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Activist Legal Information

Different types of actions can involve different types of legal issues and consequences, especially now when social media is playing an increasing role. This section is intended as a basic guide about some of the legal issues you may encounter and should be aware of.

This section looks at different types of actions and the potential consequences including police involvement and arrest, but it is only an overview, and is not intended to be exhaustive, nor is it intended to substitute for personal legal advice. Your action may involve special legal issues not covered here.

You should generally be very careful of any contact with police, especially If there are warrants out for your arrest, or if you are on probation or parole, even if from another Australia state or territory. An arrest may lead to your extradition to whatever jurisdiction wants you.

This section can only provide general information.  If you need personal legal advice, you should consult with a lawyer on an individual basis. If you have any doubts about whether you have special circumstances, seek legal assistance.

Student activists

Universities use a broad range of legal sanctions to both deter and punish effective student actions on campus.

If you are planning to participate in a protest occurring on university grounds, you should be aware of all charges for which you may be potentially liable.

If any charges are laid against you, in internal proceedings or otherwise, you might want to seek independent legal advice. Many student organisations offer this service free for students; if not, you can contact legal aid or your local community legal centre.

University status

Strictly speaking, universities are private property but their nature as large educational institutions means that they are in practice open to the public. This is consistent with the idea that universities are ”public institutions”. This dual status of public and private is convenient for universities, for whom it provides a more expansive line of attack against activist students. For example, police can charge student protesters with offences under which the university is seen as ”private”, such as trespass, as well as offences that apply to ”public” places, such as offensive behaviour.

Universities may also of their own accord initiate legal action to suppress activism. In the USA, the University of California (Berkeley) has initiated a civil action which aims to restrain a range of protesters from blocking the destruction by development of open public parks. This is an entirely new application of the law, but based on an earlier action against anti-logging protesters. These initiatives have become known as Strategic Lawsuits Against Public Participation (SLAPPs).

See Legal threats silencing activists

Common criminal charges

The normal range of criminal charges is open to university authorities to report matters to police in dealing with student dissent and actions. Initiating criminal charges can be an embarrassment to university administration. You could consider using this as a strategy to force the university to drop charges or to avoid charging students in the first place. Many of these offences are dealt with in more detail in Common charges and offences.

Trespass

If you are not a student (or staff member) your rights to be on campus are broad but qualified. Officers of a university can legally order you to leave (for whatever reason) under the trespass law of the Summary Offences Act 1966 (Vic).

See the Trespass section for more information.

Under Section 9 (1C)(a) of the Summary Offences Act 1966 (Vic), a person can be warned off university premises, orally or in writing, so that entering university grounds can constitute an offence.

Other offences

The University may seek to have police bring other charges (see Common charges and offences).

Offences such as obstruction, unlawful assembly and offensive behaviour may apply.

The Summary Offences Act 1966 (Vic) gives a broad definition of “public place” so as to include private property open to or used by even a small number of members of the public. Given this definition, it is easy to see how universities can be characterised as “public places” where police see fit for the purposes of charging students with offences with a “public place” element.

Increasingly, universities are arranging for police presence when they anticipate a protest so you also need to be aware of the offences of assaulting and resisting or hindering police.

Students rights

All Australian universities have some form of internal disciplinary procedures (usually found in the statutes or regulations under the Act that created the university) which provide penalties for both staff and students who break university rules. There is usually a general offence of breach of discipline or misconduct. Check your university's rules for the specifics of these procedures.

Universities often make it a condition of enrolment that students agree to abide by the university rules. This is sometimes worded (in the enrolment forms) as a requirement to obey the university authorities. Note that no university authority (senior executive or security guard) can order you to do something that he or she is not empowered to do under the applicable University Act. You need not obey any unreasonable or oppressive direction.

Most universities bring misconduct allegations against students under the broad banner of ‘prejudicing good order, government and peace' at university. This means that any action that you as a student take in protest can potentially be viewed as ‘misconduct' under this dangerously broad characterisation. The law requires that there be a certain degree of certainty in a contract, and there is nothing that should preclude this standard from applying in the education context.

For example, Chapter 13 of the University of Melbourne Statute concerning student discipline provides that:

"breach of discipline or good order" includes conduct or behaviour which:

i. is lewd or obscene,

ii. impairs the ability of any person to participate in any activity of University life sanctioned by the University,

iii. unreasonably prevents or attempts to prevent any person authorised by the University to speak at any lecture, class, seminar or other academic activity, or any political, social or similar gathering,

iv. causes any person to hold reasonable fears for his or her safety or physical or psychological well-being,

v. causes any person to feel intimidated, threatened or in fear of being attacked,

vi. (for the purpose only of a direction under clause 3.7(d) of the Procedures to Resolve Sexual Harassment Complaints) breaches the University's policy against sexual harassment,

vii. breaches any provision contained in an Act of the Commonwealth or of the State of Victoria to which the University is subject, such as those relating to occupational health and safety,

viii. breaches the University's policy with respect to the use of computers and computer facilities,

ix. breaches the University's policy with respect to intellectual property,

x. interferes with, or causes damage to, or loss of, any property or facilities owned or controlled by any person whilst such property or facilities are lawfully on any premises owned or controlled by the University,

xi. constitutes a failure to comply with any lawful direction or order given in order to ensure the safety of any person, the preservation of any property or the maintenance of good order,

xii. involves the impersonation of another person or the use, whether deliberately or not, of forged, false or falsified evidence of academic standing or immigration status or any other relevant matter in order to gain or maintain enrolment,

xiii. involves concealing or withholding, whether deliberately or not, the whole or part of a student's academic record, or submitting incorrect details of his or her academic record or immigration papers or any other relevant matter, or relying on the academic record or immigration papers or any other relevant material of another person or persons, in order to gain or maintain enrolment,

xiv. is a breach of the regulation relating to assessment made under Statute 12.2.10.

Breaching the discipline and good order provisions of universities can of course have serious consequences. Again for example, Chapter 13 of the University of Melbourne Statute concerning student discipline provides that a breach of discipline and good order can, in certain circumstances, be punishable by:

  • reprimand,
  • fine,
  • the payment of clean up costs,
  • exclusion from specified University premises or facilities either permanently or for such period and on such terms and conditions as is thought fit, and
  • exclusion of the student from the University either permanently or for such period as is thought fit.

Most universities have similar sanctions and powers. Universities may also have the power to withhold a degree or academic transcript unless fines or other debts outstanding have been paid.

Misconduct hearings

If you are questioned by university authorities in circumstances where it is possible that disciplinary charges may be laid, you should follow the same course as if you were being questioned by the police: that is, decline to answer any questions until you have had independent advice from a lawyer about your rights. If you do not turn up to a hearing, the authority may, however, find the disciplinary charges proven in your absence.

University by-laws may also offer some protection. In particular, students charged under university rules are entitled to the benefit of the rules of natural justice. That is, you are entitled to a fair hearing and safeguards against bias on the part of the decision makers. There must be hearings procedures under administrative law, which must be procedurally fair, and appeal mechanisms, which you can use if there is an adverse finding against you.

There should be a staff and a student representative on the relevant committees, although there may be no entitlement. You may be entitled to have someone accompany you. Universities differ as to whether you can take a student advocate, friend or lawyer. The committee should be comprised of people who have no interest in the matter.

Many universities may not allow you to have your own lawyer present at hearings, but may allow a non-legal advocate from your student organisation to represent you. Some universities do not allow ‘advocates' of any nature. Questions of procedural fairness should be argued in this circumstance.

Being denied the right to independent representation when the university will have one of its own officers arguing the case against you is a breach of the principle of procedural fairness. In such circumstances, treat the hearing as an information gathering exercise - you do not have to say anything. You can obtain legal advice prior to the hearing. You may be able to negotiate the charge being dropped before the charge is heard through legal advice and representation. In practice, the Student Advocacy Services within each university provide advice and assistance in misconduct hearings.

Some practical tips

It is important to remember that a misconduct hearing is not a court of law but an administrative body, similar to a tribunal. It cannot consider questions of law and allegations can be challenged on this basis.

University misconduct hearings are intimidating and can be punitive. In preparation for this you may consider:

  • obtaining support letters about why charges should be dropped from student organisations, unions on campus and supportive staff,
  • getting advice from a lawyer; the lawyer might be able to send a letter outlining how the charge/investigation contravenesnatural justice, and/or
  • running a media campaign to embarrass the university.

Discrimination

The acts of many universities prohibit religious, political or racial discrimination. RMIT University, for example, has a cultural diversity and anti-racism policy that prohibits religious or political discrimination affecting students or staff members.

If there is good evidence of any such discrimination, and the matter cannot be resolved at the institution, you would have strong grounds for civil proceedings in the courts against the university. Religious or political discrimination complaints can also be taken to the appropriate Human Rights and Equal Opportunity Commission or body.

State legislation may also prohibit discrimination on other grounds, such as gender, sexuality or disability.

Security guards

Security guards generally have no more legal power than the average citizen, except:

  • when they are sworn in as special constables, then they have some extra arrest powers; and
  • when there is some extra power under the university rules.

There is no common theme on this issue in university rules across the nation. There may also be questions around how these extra powers are conferred.

Prescribed officers including security guards usually have power to give directions to students, such as ordering you to leave the campus. Such directions, if disobeyed, can lead to discipline proceedings for students enrolled at the relevant campus and the university's staff members bringing police on campus with the possibility of trespass proceedings being initiated.

Identification

Members of the Victoria Police have the power to demand identification if there is a reasonable suspicion of a person having committed an offence. Universities may alter their by-laws to enable security guards and other staff members to demand identification. If a student of that university campus refuses to supply identification on demand, this could form the basis for a misconduct charge. If the challenged person is not a student of the campus and does not produce identification then this could be grounds for the police to be called in and they may have the power to request the name and address of that person.

Search

A security guard is never allowed to search you or your property, unless you consent to it. Do not give consent to any security guard to do this. If a security guard does carry out a search without consent, you may pursue criminal and/or civil action. Police may not have the power to search you on university grounds if these grounds are not considered a “public place”, as police usually need a warrant to conduct a search on private property.

Also see University status

Use of force

Security guards, in certain circumstances, can legally arrest you. They must inform you of the reason for arrest and caution you. The police should be advised immediately. Be aware of the restrictions that apply to the use of force by security guards - if you feel that ‘unreasonable' force has been used, you can allege assault to police or pursue civil action.

Strategy

A possible strategy for avoiding conflict between students and security guards is to negotiate with their union. It is possible to achieve results such as occurred in the 1992 occupation of the Administration Building at Macquarie University when the University's (privatised) security guards were used to evict students. After discussions with their union, they were not used against students in the second occupation.

Also see Private security guards

Trade unionists

Trade Unions, as well as being organisations that seek to maintain and improve working conditions for their members, can also act as vehicles for social change as a whole. Trade Unions have successfully run campaigns to improve work conditions but have also been involved in numerous  community-based campaigns. Some unions are far more active around social issues than others.

Related links for trade unionists:

International conventions

The Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognise the rights to:

  • work,
  • have just and safe conditions of work,
  • be free of discrimination at work,
  • receive equal pay for equal work; and
  • form and join trade unions. (ICESCR, Articles 6, 8 and 7 respectively).

The International Labour Organisation (ILO) is a United Nations body consisting of government, employer and union representatives. It has developed many conventions on workers' human rights, which many governments, including the Australian Government, have signed.

These cover:

  • Prevention of forced labour
  • Safe working conditions
  • Non-discrimination at work
  • Equal pay for equal work
  • Minimum age of employment to prevent child labour
  • The right to organise trade unions and to negotiate working conditions collectively

However, the rights in the signed Conventions have never been fully implemented into Australian law. Trade Unionists in Australia are left with scattered protections in some state and Commonwealth legislation.

Improving workers' rights

Workers' organisations have improved working conditions through organising workers and by influencing law and policy makers. Unions have also taken test cases through industrial tribunals.

The Australian Council of Trade Unions' (ACTU) reasonable hours test case in the Australian Industrial Relations Commission is a positive example. This case established the right of workers to refuse to work overtime when doing so would result in the employee working unreasonable hours. In recognition of the adverse effects on employee health and their families, the Commission ruled that workers may refuse to work overtime if there is a risk to the worker's health and safety or on the basis of family responsibility.

However, such improvements are not guaranteed and can be reversed. Protection of workers' rights in line with international standards is required to prevent unfair treatment at work.

The above material is adapted from the fact sheet "Worker's Rights: Protecting Human Rights in Australia", courtesy of the Public Interest Advocacy Centre.

For more information on workers' rights and workplace agreements see The Law Handbook online.

Police & picket lines

Police have no responsibility for the removal of a picket line but may act to remove a physical obstruction.

According to Victoria Police operating procedures, a picket line becomes a physical obstruction when it denies access to or egress from the particular location to any person who has a legal right (which can be anybody on a public street) to enter or leave.

Victoria Police have an Industrial Disputation Liaison Officer in the Community and Cultural Division who is brought in to liaise and advise on industrial disputes and union pickets.

Community activism

Apart from being organisations that seek to maintain and improve working conditions for their members, unions can often act as vehicles for social change as a whole. Some of the community-based campaigns that unions in Victoria have become involved with include:

  • Black banning the export of pig iron to Japan in the lead up to WWII
  • Green bans on certain developments.
  • Opposition to nuclear weapons, and visits by nuclear armed or powered ships
  • The protection of our natural resources, including our rain forests
  • Land rights for Aboriginal people and improved rights for women
  • Supporting self determination for the people of East Timor
  • Highlighting the inhumane treatment of refugees seeking asylum in Australia

Some unions are far more active around social issues than others. The need to campaign against the Federal Government's IR changes may also limit the capacity of some unions to respond to other social issues.

Environmental activists

Environmental actions in Victoria have taken many forms, from large rallies to mass civil disobedience. A number of environmental direct actions have involved the use of ‘lock-ons’. This is a technique to prevent the removal of the protesters quickly or easily from the protest site, and may involve chains and locks or handcuffs.

Non-violent protest and other forms of environmental activism have played a crucial role in enhancing Australia’s environmental laws, and preventing damage to the environment. In September 2009 the ‘Switch off Hazlewood’ mass protest of about 500 people was held at the Hazlewood power station. Some of the civil disobedience included climbing temporary fencing erected by police, and 22 people were arrested, many for trespass.

In forests, activists have formed human blockades, used tall ‘tripods' and ‘monopoles', a huge range of ‘lock-on' devices, ‘dragons', tree-sits and cabling which aim to slow or stop the logging of forest or bushland areas. Successful blockades, such as at Riley's Ridge in the Otways (2000), used tree-sits suspended by cables which were attached from tree to tree, preventing the trees from being felled without risking the tree-sitter's life. Tarzan swing style escapes enabled the protesters to escape arrest and hold the blockade. This was the first time blockaders successfully stopped a working coupe and prevented further logging indefinitely. The coupe is now inside the proposed Otways National Park.

'Tripods' (which were pioneered in Australia and are now used around the world) have been used to obstruct roads to prevent motorway development as well as logging. Forest protesters have also used tripods and cabling to do suspended tree-sits, to out-reach a crane and prevent protestor removal. Erecting a long single, central pole from a tripod is a ‘mono-pole', which ensures vehicles cannot pass between the tripod's legs and provides additional height. Mono-poles have also been erected on excavators and bulldozers, supported with cables.

Relevant legal issues

Protests can sometimes involve police, or authorised officers (such as, in the case of forest protests, employees of the Department of Sustainability and Environment). Potentially, people can be arrested and charged with offences. In addition to many of the common offences and legal issues described elsewhere, there are a range of special legal issues that are directly relevant for environmental activists.

For detailed information regarding ‘Police Powers’ see Police powers and your rights.

“Authorised Officers” 


The management and protection of forests on public land in Victoria is controlled by the Secretary of the Department of Sustainability and Environment ("DSE”) under Section 18 of the Forests Act 1958 (Vic) (“ FA ”). Section 83 of the Conservation, Forests and Lands Act 1987 (Vic) (“CFLA”) enables the Secretary to appoint government employees (usually DSE employees) as authorised officers. VicForest employees may also be appointed, however authorised officers are prohibited from trading in forest produce, or having any interest in any lease, licence or permit for land or the working of any forest produce.

Other types of authorised officers can include:

  • VicRoads employees appointed under the Road Management Act 2004
  • Council employees appointed under the Local Government Act 1989 (“ LGA ”)or the Public Health and Wellbeing Act 2008
  • Department of Primary Industries officers appointed under the Prevention of Cruely to Animals Act 1986
  • An officer appointed under the Water Act 1989.

If an authorised officer attempts to exercise their powers, you should ask them to identify themselves and what their official status is. Authorised officers often work in coordination with police, who will look on and may assist if necessary (for example, with arrests).

Authorised officers are empowered to enforce the applicable laws and regulations in State forest including as provided under the FA, the CFLA, the Sustainable Forests (Timber) Act 2004 (Vic) (“SFTA”) and, most commonly, the Safety on Public Land Act 2004 (Vic) (“SPLA”).

Providing information to authorised officers


Authorised officers often have powers to require you to provide your details if they reasonably believe that you have committed or are committing an offence against the Act under which they are appointed. For example, authorised DSE officers can ask you for your name and address if they have a belief based on reasonable grounds that you are committing an offence against the SPLA(s17) or the FA(s95A). The authorised DSE officer can require you to provide evidence of you name and address, if they believe that the details you provide are false. You must provide this evidence, unless you have a reasonable excuse (for example, if you have no such evidence on you).

Similarly, an authorised Council officer can demand your name and address if they reasonably suspect you have committed or are about to commit an offence against any Act, regulation or local law which they are appointed to enforce under the LGA(s224(6)). Both authorised DSE officers and authorised Council officers must tell you the grounds their belief that you are committing or about to commit an offence under the FA (s95A), SPLA (s 17), LGA (s 224(6A)).

If you fail to provide your name and address to an authorised DSE officer, provide false details, or refuse to provide evidence of your details without reasonable excuse you can be fined up to around $600, by FA (s95A(3)), SPLA (s17(3)). The officer must inform you of this if they wish to charge you. If you fail to give your name and address to an authorised Council officer, you can be liable for a fine of up to around $7,300 by the LGA (s 224(8)).

Obtaining information from authorised officers

Usually, authorised officers are required to provide you with their name, and advise you of their status as an authorised officer. For example, if an authorised DSE officer asks for your name and address, they must also provide you with proof of their identity if you ask ( FA s 95B, SPLA s 17(6)). Similarly, an authorised DSE officer cannot direct you to leave a public safety zone without first showing you proof of their identity and official status ( SPLA s 14).

Authorised Council officers must, if requested to do so, produce their identify card, which must contain their photo, their signature and the signature of a member of Council ( LGA ( s 224(4)).

Answering questions from authorised officers 


As with the police, other than providing your name and address, you do not have to answer any other questions from any authorised officers: you have a right to remain silent or say ‘no comment’.

As with the police, there is no such thing as an ‘off the record’ conversation. Anything you say can be used against you if you are later charged and prosecuted in court.

Authorised officers may make an arrest 


Under the Crimes Act 1958 (“CA”), any person (not just police) can carry out a ‘citizen’s arrest’: that is, they can apprehend another person committing a statutory or common law offence, where they believe on reasonably grounds that the apprehension is necessary to preserve public order or to prevent the continuation of the offence, or for other reasons ( CAs 458(1)). This includes authorised officers.

If you are arrested by an authorised officer using these powers, you can only be held in custody so long as the officer reasonably believes that the apprehension is necessary ( CAs 458(3)).

In some instances, authorised officers using citizen’s arrests powers may be entitled to use such force as is believe on reasonable grounds to be necessary ( CAs 462A).

Authorised officers must comply with the Information Privacy Principles 


Councils, public sector agencies and authorised officers, as well as contractors who provide services under a State contract are required to comply with the Information Privacy Principles. The Information Privacy Principles are rules about when and how your personal information may be collected and used, under the Information Privacy Act 2000 (s 9) (“ IPA ”). Your personal information includes your name and address, but also photographs of you.

For example, one of the Principles states that a person or organisation bound by the principles must not collect your personal information unless it is necessary for their agency’s functions or activities, and that the person or organisation must only collect personal information by lawful and fair means, and not in an unreasonably intrusive way. The organisation must also take reasonable steps to inform you about why the information is being collected, among other things (Information Privacy Principle 1.3).

The Principles also state that the person or organisation collecting your personal information can only use it for the purpose for which it was collected, or for another purpose which you would reasonably expect. The complete list of the Principles can be accessed in the IPAor on the Privacy Commissioner’s website (www.privacy.vic.gov.au).

An agency acting in a law enforcement capacity is not required to comply with some of the Information Privacy Principles ( IPA, s13). This does not apply, however, to individual authorised officers. If you believe that there has been a breach of the Information Privacy Principles, you can complain to the Privacy Commissioner. The Commissioner has the power to refer matters to the Victorian Civil and Administrative Tribunal (VCAT).

If you are concerned that your information, such as your photograph, have been collected inappropriately and want to know if there has been a breach of the Information Privacy Principles, you should contact a lawyer.

Other powers of authorised officers 


The powers of appointed authorised officers depend on the legislation they are appointed under.

Authorised DSE officers have the powers to:

  • Direct you to leave a public safety zone ( SPLAs 14);
  • Seize and remove ‘abandoned goods’ (that is, property you have left unattended in a State Forest by section 95C of the FA. They can destroy the item if they think it is perishable, or dangerous;
  • Seize any item used or being used in the commission of an offence, although the officer must provide a receipt ( FAs 95F; SFTAs 88) and make reasonable efforts to return the item to its owner within 7 days, or after 90 days of its seizure the owner can apply for its return FAs 95G; and/or,
  • Start proceedings against you for committing certain offences in reserved forest ( FAs 78(2)).

It is an offence to threaten, abuse or hinder an authorised officer 


It is an offence to threaten or abuse an authorised DSE officer exercising their duties or powers under the SFTA (s87) or the FA (s96B). It is an also an offence to hinder or obstruct, without reasonable excuse, an authorised DSE officer carrying out their duties or powers under the SFTA (s86) , FA (s96A) or the SPLA (s20). If you commit any of these offences, you can be fined up to around $7,400.

It is an offence to hinder or obstruct an authorised Council officer performing their duties, with a maximum fine of around $7,300 under the LGA (s224(8).

Police and DSE officers can lay multiple charges for a single event. Activists have been faced with up to 14 charges for the same event in past actions. The criminal offences most frequently prosecuted are listed in the following section.

Environmental action charges

Offences against police & other authorities 


It is an offence to assault, resist, obstruct, hinder or delay a police officer carrying out their duties. This includes resisting your arrest (or someone else’s arrest). The maximum penalty is six months jail, or around $3,000 according to the Summary Offences Act 1966(s52(1)) (“ SOA”). In addition, if you are found guilty of this offence, the court can order you to pay for any damage sustained by the officer ( SOAs52(2)). This offence also applies to obstructing officers of local authorities, such as local Council officers ( SOAs52(1)).

Trespass 


Any person who is on the land of another without authorisation, whether public land or private land, and who refuses or neglects to leave the property after being warned by the owner, occupier or their authorised representative can be found guilty of trespass. The maximum penalty is six months jail or a fine of around $3,000 ( SOAs9(1)).

A ‘public space’ can include gardens, parks, highways, public halls or any place that the public can enter with or without payment.

Police officers usually have a power to order you to ‘move on’ - that is, they can direct you to leave a public place if they suspect on reasonable grounds that you are, or are likely to be, breaching the peace or endangering the safety or another person, or if your behaviour is likely to cause injury to a person or property, or is otherwise a risk to public safety ( SOAs6(1)).

However, police officers do not have this power if you are protesting. Protesting in this case includes picketing a place of employment, demonstrating/protesting about a particular issue, or speaking, bearing a banner or sign in a way that is intended to publicise your views about a particular issue ( SOAs6(5)).

Obstruction 


It is an offence for a person, together with others, wilfully use a crowd to obstruct, hinder or impede any person's lawful right to enter, use or leave premises (whether public or private), unless there is authorisation to do so ( SOA s52(1A)). The maximum fine for this offence is around $1,800 or 3 months imprisonment, unless you obstruct a Police Officer, in which case the maximum fine is $2550 or 6 months imprisonment. In addition, if you are found guilty of this offence, the court can order you to pay for any damage sustained by the Police officer or other person whose entrance was obstructed ( SOA s52(2)).

Offences relating to weapons 


It is an offence to possess, carry or use weapons such as knives, unless they are being carried in a safe and secure manner for a lawful purpose (such as employment, sport, recreation or entertainment)(Control of Weapons Act 1990 s6) (“COWA”). This offence could apply even if you were carrying a knife (such as a pen-knife) for cooking or camping purposes at a protest. The maximum penalty for this offence is one years imprisonment, or around $14,700 (COWA s6(1)).

Weapons such as flick knives, daggers, swords and other types of knives are ‘prohibited weapons’ and must not be possessed, made, brought into, carried or used in Victoria (COWA s5).

Forest protests 


In forest protests, the most commonly charged offences are those under the SPLA. Under this Act, the DSE can declare certain areas of State forest to be a 'public safety zone' ( SPLA s4). Information about the public safety zone, including the area it applies to, must be published online (usually on the DSE website), and on a notice conspicuously displayed near the zone. ( SPLA s5, 7, 11)

It is an offence to:

  • Carry out any activity in a public safety zone in contravention of the public safety zone declaration (up to about $2,400) ( SPLA s13(1)).
  • Refuse to leave a public safety zone after a DSE authorised officer has asked you to leave (provided the officer gives proof of their identity and official status)(up to about $2,400) ( SPLA s14(3)).
  • Following a direction to leave a public safety zone, to re-enter the zone, or to attempt to re-enter (up to about $2,400) ( SPLA s15).
  • Hinder or obstruct an authorised DSE officer exercising their duties and powers, without reasonable excuse (up to around $7,300) ( SPLA s20).
  • Fail to give your correct name and address to an authorised DSE officer, if the officer reasonably believes you have committed an offence, and they have identified themselves (up to around $6,100) ( SPLA s17(3)).

Other Acts relating to forests also include offences, although these are now used less often than those described above. For example, under the Conservation, Forests and Lands Act 1987 it is an offence to hinder or obstruct another person in the lawful carrying out of forest operations (s95A). If you are found guilty of this offence, you can be fined up to around $2,500.

What constitutes a 'lawful forestry operation' for the purposes of this offence can be the subject of some argument. In the past, protesters have successfully appealed against an obstruction charge because the Code of Forests Practices had not been complied with. The argument that you are protesting unlawful forest activities is not available for offences under the Safety on Public Land Act 2004.

Electricity industry protests 


In addition to the trespass offence described above, the Electricity Industry Act 2000 (" EIA ") contains specific offences relating to 'critical electricity infrastructure', which includes certain large electricity generation facilities (generation of 1,000kVa or greater), a related coal mine or substation, terminal station or distribution system or transmission system switchyard.

Under this Act, it is an offence to be on land or premises or in an enclosure containing critical electricity infrastructure without authority ( EIA, s79). The maximum penalty is one year's imprisonment.

The Act also contains offences which apply if a person interferes with equipment that forms part of critical electricity infrastructure (including certain vehicles) and they are reckless as to whether this will disrupt the generation, transmission or distribution of electricity. The maximum penalty for this is imprisonment for up to two years ( EIA s80(1)).

Legal support

Due to the often isolated and high-risk nature of many environmental forest based blockades and actions, well organised activist safety and activist legal support strategies need to be in place.

Useful legal guides for protesters include:

If you need to contact a lawyer:

Environment Defenders Office

We are an office of lawyers that works on matters of environmental public interest. We can provide you with free legal information and advice over the phone, and provide legal representation in some cases. If we can’t help you straight away, we might be able to arrange a referral to someone who can.

Phone: 8341 3103


Website: www.edovic.org.au

Lawyers for Forests

Lawyers for Forests is an association of legal professionals focused on protecting and conserving Victoria’s native forests. Lawyers for Forests provides information to conservationists and forest activists on rights and responsibilities when undertaking protests, and can provide referrals to free legal advice and representation to people who have been charged with protest-related offences.


