The right to freedom of political expression, including peaceful protests, is protected under the Australian constitution. A person cannot be charged with taking part in a political protest. However, there are a number of offences that can arise out of participation in protests if certain boundaries are crossed. Such offences may be found in the Crimes Act 1900, the Summary Offences Act 1984, the Forestry Act 2012 and the Mining Act 1992.
Some of the most common criminal charges that arise our of political protests involve obstructing public infrastructure or hindering public officials. These include offences like obstructing traffic, obstructing a railway and resisting or hindering police.
Section 6 of the Summary Offences Act makes it an offence to obstruct traffic. This is punishable by a maximum penalty of a fine of four penalty units. This charge often arises when protests involves a blockade that stops traffic from getting through, even if this occurs only for a very short period.
Obstructing a railway
Section 213 of the Crimes Act makes it an offence to intentionally and without lawful excuse do something that causes the passage of a train on a railway to be obstructed This is punishable by a maximum penalty of imprisonment for two years. This charge may arise when a railway line is blocked by a vehicle or by the bodies of protesters.
Resist or hinder police
Section 546C of the Crimes act makes it an offence to resist or hinder a police officer in the execution of their duty. This is punishable by a maximum penalty of imprisonment for 12 months or a fine of 10 penalty units.
If you are taking part in a protest and the police attempt to place you under arrest, you may be charged with an offence if you resist. If you are sitting down on a road or have your arms linked with other people in a blockade, the charge of resisting police can be made out simply by not moving from your position when police try to arrest you.
You can also be charged with this offence if you get in the way of police when they are trying to arrest someone else or carry out some other police duty during the course of political protests.
Section 60 of the Crimes Act make sit an offence to assault a police officer. If no bodily harm is suffered by the police officer, the maximum penalty for this is imprisonment for five years. If bodily harm is suffered, the maximum penalty is imprisonment for seven years.
If an encounter with police occurs during a protest, it is important to be aware that there may be very serious consequences if it escalates into an assault. An assault may be as simple as raising a fist to a police officer, even if there is no physical contact. It is also common for assault police charges to arise from spitting at or in the direction of a police officer.
Section 545C(1) of the Crimes Act makes it an offence to knowingly take part in an unlawful assembly. This is punishable by a maximum of a fine of five penalty units or imprisonment for six months, or both. If the offender has a weapon, the maximum penalty is a fine of 10 penalty units or imprisonment for 12 months.
An unlawful assembly is an assembly of five or more persons whose goal is to compel a person to do something they are not legally bound to do by way of intimidation or injury.
Section 93C of the Crimes Act makes it an offence to use or threaten unlawful violence to a person in a way that would cause fear to a person of reasonable firmness and courage. This is known as affray and is punishable by a maximum of imprisonment for 10 years.
Section 59A of the Crimes Act makes it an offence to assault a person during a large-scale public disorder, such as a riot or other civil disturbance that gives rise to a serious risk to public safety. This offence carries a maximum penalty of five years, or seven years in bodily harm is inflicted.
Section 11A of the Summary Offences Act makes it an offence for three or more persons to use or threaten violence in such a way that would cause a person of reasonable firmness and courage to fear for their safety. This offence carries a maximum penalty of a fine of 10 penalty units or imprisonment for six months. Violence includes violent conduct towards property.
Section 93B of the Crimes Act makes it an offence for 12 or more people to use or threaten unlawful violence for a common purpose in such a way that causes a person of reasonable firmness and courage to fear for their safety. This offence carries a maximum penalty of imprisonment for 15 years.
Offences relating to mines
Environmental activists should also be aware of a number of offences relating to mines and forestry that may arise out of taking part in protests.
Interfere with a mine
Under Section 201 of the Crimes Act, it is an offence to interfere with a mine. This carries a maximum penalty of imprisonment for seven years. This offence covers acts such as destroying or damaging any equipment, building, road, or bridge belonging to a mine or hindering the working of equipment belonging to a mine.
This offence often arises when protesters ‘lock on’ to mining equipment or blockade roads leading to mining sites.
Obstructing or hindering
Section 257 of the Mining Act makes it an offence to obstruct or hinder anyone who is doing anything under a permit granted under the Mining Act.
It is an offence under Section 83 of the Forestry Act to obstruct, hinder or delay an authorised officer under the Forestry Act (including police). This carries a maximum penalty of a fine of 20 penalty units, or 50 penalty units if the officer is assaulted, threatened or intimidated.
It is also an offence under Section 38 of the Forestry Act to damage or destroy forest materials, such as timber. This carries a maximum penalty of a fine of 50 penalty units or imprisonment for six months, or both as well as $10 for each tree destroyed or damaged.
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