Obstruction

The police may threaten this charge if they simply want someone out of the way. For the State offence of obstruction, which was originally aimed at traffic obstruction, the police will allege that you were in some way preventing “the free passage of the public” (section 4(e) Summary Offences Act 1966 (Vic)).

For you to be guilty of obstruction, the prosecution must prove beyond reasonable doubt that:

• you caused an obstruction, either by use of vehicle, goods or your body;
• the obstruction was deliberate; and
• it was on a road or footpath that provides access by the general public.

The maximum penalty is a fine of $500, but the usual fine is less than the maximum penalty. However, every case is different and you should seek advice about the likely penalty in your situation. Under the Sentencing Act 1991 (Vic), the court must take your financial circumstances into account when determining how much to fine you.

Commonwealth Law

Commonwealth law has a section more clearly aimed at demonstrations: a person “taking part in an assembly [who] engages in unreasonable obstruction” commits an offence (section 9 Public Order (Protection of Persons and Property) Act 1971 (Cth)). The penalty is a fine of up to $2000.

A defence to this charge would be that the obstruction (if it occurred) was “reasonable”.

Trespass

It is a State offence to wilfully trespass in any place and neglect or refuse to leave that place after being warned to do so by the owner, occupier or a person authorised by the owner or occupier (section 9(1)(d) Summary Offences Act 1966 (Vic) ). The maximum penalty is $2500 or six months' jail, although the penalty is usually a small fine. However, every case is different so you should seek legal advice about the penalty you may face.

If you enter onto another person's land without their permission, you will be trespassing. If you deliberately or carelessly do something that directly causes interference with someone else's land, a trespass is committed. Trespass is a civil wrong, and you can be sued for doing it. The most common example of trespassing is when you go onto someone's land without their permission.

Trespass under Commonwealth law

The corresponding Commonwealth offences do not require that a warning be given but provide for a defence of “lawful” or “reasonable excuse” (section 89(1) Crimes Act 1914 (Cth) and ss.11(1) and 12(1) Public Order (Protection of Persons and Property) Act 1971 (Cth) ). The penalty for both is a fine of up to $1000.

Trespass on certain types of premises is governed by different Acts; e.g. Regulation 35 of the Defence Force Regulations 1952 (Cth ) authorises the Minister to declare a place to be a prohibited area and creates offences of entering or remaining without permission. The maximum penalty is $2000 or imprisonment for six months, or both.

Offensive language and behaviour

It is an offence to use indecent or threatening language or behave in a “riotous indecent offensive or insulting manner” in or near a public place, or within the view or hearing of a person in a public place (section 17(1), Summary Offences Act 1966 (Vic)) .

The maximum penalty for a first offence is a $1000 fine or two months' jail. The probable penalty is a small fine in most cases. However, every case is different, and you should seek legal advice about the penalty you are likely to receive. “Public place” is very widely defined and includes roads, streets, alleys, footpaths, parks, gardens, railway stations, trains, piers, churches, state schools, theatres, markets, sporting grounds and open areas.

When defending a charge, it is always open to argue that current community standards dictate that the conduct over which a person has been charged with this offence may not amount to obscene, indecent or threatening behaviour.

Related Commonwealth charges

Besetting

It is an offence for anyone, alone or together with others, to wilfully and without lawful authority “beset” any premises, whether public or private, for the purpose and with the effect of obstructing, hindering or impeding by an assembly of people any person's lawful right to enter, use or leave such premises (section 52(1A) Summary Offences Act 1966 (Vic) ). The maximum penalty is a $1500 fine or three months' jail. You should seek legal advice about the penalty you may face if you are found guilty of besetting.

Breach of the peace

Breaching the peace is a summary offence under section 9(1)(g) of the Summary Offences Act 1966 (Vic). The maximum penalty $2500 or 6 months' jail .

