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Lawful or unlawful

"I support your right to protest, as long as you don't break the law"

Many activists hear this statement from police, politicians or even friends and family when planning a protest or direct action.

This supposed support for the right to protest, as long as it is lawful, assumes that in Australia we have sufficient political space for us to protest in. However, the criminal law throughout Australia encompasses a huge range of offences that can be used against activists if the police or government choose. How much political space we actually have depends on a range of factors.

When it comes to public protests or political actions, what is lawful and unlawful is often very confusing and is always changing as new laws are introduced and old laws re-applied or changed.

Although legal workers can provide advice about what the law says and what charges are possible, the way in which police and government apply and use the law is always changing. Whilst the police may stand by when activists chalk on the road during one protest, they may arrest people at a different protest for doing the same thing.

Seemingly innocuous activities such as honking your horn as you drive past a picket or weaving ribbon through a wire fence have been interpreted as offences in Australia.

When activists camp on public land at, or near the site of a protest; police may use local council powers, even when no issue of trespass arises. Police, using an archaic council by law, charged activists handing out leaflets at the picket of the NIKE sports store in Melbourne.

When existing laws are not adequate to restrict activists or stifle our ability to protest, a new law has been created, sometimes specifically to deal with a particular protest. The famous Aboriginal Tent Embassy in Canberra, and an East Timor solidarity protest outside an Indonesian Consulate are clear examples of this. The law of trespass has been changed a number of times in response to forest protests in Tasmania (Brown 1992) Although some activists may knowingly break laws, or engage in deliberate civil disobedience, not all activists deliberately seek to break the law.

Those who do so often consider and weigh up the costs and consequences of unlawful action carefully and make clear choices.

See also Should I be arrested?

Even activists who go to great lengths to stay within the law can sometimes come face to face with the police. Laws can be used against activists in order to control or stifle protest and dissent even when there is no intention by activists to break the law.

It is not the case that activists are criminals. It is the legal system getting in the way of social change. Read about the experiences of other activists,

See also Case studies section.