#NotWithYou: Why more weapons for Victoria Police is a Very Bad Idea

In a carefully orchestrated public relations launch on Thursday 22 March, Victoria Police revealed it’s armoury of new repressive weaponry.

The Chief Commissioner of Victoria Police, Graham Ashton has expressed concern about how these weapons will be perceived by the public.  “We need the community to be with us on this’’ he said.  Well, we are not and here’s why.

The Operations Response Unit (ORU) received an initial $7.6 million with an ongoing ($35 million) over five years to “improve the management of large scale or high-risk public order incidents.”  The Victorian government, as part of its inappropriately named ‘Public Safety Package’ announced this funding back in 2016 and now we see what VicPol ended up buying with it.
These new weapons will be used by the Operational Response Unit (ORU) and distributed from a new hi-tech vehicle that will record evidence and can livestream to an offsite command centre. Most of these weapons have already been in use in some form by specialist units such  the Critical Incident Response Team and Special Operations Group and have come out at recent prison protests or hostage scenarios.   However this represents a significant rollout to more ‘regular’ public order police.
The only weapon that is totally new for VicPol is the VKS Pepperball firearm (pictured below). A 175 shot semi-automatic rifle that fires capsicum rounds, blunt force pellets the size of marbles or dye markers to brand people for arrest later.  These pellets can blind, maim and leave permanent injuries depending where they hit the body. (Check out the demo for it here.)   There’s footage of these guns being fired at protesters in Portland Oregan (USA) last year here.
 
The 40-millimetre rubber bullet launcher so proudly displayed by  Superintendent Tim Tully has resulted in significant injuries and fatalities around the world. Just last year a 25 year old protester was killed by a rubber bullet in Paraguay.
Stinger grenades  – (pictured below) is a pain compliance, distraction and disorientation device for ‘crowd management’, it may be hand thrown or launched in the general direction of the crowd and may be deployed for ground bursts or aerial bursts at the discretion of the operator  – It explodes releasing nine 32-calibre rubber pellets to waist height with a range of five metres.
The Flash/noise distraction grenades designed to shock and disperse crowds are routinely being used in Israel/Palestine and other conflict zones and have maimed children, can burst ear drums and  generate dangerous fear and panic in crowds.
In terms of capsicum canisters, that detonate to release a cloud of capsicum, deaths can occur if people and gas gets trapped in a confined area such as in prison cells.

Injuries from Less Lethal Weapons:  – Theodore C. Chan, MD, FACEP, Professor of Clinical Medicine, University of California San Diego Medical Center.

Instead of investing in communities these new expensive weapons increase the likelihood of violence against communities that are not valued in Victoria, t

A ‘Stinger Grenade’ mentioned above

he incarcerated and the marginalised. They will be used against teenagers at parties, against frustrated prisoners, and against citizens standing up against injustices that the government ignores.

Having observed and documented crowd control policing over the past seven years, Melbourne Activist Legal Support can safely say Victoria Police already deploy riot equipment unnecessarily, inappropriately, dangerously and in ways that infringe upon human rights. We have witnessed OC Spray being used indiscriminately, and against police’s own regulations –  on multiple occasions.
Victoria Police have stated that the main purpose for deploying these weapons is to “enhance the safety of community members and our members”. No  – these are weapons will be used against Victorian citizens.  Independent studies show that riot gear has a destabilising effect at public order events, tending to aggravate and escalate the situation and making it far more dangerous for both community and police.  Riot policing generates fear, anger, distrust and disorder.
At an event referred to during the media launch, the Milo Yiannopoulos protests in Flemington in December 2017, MALS Legal Observers witnessed police ignore hours of vitriolic racial and religious abuse of local residents by white nationalist groups, then we saw intensely provocative riot formations deployed against the very people who had experienced the abuse. Many local residents felt they they were under attack by police.
“One man who has lived at the housing estate for 15 years said he had been standing with his arms linked with other residents in a peaceful stand against the right-wing protesters who were taunting them, when they were doused with pepper-spray by police wielding batons.” –The Age 13 December 2017

Photo: Jason South

Far from justifying the purchase of these weapons, the policing in Flemington that night proved that riot policing makes things worst, and that policing in Victoria is already more intensively focused upon marginalized and ‘less-valued’ communities.
Whenever weapons like this are brought out at protests, kids parties (yes, teenage parties the spill out into the street) or during prison protests, they are routinely misused.
The almost daily misuse of OC spray by Victoria Police is a case in point.  These new weapons make the abuse of civil, political and human rights in Victoria more likely and more severe.  Under human rights law, any restrictions on protest, and any use of force, must be for a legitimate purpose and be proportionate to that aim.  We know from experience that these new weapons will be used without a justifiable purpose, against people posing no threat to police, and in disproportionate ways.

