I outline below my reasons below for why police have been acting unlawfully in that section of Musgrave Park known as the Deed of Grant in Trust.
Police have invoked their move on powers under Police Powers and Responsibilities Act 2000 and the Bail Act against people on that land to prevent the carrying-on of aboriginal business like social, cultural, educational and political gatherings.
Police misuse of the move-on powers is ongoing and should stop.
Magistrate Costello will hand down a decision tomorrow (24 Jan 2013) concerning the use of the Bail Act to exclude three people arrested by police on that land on 12 December 2012. Police were using their move on powers. Is is unlikely that magistrate Costello will rule on the unlawfulness of police actions tomorrow, but he should, someone should.
The legal argument
The police state (in their legal brief):
That the Brisbane City Council is the governing authority for Musgrave Park, granting permits to persons or organisations to occupy the site for specified times. No persons are permitted to camp or reside on site unless authorised by the Brisbane City Council.
The defendants (Coco Wharton, Boe Skuthorpe-Spearim, Hamish Chitts) say they were on aboriginal land.
The land on which the offences are alleged to have occurred may be in the area referred to colloquially as Musgrave Park but it is in a separate parcel of land with a separate title (see Deed of Grant and plan from the titles office referring to “an Aboriginal purpose”). The land was granted to the Brisbane City Council (“BCC”) by way of a Deed of Grant in Trust (“DOGIT”) for Aboriginal purposes only.
The council leased the land to the Queensland State Government under the Department of the Arts, Attorney-General and Minister for Justice (NOW Science, Information Technology, Innovation and the Arts).
The State of Queensland (Dept of the Arts ) is lessee of the land for a term of 30 years from 23 Jan 2001. It has exclusive possession of the aboriginal land and entitled to give or refuse permission for people to come on to or remain on the land . The Brisbane City Council as lessor has no such right.
The police state (in the prosecutor’s brief):
An authorised officer from the Brisbane City Council previously attended the offence location and lawfully requested all persons remove tents and structures from the park (sic) and move on. These persons camping did not comply with Council requests and subsequently police were requested to assist in the removal of these persons from the site.
For the reasons stated above, the BCC had no authority to make the request.
A further (sic) direction was issued by a Commissioned Officer of police (Inspector Dave STEVENSON) to leave the area, failure to do so may result in a use of force being utilised to affect the councils lawful purpose.
Since the BCC had not the lawful right to request the defendant to remove tents and structures from the aboriginal land and move on, the police direction made at the request of the BCC to give effect to the false assertion of that right by council is not a lawful direction and failure to comply is not an offence.
The charges against the three defendants should be dismissed and the police should refrain from using move-on powers in that section of Musgrave Park designated as for ‘aboriginal purpose’.