An Open Letter to Victoria Police:

‘Disruption to others’ does not justify limiting the Right to Peaceful Assembly

6 October 2019

Melbourne Activist Legal Support (MALS) acknowledges the response to our recent Statement of Concern by Victoria Police Assistant Commissioner Luke Cornelius (3 October 2019)

In reply and in light of protest events planned in Melbourne for the month of October we take this opportunity to remind Victoria Police senior command and all operational commanders assigned to public order policing duties over the coming weeks of the following:

There is no basis for claiming that a protest that is deliberately disruptive to the activities of others falls outside the protection of rights to freedom of assembly;

The Right to Peace Assembly, Freedom of Association and the Right to Political Expression have far greater legal protections and recognition both within Victorian legislation and in international law than the Melbourne Flower Show, The Grand Final Day Parade, Moomba and White Night and many other similar public events regularly held in Melbourne’s CBD;

Events such as the Melbourne Flower Show, The Grand Final Day Parade, Moomba and White Night all cause significant disruption to public access to roads, public parks, through traffic, trams and vehicular access. Policing these events includes facilitating the shutting down of significant parts of the city over significant periods of time;

‘Disruption to others’ is not, nor can it be used as an excuse, rationale or justification for limiting or preventing civil society groups from enacting the Right to Peaceful Assembly and The Right to Freedom of Political Expression at public events;1

There is no commensurate ‘right not to be disrupted by other people’s activities’;

In light of the fact that political expression is the most protected by law of all forms of expression. it is arguable that peaceful protest should be facilitated over and above that provided to commercial and community events mentioned above;

We remain concerned about recent public comments made by North West Metro Region Commander Tim Hansen (Herald Sun 4/10/19), that seem to equate disruption with threats of violence as well as earlier comments by Minister for Home Affairs, Peter Dutton. (2GB, 4/10/2019)

International human rights jurisprudence clearly recognises that peaceful assembly, by its very nature, is disruptive, and can inconvenience and be perceived as a nuisance by some people, but that “Rights worth having are unruly things.2.

Furthermore, the actions of some or a minority of people involved in an event do not remove the rights of peaceful assembly for others collectively; individual actions that are unlawful committed in the course of a demonstration cannot be used to justify the removal or limitation of the collective rights to peaceful assembly and expression; 3

The rights to peaceful assembly, association and expression are explicitly recognised and protected within Victorian legislation and international human rights law precisely due to their importance to the establishment and maintenance of a free, equal and democratic society;

In essence, the bar to determine whether ‘disruption’ becomes a threat to ‘public order or safety or morality’ needs to be set quite high.  Particularly in light of the extent of disruption caused regularly by other public events such as community festivals, parades, commercial events and road works which are not protected in legislation.

Any policing of civil society actions or events that limits these Charter rights must be
– lawful
– necessary, reasonable and proportionate, and
– in compliance with the Charter of Human Rights and Responsibilities Act 2006.

Further any limitation must be demonstrably justified in a free and democratic society based on ‘human dignity, equality and freedom’. Decisions by public authorities to limit Charter rights require substantial evidential backing to be justifiable and cannot be based upon assumptions, opinions, operational imperatives or current practices; 4.

Melbourne Activist Legal Support will be fielding teams of trained, independent Legal Observers in the CBD at protest events during October to record, monitor and report upon actions of Victoria Police members according to their responsibilities under the Charter, the International Covenant of Civil & Political Rights (ICCPR) the Victoria Police Manual, use of force guidelines and other human rights considerations and jurisprudence;

We remind Victoria Police of the recommendations made regarding the policing of public protest events and reiterate our request that they be incorporated into operation orders and the VPM. [Statement of Concern: The Policing of Extinction Rebellion]

Responses or further inquiries regarding this open letter can be made to melbactivistlegal@gmail.com

About Melbourne Activist Legal Support

Melbourne Activist Legal Support (MALS) is an independent volunteer group of lawyers, human rights advocates and, law students and para-legals. MALS trains and fields Legal Observer Teams at protest events, monitors and reports on public order policing, provides training and advice to activist groups on legal support structures and develops and distributes legal resources for protest movements. MALS works in conjunction with law firms, community legal centres and a range of local, national and international human rights agencies. We stand up for civil & political rights.

To support our work please make a small donation at:

Endnotes:

1. Despite a lack of Australian case law, courts in Europe have repeatedly made clear, direct action protests, including lockons, occupations of land and other activities which are capable of being deliberately disruptive to others, fall within the scope of Articles 10 and 11 in the European Convention of Human Rights (ECHR). In
Hashman and Harrup v United Kingdom (1999) 30 EHRR 241 the court stated:
“It is true that the protest took the form of physically impeding the activities
of which the applicants disapproved, but the Court considers nonetheless
that they constituted expressions of opinion within the meaning of Article
10… The measures taken against the applicants were, therefore,
interferences with their right to freedom of expression.” (at [28])
This was confirmed in the United Kingdom in R v Roberts & Others [2018] EWCA Crim 2739 which concerned the deliberate blocking of a major road for a period of 3
days. The Court of Appeal stated: “there is no doubt that direct action protests
5 App 76900/01, 29 June 2006 fall within the scope of articles 10 and 11…“ (at [39]).