Police spraying toward a Legal Observer and toward no-one who was threatening him – in contravention of Vicpol’s regulations of use. – Melbourne, June 2017

This million dollar purchase by the Victorian government demonstrates the reach of the ever-growing Global Non-Lethal Weapons Market – a multi-billion dollar export industry in repressive technology that fuels conflicts, human rights atrocities and state repression around the world.  Law enforcement departments everywhere have been sucked in by the slick marketing of this ‘less-than-lethal’ arms industry.  Much of the repressive tech that VicPol purchases is never actually deployed (they have LRAD sound cannons for instance but never used them). Whilst civil and political unrest is very profitable for the companies driving this market, it costs taxpayers millions that could be otherwise spent on people and communities.

If the safety of the Victorian community is indeed the highest priority for Victoria Police – it should look to building trust and accountability.  If the Victorian Government is serious about community safety then investing in community resources, infrastructure and support would be far more effective and perhaps a tad less likely to infringe upon Victoria’s own Charter of Human Rights and Responsibilities.
Police misconduct, police abuse of power, police pointing guns into crowds and dressed up like robo-cops all serve to destroy trust.  Victoria Police already have strained relationships with many sections of our community, do they really want to distance and dehumanise themselves even further?
The Human Rights Law Centre (HRLC) has reported upon the disturbing trend of state governments passing draconian laws that curb civil and political rights and restricting civil society organisations to advocate.  The actual or threatened use of these sorts of repressive weapons also impinges upon our civil and political rights. If people stay away from a protest out of fear of police then their right to peaceful assembly is being restricted.  If people leave a peace assembly if they see police with weapons then their right to peaceful assembly is being restricted.

So what can we do about it?

The actual use of these new weapons is not guaranteed. Their deployment depends upon the context of the protests, the social and political climate and whether or not these weapons would be seen by media and the wider community as ‘acceptable’, ‘reasonable’ or ‘appropriate’ under the circumstances.
By ‘revealing’ these weapons to sympathetic journalists in such a careful way,  and writing to community organisations and human rights bodies that same day,  Victoria Police were essentially asking for a social license to use them. It is imperative that they are not given this.
If Victoria Police anticipate a public, media and political backlash it will deter use of these weapons.
Likewise, if they perceive, rightly or wrongly, that they may face costly litigation after these weapons are deployed then that may also serve to restrict their use.
The role of legal observers, human rights advocates and activist lawyers will be critical if these weapons are ever deployed against members of the public in Victoria

We are citizens not enemy combatants.  Do not deploy weapons on us.  #NotWithYou


Further background:

This new riot gear is part of the $2 billion Victorian State Government package that includes a massive new training facility for special operations police, a $15 million a ‘state-of-the-art, New York-style’  24/7 Monitoring and Assessment (surveillance) centre in Melbourne’s CBD.
Also included is a $227 million IT data intelligence program run by SAS Institute Australia which will merge databases and allow predictive tracking that will make the Cambridge Analytics revelations seem relatively benign.  Body worn cameras, as well as more than 3100 extra police officers are part of the package.  This is all tied up in the Andrews Government’s ‘Community Safety Statement’ which was developed in the context of an Victoria’s ongoing racialised law & order auctions between the major parties.
See also:

Who’s who in Victoria Police

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EVENT REPORT: Invasion Day Rally and March 2018

26 January 2018

Melbourne Activist Legal Support (MALS) fielded a team of seven(7) legal observers at the 2018 Invasion Day Rally and March which was organised by the Warriors of Aboriginal Resistance (WAR).

The team observed and noted police behavior, crowd control tactics and interactions with the public from 9.30am until the completion of the event at 3.30pm.

