Our Activist Lawyers Network is launched!

A report on the launch of the Activist Lawyers Network

Lawyers network launched

Melbourne Activist Legal Support (MALS) launched our lawyers network with Amnesty International-Victoria on the 30th May 2017.

We heard from several lawyers with combined decades of experience in supporting activists and progressive causes – Matt Wilson (MALS) Rob Stary from Stary Norton Helphan, Meghan Fitzgerald from Fitzroy Legal Service and Danya Black from Environmental Justice Australia.

Rob Stary is well known in Melbourne for providing pro bono representation for activists, but also for working with people who have little resource and need support – his work for the people who other lawyers won’t touch is written about more in this recent article.

He shared a strong perspective on the trends of policing that we have seen in the last decade – describing them as “effectively a paramilitary force”.

One recently introduced piece of legislation was highlighted, the charge of “resisting emergency services workers” which now comes with a mandatory 6 month imprisonment… like so many laws, may have been purportedly designed for one purpose – in this case, a need to protect the important work that emergency workers do, but could be used against activists. He advised lawyers who may be briefing activists to be careful about how they talk about “resisting arrest” charges.

He also talked about patterns of police intelligence gathering. Many groups suspected of terrorism, no matter how tenuous the links, are infiltrated, and of course we all know that even peaceful activist groups are regularly surveilled and infiltrated. They will position themselves as just wanting “a friendly chat” and that they are concerned about them (you are the good guys, we are concerned about the bad guys) which will on

One case study that Stary referenced was the introduction of laws around “supporting directly or indirectly” terrorism. There was a deliberate attempt in 2007 to disrupt the funding of the Tamil Tigers in Sri Lanka… being that “one persons terrorist is another’s freedom fighter” this can be problematic and a number of organisations who work with oppressed minorities in other countries have found themselves targeted with little option for recourse.

In this instance the Sri Lankan diaspora worldwide was supporting humanitarian efforts, and because Australia has no Bill of Rights it was targeted as the best country to stop the flow of resources. People were threatened with supporting a terrorist organisation, even as they sent money to aid and hospitals, and 100 warrants were issued for members of Tamil community. Many houses were raided. 40 000 innocent civilians were slaughtered in 2009. Stary believes that the efforts to send aid were important in providing healthcare and aid during this time.

And finally he reminded us that due to funding cuts to the community legal sector that you can only get legal aid if there is a realistic prospect of imprisonment. In short, we need pro bono legal support for progressive activists now, more than ever

Meghan Fitzgerald has a long history of providing legal support for progressive causes – working with Fitzroy Legal Service, who publish the brilliant activist rights website. She spoke about some successes and some losses – this has included important legal work such as advocating for the right of freedom of speech and assembly after the evictions of Occupy Melbourne – a case that was badly lost, she wryly commented, “lost it brutally, but fought it valiantly”… noting more broadly in an analysis we agree with, that whilst many painted Occupy as a failure, that worldwide it served to shift the discourse on economic justice, as well as provide important training and learning opportunities, and a new sense of community, for a generation of activists, “If it was a failure I was happy to participate in it,” she said.

Another important campaigns was a case in support of halting the East West Link construction. They legally argued the government was acting as a corporation, and called them on failing accountability to the community.

And one of the most inspiring groups she said she was worked with were the homeless community, through the Homeless Persons Union and their supporters, at the Bendigo St stockade – a six month long occupation of houses in Collingwood – the campaign involved communication, legal education, and supporting the discourse around urgent need for more public housing – with 30 000 people on a waiting list currently.

She also talked about how allies are conscientiously exercising their privilege to support and ensure voice is given to the people impacted by the issue. (And also noted that groups like RISE – refugees with lived experiences were important to support)

She also noted the long hours of work involved and the slow process of gained community trust, needing to work to consensus models and the unusual situation of being instructed by a collective, but noted it was the most rewarding work she had done saying, “supporting people who act in civil disobedience should be core duty for lawyers.”

Danya Jacobs has been a long time forest activist, and now a lawyer representing forest activists, and environmental causes – she has participated in substantive environmental law work.

She stated, “protest and civil disobedience has a long and proud history in protecting australia’s environment,” and noted an increasing level of sophistication from grassroots activists groups, such as (our fellow FOE affiliate) GECO who are using an effective mix of on ground direct action, in the form of citizen science, with protest and public advocacy.