2. In considering the need for tolerance of disruptive protest (whether intentional or
collateral) the words of Laws LJ in Tabernacle v Secretary of State for Defence
[2009] EWCA Civ 23 are insightful:
“Rights worth having are unruly things. Demonstrations and protests are
liable to be a nuisance. They are liable to be inconvenient and tiresome, or
at least perceived as such by others who are out of sympathy with them.”
(at [43]).

3. Strasbourg case law which emphasises that a protester does not lose the right to assemble/protest peacefully unless they themselves are violent:
“an individual does not cease to enjoy the right to peaceful assembly as a
result of sporadic violence or other punishable acts committed by others in
the course of the demonstration if the individual remains peaceful in his or
her own intentions or behaviour” (Ziliberberg v Moldova, App no 61821/00 Admissibility decision of 4 May 2004).

Also relevant is Moos & Anor, R (on the application of) v Police of the Metropolis [2011] EWHC 957 (Admin) (14 April 2011) discussed at: https://www.hrlc.org.au/human-rights-case-summaries/moos-anor-r-on-the-application-of-v-police-of-the-metropolis-2011-ewhc-957-admin-14-april-2011?rq=peaceful%20assem

4. See http://www.judicialcollege.vic.edu.au/eManuals/CHRBB/57276.htm

STATEMENT OF CONCERN: The Policing of ‘Extinction Rebellion’

Princess Bridge Blockade and dance protest event Saturday 14th September 2019, Melbourne, Australia

Please Note: A response by Victoria Police to the Statement of Concern is included below.

On Saturday 14th September 2019 Melbourne Activist Legal Support (MALS) fielded a team of eight (8) trained Legal Observers at the ‘Princes Bridge Block & Dance’ protest event that took place on St Kilda Road between the Flinders Street intersection and the Victorian Arts Centre precinct.

The protest was organised by sixteen local chapters of an international climate movement, Extinction Rebellion. The widely promoted event was billed as an explicitly nonviolent “powerful, fun and peaceful disruption”.[i] The protest was originally intended to go until 21:00 that evening.[ii]

Legal Observers worked in pairs and were interspersed across the protest site from 11:30 until 15:00, monitoring and recording observed police manoeuvres, conduct and interactions with protesters. The team observed several hundred police working in different Public Order Response Team (PORT) units, arrest teams, the Mounted Branch, plain clothes police prosecutors, the Evidence Gathering Team and witnessed up to forty-four (44) arrests by police.

Over that time the legal observers team noted several areas of concern as described below. Six recommendations to Victoria Police stemming from these observations are included at the end.

A downloadable copy of this Statement is available here (PDF).

1. The police cordon prevented hundreds of supporters from joining the protest thereby limiting the right to peaceful assembly.

From approximately 12:15 police began placing blue and white police tape across the road at the both the north (CBD) end and the south (Arts Centre) end of the protest area. This tape, combined with lines of police along and around the area affectively created a ‘protest zone’ on the Princess Bridge. Police started soon after (from 12:27 onwards) police began preventing people entering or moving through this area including the footpaths on either side of the bridge. By 12:30 the area including footpaths was entirely blocked by police cordons. People were directed to use other bridges to get to the opposite side of the Yarra River.

Importantly, this cordon was established and people actively prevented from accessing the protest prior to any warning of unlawful activity being provided by police.

Figure 2-3: Police establishing a cordon to restrict access to the peaceful assembly. [Photos by Legal Observers]

Reasons provided to Legal Observers and the public by individual police members as to why they were preventing access varied but many cited ‘public safety’ or ‘operational safety’ whilst numerous police members failed to provide any reason for restricting people’s right to attend the protest event.  By 13:00 several hundred people were surrounding the police cordon area at different points with many verbally expressing a desire to join the protest [see Figure 6]. Some protesters who had left the areas to use nearby facilities were not permitted back to the assembled protest. Legal observers witnessed several people attempting to enter or remonstrating with police to be able to enter and join the protest assembled on the bridge. Numerous people also expressed concern on social media (Facebook / Twitter) about not being able to join the protest as they had intended to do.