Offences against police

It is a offence in Victoria to “assault, resist or hinder” or to incite someone else to “assault, resist or hinder a member of the police force in the execution of his [sic] duty”, including the making of an arrest (section 52(1) Summary Offences Act 1966 (Vic) ). “Resisting” means opposing by force and “hindering” means making the arrest or other police action more difficult to carry out. It does not matter whether the resistance or hindrance actually prevents the arrest or other action.

It is not an offence to passively resist arrest, or to run away before an arrest has commenced. An arrest commences when the police officer makes it plain to you by words or other action that you are under arrest.

It is not an offence to resist or hinder a police officer who is not acting in the execution of his or her duty. Police may not be acting in the execution of their duty when they make an illegal arrest, or use excessive force. It is a defence to the charge of resisting you did not know that the person who you resisted was a police officer. The maximum penalty is six months' jail or a fine of $2500. An assault police charge will attract a more serious penalty than resisting or hindering.

Some people convicted of assaulting police have been sentenced to imprisonment. However, every case is different, and you should seek legal advice about the penalty you may face in your specific circumstances.

There are also more serious charges of threatening injury to police to prevent arrest, and a more serious assault police charge under sections 30 and 31 of the Crimes Act 1958 (Vic), which carry maximum penalties of 5 years imprisonment.

It is a Commonwealth offence to “intentionally and knowingly obstruct, resist, hinder, use violence against, threaten or intimidate” a member of the Australian Federal Police carrying out a “function or duty” (section 149(1) Criminal Code Act 1995 (Cth)). The maximum penalty for this offence is two years' jail.

It is also an offence for someone to obstruct, assault, threaten or abuse an authorised officer in the performance of his or her functions under the National Parks Act 1975 (Vic) (s.45(i)).

Carrying a weapon

An weapon may include anything that can be used, and is intended to be used as, a weapon (e.g. a broken bottle). Thus sticks, rocks and many common objects may be considered weapons. At protests, police have been known to charge activists carrying props, banners or articles for street theatre with possession of a “controlled” or “prohibited” weapon. This usually ends up in the media the next day.

Recent changes to the law relating to weapons (the Control of Weapons Act 1990 (Vic)) have imposed severe restrictions on the carrying of objects which could be considered weapons. The carrying of knives is almost completely outlawed. It is not lawful to carry a knife for the purpose of self-defence. Weapons including flick knives, daggers, butterfly-knives and knuckle dusters are prohibited weapons which must not be made, sold, purchased, possessed or carried or used in Victoria.

Unlawful assembly

As a State offence, unlawful assembly is not defined in an Act of Parliament. It is a “common law offence”, whereby it is an offence for there to be an assembly of three or more people with an intent to commit a crime by open force, or with intent to carry out any common purpose, whether lawful or not, in such a manner as to give reasonable people in the vicinity reasonable grounds to fear a breach of the peace.

Also, under section 10 of the Unlawful Assemblies and Processions Act (1958) Vic any person who attends and takes part in an unlawful assembly, as defined by the Act, which includes any political demonstration, is guilty of an offence. This charge is very rarely used, but it does illustrate the power that governments have to stop “political” actions.

Riot

Riot is a common law offence based on the concept of “breach of the peace”. The prosecution must prove that three or more people were gathered together, with a common purpose, with an intent to assist each other, using force if necessary, against anyone who opposed them, and also used or threatened force or violence in such a manner as to terrify reasonable people.

Police may also have a situation declared as a riot by having a magistrate read aloud the riot proclamation ("reading the riot act")

Affray

Affray is also a common law offence. The prosecution must prove that there was fighting or violence used by one or more people against another or other people, or an unlawful display of force, and this might cause a reasonable bystander to be terrified .

Obstruction of forest operations

The most common offence for forest activists to be charged with is hindering or obstructing a lawful forest operation under section 95A of the Conservation, Forests and Lands Act 1987 (Vic) .

It is an offence under this Act to hinder or obstruct another person in the “lawful” carrying out of forest operations (e.g. logging, clear-felling, road construction, etc.) or the carrying out of forest operations (section 95A).