Police presence was significantly larger than for previous Invasion Day protest marches in recent years but moderate given the large estimated crowd size which ranged between 40,000 – 60,000 attendees. 

As MALS has discussed previously, protests by or about indigenous rights, black deaths in custody or land rights in Australia have historically attracted a more interventionist and controlling level of policing than an equivalently sized non-indigenous protest.  MALS has observed this over the past few years where peaceful, well organized and even solemn events such as the Invasion Day rallies are heavily policed despite there clearly being no plans for disruptive or violent action.

Police conduct during the 2018 march through the Melbourne CBD primarily appeared to be generally facilitative and designed to manage the movement of the marchers west down Bourke St, to turn south down Swanston Street and then eventually east down Flinders Street to the march endpoint at Parliament Gardens.  Some Public Order Response Team (PORT) cordons were positions across streets at various locations designed to prevent the march interacting with the City of Melbourne Australia Day Parade down Swanston St. This meant that the march was delayed for short periods of time whilst organisors liaised with police and saw the eventual moving of police cordons.

Police cordons during similar protest events in the CBD can infringe upon the rights of peaceful assembly and association contained in section 16 of the Victorian Charter Of Human Rights and Responsibilities Act (2006). The team present on this day considered the limitation in this instance to be temporary, particulary considering the length of time the marchers chose to remain at various intersections along the route which were unhindered by police action.

The Australia Day Parade was completed by the time the march arrived at Swanston Street but metal barricades along both sides of the road posed some problems due to the large crowd size.

MALS was also noted that police were cognizant of the risk that right-wing groups or individuals would make attempts to counter-protest or harass the rally.  The team noted one incident on Flinders Street where a right wing activist was prevented from gaining access to the protest by police.

We note from the Street Medic team present that only minor heat related injuries were treated.

Areas of Concern:

The Victoria Police Mounted Branch (9 horses and mounted police) was present and maintained a position approximately 50 metres in front of the protest march for most of the time. The presence of police horses in crowd situations poses a significant risk of injury given the size of the crowd, the presence of children, prams and the inabilty of people to get out of their way if they are manoeuvred close to crowds. Although they were not utilised to control crowds at this event, their presence remains unecessarily intimidating and MALS strongly recomends that police horses not be deployed in any crowded or populated area at any protest event due to risk of servere injury.

Use of force:

Legal Observers witnessed and received some reports of use of force by police members in the Public Order Response Team (PORT) as the attendees rallied at the Flinders St station intersection.

One attendee reported that her female friend and an elderly male were pushed back by an police member as they tried to move further down St Kilda Rd/Swanston St when the march initially arrived at the intersection. The attendee reported that the officer was unprovoked and had not issued any verbal instructions or warnings beforehand.

A MALS Legal Observer was also subject to physical force (a rough push) by a PORT member upon arrival at the Flinders St intersection. The legal observer subsequently brought this to the attention of the officer in charge.

Identification:

MALS also notes with some concern that many PORT members were not wearing their official ID badge, despite requirements to do so. Notably, the PORT member who pushed the MALS legal observer did not have their ID badge.

By their own regulations, VicPol members in uniform are required to wear current issue name tags that specify first name or initial/s, surname and rank. (Victoria Police Manual, Uniform and Appearance Standards, Oct 2016)

As we have noted numerous times previously, the wearing of visible name tags at protest events is inconsistent and this poses serious problems for accountability.

Media and online harassment of activist

We also note with concern that some sections of the media choose to single out and highlight one provocative statement from the rally and even made it into a headline in some cases.

Legal Observers heard the statement in its context and it was clearly a metaphorical and figurative point as was later explained by the organisor herself.  Singling out this one statement amidst an half day of speeches is no more than racist demonisation. It has served to generate outrage and condemnation from parties who were not present and has resulted in online abuse, threats and harrassment of the organisor.

The abuse or harassment of an activist in any online forums is unacceptable.   Resources to deal withthis sort of online harrassment are available here and here.

Melbourne Activist Legal Support (MALS) supports activists to defend their civil and political rights by fielding legal observers at protests and rallies, and providing training, resources and up to date information on the right to protest in the State of Victoria. This is the fourth year in a row that MALS has provided support to attendees at the Invasion Day Rally.