The right to peaceful assembly is protected at international law. In Victoria, the Charter of Human Rights and Responsibilities Act 2006 (Vic) ss15 and 16;[iii] expressly protects and promotes the rights to assembly and expression. Police cannot place restrictions to arbitrarily and discriminatorily intervene in protest.[iv]

According to the Victoria Police Manual (VPM):

All police actions that limit another person’s human rights must be:

– lawful

– necessary, reasonable and proportionate, and

– in compliance with the Charter of Human Rights and Responsibilities Act 2006.

Where applied, any time, place or manner restrictions on protest must be in good faith, in accordance with law, and conform to the principle of necessary and proportionate limitation.

Figures 4-5: Police cordons established that prevented access to protest area. Note that no threat to safety was present. [Photos by Legal Observers]

‘Breach of the Peace” powers, often cited by police in these circumstances to move on members of the public, require imminent threat of violence or property damage to come into effect and are far too ill-defined to provide justification for a limitation such as this.

The United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association has stated that government action restricting protest need to be specific; they cannot be made in the abstract “or by indicating general, unspecified risks, but must be made in an individualized fashion, applied in the particular case or with a specific justification.”[v]

Melbourne Activist Legal Supports asserts that the police cordon established by Victoria Police around this protest from 12:15 until 15:00, unjustifiably limited people’s right to assemble together peacefully in order to protest. We contend that this limitation on the right to peaceful assembly was without lawful basis or rationale on the grounds of safety or public order. Despite a degree of ‘disruption’ caused by the protest event, this disruption was time limited and no more significant in affect than other large rallies and assemblies held regularly in the Melbourne CBD. There was no threat to public safety present or expressed.

It is the view of MALS that the police cordon was solely an operational tactic by police that allowed them to control the protest, limit its scale and therefore to more easily facilitate the affecting of arrests. This operational reason does not form a reasonable justification for the limitation of such an important right under Section 7 of the Victorian Charter.[vi]

Figure 6: Crowds of people being unable to join the peaceful assembly [Photo by Legal Observer]

2. Media representatives, journalists and camera operators were directed by police to leave the cordon ‘protest area’ from 13:00. This restriction on media ability to film, interview and cover the protest event was without a clear lawful basis.

Legal observers first noted police directing media to leave at 13.04 when Channel Nine news crew was directed to leave.   Other journalists and camera operators were directed to move to the other side of the police tape or cordon systematically over the next 15 minutes.

Police members provided various reasons when questioned by media personnel about why they were being directed to leave, citing ‘safety’ ‘operational safety’ or ‘police operations’. Legal Observers did not record any police providing a lawful reason or citing a legislative power for this action. Police have limited powers to move-on or direct a person to leave an area, particularly a protest or picket. It is not clear whether police were exercising powers under Section 6(1) of the Summary Offences Act 1966 or seeking to apply common law ‘breach of the peace’ powers. In either case is doubtful whether the criteria for the use of such powers would have been met in these circumstances.[vii]

It is an important principle that journalists should be allowed to carry out their duties reporting on a matter of public interest. Although safety was the most cited reason provided by police, media are well versed in covering arrest situations from a distance that does not hinder or endanger police or protesters. The restriction applied at this protest prevented interviews, footage and coverage of the protest being obtained and appeared to be without a clear lawful basis.

 

3. Obstruction of Legal Observers

Although police permitted some Legal Observers to remain within the cordoned ‘protest area’, at 12:47 several legal observers were directed by police to leave the cordoned area. Importantly, this direction severely limited the ability of legal observers to monitor arrest procedures and the use of force when carrying out an arrest. From the distance legal observers were not able to ascertain whether levels of force consistent with guidelines and lawful powers were being used.

Under the United Nations Declaration of Human Rights Defenders, Legal Observers have a right to fulfill their role unhindered and without obstruction. [viii]

Figure 7: Although some Legal Observers were permitted to remain in the cordoned area after negotiation, several LOs were directed to leave. [Photo, MALS]

 

4. Use of Mounted Branch at a peaceful protest

The Victoria Police mounted branch, (police horses) were present at this protest event, forming lines of police horse around the main protest group at the north and south end of the police cordon.

As we have stated previously the deployment of police horses for such public protest events is unwarranted an unnecessarily intimidating.

The legal observer team could see no operational reason for the Mounted Branch being deployed given the number of police present, the nature of the protest and presence of elderly, disabled and very young people. Any use of horses in public environments and amidst large crowds is by its nature extremely hazardous, due to the risk of uncontrolled and potentially fatal use of force. We reiterate our assertion that police horses should be prohibited from deployment in all crowd control applications.

Figure 8-9: Victoria Police Mounted Branch deployed when no operational reason evident. [Photo by Legal Observers]

 

5. Use of handcuffs and zip-ties when carrying out arrests

Legal observers noted multiple uses of metal handcuffs and plastic zip-ties being used as constraints during several arrests. Handcuffs were not used on all arrestees.

The use of handcuffs or similar restraints on a non-compliant person is considered a use of force and should only be used under particular conditions. In this circumstance there were no threats that warranted restraints being used.