This has come about (and been used successfully around the country in other campaigns we have supported such as Broome’s campaign to stop a gas hub, and their community science whale watching program) from a long history of grassroots activist’s DIY approach – they have educated themselves on the issues – it’s not about deferring that work to experts and government.

They have fundraised for the tools and now bring more people to understand and know the issue by community science camps, fauna surveys and using tools such as remote sensor cameras. This can then be combined with important legal work, such as the Brown Mountain case and others – as lawyers can use this data for legal challenges.

She has worked to support activists facing criminal charges for simply trespassing to survey the areas that Forestry Victoria haven’t, as well as people who use nonviolent direct action as a last stand to protect forest areas whilst other legal and political processes are in train, noting that it is an ongoing challenge to keep up with the laws that governments keep introducing to further criminalise this work.

Overall, it was an excellent informative evening, and it was brilliant to see 20 lawyers there, interested in becoming involved in supporting human rights, and environmental and social justice issues by providing pro bono support.

If you are a lawyer with a practicising certificate in Victoria, you can sign up to the lawyers network here. MALS will be providing training and support to lawyers to understand the needs of activists, and Amnesty International is coordinating the work. You can read about some of the roles lawyers can play in the network here.

If you are a lawyer interstate, check in with us at CounterAct – we often have a need for legal collaborators around the country.

If you are interested in getting involved with MALS we need volunteers – you don’t need to be a lawyer – we provide legal observers to events, “Know your rights” education sessions, and more.

With thanks to Amnesty International- Victoria, the Federation of Community Legal Centres, and all the MALS crew.

Nicola Paris,

Counteract

CounterAct supports and works with MALS and has found our work increasingly overlapping in recent years.


 

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Roles of the Activist Lawyers Network

Solicitors can play a vital role in protecting the civil, political and human rights of activists seeking positive change. They can help demystify the law and legal processes, provide concrete information and help activists make informed choices about protest action. Importantly, lawyers can reassure people engaged in civil disobedience by their presence, support and advocacy before, during and after a protest action.

Melbourne Activist Legal Support (MALS) and Amnesty International (AI) Victoria are launching a specialist Activist Lawyers Network who are willing to act pro-bono for progressive activists and activist groups.

Roles of the Activist Lawyers Network

The network’s core roles and functions will include:

(Journal photo by Ron Agnir)
Kate Savidan of the ACLU of West Virginia, holds up a pamphlet with legal information and phone numbers for legal counseling at a training session on Wednesday in Shepherdstown.1) Training and Advice for activist groups

MALS often receives requests for legal advice and legal briefings on topics such as police powers, protest rights and common charges to expect. Sometimes this is of a generic nature but often the legal advice needed is specific to a particular type of action or location. Often activist groups will want to know what the legal consequences of an action may be whilst they are at the planning stage. These legal briefings will generally be weeks or days before an action event or as part of a pre-arranged activist training session.

They could be an hour or two long and involve answering questions such as “what will happen to me if I am arrested?”

Related image

Lawyers at Kennedy Airport during the Muslim ban protests. Credit Victor J. Blue

2) Legal Briefings at protests

Solicitors can also be called upon to provide a legal briefing at an actual protest or just before it starts. This is usually a much quicker briefing for people who are just about to engage in some sort of protest action. Usually at this point the action is already planned and people might require some up-to-date legal information about what charges they might expect or what police could do, such as their search powers in a particular area. It will be usually be outdoors and quick.

3) Legal Observer Teams

Solicitors can act as legal observers but you can be called as a witness so you would not be able to represent activists later. But being on the ground with a team of legal observers is a very valuable role. Solicitors can work with the Legal Observers to discuss police tactics, move-on or arrests, assist with police liaison on behalf of the Legal Observer Team or people who have been arrested.

4) On Call Legal advice

For large actions we sometime run a mobile phone legal advice line that activists can call if they have a legal question or if they are arrested. It would involve lawyers being On-Call and being prepared to provide specific phone advice to people who may be in or just released from police custody. It may involve advising people about their rights in custody, to silence, fingerprints and searches as well as bail and bail conditions. It could involve being on an on-call roster with other solicitors.

4) In custody support

Solicitors can also be valuable protests involving mass arrests, to provide on-site legal advice to activists in police custody. This can involve going to the police station, requesting access to those in custody and providing initial legal advice in person. It can also involve advocacy around their treatment in custody, onerous bail conditions or release times. The presence of solicitors at police stations can be a strong protection against mistreatment.

