The Policing of Public Space

by Dr Natalie Osborne

I’d like to begin this article by paying my respects to the Traditional Custodians of the lands I live and work on: the Yugarabul, Yuggera, Jagera, Turrbal, and Yugambeh and Kombumerri Peoples. Any movement for a coherent urban politics and for a Right to the City and public space in a settler-colonial context must always centre justice for First Peoples, as we are on sovereign land, never ceded.


On the 20th October 2016, in a well-publicised and choreographed display of control, Brisbane police forcibly moved on rough sleepers who were living under the GoBetween Bridge. There is a housing affordability crisis in Brisbane and support services for homeless people are chronically underfunded, and yet it is clear that public space is not for them who need it most.

Just under a month later on the 19th of November, a group of peaceful advocates for ‘the right to the city’ had their street protest party broken up before it could start, with police arresting, fining, and ‘moving-on’ some of those who attempted to carry out their event in accordance with the Peaceful Assembly Act 1992 (Qld).

Post Bjelke-Petersen, the Peaceful Assembly Act 1992 (Qld) made peaceful protest in public places — including roads — a legally protected right, giving Queenslanders some of the strongest protections in the country. Despite these protections on 2nd December 2016 a decision was made by a Brisbane magistrate — that the police can require those seeking to use public spaces for peaceful assemblies to pay Brisbane City Council for road closure and traffic control. These services have usually been provided by the police as part of their duties.

In effect, this now means that the right to protest in public space has become a privilege one may be required to pay for — which of course takes it beyond the reach of many, and subverts the notion of a right to peaceful protest in public space.

These new conditions are being levied against specific groups who are organising events in specific places, for specific causes. This increased policing raises questions about the struggle for public space itself, and who and what streets are for.

Not (so) public space

Public space is, of course, a contested idea, with multiple definitions and conceptualisations that are beyond the scope of this article. But much of what we may think of as public space in and around Brisbane is not really ‘public’ space at all. For instance, Brisbane’s Southbank Parklands constitute essential open space in the heart of Brisbane, but it is not a genuinely public space — some private property rights apply and uses are highly regulated. But beyond parks and green space, let’s consider footpaths and streets, which together form some of the largest public space available in cities and the spaces where some of the recent conflict over public space in Brisbane have occurred.

Too often in cities like Brisbane, it is easy to see streets as spaces primarily or exclusively for motor vehicles. Cyclists can sometimes eke out an uneasy existence (though many cyclists will have an anecdote about being harassed by a motorist when using the street — sometimes this harassment is gendered, racialised, or related to body size and appearance, and sometimes it is just about not being a car), but ultimately we understand streets as conduits to be moved along as quickly as possible. But this is only a relatively recent understanding of street-space, and one that is worth contesting.

Photo: Renee Chapman

Formerly, streets were home to a range of different activities and various forms of movement. In the United States there was significant conflict between motor vehicles and other street users — particularly pedestrians — in the 1920s-1930s, and there was a push to ban cars from city streets. This led to motor industry groups coining the term jaywalker (derived from a class-based slur), to reframe the conversation about who and what the streets were for.

In many jurisdictions, jaywalking became a criminal offence. The rise of this term and associated laws marked the switch between streets being a place of diverse uses and users, to streets becoming “chiefly motor thoroughfares, open to others only under carefully defined restrictions”. Jaywalking laws (although they are not always officially known as such) can result in fines and even arrests for people who cross or walk along the street in a fashion deemed inefficient, unsafe, or that obstructs cars. These laws — like others pertaining to the use of public space — are often applied in a discriminatory fashion.

We might see the footpath as a more definitively ‘public’ space. It is, however, quite tightly policed, and many users and uses are restricted. Police move-on powers allow them to force people to leave a public space, including a footpath, if their presence causes anxiety to others. The likelihood of one’s presence causing anxiety is highly subjective, doesn’t necessarily require any actually problematic behaviour, and is undoubtedly shaped by identity, racism, classism, and by power relationships. For instance, Aboriginal and Torres Strait Islander People face both direct and indirect discrimination in the use of these powers, and are far more likely to be moved on than others. Young people, mentally ill people, and rough sleepers — and of course those belonging to a combination of all these groups — are also more subject to the policing of public space than others.

Further, rough sleeping remains essentially criminalised in Brisbane. Although the Vagrancy Act was repealed, public nuisance and move-on laws can and are used to effectively criminalise rough sleeping. Further, section 25(4) of the Brisbane City Council Public Land and Council Assets Local Law 2014 states, “A person may not sleep rough on any council infrastructure”, which also works to exclude homeless people from footpaths and other public spaces.

