSA). 

There was strong support for the retention of summary offences as an alternative to charging the more serious offence of serious assault under the Criminal Code. However, there is a clear lack of uniformity in the wording of these provisions and in the penalties that apply. 

Better responses to victims 

Through the consultation process, the Council learned that the nature and impacts of occupational violence vary from industry to industry, and from organisation to organisation as do the institutional responses. In consulting with individuals and organisations, it became evident that occupational violence is a workplace health and safety concern for many industries. 

The Council found some groups, such as police and corrective services officers, are more comfortable reporting an incident of violence at work than other groups, such as teachers and health workers. The reasons for this are complex, and in many cases, industry-specific. Concerningly, many victims of assault who shared their stories through their organisations or directly with the Council reported they did not have a positive experience with the criminal justice system. This not only referred to the quality of information provided, and to delays in having matters finalised, but in some cases to disappointment with the sentencing outcomes. 

The Council considers there are opportunities to improve current justice system responses. This includes ensuring victims have access to appropriate support and information and are given the opportunity if they choose to do so — and where this is considered appropriate — to participate in alternative justice processes to better meet their needs. 

How frequent are assaults on public officers and what offences are charged? 

Chapter 2 reports on the Council’s findings about the frequency of assaults on public officers, whether WorkCover claims are pursued, and the number of sentenced cases involving a charge of serious assault or summary assault offence. 

Agencies in the health sector record the highest number of assaults, but only a small number result in a claim for compensation. In contrast, police officers, corrective services officers, and youth detention staff have higher rates of compensation claims following an assault. Over the period 2009–10 to 2018–19, there were 10,194 sentenced cases involving a serious assault. In 7,932 of these cases, serious assault was the most serious offence (MSO) sentenced. 

The most common type of serious assault involves assault of a police officer, comprising 65.4 per cent of cases, although the number of these cases has decreased over the past five years. 

The lesser summary offence of assault or obstruct a police officer under section 790 of the PPRA was sentenced in 85,434 cases over the 10-year period, although the number of these cases has decreased considerably over this time. Acts of assault formed the basis of 16.0 per cent of these sentenced charges, compared with 89.9 per cent that involved an act of obstruction (approximately 10% of cases involved acts of both assault and obstruction, which were counted twice). 

There are over sixty other summary offences identified throughout various pieces of legislation that involve acts of assault, obstruction, hindering or resisting a public officer. These were sentenced in 1,553 cases over the 10-year data period. 

Who is involved in assaults on public officers and who reoffends? 

Chapter 3 considers who commits assaults on public officers and the profile of victims. Serious assaults of public officers are most commonly committed by men (66.6%), and by non-Indigenous people (61.7%), with an average age of 28.8 years. Aboriginal and Torres Strait Islander peoples are overrepresented among those sentenced for serious assault of a public officer, with men being sentenced at a rate 16 times greater than their non-Indigenous counterparts, and women being sentenced at a rate 12 times greater than non-Indigenous women. 

Police officers are the most common public officer victim of serious assault, followed by paramedics, detention centre staff, and corrective services officers. Serious assaults of ‘public officers’ sentenced under section 340(2AA), (1)(c) and (1)(d) involve victims from a wide range of professions including paramedics, detention centre workers, medical/hospital workers, security guards, watch-house officers, transport officers, and child safety officers. 

Young people are most likely to be charged for assault of a detention centre worker or education worker, whereas adults are most likely to be dealt with for an assault of a paramedic or medical worker. Sentenced assaults of detention centre workers have increased over the 10-year period. 

Reoffending by commission of the same offence is most common for those convicted of serious assault of a corrective services officer under section 340(2) or for assault or obstruct police under section 790 of the PPRA, with about one in five offenders being sentenced for the same offence within a two-year period. 

Across all victim categories, people sentenced for serious assault of a public officer and for assault or obstruct police or corrective services staff are more likely to be sentenced for another offence of violence than those sentenced for AOBH (aggravated, 31.1% and non-aggravated 28.3%), common assault (31.3%), wounding (22.1%) or grievous bodily harm (GBH) (22.2%). Aboriginal and Torres Strait Islander peoples have higher levels of recidivism, with a higher proportion of them committing repeat offences, as well as other violent offences. Men have higher levels of recidivism compared to women for offences involving the assault of a public officer; although these gendered differences are less pronounced, and in some cases reversed, for assaults that do not involve a public officer. 

