Browne v Assistant Commissioner of Police, North West Metro Region [2026] FCA 15

Browne v Assistant Commissioner of Police, North West Metro Region [2026] FCA 15 is a Federal Court decision about the legal limits on broad search powers and the need to properly consider privacy rights when those powers are authorised. The case concerned a Victorian police declaration that turned a large part of Melbourne into a designated area under the Control of Weapons Act 1990 (Vic). That declaration allowed police and protective services officers to use powers that would not ordinarily be available, including searching people and vehicles without a warrant and without any suspicion of wrongdoing. The case also involved a challenge to a separate statutory power dealing with face coverings in designated areas.

The Court held that the declaration itself was affected by jurisdictional error and therefore invalid. It also held that the declaration was unlawful under the Victorian Charter because the decision-maker failed to properly consider privacy rights and otherwise impermissibly limited rights by acting outside the power conferred by the Act. However, the Court rejected the constitutional challenge to the face-covering provision itself. For business readers, the practical lesson is not about police powers as such. It is about how any organisation should approach intrusive controls. If a measure affects privacy, movement, access or participation, the decision-maker must apply the correct legal test, identify why the measure is necessary, and keep the scope and duration within proper limits.

The declaration was made on or around 25 November 2025 by Assistant Commissioner Curran as a delegate of the Chief Commissioner of Police. It designated an area described as Melbourne CBD and Vicinity. According to the judgment, the declaration was originally to operate from 12.00 am on 30 November 2025 until 11.59 pm on 29 May 2026, which was nearly six months. That was significant because the Assistant Commissioner had made 16 declarations under the Act in the previous 12 months, but each of those earlier declarations had been for no longer than 24 hours. The 2025 amendments to the Act had opened the way for declarations under one pathway to last up to six months, and the evidence showed there had been discussion within Victoria Police about whether the Melbourne CBD and surrounding area could be declared for a substantial period.

The applicants were Tarneen Onus Browne, Benjamin Zable and David Hack. Each was involved in rallies and protests from time to time. Their challenge was not abstract. On 7 December 2025, Mr Hack was travelling to the State Library of Victoria to attend a rally when police stopped him and searched his bag, relying on the designated-area search power. That gave the case a concrete factual footing. The applicants argued that the declaration had been made without satisfying the statutory preconditions, that the decision-maker had not formed the legally required state of satisfaction, and that the declaration unlawfully interfered with rights protected by the Charter. They also argued that the face-covering provision burdened political communication in a constitutionally impermissible way.

The evidence about how the declaration was made also mattered. Assistant Commissioner Curran relied on an affidavit and was cross-examined. The Court accepted that he was earnest, competent and honest, and said no criticism of him was warranted. His evidence was that he received a nine-document pack at around 9 am on 24 November 2025, including intelligence summaries and maps of crime locations in the proposed area. He reviewed the material for roughly two hours, with short interruptions, and decided to make the declaration at 11.35 am. His affidavit addressed his understanding of the Act, previous incidents of offending, the expected deterrent effect of the declaration, the chosen area, the six-month duration, alternative measures, and his consideration of Charter rights. The case therefore turned on legal validity, not misconduct.

The central issue was whether the Assistant Commissioner validly exercised the power to declare a designated area under s 10D of the Control of Weapons Act 1990 (Vic). The judgment shows that the Court focused on the statutory criteria in s 10D(1)(b), including whether more than one incident of violence or disorder involving weapons had occurred in the area in the previous 12 months and whether it was necessary to designate the area for the purpose of enabling police or protective services officers to exercise search powers to prevent or deter violence or disorder that was likely to occur. The extract also shows that the Court treated the meaning of the word "necessary" as an important issue in the statutory analysis.

The applicants ran two closely related primary grounds. First, they said the decision-maker did not in fact form the state of mind required by the Act as a precondition to the exercise of power. Secondly, they said that if he did form a state of satisfaction, he did so on an incorrect understanding of the law. The Court's summary of its conclusions shows that these grounds succeeded because the decision-maker's understanding of and approach to the statutory criteria was erroneous. That error had a dual effect. It meant the correct statutory criteria were not applied, and it also meant the necessary state of satisfaction was not reached as a matter of fact.

The case also raised Charter issues. The applicants argued that the declaration was incompatible with human rights within the meaning of s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic), and that the decision-maker failed to give proper consideration to relevant rights, especially the right to privacy protected by s 13. The Court accepted those arguments. In addition, the applicants challenged the constitutional validity of s 10KA(1), the face-covering provision. That constitutional issue is important for understanding why the matter was in the Federal Court. The administrative law and Charter questions arose under Victorian law, but the proceeding also involved a matter arising under the Constitution, and notices under s 78B of the Judiciary Act 1903 (Cth) were filed and served.

The applicants succeeded on the main challenge to the declaration. The Court held that grounds 1 and 2 were established because the Assistant Commissioner's understanding of and approach to the statutory criteria was erroneous. The judgment summary states that this erroneous approach had the dual effect of meaning that the decision-maker did not apply the correct statutory criteria and did not, as a matter of fact, reach the necessary state of satisfaction. On that basis, the declaration was affected by jurisdictional error and therefore invalid.