Phone: 0423 254 514


Email: lff@lawyersforforests.asn.au

Website: http://lawyersforforests.asn.au

Victoria Legal Aid

Victoria Legal Aid is a state-wide organization that can provide legal assistance to socially and economically disadvantaged people in Victoria.


Phone: 9269 0120 or 1800 677 402


Website: www.legalaid.vic.gov.au

Community Legal Centres

Community Legal Centres are independent community organisations that provide legal advice to the public, particularly for those facing economic and social disadvantage. Victoria has 49 Community Legal Centres based all around the State. To find your nearest Community Legal Centre, contact the Federation of Legal Centres.


Phone: 9652 1500


Website: www.communitylaw.org.au

Social Media

“If you’re not careful, the newspapers will have you hating the oppressed and loving the people doing the oppressing”

(Malcolm X)

Advances in communications technology has rapidly changed the media. Online social networking has not only provided ease of access to an unbelievably wide breadth of information, but is also more and more frequently being used as a tool to organise and promote real life events and campaigns. With mainstream, conventional media being owned and directed by private corporations, the use of online communications and media is providing opportunities for social activism that did not previously exist.

The Media in Australia

Mainstream media in Australia, including newspapers and news programs on both television and radio, are considerably concentrated in the hands of a few multinational companies. These companies have vested interests in making profits and therefore shape their stories based on what they perceive will attract most viewer attention and advertiser investment. A Bond University report title Sources of News and Current Affairs states that the pressure of ratings and circulation is the dominant influence on the ‘newsworthiness’ of a story, indicating the “commercial imperative modern news production”. (i) These commercial interests mean that the producers of news will present stories that market research has told them people want to see.

The more dominant news sources and newspapers in particular, such as The Australian, have an agenda-setting influence on the rest of the mass media. That is, the stories they choose to go with usually set the tone for the other news sources.

New Forms of Media: Social Networking and Activism

The internet and various social networking forums have provided unprecedented opportunities to access and disseminate information. From the Arab Spring throughout the Middle East and North Africa to the global Occupy movement – organisations and individuals have used the virtues of the internet to not only galvanise support and action for a cause but also provide information and imagery in avenues outside those controlled by the corporate mass media. According to some commentators, new media has seen that “information is liberating in the traditional political sense of the term: the spread of information has had a direct impact on the degree of accountability and transparency that governments must deliver if they are to survive.” (ii)

Major petition sites have also been established. Avaaz.org, Change.org and Get Up are examples of such sites. Get Up is Australian based and predominantly notifies members of campaigns that are relevant to Australian issues – such as marriage equality, opposition to the mandatory detention of asylum seekers, and numerous others regarding the environment. Avaaz.org is an international group, with over 13 million members world-wide. The organisation sends regular email notifications to members with information about particular campaigns and has a forum in which people sign and can make comments. The group recently collected hundreds of thousands of signatures to present to the Arab League and the United Nations Security Council with regards torture in Syria, to the CEO of Hilton Hotels for attention and action with regards sex slavery and child prostitution in  their hotels, and lobbied Indian governments to establish anti-corruption laws.

Alternative news sources are also very common, where self-published works, journals and editorials, and blogs are uploaded and disseminated online, bypassing the channels of the mass media. For example, well known Indymedia has sites all over the world – claiming to be independent media reports from “the progressive grass roots”. (iii) It provides editorials, news, and commentaries from nine different regions around the world.

Defamation, Restrictions and Monitoring

Along with the opportunities provided by the internet and new media in disseminating information, online activism can also facilitate increased monitoring by government and intelligence. Intelligence sources around the world use monitoring companies to examine the information produced by activist groups and organisations online.

One particular issue is that of Online Defamation. Defamation laws give people the right to contest and take legal action against those they feel have wrongfully described or attacked them. These laws are allegedly aimed to give people the opportunity to protect their reputation if misinformation or misrepresenting information is published to a third party. This includes publishing on social networking sites such as Facebook, Twitter and other networking sites. Many people may not realise that the things they blog, tweet or post on Facebook, are also covered by these laws and can be subject to lawsuits or conviction. For example, a man in Australia recently filed a lawsuit after a television personality wrongly accused him of being the author of a hate blog. The man filed a lawsuit against the person responsible for the tweets and is now filing a lawsuit against Twitter as the publishers. (iv) This is the first time under Australian law that Twitter has been sued for defamation. In 2009 an 18 year old man in South Australia was convicted of criminal defamation after he posted false and defamatory information on Facebook about a local police officer. He was found guilty placed and on a two-year good-behaviour bond. (v)

Alongside issues relating to defamation is the issue of surveillance. Commonwealth and State laws allow police and intelligence groups to monitor people online for a broad range of reasons. Very recently, it was found that the Australian Federal Police were closely monitoring the online discussions of a group of campaigners against coal-fired power stations and coal export facilities. (vi) Furthermore, it was uncovered that the federal police were using Facebook, Twitter and other online sites to monitor a range of environmental and anti-mining groups, as an ongoing method of surveillance.

For more information on digital security see Links and resources section.

Also see Surveillance of activists and Dealing with surveillance sections.

(i) Mark Pearson, Jeffrey E. Brand, Deborah Archbold and Halim Rane, Sources of News and Current Affairs, Bond University, Sydney, p. 89.

(ii) Shashi Tharoor, “Broadband Liberation”, Project Syndicate, 2010 See http://www.project-syndicate.org/commentary/broadband-liberation

(iii) www.indymedia.org.au

(iv) “Twitter Sued in Australia for Defamation for First Time Over Marieke Hardy Comments”, news.com.au, 17 February 2012, See http://www.news.com.au/technology/twitter-sued-in-australia-for-defamation-for-the-first-time-over-mariek-hardy-comments/story-e6frfro0-1226273796294.

(v) Nigel Hunt, “Teenager Sued Over Facebook Defamation”, The Sunday Times, 21 November 2009, http://www.perthnow.com.au/news/teenager-sued-over-facebook-defamation/story-e6frg12c-1225801635738.

(vi) Philip Dorling, “Spies Eye Green Protesters”, The Age, 7 January 2012, See http://www.theage.com.au/national/spies-eye-green-protesters-20120106-1poow.html

International solidarity activists

Activists in Australia provide much needed support and solidarity to social change, pro-democracy and justice movements around the world.

Solidarity movements and organisations in Australia have played valuable roles in the creation of independence of East Timor, the end of the apartheid regime in South Africa, and the end of the Marcos regime in the Philippines or French nuclear testing in the Pacific.

Solidarity movements may be focusing on regions such as the Asia or the Pacific, particular countries or particular conflicts such as Israel-Palestine. Many solidarity groups focus on human rights, democracy or national independence and are in direct or indirect contact with a wide range of international organisations and networks.

One of the most important legal changes to potentially affect solidarity activists is the controversial powers of the Australian Government to ban or ‘proscribe' overseas organisations under the counter-terrorism laws.

Australia's new ‘counter-terrorism' laws give the government extensive power to ban organisations on the grounds that they are terrorist organisations. Once an organisation has been banned by the government, many sorts of dealings with the organisation or its assets become criminal offences.

The number of organisations which are liable to be banned is very great, and includes a wide range of activist, national liberation and solidarity organisations.

Also see the Impact of counter-terrorism laws section.

Particular actions

Activism can take place in many forms. Public awareness can be raised in a number of ways including information stalls, postering and graffiti.

Organising marches, rallies and public meetings are all effective forms of community action. However other activities as far ranging as street theatre to boycotts and blockades have also been used by activists.

This section offers information about  all of the above and more. However always be aware of the legal consequences of your actions and of any possible charges which could result.

Information stalls

Info stalls are a common way of educating the public about the campaign, raising funds and your profile and recruiting new people into the campaign. Info stalls might include literature, leaflets, and petitions to sign, displays and photos and campaign products to sell.

You don't necessarily need specific authority to hold a stall in a public space, such as a street corner; however, failing to have permission from the local authority such as the local council will make it easier for the police to move you on or threaten arrest if they so choose.

While the coercive powers of and council officers are very limited (in most cases they will have to call the police to enforce their directions), they may have the power to issue fines or infringement notices, should your stall be in breach of local regulations. You should find out from your local council what local laws apply in the area where you want to establish a stall and, if necessary, decide whether to apply for a permit.

If the stall is to be held on privately owned property, such as a shopping mall, then permission or a permit from the owner is normally required. The trend of public space becoming ‘privatised' is of concern here.

In some cases, public spaces such as Melbourne's Federation Square, or shopping centre plazas, are actually privately owned and administered. Failure to obtain the permission of private owners, and failure to leave when requested to do so, may result in your being charged.

Also see Common Charges and offences used against activists, and Marches and rallies regarding the process for seeking permissions.

Postering & graffiti

Posters, stickers and well-placed graffiti or stencils are common forms of political expression and activist methods of community media, education or promotion.

Plan your popular advertising with this in mind: if caught, police may charge you with damage to property offences. Police may request that you pull down posters, instead of charging you, and private security patrols around private buildings who spot posterers at work may give chase and make arrests.

Also see Private security guards.

When distributing information, consider the consequences of where you are putting the material. Note that the person who organises the printing, as well as the person who letterboxes or posters, can be found guilty of an offence under the Environment Protection Act 1970 (Vic).

It is an offence to post placards, bills, stickers or other documents, or to write, paint on or deface virtually any structure, including such things as trees and gates, without the consent of the owner (s.45O EPA Act and s.10 Summary Offences Act 1966 (Vic)). It is up to you to prove that you had the consent of the owner, occupier or manager of the building. The maximum penalty under the Summary Offences Act is $1500 or 3 months imprisonment, although the actual penalty will depend on the circumstances.. Under the EPA Act the maximum penalty is $1000. In addition to a fine you can be ordered to pay clean-up costs.

It is an offence to deposit advertising material anywhere but a mailbox (s.45K EPA Act ), including on a vehicle (s.45N EPA Act ). It is not an offence to deposit material that has a political purpose into mailboxes labelled with no junk mail or no advertising material (s.45M).

Additional restrictions apply to the publication of election materials. For federal elections, the Commonwealth Electoral Act 1918 (s.328) makes it an offence to print, publish or distribute an electoral advertisement, handbill, pamphlet, poster or notice unless the name and address of the person who authorised the printed material and the name and place of business of the printer appear. The maximum penalty for an individual is $1000 and for an organisation $5000. This section applies broadly, even where materials are not produced by political parties. Similar rules apply to state and local government elections.

While the usual penalty for graffiti is a fine, plus compensation for the cost of cleaning or repainting the wall, depending on the value of the damage caused, you could be charged with criminal damage under section 197 of the Crimes Act 1958 (Vic) or wilful damage under section 9(1)(c) of the Summary Offences Act 1966 (Vic). However, it can sometimes be difficult to predict what the penalty might be because every case is different.

For example, the people charged with painting the words NO WAR on the Sydney Opera House received a prison sentence and a huge clean up bill of over $150,000. Seek legal advice if you are unsure what sort of penalty you might face.

Also see Property damage for more information on these offences.

Liabilities of organisations

While the person or organisation that organises the printing, as well as the person who letterboxes or posters, can be found guilty of an offence under the EPA, care should also be taken with the content of a poster.

When deciding on the content of the information, some care needs to be taken. Under the Uniform Defamation Law, corporations with 10 or more employees cannot sue. However, individuals or groups of individuals employed by or associated with that corporation - such as company directors, CEOs or managers - can still sue if they are identified by the publication. Not-for-profit organisations can still sue for defamation, no matter how many employees or members they have.

For information on fundraising see Issues for activist groups section.

Also see Legal threats to silencing activists

Marches & rallies

Marches and rallies are an extremely common and useful form of political protest. They are used to mobilise, educate, show support and to clearly demonstrate community feeling about an issue.

The number and frequency of marches and rallies held in Australia is in line with community expectations of the right to freedom of political expression and assembly. However, in the process of obtaining permission to hold a march or a rally in a particular place, these rights need to be continually asserted.

For possible offences and charges relating to marches and rallies see Unlawful assembly and Riot and Obstruction sections.

Obtaining 'permissions'

The choice of whether to obtain permission to hold a march or rally is often a difficult one. The decision to seek permission needs to be weighed against the basic right of freedom of political expression and assembly.

Most marches and rallies in Australia are held without any prior permission or authorisation from authorities. They are simply political gatherings of people held on the streets or in public space.

If the march or rally is part of a long term campaign, or expected to be very large, it may be necessary and worthwhile to maintain good relationships with local councils, management and police. In these cases it may be well worth obtaining the appropriate permits and permissions from the relevant authority prior to the event. There are many things that may be difficult to do without specific permission such as erecting fixed structures, having stalls, tables, marquees, displays, vehicle access and access to power and public address systems.

Obtaining the appropriate permissions can take considerable time, so plan well in advance of the event.

Most of the conditions that you will need to meet to obtain permission to use a space are logical and appropriate conditions for well-planned public events such as first aid, toilets and crowd access etc. Other conditions, such as public liability insurance, may be more difficult.

To ask about obtaining permission contact your local council or your local police station.

Initial organisation for a march or rally

  • Which organisation is calling the march or rally?
  • Which organisation will be responsible in the case of any legal repercussions?
  • Whose name will be on the form to seek permission to use a space?

It is important to designate clear responsibility for particular roles such as, marshalling, first aid, event management, hazard and risk assessment.

Initial planning decisions should include start and end points of the march, events along the way, and planning for: first aid, toilets, stalls and speakers, banners, marshals and acoustics and visibility of the area whether people will be able to see or hear speakers etc safety and access of vehicles, disability access and crowd dispersal after the event.

Other things to plan and organise may be:

  • Provision of first aid and allowing ambulance access
  • Use of stages and raised platforms health and safety issues
  • Use of electrical equipment
  • Performers
  • Using candles
  • Stunts
  • Street theatre
  • Disrupting traffic

Whose jurisdiction?

The jurisdiction of a particular area, park or piece of land can sometimes be confusing; even police, security and local council can be unclear at times.

Finding out the jurisdiction of the land or area where you plan to hold the march or rally is an important first step. You can consult the Victorian government website www.land.vic.gov.au for title searches or zoning maps, or you can visit the Planning Information Centre, Ground Floor, 8 Nicholson Street, East Melbourne (Ph: 9637 8610). Otherwise, contact your local council for zoning information.

Essentially there are geographical jurisdictions that determine the authority overseeing that land or building.

Most areas in Victoria have four possible authorities:

  1. Private property and landowners: shopping malls and precincts, corporate buildings and foyers, private farms and even places such as Federation Square;
  2. Land, parks and buildings controlled by councils and their by-laws: footpaths, malls municipal/local government facilities such as parks, reserves etc. The powers of council officials are very limited. In most cases they will have to call the police to enforce their directions;
  3. State government: most streets and roads, state government buildings such as Parliament House Victoria Police have jurisdiction;
  4. Commonwealth areas: Defence facilities, detention centres, premises under Defence (Special Undertakings Act) 1952, national parks, embassies and consulates The Australian Federal Police (AFP), or Australian Protective Services (APS) have jurisdiction over these areas.

Using Federation Square

Federation Square Management Pty Ltd (FSM) is a private company wholly-owned by the State Government of Victoria and managing the operation of Federation Square on a commercial basis. FSM has a process and forms for obtaining permission to hire or use parts of the square on its website: www.federationsquare.com.au.

FSM advises demonstration organisers that they can choose one of the following options for demonstration at Federation Square (after checking availability of the Square with Federation Square Management):

Option 1

Make use of the space for the gathering of people. No charges will apply, public liability insurance is not requested and no venue agreement need be instigated. The protest organisers, however, will not be able to make use of Federation Square's event infrastructure (i.e. power, screen access) and may not install any temporary infrastructure of their own.

Option 2

Make an application to book the Square (as per application form on the website). Pay a venue hire fee appropriate to the use of the space requested and meet all the regular event management requirements to run an event in the Square. These include: signing a venue hire agreement; providing proof of public liability insurance; and providing appropriate event documentation. Use of power, existing sound systems and the large outdoor screen may also be negotiated under this arrangement.

Public liability insurance

Many organisations in Victoria don't deal with the issue of public liability unless it is particularly mandated as a condition of permission to use a facility or space. Authorities can use not having public liability insurance as a justification for not giving permission to hold an event. It does not necessarily mean that you cannot hold the event.

For information see Civil liability protection section

Police liaison

For a large march or rally contact the police at least the week before.

The police may contact you if promotion has already occurred.

For a guide to conducting police liaison see Liaise with authorities section.

In metropolitan Melbourne, see City of Melbourne Special Events.

In regional centres or towns contact your local police station.

During police liaison outline estimated size, proposed route and any planned events on route such as sit downs, marshalling and crowd control etc.

What the police will tolerate is often related to the size of the march or rally.

Police will also liaise with other authorities such as the public transport authorities and local councils. Organisers can also do this.

Informing unions

It is well worth contacting unions whose members are likely to be directly affected by the march or rally. To contact a particular union go to the Victorian Trades Hall Council.

Public meetings & vigils

Public meetings

For the holding of outdoor public meetings see Marches and rallies.

Public meetings held in privately owned or local council venues are commonly subject to public liability or a range of health and safety conditions. If the venue owner or council is unsympathetic to the activist organisation these conditions can be used to limit or prevent use of the building.

Local councils tend to have a range of conditions for hire of council owned halls and buildings including adequate public liability insurance.

Vigils

Many of the considerations noted in Marches and rallies may need to taken into account.

Due to the ongoing nature of vigils pressure from the police, property owners and other stakeholders may become more intense over time. For a case study of a long-running vigil see the case study - Women chained at the US Consulate.

Street theatre & parties

Street Theatre

Political street theatre is limited only by the imagination of activists and political artists. It is a term used to describe a huge variety of theatre and performance in public space that dramatises political messages or is part of a protest campaign. Huge puppets, die-ins', physical theatre, dance and music have long been part of political movements.

Legal issues surrounding political street theatre are akin to others in this section. The choice to obtain specific permission from the relevant authority must be weighed against the basic right of freedom of political expression and assembly.

In some cases busking permits may be obtainable from the local council; these will also authorise the collection of donations from the public watching.

Safety issues such as the use of fire, the use of structures and other equipment may complicate obtaining permissions. See Obstruction if there is the possibility that the street theatre may obstruct' a public thoroughfare.

Also see Offensive language and behaviour if there is the possibility that the theatre may 'offend' somebody, if the theatre contains swearing or nakedness.

As always, seek legal advice if you are unsure.

Street parties

Reclaim The Streets is a series of autonomous collectives who take over the streets and transform them from car traffic zones into free street festivals.

Several Reclaim the Streets actions have occurred in various parts of metropolitan Melbourne since 1997. There have been very few arrests at these events.

Possible offences include obstructing traffic and other traffic offences; other charges may include unlawful assembly, besetting, riot or affray.

Also see the case studies of Melbourne and Adelaide Reclaim The Streets

Naked actions

Naked actions have a particular symbolic impact and can often be used to highlight a cover-up or to demonstrate that activists have 'nothing to hide'.

During the campaign to stop the abuse of poorly paid clothing outworkers, Fairwear activists in Victoria went into shops and 'stripped off' to their underwear, claiming that they would rather wear nothing than wear clothes made with exploited labour.

Actions that involve nakedness should pay attention to offences discussed under the section Offensive language and behaviour.

Boycotts & strikes

Boycotts are a very ancient and common method of social, political or economic non-cooperation. There are many different types of boycotts including social boycotts, rent withholding, international consumer's boycotts, producer's boycotts, worker's boycotts and trader's boycotts.

A consumer boycott involves the mass refusal to purchase or use a particular product or service for a variety of reasons. Defamation may be an issue to consider when considering a boycott.

Also see Legal threats to silencing activists

Trade Practices Act

The secondary boycott provisions of the Trade Practices Act 1974 (Cth) (s.45D) make participation in a 'secondary boycott' unlawful. A secondary boycott occurs when two or more people act together to hinder or prevent the supply of goods and services from one party to another party.

Secondary boycotts often occur in an industrial relations context. However, environmental activists should also be aware of s.45D, because the definition of secondary boycott is very broad, and can include routine actions taken by individuals and groups to protect the environment.

If the main purpose of your action is related to environmental protection or consumer protection, you will not be liable under s.45D. This is so whether your group is an incorporated association or not. Unfortunately, however, this exemption provides no protection to actions aimed at protecting other important social values, such as human rights or Aboriginal heritage.

From: Fact sheet: Defending Yourself C) 2004 Environmental Defender's Office (Ltd) NSW

For information on strikes also see Trade Unionists section.

Whistle blowing

Whistleblowers are those who sound the alert on scandal, danger, malpractice, or corruption.

A strict definition is:

Whistleblowing is an act of dissent (loosely speaking). It is an open disclosure about significant wrongdoing made by a concerned citizen totally or predominantly motivated by notions of public interest, who has perceived the wrongdoing in a particular role and initiates the disclosure of her or his own free will, to a person or agency capable of investigating the complaint and facilitating the correction of wrongdoing.

Whistleblowers are often subject to suppression, but not always. Some individuals are subject to suppression even though they are not whistleblowers even in the loose sense. For example, individuals quietly adhering to unorthodox ideas may be subject to suppression.

Several Australian governments have introduced or are considering legislation to protect whistleblowers from reprisals. This sounds like an excellent idea, but it has severe limitations. The legislation can only cover certain types of individuals, typically public servants, and particular types of dissent. But many types of problems are hard to legislate against, such as subtle harassment campaigns and the blocking of appointments to higher positions.

Victorian Whistleblowers Protection Act 2001

The main objective of the Whistleblowers Protection Act 2001 (Vic) (the Act) is to encourage and facilitate the making of disclosures of improper conduct or detrimental action by public officers and public bodies in Victoria. The Act provides some protection to whistleblowers who make disclosures in accordance with the Act, and establishes a system for the matters disclosed to be investigated and for rectifying action to be taken.

For an explanatory guide to the working of the Act go to the Victorian Ombudsman site.

Support & information

One of the best websites for support and information to start with is Brian Martin's Suppression of Dissent site.

For commentary on whistleblower legislation follow the links below:

William De Maria in his 2002 paper Common law - common mistakes analyses strengths and weaknesses of whistleblower laws from five countries.

In another 2002 paper, The Victorian Whistleblower Protection Act: patting the paws of corruption?, he analyses the Victorian government's law.

Stuart Dawson discusses whistleblower legislation and related issues in his paper Whistleblowing: a broad definition and some issues for Australia, published in 2000.

The Whistleblowers Handbook: How to be an effective resister (PDF) by Brian Martin.

This definitive manual for people who speak out in the public interest tells you how to assess options, prepare for action, use official channels, build support and survive the experience. And it is filled with sample cases that show what can happen when you make the wrong assumptions or take the wrong actions.

Whistleblowers Australia Inc. is an association for those who have exposed corruption or any form of malpractice, especially if they were then hindered or abused, and for those who are thinking of exposing it, or who wish to support those who are doing so.

Blockades

Nonviolent blockades are a very common and ancient method for people to intervene directly in an injustice occurring. Blockades have both symbolic and very practical aspects. They take many forms, from a line of people linking arms, sitting down, or standing up, to the use of physical barriers or devices such as tripods and chains.

In history, people have stood in front of tanks, bulldozers, cars and people in order to intervene directly. Blockades can occur around buildings or across roads. The legal aspects of a blockade are determined by its context, the place blockaded and the length of time the blockade lasts. Police may choose to tolerate a blockade, for instance, if it is only for a short period of time.

A very common charge for blockades of buildings in Victoria is besetting premises under section 52(1A) of the Summary Offences Act1966 (Vic).

If the blockade occurs across a road or footpath, see Obstruction.

The section on Trespass may also be applicable depending on where the blockade takes place.

Forest blockades

Blockades and other actions in the forests of Victoria have taken many forms, from physical human blockades to the use of 'tall tripods' (which were pioneered in Australia and are now used around the world) and a huge range of 'lock-on' devices which aim to slow the logging or clearing of forest or bushland areas.

There are a range of particular legal issues that are directly relevant for forest activists.

These include:

  • the charge of under section 95A of the Conservation, Forests and Lands Act1987 (Vic) (CFLA)
  • the specific powers of Department of Sustainability and Environment (DSE) Officers who can be designated as authorised officers under the CFLA. DSE officers also have limited powers of arrest under the Forests Act 1958 (Vic).
  • the often isolated and high-risk nature of many forest based blockades and actions high levels of well organised activist safety and need to be in place.

The best source of legal information and legal support for forest activists in Victoria is the organisation Lawyers For Forests, an association of legal professionals working to promote the conservation and better management of Australia's remaining native forests.

Lawyers For Forests
PO Box 550
Collins Street West
Melbourne 8007
e-mail:lff@lawyersforforests.asn.au
Web: www.lawyersforforests.asn.au

Road blockading

Critical Mass

Critical Mass is a global event on the last Friday of each month that involves huge numbers of cyclists riding home together in major cities around the world. More of a 'happening' than a standard political protest, Critical Mass claims to create a celebratory, festival of sustainable transport and act out a vision of car-free urban transport systems. It also seeks to redefine the road space, challenging the definition of legitimate use of public space.

Critical Mass rides take place in most capital cities in Australia and often involve many hundreds of cyclists who highlight cycling as sustainable transport, educate car drivers about cyclist safety and create a political space for urban cyclists.

Critical Mass involves riding in a mass along often pre-determined routes, leafleting cars, 'corking' (temporarily blockading) motorised vehicles at intersections for safety and riding through red lights in order for the mass to stay together. The edict of 'safety in numbers' is maintained by keeping the mass together and creating a car-free zone as the ride moves along.

In Melbourne, Critical Mass has enjoyed a high degree of tolerance from the Victoria Police over the past nine years and now has a unit of bicycle police accompanying the ride each month. Helmet and other bicycle riding offences are enforced on occasion. The careful creation of a party-like atmosphere on the Mass has resulted in very few altercations with motorists.

Despite the Mass's claim that 'We don't block traffic, we are traffic'; offences such as disobeying a traffic light are possible. However, charges such as this have not been applied over nine years.

See Critical Mass Melbourne for more information.

Occupations

Sit-ins

Sit-ins or occupations of property or premises may constitute criminal offences such as trespass, obstruction and besetting, and give rise to civil actions such as trespass.

Sit-ins or occupations will often mean facing private security guards before police arrive.

See Private security guards

Squatting

Squatting is the act of making use of empty, disused and abandoned property. It allows people who cannot otherwise afford to rent or purchase a house or building to put an empty one to productive use.

Unlike in some other countries, there is no legal right to squat in empty, disused and abandoned property.

For information about the law and squatting in Melbourne go to the No Frills Melbourne Squatters Guide (much of the information will be useful for people in other parts of Australia as well).

Other resources include: The SUWA show on Community Radio 3CR

The website of the United Nations Commissioner for Human Rights provides useful information on forced evictions and human rights.

Social centres

Social centres are an international activist initiative that aims to make use of self-managed space through autonomous decision-making. Social centres are the result of occupation movements that reappropriate property for activist and working class community space.

These kinds of squats are part of an international matrix of squatting movements with histories of supporting worker, peasant, student and community uprisings critical of private property systems and government power.

Again there is no legal right to occupy premises which are being used as a social centre.

For information about social centres see SCAN Social Centre Stories

Our rights to protest

Many Australian activists and social change organisations support the international struggle for human rights and work to ensure that the Australian government abides by the principles embedded in the various conventions, covenants and declarations adopted by the international community.

These include the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights ICCPR (1966).

Since 1991, Australian citizens have been able to complain to the UN Human Rights Committee if their human rights are infringed.

Why talk about rights?

It is commonly believed that we have rights and responsibilities, not because a state or some law bestows them, but because they are inherent in our human and social being. The international human rights framework has been developed to protect ordinary people from the abuses of the state.

