This factsheet contains information to help you understand the law around non-violent direct action (NVDA) in the ACT. NVDA includes demonstrations, peaceful protests, strikes, occupations or marches that people use to effect change. This factsheet only discusses non-violent direct action. Note that this factsheet does not generally cover actions which involve harming property (except for graffiti) or people.

1. Where is your action happening?

In the ACT, land is subject to the authority of the ACT Government or the National Capital Authority. There are also specific rules for land in the Parliamentary Precincts.

The law will be different depending on whether your protest is on ACT land or Commonwealth land. You can find out what type of land your protest is on by looking at the Territory Plan (see www.actmapi.act.gov.au). Note that this factsheet applies to protests on ACT Land only.

2. Who do I need to notify if I am planning a protest on ACT Land?

If you are planning a protest, you may need to seek approvals from the ACT Government. You will need to contact Access Canberra to determine the types of approvals that are required and whether you need to apply for events approval. There may be consequences for organising a protest without notifying authorities, for example, you may be required to pay a fine.

Depending on your protest, you may need:

  • Approval to use Territory Land; or
  • Approvals for changes to traffic conditions.

The ACT Government may require you to pay a fee or charge for traffic control. To see these fees, click here (www.tccs.act.gov.au/roads-paths/traffic/temporary-traffic-management).

To contact Access Canberra about planning an action, you can use the Event Enquiry Request online (available at www.accesscanberra.act.gov.au) or call 13 22 81.

3. What offences could I be charged with if I am part of an action on ACT Land?

Offences that you may be charged with if you are protesting in the ACT are outlined below.

Penalty Units. There is a maximum penalty which may be imposed if you are found guilty of an offence. This may be expressed as a period of imprisonment or as a number of “penalty units” (or both). A penalty unit is the base unit used to calculate the maximum fine which may be imposed for commission of a particular offence. At the time of writing, the value of a penalty unit for an offence against ACT law is $160 for an individual and $810 for a corporation (section 133 of the Legislation Act 2001 (ACT)), whilst the value of a penalty unit for an offence against Commonwealth law is $210 (for both individuals and corporations (section 4AA of the Crimes Act 1914 (Cth)).

Trespass

Trespass is unlawfully entering someone’s land (whether public or private land). Trespass can be a criminal offence, which means you can be arrested and charged with an offence if you trespass.

Under the Public Order (Protection of Persons and Property) Act 1971 (Cth), it is an offence to:

  • Trespass on premises in the ACT (section 11(1) of the Public Order Act, 10 penalty units);
  • Behave in an offensive or disorderly manner while trespassing on premises in the ACT (section 11(2)(b) of the Public Order Act, 20 penalty units);
  • Refuse or neglect to leave premises after being directed to leave by the occupier or a person acting with the authority of the occupier (section 11(2)(c) of the Public Order Act, 20 penalty units).

There are also offences of forcible entry and detention of land under the Crimes Act 1900:

  • A person who enters on land that is in the actual and peaceable possession of another person in a manner likely to cause a breach of the peace commits an offence (section 151 of the Crimes Act 1900, 20 penalty units, imprisonment for 1 year or both);
  • A person who, being in actual possession of land without any legal right to possession, holds possession of the land against any person legally entitled to possession of the land in a manner likely to cause a breach of the peace commits an offence (section 152 of the Crimes Act 1900, 20 penalty units, imprisonment for 1 year or both).

There are specific trespass offences for ACT Government land:

  • A person who, without reasonable excuse, trespasses on government premises commits an offence (section 154(1) of the Crimes Act 1900 (ACT), 1 penalty unit, imprisonment for 1 month or both);
  • The Minister may cause to be placed a notice prohibiting trespass on unleased Territory land or land occupied by the Territory. A person who, without reasonable excuse, trespasses or enters on such land commits an offence (section 4 of the Trespass on Territory Land Act 1932 (ACT), 5 penalty units).

Case study: Patricia Ellen Mark & Ors v Gordon Robert Henshaw [1998] FCA 556 (22 May 1998) Animal rights demonstrators entered an egg farm in Belconnen without the owners’ permission. They video recorded the hens in cages and took some of the hens to the vet. Before the police arrived, the demonstrators chained themselves to the hen cages. When the police cut the chains and ordered everyone to leave, the demonstrators refused to leave, arguing that the police should first investigate their animal welfare complaints against the egg farm. The demonstrators were charged with trespass under section 11(2)(b) of the Public Order (Protection of Persons and Property) Act 1971 (Cth). The demonstrators argued that they had a “reasonable excuse” to enter because they wished to protest the hen farming operations and because they were concerned that there were sick, injured and distressed hens. On appeal, it was held that the demonstrators were guilty of an offence because the courts “do not accept that it is reasonable to enter as a demonstrator, upon the premise of another, when the occupant is carrying on a lawful activity of which the trespasser disapproves.”

