Our rights to protest, demonstrate and take part in political activities are recognised by the Universal Declaration of Human Rights (1948) as well as many international human rights conventions and covenants.
A right to freedom of peaceful assembly is part of international law under the United Nations Declaration of Human Rights 1948 (Article 20) and the International Covenant on Civil and Political Rights 1966 (ICCPR) (Article 21). The right to engage in participatory democracy "without unreasonable restrictions" is clearly acknowledged by the ICCPR (Article 25).
Although it is difficult to assert these rights in Australia, because most of the rights have not been incorporated into Australian domestic law, you do have legal rights when protesting.
Protesting is confrontational and often attracts the attention of the police. Sometimes the police will accommodate protest and not seek to exercise their authority. You may in fact consider contacting the police before a protest to allay fears that they may have about the intentions of a protest. However, the police often do exercise their authority by (sometimes pre-emptively) arresting and detaining people suspected of committing offences.
If engaging in a protest that you anticipate may result in arrest or detention, it is good to understand the nature and scope of police powers, and the common charges laid against protesters.
While an overview of the law of bail and police powers can be found in Chapters 3*2 Arrest and Interrogation, and 3*3 Bail, respectively, some of the key bail issues and common charges associated with protests are highlighted here.
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.
The object of bail should simply be to ensure that you attend court, and not to control your life. If you cannot negotiate with police to not include an oppressive bail condition, you have four basic options:
- accept bail and comply with the condition;
- accept bail and breach the condition: here, you risk bail being refused if you are re-arrested;
- accept bail and seek to have the condition changed at a later date by a court; or
- refuse bail and stay in custody until you can have the condition removed by a court (during business hours) or by a Bail Justice (out of hours).
If you are putting your case before a Magistrate, consider whether you may have a legitimate reason for attending a designated area (e.g. attending work, study or transport connections), which would make the imposition of a restriction condition overly oppressive. Such arguments have been successfully made in the Magistrates' Courts to challenge these types of bail conditions. If, however, a 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.
For further information, see: Chapter 3.3 Bail.
If a court imposes a fine as a penalty, it must take into account your personal circumstances and capacity to pay a fine. You may request to pay by instalments or work off any fines through community work.
Note:
1. As of 1 July 2010 a penalty unit (pu) specified in Victorian law is $119.45 (as published in the Victorian Government Gazette G10, 11 March 2010).
2. At the time of writing (1 July 2010), under Commonwealth law a penalty unit was $110.00 as per section 4AA of the Crimes Act 1914 (Cth) ("Crimes Act (Cth)").
The police may threaten this charge if they simply want someone out of the way.
Under Victorian law the police must prove that you were in some way preventing "the free passage of the public" (s.4(e) Summary Offences Act 1966 (Vic) ("SOA")). The maximum penalty is 5 penalty units. Police also have "move-on" powers (s.6 SOA) however these powers do not apply to demonstrations.
Commonwealth law has a section more clearly aimed at demonstrations: a person "taking part in an assembly [who] engages in unreasonable obstruction" at a Commonwealth facility or in a Commonwealth territory commits an offence (s.9 Public Order (Protection of Persons and Property) Act 1971 (Cth) ("Public Order Act"). The penalty is a fine of up to 20 penalty units.
Under Victorian law it is an offence to wilfully trespass in any place and neglect or refuse to leave that place after being warned to do so by the owner, occupier or a person authorised by the owner or occupier (s.9(1)(d) SOA). The maximum penalty is 25 penalty units or six months jail.
The corresponding Commonwealth offences do not require that a warning be given, but provide for a defence of "lawful" or "reasonable excuse" (s.89(1) Crimes Act (Cth) and ss.11(1) & 12(1) Public Order Act). The penalty for both offences is a fine of up to 10 penalty units. Trespass on certain types of premises is governed by different Acts; e.g. regulation 35 of the Defence Force Regulations 1952 (Cth) authorises the Minister to declare a place to be a prohibited area and creates offences of entering or remaining without permission. The maximum penalty is 20 penalty units or imprisonment for six months, or both.
In Victoria unlawful assembly is not defined in an Act of Parliament but is a common law offence prohibiting an assembly of three or more people with an intent to commit a crime by open force, or with intent to carry out any common purpose, whether lawful or not, in such a manner as to give reasonable people in the vicinity reasonable grounds to fear a breach of the peace.
Also, under section 10 of the Unlawful Assemblies and Processions Act 1958 (Vic), any person who attends and takes part in an unlawful assembly, as defined by the Act, which includes any political demonstration, is guilty of an offence. This charge is very rarely used, but it does illustrate the power that governments have to stop "political" actions if they wish to do so.