Although by no means adequate to stop or prevent human rights abuses by the state, the range of human rights mechanisms and processes are often utilised by activists in politically repressive countries and situations around the world.

Awareness of our rights as activists is vital for two reasons:

  • We may need to assert them when they are denied us;
  • We can utilise them as benchmarks for how we expect to be treated by the government or how we want the government to behave.

Asserting our rights

As progressive activists we are engaged in a process of participatory democracy that does not require the permission of any state, police force or court system.

We do not need to rely upon legal rights or international human rights in order to protest or resist injustice. But we can use them.

Activists have asserted and quoted international human rights to police at protests and to magistrates in the courtroom. Sometimes acting under the mandate of the ‘international community' can give our action greater credibility. Every time we refuse to answer police questions we are asserting our common law right to silence.

Asserting basic human, civil and political rights can also help targeted or more vulnerable sections of the activist movement. The rights of marginalised or minority activists are more often denied or abused. Asserting our rights as activists can sometimes mean protecting the rights of others who are more vulnerable.

International human rights

As activists, it is worth learning about these basic international rights documents. The International Covenant on Civil and Political Rights (ICCPR) is particularly useful and relevant to activists in Australia.

Police in Australia commonly use arbitrary arrests and detention, special bail conditions to deny our right to peaceful assembly and other actions which could arguably contravene sections of the ICCPR. Activists who are familiar with this document and able to refer to it when confronting police abuse of power can use it to deter individual police officers, confront commanding officers and highlight these abuses in the media.

Human Rights Observer Teams and Legal Support Teams can use the ICCPR as part of their mandate, in activist legal briefings and on the ground at protests, highlighting abuses as they occur. The effect of using international human rights as deterrence to state violence and abuse will always be hard to determine, but combined with:

  • Legal or Human Rights Observer Teams,
  • effective legal and civil action,
  • complaints against the police,
  • activist legal support, and
  • the courage of individual activists,

can form a part of the ‘web of constraint' that we can form to deter police violence and abuse.

Civil & political rights

Our rights to protest, demonstrate and take part in political activities are recognised by the Universal Declaration of Human Rights (1948) as well as the International Covenant on Civil and Political Rights (ICCPR )and other covenants.

In Australia, these international human rights are seldom enforceable and any mechanisms that exist are slow and difficult. Although we have these rights and we can assert them as citizens and activists, we shouldn't expect them to be respected without question.

Australian law is based on the British common law system. Unlike most similar liberal democracies, Australia has no Bill of Rights to protect human rights in a single document. Therefore most ‘rights' in this system are in reality nothing more than those freedoms that are not prohibited. However some important rights may be found in the concept of the rule of law, the Australian Constitution, common law and legislation - Acts passed by the Commonwealth Parliament or State or Territory Parliaments.

According to the ‘Rule of Law', each person has equal rights under the law. It is meant to be a fair and impartial system. Australia is known as a ‘rule of law' state.

This means that:

  • The Government must not act arbitrarily. It must have proper reasons for its actions and must follow proper procedures.
  • The government is answerable to the people and the courts. Judges and the courts are independent of government, and they make their decisions impartially.
  • Every citizen is subject to the law. This makes arbitrary imprisonment illegal and means that all people, including senior politicians, police and military, have to obey the same laws.

Support for the 'rule of law' can at times reinforce important values (such as equality before the law) in Australia. However, legal rights (particularly in a system such as Australias, with few formal rights guarantees) often depart from the international consensus that is human rights, and so cannot serve as a proper basis for defining the tactics of 'rights activists' (Anderson, 2002). For example, following the success of the Aboriginal Tent Embassy in 1972, special laws were passed to ban unauthorised tent settlements in the Australian Capital Territory. Aboriginal activists used this as an example to ridicule the liberal argument 'we don't mind if you protest, so long as you stay within the law' (see Cavadini 1972).

Your Charter rights

Victoria’s Charter of Human Rights and Responsibilities 2006codifies in legislation various rights. Part 2 of the Charterguarantees certain rights to all Victorians (section 8- 27).

Most relevant of these protected rights to activism are:

  • Right to life
  • Protection from torture and cruel, inhuman or degrading treatment
  • Freedom of movement
  • Privacy and reputation
  • Freedom of thought, conscience, religion and belief
  • Freedom of expression
  • Peaceful assembly and freedom of association
  • Taking part in public life
  • Property rights
  • Right to liberty and security of person
  • Humane treatment when deprived of liberty

Your Charterrights may be invoked and come into play in two situations. First, if the party you believe is infringing your rights is a public authority. Police are a public authority for the purposes of the Charter. Under the Charter, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. Secondly, in the interpretation of legislation, where possible, legislation should be interpreted consistently with human rights. Some police powers are derived from the common law. As a piece of legislation, the Charterwill override inconsistent common law.

The Charterrecognises and anticipates the limitation of these rights under s 7(2). Such limitation is only allowable where demonstrably justifiable in a free and democratic society and must be strictly proportionate to the end sought to be achieved by the limitation.

Australia's Constitution

The framers of Australia's Constitution, working in the 1890s, debated the adoption of a Bill of Rights along the lines of that in the United States. The proposal was defeated and our Constitution contains few protections for what we now call human rights.

Nevertheless, there are five explicit individual rights in the Constitution. These are:

  1. the right to vote (section 41),
  2. protection against acquisition of property on unjust terms (section 51(xxxi)),
  3. the right to a trial by jury (section 80),
  4. freedom of religion (section 116), and
  5. prohibition of discrimination on the basis of State of residency (section 117).

In recent years the High Court has found that additional rights for individuals may be necessarily implied by the language and structure of the Constitution. In 1992 the Court decided that Australia's form of parliamentary democracy (dictated by the Constitution) necessarily requires a degree of freedom for individuals to discuss and debate political issues. (Nationwide News Pty Ltd v Wills, 1992, 177 CLR 1; Australian Capital Television v The Commonwealth, 1992, CLR 1.)

Common law rights

Australia's common law was inherited from the United Kingdom. And that in turn developed from the Magna Carta of 1215 - probably the first human rights treaty in the western world - between King John and his Barons. So human rights regulating the freedom of the citizen and limiting the power of the King or government are fundamental to our law.

Common law is often called 'judge-made' law. This distinguishes it from laws made in Parliament. It is certainly true that many protections we can identify as human rights are protected by Australian judges applying common law principles.

Examples include the obligation of a court to refuse to allow an unfair trial to go ahead (even though the common law does not recognise a right to free legal representation in a criminal trial) [i] and the interpretation of permissible limits on freedom of movement within Australia. [ii]

Common law can be expanded or reduced by legislation passed by Parliament. This frequently happens. An example of reduction is the common law principle that the police have no power to detain someone for questioning. [iii] South Australia's Summary Offences Act 1953 grants the police this power where a serious offence is suspected. [iv] An example of expansion is the recognition in legislation of the equality of men and women. Judges developing common law principles refused to make this recognition, instead treating their sex as a disability for women, disentitling them from pursuing many professions.

See Common law defences for further information.

[i] Dietrich v R ( 1992) 177 CLR 292

[ii] The test for the lawfulness of restrictions on freedom of interstate commerce (as guaranteed by the Constitution) was stated in various ways in Cunliffe v The Commonwealth (1994) 182 CLR 272

[iii] R v Lemsatef [1977] 2 All ER 835, per Lawton LJ at page 839

[iv] Section 78 inserted in 1985. From Human Rights and Equal Opportunity Commission

International law

Under international law our rights are better articulated but more difficult to assert in Australia. The rights of freedom of assembly, speech, expression and association are embodied in both the Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (ICCPR) (1966). These are not enforceable under Australian law, but may be usefully cited and relied on in broader argument in court. As Australia is a signatory to the ICCPR, Australian governments are required to comply with its Articles and report to the UN on how they have met its obligations.

In Australia, any individual is also able to lodge a complaint under the International Covenant of Civil and Political Rights directly (albeit through a long process) with the UN Human Rights Committee once they have exhausted domestic remedies in Australia.

A right to freedom of assembly and association

A right to freedom of peaceful assembly is part of international law under the UN Declaration of Human Rights , Article 19 and 20 which states that:

“Everyone has the right to freedom of peaceful assembly and association.”

No one may be compelled to belong to an association.

The International Covenant on Civil and Political Rights includes Article 21which states:

“The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order.”

Article 22of the ICCPR states that:

“Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.”

The right to participatory democracy

ICCPR Article 25 acknowledges the right to engage in participatory democracy

“without unreasonable restrictions”.

The right to freedom of opinion and expression Article 19 Universal Declaration of Human Rights states that:

”Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

Rights around arrest and detention include:

ICCPR Article 7 states that:

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

ICCPR Article 9 also states that:

  1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
  2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
  3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
  4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
  5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

The duty to protest

Another useful international precedent is the 1946 Nuremberg trials which, in rejecting the Nazi war criminals' defence of ‘only following state orders', also recognised the necessity for individuals to act according to the dictates of their own conscience, and to retain the capacity to defy the state where serious conflict occurs between conscience and legal systems. These activists who engage in civil disobedience and seek to use the defence assert, through the defence, that domestic law should be broken by an individual to prevent the state or its agent from violating international law. The Nuremberg Defence is sometimes raised as a defence to prosecutions such as trespass. Although the defence has not been recognised in Australian law it has been used, sometimes successfully, in the USA. The Nuremberg principles outline what to many of us would be common sense. Some actions are plainly wrong, and every one of us has a responsibility to prevent genocide. The principles specify that to act on the orders of your government does not relieve you of this responsibility in the eyes of international law. It provides a legal adjunct to Martin Luther King's remark, "One has moral responsibility to disobey unjust laws." (Letter from Birmingham Jail) It is for these reasons that the Nuremberg Principles are key to Citizen's War Crimes Inspections around the world and many anti-nuclear actions such as those held at Pine Gap in the Northern Territory in Australia since the 1980s. In various anti-nuclear actions around the world, activists have maintained, when stopped by police, that they are acting on a higher authority than theirs – not just their consciences, but international law itself.

The Nuremberg tribunal gave a strong impulse to the human rights movement, and established important, innovative principles that form the core of international criminal law today. In particular, it established the principle of individual responsibility for crimes, with no immunity from prosecution or punishment for Heads of State or Government officials, and allowing of no pleas of superior orders in mitigation. It also established that a government could commit crimes against humanity against its own nationals as well as against aliens, and that these crimes could be committed by civilians as well as by combatants, in 'peace' time as well as war.

Also see Nuremberg Defence

Further reading on international law:

  • The (Il)legality of Threat or Use of Nuclear Weapons: A Guide to the Historic Opinion of the International Court of Justice, by John Burroughs. Lit 1997, ISBN 3-8258-3516-2
  • The Nuremberg Defence in Courts, by Francis A. Boyle, edited by Merja Pentikainen. IPB 1984, ISBN 951-9193-40-5
  • The Modern Nuremberg Defense: International law transferred to the domestic arena Perrin Reid

Common charges & offences

Summary offences

At the risk of generalisation, most charges laid at protest actions are relatively minor. As for other criminal charges, the police are required to prove beyond reasonable doubt that an offence has been committed. While many magistrates appear to accept the police version of events all too readily, there will be many situations where either the police account of the facts can be successfully contested, or perhaps where technical legal points will go in favour of the defendant.

Whether you are taking part in a blockade of a forest road to prevent logging, or a huge global justice action outside the stock exchange, it pays to know the law to both avoid arrests, and to avoid being convicted if you are arrested and charged.

It is not possible to provide specific legal information for the vast amount of creative and ever-changing actions that occur in Australia.

Police and prosecutors have the resources to select from an extensive menu of criminal charges. The same action often can result in very mild or severe charges, at the discretion of the magistrate. It is not possible to predict which charges police may apply at any particular protest.

See Lawful and unlawful?

However, here are some of the most common charges arising from protest activities that we expect to see again: Always seek specific legal advice.

If you are searching for legal information for a particular type of protest action seeLegal information for activists.

It is important in planning to consider that certain conduct may put activists in a position where they are liable to be arrested, which may in turn result in criminal charges, court processes and potentially a criminal record. Activists should decide beforehand whether they wish to take this risk.

Once charged, it is important to seek legal advice at the earliest opportunity.

See Plan for possible arrest

Records and penalties

The current Victoria Police policy for release of criminal records is to provide all findings of guilt up to 10 years old. This includes court penalties given “without conviction”.

See Impact of criminal record

If you are going to court for the first time and intend to plead guilty, inquire about the Criminal Justice Diversion Program, which could see you avoid a criminal record if you are considered eligible and complete a diversion plan.

Penalties given in this guide are the maximum penalties available but the courts usually only impose the maximum penalty where a person has many prior convictions or commits the worst type of the particular offence.

See Sentencing and appeals.

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 & 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

The Commonwealth “offensive or disorderly manner” law is associated with the trespass law. Under sections 11(2) and 12(2)(a) of the Public Order (Protection of Persons and Property) Act1971 (Cth), it is an offence for a person who “while trespassing on premises in a Territory” or “being in or on Commonwealth premises...behaves in an offensive or disorderly manner”. These offences both carry penalties of up to $2000. Note that the meaning of “offensive or disorderly” has to be established, and that the defence of “reasonable excuse” can be used.

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 Act1966 (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

A 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

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 see Environmental action charges section or go to Lawyers for Forests site.

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.

Property damage

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 Act1958 (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.

See 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 Act1966 (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.

Counter-terrorism laws

In response to so-called “threats of terrorism”, 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 more information about the powers of ASIO, see What if ASIO visit.

Also see Impact of counter-terrorism laws.

Common law defences

The prosecution always has to prove, beyond reasonable doubt, that you have committed the offence charged. If there are a number of elements to an offence, then each of these elements must be proved. In most cases, you will be trying to show that the prosecution has failed to prove its case to the required standard (“beyond reasonable doubt”).

But even if the prosecution can prove its case, there are usually "defences" open to you. If you can establish one of these defences, then you will be found not guilty. The burden of establishing a defence is on you; you must prove the defence "on the balance of probabilities".

Defences to charges are often written into the particular legislation creating the offence, such as the Victorian and Commonwealth Crimes Acts. These are called statutory defences. However, there are also some "common law defences" (based on decisions by judges in previous cases) which can apply to many charges. For instance, "self-defence" and "necessity" might be defences not only to the various charges of assault, but also to protest-related charges.

For instance, you might feel that your life and safety, or social well-being, are fundamentally threatened by a particular corporate or political decision. Your actions may have been motivated by a sense of necessity or self-defence.

Defences such as necessity and self-defence can be very hard to establish successfully. Even if a conservative magistrate might not accept your argument, the fact that you raise the formal defence gives you an entitlement to be heard on your matters of concern. As a compromise, the magistrate might well take your defence into account as "mitigation" (reducing your culpability for the "wrongfulness" of the offence), when she or he sentences you!).

The major common law defences that might be used in a variety of charges (unless excluded by statute) include:

  • Self-defence
  • Necessity
  • Claim of right

For instance, you can legally defend yourself against actual or threatened violence so long as you don't use excessive force: you can't shoot someone who threatens to evict you, as this would be an excessive response to the threat. On the defence of necessity, magistrates generally decide that threats to the survival of humankind by nuclear war and environmental damage are not a "great and imminent danger"; but you can still run the defence and explain your actions.

Honest and reasonable belief

On the defence of "honest and reasonable belief", you may be able to state that you believed you had a reasonable excuse for being on a certain prohibited area, for instance, in relation to a charge of trespass. For example, you may state, if it is true, that you had received an invitation and permission from the traditional Aboriginal owners of the area to be on that particular land.

Some charges need authorization

Most charges can be brought by anyone. However, charges involving offences against the police can generally only be brought by police.

There are many Commonwealth charges that require permission from a particular official before they can be brought. For example, offences against the Public Order (Protection of Persons and Property) Act 1971 (Cth) may only be instituted with the consent in writing of the Commonwealth DPP or those authorised by him/her (section 23).

This does not prevent the arrest or charging of these offences, but it is a necessary proof for the completion of the prosecution. In the case of Gulf War protests on Defence Department land the charges were dropped when the Commonwealth Department of Public Prosecutions, following representations, declined to give the necessary consent.

Commonwealth places

Whilst most State laws apply to Commonwealth places (see Commonwealth Places (Application of Laws) Act 1970 (Cth )) specific Commonwealth provisions often displace State laws altogether.

For example, section 25 of the Public Order (Protection of Persons and Property) Act 1971(Cth) excludes the common law in relation to unlawful assembly, rout and riot from all Commonwealth places. It also excludes the operation of the Unlawful Assemblies and Processions Act 1958 (Vic) and State laws of riot.

Private security guards

Private security guards are often used against activists or at political events to prevent access to an area or to provide additional security.

All security guards are required by law to wear a large, visible number as identification. Take note of this number and the company they are with in case you wish to make a complaint.

Security guards and council officers generally have little more power than do private citizens. They do have the delegated property rights of their employers so that, for instance, they can act to protect property or to demand that other people leave private property (see Trespass law). There may be instances where you have to determine which is council property, which is private property, and which is state government property, if various parties try to move you on.

On Commonwealth property, Australian Protective Service officials have powers of arrest over people they reasonably suspect of having committed an offence on that property. Also, on military installations the military may be empowered to make an arrest in certain situations.

Powers of arrest

Security guards have nothing more than the power of "citizen's arrest". This power is provided by section 462A of the Crimes Act 1958 (Vic). Section 462A provides that “any person” who witnesses an offence occurring, or where there is immediate danger of a crime being committed, may use reasonable force to effect an arrest.

Use of force

Security guards can legally arrest you. They must inform you of the reason for arrest, and then advise the police immediately. Be aware of the restrictions that apply to the use of force by security guards - if you feel that ‘unreasonable' force has been used you can allege assault or pursue civil action. What is ‘reasonable' force will be determined by common law.

Security guards are trained to use handcuffs as a last resort where the person resists lawful arrest and cannot be restrained by other lawful means. Because security guards do not have uninhibited authority to use these, there is always room to argue the legality of their use, as incorrect use can again result in criminal prosecution or civil action.

You should always keep in mind however that private security agents are often armed and always in uniform. They do not have the same training, or the same oversight and reporting mechanisms as police officers. BE CAREFUL when dealing with private security guards.

Search

A security guard is never allowed to search you or your property, unless you consent to it. Do not give consent to any security guard to do this. If a security guard does carry out a search without your consent, you may pursue criminal and/or civil action.

Complaints against security guards

All security guards and bouncers are licensed by the Private Agents Registry, which is administered by the Victoria Police and regulated by the Private Agents Act 1966 (Vic). All security guards are required to wear a large, visible number as identification. Take note of this number and the company they are with.

The registry investigates complaints about security guards, crowd controllers or security companies. If the registry finds that the guard has behaved in an unfair, dishonest or discreditable way, they can cancel or suspend their licence.

Send your complaint to:

Private Agents Registry, 
PO Box 415, 
Melbourne 3005 
Tel: 1300 651 645

You can also complain to:

  • Local police
  • The security firm who employs the guard
  • The Victorian Ombudsman, 9613 6222 or 1800 806 314 (country callers)
  • The relevant industry association. Security companies have a code of practice they must follow. Find out which association the company belongs to and make a complaint. The Australian Security Industry Association covers most companies. Phone them to check if the company is a member (02) 9906 4780

Protective Service Officers

Under the Police Regulations Act 1958, Protective Service Officers have the same powers as police officers. The Victorian Government plans to increase the number of PSO in operation, particularly around public transport.

Also see Police use of force

Police powers & your rights

This section covers in detail the powers that police have to arrest, charge, or question you before and during an arrest.

The formal power of police is less than is popularly imagined, and can be challenged. Much police power depends on bluff and bullying. When police insist on your "cooperation" they really mean that they want your obedience.

Police have a sworn duty to stop or prevent a "breach of the peace", which means that they may intervene, for instance, to stop damage to property or to stop a fight.

It is rare for police to exercise this power in anticipation of a breach of the peace.

The power to prevent breaches of the peace does not necessarily entitle police to take you away somewhere, or take your property (such as a banner) unless this is absolutely necessary to stop or prevent a breach of the peace.

While recent amendments to the Summary Offences Act have broadened police powers to move people on, those powers are inapplicable in certain circumstances - mostly in relation to freedom of speech and assembly. Move on powers do not apply to people who, whether alone or with others are:

  • Picketing a place of employment
  • Demonstrating or protesting about a particular issue
  • Speaking, bearing or otherwise identifying with a banner, placard or sign or otherwise behaving in a way that is apparently intended to publicise the person's view about a particular issue

Note, however, that the recent amendments also introduced a broad offence for “disorderly conduct”. A person can be arrested for disorderly conduct.

For a short guide on your basic rights when arrested go to Activist legal rights - a short guide in the Support team resources section.

Police use of force

The police are only entitled to use “reasonable force” and may only use force when it is lawfully justified. The police use of force may be unlawful if it is found to be ”excessive”.

Section 462A of the Crimes Act1958 (Vic) provides as follows:

“462A. A person may use such force not disproportionate to the objective as he believes on reasonable grounds to be necessary to prevent the commission, continuance or completion of an indictable offence or to effect or assist in effecting the lawful arrest of a person committing or suspected of committing any offence.”

This section is relevant to all members of the public (including Victoria Police members).

Sections 459 and 459A of the Crimes Act1958 (Vic) also confer special powers of arrest, entry and search upon members of the Victoria Police which are more extensive than the powers of ordinary members of the public and, in particular, the powers of arrest conferred upon members of the public by section 458 of that Act.

Police use of force is often justified under the common law principle that police have a duty to prevent a breach or a threatened ”breach of the peace”.

Ultimately, what constitutes “reasonable force” is decided by the courts when police action is challenged.

Also see Complaints against the police

Policing standards

The United Nations Code of Conduct for Law Enforcement Officials states that "law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons" (Article 2) and they "may use force only when strictly necessary and to the extent required for the performance of their duty".

The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials also include the following:

4. Law enforcement officials, in carrying out their duty, shall, as far as possible, apply nonviolent means before resorting to the use of force and firearms.

5. Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:

(a)Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;

7. Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.

Police approach

At private premises

The police usually need a search warrant to enter and search private property, unless:

  • You agree to the police entering
  • The police have a reasonable belief that a serious offence will be or has been committed and entry is necessary to make an arrest
  • Entry is necessary to stop a breach of the peace
  • There has been a breach of an intervention order
  • The police are chasing someone who has escaped from custody
  • The police have a warrant for arrest
  • The police have a reasonable belief that illegal drugs are on the premises

See also What if ASIO visit

To get a search warrant, police must apply to a magistrate and provide sworn evidence, either in person or by affidavit. Once they have a warrant, police are only authorised to search a particular premises for specified items. There will also be an expiry date on the warrant. The police must serve an adult occupier of the house with a copy of the warrant.

Police cannot legally, for example, come to your house with a warrant for stolen electrical goods, and then attempt to take your address book. However if they come across evidence of an offence (for instance a marijuana plant) while searching they are entitled to take that and arrest you.

Name & address

Under section 456AA of the Crimes Act1958 (Vic) the police can ask for your name and address if they believe that you:

  • Have broken the law
  • Are about the break the law
  • Are able to assist them with information about an indictable offence

If the police demand your name and address they MUST give you reasons for doing so. You should ask for these reasons.

The police must also tell you their name, identification number, police station and rank. You should always ask for this information and ask that it be provided in writing.

The police may also demand your name and address without giving a reason if you:

  • Are driving a car, motor bike, boat or push bike
  • Are on public transport or public transport property (public transport officers can also ask for your name and address)
  • Are in a hotel or licensed premises

It is an offence with a maximum penalty of a fine of $500 to refuse to give your name and address or to give false details to police, public transport officers and authorised National Parks officers.

If you give a false name and address when arrested and taken into custody, it may increase the time you are held for questioning and verification of your identification, and also affect whether you are granted bail.

Being searched

Generally, the police can only search you if you agree or if they have a warrant.

The police can search you, your possessions and your car without consent or a warrant if you are in a public place and they believe you are carrying illegal drugs, volatile substances, weapons, graffiti implements, or firearms. Note that “weapons” can include any object which has been either modified to enable it to be used as a weapon or any object carried with the intent of being used as a weapon. If you are within a “designated area” the police do not need to have a reasonable suspicion that you are actually in possession of or intend to use a weapon in order to search you. If you are not within a designated area, however, there must exist a reasonable suspicion or evidence on which their decision to search you has been based. The police can include in their reasons to search you that you are in an area with a high rate of violent crime. Police can't legally stop and search you on a whim or because they don't like you - although this often occurs.

Police may conduct a ”pat-down search” of the outside of your clothes and ask you to empty your pockets.

If the police reasonably suspect you are carrying a weapon and you refuse to produce it, you could be charged and fined.

If you are in custody or under arrest you can be searched for things that could be used as evidence for the offence you have been arrested for. Police may conduct either a ”pat-down search” or a ”strip search” in a private place.

Police must not undertake an internal search without first obtaining a court order.

Searches are required to be conducted, so far as reasonably practicable, by police officers of the same sex as the person to be searched. In other words, women, including people who identify as women must be searched by female police officers. This does not always occur - the unfortunate reality is that male police often strip search female suspects as a form of harassment and intimidation.

The International Covenant on Civil and Political Rights (ICCPR Article 17) protects against arbitrary and unlawful interference with privacy. Many searches are arguably random (and therefore arbitrary), aimed at the general population rather than specific individuals suspected of criminal offences.

Where possible, refuse to be searched, but if police insist then closely monitor them. Try to have as many witnesses as possible to follow and observe each police officer (there will usually be several). Use cameras and tape recorders, if you have them.

Check every item police attempt to take away, and ensure your witnesses see that police don't plant or falsely "find" anything. Insist on a detailed receipt for anything that is taken - this can be cross-referenced with the report to the magistrate. Do not countersign this receipt if it is not accurate or not fully detailed.

If property is taken from you during an arrest or at a demonstration, have a lawyer write a letter to police immediately, demanding return of the property. Raise the matter before a magistrate, if you are charged. Put on record as soon as possible what was taken, where it was taken and by whom. This helps any legal follow-up that may be necessary.

Being arrested

The police can arrest you if they believe you have broken a law.

Police cannot arrest you "for questioning". You DO NOT have to accompany the police to the police station UNLESS you are under arrest or if you have been found drink-driving and police require you to accompany them to a police station for a breath test analysis.

However, it is an offence to actively resist or hinder a legal arrest (yours or another's). It is not necessarily an offence to refuse to co-operate, for instance by lying down. You don't have to help police arrest you, but they may then use "reasonable force" to take you into custody.

The Victorian Police Manual states that: “Passive resistance - means a nonviolent refusal to cooperate, including a refusal to comply with directions. This does not include the linking of arms nor the holding onto of structures.”(VPM Instruction 107-1 Crowd control 3/11/03)

It is also not an offence to run away before an arrest takes place; however, running away may be later represented in court as some evidence of your "consciousness of guilt".

If the police take you into custody (including placing you in a divisional van), you should ask “Am I under arrest?” and “What am I under arrest for?”. You should not participate in any further conversations with police (except to provide your name and address) until you have spoken to a lawyer.

You should immediately demand to speak to your lawyer. If you are participating in a demonstration, it is best to always carry the phone number of a couple of lawyers, or legal centres, with you. If police refuse you access to a lawyer just say you have no comment to make.

If you are a Koori you should tell the police immediately. The police must then notify the Victorian Aboriginal Legal Service and any local Aboriginal Justice Panel.

If you are not an Australian citizen, you should tell the police immediately. You must be allowed to contact your consulate.

Contacting witnesses to an arrest is vital - statements should be taken from them in case the police version of how the arrest took place is to be challenged. In particular, try to remember the identity of the arresting police officer. It sometimes happens in demonstration cases that different police turn up in court claiming to be the arresting officer. If such substitution is exposed, the police evidence will be disregarded.