Offences involving an assembly

An “assembly” under section 4 of the Public Order (Protection of Persons and Property) Act 1971 (Cth) means: an assembly of not less than three persons who are assembled for a common purpose, whether or not other persons are assembled with them and whether the assembly is at a particular place or moving, and includes the conduct in connexion with that common purpose of all or any of the persons in the assembly.

This means that if your action involves a group of three or more people, you should be aware of specific offences that apply to assemblies. In particular, there are offences which may apply if you are taking part in an assembly where there is a reasonable apprehension that the assembly will be carried on in a manner involving unlawful physical violence to persons or unlawful damage to property (see section 6 and section 8 of the Public Order (Protection of Persons and Property) Act 1971 (Cth)).

Obstruction

Under the section 4 of the Public Order (Protection of Persons and Property) Act 1971 (Cth) “unreasonable obstruction” means: an act or thing done by a person that constitutes, or contributes to, an obstruction of, or interference with, the exercise or enjoyment by other persons of their lawful rights or privileges (including rights of passage along the public streets) where, having regard to all the circumstances of the obstruction or interference, including its place, time, duration and nature, it constitutes an unreasonable obstruction or interference, and unreasonably obstructs” has a corresponding meaning.

This means that if your action involves marching or blocking public streets, you should consider the following offences:

If your action involves government premises, you should be aware that it is an offence to engage in unreasonable obstruction in relation to the passage of persons or vehicles into, out of, or on government premises, or otherwise in relation to the use of government premises (section 154(2) of the Crimes Act 1900, 2.5 penalty units, imprisonment for 3 months or both).

Posting bills and defacing property

Under section 119 of the Crimes Act 1990, a person commits an offence if the person:

  • Affixes a placard or paper, or makes a mark with chalk, paint or any other material on private premises; and does not have consent of the occupier, owner, or person in charge of the premises (section 119(1) of the Crimes Act 1990, 50 penalty units, imprisonment for 6 months or both);
  • Unlawfully affixes a placard or paper, or makes a mark with chalk, paint or any other material, on public property (section 119(2) of the Crimes Act 1990, 50 penalty units, imprisonment for 6 months or both).

Case study: Bruford v Murphy [2005] ACTSC 98 (14 September 2005) A demonstrator used spray paint to paint political graffiti on three electricity boxes, a concrete wall on London Circuit, and Bernadette’s Vegetarian Café and the National Bank at the corner of London Circuit and Ainslie Avenue, Canberra City. He was charged with seven offences again section 119 of the Crimes Act 1900 (ACT). On appeal, his penalty was reduced from $1,500 to $1,000

Other offences for interfering with infrastructure

If you are planning an action that involves interfering with infrastructure, you should get legal advice because specific offences may apply. This includes offences for:

  • Hindering working of mines (Section 141 of the Crimes Act 1900 (ACT), fine up to 200 penalty units, imprisonment up to 7 years, or both);
  • Offences in relation to railways (Section 144 of the Crimes Act 1900, 200 penalty units, imprisonment for 10 years or both);
  • Obstructing railway engines (Section 145 of the Crimes Act 1900, 100 penalty units, imprisonment for 3 years or both).

You may decide to have people fulfil the following roles to help your interactions with police go smoothly:

“Police Liaison”: The role of the police liaison is to communicate between activists and police.

“Legal Observers”: The purpose of legal observers is to monitor, record, and report on any unlawful or improper behaviour.

There are several resources available which discuss these roles and supports you can organise if you intend to undertake an action. For example, see CounterAct for more information.

4. Police powers and interactions

Providing personal details

If a police officer has reason to believe that an offence has been or may have been committed; and believes on reasonable grounds that you may be able to assist in inquiries in relation to that offence; and your name or address (or both) is unknown to the officer; the officer may request that you to provide your name or address (or both) to the officer but must inform you of the reason for the request (section 211(1) of the Crimes Act).

If a police officer asks you to state your name and address, you may request the police officer to state (section 211(3) of the Crimes Act):

  • His or her name and/or the address of their place of duty; and
  • If the Police Officer is not in uniform and it is practicable for the police officer to provide the evidence—evidence that they are a police officer.

If the police officer makes this request, informs you of the reason for the request, and complies with section 211(3) of the Crimes Act, then is an offence to refuse to provide your name and address or to give a false name and address (section 211(2) of the Crimes Act, Maximum penalty: $500).

Directions to move on

In 2016, the ACT introduced new exclusion direction powers contained in Part 9 of the Crimes Act 1900 (ACT). Police may ask you to leave an area if they reasonably think you have recently engaged in, are currently engaged in, or are likely in the immediate future to engage in conduct involving violence, intimidation, or damage to property and/or behaving in a way that would cause a reasonable person to fear for their safety (section 175(1) of the Crimes Act).

