The Law Handbook 2024

Chapter 11.4: Community activism 1047 Historically, the police have been known to exercise their authority by (sometimes pre-emptively) arresting and detaining people who the police reasonably believe have committed an offence. You should always seek legal advice if you are arrested (see Chapter 2.4: Legal services that can help). Local councils must consult the police before granting permits for the use of council land, or for road closures, or for anything else that the council believes will facilitate a public protest being held by a permit applicant (s 6A Summary Offences Act 1966 (Vic) (‘ SO Act ’)). If engaging in a protest that you anticipate may result in arrest or detention, it is good to understand the nature and scope of police powers, and the common charges laid against protesters. Some of the key bail issues and common charges associated with protests are outlined below. For more information, see Chapter 3.5: Arrest, search, interrogation and your rights, and Chapter 3.6: How bail works. Move-on powers Note that while move-on powers are described in this section, police are specifically not permitted to use move-on powers against protesters. The SO Act (s 6(1)) authorises police offices and protective services officers to direct a person to leave a public place, if the officer believes on reasonable grounds that: a the person is breaching the peace, or is likely to do so; b the person is endangering the safety of another person, or is likely to do so; or c the person’s behaviour is likely to cause injury or property damage, or is a risk to public safety. A direction to ‘move on’ can be given to an indivi- dual or to a group of people, and may require the person or group to avoid that particular public place for 24 hours. It is an offence to contravene a direction (penalty: five penalty units ( pu )). Under the SO Act (s 6(5)), people cannot be directed to move on if they are: • picketing a place of employment; • demonstrating; or • holding banners or signs or speaking in public. It is important to note that what is required is that the officer has reasonable grounds to believe that certain things are ‘likely to happen’. At the time you are directed to move on, the police officer does not have to state the basis for their belief. However, if you challenge the direction later, the officer will need to satisfy a court that their belief was objectively justified. Designated areas, weapons and face coverings Under the Control of Weapons Act 1990 (Vic) (‘ CW Act ’), the Chief Commissioner of Victoria Police may declare an area to be a ‘designated area’ at short notice. The declaration can be published on the Victoria Police website (www.police.vic.gov.au) . Within a designated area, a police officer can search a person for weapons without a warrant. The officer should give the person a ‘search notice’. A police officer can also direct a person who is wearing a face covering to leave a designated area. The police officer must reasonably believe that the person is wearing the face covering primarily to conceal their identity or to protect themselves from the effects of crowd-controlling substances (e.g. capsicum spray). Given that face coverings can be worn for religious reasons and, since the COVID-19 pandemic, masks have been widely worn for public health purposes, it may be harder for police officers to legitimately direct people to leave protests for this reason. A police officer can also direct a person to leave a designated area if the officer reasonably believes that the person intends to engage in conduct that would constitute the criminal offences of affray or violent disorder. It is an offence to fail to comply with a direction given by a police officer without a reasonable excuse. A penalty of five pu applies to this offence (s 10L(2) CW Act). Bail issues If you are arrested for an offence, police may seek to impose bail conditions that cover the period up until your case is heard in court. Imposing a geographical exclusion zone (being a place or area you must not visit or may only visit at specified times) is a common bail condition used against demonstrators to prevent them from returning to the protest site. The object of bail should be to ensure that you attend court, and not to control your life. If you