Figure 10: Policing using a compliance hold unnecessarily whilst removing zip-ties from an arrestee [Photo by Legal Observer]

Handcuffs can cause ligament, arm or shoulder injuries, circulatory problems and severe bruising, particularly when people are being carried or moved by police.   One person arrested at this protest reported cuts on arms received during their arrest.   Anther protester reported that he was told by police that he was “resisting arrest” when he was only trying to stand up from a sitting position. Numerous people reported that they considered the use of restraints entirely unnecessary, as they had no intention of resisting the arrest process.

By taking a person into custody, police impact a person’s rights and freedoms under the Charter of Human Rights and Responsibilities Act 2006. “Any use of force must be justified and only to the level required to reasonably effect arrest or removal of persons.” – (VPMG Crowd Control)

In the circumstances observed at this protest event we do not consider the use of handcuffs and zip ties to be justified. We assert that hand cuffs or zip ties should not be used for non-resisting arrestees and not be used in circumstance where people are being carried or moved after choosing not to cooperate with their arrest.

 

6. The carrying of long side handled batons and capsicum (OC) spray

Legal Observers noted multiple police members carrying long side-handled batons and holstered capsicum (OC) spray canisters at this protest event. Legal observer noted one police member carrying OC spray in an unclipped holster (photo available).

As required by VPMP Operational safety and equipment, the Police Forward Commander must give careful consideration to the type of operational safety or other protective equipment that will be carried or worn by members at planned public order operations. “The level of equipment carried or worn should be commensurate to the risk likely to be encountered.”

Figure 11: Long side-handled batons can only be used when a police member is facing a severe threat [Photo by Legal Observer]

The legal observer team asserts that the carrying of long batons and OC spray at this protest event was unwarranted given the risks likely to be encountered. The open deployment of police weaponry is always intimidating and can be perceived as threatening to the public. This threat and intimidation can be, in affect, a limitation upon the rights of peaceful assembly and association if people do not fee safe to come to or remain at a protest.

 

 

Other Observations

The legal observer team noted several warnings being provided by police by megaphone at different times and in different locations and that police provided an individual warning and an opportunity for people to leave the area prior to each arrest.

Legal observers also noted that arrest teams of six or more police members were used to affect each arrest. This provided enough members to carry those people who chose not to cooperate with the arrest procedure and ‘go limp’ relatively safely.  Aside from those issues referred to above this meant that people were not dragged or put in danger of injury by being carried by inadequate numbers of police.

 

Recommendations:

1. Victoria Police consult with bodies such as the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) to review its VPMP Police attendance at events and incidents, operational planning and operation orders in relation to all large civil disobedience protest events in order to ensure that the right to peaceful assembly and association is fully respected and not limited by police cordons and operational tactics that contain or restrict access to protests areas;

2. 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;

3. Victoria Police specifically note the role of media representatives and camera operators within its Crowd Control VPMG and for Forward Commanders to brief operational members of the requirement to ensure the safety and access of media who may be present at subsequent protest events;

4. The Victoria Police update the Use of Force and the Operational Safety and Tactics Training (OSTT) VPMG and associated OST training to specifically prohibit the use of handcuffs or other restraints in protest situations when a person is ‘passively resisting’ or ‘going limp’ and ensure that they not used in circumstances where the person is being carried;

5. Victoria Police ensure that Operation Orders contain risk assessments that acknowledge and incorporate the risk of limiting Victorian Charter rights through the open and visible deployment of police weaponry, police horses and intrusive surveillance by drone or Evidence Gathering Teams.

Policy Rules contained in the Victorian Police Manual (VPM) cited above are mandatory and provide the minimum standards that employees must apply. Non-compliance with or a departure from a Policy Rule may be subject to management or disciplinary action.

This Statement of Concern is a public document and is provided to media, Victoria Police Professional Standards Command (PSC), Independent Broad-based Anti-corruption Commission (IBAC), the Victorian Equal Opportunity and Human Rights Commission (VEOHRC), Government ministers, Members of Parliament and other agencies upon request.

A downloadable copy of this Statement is available here (PDF).

For inquiries regarding this statement please contact: melbactivistlegal@gmail.com

About Melbourne Activist Legal Support

Melbourne Activist Legal Support (MALS) is an independent volunteer group of lawyers, human rights advocates and, law students and para-legals. MALS trains and fields Legal Observer Teams at protest events, monitors and reports on public order policing, provides training and advice to activist groups on legal support structures and develops and distributes legal resources for protest movements. MALS works in conjunction with law firms, community legal centres and a range of local, national and international human rights agencies. We stand up for civil & political rights.


