PROTESTING & COMMUNITY ACTIVISM

Although the rights to protest, demonstrate and take part in political activities have not yet been incorporated into Australian law, you do have legal rights when protesting. In order to minimise the potential for legal repercussions, you might want to consider contacting the police before any community action to clarify the intention of the action.

Bail

If the police are going to charge you immediately with an offence, they may seek to impose bail conditions that cover the period up until your case is heard. A common bail condition used against demonstrators is to “stay away from an area”, to prevent you from returning to the protest site. It is an infringement of your basic human right to freedom of association and, as such, you should object to such a condition.

If you cannot negotiate your bail conditions with the police, you have the option of accepting the conditions and seeking to have them changed at a later date at the Magistrates’ Court. If the magistrate decides that the bail condition should stand, and you are forced to accept or lose your freedom, as a last resort you can consider lodging an urgent application to the Supreme Court to vary the bail and delete the condition.

In July 2008 the infringement system was expanded on a trial basis to include offensive behaviour and property damage under $500. This means the police could issue you with an infringement notice and there would be a fine to pay but no criminal charge.

Common charges associated with protests

The table below outlines some of the charges that result from protests in Victoria, their source (legislation or common law), the essential elements of the charges and the penalties (if known).

Note: This is by no means an exhaustive list and there are other laws, including local council laws, relevant to damage to property, graffiti and postering. See The Law Handbook Chapter 11.

Note: As of 1 July 2009 a penalty unit specified in Victorian law is $116.82 (as published in the Victorian Government Gazette S132, 15 May 2009).

At the time of writing (1 July 2009), under Commonwealth law a penalty unit was $110.00 as per section 4AA of the Crimes Act 1914 (Cth) ("Crimes Act (Cth)").

OTHER POSSIBLE OFFENCES

In Victoria it is an offence to mark publicly visible graffiti without the prior express consent of the property owner (s.5 Graffiti Prevention Act 2007 (Vic) ("GPA")). It is also an offence to mark publicly visible graffiti that is offensive, even with consent (s.6 GPA); however, section 6 provides an exception for reasonable political comment. The maximum penalty is two years jail for breaching either section. It is also an offence to possess a graffiti implement with the intention of using it to breach sections 5 or 6. The maximum penalty for possession is 25 penalty units.

Common charges associated with protests

CHARGE	SOURCE	ELEMENTS	PENALTIES
Obstruction	s.4(e) Summary Offences Act 1966 (Vic) s.9 Public Order (Protection of Persons and Property) Act 1971 (Cth) ("Public Order Act").	You must have in some way prevented “the free passage of the public.” A person "taking part in an assembly [who] engages in unreasonable obstruction" at a Commonwealth facility or in a Commonwealth territory commits an offence	Maximum penalty is 5 penalty units. Penalty is a fine of up to 20 units
Trespass	s.9(1)(d) Summary Offences Act 1966 (Vic) (s.89(1) Crimes Act (Cth) and ss.11(1) & 12 Public Order Act).	You must have wilfully trespassed and refused to leave after being warned to do so. The corresponding Commonwealth offences do not require that a warning be given, but provide for a defence of "lawful" or "reasonable excuse".	Maximum penalty 25 penalty units or six months jail. Penalty for both is a fine up to 10 penalty units.
Unlawful Assembly	Common Law	There must have been an assembly of three or more people with an intent to commit a crime, or with another intent that gave reasonable people in the vicinity reasonable grounds to fear a breach of the peace.	N/A
Offensive Behaviour	s.17(1) Summary Offences Act 1966 (Vic) s 11(2) and 12(2)(a) Public Order Act (Cth)	You must have used indecent or threatening language or behaviour in or near a public place, or within the view or hearing of a person in a public place. The Commonwealth "offensive or disorderly manner" law is associated with the trespass law. Offence to trespass on commonwealth premises or " behaves in an offensive or disorderly manner".	Maximum penalty for a first offence is 10 penalty units or two months jail. Fine of up 20 penalty units.
Besetting	s.52(1A) Summary Offences Act 1966 (Vic)	You, whether along or in a group, must have obstructed all entrances to a property (whether public or private), and left no other option for entering the premises (i.e. the premises must be completely surrounded).	Maximum penalty is 15 penalty units or three months jail.
Offences against police	s.52(1 ) Summary Offences Act 1966 (Vic) s149(1) Criminal Code Act 1995 (Cth)	You must have assaulted, resisted or hindered a member of the police force in the execution of his or her duty. “Resisting” means opposing by force and “hindering” means making the arrest or other police action more difficult to carry out. Under Commonwealth law it is an offence to "intentionally and knowingly obstruct, resist, hinder, use violence against, threaten or intimidate" a member of the Federal Police carrying out a "function or duty"	Maximum penalty is a 25 penalty units or six months jail. An assault will attract a more serious penalty than resist or hinder. Maximum penalty is 2 years jail
Riot	Common Law	Three or more people must have been gathered together, with a common purpose, using force if necessary, against anyone who opposed them; and also used or threatened force or violence in such a manner as to terrify reasonable people.	Maximum penalty is 10 years jail.
Affray	Common Law	There must have been fighting or violence used by one or more people against others; or an unlawful display of force; and this might have caused a reasonable bystander to be terrified.	Maximum penalty is five years jail.
Property Damage (greater than $500)	s. 197 Crimes Act 1958 (Vic)	There must be an intention to endanger life or damage property where the damage to property costs more than $500 to repair.	Endanger life - Maximum penalty is 15 years jail. Damage property - Maximum penalty is 10 years jail.
Property Damage (less than $500)	ss. 7 & 9 Summary Offences Act 1966 (Vic)	You must have wilfully caused personal injury or damage to property.	Maximum penalty is 25 penalty units or six months jail.