What are the circumstances in which public officers are assaulted? 

In Chapter 4, the Council draws on a variety of sources to identify some of the factors that may contribute to assaults on public officers and help to explain the context in which this offending occurs. 

Based on the Griffith Criminology Institute’s literature review, assaults of public officers are more likely in particular circumstances or conditions, such as: • perpetrators involved in substance abuse, at least in the healthcare sector; • perpetrators with poor mental health, across a number of sectors; • perpetrators with a current or past history of violent behaviour; • officers with less experience on the job; • operational workplace characteristics, which may vary by sector (such as understaffing in the healthcare sector, and ticketing and timetabling issues in the public transit sector). 

A sentencing remarks analysis undertaken by the Council based on a sample of 276 serious assault cases sentenced in the higher courts found differences based on the gender and Aboriginal and Torres Strait Islander status of the offender. Spitting was more common for women, whereas physical assaults such as kicking, punching or pushing were more common for men. The majority of offenders were described as being ‘uncooperative’ or ‘aggressive’ while committing the offence. Assaults most commonly occurred while the offender was being arrested, restrained, or resisting the direction of a public officer. Half of the women, and one-third of Aboriginal and Torres Strait Islander men were under the influence of drugs or alcohol. One-third of offenders had mental health problems — particularly non-Indigenous women. 

An analysis of associated offences (committed during the same incident as an assault of a public officer) found that assaults of corrective services officers are the least likely to have another offence charged. The serious assault of a police officer is the most likely to have multiple counts of the same offence arising out of the same incident — particularly for cases involving male offenders. Public nuisance is the most commonly associated non-violent offence, and most common for Aboriginal and Torres Strait Islander women. 

Since their introduction, aggravating circumstances have been present in approximately 59.0 per cent of serious assault cases involving a police officer and 45.0 per cent of cases involving a public officer. Bodily fluids are the most common aggravating circumstance, followed by bodily harm. 

Impact on victims 

Chapter 5 explores the impact of assaults on victims and their experiences of reporting an assault. The Council found the nature and impacts of occupational violence vary from industry to industry, and from organisation to organisation. Across all sectors, assaults have potential to result in far-reaching impacts on the life of the direct victim, on the victim’s family and on the victim’s future working life. This includes both physical and mental health impacts, with recovery that can be lengthy and highly individualised. They also have broader impacts on workplaces — for example, potentially leading to recruitment and retention challenges — and on the broader community. 

Improving institutional responses to better respond to victim needs is discussed in Chapter 11. 

Current sentencing framework and practices 

Chapter 6 explores the application of sentencing guidelines and principles set out in the PSA, and applied under the common law, as well as the range of sentencing options available to the courts. It discusses the application of these general principles to sentencing for serious assault, reviewing relevant Court of Appeal cases, including the relevance of mental illness, intoxication and a disadvantaged background. It notes the Court of Appeal’s recognition that serious assault ‘is an offence which can occur in circumstances of widely variable levels of criminality, ranging, for example, from physical acts of minor resistance to arrest through to deliberately dangerous, degrading or prolonged attacks’.9 For this reason ‘the range of appropriate sentences ... is inevitably very broad’. 

Chapter 7 presents the Council’s findings as to how assaults on public officers are dealt with by the courts based on sentencing data. Key findings include:

• The use of custodial penalties for assaults on public officers charged under section 340 of the Criminal Code, section 790 of the PPRA and section 12(b) of the CSA has increased over the past 10 years. 

• Almost all serious assaults of a public officer sentenced in the higher courts over the 10-year period examined resulted in a custodial penalty being imposed (90.6% of cases, MSO). In the Magistrates Courts, almost two-thirds of cases resulted in a custodial sentence (64.8%). 

• For adult offenders in both the higher and lower courts, imprisonment was the most common penalty type for serious assault offences analysed (MSO). 

• Suspended sentences were ordered in between 7.1 and 31.5 per cent of cases (MSO), depending on the type of offence. 