Under Victorian law it is an offence to use 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 (s.17(1) SOA). The maximum penalty for a first offence is 10 penalty units or two months jail. "Public place" is very widely defined and includes roads, streets, alleys, footpaths, parks, gardens, railway stations, trains, piers, churches, state schools, theatres, markets, sporting grounds and open areas. It is always open to argue that current community standards dictate that the conduct over which a person has been charged with this offence may not amount to obscene, indecent or threatening behaviour.
The Commonwealth "offensive or disorderly manner" law is associated with the trespass law. Under sections 11(2) and 12(2)(a) of the Public Order Act, it is an offence for a person who "while trespassing on premises in a Territory" or "being in or on Commonwealth premises ... behaves in an offensive or disorderly manner". These both carry penalties of up to 20 penalty units.
Note that the meaning of "offensive or disorderly" has to be established, and that the common law defence of "reasonable excuse" could be used.
Under Victorian law it is an offence for anyone, alone or together with others, to wilfully and without lawful authority "beset" any premises, whether public or private, for the purpose and with the effect of obstructing, hindering or impeding by an assembly of people any person's lawful right to enter, use or leave such premises (s.52(1A) SOA). The maximum penalty is 15 penalty units or three months jail.
The charge of besetting requires all entrances to the property to be obstructed, and that there was no other option for entering the premises (i.e. the premises must be completely surrounded).
Under Victorian law it is an offence to "assault, resist or hinder" or to incite someone else to "assault, resist or hinder a member of the police force in the execution of his duty", including the making of an arrest (s.52(1 ) SOA). "Resisting" means opposing by force and "hindering" means making the arrest or other police action more difficult to carry out. It does not matter whether the resistance or hindrance actually prevents the arrest or other action.
It is not an offence to passively resist arrest, or to run away before an arrest has commenced. It is also not an offence to resist or hinder a police officer who is not acting in the execution of their duty, such as by making an illegal arrest, or by the police using excessive force. It is a defence to the charge if you did not know that the person resisted was a police officer. The maximum penalty is six months jail or a fine of 25 penalty units. An assault will attract a more serious penalty than resist or hinder.
It is also an offence under Victorian law for someone to obstruct, assault, threaten or abuse an authorised officer in the performance of their functions under the National Parks Act 1975 (Vic) (s.45(1)). The maximum penalty is six months jail or 20 penalty units.
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" (schedule 1 item 149(1) Criminal Code Act 1995 (Cth)). The maximum penalty is two years jail.
Riot is a common law offence. The prosecution must prove that three or more people were gathered together, with a common purpose, with intent to assist each other, 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. The Magistrates' Court does not have jurisdiction to hear riot charges. These offences will ultimately be heard in the County Court. The maximum penalty is 10 years imprisonment.
Affray is also a common law offence. The prosecution must prove that there was fighting or violence used by one or more people against another or other people, or an unlawful display of force, and this might cause a reasonable bystander to be terrified. Affray can be heard in a Magistrates' Court. The maximum penalty is five years imprisonment.
Damage to property could occur unintentionally during an action or may be an actual part of the political protest. Postering and graffiti (see below) can sometimes result in these charges.
Under Victorian law there are also a number of offences which relate to damaging property. The most significant of these is set out in section 197 of the Crimes Act 1958 (Vic) ("Crimes Act (Vic)"), which provides for jail sentences of up to 15 years where there is an intention to endanger life or damage property. Where the intention is to simply damage property, the maximum penalty is 10 years imprisonment. Generally this section is used for the more serious examples of damage to property, where the damage to property costs more than $500 to repair. This charge could be laid by police in situations involving gluing padlocks, painting security cameras or pulling down a fence. In addition to the sentence, police will usually ask the court to order that the defendant repay the cost of the damage to the property. This can be a significant amount.
Wilful damage charges are generally used for circumstances where there has been less significant damage (under $500) to property. These less serious property damage offences can be found in sections 7 and 9 of the SOA. The maximum penalties are much lower: six months jail or a 25 penalty units.
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 under section 7 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.
Penalties for property damage offences can range from an "adjourned undertaking" through to imprisonment. If you cause only minor damage to property, and you have few or no police priors, the penalty will fall towards the lower end of this range.
Penalties and compensation orders will reflect the damage alleged to have occurred. The prosecution should provide some evidence by way of statements or quotes as to the cost of repair should they seek a restitution order.
As always, you should seek legal advice if you are charged with any of the above offences.
