Filming Police Using Excessive Force – Your Rights and the Law
The media has recently reported on a case involving a disabled man being held down, beaten and capsicum sprayed by a group of Police at a home in Victoria. CCTV footage of the October 2017 incident captured the six police officers using excessive force by ‘beating’ the man as he lay on the ground. Another incident in late 2017 involved a 12-year old youth being held down by four officers at a train station, whilst bystanders filmed the incident and vocally objected to the use of excessive force. However, what rights do you have if you film Police using excessive force? Is filming the Police legal and what should you do with the footage?
Excessive Force and Police Powers
Police are permitted to use reasonable force to apprehend/arrest an offender if the Police Officer reasonably believes the offender has committed an indictable offence. However, where the suspect resists arrest, the use of force must be proportionate to the force of the person who is committing an indictable offence. Police also have powers under the Mental Health Act to use force in order to transport a person to a hospital who is showing signs of suffering mental illness to keep both the individual and the community safe.
However, Police are not permitted to:
- use excessive force;
- engage in improper conduct;
- engage in conduct that is likely to bring Victorian Police into disrepute, or
- act carelessly in discharging their duty.
Camera Phone Footage and the Law
Strictly speaking, there is no law preventing the filming or taping of Australian police officers. However, you must not obstruct or prevent them from carrying out their duties in any manner. It is an offence to obstruct the police in the performance of their duty without a lawful excuse. The maximum penalty for obstructing a police officer is 1-year imprisonment. If the police officer forms the view that your obstruction amounts to an assault (placing the police officer in fear or touching him or her without their permission), then the penalties can be up to 5 years imprisonment. The police also have certain powers to request you to ‘move on’ in circumstances where the police reasonably believe that you are breaching the peace, are likely to cause harm to another person, property or public safety.
A police officer cannot detain you for filming an officer on duty, provided the filming occurred in a public place. Police cannot force you to refrain from filming an incident, seize the recording device or force you to delete images or recordings without your consent or a warrant from a judge. Taking the device or forcibly requesting the images be deleted may constitute an offence of assault or trespass on behalf of the police officer. Even if a police officer asks you to stop recording, there is no law requiring you to comply with such request, except in the following circumstances:
- If the police were performing a specific covert operation at the time (e.g. anti-terrorism raid); and
- A situation which you may cause serious harm to yourself or bystanders by filming (e.g. in the middle of a shooting incident).
If the images captured record a criminal offence, or you have captured a crime, you may be asked to provide the images to be used as evidence, but they cannot be forcibly obtained.
Reporting Incidents Involving Excessive Force
If you witness inappropriate conduct or believe the police acted inappropriately towards you (including the use of excessive force) you can complain to the Independent Broad-based Anti-Corruption Unit (IBAC) by visiting their website. You can also complain directly to the Victorian Police Conduct Unit.
 Crimes Act 1958 (Vic) s 459.
 Crimes Act 1958 (Vic) s 462A.
 Mental Health Act 2014 (Vic) s 351.
 Victoria Police Act 2013 (Vic) s 125(1)(h)(j)(k).
 Crimes Act 1958 s 343(1); Victoria Police Act 2013 (Vic) s 174.
 Victoria Police Act 2013 (Vic) s 174.
 Summary Offences Act 1966 (Vic) s 6(1).
 Crimes Act 1958 (Vic) s464I.
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Views expressed in this article are not necessarily endorsed by Leanne Warren and Associates.