Image result for ACLU legal training

5) Assisting with complaints about police

Activists often need assistance in making formal complaints about police misconduct. This can involve taking statements, collecting evidence including CCTV footage and assisting the activist lodge the complaint with police, IBAC or Victorian Equal Opportunity & Human Rights Commission. Complaints about police use of force can be important to challenge police human rights abuses and help maintain civil and political rights. Torts can arise and referrals to law firms or the Police Accountability Project are important.

6) Representation in court

Lawyers who can take on activists as clients can assist them prepare for court, advise around pleas and possible defenses and provide actual representation in court. Sometimes activists will face charges in a group at the same court and test cases can be arranged.   Solicitors need to be prepared for some activists not to plead guilty but instead seek to use their court appearance to further advance the campaign. Activists may want to attempt creative defenses or legal arguments and many will want to speak for themselves in court and to media before and after.

Increasingly, activists are seeing the court appearance as part of the campaign and lawyers can help devise effective court strategies to do this.

7) Advocacy & Law Reform

From time to time MALS provides submissions, organises forums or advocacy campaigns against particular anti-protest laws or repressive police powers. We may do this in concert or alone but the assistance of solicitors is invaluable in developing and drafting powerful submissions for the protection of civil and political rights.

REQUIREMENTS:

Lawyers will need to have an up-to date practicing certificate for the State of Victoria and will need to be covered by the Professional Indemnity Insurance through their current employer or practice.

ABOUT Melbourne Activist Legal Support

Melbourne Activist Legal Support (MALS) supports activists to defend their own civil and political rights though the provision of training, resources and up to date information regarding the rights to protest at law in the State of Victoria.

MALS can provide legal direct legal support at major demonstrations, monitoring police engagement with protesters through the deployment of legal observer teams if an when capacity allows.

We can provide legal information or training and help coordinate legal support in conjunction with law firms and community legal centres.

About the Anti-Mask (Public Order) Laws

benny zable

Since our article Anti-Mask Laws proposed in Victoria, was published the Crimes Amendment (Public Order) Bill 2017 has been passed in the Victorian Legislative Assembly and is now law in Victoria.

This article has been updated on 21 June 2018.


PLEASE NOTE: Masks are NOT be banned at all protest events – but ONLY those held in a area that police have declared a ‘designated area’.  (See below for more detail.)


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.”

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 was also conflated with the various outbreaks of youth violence at public events such at the Moomba brawling in 2016.

DESIGNATED AREAS

To understand how these new laws  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 Act provides additional powers for police within those designated areas.

NEW POLICE POWERS

The Act 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 Act is 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 Act amends 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)

NEW OFFENCES

The Act amends 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 now captures 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.

OUR CONCERNS

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 likely to increase with these new laws.

The new law means 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 members of the public 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 now criminalises that practice.

THE Act 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 Act.

STATUS IN PARLIAMENT

The Scrutiny of Acts and Regulations Committee (SARC) examined the Bill  and 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 was accented to and is now law in Victoria.


The new Act can be read online here: http://classic.austlii.edu.au/au/legis/vic/num_act/claoa201732o2017432/

Some more detailed critique of the law here:  https://melbourneactivistlegalsupport.org/2017/03/14/anti-mask-laws-proposed-in-victoria/

and http://www.premier.vic.gov.au/new-laws-to-stamp-out-violence-at-public-events/

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.

Anti-mask laws proposed in Victoria

benny zablePerformance artist and activist: Benny Zable. Photo: Wanagi Zable-Andrews

Artist and activist Benny Zable (pictured above) has been wearing a mask at protests throughout Australia for over 30 years. His distinctive skull-like gas mask and painted death-bringer costume, atop large black radioactive drums has become an icon of the peace, anti-nuclear and environmental movements throughout the country. He is a performance artist who uses his art form to depict a chilling prophesy of nuclear and environmental catastrophe.

But proposed Victorian anti-mask legislation could put at risk this and countless other forms of peaceful political expression and potentially undermine the freedom we have to assemble and associate.

Victorian Attorney-General Martin Pakula will introduce a bill into parliament next week (March 2017) that will contain a new offence of “violent disorder”, with a 10 year maximum and a 15 year maximum if you commit that offence whilst wearing a face covering. The proposed laws will also give police specific powers to order people to remove a face mask and an another new offence if people do not comply.