Response by Victoria Police to Statement of Concern:

Received 3rd October 2019

Victoria Police functions include: preserving the peace, protecting life and property, preventing the commission of offences, detecting and apprehending offenders and helping those in need of assistance. These functions reflect the long standing role of police in our community in protecting the human rights of all people and to only limit the rights of individual people by the least restrictive means reasonably necessary in the delivery of policing services to the whole community.

The Victorian Charter of Human Rights outlines the human rights and responsibilities possessed of every person in Victoria. These include, within the context of public protest and demonstrations, the right to:

  • Recognition and equality before the law (and particularly to be treated with fairness and respect and in a non-discriminatory way)
  • Freedom of movement
  • Freedom of expression, unless this expression harms the rights and reputations of other people
  • Peaceful assembly and freedom of association
  • Be protected from having property taken, unless the law says it can be taken

The Charter also makes it clear in its preamble that “human rights come with responsibilities and must be exercised in a way that respects the human rights of others”. This principle applies equally to police in the exercise of their discretion, as much as it does to any person who may conduct themselves in a way which might affect the human rights of other people.

Victoria Police plays an important role in balancing the rights of all people in the Victorian community, and ensuring the safety and public utility of all public spaces including the Melbourne CBD.

The Melbourne CBD is the location of many protests, demonstrations and public assemblies throughout any given year, and Victoria Police recognises the importance of facilitating peaceful protests and gatherings as an important part of the democratic fabric that holds our community together.

In the context of public protest, Victoria Police officers are required to balance the rights of people to go about their lawful business without being adversely impacted by the unlawful conduct of other people. This ultimately reflects what it means to live in community.

As the Assistant Commissioner North West Metropolitan Region, I am responsible for balancing the rights of individuals to peacefully gather and protest in the Melbourne CBD alongside the rights of all other people in the CBD to go about their lawful business unhindered by the activity of others.

An important element of getting this balance right is ensuring all Victoria Police members understand their legal obligations to protect and promote the human rights of all people as protected in the Charter. I am taking this opportunity to outline how Victoria Police does this, partially in response to some public comments made by individuals who were part of a recent protest in the Melbourne CBD criticising the actions of Victoria Police, to explain to them and to the broader community why we work in the manner that we do.

It is important to recognise that all people have the right to peacefully assemble and protest under the Charter, but these rights are not unlimited and come with responsibilities too on the part of protestors. Also, my members in North West Metro have to lawfully limit the human rights of people in their roles at times, and I fully support them to do this.

Both International Human Rights Law and Victorian Law protects the right to peaceful protest, and Victoria Police recognises that this includes some protest forms that inconvenience the public utility that would otherwise be enjoyed by other people in the community. The protest on September 14 is no exception to this, and Victoria Police allowed individuals to protest on the Princes Bridge in a manner that impeded traffic, trams and pedestrians in order that protestors could convey their political messages in a peaceful way.

On September 14, my operational commanders in charge of policing this protest, having identified risks:

  • public safety
  • of breaches of the peace
  • the commission of other offences, and
  • the rights of other citizens not involved in the protest being unlawfully infringed.

They then made a lawful decision to limit the rights of protestors by dispersing protestors after the protest had been underway for some time. The commentators who have criticised this decision of police note that they had intended that the protest ‘go on until 21:00 that evening’. The operational decision of Victoria Police was that this would disproportionately impact the rights of others and the movement of traffic through the Melbourne CBD, and consequently did not allow this to occur.

To be clear, the policing tactics and response on 14 September 2019 were undertaken to achieve the following ends:

  • to protect public safety (the safety of people not involved in the protest, as well as those who were participating in the protest)
  • to prevent possible breaches of the peace and the commission of other offences, and
  • to ensure the rights of people not involved in the protest were not unlawfully infringed.

All Victorians can expect that Victoria Police will continue to apply this approach in its policing of future planned and unplanned demonstrations in the Melbourne CBD and I would hope that any human rights lawyers and human rights monitors operating in this space would likewise have regard for the rights of all people and consider that with rights come responsibilities.

I fully support my staff in their decisions in this protest, and in the exemplary work they do in policing the many protests that occur throughout the Melbourne CBD.

Assistant Commissioner Luke Cornelius APM, Northwest Metropolitan Region, Victoria Police

3/10/2019

 

 

 

 


Endnotes to SoC:

[i] ‘Melbourne: Princess Bridge Block and Dance’ Facebook event. https://www.facebook.com/events/346436272910163/

[ii] Event description and sign up form https://www.actionnetwork.org/forms/september-14-dancing-on-bridge/

[iii] https://humanrights.vgso.vic.gov.au/charter-guide/charter-rights-by-section/section-16-peaceful-assembly-and-freedom-association

[iv] Lashmankin and Others v. Russia (European Court of Human Rights, Third Section, Applications nos. 57818/09 and 14 others, 7February 2017).