 

This Statement is a public document and is provided to media, Victoria Police Professional Standards Command, the Victorian Equal Opportunity and Human Rights Commission (VEOHRC), and other agencies upon request.

For enquiries please contact: melbactivistlegal@gmail.com

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STATEMENT OF CONCERN: Unlawful use of OC Foam 25/6/2017

 

‘No Pride in Hate’ rally 25 June 2017, Melbourne, Australia

On Sunday the 25th of June 2017 Melbourne Activist Legal Support (MALS) fielded a team of five (5) trained Legal Observers at the ‘No Pride in Hate’ protest that took place between the Carlton Gardens and Melbourne’s Central Business District.

Legal Observers monitored and recorded interactions between Victoria Police and protesters throughout the 3-hour event.

Legal Observers witnessed two (2) incidents of use of OC aerosol foam during the event. After thorough review of video footage and witness statements, MALS has concluded that the use of OC foam in both of these incidents breached Victoria Police’s own use of force guidelines and regulations. (See VPM extract below)

Police, media representative and members of the public are reminded that the police use of force that falls outside police guidelines and regulations is serious and could be determined to constitute unlawful assault.

OC Spray Incident 1

OC Spray was deployed at 11.42 AM at South West corner of the intersection between Victoria Parade and Nicholson Street. Police had rapidly formed a north-south cordon to prevent protesters crossing north over Nicolson Street and clashing with a far-right group who at that stage, were still situated at south-east corner of Carlton Gardens.

A small number of protesters (approx 6) along south of Victoria Parade, can be seen pushing plastic road barriers away from the police line onto Victoria Parade. The police line was situated approx 5 metres east of protesters, in the middle of Victoria Parade. A group of media photographers and a Legal Observer were adjacent between the police line and the small number of protesters pushing the barriers.

At 11.42am one police member (name/number unknown), came out from behind the police line and deployed OC foam, appearing to target one protester who and had their back turned away from that police member and who was pushing a barrier further onto the road. The police member using the foam canister appeared to then spray it indiscriminately in the general direction of the barriers, and then directing it at the group of photographers and then in the direction of the Legal Observer present. The action was well documented with both written and video evidence. (see Figures 1 and 2 below).

The police member then turned and went back through the police line. This member was not identified.

At the time the OC foam was deployed, MALS saw no evidence of violence or serious physical confrontation by protesters directly towards police. Those affected by the OC foam had either their backs turned away from and were moving away from, the police line or were stationary, as were media, photographers and Legal Observer in the area covered by the spray.

Figure 1: OC Incident 1 – Photo showing people with backs turned away from police being sprayed. No threatening behaviour evident prior to spray. Photo by Legal Observer 25 June 2017

 

 

 

 

Figure 2: OC Incident 1 – Spray then directed toward the Legal Observer. Photo by Legal Observer 25 June 2017

 

 

 

MALS asserts the use of OC spray in this circumstance appeared to be an undisciplined and indiscriminate reaction to a loud and fast moving protest situation and was neither necessary nor proportionate to any risk faced by police members at that time. The OC spray did not appear to have served any protective or crowd–control purpose.

OC Spray Incident 2

A second OC spray incident occurred at approximately 1.00 PM at the north side of intersection between Latrobe and Russell streets in Melbourne’s CBD.

The main body of ‘No Pride in Hate’ protesters (approx 150-200) were marching north up Russell Street. Upon reaching the intersection a large contingent of police formed a line to block northward progress across the intersection and instead redirect protesters West down Latrobe Street.

This police manoeuvre appeared to be instigated in order to prevent further contact with the opposing protest group that was returning to the Carlton Gardens via Nicholson Street. At that point in the intersection, “No Pride in Hate’ protesters were surrounded on north, east and south sides by police lines. Police began loudly shouting “move, move” whilst physically pushing protesters in a westerly direction.

Whilst some protesters appeared to have already turned west, others in the group were prevented from moving in the direction by police lines. Others appeared to be refusing to comply with the police direction. Within a few seconds of the loud “move” direction from police, a member [name/number unknown] deployed OC spray from behind the police line directly into and over the large group of protesters.