Aside from the totally unnecessary move to create a new protest related offence when plenty of others (such as ‘riot’, ‘affray’, assault etc) already exist, any laws targeting protesting can dangerously impinge upon basic freedoms of speech, expression and assembly.

Image result for protest masks

According to the Attorney General, “It will be clear in the legislation that we’re only talking about face coverings where the police believe you’re wearing it for the purpose of concealing your identity, or for the purpose of protecting yourself against the impact of capsicum spray and the like.” (ABC Online 13/3/17)

It was only a matter of time before some Victorian Government put up some anti-masks laws.   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 look like they were doing something. The state opposition, police command and the Police Association and Victoria’s police minister Lisa Neville all stridently called for face masks at protests to be banned after Coburg as a way of dealing with the media outrage.  There should be no doubt that these laws are political. They will do nothing to stem the rise of the far-right in Victoria.  Rather than actually confront the growing surge of active street politics by dangerous neo-nazi groups, the Victorian Government seem like they will respond with a blanket increase in penalties and the banning of bandannas.

“The wearing of masks at protests, I think, simply indicates that people have come with the intent of committing some sort of violence and want to evade the law. That is totally unacceptable”  said Liberal Party mp and Shadow Minister for Multicultural Affairs, Inga Peulich in Parliament this month- (8 March 2017).   This simplistic view has driven the introduction of this Bill. It is wrong and its adoption into law could undermine some vital civil and political rights.

It is already a crime in Victoria to be disguised with “unlawful intent” under s 49C of the Summary Offences Act 1966 (Vic). If a police officer has a reasonable suspicion that a masked protester is going to commit a violent act, he or she can arrest and unmask the protester.

Spain, Russia, France, Canada and many other countries have introduced various anti-mask laws over recent decades. Canada passed laws banning the wearing of masks during a riot or unlawful assembly after 2012 Quebec student protests at which only a tiny  proportion of participants wore any face coverings.  In response to the Dakota Access Pipeline protests, local legislators have been preparing laws which would bar people from wearing “a mask or hood that covers part or all of the face when in a public area, ban use of coverings for a person’s face while at a demonstration or rally on private property without written permission.”  Incidentally, anti-mask legislation was first introduced in the United States as a measure to restrict the Klu Klux Clan.

Some anti-mask laws in other countries include exemptions for wearing masks for religious purposes, for theatrical productions, sporting events, parades, civil defense drills and protection from severe weather. Some, but not all, include exemptions for political expression. It is not known what exemptions, if any, the Victorian Bill will include.

On the information we have so far, the bill poses a threat to the freedom of assembly and association and to freedom of political expression for the following reasons.

Masks as political expression

Image result for protest masks history

Masks of all sorts have a very long association with protest and political expression.  We wear them to mock and ridicule public figures and politicians, to symbolize an act of oppression, to express dissent and disdain and as an act of political street theatre.  Masks in some form are common at rallies, marches and political demonstrations and they have been throughout human history.

Liberty Victoria points out that “Protests are public spectacles, often designed to attract media attention. A costume, including a mask, is a visual way to express a political viewpoint. That is why Anti-Iraq protesters constructed paper mache masks to ridicule Bush, Howard, and Blair; why supporters of the band pussy- riot, imprisoned in Putin’s Russia, donned balaclavas to protest the band’s sentence; and why occupy wall street activists adopted the Guy Fawkes mask recently popularized by the film V for Vendetta. These protesters were not violent. They used masks to ridicule politicians, express solidarity, or communicate an idea.”

What this proposed law does is make police the arbiter of this form of political expression.

Ordinary, regular and very non-artistic police members will suddenly have the power to go up to a person at a political demonstration and demand that they remove their face covering.

If a political artist like the renown Benny Zable does not comply then he risks being arrested.

There is also a blurry line when it comes to face coverings and where the limits of this law will lie.  Religious headscarfs? Funny hats that cover the eyes? Groucho Marx glasses? Paper-mache politician heads?  If the proposed laws contain exemptions how will police determine what is acceptable or unacceptable? Vague but punitive laws and arbitrary policing has a chilling effect and deters people from attending protests or choosing to express themselves due to fear of repercussions, even if what they are intending to do is not actually unlawful.