[v] Maina Kiai, FOAA Online!: The Right to Freedom of Peaceful Assembly (April 2017) <http://freeassembly.net/wp-content/uploads/2017/09/FOAA-Online-The-Rightto-Freedom-of-Peaceful-Assembly.pdf&gt;, 20.

[vi] https://humanrights.vgso.vic.gov.au/charter-guide/charter-rights-by-section/section-15-freedom-expression/reasonable-limits

[vii] Police have an ill-defined ‘power’ to direct a person believed to be breaching or likely to breach the peace to leave a particular location. Breach of the peace is any disturbance of public order involving the threat of violence or harm to property.

“This power extends to directing people to move on, or to refuse them entry into an area if such direction is reasonable to prevent an anticipated breach of the peace. The Summary Offences Act provides specific powers to issue a direction to move on if the member or PSO suspects on reasonable grounds that the person is breaching the peace or likely to breach the peace endanger the safety of any other person or behave in a manner likely to cause injury.” (Victoria Police Manual VPM – Procedures and Guidelines – Breach of the Peace. January 2019)

[viii] Declaration on Human Rights Defenders <https://www.ohchr.org/en/issues/srhrdefenders/pages/declaration.aspx&gt;

Help us protect your rights to protest : Donate to MALS now!

Melbourne Activist Legal Support has launched our first-ever crowdfunding campaign, and here’s why.

When people protest in Melbourne, MALS is often there behind the scenes. Our Legal Observer Teams in pink vests and cameras are now a pretty familiar sight on the streets of Melbourne.

MALS is an all-volunteer group of lawyers, law-students, and human rights activists who monitor police, train activists; provide legal support, information and resources to Melbourne’s diverse social change groups and movements. We stand up for your civil & political rights.

This is why we have launched our first major fundraising appeal. We are seeking $10,000 by the start of October to prepare for the busy spring and summer months of action as more and more people take to the streets.

We are asking people to donate at https://support-activists.raisely.com/

Since we formed in 2011, MALS has fielded over 50 Legal Observer Teams, run dozens of legal trainings and worked hard to build the skills, training, capacity, links and credibility needed for this sort of human rights defence.

In this time we have seen powerful movements grow amidst increasingly brutal and para-military style policing.

We’ve seen an inspiring proliferation of grassroots activism over the last year. People have raced to support the Djab Wurrung community and their plight to protect sacred trees. We’ve seen outpourings of love on the streets for Priya, Nades, Kopica and Tharunika who want to return home to Bilo. Hundreds have participated in direct action for the first time to protect our planet with Extinction Rebellion and the #climatestrike.

This means we’ve had a lot on our plate. Our training sessions have been maxed out to capacity, and we’re getting more requests for legal support than we can handle. Amidst all of this, we’re seeing police using more repressive measures to scare people off the street. With activists stepping up across Melbourne and Victoria, we need to step up too. We have a mandate to increase our capacity and meet the needs of the day.

We have been there for 8 years. Now we are asking for your help.

Make an impact. Make a donation now and reach out to your networks tomorrow morning so that together, we can make this campaign for civil rights a successful one. 

Melbourne has a proud history of civil resistance. From winning the vote for women, the 8-hour day, the huge Vietnam War Moratorium, the Anti-Uranium Movement, the Anti-Iraq War movement, massive Invasion Day protests, to the campaign for equal marriage Melbourne has led Australia and has often led the world in mobilising for large-scale, radical social change.

But across the country our rights are under threat.

The Human Rights Law Centre’s report, Safeguarding Democracy, documented 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. Grassroots human rights defenders like Legal Observers are critical to protect our democratic rights.

Good activist legal support builds movement resilience and makes it more likely people will come out of protest and civil disobedience stronger.

Movements are made stronger when people know their rights and can respond collectively and assertively when they are violated.  Legal support in the streets, in police custody and in the courts is vital.

Importantly we need people to actively share the link https://support-activists.raisely.com/ with their professional networks.

We are planning to grow our collective and hire our first staff member.  We are seeking $2,000 per month in regular donations to fund a Coordinator position as the group grows and expands. If you are in a position to support this critical human rights initiative grow with a small monthly direct debit then we want you on board!

What will we do with these funds?

These funds will allow us to train more volunteer Legal Observers for more teams at more protests. It will equip our Legal Observers with HD sports cameras, hi-vis vests, long-life battery packs and radios.

It will allow us to provide Know-Your Rights Training to hundreds of new activists taking the streets for first time and provide more activist groups with more legal training, more legal information and more resources.

Importantly these funds will help us to better support activists who are targeted because of their race, gender, sexuality, or political stance or those who are targeted by intelligence agencies from their home countries.

These funds will make sure our reports get to human rights bodies, media, government and police accountability agencies more quickly and with more impact. With increased capacity we will be able to hold more police to account for excessive force and misconduct, assaulting, abusing, or harassing activists.