Importantly, these powers do not apply to a person who (whether part of a group or not) is (section 175(2) of the Crimes Act):

  • picketing a place of employment; or
  • demonstrating or protesting about a particular issue; or
  • speaking, bearing or otherwise identifying with a banner, placard or sign or otherwise behaving in a way that is apparently intended to publicise the person’s view about a particular issue.

5. Arrest

What should I do if I am arrested? You can ask “am I under arrest?” and “what for?”. In most cases, it is necessary for police to inform you of the reason for the arrest. In general, aside from providing your correct name and address, you should not answer questions asked by police. Responses that you provide to questions asked by the police can be used as evidence. You should always get legal advice before being questioned by Police.

Can someone other than a police officer arrest me?

A person who is not a police officer may arrest another person without a warrant if they believe on reasonable grounds that you are committing or have just committed an offence (section 218(1) of the Crimes Act 1900), and must, as soon as practicable after the arrest, arrange for the person arrested and any property found on that person to be delivered into the custody of a police officer (section 218(2) of the Crimes Act 1900).

When can the police arrest me and why?

Police arrest without a warrant

At a non-violent direct action, you are more likely to be arrested without a warrant than with a warrant.

A police officer may arrest you without a warrant if the police officer suspects on reasonable grounds that you have committed or are committing an offence (section 212(1)(a) of the Crimes Act 1900) AND that if they did not arrest you and instead gave you a summons to attend court, one or more of the following purposes might not be achieved (section 212(1)(b) of the Crimes Act 1900):

  • ensuring you appear before a court;
  • preventing the continuation of the offence or further offences being committed;
  • preventing the concealment, loss or destruction of evidence;
  • preventing harassment of, or interference with, potential witnesses;
  • preventing the fabrication of evidence;
  • preserving your safety or welfare.

Police arrest with a warrant

An arrest warrant is a document telling police officers to arrest a person and bring them before a court. A person arrested on a warrant must be brought before a court as soon as is reasonably practical.

What do the police need to do to arrest me?

The police need to tell you that they intend to arrest you, for example, by saying ‘I arrest you’ or ‘you are under arrest’. There are no particular words that the police officer needs to tell you, as long as you understand that they intend to arrest you.

The police need to show that there has been a sufficient act of arrest or submission, for example, by touching you on the shoulder or arm. If you submit by words, for example by stating something like “yes, I understand’ or through your conduct, for example offering the police officer one’s wrists to be cuffed, then this will show a sufficient act of arrest or submission. More information on resisting, hindering or obstructing arrest is below.

You are entitled to know on what charge or on suspicion of what offence you are being arrested, though this need not require the use of technical or precise terms. However, this requirement does not exist if you know the general nature of the alleged offence in the circumstances (section 222(3)(a) of the Crimes Act 1900), or if you make it impossible for the police officer to inform you, for example, by attacking the officer or running away (section 222(3)(b) of the Crimes Act 1900).

A person shall not, in the course of arresting another person for an offence, use more force, or subject the other person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest (section 221(1) of the Crimes Act 1900).

Resisting, hindering and obstructing arrest

You may be charged with resisting arrest if you try to stop a police officer from arresting you. It is an offence to obstruct, hinder, intimidate or resist a public official exercising their functions as a public official (section 361 and section 363 of the Criminal Code 2002).

6. Police powers following arrest

Search powers

Following arrest, a police officer may search you. For a detailed description of search powers, refer to the ACT Law Handbook (http://austlii.community/foswiki/ACTLawHbk/PoliceStop AndSearchPowers).

Having searched the person under arrest, a police officer may seize any items found that constitute evidential material or a seizable item. A police officer who seizes items is required to make a record of the items seized and give them to the officer in charge of the police station for safekeeping (section 229 of the Crimes Act 1900 (ACT).

How long can I be detained by police?

Ordinarily, a person may not be detained without charge for longer than 4 hours, or in the case of a child or an Aboriginal or Torres Strait Islander person, 2 hours (section 23C(4) of the Crimes Act 1914 (Cth). Note that different provisions apply to offences classified as terrorism offences. This period may be properly suspended by police in certain circumstances (e.g. during a period when a person under arrest is contacting a lawyer or friend).

In the case of a serious offence (punishable by more than 12 months imprisonment and not being a terrorism offence) a magistrate may extend the investigation period (section 23DA of the Crimes Act 1914 (Cth)).

Obligations of investigating police

A person who is under arrest must be treated with humanity and with respect for human dignity, and must not be subjected to cruel, inhumane or degrading treatment (section 23Q of the Crimes Act 1914 (Cth) and section 19 of the Human Rights Act 2004 (ACT).

