Since our article Anti-Mask Laws proposed in Victoria, was published last month the Crimes Amendment (Public Order) Bill 2017 has been introduced and passed in the Victorian Legislative Assembly so we now know what this new anti-protest law entails.
PLEASE NOTE: THIS IS NOT YET LAW. It may not be a law until 2018. If it does become law, Masks will NOT be banned at all protest events – only those held in a area that police have declared a ‘designated area’. (See below for more detail.)
MALS held a public forum on the Bill on Tuesday 16th May with speakers from the Human Rights Law Centre, Flemington Kensington Community Legal Centre and the Fitzroy Legal Service speaking about the key elements of the proposed new law and its potential impacts upon our civil and political rights. About 35 people attended the forum and expressed a range of concerns about the Bill and its intended and unintended consequences upon the right to protest in Victoria.
For those who missed the forum, the CRIMES AMENDMENT (PUBLIC ORDER) BILL 2017 was introduced into parliament by the Victorian Attorney General, Martin Pakula to allow “new measures to prevent serious disturbances of public order, including outbreaks of violence at protests, demonstrations and other public events.”
As we have stated before, the intense media and public outcry after the clashes between neo-nazi and Antifa groups in Coburg in May 2016 meant that the pressure was on to introduce laws that make it look like the government is doing something about this. Since then the rationale for these laws has also been conflated with the various outbreaks of youth violence at public events such at the Moomba brawling last year.
The following is based upon our presentation at the recent forum.
To understand how these proposed new laws would work you need to understand how ‘Designated Areas’ already work in Victoria
The Chief Commissioner of Victoria Police already has the power to declare a specific area or event to be a ‘designated area’ under the Control of Weapons Act 1990 (Section 10D or 10E) if they believe or assess that there was previous use of weapons in that area or during previous occasions of the event or that they assess that there is a ‘likelihood that violence or disorder involving the use of weapons will occur in that area’.
These ‘designated areas’ were introduced in 2009 to allow police to deal with the perceived rise in youth knife-related crime several years ago, which was disputed at the time.) Designated areas are now increasingly being used in protest situations.
This provides police with additional powers to search people and vehicles without warrant within that defined area for up to 12 hours.
The new bill would provide additional powers for police within those designated areas.
NEW POLICE POWERS
The Bill provides additional police powers in designated areas to require a person wearing a face covering to either remove their face covering or leave the area immediately
A police officer who reasonably believes a person intends to use the kind of violent and antisocial behaviour that would constitute one of the new public order offences of affray or violent disorder created by this bill will be able to direct a person to leave a designated area.
If the person refuses to comply with this order to leave, they will be committing an offence.
In detail, this Bill would amend the Control of Weapons Act 1990 with
1) new section 10KA(1) which would allow a police officer to direct a person wearing a face covering to leave a designated area if the person refuses to remove it when requested.
(the police officer must reasonably believe the person is wearing the face covering primarily to conceal his or her identity or to protect himself or herself from the effects of crowd-controlling substances such as capsicum spray)
The Bill would amend the Crimes Act 1958 to abolish the common law offences of affray, rout and riot and create new statutory offences of affray and violent disorder (new sections 195H or 195I)
Affray will capture all conduct that currently constitutes the common- law offence of affray. “uses or threatens unlawful violence and whose conduct would cause a person of reasonable firmness present at the scene to be terrified” – Maximum penalty 5 years
Violent disorder, committed when six or more persons use violence for a common purpose, and that conduct damages property or causes injury to a person – Maximum penalty 10 years
If committed wearing a face covering the maximum penalty rises to 7 years for affray and 15 years for violent disorder.
Any laws targeting protesting can dangerously impinge upon basic freedoms of speech, expression and assembly.
It is important to acknowledge that it is already a crime in Victoria to be disguised with “unlawful intent” under s 49C of the Summary Offences Act 1966 (Vic).
USE OF MASKS AS POLITICAL EXPRESSION
Police already asking people to remove masks at protests. this is likly to increase with these new laws.
The new law would mean Police become arbiters of expression versus intent to commit violence.
THE RIGHT TO ANONYMITY
“The right to protest should not be contingent on consent to surveillance” – Liberty Victoria.
At times, particularly in circumstances where a protest is about controversial views, maintaining our anonymity may be critical to allowing freedom of association.
If attending a protest necessarily entails intrusive surveillance from the state or the threat of violence from other groups then you cannot really say we have genuine ‘freedom’ of peaceful assembly.
Furthermore, Victoria Police use of Facial Recognition Technology is currently unregulated
MASKS AS PROTECTION
Masks are commonly used at protests to protect attendeees from OC foam (Including journalists, observers, medics etc).
The use of OC, capsicum foam at protests in Victoria has skyrocketed.
It is inevitable that many people in the vicinity including other police, can be severely affected. In some incidents up to 70 people were affected by spray at any one time.
Scarves, goggles, gas masks or handkerchiefs are used by journalists, media photographers, legal observers, street medics or bystanders.
This law would criminalise that practice.
THE BILL CONTAINS NO EXEMPTIONS OR PROTECTIONS
Some anti-mask laws in other countries include exemptions for wearing masks for religious purposes, for theatrical productions, sporting events, parades, civil defence drills and protection from severe weather.
Some, but not all, include exemptions for political expression. There are currently no protections or exemptions in current Bill.
STATUS IN PARLIAMENT
The Scrutiny of Acts and Regulations Committee (SARC) has examined the Bill in its current forum and has referred it back to Parliament for its consideration on the question “whether or not clauses 6 and 7 (police powers in 10KA(1) etc) are suitable, necessary and proportionate limitations on the implied freedom of political communication.”
The Bill will next be debated by the Legislative Council on the 24th May 2017.
The actual Bill can be read here: http://www.parliament.vic.gov.au/static/www.legislation.vic.gov.au-bills-status.html
Some more detailed critique of the Bill: https://melbourneactivistlegalsupport.org/2017/03/14/anti-mask-laws-proposed-in-victoria/
Last year the Human Rights Law Centre launched a report, Safeguarding Democracy, that documents the unmistakable trend of governments at national and state level steadily chipping away at free speech, a free press, peaceful assembly, open government and the rule of law – some of the foundations of our democracy.