The applicants also succeeded on the Charter grounds. The Court held that grounds 8 and 9 were established because the decision-maker failed to take into account certain Charter rights, in particular the right to privacy protected by s 13, and otherwise impermissibly limited those rights by making the declaration outside the power conferred by the Act. The formal declarations made by the Court state that the designated area declaration was incompatible with human rights within the meaning of s 38(1) of the Charter and therefore unlawful, and that it was also unlawful because proper consideration had not been given to s 13 in the manner required by s 38(1).

However, the applicants did not succeed on everything. The Court rejected the constitutional challenge to s 10KA(1), the face-covering provision. The catchwords and the judgment structure show that the Court identified a moderate burden on political communication but held that the provision was reasonably appropriate and adapted to advance a legitimate purpose in a manner compatible with the constitutional system of representative and responsible government. So the face-covering provision itself remained valid.

As for relief, the Court made declarations but otherwise dismissed the application. No further relief was required because the instrument had already been amended to end before the hearing. The Court also made no order as to costs. That procedural outcome is useful in itself. Even where a challenged instrument has expired or been revoked, declaratory relief can still matter if the issue is capable of recurring and if the decision has already had practical effects on people.

Most businesses will never have anything like a statutory police search power. But many businesses do adopt measures that affect privacy, movement and participation. Common examples include bag checks at venues, customer screening, ID checks, CCTV expansion, facial recognition trials, contractor searches, event entry conditions, and rules about masks or face coverings. This case shows that broad powers and broad policies are vulnerable when the decision-maker cannot show the source of authority, the correct test for using the measure, and the reasons why the measure is necessary.

The strongest practical lesson is about privacy. The Court treated privacy as a right requiring real attention, not a box to tick after the main decision had already been made. If your business is considering a measure that intrudes on customers, staff or attendees, you should identify the privacy impact at the start. Ask what information will be collected, what searches or directions staff may give, what alternatives exist, and whether the same objective can be achieved in a less intrusive way. If the answer is yes, the broader measure becomes harder to justify.

The case also highlights the risk of overreach in scope and duration. The evidence referred to a large geographic area and a long operating period, with reasons including practical convenience and avoiding repeated declarations. Courts are often cautious when a targeted response starts to look like a standing arrangement. In business terms, if you need a temporary control for a specific event, incident pattern or risk period, keep it tied to that context. Review it regularly. Do not let a short-term response become the default operating model without a fresh assessment.

Another important point is that good faith does not cure legal error. The Court accepted that the Assistant Commissioner was honest and competent, yet still found the declaration invalid and unlawful. Businesses should take the same lesson seriously. A well-intentioned operations manager, venue manager or HR lead can still create legal exposure if they rely on a broad safety objective without applying the actual decision criteria, fail to consider privacy impacts, or cannot explain why the measure was necessary at the time it was introduced.

The judgment is also a reminder that records matter. Assistant Commissioner Curran's affidavit set out his decision-making process, the document pack he reviewed, his understanding of the Act, and his reasons for the area and duration chosen. The Court still found error, but the case shows how closely a court may examine the material that was before the decision-maker, the time taken to review it, and the way the statutory criteria were understood. For businesses, that translates into a simple operational point. If you are introducing a privacy-intrusive or access-restrictive measure, create a short written record at the time. It does not need to be elaborate, but it should identify the authority relied on, the risk being addressed, the reasons the measure is considered necessary, the alternatives considered, and the review date.

Training and implementation also matter. If staff are going to search bags, inspect identification, ask someone to remove a face covering, or deny entry based on a policy, they need a clear script and escalation path. Inconsistent enforcement increases legal and reputational risk. So does a policy that is broader on paper than it is in practice, or vice versa. A business should be able to show not only that the policy was justified when adopted, but also that staff understood its limits.

Finally, this case is a useful warning against relying on broad deterrence language without evidence and structure. The affidavit referred to behavioural change and deterrence, and to the publication of powers, but the Court's conclusions show that a general belief that a measure may help is not enough if the legal criteria are not correctly applied. In a business setting, that means you should avoid vague statements such as "this will make people behave better" or "this is the safest option" unless you can tie them to a defined risk, a proper authority, and a proportionate response.

This page explains the decision using the judgment text that sets out the orders, catchwords, background facts and part of the Court's reasoning. It is enough to support a careful public explainer of the dispute, the issues and the outcome. Some of the more detailed reasoning appears beyond the text used here, so this page avoids adding finer detail that is not clearly stated.

If you need to rely on this case for a detailed legal argument, the full judgment should be checked for the complete analysis of the statutory term "necessary", the full treatment of the Charter issues, and any additional reasoning on relief. For most business readers, the practical point is already clear from the published orders and reasons available here: intrusive measures need a proper legal basis, a correct decision-making process, and real consideration of privacy impacts.