The right to anonymity

“The right to protest should not be contingent on consent to surveillance” says 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.    This very point was once affirmed by an important US civil rights case brought before the United StatesImage result for protest masks

Supreme Court (NAACP vs. Alabama 1958)  which stated that ‘Inviolability of privacy in group association may in circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

Protesters have legitimate reasons for wanting to conceal their identity.  We may not wish to be subject to police surveillance, and scrutiny In an era of ubiquitous CCTV and street cameras, police filming units and the use of facial recognition technology, any facial image obtained by Victoria Police can be utilised in numerous unregulated and intrusive ways and can be stored indefinitely. The Victorian Parliament is yet to legislate or provide any restrictions or regulatory guidance about the police use of facial recognition technology despite it being in use for several years now.
Fear of retaliatory violence is also very real for protest groups confronting far-right or neo-nazi groups on the streets.   Far-right groups have used social media to identify counter- protesters, naming them in blogs and Facebook pages and attracting comments making threats of violence.  Several assaults of activists who had been identified by nazis have occurred since the first Reclaim Australia rally in early 2015.   In these circumstances it is understandable that some people might want to protect their identity at rallies without having any intention of engaging in criminality.

In this political climate, many activists face a difficult decision. If they take to the streets and protest on a controversial campaign (especially a campaign that has involved both legal and illegal tactics), they risk this surveillance, harassment and intimidation.  If they don’t take to the streets, they are compromising their beliefs and remaining silent about the things that matter.

For many, a solution has been to continue protesting on these campaigns, but with masks covering their faces. It clearly isn’t always the best solution. But wearing a mask doesn’t mean activists are guilty, or that they are ‘terrorists.’  For many activists, it simply means they don’t trust police, ASIO or others intent on doing them harm.

Masks as protection

Many commentators have already pointed out that faces at modern protests are often covered with scarves, goggles, gas masks or handkerchiefs in response to police use of chemical-based weapons such as pepper (OC) spray and tear gas. 

Image result for street medicThe use of OC, capsicum foam at protests in Victoria has skyrocketed in recent years, and has correlated with the rise in people wearing some form of face covering.  Even professional journalists covering protests now wear some sort of face protection to make sure the spray doesn’t get into their nose, eyes and mouths whilst taking photos. Medics and legal support teams wear face protection.  When police deploy OC spray or foam at a protest event, it is inevitable that many people in the vicinity including other police, can be severely affected.  In some OC spray incidents at Melbourne rallies up to 70 people were affected by spray at any one time. The need for some sort of mouth and nose covering is very real.

The Attorney General has stated that the legislation will only target face coverings where the police “believe you’re wearing it for the purpose of concealing your identity, or for the purpose of protecting yourself against the impact of capsicum spray and the like.” (ABC Online 13/3/17).  If the wearing of protective face coverings becomes unlawful under this new legislation it will be yet another infringement upon our right to assemble without the risk of state violence.

“Masked, I advance”  ― The opposition to this Bill

This Bill is only about to be introduced and opposition to it is likely to grow. It will take several months before it becomes law.

Liberty Victoria has already come out strongly against any laws banning masks, stating:

“Simply banning all masks at protests would be a broad brush “one size fits all” approach that undermines our civil liberties when the case has not been made as to why such laws are necessary and proportionate. To the same end, to introduce a mandatory or prescriptive sentencing model for those who commit disorder offences while wearing masks would cause injustice and represent a further erosion of judicial discretion in sentencing. Any bill that proposes such measures should be opposed.”

Liberty Victoria’s full statement came be read here (PDF).

Fiona Patton (MP) from the Australian Sex Party has spoken out in parliament about any proposed anti-mask legislation. “Such a decision could have negative flow-on effects for the very groups targeted. Mask or no mask, if you are behaving in ways that are not consistent with acceptable behaviour, police already have the power to act in such circumstances.” She said back in June last year.

Melbourne Activist Legal Support will be watching this Bill closely and providing further commentary.  There will likely be an opportunity for community, legal and human rights groups to make submissions at some point and we will keep people up to date as things change or progress.

Watch this space.

Lawful or Unlawful?

“I support your right to protest, as long as you don’t break the law…”

“I support your right to protest, as long as you don’t break the law”. How many times have you heard this statement from police, from politicians, from passers by, or even friends and family?

legal-illegalA Victorian Premier, when questioned about protesters picketing a company building said that while he respected the right of people to protest peacefully, “they have no right to break the law.”[1]

“The Government supports peoples’ right to protest lawfully. These amendments will preserve that right, so long as the protest activities do not put anyone’s safety at risk or break the law” states another government media release a few years back.

