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.

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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

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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.

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What is this thing called Legal Observing?

And why do you wear those pink vests?

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Legal Observers, or Human Rights Monitors as they are sometimes called, have become a common sight at large scale protest events throughout the western world over the past decade or so and the chances are you have seem MALS Legal Observers in the pink hi-vis vests at a protest in Melbourne.

Working in organised teams in hi-visibility vests, arm-bands or special caps and armed with clipboards and cameras, Legal Observers are becoming more common at protests as governments increase police powers, restrict protest activity and roll-back basic democratic freedoms in ways once unimaginable.

The independent citizen monitoring or police at protests has a long history. In the United States the Black Panthers was perhaps the earliest group to deploy community legal observers to patrol and monitor the policing of Black communities in the late 1960’s and early 1970’s. In Australia, priests were called upon to act as observers and to provide a moral deterrence to police violence.during the large anti-Vietnam War moratorium marches.  The Legal Observer Team formed in Melbourne for the S11 protests against the World Economic Forum were the first in Australia since that time. Observer teams have been used for many decades in places like Northern Ireland, where independent civilian groups formed ongoing human rights monitoring teams with the aim of documenting and deterring the brutality of the occupying military and police force.

Image result for legal observers More recently, legal observer teams were deployed at many large scale anti-globalisation demonstrations around the world – including the protests held in Seattle, Prague, Quebec, Washington, London, Torronto, Melbourne, Sydney and Brisbane.

Internationally, citizen initiated, third party observer and monitoring projects are becoming more common. Amnesty International US recently fielded Legal Observers during protests in Ferguson, Missouri and sent teams of Human Rights Observers to the Dakota Access #NoDAPL Pipeline protests.  The US National Lawyers Guild (NLG) routinely field Legal Observers throughout the United States.

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The goal of a Legal Observer Team is to ensure and enhance the political ‘space’ within which people protest. The highly visible presence of independent citizens helps to ensure that abuses of the civil, legal or human rights of citizens at the hands of police do not go unnoticed. The presence of Legal Observers should reduce the probability of police abuses or may assist in ensuring that arrests are carried out in a less violent way. Legal Observers therefore act as a viable form of deterrence of police violence.

Legal Observers often act for as the eyes and ears of a larger legal team — to observe and record incidents and the activities of law enforcement in relation to the demonstrators.

This includes documenting any arrest, use of force, intimidating display of force, denial of access to public spaces like parks and footpaths, and any other behavior on the part of police that appears to restrict activist’s ability to express their political views.

This documentation is done in a thorough and professional manner, so that lawyers representing arrestees or bringing an action against the police will be able to objectively evaluate the lawfulness of police conduct.  Information gathered by Legal Observers  has contributed to defending and advancing the rights of activists in many scenarios. Documentation has also been critical for detailed analysis and reporting on the police actions at protests.  See some of those Legal Observer reports see our Resources page here.

Legal Observers don’t give legal, tactical, or political advice, negotiate with the police for demonstrators, or speak to the media or public on behalf of the protest.   We will however speak publicly about police action and about human rights abuses we witness and report afterwards.  Legal Observers are trained not to interfere in arrests but instead take in as much information as possible.

Third-party presence

Image result for legal observersAs public order policing becomes increasingly paramilitary –by deploying violence and force against groups of unarmed people –so the need for independent Legal Observing and counter-surveillance of police actions becomes more acute.

Legal (or third-party) Observer Teams aim to provide a level of independent and impartial scrutiny at community protests and political events that serves to deter police from using violence against citizens. The deterrence effect of a Legal Observer Team can include the simple effect of being observed, the threat of future civil legal sanctions against police, the reinforcement of existing police accountability mechanisms or the possible application of domestic civil rights or international human rights mechanisms. Legal Observers act as on-the-ground witness’s so that our notes, our photos and out testimony can be used in follow up court action or for complaints against police.  Being a third-party (ie. not one one of the protesters) means that our testimony has more credibility in a court.

Legal Observers wear vests or some form of clear visible identification in order to stand out and to ensure that the police and public notice us. Being visible and being seen is crucial. Legal Observers will often stand so that police will notice our presence.

Image result for legal observersSignificantly, third-party observation or ‘presence’ can also serve to reduce the level of fear experienced by activists when faced with violent or coercive police responses. The presence of Legal Observers can be reassuring for activists when isolated or fearful of what the police may do.

This reassurance function is less tangible but and important impact of a legal observer presence. In contexts where the legislative and police response to protest is intimidation and overwhelming show of force, the presence of independent third parties dedicated to civil and political rights can be critical.   Both the deterrence effect and the reduction of fear are important objectives of the Legal Observer teams.

Most people are alienated from the law, by obscure legal language, and by the decisions that are made in courts and parliaments. At the same time, protestors are disproportionately targeted by the state and police authorities and disproportionately entangled in the law and criminal justice system.

By providing clear legal information, assisting protestors to give statements and making complaints against police abuses, Legal Observers help people to use the law to assert their civil and political rights, and -in so doing –help give people more control over what happens to them.

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The deterrence impact of Legal Observers is very limited however and can never be relied upon. Horrific abuses and infringements of rights occurs despite the presence of observers.

But the presence of dedicated, trained and identified observers adds to and reinforces, both practically and symbolically, the range of legal, ethical and political constraints on police behaviour which already exist. These constraints, which include international human rights covenants, public and media scrutiny and public opinion, the threat of legal sanctions and civil litigation against individual police, and current Police ethical standards, protocols and standing orders, will not prevent the police nor private agents abuse power nor will they prevent gross violations of people’s rights occurring.

But Legal Observers, by being on the ground and accurately witnessing and documenting abuses, can serve to strengthen the limited effectiveness of these constraints on police behaviour.

For more information about the roles, scope, mandate and skills involved in Legal Observing have a read of our 20 page Legal Observer Handbook(PDF)

NETPOL: Network for Police Monitoring in the United Kingdom have this great guide How to Be a Legal Observer.

Huffington Post ran this article Legal Observers Help Monitor Police which is worth a read too.

Want to try it out?

You don’t have to be a lawyer or legally trained to be a Legal Observer but training in the relevant laws, police powers and observer skills and protocols is important. If you’d like to become a legal observer and you are based in Melbourne then keep an eye out for our next training on our training page. or join our email list.

Anthony Kelly