Release without charge

In some cases, the police will arrest activists, transport them away from the scene of the protest (sometimes many miles away), get personal information, and then release them onto the street without charge. This might occur if the police are unsure if any crime was really committed and just wanted to clear the area. Prosecutors may then be consulted to see what, if any, charges will be filed. The prosecutors can then take anywhere from a few days up to a year to decide to file summary charges against you, or even longer for some more serious (indictable) charges.

If this happens to you, give a good mailing address to the police. If police decide to charge you later, they may send a summons to the address you have given. The court where the charge has been filed will also send notice of your court date to the address you give the police. If the notice is mailed to a bad address, it will be returned and you won't get notice of the court date. If you don't attend court, the case could be heard in your absence or a warrant for your arrest may be issued.

Questioning

You have the right to remain silent. Anything you do say to the police can be used as evidence against you in court, or in the police decision whether or not to charge you.

You should refuse to answer any questions, apart from your name and address, until you have had an opportunity to speak to a lawyer.

If the police question you before you have received legal advice, you should answer “no comment” to all questions. Do NOT answer some questions and not others - this may be used in court as evidence that you had something to hide on the questions that you did not answer.

If you do not speak English - ask for an interpreter. The police should not conduct an interview without the aid of an interpreter.

You have the right to ask for a lawyer. You should do so immediately and continuously. You must be allowed to speak to a lawyer in a private space where you cannot be overheard. If the police are within hearing when you call your lawyer, make sure that the lawyer is aware that you are being overheard and do not go into details over the phone.

If the police question you formally without you having spoken to a lawyer, state clearly during questioning that you refuse to continue with the interview until you have received legal advice.

If you are not an Australian citizen you have the right to contact your embassy or consular office.

You must be allowed to telephone a friend or relative. The police may only deny you this right if they believe that as a result of your call:

  • Someone else involved in the crime might get away
  • Some evidence may be lost or tampered with
  • Other people may be in danger

Different rules about police questioning apply to driving matters involving alcohol or drugs.

You should not have any conversations at all with the police, no matter how innocent or irrelevant they seem, until you have spoken to a lawyer, your family and/or an independent third person (a person required to be at an interview where the interviewee suffers from an intellectual disability).

Do not be intimidated by the police questioner. The police may tell you that by saying “no comment” you are risking being charged with a more serious offence, or that you will not be released on bail. Do not believe these threats and do not tell the police anything until you have spoken to a lawyer.

The police must tape record the questioning (called the record of interview) if you are charged with a serious (indictable) offence. (Police are not required to tape record interviews where you are to be charged with a less serious (summary) offence.)

If you are charged with a serious (indictable) offence, the police must also tape record the following caution being given to you before you are questioned:

‘I must inform you that you are not obliged to say or do anything but anything you say or do may be given in evidence. Do you understand that? I must also inform you of the following rights: You may communicate with or attempt to communicate with a friend or relative to inform that person of your whereabouts. You may communicate with or attempt to communicate with a legal practitioner.'

The police must also tape any questioning and your answers. If you are charged and your matter proceeds to court, this tape may be transcribed and presented as evidence.

The police must give you a copy of the tape. You should get this to your lawyer as soon as possible.

Note that for less serious offences, known as summary offences, the police do not have to conduct a taped record of interview. They may simply write down any questions and answers and this record may be used in court.

If you are under 18 years of age

The police MUST NOT formally question you unless your parents or guardian or an independent person is present during questioning.

Making a statement

At the conclusion of the record of interview, the police will ask you whether you wish to make a further statement. This will be in the form of a written statement. The police may ask you to sign and swear as to its accuracy.

  • Do not make a statement until you have received advice from your lawyer
  • Do not sign anything until you have read it carefully
  • Do not sign anything which is incorrect or which you do not agree with

If you do sign a statement, make sure that you get a copy of your statement.

Fingerprinting, photos

In all but a few minor offences, you must allow the police to take your fingerprints if they believe that you have committed an offence. Police can use "reasonable" force to take your fingerprints if you refuse.

Before taking your fingerprints the police must inform you:

  • Why your fingerprints are needed
  • The offence they believe you have committed or that you have been charged with
  • That the fingerprints may be used as evidence in court

If you are 15 or 16 years of age your parents, guardian or an independent person must be with you when the police ask to take, and take, your fingerprints.

If you are between 10 and 14 years of age, the police must get your consent and the consent of your parents and guardian before your fingerprints are taken. You do NOT have to consent.

The police cannot fingerprint a child under 10 years of age.

If you refuse to give your fingerprints, the police can use "reasonable" force to get them. If you are 15 or 16 years of age and force is used, it must be video or audio taped.

If you are not charged within 6 months or you are found not guilty at court, the police must destroy your fingerprints.

Photos

The police cannot force you to have your photo taken. It is your right to refuse any request from the police for a photo.

ID parade

The police may ask you to participate in a line up, where the witness is asked to identify the person who committed a crime. The police cannot force you to participate in an identification parade. If you participate in such a line up, you risk being mistakenly identified as the offender. You should refuse to participate in any identification parade or line-up until you have spoken to a lawyer.

Being held

If you are arrested, the police may only keep you in custody for a "reasonable time". What is reasonable depends upon the:

  • Number and complexity of the offences
  • Time needed for police to read and collate material
  • Number of other people to be questioned
  • Time needed to have the suspect communicate with a lawyer, interpreter, relative or friend
  • Time needed for medical attention
  • Time given to a person to rest during an interview

If you have been held in custody for some time and not charged, you should ask to phone a lawyer and ask whether the police intend to charge you.

Being released

Just because you have been arrested does not mean that you will necessarily be charged. You may be:

  • Released without charge
  • Released and charged at a later date
  • Charged and released on bail
  • Charged and brought before a bail justice

If you are being released, you will be asked to sign the Attendance Register Book at the police station where you were held. Signing the Attendance Register Book acknowledges that:

  • The police have not taken anything from you
  • You have been treated reasonably
  • You have received your police charge sheets

You do not have to sign the book if you do not want to.

Release on bail

Most people who have been arrested and charged with committing an offence must obtain bail before they can leave the police station. The main purpose of bail is to make sure that the person turns up at court to answer the charge against them.

The police have wide powers in relation to the granting of bail. In most cases, police will agree to grant bail at the police station. It is usually the case that bail is granted without any need for a surety (eg money), only an undertaking (ie a promise to appear). Very few bail matters end up going before the courts. This usually happens when the police do not agree to grant bail.

If the bail hearing does go to court, bail may be refused if the court or a bail justice is satisfied that there is an unacceptable risk that you will:

  • Fail to appear at the court hearing (eg. you have failed to appear at court on a previous occasion)
  • Commit an offence whilst on bail (eg. if you have been charged whilst already on bail)
  • Endanger the safety or welfare of members of the public; and/or
  • Interfere with witnesses

If you are applying for bail in the Magistrates' Court, the application must be well prepared. If the application is unsuccessful and you were represented by a lawyer, then another application for bail to the Magistrates' Court can only be made if there are new facts or circumstances to present to the court.

It is often better to spend a few days in custody while a solid bail application is prepared by the solicitor. This allows time for witnesses who can support the application to be contacted and organised. Although this advice is not popular with people being held in custody, it is generally sound advice and increases the chances of a person being granted bail in the face of opposition by the police.

If you want to apply for bail immediately, and the police oppose bail, you need to be aware of what the key issues in the police opposition to you being granted bail are. Then you should undertake your own bail application. If bail is refused, there is then nothing to stop you making a further application for bail with the assistance of a lawyer appearing on your behalf, where the main issues can be addressed after proper preparation by a solicitor acting for you.

For all charges in Victoria, with the exception of treason, murder and certain serious drug trafficking and violence offences using weapons, there is a presumption in favour of bail. That is, bail must be granted unless the police or prosecution makes a successful case against bail. The main issues that may be raised to oppose your normal right to bail include some reasons to suggest that you:

  • Will not appear in court
  • Will threaten witnesses; and/or
  • are about to commit further offences

With trafficking or cultivation of large quantities of illegal drugs, or with serious offences where firearms have been used, there is a presumption against bail, so an argument must be made out for bail (Bail Act 1977 (Vic ), section 4).

In most cases, however, you do have a right to bail and will be given bail, either by the police or a magistrate. With all minor offences (and many major offences) you should be granted bail. This right recognises the legal doctrines (which are often disregarded by the police and the mass media) that there is a presumption that you should be granted bail, and that you are innocent until proven guilty.

If you are aware police wish to charge you with an offence, you will increase your chances of bail by making an appointment to see them, with a lawyer. If you do this, go very early and on a week day, so that if police refuse bail you'll go before a magistrate that morning, and not be held in police cells overnight.

If you are refused bail by the police outside of court hours, you can apply for bail from a bail justice. If you are refused bail by the bail justice, you must be brought before the Magistrates' Court as soon as practicable. You then have the right to apply for bail.

Bail Conditions

Bail may be granted subject to conditions that may include such things as:

  • You undertake to appear in court
  • You or someone else agree to forfeit a sum of money if you fail to appear in court as required (ie. a surety); the amount of money must be within your means
  • You stay away from an area (eg. a protest site) or a witness
  • You surrender your passport
  • You tell the police if you change your address

The condition of "staying away from an area" has been increasingly used against activists, to prevent them returning to the protest site.

You may want to object on the grounds that it is an infringement of your basic rights. However, it will be likely that you will need to show a legitimate reason for entering that area, or that such a restriction is necessary in all the circumstances. Where you have been arrested for nonviolent demonstration, you may be able to argue that there is no need for a condition stopping you returning to a particular area.

If the magistrate insists, and you are forced to accept or lose your freedom, you can accept the condition and later make application to vary the condition. You may also consider lodging an urgent application to the Supreme Court to vary the bail and delete the condition. However, you should note that it takes some time to have a bail application listed in the Supreme Court, and if you have not accepted bail with the condition attached, you will be held in custody pending the listing of your bail application.

Keeping arrest records

If you have been arrested, or have been a witness to arrests, it is very important to keep a personal and detailed written record or tape record of any incidents you have with the police, including the time and date of the incident. If you have been assaulted, it is important that you see a doctor as soon as possible and ensure that the doctor records your injuries and what happened.

Take photos if the injuries are visible. If someone else takes photos of your injuries, you may need to call them as witnesses, so make sure you have their contact details. You should also record the names and contact details of any witnesses to the assault, and of the people who saw you immediately before and after the incident. Do not notify the police that you have made these records.

There is no law that prevents you from video-taping any events or taking photographs while protesting if these events are taking place outdoors.

Forensic procedures

Police have power to request a suspect to undergo a forensic procedure where there are reasonable grounds to believe that the result of the procedure will tend to confirm or disprove the suspect's involvement in an indictable offence.

You should refuse to undergo any forensic procedure unless the police have a court order compelling you to do so.

Under both the Victorian and the Commonwealth Crimes Act, there are now specific legislative powers for taking forensic material from suspects. The following information focuses on the requirements of the Victorian law, which is found in sections 464R to 464ZK of the Crimes Act 1958 (Vic). The Commonwealth law is found in sections 23WA to 23XWA of the Crimes Act 1914 (Cth), and is dealt with briefly below. Forensic procedures include:

  • Intimate samples: pubic hair, anal, external genital or breast swabs, saliva, mouth scrapes or dental impressions
  • Non-intimate samples: hair, fingernail or toenail scrapes, external swabs or washings
  • Other samples, or any other procedures or physical examinations of the body (but, under the Victorian Act, do not include the taking of fingerprints)

The powers of police to seek to have a suspect undergo a forensic procedure depend in part on the suspect's age.

Adults

A forensic procedure can be conducted if either:

  • The suspect gives his or her informed consent to the conduct of the procedure. Before a suspect can be said to have given informed consent, police will have to provide certain information, or
  • a Magistrates' Court orders that the procedure be conducted

You should refuse any request for forensic samples and ask to speak to your lawyer.

Commonwealth offences

The conduct of forensic procedures under Commonwealth law ( Crimes Act 1914 (Cth)) follows the general procedure set out under the Victorian legislation. That is, a police officer can obtain a forensic sample with the informed consent of the suspect.

Where such consent is not forthcoming, an authorised police officer may seek a court order for the conduct of the procedure.

The distinction between an intimate and a non-intimate sample or procedure is also present in the Commonwealth Act, however there are some slight differences in definition and approach. There are some limited circumstances where a police officer of the rank of sergeant or higher may order a non-intimate forensic procedure to be carried out on a suspect.

The Commonwealth Act imposes time limits for carrying out forensic procedures and also imposes special requirements in relation to Aboriginal people and Torres Strait Islanders.

Being charged

When you are charged (either at the station or later by summons), the charge sheets will set out the following:

  • The alleged offence
  • The act or legislation name and section under which you have been charged
  • Your name, address and date of birth
  • The name, rank and station of the police informant laying the charges
  • The date and venue of the court at which you must appear

The first thing you should do after being charged is to contact your Legal Support Team or a lawyer.

Once you have retained a lawyer, that lawyer will request the ‘brief of evidence' from the police. This brief of evidence should contain all the witness statements, photographs, forensic tests and samples, exhibits, telephone intercepts, videos and any other evidence the police intend to rely on to prove the charge against you.

If you do not have a lawyer, you should request this brief of evidence directly from the police informant yourself.

See Approaching the court for legal information about dealing with a court appearance.

Complaints against the police

The actions of police officers during protests and demonstrations can be subject to public scrutiny and criticism through complaint and investigation processes.

The power to investigate complaints about police members and disciplinary action to be taken against them is derived from the Police Regulation Act 1958 (Vic) and the Police Integrity Act 2008. These Acts create two avenues to start an investigation about the behaviour of a police member.

Also see:

Who to complain to

Victoria Police Professional Standards Command

Although the Police Regulation Act 1958 (Vic) gives the Chief Commissioner of Victoria Police the ultimate responsibility for investigating police members and taking disciplinary action, on a day to day basis this is undertaken by the Victoria Police Professional Standards Command (PSC) via the Assistant Commissioner (PSC).

PSC is an area within Victoria Police, which investigates internal and external complaints made about police members. PSC has the power to compel members to make statements about their actions, to investigate the incident by taking witness statements and obtaining other evidence and ultimately, if the allegations are found proven, to recommend disciplinary charges or some other procedure be instituted against the police officer.

The Victoria Police force has an internal disciplinary hearing procedure. The hearing of a disciplinary charge is not open to the public. A complainant is also not represented at the hearing.

The penalties which may be imposed on a police officer who has a complaint against him/her proven depend on the seriousness of the unlawful incident/s giving rise to the charge. The penalty may be a fine, a demotion, a reprimand, an admonishment or dismissal.

In the experience of many activists and progressive lawyers who have made or overseen complaints to PSC, it is rare and infrequent for complaints to be substantiated by PSC and disciplinary charges pursued following a complaint made by the public. There have been many reasons suggested about why this is so, the most common being that police investigating police does not ensure independence or accountability in the investigation process.

Management Intervention Model - Victoria Police has also established a new system for handling service delivery and performance management of complaints made by the public. The management intervention model is managed by the Assistant Commissioner (PSC), and is intended for minor complaints, such as rude and unsatisfactory behaviour of members. It is not meant to replace the PSC system for investigating substantive allegations of corruption or police misbehaviour. Options for resolution can include meetings between the aggrieved complainant and police member as well as the issuing of admonishment notices to members for minor breaches of discipline.

Victoria Police - Professional Standards Command
637 Flinders St Melbourne VIC 3005
Tel: 1300 363 101 or (03) 9247 6666 
email:  PSC-POLICECONDUCTUNITCOMPLAINTSANDCOMPLIMENTS@police.vic.gov.au
web: http://www.police.vic.gov.au

Independent broad-based anti-corruption commission (IBAC)

A complaint to IBAC about Victorian public sector corrupt conduct or police personnel misconduct must be in writing, unless it is determined by IBAC that there are exceptional circumstances as to why it is unable to be provided in this form.Victorian public sector bodies include government departments and statutory authorities (including Victoria Police), local councils, schools and universities, public hospitals, Members of Parliament, judges and magistrates.

IBAC
Level 1, North Tower, 459 Collins Street, Melbourne, VIC 3001
or GPO Box 24234, Melbourne, VIC 3000
Tel:1300 735 135
Fax: (03) 88635 6444
website: www.ibac.vic.gov.au

Freedom of information

While Victoria Police are subject to Freedom of Information (FOI) laws, which allow complainants to gain access to documents relating to any investigation into a complaint, the Independent Broad-Based Anti-corruption Commission (IBAC) is not.

You should consider when making a complaint whether you will want access to the documents obtained by the Ombudsman at a later date.

Federal Police

For complaints about the Australian Federal Police (AFP) you can complain by letter, telephone, fax, in person or online to:

  • Any AFP office
  • The Commonwealth Ombudsman
  • AFP Internal Investigations Division

Again, it is a good idea to talk to your lawyer or local Community Legal Centre first before you make a complaint.

You have the right to complain about the conduct or actions of individual AFP members.

Your complaint may concern:

  • Action taken by an AFP officer that involves discourtesy, rudeness or abruptness to you
  • Action that arises out of a misunderstanding of the law, of the policy or procedures of the AFP
  • Serious ill-treatment by an AFP officer
  • Assault by an AFP officer

You should first make your complaint to the AFP, whether the complaint involves allegations of minor or serious misconduct. The complaint will either be dealt with by AFP's Workplace Resolution Program through a conciliation process, or the AFP Internal Investigations Division. This process is monitored by the Ombudsman's Office.

In every case, a report detailing the actions taken by Internal Investigations must be forwarded to the Ombudsman's office for independent scrutiny. If the Ombudsman is not satisfied with the AFP's investigation of your complaint, he or she can ask the AFP to reconsider its recommendations, require Internal Investigations to investigate further, or conduct his or her own investigation.

While you are entitled to complain to the Ombudsman at any time, he or she will usually only intervene in the matter if you have already raised the complaint with the AFP directly. If you are being detained, you have the right to be provided with facilities to make a complaint to the Ombudsman.

If you have a grievance, you should make the complaint as soon as possible, within one year of the incident.

If you are injured

If you intend to make a complaint about police mistreatment, try to write down everything that happened to you as soon as possible. Include the names of the police officers involved, the time and date of the incident and what actually happened.

  • See a doctor immediately, and ensure that they provide you with a written medical report describing your injuries the Victorian Institute of Forensic Medicine has specifically trained doctors who can provide expert medical opinions, and free examinations by these specialist doctors will be arranged if you complain promptly.
  • Get someone to photograph any injuries.
  • Write down as much information as you can about the person or people who injured you including their name, rank and police station.
  • Write down the name of the last person to see you before you were injured and the first person to see you afterwards and get their contact details.
  • Contact the Legal Support Team or lawyer who will help you make a formal complaint. A community legal centre, Victoria Legal Aid or a progressive private lawyer can also help you to make and lodge a complaint.

Koorie community

The Victorian Aboriginal Legal Service (VALS) offers special assistance to Koori people who want to make a complaint about the police.

Contact VALS to get information, support and free legal advice about your options.

Victorian Aboriginal Legal Service
273 High St,
Preston 3072 
PO Box 52
Free Call: 1800 064 865
Tel: 9418 5999 
Fax: 9418 5999
website: http://vals.org.au/

If you are in custody

Persons in custody or patients in mental institutions may write confidentially direct to the Victorian Ombudsman in sealed envelopes. Prison regulations say that these letters will not be read. Replies from the Ombudsman are in sealed envelopes that you must open personally.

Human Rights Register

If you are mistreated by state or federal police and believe that your civil rights have been violated then you can submit a report to the Human Rights Register. This puts your report on the public record and allows for greater public scrutiny of the actions of police.

The Human Rights Register, facilitated by the Catholic Commission for Justice, Development & Peace, Melbourne, is an annual non-government organisation audit of human rights developments.

The Register records individual reports and accounts of developments and violations and analyses them in the light of the human rights conventions that Australia has ratified. It focuses on individual instances within Australia and contains reports from community legal centres, non-government organisations and the national media.

web: Australian Human Rights Register

FAQs

Why should I make a complaint?

You should make a complaint about police misconduct if you:

  • Are hurt, upset and distressed about what happened to you. If you have been hurt or injured, mistreated, abused or your rights violated as a consequence of unlawful actions of police officers you may have been the victim of a crime and have a right to justice, redress and potentially compensation
  • Believe police acted unlawfully or criminally or dangerously;
  • Believe it is important for public scrutiny and knowledge about the responses of police officers at protests and demonstrations. There have been many cases where police have stopped using a particular tactic after Ombudsman's investigations, and cases where police have been charged and dismissed. Your complaint or report may prevent another activist copping the same treatment in the future;
  • Want to raise public awareness about the incident and ensure that the individual/s and Victoria Police are accountable for their actions. Every individual complaint, every civil action, every public record or report that we make means that police abuse and violence will not go unnoticed and helps in a small way to keep the police accountable. Whatever your analysis of the police and the state, making sure police abuses and police violence is written up on the public record helps other activists;
  • Have been injured, to ensure statistics about police misconduct allegations are accurate;
  • Wish to ensure that similar behaviour does not occur again. Every complaint, every civil proceeding, every action we can take as activists and civil rights lawyers and acts as a deterrence against further abuses of power, use of excessive force or acts which violate our civil, political or human rights;
  • Are unsure how you were injured and who injured you during an incident of police use of force or violence.

Who can I make a complaint to?

  • Any member of the police force at any police station
  • The Professional Standards Command of Victoria Police
  • Independent Broad-based Anti-corruption Commission (IBAC)

How do I make a complaint?

After you have contacted ESD, the IBAC or the police station by either writing to them, calling them or attending in person, you will be required to make a statement about your complaint. This may be in the form of a typed statement from you about the incident, or you may agree to be interviewed. Keep a copy of any statement you make. If you agree to an interview, make sure you arrange for the interview to be taped and that you obtain a copy of the tape for your records.

Please note: any statement you make, while obtained in confidence, may none-the-less become a public document through subpoena and other court procedures at a later date. Be clear that your statement is as accurate and detailed as possible. If you contradict yourself later, this may have an effect on your credibility and your criminal and civil legal rights.

If you are being signed out from the police station through the Attendance Register the police will ask if you have any complaints. If you do not feel comfortable making a complaint at this time you can still do it later.

Do not sign any statement or record of conversation if you are not 100% sure that it is an accurate account of what you said to the person investigating your complaint.

Ideally, you should make your complaint as soon as possible after the incident. This is when your recollection of the events is clearest. The timing of making a complaint is important. If you have been the victim of police misconduct and there is a prospect you may be charged with a criminal offencearising from the incident, you should seek legal advice before making any statements of complaint. This is because, despite the confidentiality of complaint processes, details of your statement may become known by police officers or others prosecuting you for any offence. In this situation, you should still make your complaint as soon as possible after the incident, but advise that you wish to defer making any statement in relation to the investigation of your complaint until the criminal charges against you have been dealt with.

Will I have to be medically examined?

If you have been injured, you may be required to submit to a medical examination. You do not have to agree to the examination. It is a matter for you to decide. If you agree to an examination, a doctor from the Victorian Institute of Forensic Medicine usually conducts it. You should make sure that photographs are taken of your injuries. You should arrange for copies of the photographs and a report of the doctor to be provided to you after the appointment.

You should also consider arranging to be medically examined by a private doctor for treatment and as a personal record of your injuries. You may request a medical report from your doctor and/or a copy of the clinical notes taken during the examination. Some doctors may only provide this information on request from a solicitor and with the payment of money for report preparation and copying expenses.

What should I do if I have evidence proving my complaint?

You should ensure that any witnesses to the incident of police misconduct make statements to the investigating officer as soon as practical.

If you believe there to be relevant photographs or video evidence, you should provide this information to the investigating officer.

If the incident occurs in a police station or some other location where there may be security cameras you should notify in writing the investigating officer immediately of the location of the cameras and request that video footage be obtained and not destroyed. This is often urgent as video footage can be taped over or destroyed if it is not secured quickly.

How long will the investigation take?

A small investigation into allegations from one complainant may take somewhere between 6-12 months or longer, depending on the evidence. An investigation with multiple complainants may take several years to be completed.

You should attempt to clarify the time frame in which the investigation will be completed and what steps will occur along the way.

You should expect to receive correspondence from time to time and finally a report detailing the allegations, the investigation and an outcome as to whether the complaint has been found proven or not. If it is found proven, details of the disciplinary charge and penalty should also be communicated to you.

Consider confirming all discussions with the investigating officer in writing. This may be helpful in understanding the development of the investigation and ensuring evidence you want obtained is followed through by the investigating officer.

However, you should note that where your complaint is being investigated at the same time as criminal charges against you, information you give or statements you make in relation to your complaint could impact on the charges against you (see below).

What effect can making a complaint have on any criminal charges I am facing?

Any statement you make, even if it is supposed to be confidential, may, if it is obtained by the prosecution, have an impact on the outcome of any criminal charges. You should seek legal advice from a criminal lawyer about whether you should make a complaint, and if so when and in what form.

Will making a statement affect my right to pursue compensation for injuries incurred as a consequence of police misconduct?

The investigation into a complaint about police misconduct may inform you about the identities of police officers who injured you or others or authorised the use of force at a protest. The investigating officer may also make findings which are critical of the behaviour of the police officer/s involved. This information may be useful in ensuring greater accountability for police violence at protests and to determine whether you have a right to sue for compensation for any significant injuries you sustain.

You should also be careful to ensure that any statements you make to investigating officers are as accurate as possible. You may be cross-examined about statements you made in the past if you have to give evidence about the incident in court.

Who can assist me in making a complaint?

You can get support from a Legal Support Team established to support activists at mass protests or you can contact a community legal centre or Victoria Legal Aid or progressive private lawyers for legal advice, especially if you have been charged with an offence.

Compensation for police misconduct

Why Sue?

Some injured activists have been pursuing their legal rights under civil law to ensure that the actions of police officers are held accountable.

Suing the police if you are injured has benefits and limitations. On the one hand, litigation allows protestors to challenge the lawfulness of the use of force during demonstrations and protests by bringing a case before judges and juries for adjudication. It also allows injured protestors to obtain compensation for their injuries and medical expenses. Litigation often attracts media attention, and can help raise public awareness about a social issue. In some special cases, courts may award exemplary or punitive damages if the acts of the police officers are particularly dangerous and abusive of human rights.

On the downside, suing the police can be long and arduous because of the public resources at the disposal of the Victoria Police and the State of Victoria. There are also technical legal arguments which can complicate who is ultimately responsible for the actions of police officers. In addition, the remedies available in a court are often limited - you can't get an apology, or an enforceable commitment from the police not to behave in the same way again.

For a detailed report on Civil Litigation against police see: Civil Litigation by Citizens Against Australian Police Between 1994 and 2002 by Dr Jude McCulloch and Mr Darren Palmer, Deakin University (19/01-02) at the Criminology Research Council http://www.aic.gov.au

Unlawful use of force

The use of force or violence by one person against another person is unlawful according to common law, without a reasonable excuse.

Unlawful use of force or violence attracts criminal penalties, depending on the level of force or violence used.

Such misbehaviour can also attract civil penalties: that is, the right of an individual to sue for loss, injury and damage as a consequence of any injury caused by the perpetrator of that force or violence.

Police officers have been given special permission under common law and statute to use force in limited circumstances, such as to effect an arrest and prevent crime.

The use of force by police officers may be unlawful if it is not justified at all in the circumstances of the protest or demonstration. It may also be unlawful if the amount of force used is excessive and dangerous.

The Victoria Police Manual provides guidance about Victoria Police policy regarding the use of force. The philosophy said to apply to the planning, implementation and evaluation of all police operations is that the success of an operation should be primarily judged "by the extent to which the use of force is avoided or minimised". (Victoria Police Manual, Instruction 101.1 Operational Safety Principles).

The policy emphasises a range of response options which do not require the use of force and avoid confrontation.

If the force used by a police officer is not reasonable and/or breaches Victoria Police guidelines and the common law, a person injured as a consequence of that force may be entitled to sue the police officer and the officer's employer (generally the State or Federal Government) in tort.

