Activist Rights

Counter-terrorism laws

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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 is the offence of trespassing on property with criminal intent (ie. to commit an offence such as theft, assault or criminal damage). 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).

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.
Designated Areas – failing to comply with an order

Police have additional powers when inside a designated area search people, order to remove face coverings, and to order people to leave the area. Inside a designated area, you can be charged with failing to comply with an order to remove a face covering, for refusing a lawful search, or for staying or returning to the area after being directed to leave.

Face coverings: A police officer can direct a person to remove a face covering if they reasonably believes the person is wearing the face covering to conceal their identity or to protect themselves from the effects of crowd-controlling substances (e.g. capsicum spray). If the person refuses to remove the face covering the police office can order that person to leave the designated area. (section 10KA(1)). A face covering could include protective goggles worn to shield the wearer from capsicum spray. It is an offence to fail to comply with this order (section 10L(2), penalty 5 units). It is not an offence to wear a face covering for religious or infection control purposes.[1]

Directions to leave the area: A police officer can order a person to leave a designated area if they reasonably believe that the person is going to engage in affray or violent disorder (see common charges and offences). (section 10KA(2)). It is an offence to refuse an order to leave a designated area. (section 10L(2), 5 penalty units). If a police officer does give an order for a person to leave an area they must tell that person that the area has been declared a ‘designated area’.

Search powers: In a designated area a police officer may stop and search a person for weapons, and anything that person possesses or controls, or a vehicle. They do not need a warrant to search within a designated area. A police officer may detain a person or vehicle for as long as is reasonably necessary to conduct the search. A vehicle can only be searched if there is a person on or in the vehicle.

It is important to understand that the power to search under the Weapons Act only provides power for police and PSOs to search for controlled weapons.

For example, it does not give police the power to search for drugs or stolen items. As described earlier is not an offence to resist an illegal search. If it is clear that the police are searching for drugs rather than weapons this will make their search illegal and any substances found in such a search can be excluded from being evidence in court.

BUT if the police accidently find drugs during a weapon’s search, they are entitled to charge the person under drug laws and use that evidence in court.

Weapons searches are generally pat down searches and quick bag checks. A more detailed search is evidence that police may be conducting an illegal search.

Protective Service Officers (PSOs) have the same powers and responsibilities as police to conduct searches without a warrant in designated areas – however, PSO’s are only able to conduct searches if police are also conducting searches in the designated area. (section 10GA).

It is an offence to obstruct or hinder a police officer or a PSO carrying out a search. (section 10L).

[1] Statement of Compatibility with the Charter of Human Rights and Responsibilities Act

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