Lawful and unlawful

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“I support your right to protest, as long as you don’t break the law”

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

This “support” for the right to protest, as long as it is lawful, assumes that we have sufficient political space to protest in.

However, criminal laws across “Australia” include a huge range of offences that can be used against activists.

How much political space we actually have depends on a range of factors.

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

Although legal workers can provide information about what the law says and what charges are possible, the way in which police and government apply and use the law is always changing.

While the police may stand by when activists draw chalk on the road during one protest, they may arrest people at a different protest for doing the same thing.

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

When activists camp on public land at or near the site of a protest, police may use local council powers to charge and evict people – even when there is no issue of trespassing.

For example: Police, using an archaic council bylaw, charged activists handing out leaflets at the picket of the NIKE sports store in Melbourne.

Often, when police (or government) can’t use existing laws on protestors, a new law is created (or an existing law changed).

Sometimes new laws are created to to deal with a particular protest. The Aboriginal Tent Embassy in Canberra, and an East Timor solidarity protest outside an Indonesian Consulate are examples of this.

The law of trespass has been changed a number of times in response to forest protests in Tasmania (Brown 1992).

Although some activists may knowingly break laws, or engage in deliberate civil disobedience, not all activists deliberately seek to break the law.

Those who do knowingly risk breaking the law, often weigh up the costs and consequences of unlawful action carefully.

Even activists who go to great lengths to stay within the law can sometimes come face to face with the police.

Laws can be used against activists in order to control or stifle protest and dissent – even when there is no intention by activists to break the law.

Activism is not inherently “criminal”. What makes activism criminal is the legal system getting in the way of social change.

See also Case studies section.

See also Should I be arrested?

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