What constitutes a “lawful” forestry operation can be the subject of legal argument. The maximum penalty is a fine of $2000.

For more information on possible charges relating to forest protests in Victoria go to the section for Forest Activists or go to: www.lawyersforforests.asn.au .

Obstruction of road works

It is an offence under section 225a of the Transport Act 1983 (Vic) to resist, hinder or obstruct any authorised officer in the execution of his or her duty.

The maximum penalty is $2500 or six months' jail.

Damage to property

Damage to property could occur unintentionally during an action or may be an actual part of the political protest. Postering and graffiti can sometimes result in these charges.

In Victoria there are also a number of offences which relate to damaging property. The most significant of these is section 197 of the Crimes Act 1958 (Vic) which provides for jail sentences of up to 15 years where there is an intention to endanger life or damage property.

Where the intention is to simply damage property, the maximum penalty is 10 years imprisonment. Generally this section is used for the bigger instances of damage to property, where the damage to property costs more than $500 to repair.

This offence could be charged by police in situations involving gluing padlocks, painting security cameras or pulling down a fence. The penalty is a jail sentence of up to 10 years. In addition, police will usually ask the court to order that the defendant repay the cost of the damage to the property. This can be a significant amount. Case Study: Women For Peace

Wilful damage charges are generally used for instances where there has been less significant damage to property. Less serious property damage offences can be found in sections 7 and 9 of the Summary Offences Act 1966 (Vic) . The maximum penalties are much lower: six months' jail or a $2500 fine.

You should always remember the courts only impose the maximum penalty where a person has many prior convictions and/or commits the worst type of the particular offence.

There are also numerous Local laws relevant to damage to property, graffiti and postering.

If you cause only minor damage you are unlikely to receive more than a small fine, but there is no guarantee. If the graffiti work for instance is pleasing to the public, you might be better off, but then again, beauty is in the eye of the beholder.

Penalties and compensation orders would generally be less, say, for chalk than for paint graffiti. However an occasional reactionary judge or magistrate will jail a political graffiti artist. The public spiritedness of your art can help prevent such a severe penalty. As always, if you are unsure about the penalty you may face, see a lawyer for advice, as every case is different.

Local laws

The Local Government Act 1989 (Vic) gives Victorian municipal councils the power to create local laws to assist in delivering democratic, efficient and effective local government. The Activities Local Laws (“ALL”) of the relevant municipal council often used by local council to control protest activities such as stalls and demonstrations.

Other possible offences

Stalking

The Crimes Act 1958 (Vic) offence of stalking was originally intended to give more force to the Crimes (Family Violence) Act 1987 (Vic). However, given the wide definition of stalking in section 21A(2) of the Crimes Act, the offence of stalking has the potential to be applied to protest situations. Stalking includes following, telephoning, or giving offensive material to someone where there is the intention of causing physical or mental harm and the course of conduct engaged in actually did have that result. The penalty for this offence is up to 10 years jail.

Burglary

Burglary is the offence of trespassing on property with criminal intent (ie. to commit an offence such as theft or assault). This could be used where protestors enter private property with the deliberate intention to damage it. The penalty is up to 10 years imprisonment (or 15 years for an “aggravated burglary” where the person was reckless as to whether a person was present at the time of entering the property).

Assault

There are a number of different charges of assault, each with a different penalty range, depending on how the assault occurred, whether a weapon was used and the injuries caused. Summary and indictable (more serious) assault or causing injury charges all carry significant maximum penalties, including terms of imprisonment.

Offences under anti-terror legislation

In response to so-called “threats of terrorism” (See Terror laws section of this site), both the Victorian and federal parliaments have enacted legislation creating a raft of new offence for individuals and organisations engaging in or knowing about “terrorist acts”.

The legislation applies in circumstances including where an action or threat of action has the intention of advancing a political, religious or ideological cause, and would or does cause serious physical harm or serious property damage.

For an overview of the Government's banning powers, and their implications for community and social activists, see Proscribed organisations.

For more information about the powers of ASIO, see What to do if ASIO visit.