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.