Performance 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.
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
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 States
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.
The 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.