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) Summary Offences Act 1966 (Vic) (‘SO Act’)).
Furthermore, under section 5 of the SO Act, the obstruction must be ‘undue’. 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). The penalty is a fine of up to 20 pu.
For the period 1 July 2021 to 30 June 2022, one penalty unit (pu) equals $181.74 under Victorian state law.
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 (Protection of Persons and Property) Act 1971 (Cth)). 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.
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.
Also, 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 any political demonstration, is guilty of an offence. This charge is very rarely used, but it does illustrate the power that governments have to stop ‘political’ actions if they wish to do so.
It is an offence to be disguised or to have an article of disguise in your possession, with unlawful intent. The penalty is two years in jail (s 49C So Act).
Heavier penalties can be imposed on people who commit the criminal offences of affray or violent disorder while wearing a mask, if the primary purpose of wearing the mask is to conceal their identity or to protect themselves from the effects of crowd-controlling substances (e.g. capsicum spray).
(See comments in ‘Designated areas, weapons and face coverings’ in ‘Protesting: Your rights and the police‘ in relation to wearing masks and other face coverings for public health and religious purposes.)
Under Victorian law it is an offence to use indecent or threatening language or behaviour in or near a public place, or within the view or hearing of a person in a public place (s 17(1) SO Act). The maximum penalty for a first offence is 10 pu or two months in jail.
‘Public place’ is very widely defined and includes roads, streets, alleys, footpaths, parks, gardens, railway stations, trains, piers, churches, state schools, theatres, markets, sporting grounds and open areas. It can be argued that current community standards dictate that the conduct over which a person has been charged may not amount to obscene, indecent or threatening behaviour.
The Commonwealth ‘offensive or disorderly manner’ law is associated with the trespass law. Under section 12(2)(b) of the Public Order (Protection of Persons and Property) Act 1971 (Cth), it is an offence for a person who ‘while trespassing on premises in a territory’ or ‘being in or on Commonwealth premises … behaves in an offensive or disorderly manner’. Both these offences carry penalties of up to 20 pu. The meaning of ‘offensive or disorderly’ has to be established, and the common law defence of ‘reasonable excuse’ can be used.
Under Victorian law it is an offence for anyone (alone or with others) to wilfully and without lawful authority ‘beset’ any premises, whether public or private, for the purpose and with the effect of obstructing, hindering or impeding by an assembly of people any person’s lawful right to enter, use or leave such premises (s 52(1A) SO Act).
The maximum penalty is 15 pu or three months in jail.
The charge of besetting requires all entrances to the property to be obstructed, and that there was no other option for entering the premises (i.e. the premises must have been completely surrounded).
Offences against emergency workers
Summary Offences Act 1966 (Vic)
Under the SO Act (s 51), it is an offence to ‘assault, resist, obstruct hinder or delay’ an emergency worker on duty.
‘Emergency workers’ are:
- police officers;
- protective services officers;
- ambulance officers;
It is also an offence to assault, resist, obstruct, hinder or delay a council worker on duty. The prohibition extends to assaults on registered health practitioners (s 51A SO Act).
Almost any behaviour might support a charge of ‘delaying’ an emergency worker. The maximum penalty is six months in jail or a fine of 60 pu.
However, emergency workers on duty are public officials and are required to consider your rights under section 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) when making decisions about you, including your right to peaceful assembly.
Sentencing Act 1991 (Vic)
It is an offence to:
- intentionally or recklessly injure any person (s 18 Crimes Act 1958 (Vic) (‘Crimes Act (Vic)’));
- intentionally or recklessly seriously injure any person (ss 16, 17 Crimes Act (Vic)).
These offences are generally described as ‘assaults’ and can be punished by imprisonment.
However, if the victim is an emergency worker, it is a very serious offence and attracts a minimum mandatory jail sentence under the Sentencing Act 1991 (Vic) (‘Sentencing Act’) (s 10AA). The length of time in prison is determined by which type of assault was committed on the emergency worker.
Mandatory imprisonment will be imposed unless:
- the offender has impaired mental functioning (s 10A(2)) that is not caused solely by self-induced intoxication (s 10A(2)(c)); or
- the court imposes a secure residential order; or
- there are ‘substantial and compelling reasons that are exceptional and rare’.
These Sentencing Act provisions do not apply to children aged under 18 years.
Driving offences and emergency workers
Intentionally or recklessly exposing an emergency worker to risk by driving carries a penalty of up to 20 years in jail, whether or not the worker is injured (s 317AC Crimes Act (Vic)).
A non-parole period of at least two years may apply if the emergency worker is injured (s 10AE(1) Sentencing Act).
It is also an offence under Victorian law for someone to obstruct, assault, threaten or abuse an authorised officer while performing their functions under the National Parks Act 1975 (Vic) (s 45(1)).
The maximum penalty is six months in jail or 20 pu.
Criminal Code Act 1995 (Cth)
Under Commonwealth law, it is an offence to ‘intentionally and knowingly obstruct, resist, hinder, use violence against, threaten or intimidate’ a federal police officer who is carrying out a ‘function or duty’ (sch 1 item 149(1) Criminal Code Act 1995 (Cth)).
The maximum penalty is two years in jail.
The common law offence of riot has been abolished.
‘Violent disorder’ occurs where six or more people together use, or threaten to use, unlawful violence with a common goal or intention and their conduct together causes injury or damages property.
An individual is only guilty of violent disorder if they intended to use or intended to threaten violence, or were reckless about whether their conduct involved violence or threatened violence.
The penalty for violent disorder is 10 years in jail. The penalty increases to 15 years in jail if the person committed the offence while wearing a face covering, and was wearing the face covering primarily to conceal their identity or to protect themselves from the effects of crowd-controlling substances (s 195I(3) Crimes Act (Vic)).