Other restrictions include footpath dining, which represents a commodification of public space. Control of that area of the footpath is ceded to a restaurant owner, rather than ‘the public’, and if you’re not spending money in that restaurant you’re likely to be asked to leave. Even handing out flyers for non-commercial activities (like a free community event) on the edge of Queen Street Mall or King George Square, or having a jam session with friends, can lead to move-on orders and fines.

Far from being a genuinely open and public space, the footpath is in fact highly regulated and sometimes commodified, though we are not all equally subject to regulation and policing. Certain people and uses are permissible, while other uses, and indeed just the presence of some people, are criminalised.

Struggles over and for space

Settler-colonial nation that we are, Australian cities have always been marked with struggles over space. Streets have been both the sites and objects of contestation, but recent actions suggest the state is seeking to exert further control over who can be where, and when.

Under the Peaceful Assembly Act 1992 (Qld) protesters are required to submit a notice of intention to hold a public assembly — a notice, not an application. Neither council nor the police can simply refuse a notice; they must take the issue to a Magistrates Court, which may then allow the refusal, or the imposition of conditions. The principle behind this is clear — the right of the people to peacefully express their dissent or disapproval of the state’s actions cannot exist at the whim of the state if it is to be a right in any meaningful sense.

Generally speaking, conditions on assemblies are often requested and agreed to, and it is rare for the Magistrates Court to be involved at all. And yet the police recently pursued conditions in the Magistrates Court for two protests — Right to the Street: Protest for the right to public assembly organised by Right to the City — Brisbane in conjunction with unite and Brisbane Free University, and a temporary driveway blockade of the West Village site in West End organised by Cr Jonathan Sri — which would effectively prevent the protests. The former was told they would need to pay hundreds if not thousands of dollars in Council fees should they want to take their protest to the street (a perverse requirement for a protest advocating de-commodified and equitable access to public space), and the latter was told the blockade could be held, as long as the driveway was not actually blocked.

Both decisions shocked many community organisers, who in decades of planning public assemblies in Brisbane had never before been taken to court. Not incidentally, both protests are linked to demands for spatial justice, diverse and affordable cities, and genuinely public space.

Although one might infer motives behind subjecting these specific campaigns to increased policing in their use of public space, in effect this transcends any particular politician, government, or development. The roll back of rights to peaceful public assembly ultimately serves anyone with structural power, any party in or likely to be in government, and anyone who stands to make money out of the commodification of public spaces and the over-scale, unsustainable, and unjust developments that are changing the landscape of the city. Further, this increased policing concerns everyone, even those who do not participate in protests. Targeting peaceful public assembly amounts to targeting democracy itself, because:

democracy requires not only spaces where people can gather to discuss the issues of the day, but also places where ideas can be contested. A democratic society must value public space as a forum for all social groups, where there should be no structural deterrents prohibiting the ability of individuals to participate in public affairs”.

Who do the streets belong to?

This holiday season, many of us might take to the street with a cricket bat and tennis ball to play a game with friends, family, and neighbours — and in doing so, we are engaging in a political act. As innocuous as a game of street cricket might be, you are evoking the pre-jaywalking era when streets were for play and public life as well as movement, and you are staking your claim to a contested space.

As the city develops and densifies, streets and footpaths become an increasingly important part of the public space landscape, but they are also likely to be increasingly contested, and ‘publicness’ is far from guaranteed. Indeed, in Brisbane there is increasing intensity around the struggle for access to and control over these spaces, with once-permitted activities subject to increasing regulation and policing. The ways in which regulations and policing act to ‘permit’ some users and uses, and exclude others on the grounds of politics, race, class, and ability to pay, is a matter of significance not only for land use planning, but for the public life of Brisbane.

Recent acts by the state to restrict certain public assemblies in the streets of your town — those focused on the need for more, better, accessible, and de-commodified public spaces — add urgency to the need for a coherent urban politics that centres the right to the city for all of us. Ultimately it comes down to this: who do the streets belong to, and who belongs in the streets?


ABOUT THE AUTHOR

DR NATALIE OSBORNE

Dr Natalie Osborne is a Lecturer in the School of Environment at Griffith University. Natalie’s work is primarily in the fields of critical human geography and environmental planning. She is focused on social and environmental justice in human settlements and the development of more just, resilient and sustainable futures.

Disclosure

I am one of the founding members of Right to the City — Brisbane, and was involved in some of the protests that have been shut down. I am conducting participatory action research on this topic, with members of Right to the City — Brisbane and Gabba Ward organisers (Griffith HRE 2016/557).