News & Views

OC Spray Class Action provides hope for accountability

Melbourne Activist Legal Support (MALS) welcomes the class action against Victoria Police’s use of capsicum spray and excessive force against protesters at the International Mining and Resources Conference (IMARC) in Melbourne in October 2019.


A team of MALS Legal Observers was present at the protest when police sprayed dozens of people standing with arms linked outside the conference, which is the subject of the class action. MALS documented multiple human rights infringements at the protest in a 45-page public report.

What legal observers witnessed on that day was truly horrific and unjustified. This class action provides some hope that people exercising their fundamental rights to protest in Victoria will not be subjected to unlawful state violence.

The Australian-first class action by Phi Finney McDonald and the Police Accountability Project at Inner Melbourne Community Legal alleges that the use of capsicum spray on protestors is unlawful when used as a coercive tool or where there is no immediate or proportionate threat to police officers or the public. The case was filed in the Victorian Supreme Court on 1st September 2022.

Legal observers witnessed, recorded and documented multiple incidents of excessive, unnecessary and potentially unlawful uses of force at the IMARC protests, and noted the harmful physical, emotional and psychological effects on the people affected.

When OC spray was introduced, politicians assured the public that the chemical agent would not be used at demonstrations.

“Capsicum spray will not be used against persons offering passive resistance, nor will it be given to any police rostered for demonstrations”, the then Victorian Police Minister, Hon. P. J. McNamara stated in the Legislative Assembly (15 November 1995)   

OC spray is now commonly used as a crowd control tool at protests and routinely against people experiencing a mental health crisis or simply being non-compliant.

MALS has tracked the misuse of OC spray as a coercive crowd control tool at protests over the past ten years. It is a dangerous chemical weapon and commonly used by police to force compliance or clear an area – well outside of Victoria Police’s own guidelines.

We hope this case will prevent further unlawful use of OC aerosols against citizens.

MALS has called upon Victoria Police to explicitly prohibit the use of force, pain compliance techniques and weaponry against citizens involved in peaceful but non-compliant forms of protest activity.  Detailed recommendations are included in the Policing of the IMARC Protests report.

Still time to get involved

Members of the public who attended the 2019 IMARC protest may be eligible to register for the class action. Information on the class action and how to register is available at www.phifinneymcdonald.com/imarc or by emailing [email protected].

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Legal Observer Report: Policing of the IMARC Protests (PDF) available here.

Statement by a Legal Observer (excerpts)

I witnessed police deploy OC spray after about 4 of them failed to tear a protester from linking arms with others – there was no risk, it was purely to disperse the protesters so they could grab this person

Statement by Legal Observer

One of the climbers descending from the pole had a canister of OC foam deployed directly at her face. At this time, she was tethered to the pole and working on her straps, so she wasn’t able to shield her eyes. Other officers deployed OC foam in the crowd, in an apparent attempt to disperse protesters who had gathered at the base of the poles. Officers deployed OC foam indiscriminately on protesters who had fallen to the ground as well as those who were attempting to move away….

Statement by Legal Observer

….The officers retreated, with several taking up fighting stances while they moved backwards. This seemed strange because at no time during the fracas did I see a protester violently resist an officer.
The whole scene left me shaken and confused because the police operation was so ill-conceived and unexpectedly violent. Prior to witnessing this event I was not aware of the degree to which Victoria Police would deploy physical violence in response to a peaceful demonstration.

Statement by Legal Observer

Related Media

Police face major class action over capsicum spray use on protesters, Cameron Houston and Nick McKenzie, The Age, 2 September, 2022

Legal observers find police ‘set tone of violence’ at anti-mining protests. Benjamin Miller, The Age, December 7, 2019

Channel 9 news 30 October 2022

Melbourne Activist Legal Support (MALS)

is an independent volunteer group of lawyers, human rights advocates, law students and para-legals. MALS trains and fields Legal Observer Teams at protest events, provides training and advice to activist groups on legal support structures, and develops and distributes legal resources for social movements. MALS works in conjunction with law firms, community legal centres, and a range of local, national, and international human rights agencies. We stand up for civil and political rights.

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