The common law offence of affray has been abolished.
To prove the statutory offence of affray, the prosecution must prove that a person used, or threatened to use, unlawful violence and that the person’s conduct would cause a person of reasonable firmness to be terrified.
A person is only guilty of affray if they intended to use or intended to threaten violence, or were reckless about whether their conduct involved violence or threatened violence.
The maximum penalty for affray is five years in jail. The penalty increases to seven years in jail if the person committed the offence while wearing a mask, and was wearing the face covering primarily to conceal their identity or to protect themselves from the effects of crowd-controlling substances (s 195H(1) Crimes Act (Vic)).
Property could be damaged unintentionally during a protest or the damage may be part of a protest.
Under Victorian law there are a number of offences that relate to damaging property. The most significant of these is set out in section 197 of the Crimes Act (Vic), which provides for jail sentences of up to 15 years where there is an intention to endanger life or damage property.
Where the intention is to only damage property, the maximum penalty is 10 years in jail. Generally, this section is used for the more serious examples of damage to property. This charge could be laid by police in situations involving gluing padlocks, painting security cameras or pulling down a fence. In addition to the sentence, police will usually ask the court to order that the defendant pay the cost of repairing the damaged property; this can be a significant amount.
Wilful damage charges are generally used where there has been less significant damage to property (i.e. under $5000 to repair). These less serious property damage offences can be found in section 9 of the SO Act. The maximum penalties are much lower: six months in jail or a fine of 25 pu.
Penalties for property damage offences can range from an ‘adjourned undertaking’ through to imprisonment. If you cause only minor damage to property, and you have few or no police priors, the penalty will fall towards the lower end of this range.
Penalties and compensation orders reflect the damage alleged to have occurred. The prosecution should provide evidence (e.g. statements or quotes) of repair costs if they seek a restitution order.
Safe access zones
The Victorian Parliament has introduced ‘safe access zones’. To ensure privacy and safe access to premises within these zones (i.e. premises at which abortions are provided), certain behaviour is prohibited within these zones (s 185D Public Health and Wellbeing Act 2008 (Vic)).
Prohibited behaviour includes:
communicating by any means in relation to abortions in a manner that is able to be seen or heard by a person accessing, seeking to access or leaving a premises at which abortions are provided and is reasonably likely to cause distress and anxiety.
Breaching the safe access zone legislation is an offence carrying a maximum penalty of 12 months in jail or a fine of 120 pu.
The High Court has recently ruled that the safe access zone legislation is not constitutionally invalid – even though it prohibits certain behaviour, including ‘communication’. In other words, this law does not impermissably burden the freedom of political communication that is implied in the Australian Constitution. (See Clubb v Edwards; Preston v Avery  HCA 11, 10 April 2019.)
In Victoria, it is an offence to mark publicly visible graffiti without first receiving the consent of the property owner (s 5 Graffiti Prevention Act 2007 (Vic) (‘GP Act’)).
It is also an offence to mark publicly visible graffiti that is offensive, even with consent (s 6 GP Act); however, section 6 provides an exception for reasonable political comment.
The maximum penalty for breaching sections 5 or 6 of the GP Act is two years in jail.
Under section 7 of the GP Act, it is an offence to possess a graffiti implement with the intention of using it to breach sections 5 or 6. The maximum penalty for possession of such an implement is 25 pu.
It is an offence to deposit advertising material anywhere but in a mailbox (s 45L Environment Protection Act 1970 (Vic) (‘EP Act’)), including on a vehicle (s 45N).
It is not an offence to deposit material that has a ‘political purpose’ into mailboxes labelled with ‘no junk mail’ or ‘no advertising material’ (s 45M(1)(b)).
There are other laws, including local council laws, relevant to damage to property, graffiti and postering.
It is an offence to post placards, bills, stickers or other documents, or to write, paint on or deface virtually any structure, including such things as trees and gates, without the consent of the owner (s 45(O) EP Act; s 10 SO Act).
It is up to the defendant to prove that they had the owner’s consent.
The maximum penalty under the SO Act is 15 pu or three months in jail, although a fine of below $500 is more likely. Under the EP Act, the maximum penalty is 10 pu. In addition to a fine, the defendant can be ordered to pay clean-up costs.
Other possible offences
Burglary is the offence of trespassing on property with criminal intent. This could apply to protestors who enter private property with the deliberate intention of damaging it. The penalty is up to 10 years in jail.
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 what injuries were caused.
Offences relating to forest operations
In addition to the offences outlined above, there is a range of criminal offences that can be used against people protesting in forests.
Legislation – including the Safety on Public Land Act 2004 (Vic) (‘SPL Act’) and the Sustainable Forests (Timber) Act 2004 (Vic) (‘SFT Act’) – contribute an array of offences, virtually identical in character to existing offences under the Conservation, Forests and Lands Act 1987 (Vic), the Forests Act 1958 (Vic) and the Land Act 1958 (Vic).
The SPL Act empowers the Secretary of the Victorian Government Department of Environment, Land, Water and Planning (DELWP) to declare certain areas to be public safety zones and to exclude the public from those areas of state forest. Declared areas can include public recreational areas.
Offences under the SPL Act (ss 10, 14, 15, 16) tend to relate to breaches of these public safety zones and attract fines of up to 20 pu.
The SFT Act includes the following offences:
- failing to give your name and address to a DELWP officer (s 84; maximum penalty: five pu);
- hindering or obstructing a DELWP officer while they are exercising their duties or powers under the SFT Act (s 86; maximum penalty: 60 pu); and
- threatening or abusing a DELWP officer while they are executing their duty (s 87; penalty: 60 pu).
For more information about offences relating to forest operations, contact Lawyers for Forests.