It appeared to Observers present that the use of OC spray in this instance was a measure to force compliance with a direction to move, rather than a response to violence or serious physical threat to police or bystanders.

Street Medic groups treating those injured by OC spray reported fourteen (14) people severely incapacitated by the OC spray’s effects, and continued to provide treatment at the same intersection for two hours afterwards. Paramedics called to the scene by the Street Medic team arrived approximately one hour after the incident and treated five (5) of those most severely affected.

Approximately eight (8) Public Order Response Team (PORT) police members arrived at scene about 15 minutes after the paramedics, and were observed to instruct any protesters remaining, that were not being directly treated, to vacate the area. Police used physical force to pull some medics and support people away from those being treated.

This disruption to the treatment and care of injured people appeared unnecessary, as those present were not interfering with the paramedics and in most cases were actively assisting with after-care and treatment. By forcibly moving medics and carers away from people being treated this police action added to the distress of those suffering from the OC spray.

 

KEY POINTS:

  • In each of these two circumstances police were dealing with fast moving protest situation and a loud, chanting and certainly noncompliant group of protesters. Despite this, police did not appear to be facing a violence or serious physical confrontation that would warrant such use of force under common law requirements or 462A Crimes Act;

 

  • The use of OC spray appeared to be deployed in order to force compliance or move protesters;

 

  • The use of OC spray in these two circumstances was used contrary to Victoria Police guidelines. OC spray should not be used as a crowd control tool or to force compliance. (See VPMG extract below).

 

  • In both incidents the OC spray affected an array of people in a seemingly indiscriminate manner; either over a large number of people in a crowd or toward third parties such as media photographers or Legal Observers;

 

  • This use of OC spray reflects similar incidents at other Victorian protest events where OC spray has been sprayed directly at people not directly confronting police or third parties such as Street Medics or media. This reoccurrence may indicate a training and policy issue with its use in protest and crowd situations.

 

  • MALS is deeply concerned by the use of OC spray onto members of the media and independent Legal Observers. Under the United Nations Declaration of Human Rights Defenders, Legal Observers have a right to fulfil their role unhindered and without obstruction.

 

  • MALS recommends that Victoria Police specifically note the role of civilian Legal and Human Rights Observers within its Crowd Control VPMG and for Forward Commanders to brief operational members of the requirement to ensure the safety and access of Legal Observers who may be present at subsequent protest events.

 

  • MALS also recommends that Victoria Police specifically note the role of civilian medical and first aid groups within its Crowd Control VPMG and for Forward Commanders to brief operational members of the requirement to ensure the safety and access of civilian first aiders who may be present at subsequent protest events.

 

  • MALS is also aware of issues concerning the treatment and mis-gendering of trans people who were searched by police under the Control of Weapons Act powers. These are the subject of separate complaints.

 

 

Appendix: Victoria Police Manual 2017 – Procedures and Guidelines(VPMG)

Operational safety and equipment

3.2 Use of OC aerosols

  • As stated in VPMP Operational safety and equipment, members must only use force in accordance with legal requirements (e.g. 462A Crimes Act, common law). In keeping with this, members should only use OC aerosols where they believe on reasonable grounds it is necessary and proportionate in situations: – of violence or serious physical confrontation

– where violent or serious physical confrontation is imminent

– where a person is involved in violent or other physical conduct likely to seriously injure themselves or result in suicide

  • Members should not use OC aerosols when a person is only passively resisting e.g. simply hanging limp or refusing to comply with instructions only.

 

 

This Statement is a public document and is provided to media, Victoria Police Professional Standards Command, the Victorian Equal Opportunity and Human Rights Commission (VEOHRC), and other agencies upon request.

For enquiries please contact: melbactivistlegal@gmail.com

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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.


 

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.

Staying safe: Protective strategies for activists

ActorMap

Knowing how to stay safe as an activist and human rights defender (HRDs) has become ever more important. According to Frontline Defenders, more than 1000 human rights defenders were killed last year alone*, and although many governments have welcomed the UN declaration for human rights defenders, not many have put into place adequate strategies to prevent attacks on activists defending human rights. In many cases, this job is left up to activist themselves on knowing how to stay safe in their work, but depending on resources and lack of training, taking security seriously is challenging work.

