Court Finds CBD Designation Unlawful
On 23 January 2026, the Federal Court of Australia handed down a decision that found that an exercise of power by the Victorian police had been unlawful. The decision concerned the police’s designation of the entire Melbourne CBD for a six-month period under a provision that gives police extensive powers, including to stop and search individuals without a warrant. This page outlines the Federal Court’s decision.
The facts
In the matter of Browne v Assistant Commissioner of Police, North-West Metro Region, Tarneen Browne and other activists challenged a decision by the Victorian police to declare a large area incorporating the entire Melbourne CBD a ‘designated area’ under the Control of Weapons Act 1990.
The designation was intended to run from 30 November 2025 until 29 May 2026
Under the designation, the police had the power to stop and search people with our a warrant or a reasonable suspicion, to require people to remove face coverings, and to require people to move on from the area.
The decision was met with a lot of criticism from community and human rights groups who argued that the geographic scope of the designation as well as the lengthy operational period posed risks of discriminatory policing and human rights violations.
The activists’ application to the Federal Court argued that the designation was unlawful as it did not meet the criteria under the legislation, and that it breached human rights.
Misapplication of the law
Under section 10D of the Control of Weapons Act 1990, the chief commissioner of police may declare an area a designated area if:
- more than one incident of violence or disorder has occurred in that area in the previous 12 months that involved the use of weapons and there is a likelihood that the violence or disorder will recur; or
- more than one incident of violence or disorder has occurred in that area in the previous 12 months that involved the use of weapon; and it is necessary to designate the area for the purpose of enabling police or protective services officers to exercise search powers to prevent or deter the occurrence of any violence or disorder that is likely to occur; or
- an event is to be held in the area and incidents of violence or disorder involving the use of weapons have occurred at previous occasions of that event (wherever occurring) and there is a likelihood that the violence or disorder will recur; or
- an event is to be held in that area and there is a likelihood that violence or disorder involving the use of weapons will occur in that area during the period of intended operation of the declaration.
The federal court found that the assistant commissioner of police who made the declaration did not correctly apply these tests. It found that there was insufficient evidence of a heightened risk to justify the existence of such broad powers across the entire CBD for the period of the declaration.
Incompatibility with human rights
The court also considered whether the declaration was compatible with the Victorian Charter of Human Rights and Responsibilities. The charter protects the rights of people in Victoria, including the right to freedom of movement, freedom of assembly and protest, and privacy.
The court found that the declaration, which gave police the power to stop and search people without a warrant and without a reasonable suspicion that a law was being broken; to move people on from the designated area; and to direct people to remove facial coverings, amounted to an unjustifiable interference with basic human rights.
Jurisdictional error
The court found that the assistant commissioner had failed to properly consider the legislative test and had failed to consider the declaration’s compatibility with human rights. As such, he had acted outside of his legal authority and the decision was invalid.
Proportionality
The court found that expanded police powers must be proportionate to the threat. It found out the declaration was disproportionate because:
- the evidence of risk in the CBD area was vague and speculative
- the power was applied to everyone in the designated area, including those engaging in legally protected protest
- the duration of the designation, six months, was excessive.
Consequences of the decision
The Federal Court’s decision makes it clear that the Victorian police can only designate an area when there is a genuine risk of weapons-related offending.
The decision means that many police searches conducted under the designation while it was in place were likely unlawful. It also casts doubt over the legality of other designations and the searches conducted under them.
Sarah Schwartz, legal director of the Human Rights Law Centre, said the decision ‘laid bare the significant and systemic failures in Victoria Police’s decision-making process’.
The Victorian police said they would respect the decision.
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Fernanda Dahlstrom is a writer, editor and lawyer. She holds a Bachelor of Laws (Latrobe University), a Graduate Diploma in Legal Practice (College of Law), a Bachelor of Arts (The University of Melbourne) and a Master of Arts (Deakin University). Fernanda practised law for eight years, working in criminal law, child protection and domestic violence law in the Northern Territory, and in family law in Queensland.