This supposed support for the right to protest, as long as it is “lawful”, assumes a great number of things. It assumes that in Australia we have ample and sufficient political space for us to protest. However, the criminal law throughout Australia encompasses a huge range of offenses that can be and are used against activists if the police or the government of the day choose. How much political space we actually have depends on a complex range of factors.

It also assumes a level of legal clarity that simply does not exist. When it comes to public protests or political actions, what is lawful and unlawful is often very confusing and is always changing as new laws are introduced and old laws re-applied or changed. Police will often use a legal construct called ‘Breach of the Peace‘ as the reason to arrest, to move-on or use force against protesters – yet that legal term is extraordinarily vague and open almost entirely to the police member’s interpretation and ‘reasonable belief’.

Image result for student protest arrest melbourneAlthough lawyers can provide advice about what the current law says and what charges are possible, the way in which police and government apply and use the law is always changing and hard to pin down.

Police have a fair degree of discretion about how they apply a particular law, what arrest power they use and what charges to lay at a particular time. They decide whether they arrest or charge at all. Police may simply stand by when activists chalk on the road during one protest, or they may arrest people at a different protest for doing exactly the same thing.

Seemingly innocuous activities such as honking your horn as you drive past a picket or weaving ribbon through a wire fence have been interpreted as offenses in Australia. Mostly they are ignored – but police could charge you with a traffic offense if they choose to.

When activists camp on public land at or near the site of a protest, local council powers may be used by police even when no issue of trespass arises. Decades old and archaic council by-laws can be revived for an anti-protest purpose. Activists handing out leaflets in Melbourne were once fined using a by-law that hadn’t been enforced since the 1960s.[2]

When existing laws are not adequate to restrict activists or stifle our ability to protest, a new law can be created, sometimes specifically to deal with a particular protest.

The famous Aboriginal Tent Embassy in Canberra is a classic example of this. On 26th January 1972, when four Aboriginal men, Michael Anderson, Billy Craigie, Bertie Williams and Tony Coorey, set up the Aboriginal Tent Embassy in Canberra overnight it was lawful to camp on the lawns opposite the then Parliament House.

However, after the Embassy had grown in size and had become a powerful international symbol of Aboriginal land rights, the government made a minor amendment to the Trespass on Commonwealth Lands Ordinance in a midnight sitting which banned camping on unleased Commonwealth land within Canberra. Suddenly, the Tent Embassy was unlawful.

On July 20, just hours after the new law came into effect, police moved in forcibly evicting the tents and arresting activists.

People who say that they support protest as long as it doesn’t break the law’, are also saying that they believe  activist do not really need to break the law in order to be effective. Well, history says otherwise.

Sometimes breaking the law is the whole point

Civil disobedience is the deliberate and conscious refusal to obey, or violation of, a law believed to be unjust.

The deliberate violation of laws has played a crucial part in Australian political history. The Aboriginal land rights and civil rights movement, union struggles for wages and the eight hour day, women’s campaigns for the vote, and the modern peace, social justice and environmental movements have all been effective. Hundreds of people have been arrested in large civil disobedience actions throughout Australia at many protests against US bases, uranium mines, asylum seeker detention centres and blockades of old growth logging operations.

A famous and influential theorist of civil disobedience in the western world was Henry David Thoreau.  Thoreau’s essay, On the Duty of Civil Disobedience (1849), influenced Gandhi, Martin Luther King, and countless other activists.

He said,

“It is not desirable to cultivate a respect for the law, so much for the right Law never made men a whit more just; and by means of their respect for it, even the well-disposed are daily made the agents of injustice. . . the demands of conscience are higher than the demands of the law.”

The argument that the demands of conscience are higher than the demands of the law is central to all civil disobedience.

To break or not to break the law…

Although some activists may knowingly break laws, or engage in deliberate civil disobedience, not all activists deliberately seek to break the law.

Those who do so often consider and weigh up the costs and consequences of unlawful action carefully and make clear choices.

Even activists who go to great lengths to stay within the law can inadvertently break laws and find themselves arrested. Laws can be used against activists in order to control or stifle protest and dissent even when there is no intention by activists to break the law.

It is not the case that activists are criminals. It is more often the case of the legal system working to criminalise activists.

So why is this important?