Causes of action

  • Assault and battery - the intentional infliction of harm
  • Negligence - breach of a duty of care that causes injury
  • Misfeasance by a public officer - deliberate acts by a public officer that are known to be beyond the power of that office

In order to be successful in a claim for compensation you must prove on the balance of probabilities that the incident giving rise to the cause of action occurred, and that it caused your injury. If you succeed in your claim, the amount of compensation you will be awarded depends on the seriousness and ongoing nature of your injury.

In recent years there have been well-reported cases where activists have successfully sued the police for infringements to their civil and human rights (for example, the Richmond Secondary College Protests.)

Requirement of a significant injury for negligence claims

Recently the State government introduced changes to the law that now make it more difficult for all people who are injured to pursue their rights to compensation based on a negligence claim. This includes people who have been injured during protests and demonstrations.

If you have been injured, in order to have a right to sue for compensation in negligence, you must first establish that you have been significantly injured. You must prove that your physical injury is a permanent disability, which impairs your whole body function by more than 5%. You must prove that your psychological injury has caused an impairment to more than 10% of your mental functioning. A qualified doctor must assess your level of impairment according to the American Medical Association Guides and other guidelines that determine impairment levels. If you cannot prove significant injury, you will be unable to pursue compensation.

Soft tissue injuries such as bruises and scratches will be unlikely to exceed the 5% physical impairment threshold. A bit of stress, which lasts 1-2 days will be unlikely to exceed the 10% mental impairment threshold. However, ongoing physical and psychiatric injuries may satisfy the requirement of significant injury.

Where you are unsure about the seriousness of your injury, do not rely on your own assessment or that of your local doctor. Consider consulting with an expert personal injuries lawyer to provide you with advice about your rights to sue. They may arrange for you to be assessed by an expert doctor.

Victims of Crime

If you can establish on the balance of probabilities that the acts of the police officers who injured you amounted to “an act of violence” as defined in the Victims of Crime Assistance Tribunal Act1996 (Vic), you may be able to pursue an award of “victims of crime assistance”. The awarding of assistance is administered by the Victims of Crime Assistance Tribunal.

To obtain claim forms, contact:

Victims of Crime Assistance Tribunal Principal Registry
2nd Floor, 233 William St,
Melbourne Vic 3000
GPO Box 882G
Melbourne 3001
Tel: (03) 9628 7855
Fax: (03) 9628 7853

Timelines for legal action

For assault and battery, negligence and misfeasance claims for compensation you must start formal legal proceedings by filing a writ in a court within three years of sustaining the injury. If you are an infant or suffer a disability, the time period is six years. For a victim of crime application you must submit a claim form within two years of the crime.

If you do not file the claims within these deadlines you may lose your right to pursue compensation. Only in some very limited circumstances will courts extend the applicable time limit.

Legal threats silencing activists

It is becoming increasingly common in Australia for people who are speaking out about an issue to receive direct or indirect threats of legal action. These threats could be a letter from a developer, or public official or corporate director threatening to sue for defamation or from a legal firm threatening some form of legal action.

People who have written letters to their local paper about a development project, published books or produced reports, leaflets or posters, or made public statements, have received legal threats. The authors of books, websites and even student theses can be targeted. Corporations with massive resources will often respond to criticism by issuing legal threats against volunteer community groups or individuals.

In the United States these types of legal threats have been called “SLAPPs” (Strategic Litigation Against Public Participation) as they have the effect of hindering or discouraging public campaigning.

According to Free Speech Victoria,

”The most insidious form of censorship that is widely practised in Australia today is the use and abuse of the defamation laws and the threat of libel actions.”

Legal threats, even if they do not have much prospect of ever making it to court, can deter people participating on an issue, they can have a ‘chill effect' on other people getting involved and can tie campaigns up in costly legal advice and proceedings. Some industry groups and governments will press for repressive laws or use the threat of claims for damages, inquiries or existing regulations in an attempt to stifle direct action protests.

Most legal threats are just threats in the forms of official letters or public statements. They commonly use the law of defamation, common law torts or refer to the Australian Consumer Law (the old Trade Practices Act 1974 (Cth)) as a part of the threat. Only a tiny percentage of legal threats ever go to court and there are also plenty of cases of a legal threat backfiring on a company by increasing the profile of a campaign and building support for the activists.

The structure of an organisation can help determine its exposure to civil liability (being sued).

Responding to legal threats

There are a series of steps activist groups can take to deter or respond to such threats.

For detailed information:

Download a copy of “How to Face Legal Threats: A Resource Kit for Activists” which can be found at Environment Defenders Office Victoria.

The Communications Law Centre (CLC) is an independent, non-profit, public interest organisation specialising in media, communications and online law and policy. The centre conducts research, teaching, public education and legal advice.

Another useful guide is Be Careful – Not Silent: A Bush Lawyer's Guide to Avoiding and Surviving Defamation Claims A Guide for Community Political Activists by Dr Greg Ogle.

One of the best websites for support and information is the Suppression of Dissent site. This site contains an interesting article on Defamation and Free Speech.

Get a copy of the ABC Media Handbook (from your local ABC Store). This is the best, most easily understandable guide to defamation law.

The Parliament Of Australia website has a detailed list of Communications Law.

Go to Issues for activist groups (legal structures) for information about how best to structure your organisation.

Also see Case Study - The Gunns 20

 

Issues for activist groups

Legal structures

Legal structure is usually last on the minds of most activists. In fact, you or your organisation may never wish to consider the legal implications of how you structure your organisation because you are opposed to formal structures, strictures and controls in the first place.

However, considering the legal and practical implications of how to structure an activist organisation can be very important to the success of a campaign, the survival of your organisation, or the survival of its members.

While a lot of activism (and sometimes the very best activism) occurs on a very informal basis and between loose networks of people with common interests, often such informal activity can be the beginning of something that requires greater organisation. In selecting a structure for the organisation you should consider at least five key things: function, control, money, protection against civil liability, and insurance.

As a first step in considering the structural needs of your organisation, you may also want to check out the 'Getting Started' section of the PilchConnect website www.pilch.org.au or Our Community www.ourcommunity.com.au both of  which have loads of great information for not-for-profit organisations at the starting out stage.

Function

If your group is going to be effective in what it seeks to achieve, don't choose an off-the-shelf process that does not suit the members, or the objectives of the group. Whether you form an affinity group, informal association, collective, co-operative, incorporated association, or corporation, don't choose a structure that you're not committed to, or that you are not sure you can follow through on, long term.

With this rule in mind, you will be able to consider the following questions with much more clarity:

  • Who can be a member of the group - why are you including some and excluding others?
  • How does the group make decisions - what do you do when there is disagreement?
  • How are meetings conducted - will it have an agenda, facilitator and minute taker?
  • If you need expert help, should such help be co-opted into your group, or consulted as an advisor, or be part of a reference group or steering committee?
  • What are the ground rules of communication between members - is there a clear conflict resolution process in place?
  • Does the constitution of the organisation honestly reflect its real objectives, or is it a "sham" devised to attract, say, tax concessions?
  • Can the organisation honestly follow its own rules and constitution - or does it run a parallel system of governance beside the 'legal' one?

Control

Ensuring that the group controls its resources and who speaks or acts on its behalf is a major reason to organise. A group should clearly identify responsibility and have clear guidelines for who;

  • says what, when and to whom;
  • can act or speak so as to legally bind members; and
  • is responsible for spending money, making contracts and financial commitments, and meeting legal obligations (and whether they have the information and competence to do so in a way that does not break the law or expose the group to penalties).

A group should also ensure that there is a clear understanding that the objects and philosophy can have implications for the financial dealings of the group. This clarity enables groups to more effectively consider questions like:

  • whether to accept money from particular sources (government, tobacco companies, gaming companies, corporations that operate unethically in developing countries etc);
  • what investments are appropriate - high risk, higher potential return, ethical investments etc; and/or
  • whether to pay members or associates for their services.

Money

When thinking about money and your organisation, some of the key questions include:

  • What accountability systems are in place?
  •  Who controls the money?
  •  Whether to fundraise, and if so, whether registration is required
  •  Ability to seek deductible gift recipient status and/or other tax exemptions
  •  GST implications
  •  Laws regulating fundraising activities in each State and Territory

The structure that your organisation chooses can affect its tax status, the duties that it owes to members/supporters, and how it transacts business.

Having an unincorporated loosely structured organisation may mean that individuals who represent the interests of the organisation in business dealings may be held personally financially liable for the group’s actions. For example, if you intend to raise donations, the money could be considered income in the hands of group members and may attract personal income tax.

Alternatively, if the group is incorporated, it could be characterised as income of a non-profit organisation that may or may not attract tax.

Having a very loosely structured organisation may also mean that the public and businesses are reluctant to deal with your organisation because they are not willing to take the perceived risk.

Civil liability protection

Whether an organisation is incorporated will determine its exposure to civil liability (that is, being sued). Some groups may remain unincorporated, which means that if something goes wrong, an individual representing the organisation will need to be prepared to accept legal responsibility for anything the group does (or fails to do).  However if you establish a formal structure (incorporate), this creates an artificial ‘legal person'. Incorporated companies and incorporated associations are examples of such structures, however the board members of these entities can still be personally liable in some instances.

For a discussion on legal structures and the decision on whether to incorporate, check out the 'Getting Started' section of the PilchConnect website www.pilch.org.au.

The Wrongs Act 1958 (Vic) provides some protection from liability for volunteers undertaking community work (as defined in the Act) by transferring liability to the community group organising the work in some circumstances.

Unincorporated associations

An unincorporated association is not really recognised by the legal system. Such entities are the result of people who share a common lawful purpose simply agreeing to further their interests by collective action without incorporating under legislation, or falling within the definition of a partnership. Some small recreational, sporting and special interest clubs and societies are structured in this way.

The important features of an unincorporated association are that it:

  • Has a common lawful purpose (but not for financial advantage)
  • Has a set of rules setting out things like its name, purpose, eligibility for membership and the like. Having a set of rules is not mandatory, but can be a very wise thing
  • Operates through a private agreement between members, by consent (not a contract)

Some unincorporated associations rely on membership subscriptions and fees to fund their activities, while others rely on contributions, donations or raised funds.

A major reason for not using an unincorporated association as the chosen method of organisation is the risk of direct civil liability for the members of the group. An unincorporated association cannot take responsibility for this liability as distinct from its members. Instead, each member of the association, or in some cases, each member of its committee of management (if any), carries the liability jointly and severally (where all of the members are liable in part, or, any one or more of the members are liable for the whole). In addition to this major limitation, an unincorporated association may find that it is difficult to:

  • Get tax concessions
  • Enter into contracts in it’s own name
  • Raise philanthropic or other gifts
  • Deal with assets equitably and easily because they are common property, not in the ownership of the association

For further information on unincorporated groups check out the 'Getting Started' section of the PilchConnect website www.pilch.org.au.

Incorporation

Incorporating as a registered not-for-profit company or an incorporated association has a range of legal benefits. Such an entity is able to sue and be sued, to borrow money, to enter contracts of insurance, to open and operate bank accounts, to own, hire, rent and sell property, commit wrongs and complain of wrongs done to it. Its officers are subject to a range of statutory duties and responsibilities which, if breached, can have serious consequences. Whether an organisation is a ‘not-for-profit’ organisation is determined by what it does with any profit it makes. Not-for-profit does not mean that the organisation is not allowed to make a profit but rather that the profits it makes are not distributed to the individual members of the organisation while the organisation is in operation or when it ends. Instead, any profit that the organisation makes must be used to further the purposes of the organisation.

The three most common forms of incorporation for non-profit groups are:

  • Co-operative
  • Incorporated association
  • Company limited by guarantee

These legal structures are discussed in more detail below. For further details on the different types of non-profit legal structures, check out the ‘Getting Started’ and ‘Choosing the right incorporated legal structure’ section of the PilchConnect website www.pilch.org.au.

Co-operatives

Co-operatives are organisations concerned with providing for the common needs of their members. They operate in Victoria under the Co-operatives Act 1996(Vic) (the Act) and the Commonwealth Corporations Law and are regulated by Consumer Affairs Victoria (CAV). CAV keeps a public register of co-operatives, authorises registration and enforces the Act. A group incorporated under the Act can operate (that is, carry on its activities) in Victoria

A co-operative is an organisation that is concerned with providing for the needs of its members. It is run according to the co-operative principle of one member, one vote and is set up for the mutual benefit of members.  

Co-operative values include:

  • All co-operative members have equal status – that is, one member one vote
  • No member can hold more than 20% of the shares
  • All active members can nominate as directors and elect directors
  • Capital is used to run an activity rather than being invested for an individual's benefit

A co-operative may be either a trading or non-trading co-operative:

  • A trading co-operative must have share capital and at least five active members. It can distribute part of the surplus of the co-operative to members by way of bonus shares, dividends or rebates
  • A non-trading co-operative must have at least five active members, but must not distribute any surplus to members. It may or may not issue shares to members

Directors of co-operatives need to be aware that:

A co-operative is a legal 'person' and its directors and officers hold responsibilities similar to those of a trustee of a personal estate, or a director of a company

  • Directors should familiarise themselves with the Co-operatives Principles, as outlined in the Co-operatives Act 1996 (Vic)
  • Directors must disclose any possible conflict of interest with their duties as directors
  • Directors must not allow the co-operative to incur further debt if they believe it would become insolvent by doing so
  • Directors must keep accurate and fair accounts and records and take responsibility for financial statements prepared for members

Co-operatives are a more formal type of incorporation than associations and are more related to the conduct of a business activity though, unlike a company, the main purpose is not to generate profit for its members, but to advance the co-operative's activities.  Making a profit is not the main aim of a co-operative, but they must adhere to the usual rules of business to achieve sound business outcomes and fair management. 

A co-operative is a body with separate legal status from its members (it can purchase property, sue and be sued etc). Generally, a member of a co-operative is not under any personal liability to the co-operative, except that:

  • A member of a co-operative with a share capital is liable to the co-operative for the amount, if any, unpaid on the shares held by the member together with any charges payable by the member to the co-operative as required by the rules of the co-operative
  • A member of a co-operative without a share capital is liable to the co-operative for any charges payable by the member to the co-operative as required by the rules of the co-operative

However, the limitation on personal liability of members, particularly directors of co-operatives will depend on the specific actions of the individuals, and whether they have acted appropriately.

Detailed information about running a co-operative and the rules by which different types of co-operatives can operate can be obtained on the CAV website here: http://www.consumer.vic.gov.au/businesses/registered-businesses/co-operatives

Note: A nationally uniform set of laws for co-operatives has been developed for all states and territories. The law must be adopted by each jurisdiction before it can operate there. Victoria has passed legislation, the Co-operatives National Law Application Act 2013 (Vic), which is yet to commence. It is expected to come into operation in Victoria around May 2014.

Incorporated associations

Non-profit associations can be incorporated as ‘incorporated associations’ under legislation in each state.  In Victoria, incorporated associations are governed by the Association Incorporation Reform Act 2012 (Vic) and regulated by Consumer Affairs Victoria.

Incorporated associations are usually small bodies of people, clubs, etc that wish to gain legal status (in order to purchase property in the name of the club, enter into contracts, sue and be sued, etc). Incorporation offers some protection for the organisation's office holders from the debt and liabilities incurred by the association (except where an officeholder acts in breach of his or her legal duties). Incorporation is voluntary, and once incorporated the Associations Incorporation Reform Act provides a standard for operation.

The rules of an incorporated association have to conform to minimum legal requirements about membership, management, meetings etc in line with the Associations Incorporation Reform Act and Regulations.

At least five people are necessary to form an incorporated association. The advantages of incorporated associations are:

  • Simplicity - incorporation requires authorisation by its members, and application for registration by a representative
  • Model Rules - model rules maintained by Consumer Affairs Victoria can, with care, be adopted without the trouble of drafting your own rules, although if you will be seeking tax concessions, special provisions will need to be included
  • Legal Personhood - the incorporated association is a legal person and therefore able to own property, defend and claim rights, and to some extent protect the members who are generally not liable for its debts and liabilities
  • Except as provided under the Associations Incorporation Reform Act 2012 (Vic), or the particular rules of an incorporated association, a member of the committee, the public officer or a member of the incorporated association shall not, by reason only of membership, be liable to contribute towards the payment of the debts and liabilities of the incorporated association or the costs, charges and expenses of the winding up of the incorporated association.

Because incorporated associations are State-based, if your group intends to conduct substantive activities in other jurisdictions, it should be registered with ASIC as an Australian Registered Business under the Corporations Act 2001 (Cth) – or you may wish to change the structure to a Company Limited by Guarantee (see below). It may also be required to obtain separate fundraising registration if it conducts fundraising activities.

For further information on Victorian incorporated associations, including details on how to set one up, contact Consumer Affairs Victoria or check out the 'Getting Started' and ‘Incorporating as an Incorporated Association’ sections of the PilchConnect website www.pilch.org.au.

Registered companies or corporations

A company limited by guarantee (CLG) is another type of incorporated legal structure formed under the Corporations Act 2001 (Cth).

Almost all not-for-profit companies are companies limited by guarantee. Their members guarantee to pay a small amount (say, up to $100) towards the debts of the company on its winding up. A CLG can operate anywhere in Australia and must have at least three directors

The main features of a CLG are:

  • It is a separate legal entity, with an existence distinct from its members
  • If there is a dispute; the corporation is the person that must act to resolve it. The corporation must defend or enforce its rights (though a court can sometimes look behind the ‘corporate veil' to trace the individuals behind the company)
  • Liability of members can be limited - though this also can be set aside
  • The company name and Australian Company Number or its Australian Business Number should appear on all public documents (eg. letters, invoices, orders, notices and cheques)
  • It must use the word ‘Limited’ or ‘Ltd’ after its name (although charities with unpaid directors can apply for an exemption from this requirement
  • Directors have legal governance duties they must comply with (set out in the Corporations Act or the Australian Charity and Not-for-profit Commission Act for directors of charities)

Generally speaking, the regime for incorporated associations under the Victorian Associations Incorporation Reform Act is more straightforward than the regime for CLGs under the Commonwealth Corporations Act. However, recent changes to the laws for both incorporated associations and CLGs registered as charities mean that the arguments for choosing to incorporate as an association over a CLG are no longer as compelling.

Despite this, it is crucial that a group which is going to incorporate as a CLG understands, and is able to comply with, the law and timeframes for lodging various documents with ASIC (and the ACNC for charities). The Corporations Act that governs CLGs is long and complex. If you wish to incorporate as a CLG, your group will need help from a person who has a good understanding of running a company, or access to professional legal or accounting advice. There are some basic fact sheets and resources published by ASIC and through PilchConnect.

CLGs that are registered as charities have different and less complex obligations under the Australian Charities and Not-for-profit Commission Act(ACNC Act), and reporting fees are also lower (waived entirely in many cases) than were previously required to be paid to ASIC, which has made it a more attractive structure. 

For more information about becoming a charity see the information on charitable status below or go to the ACNC website. For more information about CLGs, visit the ASIC website, or check out the 'Getting Started' and 'Incorporating as a CLG’ sections of the PilchConnect website www.pilch.org.au.

Charitable status

A charity is an entity established for altruistic purposes that the law regards as charitable. Having charitable status can entitle an entity to certain tax benefits.

 The Australian Charities and Not-for-profit Commission (ACNC)) currently registers and regulates charities. Charities include most religious institutions, aged persons homes, homeless hostels, organisations relieving the special needs of people with disabilities and organisations that promote culture or environment protection.

The characteristics of a charity are:

  • It is an entity (corporation, unincorporated association, trust or partnership) that is also a trust fund or an institution
  • It exists for the public benefit or the relief of poverty
  • Its sole purposes are charitable within the legal sense of that term, and
  • It is non-profit

It is important to note that purposes that are illegal or against public policy are considered ‘disqualifying purposes’ under the new Charities Act 2013, and organisations with those purposes will be ineligible for charitable status. For more information on disqualifying purposes contact the ACNC. If you wish to qualify as a charity, or want to know more about the process, you can contact the ACNC on 13 ACNC (13 22 62), or visit the website at www.acnc.gov.au.

Income tax

Tax-exempt status

The income tax law provides that certain types of charities and non-profit clubs, societies and associations are exempt from paying income tax. Generally, this exemption is not automatic.  There is an endorsement process for charities and certain tax-exempt funds. There is also the option for some non-profit organisations to self-assess their income tax exemption, but in practice it is always desirable that you seek ATO approval for your exemption so as to minimise the risk of penalties etc.

Generally exemptions apply to:

  • Charities, which need to be registered with the Australian Charities and Not-for-Profit Commission, and then endorsed by the ATO
  • Community service organisations
  • Other categories of organisations specified in the Income Tax Assessment Act, for example:
  • employer/employee associations and trade unions;
  • public hospitals, not-for-profit hospitals and not-for-profit medical and hospital benefit entities;
  • not-for-profit societies or associations established to promote the development of primary and secondary resources and tourism; and
  • societies, associations or clubs established for the encouragement of animal racing, art, a game or sport, literature, or music.

If you are income tax exempt you do not need to pay income tax or lodge income tax returns (unless specifically requested).

To find out more about income tax exemption or the processes for being exempt, contact the Australian Charities and Not-for-profit Commission on 1322 62 or the ATO on 1300 130 248.

DGR status

Certain non-profit organisations are eligible for endorsement as deductible gift recipients (DGR). A DGR-endorsed fund or organisation can receive tax-deductible gifts. Being a DGR may mean that your organisation is more attractive to people who want to support you financially. The income tax law determines which types of organisations or funds can qualify for DGR status. 

Some DGRs are listed by name in the income tax law. They include organisations like Landcare Australia Limited, Amnesty International Australia, and the Australian Academy of Science. For other organisations to be DGRs, they must fall within one of a number of categories set out in the income tax law. Examples include public benevolent institutions, public universities, public hospitals and school building funds.

All organisations claiming DGR status (except those listed by name in the income tax law or regulations) need to be endorsed by the Tax Office. If an organisation is not endorsed donors cannot claim income tax deductions for their donations. As well as falling within a specified DGR category, your organisation needs to:

  • Have an Australian Business Number
  • Have acceptable rules dealing with transfer of assets upon winding up
  • Be in Australia (with some exceptions)

Some DGR categories require an organisation to maintain a public fund.

For further information about DGR categories and the endorsement process for obtaining DGR status, contact the Australian Charities and Not-for-profit Commission www.acnc.gov.au or the ATO www.ato.gov.au.

If you believe you are entitled to be endorsed as a DGR, you should apply to the ACNC or the Australian Tax Office.

GST

If your non-profit organisation is registered (or required to be registered) for GST, any money your organisation makes from a taxable sale will be subject to GST unless the funds are a genuine gift to your organisation. Your organisation makes a taxable sale if it is registered (or required to be registered) for GST and:

  • you receive payment for the sale
  • you make the sale in the course or furtherance of your activities
  • the sale is connected with Australia; and
  • the sale is not GST-free or input taxed.

Your organisation must be registered for GST if its annual turnover is $150,000 or more. If your organisation is a charity, gift deductible entity or government school, you may make GST free sales, including:

  • the sale of donated second-hand goods;
  • the sale of tickets to a raffle or bingo in accordance with Victorian law; or
  • by treating any sales connected with your fundraising event as input taxed.

However, if you treat sales as input taxed, while the funds raised will not be subject to GST, you will not be able to claim credits for the GST in any purchases connected with the event.

For more information about how GST impacts your organisation contact the Australian Tax Office on 1300 130 248 or check out the ATO’s guide Tax basics for non-profit organisations at www.ato.gov.au/Non-profit.

Fringe Benefits Tax

FBT is payable by an employer who provides fringe benefits to its employees or their associates. FBT is payable at a flat rate of, in effect, 48.5% of the value of the benefits, but many non-profit organisations are entitled to a rebate on the rate of tax, and a limited number of organisations are exempt from FBT altogether. It is imposed even if your organisation is exempt from income tax.

For more information about how FBT may impact your organisation contact the Australian Tax Office on 1300 130 248 or check out the ATO website, or the PilchConnect page on FBT .

Regulations for fundraising

Fundraising in Victoria is regulated by Consumer Affairs Victoria (CAV) and the Fundraising Act 1998 (Vic).

The Fundraising Act 1998 defines a fundraiser as any person or organisation, including a business, that collects money for a beneficiary, cause or thing, rather than solely for their own profit or commercial benefit. Generally a fundraising activity is an activity which:

  • targets the public (ie. people outside your organisation)
  • seeks money or other benefits, such as goods or services (eg. food, clothes)
  • involves asking for money or a  benefit not solely for profit or commercial benefit.

Fundraising appeals include things like door-knock appeals, telemarketing, traffic intersection/highway collections, appeals run by commercial fundraisers, public appeals to support a club, association or an environmental or community cause, public appeals to support a cause or person or group of persons, or the selling of goods where portions of the sale price are donated to a charitable organisation or cause.

Unless exempted from registration, anyone wishing to conduct a fundraising appeal is required to register with CAV before the fundraising commences. The purpose of the registration scheme is to protect consumers by helping to ensure fundraising is transparent and that people are aware of how and where their money is spent.

CAV maintains an on-line public register that is a list of all currently registered fundraisers. The register enables members of the public to determine whether or not a fundraiser they are considering donating to has applied for and received registration. It contains certain information about each registered fundraiser, including details of how to contact them.

Exemptions from registration

Some fundraisers are exempt from the need to register with CAV and some organisations are exempted by the Fundraising Act 1998 (Vic).

There is a general exemption from registration for groups that raise less than $10,000 (gross or total amounts before deductions and tax) in a financial year and use unpaid volunteers. There are other categories of exempt organisations, which are listed on the CAV website. Relevantly, they include political parties registered under the Victorian and Commonwealth Electoral Acts, trade unions, schools and tertiary education providers.

Organisations that undertake only the following activities are not required to register:

  • Raffles, lotteries or other gaming activities authorised or permitted under the Gambling Regulation Act 2003 (raffles and bingo require a separate permit from the Victorian Commission for Gambling Regulation website)
  • Asking a person to pay a fee to become a member of an organisation
  • Fundraising that takes place within an organisation and is targeted at past and present members and their relatives (rather than the general public), even if the fundraising is for an outside cause
  • Fundraising in the workplace for the benefit of an employee or his or her close family
  • Receiving grants from a government body
  • Receiving sponsorships from commercial organisations (such as corporations, partnerships or trusts) permitted to donate money or benefits to charity
  • Memorial gifts (such as donations in lieu of flowers being sent to a funeral).

However it is important to remember that being an exempt organisation exempts you from registration as a ‘fundraiser’ with CAV only. Exempt organisations are still required to comply with the other obligations related to the fundraising activity eg, to keep accurate financial records. If you are unclear as to whether your organisation or activity is exempt from the need to register in Victoria, you should contact CAV on 1300 55 81 81 or visit Consumer Affairs Victoria website.

Process for registration

You can register by completing an Application for Fundraiser Registration form. Registration is free. If you have to register, you must do so at least 28 days before you propose to commence fundraising. It is an offence to conduct a fundraising appeal unless you are registered or exempt from the need to be registered. Conditions may be imposed on your registration. For example, you may be required to ensure that a specified percentage of the appeal proceeds are distributed to the appeal beneficiaries.

As fundraising regulation is State-based, if you intend to raise money in other States or Territories then you may also need to register as a fundraiser in those jurisdictions.

Other permissions necessary to fundraise

Depending on the type of fundraising activity, you may also need to obtain permission from other organisations.

Appeals which require permission are:

  • Door knock appeals - you will require permission from the local council of the area in which the door knock is to be conducted
  • Traffic intersection collections (highway collections) - If Consumer Affairs Victoria allows you to conduct highway collections, you will also require permission from the local council of the area in which you are collecting and a highway collection permit from Victoria Police. Highway collection permits are available from the Victoria Police Road Safety Awareness & Information Unit – phone (03) 9247 5779, or go to the Victoria Police website

A separate permit may be required to conduct certain gaming activities such as raffles or bingo. For more information on obligations for holding a raffle or lottery, see the Raffles and Minor Gaming fact sheet on the PilchConnect website or the Victorian Commission for Gambling Regulation website.  