• The lesser summary offence of assaulting a police officer under section 790 of the PPRA resulted in a custodial penalty in 13.4 per cent of cases, much higher than the 3.4 per cent of cases with custodial outcomes for obstructing a police officer (MSO). 

• The summary offence of assaulting or obstructing a corrective services officer under section 124(b) of the CSA almost always resulted in a custodial penalty (84.0% of cases, MSO). 

• The average sentence for non-aggravated serious assault in the higher courts was 1.0 years where the victim was a police officer and 0.9 years in circumstances where the victim was a corrective services officer. 

• Sentences were shorter in the Magistrates Courts for non-aggravated serious assault, averaging 0.6 years where the victim was a police officer, 0.7 years for assaults on corrective services officers, and 0.4 years for assaults on other public officers. 

• A monetary penalty was most common for the lesser summary offence of assaulting (48.7% of cases) or obstructing (65.2% of cases) police officers, with an average penalty amount of $620.80 for assaults, and $414.50 for obstructions. 

• For young offenders, community-based orders (including probation and community service) were the most common types of penalties imposed for serious assaults, with an average length of 8 to 9 months for probation and 50 to 80 hours of community service. 

• For the summary offence of obstructing a police officer, over half of young people were reprimanded. T

he Council found that the impacts of the 2012 and 2014 amendments, which introduced circumstances of aggravation that increased the maximum penalty applying where these factors are present from 7 years to 14 years, are difficult to assess due to a lack of recorded data on the circumstances of offending for offences prior to these changes. For example, whether an assault sentenced prior to these amendments involved one of the relevant circumstances of aggravation — such as spitting, biting, throwing bodily fluids or faeces or causing bodily harm. The introduction of the aggravating factors does appear, however, to have had some effect with offences with aggravating circumstances receiving increased sentences compared to orders made prior to these legislative amendments — both being more likely to attract a custodial sentence, and for these sentences on average to be longer than prior to the 2012 and 2014 reforms. No change, however, was identified to sentencing patterns for young offenders following these legislative changes. 

Reforms to the offence of serious assault under section 340 of the Criminal Code 

Chapter 8 sets out the Council’s recommendations for reforming section 340. The Council recommends that section 340 be recast with a focus on assaults on frontline and emergency workers, and that the offence be retitled to reflect this change to promote understanding of the type of conduct it is intended to capture. 

Under the Council’s proposals, references to acts of obstruction would be removed, with such charges instead having to be brought under relevant summary offences or the Criminal Code offence of resisting public officers under section 199. The Council recommends the maximum penalty for offences under section 199 be increased from 2 years to 3 years, taking into account that more serious acts of obstruction would not be likely to be charged under this provision. 

The new section 340 would be targeted at assaults on those officers whose primary role is to keep the community safe, who perform critical response duties on behalf of the community, and who perform a unique role in the supervision and management of offenders. They include:

• police officers, watch-house officers and protective security staff employed by the Queensland government; 

• ambulance officers; 

• health-service providers employed under the Hospital and Health Boards Act 2011 (Qld) or delivering services in a private hospital, prison or detention centre environment, as well as people acting in aid of those health-service providers; 

• fire and emergency services employees under the Fire and Emergency Services Act 1990 (Qld), volunteers of rural fire brigades, members of the State Emergency Service and other volunteers engaged in an activity to support functions under that Act; 

• corrective services officers; 

• youth justice staff members; and 

• authorised officers under the Child Protection Act 1999 (Qld). 

This not only reflects the essential and critical role of these officers but will also result in greater clarity about who the section applies to. As a consequence of this recommendation, the Council recommends sections 340(1)(c) and (d) be repealed, and the existing provisions that apply to assaults on persons aged 60 years or more, or who rely on a guide, hearing, assistance dog, wheelchair or other remedial device, to another section of the Code. The recommended changes will also require significant reform or repeal of sections 340(1)(b), (2) and (2AA), removing references to the term ‘public officer’. 

The existing circumstances of aggravation will continue to apply, but to the more narrowly defined class of victim who would fall under section 340 of ‘frontline and emergency workers’. 