We know things are getting hotter and we also we know social movements in Australia are growing rapidly. We need to be ready.

Melbourne Activist Legal Support is a team of volunteers who stand up for your civil and political rights. Now, help us protect your space to protest.   Donate now and share our crowdfunding page

In solidarity,

MALS (Melbourne Activist Legal Support)

What is this thing called Activist Legal Support?

Activist Legal Support is not just Legal Observing

Many people these days equate Legal Observing with “legal support” partly due to the relatively high visibility and profile of Legal Observing, particularly in Victoria – Legal Observers stand out whilst back-end legal support training / arrest support / court support is far less visible to anyone and therefore less understood.
In reality however- Legal Observing is one of the least important legal support roles in mass arrest scenarios – far less critical than arrest support roles, liaison with lawyers and the months of court support if and when people are charged.
In many ways activist groups, with limited resources,  should focus on building their own dedicated legal teams, forming relationships with friendly lawyers,  arranging legal briefings for activists and organising people to take on arrest support roles – long before they even think about organising their own Legal Observer Team.

So, what is Activist Legal Support?

A good legal support structure for groups engaging in protests that could be arrestable includes:
1) A Legal Support Team: 
 A dedicated team within the activist group who plan, organise and coordinate legal support. This includes speaking with / advising and seeking regular confidential advice from lawyers about actions that are planned, what are the potential charges, whose jurisdiction a particular site is and what are the possible penalties.  The team should be planning logistics, a network of lawyer contacts, organising police liaison, and coordinating a potentially large team of activists providing various legal support roles.   In some mass civil disobedience actions, the legal support team has an office, its own roster, comms system and budget.  Read about the S11 Legal Support Team here.

The Occupy Boston Legal Team Image: National Lawyers Guild US

2) Legal Information:
Arranging for clear, accurate, practical and realistic legal information to be provided to everyone who may be part of an action or campaign.  Information should be drafted and verified by a solicitor, written in ‘plain’ language – (avoiding legal jargon) and always couched in terms of what is potential or possible.  Police have discretion about when and what charges they lay, and courts have a lot of discretion in what penalties they provide so nothing is definite when providing activist legal information.   The aim is to provide information so that people can make fully informed decisions about whether to place themselves in an potentially arrestable scenario but not to scare people from taking action.

Two fabulous lawyers providing activist legal training. Image: MALS

This information can be provided in pamphlets, handbooks, blog posts or during activist trainings or in briefings before and during actions.  Legal briefings can happen anywhere, anytime but they need to be planned as part of the action and people need to be prepped to provide them.  They are best written or provided by lawyers or very well briefed para-legals.
3) Arrest Support: 
Arrest support roles are people who commit themselves to looking after the needs of people who are facing arrest or who get arrested at an action.  They need to monitor who is arrested, find our where they might be taken,  make sure  personal belongings are safe, friends contacted and ensure that someone is there to collect them when they get out of police custody.   Arrest support is a critical role. It might mean liaising assertively with police or watchhouse staff regarding the welfare of people inside, making sure people are not isolated or targeted, arranging lawyers, ensuring people in and have water and medical treatment – are safe and being treated properly.  Arrest supporters can also observe, record and make note of police behavior and monitor arrests for later legal defense – particularly if there are no Legal Observers present.   You dont have to have any legal training to do arrest support.

An Extinction Rebellion activist and their arrest support person at Oxford Circus in London. Image: BBC

It is easy to loose track of arrestees at mass actions. Good arrest support can make the difference between someone having a traumatic experience and someone coming out of custody inspired to get to the next action.
4) Court Support: 
Court cases can go for many months, sometimes years.  The activist campaigns should plan to support ALL those who face charges resulting for the action for the entirety of their court case.  This means helping them find legal representation / plan a legal strategy, support them if they plead guilty or not-guilty, fund-raise for fines,  organise for people to turn up at court appearances, assist with media throughout the case, be there for a victory celebration at the end, support the activists physically, emotionally, financially throughout.     You don’t have to have any legal training to do court support.

Three activists with their legal team. Image: Geco.org.au

Why is Legal Support Important?

We stress that a plan for on-going, hands-on legal support for protestors (such as during arrests and for court support) is essential, and is normally the most important aspect of legal support for activists.  It is even more important as public order policing becomes increasingly paramilitary – by deploying violence and force against groups of unarmed people.
We strongly encourage activist groups to look into and organise these forms of on-going legal support as a core part of your campaign planning.
The website www.activistrights.org.au has resources and downloadable PDF arrest support templates – https://www.activistrights.org.au/support_team_resources – which were originally designed for mass-arrest scenarios . – See below:
People in social movements are in it together, and we all have different roles to play.  Facing the full might of the police and the criminal justice system is frightening but something people have done throughout history. Planning good activist legal support builds movement resilience and make it more likely we will come out of it stronger
Our rights are routinely violated but movements are made stronger when people know their rights, vocalise them, and we respond collectively and assertively when they are.  Solidarity, in the streets, in police custody and in the courts is our most powerful tool.