Obligations on fundraisers

There are a range of obligations on fundraisers including the notification of certain changes to your details to CAV, timely banking of funds raised, maintenance and retention of accurate financial records, keeping a separate bank account for funds raised, the distribution of funds raised to nominated beneficiaries, the use of collection containers, the use of identification badges, and the conduct of telephone fundraisers.

For further details on fundraising for Victorian community organisations, including information on registration and exemptions, check out the Fundraising Guide on the PilchConnect website, or contact Consumer Affairs Victoria.

Insurance for NGOs

Insurance is usually one of the last things on the minds of most activists. However, failing to consider the need for insurance can be a big impediment to a campaign because not having it may limit the sort of activities you can undertake. For example, it may be necessary to have public liability insurance to hire a hall, or to hold a function at a local park. You may also require personal accident insurance to protect yourself in the event of a volunteer being injured.

You or your organisation may decide that you do not want insurance because you are philosophically opposed to it. This is fine in terms of being consistent with your function and purpose; however, it can limit your opportunities to undertake certain activities. For a great overview of insurance and risk management issues for community organisations check out the Our Community website.

There are two key ways to arrange insurance cover:

Firstly, your organisation may wish to align with a sympathetic organisation that already has insurance by way of an auspice arrangement. Under such an arrangement, your organisation could potentially benefit from the insurance already held by the other entity.  An auspice arrangement is like a sub-contracting arrangement: the principal organisation pays for insurance coverage for the purpose of certain activities and then sub-contracts with the auspiced organisation to undertake the activity.  Such an arrangement may require establishing a separate entity that offers to undertake the service activity (usually along with other services including auditing your financial affairs, receiving and acquitting grants and the like).  Church groups are a good example of organisations that are sometimes willing to auspice the activities of community groups.

For further information on auspice arrangements, check out the PilchConnect website.

Secondly, your organisation may wish to obtain insurance in its own right. This insurance may include cover for, amongst other things:

  • Public liability:  which will insure the organisation against liability arising from a personal injury and/or property damage claim made by a third party.
  • Directors and officers liability: which will insure officers of the organisation (and sometimes the organisation itself) in relation to potential liability arising from a wrongful act done by an officer.
  • Personal accident (volunteer) liability: which will insure members and volunteers of the organisation against liability arising from an accidental injury, disability or death which occurs while the member/volunteer is doing work for the community organisation.
  • Fraud: which will insure the organisation against the misappropriation of funds and/or property by employees or officers of the organisation.

There are various insurance providers that offer insurance cover to not-for-profit organisations, including:

  • The Community Care Alliance of NRMA, and
  • Allianz and QBE (insurance providers) provide public liability insurance for activities including community events, community centres and home care. It is now up and running and you can obtain a quotation at the Community Care Underwriting Agency website.

Community Groups Insurance 'Scheme A' public liability scheme has been developed by the Municipal Association of Victoria (MAV) to provide affordable public and product liability cover to not-for-profit community organisations (NPOs). The scheme was developed as a response by local government to increases in premiums for NPOs.

The scheme indemnifies a not-for-profit organisation against legal liability for personal injury and/or property damage claims made by third parties as a result of negligence occurring in connection with the NPO's activities and/or their products (goods sold). Two levels of cover are available: $5 million and $10 million, with a standard excess of $1,000 for each and every claim.

Before choosing an insurance policy, you should carefully examine the terms and conditions for exclusions and restrictions.  Further information on insurance and risk management for Victorian community organisations can be found in the Getting Started section of the PilchConnect website.

Impact of criminal record

If you are thinking about risking arrest or have recently been charged, you may be interested in how a possible charge or conviction could affect you in the future.

Having a criminal record may affect you in two key ways. First, a criminal record can be accessed by the Police in investigating future criminal activity and relied on in subsequent criminal proceedings against you. Second, it may appear on an official police record requested by you. It is the second of these circumstances that attract the most queries.

Police record checks

In Victoria, the release of your police record is governed by Victoria Police policy. You can find this on the Victoria Police website at http://www.police.vic.gov.a [1]

Victoria Police does not release information about a person's police record to any organisation outside the sphere of law enforcement and the administration of justice without the subject's consent.

Victoria Police releases criminal history information on the basis of findings of guilt regardless of whether or not a conviction is recorded. Victoria Police releases police records in accordance with any or all of the following guidelines:

  • If the individual was an adult (seventeen years or over) when last found guilty of an offence and ten years have elapsed, no details of previous offences will be released
  • If the individual was a child (under seventeen years) when last found guilty of an offence and five years have elapsed, no details of previous offences will be released. (Exception: court orders on care/protection applications will not be released regardless of the age of the order)
  • If the last finding of guilt resulted in a non-custodial sentence or a custodial sentence of 30 months or less, the ten or five-year period commences from the day the individual was found guilty
  • If the last finding of guilt is an appeal or re-hearing the ten or five year period will be calculated from the original court date
  • If the last offence qualifies to be released, then all findings of guilt will be released, including juvenile offences
  • If the record contains an offence that resulted in a custodial sentence of longer than 30 months the offence will always be released. If 10 years have elapsed since the last finding of guilt, then only the offence(s) that resulted in a custodial sentence of longer than 30 months will be released. (Information Release Policy, Victoria Police, 2004)

Findings of guilt without conviction, good behaviour bonds, outstanding charges and traffic matters

Findings of guilt without conviction and findings resulting in a good behaviour bond are considered to be findings of guilt and will be released under Victoria Police policy. If the check shows that the individual has been charged with offences, or is under investigation regarding outstanding matters that have not yet been heard at court, Victoria Police will release details of the charges or pending matters and state that they are yet to be determined at court. Victoria Police only releases traffic offences where the court outcome was imprisonment or detention.

Exceptions

There are some circumstances where a record that is over ten years old may be released. These are:

  • If the record includes a term of imprisonment longer than thirty months
  • If the record includes a serious offence of violence or a sex offence and the records check is for the purposes of employment or voluntary work with children, elderly, disabled or vulnerable people
  • If the records check is for the purposes of employment in prisons, state or territory police forces or the gaming industry
  • In other exceptional circumstances where the release of older information is in the interests of crime prevention, the administration of justice or public safety

The following information concerning the release of police records in Victoria is repeated verbatim from the information release policy.

Offences outside Victoria

Where a police record with another Australian police force has been obtained, any relevant legislation (and/or release policy) affecting that police force will be applied (including Victoria Police's 'Information Release Policy') before it is released.

Under various pieces of Commonwealth, State and Territory legislation a person has the right, in particular circumstances or for a particular purpose, to not disclose certain convictions (eg findings of guilt over a certain age). Such convictions (widely referred to as 'spent' or 'rehabilitated' convictions) will not be released unless the records check is for the applicant's personal information only and providing that this is in accordance with relevant legislation (and/or release policy). Please contact individual police jurisdictions directly for further information about their release policies and legislation.

Employment

Will a criminal record hurt my job prospects?

Some people put details of their activism proudly on their resumes as a demonstration of their conviction and concern. This can also allow them to explain and clarify the conviction of 'trespass', for instance, before it appears on a police records check. Others do not wish to disclose details of a criminal record for fear that it will limit their opportunities in the future. Generally, it is unlikely that a criminal conviction for a minor offence will automatically be a bar to employment. It will usually be assessed by the employer and considered according to the individual circumstances of the case. Unfortunately there are, however, cases of discrimination based on a person's criminal record. Although there is only limited protection available to people who have been treated unfairly on the basis of having a criminal record, if you think you have been treated unfairly, you may have a remedy and should seek legal advice.

The law concerning the rights of employers to enquire as to the criminal histories of prospective employees is uncertain. However, as a general rule an employee will be under a duty to respond honestly if an employer asks a specific question about a criminal history and that question and the criminal history are relevant to the employment. On the other hand, if there is no connection between the duties to be performed, the employer's question and the employee's criminal history, then an employee is entitled to refuse to answer.

If an employer does ask about your criminal history you have to decide whether to disclose it. A failure to disclose may backfire if contradictory information appears on your police check.

Note that once you are employed an employer does not have a general right to enquire as to your criminal status, unless your employment is subject to regulations or a contract requiring ongoing disclosure.

The law allows you to withhold information about old convictions except in certain circumstances. The law is different for Commonwealth and State offences.

Commonwealth offences

Part VIIC of the Crimes Act1914 (Cth) provides that where a conviction for an offence has been pardoned, quashed or spent, the person is:

  • Taken to have never been convicted of the offence; and
  • not required to disclose the fact that they were charged with or convicted of the offence

This right of non-disclosure of spent convictions applies to the disclosure of information “to any person, for any purpose” and, therefore, will apply to requests for information made by an employer to an applicant during the recruitment process.

A person's conviction becomes “spent” if they have been granted a pardon, or they were not sentenced to imprisonment for more than 30 months and the relevant “waiting period” has expired. The waiting period is 5 years from the date of conviction if the person was treated as a juvenile in relation to the offence, or 10 years in all other cases. If a person is convicted summarily of another offence which was committed during a waiting period, the court may order that the first conviction not become spent until the waiting period for the later conviction has ended. Where the later conviction is by indictment (a serious criminal matter), the court has no discretion in relation to the treatment of the earlier conviction - it will not become spent until the waiting period for the later conviction has expired.

The right of non-disclosure does not apply in certain circumstances. These exclusions are listed in Division 6 of Part VIIC and Regulation 8(1) of the Crimes Regulations1990, and include, for example:

  • Prospective employees or members or law enforcement agencies and intelligence security agencies
  • Bodies involved in the care, instruction or supervision of minors, for the purpose of finding out whether a prospective employee has been convicted of a “designated offence” (namely a sexual offence or any other offence against a person who was under 18 at the time the offence was committed)
  • Convictions for designated offences for the purpose of assessing the suitability of a person for certain positions with the Australian Defence Force
  • Convictions for offences involving violence for prison administration positions

Victorian state law

It is not clear in Victoria that a person does not have to disclose the fact that they were charged with or convicted of a State offence if that offence is not disclosed on a Victoria Police check. As a general rule you need not disclose such matters. If you are discriminated against because you have not disclosed a matter under these circumstances, you should seek legal advice.

Employment in the public service

Criminal record checks for jobs advertised as "public sector positions" are covered by specific recruitment guidelines. The guidelines say that checks should only be performed on the people who are to be offered jobs. Generally, checks for convictions, other than sexual convictions, will only go back 10 years, but the guidelines do not explicitly state this. Minor offences more than 10 years old may be treated as spent convictions.

The guidelines suggest that people be given an opportunity to discuss any conviction, usually with the human resources manager of the department, before a final decision about employment is made. The department should consider a number of circumstances, including the age of the conviction, your age at the time, number of convictions, the sentence imposed by the court and any extenuating circumstances. The main thing for your potential employer to consider is whether the criminal record is relevant to your employment.

Holding public offices

Having a criminal record may impact on your ability to hold a public office, as set out below:

Local councils

In Victoria a person is disqualified from becoming or remaining as a Councillor if they have been convicted of an offence committed when they were 18 or more years of age which is punishable upon first conviction for a term of imprisonment of 5 years or more anywhere in Australia. The disqualification lasts for seven years. (Section 28, Local Government Act 1989 Vic)

State Parliament

Under the Victorian Constitution, any person who, when over 18 has been convicted of an indictable offence (a serious crime) which is punishable by more than 5 years imprisonment may be disqualified from holding a seat as a member of State Parliament.

Most convictions arising out of nonviolent actions are not indictable, but you should check with a lawyer if you face a conviction which might exclude you.

Federal Parliament

The Commonwealth Constitution states that persons convicted of offences which are punishable by one year of imprisonment or longer cannot hold a seat in Federal Parliament. This refers to the maximum sentence, not the sentence you may have received - so if you were convicted of a crime that has a maximum sentence of 2 years imprisonment, but were just ordered to pay a fine, you may still be ineligible.

Defence Forces

The Defence Forces require you to declare any criminal record. They also check your record. The Defence Forces do not have a blanket policy of not employing people with criminal records. However, they may decide not to offer you employment on the basis of your criminal record if they deem it appropriate to do so.

Solicitors & barristers

In order to be admitted to practice, you have to establish that you are of "good fame and character" and should disclose any information that may bear on this point, such as criminal convictions. It is highly recommended that you disclose spent convictions, as failure to disclose such information could be interpreted as misleading and tending to show that you are not of “good fame and character”.

Whilst some people have been admitted to practice despite their criminal record, others have been refused admittance because of it. Where a legal practitioner commits a criminal offence in his or her personal capacity, the offence may be characterised as professional misconduct if it indicates that the offender is unfit to practice. (For more information you can Contact the Law Institute of Victoria or the Board of Examiners for Legal Practitioners).

Registration of professionals

Medical practitioners, social workers and psychiatrists, nurses, dentists and optometrists, as well as other professionals, have to be registered, and the registration board may refuse to register, or may revoke the registration of, a person who has been convicted of a felony or misdemeanor, or who is not of good character.

Jury service

A person is disqualified from jury service if he or she:

  • Has ever committed an offence carrying life imprisonment
  • Has in the last 10 years been detained in an institution or imprisoned
  • Has in the last 5 years been detained in a juvenile institution
  • Has been put on a recognisance to be of good behaviour
  • Is currently subject to a court order, bail parole or sentence

If you are unsure about whether you have to disclose a previous criminal record for a job, you should seek legal advice from a lawyer who practises in employment law.

Going overseas

Some countries require you to disclose any past arrests or convictions on visa applications. Laws vary from country to country, and you should call the relevant consulate or embassy to find out the approach taken to convictions by each particular country. Two examples are as follows:

United States

After 2001, the United States passed new laws that affected some aspects of the non-immigrant visa process and entry - exit procedures. In addition to being satisfied that the applicant intends to honour the terms of the visa by returning home, the consular officer must evaluate the security risk presented by the applicant. Visa applications take longer to process.

Application forms for US tourist or work visas ask the applicant whether he or she has ever been arrested for an offence, even if pardoned or the subject of an amnesty. When applying for your visa you must declare your criminal record and state the date of the offence, the wording of the charge and the punishment. Every application is assessed on its own merits.

The Embassy usually overlooks "misdemeanors" (similar to our summary offences). To get more information contact the US Embassy or go to the Destination USA website.

United Kingdom

Australian citizens with or without criminal convictions can enter the UK without applying for a visa if they are planning to stay for less than 6 months.

If you are applying for a visa (called an Entry Clearance Certificate) for longer than 6 months you must declare your criminal record and provide documentation regarding the conviction with your application form. An Examiner, who decides whether a visa will be granted, then assesses your application.

Minor offences that have only attracted a fine will usually be overlooked. If you have spent 6–30 months in jail, you will have to wait until your conviction is spent before you can enter the UK. For more information contact the British Consulate General in Canberra on Tel: 1902 941 555.

Approaching the court

Going to court can be a daunting, or invigorating, experience. The nature of the court system is intimidating and can be isolating for activists.

However, going into court with an understanding of what to expect, coupled with knowledge of why you're there, can make it a politically effective part of the campaign.

The legal system is a complex array of courts, state and federal parliaments with confusing jargon and immense power to change and enforce laws, and imprison, fine or otherwise penalise people.

Contained in this section is some introductory information to help you understand the language and sequence of events involved in a court case.

Also see Strategies for court section.

Court terminology

Following is a short guide to terminology:

Bench clerk

The bench clerk is the person who sits at the bench in front of the magistrate and who calls out the name of the cases as they take their turn to be heard. They also swear in witnesses before they give their evidence.

Committal hearing

A preliminary hearing before a magistrate to decide if the matter should go to trial.

Defendant & accused

In a criminal proceeding, a defendant faces a charge before a magistrate; an accused faces a higher court.

In a civil proceeding, a defendant is the person against whom an action (for compensation or some other remedy) is brought by a plaintiff or complainant.

Expert witness

A highly qualified person in a particular area who is able to give opinion evidence in his or her area of expertise.

Hearing & trial

A hearing is before a magistrate, a trial before a higher court (generally before a jury).

Judge/justice

A judge sits in the County Court, a justice sits in a state's Supreme Court (or in the High Court of Australia).

Magistrate

A magistrate is the person who has control of the court. They will ultimately decide whether the defendant is guilty or not guilty, and where necessary, what is the appropriate penalty as punishment for the offence.

Prosecutor

The prosecutor is the person who conducts the police case in court. They are usually police officers in Magistrates' Court hearings. If the defendant is pleading not guilty, the prosecutor will call police witnesses and other witnesses to give evidence against the defendant. They will also cross-examine the defendant's witnesses. If the defendant is pleading guilty, the prosecutor will give a summary of the circumstances of the charges against the defendant to the magistrate.

Registrar

Registrars are court officials who are responsible for the administration of the courts. If the person charged, or any other person, has any questions about the court process, hearing dates etc, they should contact the registrar.

Statute & common law

Statutes or Acts are laws passed by Parliament. Common law is mostly supplementary to, and interpretative of statutes, and is made by judges through previous court decisions.

Summary & indictable offences

Summary offences are heard by magistrates; indictable offences are more serious and, either the prosecution or the defendant can request to have the charges heard in a trial before a judge and jury in the County Court. Some indictable offences are so serious that they must be heard in the County Court. Most demonstration/activist charges will be heard before a magistrate.

Before court

Facing the court can be a time and resource-consuming exercise. Cases particularly if you are pleading not guilty can drag on for considerable amounts of time. It is vital for you and the campaign to have a long-term commitment to this process.

Support from other campaign/group members, family and friends will make a real difference in how you experience the court process. Because courts operate in relation to individuals, people are made to feel isolated from fellow arrestees and activists. This is a strategy of the legal system. This means a campaign or activist group must be prepared to invest time and resources into supporting those facing the court.

Charge sheets

A charge sheet is issued directly after your arrest or by mail summons. The charge sheet names the offences you allegedly committed and states in what section of which Act they are included. Also included is the name and station of the informant, usually the arresting office. Looking up the Act and reading the full text of the section may reveal defences you could use.

Charges for summary offences cannot be laid more than 12 months after the event (section 26(4) Magistrates' Court Act 1989 (Vic) ).

Information sheets are usually attached to the charge sheet, for example saying that under the Magistrates Court Act 1989 (Vic), you can ask for a copy of any material they intend to use to prosecute you with. By writing and asking, you may receive copies of any video footage or still photos, or access to viewing them.

Visit a court

It can be useful to familiarise yourself with a courtroom before your case is heard. Courts are open to the public. The physical layout of a courtroom can be intimidating and it is a good idea to get used to the space so that when you are in a court setting, you are more comfortable and therefore better able to put forward your case. Also, it allows you to see another case being heard and get a sense of the court process.

Jurisdiction

Many activists find themselves facing the court in a different state or territory from where they live. This can mean travelling great distance for a court appearance that may be adjourned on the day.

This could affect the way you plead (whether guilty or not guilty), as resources, time constraints, work etc may make it difficult for you to travel to court.

Showing up

You should be in court for every hearing. Although sometimes you can arrange to have a lawyer appear for you at a hearing, it is almost always better to be there in person. Statistics show this regarding the changes of success and the penalty imposed.

Your presence shows the court (and the media) that you care about the case and that you are ready to fight. Also, being there ensures that you will have input into decisions and negotiations that come up in court.

If you have a trial, you have to be in court for every day of it. If you miss a scheduled hearing, the judge could issue a warrant. If you have an outstanding warrant for failing to appear in court, and get into any kind of trouble (e.g. your car gets pulled over), you'll probably be arrested.

Judges may accept extreme excuses for missing a hearing, like funerals or medical emergencies. Conflicts with school or work are not acceptable excuses. Medical certificates are no longer deemed adequate; a letter from a hospital confirming hospitalisation will suffice.

The mention date

If you are charged with a less serious offence (summary offences) or certain indictable (serious) offences that are capable of being heard in the Magistrates' Court, the first court date will be a mention.

If you are on bail, you mustattend court on each day that your matter is listed, even if it is only to be adjourned to a later date. If you are on summons, your lawyer may arrange for you not to have to attend court on days where your matter is to be adjourned.

If you or your lawyer has obtained the brief of evidence prior to the mention hearing and it is clear that the charges which have been laid against you are supported by the evidence, your matter may be able to be dealt with on that day as a plea of guilty. This is where the defence lawyer will make a plea in mitigation, putting before the magistrate any matters on your behalf, seeking to mitigate the harshness of any sentence to be imposed.

Your case can be adjourned for a contest mention, at which arguments can be tested and the magistrate may indicate what the likely outcome will be. This may convince you to plead guilty, or convince the prosecutor to drop the charges. The ruling is not binding and a not-guilty plea will be heard at a later date, in a full trial with witnesses. All charges where a please of not guilty is entered will first go through a contest mention.

On sentencing, a magistrate will take a number of factors into consideration, including your personal circumstances, the circumstances of the offending, any prior court appearances, references and the impact on any victim. The magistrate may also take into account a plea of guilty as evidence of remorse and this will attract a discount on sentencing.

However, it is often the case that the police will have laid a number of charges which are unsustainable, or which are duplicitous. (This is sometimes known as a "hamburger with the lot".)

For example, in the situation of a demonstration where property was damaged and some physical violence occurred, the police may lay a range of charges including intentionally causing injury, recklessly causing injury, assault, criminal damage, hinder police, refuse to obey a police direction, resist arrest; intentionally causing injury, recklessly causing injury and assault will be alternative charges relating to the one incident.

If you or your lawyer feels that some charges are unsustainable or duplicitous, your matter may be adjourned for a contest mention hearing. At this hearing, negotiations are entered into with the police informant, the police prosecutor and the defence. If the prosecution agrees to withdraw some charges and the matter can be resolved, it may proceed on that day as a plea of guilty before the magistrate.

See Pleading guilty or not guilty?

If an agreement cannot be reached, the matter is taken into the court and usually the defence lawyer will indicate to the magistrate the issues that are in dispute. In some instances, the magistrate will provide a sentence indication advice as to the penalty that would be imposed if a plea of guilty was entered into before that magistrate.

If you want to plead not guilty and contest the charges (which is your right), the matter will then be adjourned for a contested hearing. This hearing is held before a magistrate only. All witnesses are called and cross-examined. The magistrate is the judge of the facts and the law.

If the magistrate is not persuaded of guilt beyond reasonable doubt the charges will be dismissed.

It is possible to apply for costs against Victoria Police once charges are dismissed. Whether costs are granted depends on a number of factors, including the way in which the defence case was run. The police prosecution may ask for costs to be awarded against you as well if you are found guilty of the charges.

If the magistrate finds you guilty of some or all of the charges, a plea in mitigation of sentencing will be made. One can appeal a decision of a magistrate if the appeal is lodged within 28 days. The matter can then be heard in the County Court.

If you are charged with a more serious indictable offence, your matter will be in what is referred to as the committal stream and will ultimately have to be dealt with either by trial or plea of guilty in either the County Court or the Supreme Court.

If your matter is in the committal stream, it is very important that you receive legal advice as soon as possible.

Lawyers

To get a lawyer or not

Understanding your legal rights and liabilities and the court process can be complicated and intimidating for activists without working knowledge of the legal system. If you are confident about representing yourself in court and have a clear understanding of relevant laws, you might consider not seeking representation at all from a lawyer.

Most activists, like other people in the community, would prefer to have legal advice and representation from qualified legal practitioners. The hardest thing to work out is who is going to give you the best legal advice.

Finding a lawyer that understands why you do what you do is important but can be very difficult. Many activists have found that lawyers may not understand the framework in which they operate and why they were arrested. Some lawyers may see their role as simply doing everything they can to get a finding of not guilty. It is important to feel that you can communicate with your lawyer and convey all relevant information.

Don't let yourself be bullied by lawyers. Lawyers must act on your instructions, so be clear about what it is you want a lawyer to do for you by getting all the relevant information and making informed choices. Lawyers can be sacked at any time during the proceedings.

Make sure you talk to other people in activist networks to find out what lawyers activists have used in the past and found useful.

Remember that different lawyers have different areas of specialty. Some lawyers may be great in criminal proceedings but not familiar with the law in relation to civil matters. Some lawyers specialise in administrative or family law and may not be of any help in your case.

How do you choose your lawyer?

There are three questions you might ask yourself when deciding which lawyer is the best to assist you with your legal problem:

  1. Does the lawyer have expertise in the relevant area criminal lawyer, civil or compensation lawyer, constitutional lawyer?
  • If you have been charged with a crime, you should seek representation from a lawyer who practises criminal law.
  • If you have been injured during a demonstration or in some other circumstance, you should seek assistance from an expert personal injury lawyer who can advise you on your rights to compensation.
  • If you wish to challenge a decision by a government body or authority, or obtain documents under Freedom of Information legislation you may need an administrative and public interest lawyer.
  • If you are unsure about how to select the right lawyer for your legal problem, consider contacting the Law Institute of Victoria or visiting a community legal centre for advice and assistance and referral.
  1. Does the lawyer have a commitment and empathy for the social causes you are involved in?


Attending court can be a stressful experience. This is even more so when if you intend to make public statements about important political and social issues during a criminal or civil hearing. It is important to find a lawyer who understands that you may make decisions not based on whether you will be convicted or not, nor on how much compensation you might achieve, but on the long term impact your case may have on the pursuit of social justice. Speaking to other activists and reviewing media articles on past cases might help you find the right lawyer to represent you.

Cost of lawyers

Don't spend any money on lawyers until you've checked whether you can: represent yourself , get legal aid , get help from a community legal centre , or obtain other free or cheap advice. However, don't expect friendly lawyers to do substantial work for you free of charge.

Inform yourself very clearly about what costs are likely. The Law Institute of Victoria says lawyers should give their clients early and accurate estimates of likely costs. Many people, in distress with a legal problem, rush to a lawyer for help, then discover later that they have a bill for many thousands of dollars.

Lawyers are generally very expensive: barristers, for instance, may charge from $500 to $3000 per day; solicitors may charge several hundred dollars per day. Your court case could run over several days, so check all your options before committing yourself to an agreement with a lawyer.

At the same time, there are many lawyers who will offer free or pro-bono advice at first, then let you decide later whether you will hire them for more substantial work, such as days in court. Don't abuse the help of those lawyers who offer advice freely by expecting them to work for many hours or days free of charge. We need to support those lawyers who support activists and community groups.

If you can't afford to pay

There are many progressive lawyers in Victoria who are prepared to act for protestors for free or on a no win no fee or reduced fee basis. In criminal matters and some limited civil matters, you may also be able to obtain legal aid for your claim.

There are over 40 community legal centres located in suburbs all across the State. They often have drop-in legal advice services where you can obtain legal advice free of charge.

Legal aid

If you are unemployed or a student, you may be entitled to legal aid. Legal aid is very difficult to get these days, as all governments have made cuts to their legal aid budgets. Priority is given to family and criminal law matters. Matters are strictly merit and means tested.

The vast majority of charges which arise from political demonstrations are summary (i.e. minor) offences, where it is unlikely that people charged will go to jail, especially if they have no (or very few) previous criminal charges. If you are pleading not guilty, under Victoria Legal Aid guidelines, you can only get legal aid for your legal representation if your likely fine is $750 or a more serious penalty and Victoria Legal Aid believes there is a reasonable likelihood of you being found not guilty on the most serious charge.

If you are pleading guilty, you must be at risk of receiving a penalty of at least a lengthy (200 hours plus) community-based order, intensive correction order, suspended sentence or imprisonment. This can often be argued, as magistrates can vary on the penalty imposed.

Sometimes, even if you don't qualify for legal aid under these guidelines, you can argue that your case has special circumstances, because it involves important public policy questions (eg. police abuse and misconduct in making arrests may be such special circumstances). There are also special circumstances guidelines that allow legal aid to be given to people unable to represent themselves because of mental impairment, intellectual disability, youth, or language or literacy problems. These circumstances usually require documentation to support the application.