The Council notes concerns that the current 14-year maximum penalty that applies to aggravated serious assault is poorly aligned with that which applies to AOBH (10 years in its aggravated form), and with equivalent offences in other jurisdictions, such as aggravated serious assault in Western Australia. The highest custodial sentence imposed over the period examined was a sentence of 5 years, falling well short of a sentence of 10 years for torture, and 8 years for GBH — both of which also carry a 14-year maximum penalty. 

Ultimately, the Council has recommended that the 14-year penalty be retained. It has done so on the basis that the classification of offences and setting of statutory maxima — as a general proposition — is best undertaken as a holistic exercise. This enables an assessment to be made of the seriousness of individual offences and conduct captured relative to other similar offences and is therefore more likely to promote a penalty framework that is internally consistent and coherent. The last review of maximum penalties in Queensland was the O’Regan Committee’s review in 1992, completed some years prior to the initial increase in the maximum penalty for serious assault from 3 years to 7 years, and 20 years before the current 14-year penalty was introduced. Over this time there have been a number of amendments to the maximum penalties that apply to other offences under the Code, including common assault and AOBH (both simpliciter and in its aggravated form). 

A consequence of the Council’s proposals is that some classes of public officer would no longer be captured within section 340. They include transit officers, fisheries inspectors, local government employees and public-school employees. The Council considers the increased seriousness of assaults on these officers should be recognised through a new aggravating factor under section 9 of the PSA. This will allow the same protections to be extended to workers performing similar roles to those in the public sector — for example, private schoolteachers and staff, and private or contracted public transport providers — while keeping section 340 appropriately narrowly focused. 

Summary offences of assault and obstruct public officers 

Chapter 9 reviews existing summary offences of’ assault’ and ‘obstruct’ that can be charged in place of ‘serious assault’. The Council agrees with views expressed by a number of stakeholders that it is important to retain separate levels of offences — even if these offences ostensibly capture the same forms of criminal behaviour. This ensures that people who commit these offences are not exposed to the possibility of a more severe penalty being imposed for actions that are relatively minor — for example, in the case of an assault, a light push where no injury has been caused. Retaining these offence distinctions not only means that a different penalty framework is applied, but also ensures that criminal histories present a more accurate reflection of the seriousness of the charges an offender has been convicted of and sentenced for. 

However, taking into account the proliferation of summary assault and obstruct offences in Queensland over time, adding to the general complexity of the criminal law, the Council recommends that a new summary offence be created under the Summary Offences Act 2005 (Qld) to replace existing offences of assault and obstruct, which it recommends should be repealed over time. The Council recommends this new summary offence should carry a maximum penalty of 6 months’ imprisonment or 100 penalty units. The existing assault and obstruct offences for police and corrective services officers, however, would be retained, with no change to the current penalties that apply. This is on the basis that these are the most frequently charged forms of assault and obstruct offences, and that the maximum penalties set take into account the particular contexts in which this offending occurs. The Council further recommends that the QPS should develop internal guidelines to supplement the existing Director’s Guidelines issued by the Office of the Director of Public Prosecutions to support the consistent and appropriate exercise of discretion across the state when deciding whether to prefer a section 340 offence or a summary charge. 

Changes to the sentencing framework for assaults on public officers and other workers vulnerable to assault 

Chapter 10 presents the Council’s recommendations for reform of the current sentencing framework. 

As discussed above, Queensland courts have long recognised the status of victims as public officers, or in occupations that involve a higher vulnerability to assaults, as an aggravating factor for sentencing purposes. Given the concerns raised by some industries about the need for proper protections against assaults on their workers, such as those representing workers in the transport and security industries, the Council considers there is merit in giving statutory recognition to the increased vulnerability of these workers and the treatment of this factor in sentencing as aggravating. 

Although some may view this change as unnecessary, by enshrining this principle in legislation, it will make clear to the community that offences involving violence, or threatened violence, against these workers will be treated by courts in sentencing as more serious, thereby serving an important communicative function. It will achieve this purpose while preserving the courts’ ability to determine the weight to be placed on this factor in the particular circumstances of the case. 