There are three core aspects of Activist Legal Support: information, support and solidarity.

Legal information is best provided by lawyers or legal practitioners. Support is best provided by a well-organised legal support team. Other activists can only really provide solidarity. All three of these are crucial in good activist legal support.

What is the difference between Legal Observing and other forms of legal support?

Legal Observing is most effectively done by external / independent groups who can focus on civil and political rights rather than on the action itself.
Legal Observers (LOs) act as an independent, third party who monitoring police behaviour at protests and actions. This is known as ‘legal observing’.
Legal Observing takes activists away from these other arrest support roles so it is always wise to ask another group or organisation to take on that role.  MALS is one of the only legal support groups in Australia who regularly trains and fields Legal Observer Teams but community legal centres, church groups, human rights organisations such as Amnesty International have all organised Legal or Human Rights Observer teams in different states in the past.
For big civil disobedience events it might be wise to approach one of these larger independent groups, with plenty of notice,  to provide a team of volunteer observers if they can  – and allow your activists to focus on the actual action.
In monitoring the police, Legal Observers compile evidence which can later be used in court if protesters are wrongly prosecuted, or wish to bring actions against the police.
Legal Observer teams aim to widen the political space to take protest action. Their presence can also provide both a feeling of safety and a deterrent effect on police.
As observers, Legal Observers are removed from the protest itself, which allows them to objectively and independently describe events. It is in this form that Legal Observers are most effective in monitoring police behaviour.
You can think of Legal Observing as just one of the many parts that provide shared social movement infrastructure , along with medical support (street medics) and groups that are dedicated to providing food to protesters (Food Not Bombs).
We may be able to help but we cant do everything: you can get in contact with MALS if you would like to request that MALS provide a Legal Observer Team at actions or demonstrations – or come along to one of our trainings.
But we are a small, all volunteer and entirely unfunded group.   There is simply no way we could organise legal support for every activist group, action or campaign in Melbourne.
YOU need to do that.
WE can just support, advise and provide resources where we can.
You can always contact us at melbactivistlegal@gmail.com

#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

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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https://melbourneactivistlegalsupport.org/

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

Inquiry into Drug Law Reform: Submission

Standing Committee on Legal and Social Issues

Submission to the Inquiry into Drug Law Reform

Parliament House, Spring St
EAST MELBOURNE VIC 3002

 

Dear Committee Secretary,

Endorsement of the Abolitionist and Transformative Justice Centre’s (ATJC) submission

Melbourne Activist Legal Support (MALS) welcomes the opportunity to endorse the Abolitionist and Transformative Justice Centre’s submission to the Committee’s Inquiry into Drug Law Reform.

MALS observes, documents and reports on police and civilian engagement and harmful policing practices through its work supporting activists to defend their own civil and political rights to protest in the State of Victoria.

This endorsement focuses on the section of ATJC’s submission detailing how harmful police practices may increase the likelihood of drug-related harm in the community.

ATJC’s submission recommends:

That there be recognition of the harmful effects of policing on community-based harm reduction methods.

That police participate in meaningful harm reduction that guarantees safety for drug users, safeguarded by law and not just reliant on policy.

MALS makes a further submission that “meaningful harm reduction” extends to include banning the use of drug detection dogs and strip searches at music and arts festivals.

Research has shown that 30% of people when seeing drug detection dogs at an event consumed all of their drugs at once to avoid detection, leading to a higher risk of overdose. [1] The same study also found that searches had a very low success rate and research participants commented that police interactions left them feeling anxious and humiliated.[2]

Based on the research undertaken by advocates working with criminalised people subjected to strip searches, MALS submits that strip searches are particularly invasive and troubling for women and gender diverse people and have proved not to be successful at preventing drug related harm.[3]

If you have any questions in relation this endorsement or seek further advice from MALS please contact Katia Lallo, Collective Member,by email melbactivistlegal@gmail.com.

Yours faithfully,

Melbourne Activist Legal Support

16 March 2017

 

 


[1] Purple Hazelwood, Stan Winford, Dr. Jennifer Johnson, Rebecca Jenkinson, Damon Brogan, Sniffer Dogs: Their role in the reduction of drug-related harm? Presented at Club Health June 2008, Ibiza, Spain.

[2] Ibid.

[3] See, McCulloch, Jude and George, Amanda, ‘Naked Power: Strip Searching in Women’s Prisons’, in J. McCulloch and P. Scraton (eds), Violence of Incarceration, Routledge (2008).