Nevertheless, always check your entitlement and apply for legal aid through a lawyer. Legal aid can also extend to the funding (at a relatively low level) of private solicitors to act on your behalf. Legal aid need not mean no choice of lawyer, nor need it mean poor representation. Many salaried or low-charging lawyers are more dedicated than, and just as competent as, the high-flyers.

If you are Aboriginal, the local Aboriginal Legal Service is an option that may be open to you. There are also community legal centres around Australia, which are well worth approaching for legal advice. There is no fee for service at these centres; it's just a question of how much of their time they can provide, given their other work commitments. Some lawyers will give free legal advice to political or social groups or causes they support. Inform yourself through your organisation about what advice is available. Remember that solicitors and barristers act on your behalf, but are legally considered to have a basic loyalty or duty to the court. They are officers of the Supreme Court of the state in which they are registered. So you cannot say to a lawyer, for instance in an assault case: I hit the person, but can you get me off? The lawyer's duty not to mislead the court will then mean that they cannot present facts contrary to what you have admitted to them in private.

The lawyer is ethically bound not to report what you've said or give evidence against you, but at the same time they will not be able to mislead the court. If you have admitted the charge to your lawyer they can support you in a plea of not guilty, but without contesting the facts that you've admitted. The lawyer could also plead for a reduced penalty, or stop acting for you and refer you to another lawyer, if you insist on pleading not guilty.

Duty lawyers

Most courts have lawyers on duty who can provide free, basic support for people who have not had the chance to see a lawyer before court.

Duty lawyers are people employed by Victoria Legal Aid who provide advice and support to people charged with a criminal offence and appear for them if necessary in bail applications and adjournment applications. They can also undertake pleas in mitigation if you are pleading guilty. Generally, they cannot conduct more complex defended cases.

It is not a good idea to rely on the help of duty lawyers as they are often busy and your case may not be a priority. It is a good idea to ring the Registrar beforehand to see if duty lawyers are available at the court you are attending.

Inform yourself

If you have a lawyer, listen to their advice, but also inform yourself about every step of the legal process you are in. Don't leave the decisions to your lawyer.

You are finally responsible for the presentation of your case in court. Don't surrender the control of your case.

In Australia there are no really effective mechanisms by which lawyers are held accountable for presenting an inadequate case on your behalf. If your lawyer fails to prepare or properly present your case, only you will suffer. So stay informed.

Furthermore, there is generally no appeal from your lawyer not properly presenting your case to a court. An appeal court will generally say that they are not interested in any differences you had with your lawyer, and that you should have sorted them out. The bottom line to this is a hard reality: if you are unhappy with the way your lawyer presents your case during a hearing or trial, and if you cannot resolve your differences, your only option is to sack them (to withdraw instructions) and conduct the case yourself. If you prepare for this, at least you will remember your responsibility for your own case.

If you have communication problems with a legal aid lawyer, you can complain to a more senior legal aid lawyer. Stay informed of, and involved in, all the major decisions of your case. Listen to advice, but remember that the decisions are ultimately yours.

Complaints about lawyers

If you become unhappy with the representation being provided to you by a lawyer, you can make a complaint to the Legal Ombudsman or the lawyer's relevant professional association.

Legal Ombudsman
Level 10, 461 Bourke Street 
MELBOURNE VIC 3000
Tel: (03) 9642 0655 (Melbourne metropolitan) 
Tel: 1800 357 772 (Victoria toll free) 

email: legalomb@vicnet.net.au
Law Institute of Victoria
470 Bourke Street 

MELBOURNE VIC 3000
Tel: (03) 9607 9311 
Fax:(03) 9602 5270

Self representation

Consider self-representation if you are confident you can prepare and present your case in court. If not, seek legal representation.

Consider self-representation in these circumstances:

  • If you feel confident with court procedure
  • If there is to be a credibility battle between yourself and police
  • If you've informed yourself of all the legal elements of the charges

People can represent themselves in court, provided they have standing in the court case (a defendant always has standing when facing a charge). At present, generally only solicitors and barristers can represent other people in court (although a friend of the court can sometimes be given permission to appear to assist the court). This means, unfortunately, that an articulate person cannot speak up for a friend in court (except as a character witness), and lawyers can charge very high fees.

You may consider self-representation for several reasons:

  • If you are not eligible for legal aid, yet cannot afford a lawyer
  • If you wish to directly confront witnesses who are not telling the truth
  • If you wish to speak strongly and directly to the tribunal of fact (magistrate, judge or jury)

The magistrate or judge is legally obliged to explain to you your basic rights, and the basics of court procedure, when you are self-represented. But it's up to you to research and find out what defences you'll run, what evidence you'll call and what questions you'll ask.

For self-representation, you should have three things:

  • The confidence to speak in open court, and to argue firmly and clearly against the opposing party
  • The time to fully prepare your case, arrange the collection of statements and research the relevant law (issues of principle concerning the charge and possible defences)
  • The ability to analyse and grasp clearly the elements of the charge, and the significance of the evidence. You should be able to stand back from the emotion of the matter, and assess the strengths and weaknesses of both sides, as if it were a sporting contest. Then you can take some advice and decide what tactics to employ

While you need to prepare and plan your case, there can be some advantages. If you have a dispute about the facts with a witness, you might be in a better position to present your view both in cross-examining and challenging the witness, as well as giving evidence or making a statement yourself. When questioning a witness about events in which you were involved, you are in control of the issues raised, and you can raise argumentative suggestions, which are not possible if and when you give evidence.

In effect, you give evidence twice when you are self-represented. It also does no harm to be able to speak directly to and with the tribunal (magistrate, judge or jury), rather than be regarded as a third party variously called the defendant (in magistrates' courts) or the accused (in a jury trial).

More and more people are forced into self-representation, because of the severely limited public funds for legal aid. So it pays to prepare for the possibility of self-representation.

You must be prepared to do your homework, both by investigating the evidence and by studying the legal issues involved. Having support to do this is important.

Self-representation is often an empowering experience which also allows you to tell the court of the political context of your arrest. You may be able to do this much better than a lawyer. Community legal centres will usually be able to provide free advice when you are representing yourself.

In Victoria the courts now have the power to order the Legal Aid Commission to fund your case if they believe it's necessary in the interest of justice. It is important, however, that you have done everything possible to arrange for your representation prior to going to court.

Public statements & contempt

Contempt law is against any public comment on an issue that is before the courts and is to be decided by the courts. Notice though that the issue to be decided is often a narrow one (did a person commit a particular offence), and this does not prevent public discussion of the background or wider context of the events concerned.

So, for instance, the charging of a demonstrator at an environmental action does not prevent others from criticising police operations at that demonstration, nor from talking about what the action was all about. Many lawyers advise against public comment that in any way relates to a court case.

It is not based on a fair interpretation of contempt law, nor on a proper consideration of the right to freedom of expression. Police, courts and conservative lawyers often attempt to block political expression by the threat of contempt action. This is mostly bluff.

Magistrates have no real power of contempt outside their own courtrooms, and contempt actions have generally only been laid after public comments very close to a jury trial. People are not prosecuted for proclaiming their innocence of a charge, which is their right.

As always, seek specific legal advice if you are considering making public comment that may be a contempt, as it can carry the penalty of imprisonment.

Your support network

If you are due to attend a court appearance, it is important to have support people accompany you as well as a lawyer. Invite other people involved in the original action to court for support and solidarity. Too often, those who find themselves in court feel deserted by others involved in the campaign. It is essential for campaigns to commit long term to supporting all members, particularly through the legal process.

See Organising Legal Support section

Also invite friends and family for support. It is important to remember that you are not a criminal and the reasons that you have been involved in a protest remain valid. Magistrates do take into account the level of support in court.

Court structure

The Magistrates Court

The Magistrates' Court of Victoria hears and determines all summary offences and indictable offences that can be heard summarily, where the accused person was 18 or over at the time of committing the offence(s) or 18 or over at the time of the court case and, in the case of indictable offences triable summarily, consents to having their case heard summarily.

Go to http://www.magistratescourt.vic.gov.au for further information about the Magistrates' Court of Victoria.

Appearing before the court

A defendant can appear before a magistrate in person, or be represented by a barrister or solicitor.

If the person is unrepresented and has been charged with a criminal offence punishable by imprisonment the court must ask them if they have had the opportunity to obtain legal representation, and if they have not, the court may allow an adjournment so that they can seek legal representation.

Which court room?

If you are going to court for a court hearing of charges you are facing, you should arrive at court by 9.30 am. Whilst court starts sitting at 10.00 am it is unlikely that yours will be the first case to be dealt with. Most courts display a list which sets out in which court each particular case is to be heard. You may also be able to check the court lists by looking in the law section of the newspaper, on the website of the relevant court or by calling the Court registry. If there is no such list you should speak to the court registrar.

If you are pleading guilty to the charges and the matter is simple, your case is likely to be over by lunchtime. If you are pleading not guilty it is possible that the case may not finish until late in the afternoon, or take several days or weeks, depending on the seriousness of the matter.

Courtroom procedure

Whenever you speak to a magistrate or judge, or if they ask you a question, you're expected to stand up. Magistrates and Judges should be addressed as "Your Honour". You're expected to stand up when a magistrate or judge enters the court, but there's no need to bow, as lawyers do. Attend the court where your case is to be heard so you can become familiar with the people, procedure and surroundings of the courtroom.

In argument the prosecutor may quote previous court decisions, or "case law" (common law precedents set by judges, from cases involving similar issues). If you have access to these law reports, you can also use them in argument, but they are not essential. The most important thing is to have your case well prepared, and to be thoroughly familiar with the issues and the evidence.

Callovers or mentions

Cases often appear in the court's lists several times before there is a hearing, or before sentencing occurs. These occasions are known as "callovers" or "mentions" and are used to find out how you will plead, and how many hours or days will need to be allocated for a hearing.

Cases can go ahead on the "mention day" only if you are pleading guilty, as neither the arresting officer nor any prosecution witnesses will be attending court on the mention day. If you are pleading not guilty, the case will have to be adjourned (postponed) to a date when the court has time to hear it and all the witnesses are available.

You can also ask for your case to be adjourned from the "mention day" even if you want to plead guilty, to allow time for character references and pre-court reports to be obtained. It is useful sometimes to apply for an adjournment in order to ask the police in writing for all of the evidence they plan to reply on. This is essential in appraising the strength of the case against you.

If you are unprepared for your case it may be better to get your case adjourned. If it is a "mention day", you will be automatically entitled to at least one adjournment.

If you are in any doubt as to whether the hearing date is a "mention day" and whether you are on bail, you should telephone the court.

Bail, pleas & proof

Bail

Generally, you will be on bail until your "mention day" and bail will be extended on this day so don't fail to appear! If you do fail to appear, not only might you be convicted in your absence, your failing to appear will jeopardise your chances of getting bail in future. You are also liable to immediate arrest for the offence of breach of bail. On the other hand, your appearing in court to "meet bail" can be used in your favour, in future bail applications.

Some charges are issued by way of a summons; if you are not on bail, you may not need to appear in court if your case is going to be adjourned.

Pleas

Minor offences may be dealt with on any mention date where a guilty plea is entered but never plead guilty without considered and independent advice! If you are asked to plead, and plead not guilty, a date for the hearing will be arranged (the hearing may not be listed for months, even years in some cases). It is possible to change a plea of not guilty to guilty, later on; however, to change from guilty to not guilty (especially after sentencing) is almost impossible.

Proof

In a criminal hearing or trial, it is always up to the prosecution to prove the offence, and this must be proved to a standard called "beyond reasonable doubt". If a magistrate (or a jury in more serious cases) is convinced by you or your lawyer that a reasonable doubt regarding your guilt exists they will find you not guilty. In some cases there is a partially reversed onus of proof. For instance, if marijuana is found in your car or your bedroom, you must prove (but only on the "balance of probabilities") that you did not know it was there; otherwise it is legally assumed to be yours.

The central issue in a criminal trial is always whether or not the prosecution has proved its case beyond reasonable doubt. No-one has to prove their innocence. However, once a person has been found not guilty, the law presumes that person to be innocent, on the basis that all people who are not proven guilty must be presumed innocent. This principle is not always respected by police and the media, but it is the law and a fundamental right. If a person is found not guilty, he or she is free to leave the court unless they are in custody for other charges which have not been resolved.

Diversion program

The Criminal Justice Diversion Program provides mainly first time offenders with the opportunity to avoid a criminal record by undertaking conditions that will benefit the offender, victim and the community as a whole. It is an opportunity to avoid a court hearing. It is necessary to plead guilty to the offence to access the program.

Should you be 17 or under, the Ropes Program is available to avoid a court hearing.

Always ask your lawyer or the magistrate if you are eligible for a diversion or Ropes program.

Go to Magistrates’ Court of Victoria for further information.

Hearings & trials

A hearing before a magistrate and a trial before a judge and jury (or a judge alone, if the accused person agrees) proceed in much the same way.

When the hearing begins, a formal plea may be taken, followed by an opening by the police or the state prosecutor. The prosecution evidence is then led, at the end of which you may argue that the prosecution has not produced sufficient evidence to make out the charge against you. If the prosecution has produced sufficient evidence, you may wish to (but need not) call defence evidence.

You may choose to give evidence, and thus be cross-examined by the prosecutor, or you may choose to "stand mute", which means that you say nothing and cannot be cross-examined. In Victoria, it is no longer possible to give "unsworn evidence", which meant that you could not be cross-examined on the evidence you gave. Remember, the defence does not have to prove a case, it just has to cut down or cast reasonable doubt on the prosecution case. (In practice this may mean substantial doubt.)

At the end of all the evidence, the prosecution addresses the court on their view of the evidence; then the defence lawyer or self-represented person does the same. In a hearing, the magistrate then gives a judgment. In a trial the judge sums up for the jury, which is then asked to decide whether the person is guilty or not guilty.

Rules of evidence

One of the most difficult aspects of a trial is the successful leading of evidence, and the questioning of witnesses. This area is governed by a large body of technical rules that will be quite daunting to anyone unfamiliar with running court cases. A brief explanation of some of the commonly encountered rules will be provided, but if it is necessary to represent yourself in a trial or hearing it is strongly advisable to speak to a lawyer for guidance on this area. The best general text on the Australian rules of evidence is J.A. Gobbo's Cross on Evidence (4th Australian edition).

There is a large body of precedent law that covers the way evidence can be led in trials and other court hearings. Three important features of the law of evidence will be described here: the rules on hearsay, the rules on opinion evidence and the Browne & Dunn rule:

  1. The rule against hearsay generally excludes a witness saying what someone else said, or said they saw or heard. You can only ask your witness, in court, to give direct evidence of what they saw or heard or experienced directly of a particular incident. An exception to this rule allows evidence of hearing "admissions" to crimes. So, for instance, police are allowed to tell the courts they heard arrested suspects "confess" in the police station although there are procedural requirements which must be followed, such as tape recording interviews and giving correct warnings.
  2. Opinion is generally not allowed to be given as evidence, unless it is by a person who is considered to be an expert in the relevant field. Generally witnesses cannot say what they thought, assumed, inferred or concluded about any incident. They must stick to what they observed.
  3. The Browne & Dunn rule requires you (or the prosecution) to give an opposing witness a chance to respond to any contradictory evidence that you may later call. For instance, if you are going to say that a police officer hit you and that officer gives evidence, you have to put it to him and allow him to respond; if you do not the prosecution will be allowed to recall him after your evidence, to contradict you.

Finally, an important thing to keep in mind is that there exists at law a basic principle that individuals can only be prosecuted on evidence that is relevant to their alleged crime. Thus facts relating to a previous criminal record are not admissible. One of the major exceptions to this is that if the defendant attempts to use evidence of good character to show that it is unlikely that they did the alleged acts. In this case, by claiming good character you also allow the prosecution to raise bad character, ie any past convictions you may have, in response. If you didn't raise character, the magistrate would have to decide the question of guilt without knowing about these past convictions. Evidence of good character can still be led in regard to sentencing, as discussed below.

Examination & cross-examination

One of the more difficult aspects of self-representation is to understand the rules of evidence. You should take some advice on how to call evidence from your witnesses, as this is when the rules are most restrictive.

Leading questions

When you first question your witnesses, this is called examination in chief. Generally, you usually ask open questions that allow your witnesses to tell their version of events. You cannot suggest answers to your witnesses or lead your witness. Questions such as, 'Were you wearing a white baseball cap? will not be allowed because all the witness has to do is answer yes. The answer is already supplied in the question. It will be necessary to ask first, Were you wearing anything on your head at that time? and then ask what colour it was.

Cross-examination

Cross-examination is when you question the prosecution witnesses. Since they have already been questioned by the prosecution you are now allowed to ask leading questions. Generally speaking, cross-examination is a lot easier, but you should be aware that very few cases are actually decided on the basis of skilful cross examination (despite what Hollywood might say!). Also, remember that in cross-examining a witness, there is always the danger that you will give a prosecution witness the chance to say something they were not able to say, or forgot to say, in examination in chief and which may harm your case. The most important rule in cross-examination is - NEVER ASK A QUESTION OF A WITNESS THAT YOU DON'T KNOW THE ANSWER TO.

The best cross examination is one where an overall inference can be put together from the witness's answers, rather than one where the witness crumples in a heap in a witness box. It is very rare for witnesses, especially police witnesses, to trip themselves up in an obvious way. But a good cross-examination can paint a picture from their answers that supports your case.

Another related idea is that it is important to not ask too many questions, and to know when to stop asking questions. As tempting as it might be, never actually put the inference you have created in a question to the witness it will only give them a chance to explain their way out of it. As an example, if the witness has admitted that the street was very dark when they saw someone vandalising a shop, do not ask them how they managed to see the person. Most likely they will come up with a good explanation that you were not expecting. Once they have admitted it was very dark, that should be enough.

The other important thing to remember in cross-examination is to never shout or try to bully the witnesses it will only isolate the magistrate.

Subpoenas

These are documents that you can serve on any party to require that documents relevant to your court case to be produced to the court. Being before the court on a charge, therefore, allows you to use some of the authority of the court to force disclosure of evidence. For instance, you may wish to see a police officer's notebook, to check against their statement; or you may wish to see governmental records relating to an action you were involved in.

A lawyer will tell you how to fill out such a form, which must be stamped by a court registrar. There will usually be a court filing fee, which you will have to pay. The subpoena is required to be physically served on the party from whom evidence is required together with conduct money, ie sufficient money to pay for the witness's travel costs to court (usually $5.00).

People can also be summoned to appear in court to give evidence, through subpoenas; however it is risky to call a witness from whom you have no statement. Take care and take some advice, on how to draft subpoenas. If they are not precise enough, you may have wasted your time and money.

Sentencing & appeals

A person who pleads guilty, or who is found guilty, may wish to call evidence in mitigation of the penalty that is, to minimise the penalty. Maximum penalties are rarely given. There are a broad range of factors which may be taken into account at sentencing. Some of these include: age, good character, previous good record, employment, and the circumstances of the offence.

It is a good idea to obtain references addressed to the magistrate from "respectable people" who can say something about your good character, charitable work, employment prospects and so on. Two references will suffice.

If you have pleaded guilty, you are entitled to a discount from the ordinary sentence, for saving the prosecution and the court the trouble of proving a case against you. You may still appeal a decision and apply for a lighter sentence if you plead not guilty and are convicted.

Jail sentences are rarely given for a first or minor offence. If you receive a short jail sentence (less than 12 months), appeal bail is often given.

Possible penalties

In general the penalties which a court may give for criminal offences are set out in the Sentencing Act 1991 (Vic) as follows:

  • Dismissal of the charge with or without conviction (you essentially receive no penalty for the offence)
  • Fine with or without a conviction (you are required to pay money to the court)
  • Community-based order with or without a conviction (a specified number of hours of community work, possibly with other conditions such as counselling)
  • Detention in a youth training centre or youth residential centre (for persons under 21 years of age, this penalty involves detainment in centres which are specially set up to rehabilitate young offenders)
  • Conviction and a suspended sentence (a conviction is recorded against your name and you are sentenced to a period in jail, but you do not go to jail to serve that sentence unless you re-offend by committing an offence punishable by imprisonment within a prescribed time. A court can partially suspend a sentence, in which case you serve some time in jail and the remainder of the time is suspended)
  • Conviction and intensive correction order (a conviction will be recorded against your name and you will serve your sentence working in a prescribed manner in the community under strict supervision for 12 hours per week community work and appointments for a further three days per week. If you re-offend during the term of this order, you will be sent to serve the remainder of the term of the order in jail)
  • Conviction and a hospital security order (a conviction will be recorded against your name and, where the court has determined that you need treatment for a mental illness, your sentence will be served in a secured hospital while you are treated)
  • Conviction and a combined custody and treatment order (a conviction will be recorded against your name and your sentence will be satisfied by serving some time in jail and some time outside jail doing prescribed work in the community under strict supervision)
  • Conviction and a term of imprisonment (a conviction will be recorded against your name forever and you will be jailed for a period of time)

Appeals

Always appeal a bad court decision. This should be done promptly.

Almost every offence for which a person can be punished is capable of being appealed at least once to a higher court. In some cases you may consider the penalty too small to bother with the time and expense of an appeal. Consider also the desirability of removing a conviction from your police record. All states have provision where an offence can be "proven" but the court does not proceed to a conviction (Commonwealth matters: section 19B Crimes Act 1914 (Cth); section 75, Sentencing Act 1991 (Vic)). If there is to be no penalty and ultimately no conviction, it may be hard to justify the effort of appealing a bad decision.

In Victoria, there is a 28 day time period after the conviction, during which an appeal can be lodged. It is not impossible, but may be difficult, to appeal after this period. Lodge any appeal promptly. Appeals can be against penalty (severity appeals) or against conviction and penalty (all grounds appeals). Just ask the Magistrates' Court registrar for an appeal form. Prisons will also have appeal forms available.

An appeal from a Magistrates' Court in Victoria will be heard afresh before a single judge in the County Court. You should be aware that because these appeals are fresh hearings, there is also the potential for you to receive an increased sentence on appeal. Should you wish to abandon the appeal, you must do so within 30 days of lodging the appeal, or can judge can continue with it regardless of your wishes. An appeal from a jury conviction in the County Court will be heard by three judges in the Full Court of the Supreme Court. The High Court of Australia can review all the decisions of state Supreme Courts, but in criminal cases there is no right to appeal to the High Court. You have to seek leave to appeal, and it must be on a matter of important principle (that is, more important than your liberty!).

If you are acquitted (found not guilty), the police must destroy every copy of your fingerprints they have within one month. Police can, however, apply to the Magistrates' Court to extend the period within which they have to destroy the fingerprints. The police do not have to tell you that they are making such an application (section 464O Crimes Act 1958 (Vic)).

Prisons & lock-up

Many activists, whether through design or just bad luck, find themselves in the mainstream prison system.

Activism and protest can continue whilst inside prison, but it does so within a very different set of circumstances and alongside a community whose members already engage in their own acts of resistance and survival. The prison world is akin to a totalitarian society of almost absolute control by one group of people over another. It can be incredibly difficult to maintain your own sense of power or even self-worth in this environment. Support from others inside and outside becomes extremely important whilst in prison.

See also: Jail solidarity and Inside jail

Re-entry to normal life after a time in jail can be difficult.

See Coming out of jail stronger

Other prisoners

Most people in detention do not choose to be arrested, and that incarceration is a tool of the powerful most frequently used against those who are poor, non-white, or illiterate.

If we choose to be arrested as a direct action strategy we also must acknowledge this in our relations with other people who are in detention.

In a prison or lock-up, quickly contact other prisoners. They can help you much more than prison officers.

Open up your channels of communication and learn about your new environment. Be sensitive to the subculture don't immediately ask people: What are you in for? You'll probably find out in time.

Remember that in jail you do have something in common with all other prisoners you're on the same side of the wall and any complaint about police is likely to get a sympathetic hearing.

Having said all this, also be aware that there are many informers in the prisons, including those who fabricate statements for the police. However these are rarely used against people charged with petty offences.

Mass arrests can also cause crowding in cells and this can make experiences of detention even harder for other inmates. This happened in Darwin at the height of the Jabiluka Blockade. Some Aboriginal women were transferred to prisons outside Darwin, which made it impossible for their families to visit. The women asked the Jabiluka arrestees to accept bail and thereby enable their return to Darwin prison. Also see Prisons & lock-up

Staying healthy

Food

The police lock-up or jail is not going to give you regular vitamins, herbs or homeopathic medicine. If you have glucose, lactose or gluten intolerance or severe food allergies, get a doctor's letter (but don't expect the jail kitchen staff to be able to follow directions).

You have a legal right to kosher food if you're Jewish and to a non-pork diet if you're Muslim. Vegetarians are generally told: "Just don't eat the meat."

Vegans, fruitarians and macrobiotics are usually out of luck. Supporters and lawyers cannot bring in food. The best advice is to eat well before the action and do your best to manage with the regular jail food.

Medical conditions and methadone

If you have a potentially dangerous medical condition (asthma, diabetes, seizures), wear a medic-alert bracelet. This will make the police and jail staff take you much more seriously if you start to have problems.

People on prescribed methadone programs should be allowed to continue their treatment if they are in police custody for more than 24 hours. Carry the prescription form with you and ask police for a custodial methadone prescription. They should arrange for a pharmacist to deliver the dose.

The only way to ensure that you will receive medication while in jail is to bring a recently-dated doctor's letter explaining your requirements. Make four copies of the doctor's letter. Keep two copies of this letter on your person (one to keep and one to give to the jail medical staff), leave the third copy with your affinity group supporters, and leave the fourth copy with your attorney or other arrest support. (The point of distributing all these copies is to facilitate your supporters' efforts to help you if the jail staff takes your letters away and loses them.)

Once you're in jail, the jail's medical staff should supply you with your regular prescription medications. Usually jail staff dispense only medications from their own infirmary, since they won't trust that what you brought in is the real thing. Sometimes the jail's medical staff try to substitute a similar medication for what you normally use. If this is a problem, have your doctor specify no substitutions in the letter. Often there is a big lag of 24 hours or more between getting arrested and first receiving regular doses of medication.

Remember that there is no assurance that police or jail personnel will be responsive to your medical condition.

Note: You do not have to tell the police or jail guards whether you're HIV positive or have AIDS. However, this is likely to be one of the questions you will be asked on entering the system.

Also see Prisons & lock-up

Medical attention

In a police lock-up or a prison, always call for medical attention if you have any injury.

It is vitally important that you have any injury you receive in the process of, or after, arrest recorded by a doctor or nurse. This may be of great significance in any future hearing. Many issues in court come down to a police officer's word against a defendant if there is nothing else, magistrates very regularly accept the police officer's word. Medical evidence is one important way in which you can get support for your account of what happened.

Don't undersell your injuries, or ignore them, as you might if not arrested. Small scratches and bruises should all be pointed out and recorded. This is not because you need them medically treated, but because of their potential significance as evidence in court. You may also need to call the doctor or nurse to give evidence of their having recorded your injuries they can be subpoenaed (ordered by the court, at your request) to give evidence.

See Complaints against police

Evidence of police violence can cause police accounts of admissions to be rejected in court as involuntary.

Prison amenities

There are several prison amenities you should immediately make use of: phone calls, visits and legal visits, letters, medical care, education and activities, and reading material.

The amenities in Australian prisons are generally called privileges as, in reality, prisoners have very few legally enforceable rights. In Victoria, however, unlike other jurisdictions, certain rights are enshrined in legislation ( see section 47 Corrections Act 1986 (Vic)).

As human and social beings prisoners also retain most of their democratic rights. Furthermore, prisoners can directly enforce their democratic rights by insistence on them, by solidarity, by appeals to outside groups and to official bodies. These pressures work in the case of rights which are widely recognised and which are contained in section 47 of the Corrections Act 1986 (Vic), such as the rights to fresh air, proper food, decent health care, to avenues of complaint, access to lawyers, visits from friends, access to a library and education facilities, reasonable communications facilities and so on.