The Council proposes its objectives be achieved by introducing a new aggravating factor in section 9 of the PSA that will apply to offences to which the current subsections (2A) and (3) apply — that is, which involve the use, or attempted use, of violence, or that have resulted in physical harm to another person. Courts would be required to consider the fact such an offence has occurred in the performance of the functions of the victim’s office or employment, or because of this, as aggravating providing it can reasonably be treated as such. The new provision, under the Council’s preferred option, will have two separate limbs, based on a similar provision in NSW: • the first applying to offences committed on frontline and emergency workers, as defined for the purposes of section 340, with application to offences under the general criminal law in circumstances where the victim’s occupation is not an element of the offence — for example, AOBH (s 339), GBH (s 320), wounding (s 323) — and acts intended to cause GBH and other malicious acts (s 317); and • the second based on the victim’s vulnerability due to their occupation, which will not be limited to frontline emergency workers and can be applied to people working both in the public and private sector and engaged as volunteers. 

It could contain a non-exhaustive list of examples, such as bus drivers or other public transport workers, taxi drivers, rideshare drivers, health and aged care workers, and security officers. A legislative example might be provided of where it might not be reasonable to do so — for example, if the offender is suffering from a mental illness. 

After reviewing the current sentencing approach for serious assault under section 340, the Council has not identified any compelling case for change. There appears to be sufficient scope under the current arrangements to impose an appropriate sentence, and the increased use of custodial sentences by courts suggest that courts are recognising these offences as more serious. The Council has also recommended the current arrangements for the summary disposition of section 340 charges on prosecution election should be retained. While some legal stakeholders were strongly in favour of these matters moving to a defence election to provide defendants with the right to a jury trial, there are, equally, arguments against such a change, including that the current approach expedites the resolution of charges, in the interests of both defendants and complainants. On balance, it considers no change is necessary. 

With regard to sentencing options, the Council refers to reforms proposed in its Community-based Sentencing Orders, Imprisonment and Parole Options: Final Report released in 2019, as having potential to improve sentencing responses to assaults on public officers. These recommendations included providing courts with a broader range of options, including combining the use of imprisonment with a community-based order when sentencing for a single offence; encouraging the use of more targeted community-based orders to address the underlying causes of offending; and removing the availability of parole for short sentences of imprisonment where this might not be appropriate and lead to an increased risk of reoffending. 

This earlier report also recommended a review of mandatory sentencing provisions that would allow investigation of whether the current requirement under section 108B of the PSA for a court to make a community service order where an offence is committed in a public place while adversely affected by an intoxicating substance is meeting its intended objectives and should be retained. This requirement currently applies not only to serious assault of police and public officers under sections 340(1)(b) and (2AA), and section 790 of the PPRA, but also to a number of other offences, such as common assault, wounding, AOBH and GBH. The Council has previously stated its concerns about mandatory sentencing, including the lack of evidence that it achieves its intended deterrent purpose. Given the significant overrepresentation of Aboriginal and Torres Strait Islander peoples among those sentenced for assaults of police and other public officers, any extension of mandatory sentencing provisions as they apply to these offences would risk having a particularly negative impact on these offenders. 

Improving system responses and increasing community understanding 

Chapter 11 highlights the importance of ensuring there are appropriate institutional responses to occupational violence and that there are supports and information available to victims. 

The Council considers, in particular, there is substantial merit in the Queensland Government investigating the expanded use and availability of adult restorative justice conferencing as part of a broader criminal justice response to assaults on public officers and others who are assaulted at work. This program, which gives victims the ability to meet face-to-face with the offender in a supportive environment, was viewed very positively by a wide range of stakeholders during consultations and in submissions. 

Although restorative justice conferencing may not be an option all victims wish to pursue, many stakeholders commented on its potential to improve victim satisfaction by giving victims a role as active participants in the process and allowing them to communicate the harm that has been caused by the offender’s actions, other than through the making of a victim impact statement. It may also provide victims with greater confidence in the outcome. 

Chapter 12 presents three recommendations to improve the ability to report on sentencing outcomes for assaults on public officers and public knowledge and understanding of penalties and sentences for these offences. These are: • identifying ways information can be captured that highlights if a victim of an assault, or an assault-related offence, is a public officer assaulted at work or assaulted because of their status as a public officer; • supporting continued work on strategies to make more District Court sentencing remarks publicly available; and • the continuation of public awareness campaigns that include information about maximum penalties that apply to assaults on public officers.