Organisations like Protection International (PI) and Peace Brigades International (PBI) work in different countries with HRDs on protective strategies that can lower the chance of attacks and threats. Working together with activists and HRDs, these organisations have built a body of techniques that people can access and apply to their own work.

Here are some quick tips on staying safe in a politically charged world:

  1. Analyse yourself and your surroundings.
    A good context analysis can be an amazing resource for understanding where someone stands in this tectonic shifting world. It helps in being able to take the time to try to foresee potential consequences of actions that are being planned. Sit down, just you or with your collective and start analysing the work you do and who it affects. Who do you affect indirectly? Put it in the context of your community. Has anything that happened locally recently affected the work you do? What about nationally or internationally?
    Start small and then look at the bigger picture.
  2. Who’s who?
    Actor mapping is a great technique in understanding who your allies are, who might be an ally and who definitely is not an ally. Write down the organisations that you know are friendly, then the ones that your not sure about. Finally write down the people you are trying to target with your actions. Its ok to not know where each actor is on the spectrum, gathering more information and completing the actor map is ongoing work. Now you know who you can rely on and who you should avoid.
    Mapping your ‘enemies’ can also help you understand and have an idea of the response they’ll have if you do certain actions.Having your allies mapped out can be very useful when you are in need of support. Creating connections with collectives that can mutually help each other is part of building resilience and solidarity. If you find your self a target of digital surveillance, knowing that a group of friendly hackers are allies can be very helpful. And remember to help out when you can as well.mapping_networks
  3. Incident Register
    Start a security incident register. These are easy and practical in seeing the number of incidents you and your collective have had over a set time frame. These are used widely and help in analysing the type and frequency of threats that people receive. Nothing is to small to register. Someone suspicious outside your meetings? Your phone been calling strange numbers? Saw someone from an opposing group taking photos at a rally? Write them down. It helps to have the time, date, description of what happened, who could have been the perpetrators and who might be the target. Just like everything else, don’t worry about having all the information. Not having information on this at least tells you what you need to be looking for next time.
  4. Support network.
    Communication is vital. Having the numbers of people you trust on your phone can be a life saver. Fostering these connections with allies can make emergencies responses quick and effective. Even just as an individual, putting in the number of trusted allies on your quick dial can help in emergency situations. Just make sure you don’t make it to obvious who they are on the quick dial, in case your phone gets snatched or taken by police. Try memorising important numbers, and if you can’t, write it down in between random numbers on a piece of paper. In some cases, think about having lose change on you to make a call on a public phone, just in case something has happened to your mobile.Calling in on friends and allies can help keep track of your movements and whereabouts, especially if you think you are heading into troubling circumstances. Even in non threatening moments, doing a check in helps everyone feel safe.Having a phone tree for your cause can be very useful to get messages out for a quick response. Tying that in with the actor mapping, you can have a great overview of who are the best people to contact under what conditions. This can lead to a more effective response to emergencies and mobilisations.
  5. Data security
    It’s not all about staying safe in the physical world. Do a quick analysis of the information you work with and see if it could be considered sensitive information. Name, numbers and addresses of activists should be considered sensitive. Remember to consider time frames. Maybe information you have now is not considered sensitive but in a few years it might. Depending on the amount of information you handle that is sensitive, will determine the measures you should take on protecting it. There are great detailed guides on digital security but here is some very quick tips.

    • Try to keep your digital information safe by encrypting your devices. There are great guides out there* on how to do it on all platforms.
    • Next would be encrypting your communications.  On mobile devices Signal Messenger can encrypt your messages to other Signal users, and it’s for free.
    • Email encryption can be more complicated than using signal, but pgp encryption has come along way in being more non tech friendly.
    • Always make backups!
  6. Mental Wellbeing.
    Staying safe is all about looking after yourself, and that includes your mental health. It’s no secret that activism can be hard on peoples mental health, and many have had the all to common burn out symptoms.
    Debriefing and looking for support amongst your allies can help mitigate accumulating feelings of mental uneasiness. Speak to people you feel comfortable with after actions and demonstrations. Try to have an understanding with this person that you don’t necessarily want answers or advice, but instead just want someone to listen and provide empathy.One of the more common consequences of activism work for HRDs is working through fear and stress. Many HRDs fear not only for their own well being, but also of their families and people close to them. Taking the above actions on security is one way to address this fear. If you can analysis and try to understand the threats and potential consequences of the threats, you can at least know you are doing what you can to mitigate the risks.
    A bit of stress is usually a good thing, it helps us from getting bored, but too much of it can be overwhelming. If we are stressed for too long of a time, we can get down and depressed. This is as much about asking for help as it is trying to foster a culture of looking after yourself and one another.