In practice, there are a number of prison amenities (other than food, clothing and a bed) you should immediately become familiar with and make use of. The most important of these are:

Phone calls

Prisoners at all Victorian prisons can make phone calls, usually one or two a week, not counting calls to lawyers. Each jail has a different set-up for booking calls. The use of phones is monitored by a Prisoner Telephone Control System, state-wide and across all security classifications. The monitoring system restricts a prisoner to calling five phone numbers, all of which must be registered and approved by the prison Governor. Victoria Legal Aid provides a telephone for the use of prisoners at the Melbourne Custody Centre. The phone is available for use free of charge to prisoners and is located in the records area. The phone is a direct link to the Prison Advice Service.

Visits & legal visits

Generally speaking remand (unconvicted) prisoners have no different rights to convicted prisoners. However they are allowed more visits than those provided to convicted prisoners. Remand prisoners at the Melbourne Custody Centre are allowed box visits each day and a contact visit (where you can touch your visitor) once a week. The Metropolitan Assessment Prison allows one box visit and one contact visit a week. Prisoners need to provide prison authorities with a list of the names and addresses of the people who will be visiting them. These practices change regularly, so it is advisable to check by phoning the prison if you are planning to visit someone.

Visitors can't legally (by prison rules) give you food, money or other things. Visitors who break these rules can be banned from future visits. Clothing, money and gifts can be placed in a person's property, however it is wise to check with the particular prison as to what items and what amount of money is permitted. Visits may be from 30 minutes to three hours long. Again, each prison has a different set-up. There is no limit to the number of legal visits you can have, within visiting hours. If you're visiting a friend who is a prisoner, it's often wise to check by phone if your friend is actually in the prison and that you are on their visit list. If you make an effort to travel to a jail, particularly a country jail, it can be very frustrating to discover that your inmate friend has been moved elsewhere or that you are unable to see them because your name has not been included on their list.

Letters

The sending and receiving of letters is a right contained in the Corrections Act 1986 (Vic): see section 47(1)(m) & (n)). The Act explains that letters are not to be censored except where the prison governor considers prison security is threatened. All incoming mail is opened to check for contraband (drugs, money, etc).

Medical care

Every day there are usually morning and afternoon clinic periods when you can get medical attention from a nurse. You need to book in to see a doctor, dentist or specialist. Prisoners have the right to make a request for medical care and attention at any time (see Corrections Act 1986 (Vic) section 47(1)(f)). Prisoners are also entitled to pay for and obtain a private medial practitioner, physiotherapist or chiropractor of their choice.

Education & activities

Every jail has some sort of education centre, with limited facilities. There will also be an activities centre, with some sports facilities and possibly access to a sports ground. Check these facilities out and make use of them.

Reading material

The one thing you can have sent in to you (other than money, which is kept for you in an account) is reading material. Although there are restrictions on how many books and magazines you can keep in your cell, you can share them around or return them to the property that is held for you at reception near the prison gate. So ask friends to send you, or leave at the gate, books or magazines. Newspapers, however, must be ordered for an entire month. Occasionally some reading material is withheld by the jailers have your outside friends inform you what they've sent, and if it is withheld, fight to get it back.

Money & buy-ups

Each week you can use your private money, from an account held for you by the jail, to order some food, toiletries and other items that are available on the jail's buy up. There are also activities buy-ups where you can order such things as sports shoes. Items available vary from jail to jail.

Televisions & radios

Victorian prisoners can purchase these (they can't be left at the gate drug rationale) on activities buy-ups, where you place an order a week in advance with the activities officer, and he or she uses the money in your account to buy these and other things such as sports shoes.

Protection

The segregated protection sections of every jail are for those who require protection for a variety of reasons. This could be either because they are young and unsure of the main jail, or because they fall within one of the two categories of people who aren't tolerated in prison culture: child molesters and informers.

Segregation

Some prisoners are also segregated for punishment, management reasons or for medical supervision. The Corrections Act 1986 (Vic) and the Corrections Regulations 1998 (Vic) provide the legal basis for segregation of prisoners. The practices and conditions of segregation are also outlined in Director-General's Rules. The length of separation varies. Separation for punishment can be for up to 30 days. When the prison governor orders the separation of a prisoner a separation order must be completed and a copy provided to the prisoner.

Ombudsman

Under the Ombudsman Act 1973 (Vic) and section 47(1)(j) of the Corrections Act 1986 (Vic), a prisoner has the right to correspond with the Ombudsman setting out his or her complaints. If you can't sort out a problem at a local level, or if your problem is about amenities which affect other prisoners, consider making a written complaint to the Ombudsman. If the Ombudsman finds a complaint to be justified, a remedial course of action is recommended to the prison authorities.

Official visitor

Each prison has an official visitor appointed under the Corrections Act 1986 (Vic). These visitors may visit the prison to which they have been appointed as they see fit, to inspect the facilities, observe the workings of the prison and discuss any topic they feel appropriate with prisoners and staff. Prisoners can request to see the official visitor and the prison governor is required to bring to the attention of the official visitor the names of prisoners and officers who have requested to see the official visitor.

Civil proceedings

You can take out civil legal proceedings as a prisoner; however, there are a number of obstacles placed in the way of prisoners, especially when it comes to actions against jailers. Also, those convicted of serious offences will have trouble suing for defamation, as their reputations are said to be tainted. Prisoners have access to the Victims of Crime Assistance Tribunal and to the Human Rights and Equal Opportunity Commission.

Voting

You can vote as a prisoner. However voting rights are legally denied to those convicted and jailed for offences where the maximum term of imprisonment is more than 5 years. The position for prisoner appellants (those convicted but waiting on appeal) is still untested, but while the matter is not clarified, the Australian Electoral Office has allowed some appellants to vote.

Prison discipline

There are procedures under the Corrections Act 1986 (Vic) for allegations of various types of misconduct by prisoners to be heard and punished by either the disciplinary officer or the prison governor if a prisoner is charged with a prison offence. No legal representative is able to attend the governor's hearing, however the prisoner is entitled to have another prisoner present. The decision of the governor may be reviewed if, within 30 days after the giving of notification of the decision or the reasons for the decision (whichever is the later), application is made under the Administrative Law Act 1978 (Vic), or alternatively, to the Supreme Court, for judicial review of the governor's decision, based on general principles of administrative law.

Resources & contacts

Information on Victoria's prisons can be found at the Department of Justice.

The administration of prisons is set out in the Corrections Act 1986.

VACRO is the Victorian Association for the Care and Resettlement of Offenders.

VACRO is a community based non-denominational organisation, with qualified workers who understand the prison system and the needs of families. It offers support and information to prisoner, ex-prisoners and families of prisoners. Family Liaison Workers from VACRO attend the Melbourne Remand Centre and the Metropolitan Reception Prison.

Phone (03) 9329 8865
3rd Floor, 355 Spencer Street
West Melbourne 3003

Impact of counter-terrorism laws

An overview of the Government’s approach to the counter terrorism law is found in the Australian Government’s Counter-Terrorism White Paper (2010) published by the Department of the Prime Minister and Cabinet and readily available on the website of the Prime Minister and Cabinet (www.pmc.gov.au/counter-terrorism).

In the wake of the attacks in the United States of America on 11 September 2001 governments throughout the "west" have implemented a huge range of measures to protect against future terrorist attacks.

Some of these measures are directed specifically against such attacks, but many are not and directly affect the fundamental rights of the people living in these countries.

Though written in 2007 the following may be some use to readers:

  • For more information about the powers of ASIO officers, go to What if ASIO visit.
  • ASIO, the Police and You is an online handbook of special relevance to the Muslim community published by The Australian Muslim Civil Rights Advocacy Network (AMCRAN).

Current counter-terror laws

On the 8 September 2005, the Prime Minister introduced a 12-point plan outlining new counter-terror laws which were largely approved by the Council of Australian Governments (COAG) meeting two weeks later.  This was before any review of existing laws had been completed.

A comprehensive list of the current national security legislation is set out on the web site www.nationalsecurity.gov.au which lists the legislation as follows with a brief explanation:

Australian laws to combat terrorism

The Australian Government has introduced an extensive legislative regime around counter-terrorism, national security and other cross-jurisdictional offences.

Key pieces of Australia's national security legislation include:

Anti-Terrorism Act (No. 2) 2005

The act which amends the Criminal Code to allow for the listing of organisations that advocate the doing of a terrorist act as terrorist organisations, establishes procedures for preventative detention and control orders,  updates the offence of sedition and other measures.

The Anti-Terrorism Act 2004

The legislation which includes amending the Crimes Act 1914 to strengthen the powers of Australia’s law enforcement authorities, setting minimum non-parole periods for terrorism offences and tightening bail conditions for those charged with terrorism offences as well as other initiatives.

The Anti-Terrorism Act (No. 2) 2004

The legislation which amends the Criminal Code Act 1995 to make it an offence to intentionally associate with a person who is a member of a listed terrorist organisation as well as other initiatives.

The Anti-Terrorism Act (No. 3) 2004

The legislation which amends the Passports Act 1938, the Australian Intelligence Security Act 1979 and the Crimes Act 1914 to improve Australia’s counter-terrorism legal framework as well as other initiatives.

The Australian Security Intelligence Organisation Act 1979

The legislation which sets out the functions of the Australia Security Intelligence Organisation (ASIO) – Australia’s security service.

The ASIO Legislation Amendment Act 2003

The legislation which amends the Australian Security Intelligence Organisation Act 1979 to ensure ASIO has the ability to effectively collect information which is necessary to prevent a terrorist act.

The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003

The legislation which empowers ASIO to obtain a warrant to detain and question a person who may have information important to the gathering of intelligence in relation to terrorist activity.

The Border Security Legislation Amendment Act 2002

The legislation which deals with border surveillance, the movement of people, the movement of goods and the controls Customs has in place to monitor this activity.

The Crimes Act 1914

The legislation which deals with crime, the powers of the authorities to investigate it and many other related issues including sabotage, treachery, disclosure of information and other issues.

The Crimes Amendment Act 2002

The legislation which allowed forensics to be used to identify victims of the Bali bombings.

The Criminal Code Amendment (Anti-Hoax and Other Measures) Act 2002

The legislation which amends the Criminal Code Act 1995 to insert new offences directed at the use of postal and similar services to perpetrate hoaxes, make threats and send dangerous articles.

The Criminal Code Amendment (Espionage and Related Matters) Act 2002

The legislation which enhances Australia’s national security legislative framework by strengthening Australia’s espionage laws.

The Criminal Code Amendment (Offences Against Australians) Act 2002

The legislation which amends the Criminal Code by inserting new provisions to make it an offence to murder, commit manslaughter or intentionally or recklessly cause serious harm to an Australian outside Australia.

The Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002

The legislation which amends the Criminal Code Act 1995 to make it an offence to place bombs or other lethal devices in prescribed places with the intention of causing death or serious harm or causing extensive destruction which would cause major economic loss.

The Security Legislation Amendment (Terrorism) Act 2002

The legislation which amends the Criminal Code Act 1995 to create new terrorism offences, modernise treason offences, creates offences relating to membership or other specified links to terrorist organisations and other initiatives.

The Suppression of the Financing of Terrorism Act 2002

The legislation which amends the Criminal Code Act 1995, the Extradition Act 1988, the Financial Transactions Reports Act 1988, the Mutual Assistance in Criminal Matters Act 1987 and the Charter of the United Nations Act 1945. The amendments insert a new offence which targets persons who provide or collect funds and are reckless as to whether those funds will be used to facilitate a terrorist act and other initiatives.

The Surveillance Devices Act 2004

The legislation that establishes procedures for officers to obtain warrants, emergency authorisations and tracking device authorisations for the installation and use of surveillance devices in relation to criminal investigations and other initiatives.

The Telecommunications Interception Legislation Amendment Act 2002

The legislation which amends the Telecommunications (Interception) Act 1979 to permit law enforcement agencies to seek telecommunications interception warrants in connection with the investigation of terrorism offences and other initiatives.

The Criminal Code Amendment (Terrorism) Act 2003 (Constitutional Reference of Power)

The legislation which removes any uncertainty regarding the constitutional status of the counter-terrorism legislation.

The Crimes (Overseas) Act 1964

The legislation which provides that certain Australian criminal laws apply to conduct committed by Australian civilians who are serving overseas under an arrangement between the Australian Government and the United Nations.

The Australian Federal Police and Other Legislation Amendment Act 2004

The legislation which amends the Australian Federal Police Act 1979 and the Crimes Act 1914 to finalise integration of the Australian Protective Service into the Australian Federal Police and other initiatives.

The Australian Protective Service Amendment Act 2003

The legislation that gives Australian Protective Service and Australian Federal Police the powers to request a person’s personal details, stop and search a person suspected of possessing a weapon, seize weapons and other initiatives.

The International Transfer of Prisoners Amendment Act 2004

The legislation which put in place arrangements to work with the US to transfer Australian citizens convicted by a military tribunal to serve any sentence of imprisonment in Australia.

The Maritime Transport and Offshore Facilities Security Act 2003

The legislation which establishes a scheme to safeguard against unlawful interference with maritime transport and establishes security levels.

The Aviation Transport Security Act 2004

The legislation which establishes a number of mechanisms to safeguard against unlawful interference against aviation.

The Aviation Transport Security (Consequential Amendments and Transitional Provisions) Act 2004

The legislation which introduces a number of amendments and transitional provisions.

The Crimes Amendment Act 2005

The legislation which amends the Crimes Act 1914 to enable Commonwealth participating agencies to request assumed identity documents.

The National Security Information Legislation Amendment Act 2005

The legislation which extends protection of security sensitive information under the National Security Information (Criminal Proceedings) Act 2004.

The National Security Information (Criminal and Civil Proceedings) Act 2004

The legislation which protects information from disclosure in federal criminal proceedings where the disclosure would be likely to prejudice Australia's national security.

Control orders & Preventative Detention Orders

According to a report to the Australian Government for the year ending 30 June 2009 being the Annual Report required by ss.104.29 and 105.47 of the Criminal Code, no Control Orders or Preventative Detention Orders were made in the year 2008-2009.

Whilst significant public concern was expressed at the time the raft of counter terrorism legislation was enacted, it appears that both Federal and State police have simply continued to rely upon other police powers of arrest of surveillance.

In any event the High Court has declared valid the power of the Commonwealth of Australia to enact legislation which confers power to make control orders and in particular interim control orders (see Thomas v Mowbray [2007] HCA 33). 

It is appropriate to set out in brief terms the nature and extent of control orders and preventative detention orders even though they appear to be rarely used.

Control Orders

A control order is defined in Schedule 5 of the Criminal Code to mean “an interim control order or a confirmed control order”.

An interim control order is usually the first step in the process.

An interim control order is made an issuing Court.  An issuing Court includes the Federal Court of Australia, the Family Court of Australia or the Federal Magistrates Court of Australia.  An interim control order can be made by the issuing Court if it is satisfied on the “balance of probabilities” that the making of the order would substantially assist in preventing a terrorist act or that the person has provided training to or received training from a list of terrorist organisations.  The issuing Court also has to be satisfied simply on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act (s.104.4 of the Criminal Code).  The restrictions imposed upon a citizen under an interim control order can be very broad (see for example Jabbour v Thomas [2006] FMCA 1286).  The interim control order does not come into force until it has been personally served on the individual.  Once served then the interim control order may be confirmed, declared void or revoked.  The individual has the right to seek that the order either be revoked, varied or declared void.  However, it is offence to fail to meet the obligations set out in a schedule to any interim control order and the penalty for contravening any of the obligations is a maximum period of imprisonment of 5 years (see sub-s.104.27 and sub-s.101 of the Criminal Code).

The issuing Court in making an interim control order in the absence of the individual is able to make the order if satisfied on the balance of probabilities based upon information provided by a Senior Member of the Australian Federal Police and information received and considered by the issuing Court in the absence of the individual.

The restrictions imposed upon an individual referred to under the Criminal Code as “obligations” may be quite onerous.  They can include reporting requirements to police stations, the provision of fingerprints, restrictions on leaving Australia, prohibition from communicating or associating with a number of individuals including those individuals known to be a member of the listed/specific terrorist organisation.  The individual may be restricted in terms of accessing a wide range of telecommunications or other technology.

An update of the list of terrorist organisations is referred to further in this brief overview.

Preventative Detention Orders

There are initial and preventative detention orders which can be made under the law.

Though rarely used the preventative detention order whether initial or continued allow for an individual to be taken into custody and detained for a short period of time in order to prevent an imminent terrorist attack occurring or preserve evidence of or relating to a recent terrorist act (sub-s.105.1 of the Criminal Code).

For the purpose of continued preventative detention orders a discretion is given to the Minister to appoint an issuing Authority.  That Authority can be a person who is a Judge of a State or a Territory Supreme Court, a person who is a Judge, a person who is a Federal Magistrate or a person who has served as a Judge in one or more superior Courts for a period of 5 years and no longer holds a Commission as a Judge of a Superior Court or a person who holds an appointment to the Administrative Appeals Tribunal as a President or Deputy-President and is enrolled as a legal practitioner of the Federal Court or the Supreme Court of a State or Territory and has been enrolled for at least 5 years. 

It is most important to note that the person who the Minister appoints must consent to being appointed and at the time when a preventative detention order is made that consent should be in force.  

An issuing Authority goes well beyond those judicial officers who currently hold a judicial appointment in a State or Territory or persons who are a Judge or Federal Magistrate. 

Presidents of the Administrative Appeals Tribunal are Federal Court Judges the Deputy Presidents of that Tribunal do not hold judicial office and not all the current appointments are tenured in the same manner as Judges.  The requirement of consent effectively means that the person self nominates as an issuing Authority though the starting point will be with the Minister and accordingly the number of issuing Authority persons may be very narrow.  The issuing Authority acts in a personal role rather than as an independent judicial officer of a recognised Court.

The issuing Authority for a preventative detention order has very wide powers under the Criminal Code.  They include the making of initial preventative detention order issued by the Australian Federal Police which can operate to hold a person’s preventative detention for up to 24 hours.  That period of time can be extended later to up to 48 hours.

Whilst detained, limits can be placed on an individual as to whom an individual may speak to during detention.  This may include the individual’s lawyer or family.  All communications can be monitored and if necessary an interpreter will be present so that police can understand the communication.  A limit is placed upon the information which can be provided and a penalty of prison up to 5 years applies in the event that the information goes beyond simply telling family that the individual is not contactable and otherwise safe (see sub-s.105.37 of the Criminal Code).

A preventative detention order cannot be made in relation to a person who is under 16 years of age.  Persons who are detained under a preventative detention order may be given special assistance pursuant to sub-s.105.5A of the Criminal Code to be assisted by an interpreter and be informed of the extent of an order for any extension or further extension of the order and the persons rights into relation to the order if the police officer detains the person under a preventative detention order has “reasonable grounds to believe the person is unable because inadequate knowledge of the English language or a disability to communicate with reasonable fluency in that language”.  The Criminal Code provides that the individual has the right to consult a lawyer (see sub-s.105.37).

Even when applying for an initial Preventative Detention Order the police officer can claim that the information provided to the issuing Authority is likely to prejudice national security and the information is therefore not included in the summary to be viewed by the individual who happens to be the subject of the initial detention order.

Any person taken into custody or detained under the preventative detention order has to be treated with humanity and respect for human dignity and must not be subject to cruel, inhumane or degrading treatment by anyone exercising authority under the order (see sub-s.105.33 of the Criminal Code).

Presumably the restrictions on contact with family friends or lawyer is not regarded as inhumane treatment or in any way a breach of the obligation of a person exercising authority to treat the person detained with humanity, respect or otherwise not subject the person to cruel, inhuman or degrading treatment.

Hence, although the right to a lawyer can be found in the Criminal Code that right is subject to monitoring by the police (see sub-s.105.38 of the Criminal Code).

Once a person is held under a preventative detention order there is no provision for review of that decision.

Terrorist organisations

The meaning of :”organisation” was considered by the Court of Appeal in Abdul Nacer Bendrika (2010) VSCA 281.  In that case the Court of Appeal looked at what is meant by an organisation for the purpose of the Criminal Code Act 1995 (Cth) and in particular the definition of organisation in s.100.1 of that Code.  That section in general terms provides that an organisation can mean a body corporate or an unincorporated body whether or not the body is based outside Australia, consists of persons who are not Australian citizens or is part of a large organisation. 

A terrorist organisation is defined by s.102.1 of the Code to mean an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act occurs) or an organisation that is specified by the regulations for the purpose of the paragraph.  A terrorist act is also defined in s.100.1(1) and it is useful to set out an extract from the Court of Appeal decision in the Bendrika case as follows:-

35. The definitions of ‘organisation’ in s 100.1, and ‘terrorist organisation’ in s 102.1, necessitate reference to the definition of ‘terrorist act’ in s 100.1(1).  That definition is as follows:

terrorist act means an action or threat of action where:

 (a) the action falls within subsection (2) and does not fall within  subsection (3);  and

 (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause;  and

 (c) the action is done or the threat is made with the intention of:

(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country;  or

(ii) intimidating the public or a section of the public.

36. Under s 100.1(2) an action can constitute a ‘terrorist act’ if it:

(a) causes serious harm that is physical harm to a person;  or

(b) causes serious damage to property;  or

(c) causes a person’s death;  or

(d) endangers a person’s life, other than the life of the person taking the action;  or

(e) creates a serious risk to the health or safety of the public or a section of the public;  or

 (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:

(i) an information system;  or

(ii) a telecommunications system;  or

(iii) a financial system;  or

(iv) a system used for the delivery of essential government services;  or

(v) a system used for, or by, an essential public utility;  or

(vi) a system used for, or by, a transport system.

37. Under s 100.1(3), however, an action will not constitute a ‘terrorist act’ if it:

(a) is advocacy, protest, dissent or industrial action;  and

(b) is not intended:

(i) to cause serious harm that is physical harm to a person; or

(ii) to cause a person’s death;  or

(iii) to endanger the life of a person, other than the person taking the action;  or

(iv) to create a serious risk to the health or safety of the public or a section of the public.

The Australian Government has adopted two processes for the listing of terrorist organisations.  The first is under the Criminal Code Act 1995 and the second under the Charter of the United Nations (Terrorism Dealing with Assets) Regulations 2002 (UN Charter Regulations).

Seventeen organisations were officially listed as at 9 March 2012.  They are as follows:

Once an organisation is listed as a terrorist organisation then penalty provisions apply with imprisonment up to 25 years and the offences include directing activities, becoming a member, recruiting for, training and receiving training from, getting funds to, from or for and provide support to a listed terrorist organisation or associating with another person who is a member of or who promotes or directs the activities of a listed terrorist organisation.  All these activities may be regarded as offences for which the severe penalty upon conviction for being charged.  The listing of terrorist organisations is updated regularly and before joining or associating with any organisation it is advisable to check the list on the Australian National Security website.

Random stop & search powers

The police can stop you, ask you your name, address, proof of who you are and why you are somewhere and can search you or your vehicle or anything under your control; if they think that you "might have just committed, might be committing, or might be about to commit a terrorist act."  Failure to cooperate or provision of a false answer may lead to a substantial fine.  If the Attorney-General believes that an area of any size is to be deemed a security zone for up to 28 days then that can be declared by the Attorney-General on the ground of preventing a terrorist act occurring in or responding to a terrorist act that has occurred.

The search power of the police acting under the counter terrorism law is far wider than search powers otherwise apply where a reasonable suspicion is required.

Incitement, sedition & "advocating" terrorism

There are a number of complex measures relating to incitement and sedition. This would limit people's ability to speak openly about any armed conflict in the world, if it includes Australia or Australia's allies. For example, if a person said that "Iraqis have the right to resist the occupation of Iraq by Western occupiers," this statement could be considered seditious and would carry a sentence of up to 7 years.

Furthermore an organisation that adopted a stance such as the above, would be considered to be "advocating terrorism". Advocating terrorism is defined as "praising the doing of a terrorist act", "directly or indirectly counselling or urging the doing of a terrorist act, or directly or indirectly providing instructions on the doing of a terrorist act".

If that is the case, the organisation can be proscribed, which carries with it many offences. For example, being an informal member of such an organisation would carry a sentence of 10 years.

Charity

The new provisions for financing of a terrorist organisation mean that many innocent people trying to support worthwhile causes could end up in prison for up to 15 years.

Under the new measures, if someone asks you for help collecting charity for a cause and you help them, you have to check they are not using it for terrorist causes. For example, X asks you to help him raise money for victims of an earthquake in Pakistan. You help X to raise funds, but X then gives the funds to an organisation in Pakistan that as well as helping with the earthquake, also engages in activities the government thinks are illegal. You may now be guilty of a crime that could find you in prison for 15 years.

Other measures

Other measures in the counter-terror laws give police extensive powers to ask you to produce personal and private documents such as financial records and to find out about your travel patterns. Safeguards that ASIO have to meet when tapping phone calls and monitoring mail have also been weakened.

What if ASIO visit

ASIO powers

The Australian Security Intelligence Organisation (ASIO) is Australia's national security service, which is responsible for the protection of the country and its citizens from espionage, sabotage, acts of foreign interference, politically motivated violence, attacks on the Australian defence system, and terrorism. Because of the nature of its work, ASIO does not make details of its activities public and law prevents the identities of ASIO officers from being disclosed.

ASIO has special powers when investigating alleged ‘Terrorist activities’.

This can include:

  • the compulsory questioning of suspects;
  • the detention of suspects by the Australian Federal Police, and their subsequent interrogation by ASIO officers;
  • ordinary, frisk or strip search of suspects by AFP officers upon their detainment;
  • the seizure of passports; and
  • the prevention of suspects leaving Australia.

ASIO has also been known to monitor activists, including environmental campaigners.

A report titled Laws for Insecurity? A Report on the Federal Government' s Proposed Counter-Terrorism Measures details various concerns regarding the Federal Government's proposals. It highlights the lack of justification for the laws. Among other concerns emphasised are the substantial departures from key principles of a liberal democracy, the constitutional problems, and the lack of safeguards.

The Parliamentary Library website has a special section on Current Issues devoted to these proposals with frequent updates and links to different resources.

State and Territory Legislation

Terrorism offences

A terrorism offence may be committed by merely possessing a thing in connection with engagement in a terrorist act.

Labelling activists as 'terrorists'

It is likely that in the 'war on terror', public debate and media coverage will be manipulated to suggest that activist groups are potential or actual terrorists.

In 2001 in America, the FBI listed numerous nonviolent, citizen based activist organisations and networks, including 'Reclaim the Streets' and many global justice networks amongst the 'Threats of Terrorism to the United States'.

In a May 10 statement before the Senate Committees on Appropriations, Armed Services and Select Committee on Intelligence, FBI director Louis Freeh listed these groups as a 'potential threat' to the United States along with assorted terrorists from Egypt and Lebanon.

The report reads in part :

"Anarchists and extreme socialist groups many of which, such as the Workers' World Party, Reclaim the Streets, and Carnival Against Capitalism have an international presence and, at times, also represent a potential threat in the United States.

For example, anarchists, operating individually and in groups, caused much of the damage during the 1999 World Trade Organisation ministerial meeting in Seattle."

The list also included,

"extreme fringes of animal rights, environmental, anti-nuclear, and other political and social movements"

as well as the Animal Liberation Front (ALF) and the Earth Liberation Front (ELF).

Shrinking our political space

The fear and concern generated by heightened levels of surveillance and police scrutiny may also alter activist behaviour and organising approaches. More groups may choose to work clandestinely rather than in open organising structures and the possibility of open, nonviolent resistance is lessened.

In this way, the impact of the counter-terror laws may go beyond their legal powers and actually reduce our political space available in Australia.

Keeping informed of counter-terror legislation

Activists may feel helpless, and think that any action against such a powerful piece of legislation would be futile. However, information is a form of power in itself, and Australia's civil rights activists and lawyers need to stay alert and informed to the implications and ramifications of the terror laws. Every law can be resisted. The state and its security apparatus is not, and never will be, omnipotent.