  • Cautioning: Before a police officer starts questions you, the police officer must caution you that you do not have to say or do anything, but that anything that you say or do may be used in evidence (section 23F of the Crimes Act);
  • Right to communicate with friend, relative or lawyer: Before questioning, you must be informed that you may communicate or attempt to communicate with a friend, a relative, and a lawyer of your choice or attempt to arrange for a lawyer to be present during questioning. Questioning must be deferred for a reasonable time to allow these to occur and a phone provided and you must be provided with reasonable facilities (section 23G of the Crimes Act)
  • Legal advice: If a lawyer attends, you must be allowed to consult with the lawyer in private and in reasonable facilities and the lawyer must be allowed to be present during the questioning and to give advice to the person (section 23G(3) of the Crimes Act).

Police must comply with certain rules. If they do not follow these rules, this may impact later criminal proceedings. To make a complaint about police, see below.

Think about your legal representation in advance: It is often a good idea to find a lawyer to be “on-call” for your group. Some activists write the phone number of a lawyer on call on their body so that if there is a problem, then they have someone to call.

Note that there are also specific obligations that apply to investigations in the following circumstances:

  • For Aboriginal and Torres Strait Islander People (section 23H of the Crimes Act) ;
  • For people under 18 years of age (section 23K(1) of the Crimes Act) ;
  • People unable to communicate fluently because of inadequate knowledge of the English language or a physical disability (section 23N of the Crimes Act) ;
  • People who are not Australian Citizens (section 23P of the Crimes Act).

What happens after I am arrested?

For an explanation of criminal process, including bail and sentencing, please refer to the ACT Law Handbook (http://austlii.community/foswiki/ACTLawHbk/PoliceArrest).

7. How do I make a complaint about the police?

You can make a complaint to the AFP by:

If you are not satisfied after making a complaint to the AFP, you can make an online complaint to the ACT Ombudsman (http://www.ombudsman.act.gov.au/making-a-complaint/complaints-the-
ombudsman-can-investigate/australian-federal-police
).

8. Common questions

Will I have a criminal record and what are the impacts?

If a court finds that you are guilty of an offence, this may go on your criminal record. Courts have the discretion to give you a penalty without recording a conviction. This depends on the circumstances and the nature of the charge. The impacts of a criminal record will depend on your circumstances.

A criminal record may impact on your ability to work, travel and obtain certain licences. The nature of your criminal conviction is relevant – for example, a trespass charge is less likely to impact on a working with vulnerable people card. However, some employers ask for a criminal record check, as do organisations such as embassies and those that issues licences. Whether or not you have a criminal record may impact on your chances of employment or your ability to travel to certain countries. You should assess our own particular risks, given your personal circumstances.

Who can see my criminal record?

Information about your criminal record is classified as ‘sensitive information’ under section 6 of the Privacy Act 1988 which must not be collected by an agency or organisation unless it is ‘reasonably ‘necessary’ for the entity’s functions (Schedule 1, section 3.3 of the Privacy Act 1988).

Will I be able to get a Working with Vulnerable People Check?

If you have a criminal record, you may still be able to get a working with vulnerable people card. The Commissioner for Fair Trading will be able to view your record and assess it in deciding your application. If you apply for a card, you must consent to the Commissioner checking your criminal history and non-conviction information, including any convictions, findings of guilt, and spent convictions (section 18, section 24 and section 25 of the Working with Vulnerable People (Background Checking) Act 2011). In assessing your application, the Commissioner may take into account the nature, gravity, circumstances and relevance of the offence, how long ago it was committed, and your age at the time, among other factors. (section 29 of the Working with Vulnerable People (Background Checking) Act 2011).

Will my criminal record be around forever?

In the ACT, the Spent Convictions Act 2000 allows you to stop disclosing certain criminal convictions after a period of time. This is usually 10 consecutive crime-free years, or five if you were a child when the offence was committed (section 13 of the Spent Convictions Act 2000). Whether your conviction can be spent depends on how serious it was (section 11 of the Spent Convictions Act 2000).

Where can I go for more information?

Disclaimer: The law described in this fact sheet is current at January 2019. This fact sheet has been designed to give readers plain English background information in planning and environmental law in the ACT. It is brief, for general information purposes only and does not replace the need for professional legal advice in individual cases. To request free initial legal advice, please contact us on (02) 6243 3460. While every effort has been made to ensure the information is accurate, the EDO ACT does not accept any responsibility for any loss or damage resulting from any error in this fact sheet, or reliance or use of this work. Duplication and reproduction of the information is permitted with acknowledgment of the EDO ACT. This fact sheet was produced with the assistance of funds made available by the ACT Government through the Justice and Community Services Directorate.