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This is obviously not an exhaustive list, but it’s a start. It’s up to us to start looking at security in a more holistic sense and put into practise techniques that help us do our work better and safely.

Here is a list of great resources on security for activists.
https://holistic-security.tacticaltech.org/
https://protectioninternational.org/training-learning-publications/
http://www.integratedsecuritymanual.org/
https://www.frontlinedefenders.org/en/programme/risk-analysis-protection-planning

*List of resources for digital security.
https://securityinabox.org/en/
https://tacticaltech.org/
https://privacytoolsio.github.io/privacytools.io/

*https://www.frontlinedefenders.org/en/resource-publication/annual-report-human-rights-defenders-risk-2016

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

Public Statement: Reclaim Australia and Counter Rallies 18/7/2015

18 July 2015, Melbourne, Australia

On Saturday the 18th of July 2015 Melbourne Activist Legal Support (MALS) fielded a team of eight (8) trained Legal Observers at the Reclaim Australia and counter rallies that took place near the intersection of Spring and Bourke Streets in Melbourne’s Central Business District.

Legal Observers monitored the actions of Victoria Police and recorded evidence throughout the 5 hour event.

We note that Victoria Police had a large presence and cordoned off the entire intersection in front of Parliament House. MALS acknowledges that Victoria Police efforts were directed at maintaining space between two opposing political groupings on the day in order to avoid physical confrontation.

Areas of concern:

Legal Observers noted several incidents of use of OC foam/spray by a specialist unit of Victoria Police at the event. According to the Melbourne Street Medics upwards of 100 people had to be treated because of the use of this spray. OC spray/foam causes severe burning for several hours, incapacitation and can affect the respiratory system causing breathing difficulties.

A particular area of concern was an incident that occurred at the corner of Spring and Little Bourke Streets at approximately 12:43 PM.  An ad-hoc medic triage station had been set up on Little Bourke Street near the corner. One patient was semi-conscious on the ground and under the care of the Street Medics and waiting for the ambulance. A physical altercation between rival protestors began directly in front of the medic station when Police rushed around the corner and immediately and without warning sprayed into the crowd of 60-80 people present. Street Medics and other volunteers who were trying to keep the medic triage area clear were severely affected by the OC foam as were most people in the area (including journalists and bystanders). The injured person receiving care was again affected by the OC spray.

According to Legal Observers present the OC foam was not directed towards individuals who were threatening police or engaged in violence but instead was directed over and onto the entire crowd of people present. For this reason the MALS Legal Observer Team identifies the use of OC foam in this circumstance as indiscriminate and therefore unlawful.

MALS condemns the use of OC Foam against members of the public who were already injured and medical staff whose presence was made clear to police on a number of occasions before this incident occurred.

In the future as our group increases in capacity we hope to be able to provide more comprehensive assistance in such instances, however we would like to share the following information in the meantime:

We encourage people who want to take further action to immediately record all details from the event, including as much factual detail as possible, and to make duplicates of any footage of incidents depicting inappropriate use of force.

If any individuals or groups wish to submit a formal complaint about police conduct during the event please contact:

Police Complaints Advice Clinic

Flemington and Kensington Community Legal Centre
Phone: (03) 9376 4355
Email: fklegal@fkclc.org.au

& Website

If you would like to make a complaint directly without checking in with Flemington Kensington:

Police Conduct Unit

GPO Box 913
Melbourne VIC 3001
Telephone: 1300 363 101
Email: PSC-POLICECONDUCTUNITCOMPLAINTSANDCOMPLIMENTS@police.vic.gov.au

Check this page on the activist rights website for more information about making a complaint about police conduct.