Note: There are other laws, including local council laws, relevant to damage to property, graffiti and postering. It is an offence to post placards, bills, stickers or other documents, or to write, paint on or deface virtually any structure, including such things as trees and gates, without the consent of the owner (s.45(O) Environment Protection Act 1970 (Vic) ("EPA"); s.10 SOA). It is up to you to prove that you had the consent of the owner. The maximum penalty under the SOA is 15 penalty units or three months imprisonment, although you are more likely to receive a fine of below $500. Under the EPA the maximum penalty is 10 penalty units. In addition to a fine you can be ordered to pay clean-up costs.
It is an offence to deposit advertising material anywhere but a mailbox (s.45L EPA), including on a vehicle (s.45N). It is not an offence to deposit material that has a "political purpose" into mailboxes labelled with "no junk mail" or "no advertising material" (s.45M(1)(b)).
The Crimes Act (Vic) offence of stalking was originally intended to give more force to the Crimes (Family Violence) Act 1987 (Vic) [repealed]. However, given the wide definition of stalking in section 21A(2), it has the potential to be applied to protest situations.
"Stalking" is engaging in a course of conduct (not just a single act) such as: following or telephoning someone, or giving offensive material to someone, and having the result of causing physical or mental harm. The penalty is up to 10 years jail. The aggrieved person may also seek an intervention order against you (see: Chapter 5*4 Family Violence).
Burglary is the offence of trespassing on property with criminal intent. This could be used where protestors enter private property with the deliberate intention to damage it. The penalty is up to 10 years imprisonment.
In addition to offences outlined above, there are a range of criminal offences which can be used against forest protestors. Legislation, including the Safety on Public Land Act 2004 (Vic) ("SPL Act") and the Sustainable Forests (Timber) Act 2004 (Vic) ("SFT Act"), contribute an array of offences, virtually identical in character to existing offences under the Conservation, Forests and Lands Act 1987 (Vic), the Forests Act 1958 (Vic) and the Land Act 1958 (Vic).
The SPL Act empowers the Secretary of the Department of Sustainability and Environment (DSE) to make declarations excluding the public from areas of state forest (zones) for a variety of purposes including the conservation of flora and fauna and public recreational activities. Offences under the SPL Act tend to relate to breaches of these zones and attract fines up to 20 penalty units (ss.10, 14, 15 & 16). One of the exceptions to this is the offence of hindering or obstructing an officer of the DSE while exercising their duties or powers under this act, which attracts a maximum fine of 60 penalty units (s.20).
The SFT Act includes offences of:
- failing to give your name and address to a DSE officer (s.84; max. penalty: 5 pu);
- hindering or obstructing a DSE officer exercising their duties or powers under the SFT Act (s.86; max. penalty 60 pu); and
- threatening or abusing a DSE officer in the execution of their duty (s.87; penalty: 60 pu).
For more information regarding offences relating to forest operations visit the Lawyers for Forests Inc. website at www.lawyersforforests.asn.au or write to: PO Box 550, West Melbourne Vic 8007.
Police are increasingly being assisted by other officials at protests, such as DSE officers at forest protests, Australian Protective Services officers at detention centres and private prisons, or security firms generally in protecting private property from demonstrations. Powers of government or quasi-government officials will be specified in the relevant legislation.
Private security guards are not police officers and do not have most of the powers that police officers have. The power of arrest of private security guards is usually limited to the citizen's arrest powers, where someone is caught red-handed committing a serious (indictable) offence, as provided in section 462A of the Crimes Act (Vic) (see: "Use of force in arrest" in Chapter 3*2 Arrest and Interrogation). However, the current Victorian Government is seeking to introduce legislation that will significantly increase the search and arrest powers of Protective Services Officers in certain designated areas (for example train stations). As the legislation is currently only in Bill form, you should check with your local Community Legal Centre for updates.
The other additional power that security guards have is that which is vested in them by the owners of the private property, to protect that property. In some cases this power may be written in legislation about the organisation, such as the Act establishing a university. Like police, private security guards can use "reasonable force" to perform their lawful functions. However, what is reasonable force for a security guard to use should be less than what is reasonable for a police officer.
The Victorian Ombudsman can only investigate the conduct of local and state government employees. There is no independent complaint mechanism for the unreasonable behaviour of private security guards. Where you have sufficient evidence and significant injuries have been incurred, civil action against the private security firm may be appropriate.
Alternatively, you may wish to complain to the Licensing Services Divison of Victoria Police by emailing: licensingservices@police.vic.gov.au
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PROTESTING :: Last updated: Thu Jul 1st 2010