The Law Handbook 2024

1048 Section 11: Rights, activism and fair treatment at work cannot negotiate with police to not include an oppressive bail condition, you have four options: 1 accept bail and comply with the condition; 2 accept bail and breach the condition – here, you risk bail being refused if you are re-arrested; 3 accept bail and seek to have the condition changed at a later date by a court; or 4 refuse bail and stay in custody until you can have the condition removed by a court (during business hours) or by a bail justice (out of hours). If you are putting your case before a magistrate, consider whether you have a legitimate reason for attending a designated area (e.g. attending work, study or transport connections), which would make the imposition of a geographical exclusion zone oppressive. Such arguments have been successfully made in the Magistrates’ Court to challenge these types of bail conditions. If, however, a magistrate decides that the bail condition should stand, and you are forced to accept the condition or lose your freedom, you can lodge an urgent application to the Supreme Court to delete the condition. For more information, see Chapter 3.6: How bail works. Fines If a court imposes a fine as a penalty, it must take into account your personal circumstances and capacity to pay a fine. You may request to pay a fine by instalments, or to work off any fines through community work. NOTE For the period 1 July 2023 to 30 June 2024, one penalty unit ( pu ) equals $192.31 under Victorian state law and $313 under Commonwealth law. For more information, see ‘A note about penalty units’ at the start of this book. Common charges associated with protests Obstruction The police may threaten to charge a person with obstruction if they want someone out of the way. However, to charge a person with obstruction under Victorian law , the police must prove that the person was in some way preventing ‘the free passage of the public’ (s 4(e) SO Act). Furthermore, under section 5 of the SO Act, the obstruction must be ‘undue’ having regard to the amount of traffic on the footpath or road at the time. Also, the charge of obstruction of a footpath or road does not relate to a ‘procession’. The maximum penalty for obstruction under state law is five pu. Commonwealth law has a section more clearly aimed at demonstrations: a person ‘taking part in an assembly [who] engages in unreasonable obstruction’ at a Commonwealth facility or in a Commonwealth territory commits an offence (s 9 Public Order (Protection of Persons and Property) Act 1971 (Cth) (‘ Public Order Act ’). The penalty is a fine of up to 20 pu. Trespass Under Victorian law it is an 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 (s 9(1)(d) SO Act). The maximum penalty is 25 pu or six months in jail. The corresponding Commonwealth offences do not require that a warning be given; but federal law does provide the defences of ‘lawful’ or ‘reasonable excuse’ (s 89(1) Crimes Act 1914 (Cth); ss 11(1), 12(1) Public Order Act). The penalty for both offences is a fine of up to 10 pu. Trespass on certain types of premises is governed by different Acts. For example, regulation 35 of the Defence Regulations 1952 (Cth) authorises the federal Minister for Defence to declare a place to be a prohibited area. These regulations also create offences of entering or remaining in a prohibited area without permission; the maximum penalty for these offences is 20 pu or six months in jail, or both. Unlawful assembly In Victoria, there is a common law offence of unlawful assembly. This prohibits three or more people meeting with an intent to commit a crime by open force, or with an 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. Under section 10 of the Unlawful Assemblies and Processions Act 1958 (Vic), any person who attends and takes part in an unlawful assembly, which includes