The Unsealed Section: Your Rights at a Protest

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Words || Olivia James

I heard that protest laws in NSW were changed recently. I’m a regular activist and I don’t understand what impact these changes will have on future marches or protests that I go to. Why did they change the laws and how can I stay safe?

You’re right. Laws regarding protest were amended in 2016. However, the bulk of the changes address interfering with the operations of mining facilities. These changes essentially prevent activists from damaging or destroying property and from hindering business operation. With 77 per cent of Australians believing in climate change, according to the Climate Institute’s most recent report, it’s likely that this governmental focus on mining is the result of partisan lobbying from conservatives.

The amendments extend beyond the realm of mining, however, so even if you weren’t planning on forming a blockade at the entrance of a mining facility, there’s still a few things you should be mindful of. Firstly, penalties for entering or remaining on enclosed lands without a lawful excuse have been introduced. The scope of what constitutes ‘inclosed land’ is extremely broad, including any property where the owner, occupier or person in charge of the land has not consented to your access. This could range from a coal mine to the foyer of a bank. ‘Aggravated unlawful entry’ has also been introduced to NSW law, imposing a potential $5,500 fine for those who enter or interfere with lands where a business or undertaking is conducted.

To explain without legal jargon: if you enter a place of business without permission and/or interfere with their work, you could be short $5,500, or roughly 3 smashed avocados on toast, in Bernard Salt’s currency. But for those budding activists thinking they’ve escaped unscathed, unfortunately the government hasn’t forgotten about you, even if you don’t plan to infiltrate a business owned by Gina Reinhart.

From November 2016, police powers received an upgrade. Police are now able to stop and search you if they have a reasonable suspicion that you’re in possession of stolen goods, a prohibited drug, or something used to commit certain serious offences, including the aforementioned obstruction of business operations. If they find any of those things on your person they can seize and detain them until they decide that holding on to the items as evidence is no longer required, or that it is lawful for you to you have possession of the property. Police can now also force you to ‘move on’ if they have reasonable grounds to believe that you could cause a serious risk.

So how will this impact you as you attend your next Women’s March, Black Lives Matter rally or Let Them In protest? The word reasonable gives an almost uncomfortable amount of wriggle room to officers. The laws don’t define reasonable, which means that whether or not you’re your stopped and searched, or told to leave the area, is entirely dependent on the officer who approaches you. This is especially troubling since things like you potentially obstructing traffic constitutes a serious risk, according to the changes.

So what can you do to stay safe while protesting things like the tampon tax or failure to introduce marriage equality?

If you are approached whilst protesting in a group, officers are required to provide the reason for their exercise of power. So if you’re told to leave the area, you’re well within your rights to ask what the grounds for the order are. You’re also allowed to ask police for their name and place of duty, which they must tell you. If you’re approached while separate from a group, officers are required to provide you with their name and place of duty as well as their reason for exercise of power. In both cases, if the officer isn’t in uniform, they have to provide evidence that they are an officer.

For all you future thought leaders and Q&A guests, know your rights and keep it civil while you’re out there with your boots on the ground. You’re entitled to know why you’re being told to leave an area or being stopped and searched, but how your questions are handled will range from officer to officer. The best thing you can do if you think you’re being treated unjustly is to remain calm and get the officer’s details, as per the Law Enforcement (Powers and Responsibilities) Act 2002, so that they can be held accountable. Stay safe out there and happy marching!