This so called distinction, between ‘lawful’ and ‘unlawful’ forms of protest is an artificial and deliberate one.

The distinction is used politically to restrict protest action to what is perceived to be less threatening; protest that is easier to police and contain.

The distinction is also used in an attempt to divide  protest movements into those engaged in ‘lawful’ protests from those who may used ‘unlawful’ forms of protest of resistance – a divisive tactic aimed at deterring more conservative groups or members of the public from working with groups involved with civil disobedience.

The ‘lawful / unlawful’ distinction attempts to generate an arbitrary boundary around forms of protest available to the movement – a boundary that at all times should remain within the control of the movement itself.

Anthony Kelly

Anthony is a member of Melbourne Activist Legal Support and the organiser of multiple Legal and Human Rights Observer teams since the World Economic Forum protests in 2001.

This article originally appeared in an earlier form on activistrights.org.au, published by the Fitzroy Legal Service. These views are his own. 

[1] ‘Police union calls for East West Link protesters to be charged’ by Matt Johnston, Herald Sun, 6 November 2013.

[2] ‘Mounted Police attached peaceful Nike picket’, by James Grafti, Green Left Weekly, 9 May 2001

Statement of Concern: Treatment of Legal Observer 18/7/15

Wednesday 22nd July 2015
Melbourne Activist Legal Support (MALS)

On Saturday, 18th of July, 2015, at approximately 12:43PM on the corner of little Bourke and Spring streets, in Melbourne, Australia a MALS Legal Observer had their mobile phone snatched out of their hands by a Victorian Police member from the Operations Response Unit (ORU) during counter-protests to the Reclaim Australia rally.

The Legal Observer was pushed and yelled at aggressively by the police member. The mobile phone was not returned when requested and was later found smashed a short distance away. When asked by a senior officer, the police member in question denied he had taken the phone.

Legal Observers play a critical and well recognised role in the protection of human rights. Legal Observers monitor, investigate, gather information regarding and report on human rights violations. Volunteer Legal Observers are recognised as Human Rights Defenders by the Office of the United Nations High Commissioner for Human Rights(1) and as such fall under the protection of the UN Declaration on Human Rights Defenders.(2)

This forced confiscation of the phone by police is unlawful and represents a concerning violation of the right to independently monitor police action. Any infringement on the ability to monitor or record the actions of public authorities during public protest events is of serious concern.

Melbourne Activist Legal Support will be submitting a formal complaint to Victoria Police regarding this incident and seeking assurances from Victoria Police regarding the police behaviour toward Legal Observers at future events.

Members of the public or journalists with information are asked to contact the Flemington Kensington Community Legal Centre on fklegal@fkclc.org.au or 03 9376 4355.

The series of images below capture the incident.

Screen Shot 2015-07-21 at 11.48.29 pm

Melbourne Activist Legal Support (MALS) is a volunteer organisation that provides legal assistance to groups and communities exercising their right to undertake grassroots political action. MALS provides direct protest support services at major demonstrations: monitoring police engagement with protesters, providing basic legal information to persons at risk of being arrested, and coordinating litigation support in conjunction with law firms and community legal centres.

1 Office of the United Nations High Commissioner for Human Rights (www.ohchr.org)

2 Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (http://www.ohchr.org/Documents/Publications/FactSheet29en.pdf)

ASIOland: changes to Australia’s national security legislation

By Elizabeth O’Shea

Originally published by Overland, 1.Oct.14

There has been plenty of hype over the recent changes to Australia’s national security legislation, and rightly so. But it is worth spending a moment to work out what actually is already on the books, what is new, and what’s coming.

Prior to the recent amendments, the biggest and most controversial set of reforms to the Australian Security and Intelligence Organisation Act 1979 were passed in 2003. In the wake of the 11 September terrorist attacks, ASIO was given a sweeping new set of laws to work with. Continue reading

Summary Offensive – Know Your Rights: Victoria’s new ‘move on’ laws

Information for activists on the amendments to the Summary Offences Act 1966 (Vic)

Police have always had powers to deal with protesters and picketers in different situations. Earlier this year, the Victorian Government gave police officers and Protective Services Officers (’PSOs’) some new powers for protest situations by expanding existing ‘move on’ powers. You may have heard this referred to as the ’Anti-Protest Laws’ or the ’Summary Offences Bill’. Whilst the new move on powers are undemocratic and can affect protesters and picketers, protesting in Victoria is not illegal. Continue reading