Constitutional Law and Political Protest
The recent enquiry into the Occupy Melbourne eviction of 21st October 2011, Occupy Policing , asks questions about the lawfulness of moving on a public protest.
Here is the link:http://www.occupypolicing.org/Page_2.php
The short answer to this question is , of course: no. The Crimes Act 1914 states the following:
Crimes act 1914, section 28
“Interfering with political liberty
Any person who, by violence or by threats or intimidation of any kind, hinders or interferes with the free exercise or performance, by any other person, of any political right or duty, shall be guilty of an offence.
Penalty: Imprisonment for 3 years.”
AND , also notable
Australian Constitution section 109
“When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”
Move-on laws, which are state based statutory laws,do not apply to political protests. Trespass laws also do not apply to political protests, when the protest is held in a public place or a place of business. For example, the recent action in the building that houses the USA consulate was also held in a place of business, not in a private residence. The claim made by the building manager that we were on private property was a distortion of facts. The property is owned by someone, most likely a corporation, but it contains businesses that lease space there, so it is a place of business. Protesters were not interfering with anybody’s privacy, so according to constitutional; law they had every right to be there, even if their actions are seen as rude and invasive by some.
With regard to the City Square eviction, there was even more blatant disregard for the law, as the City Square is public and the people and things therein were part of a political protest. At the very least it was unlawful for police to fence in the protesters and forcibly remove them and their political messages. The legal team should have known about this and should have instructed protesters accordingly by handing out copies of the crimes act 1914 section 28. Interestingly, protesters were not evicted from Treasury Gardens and Flagstaff Gardens, probably because of public and international outcry, although some arrests still occurred (most notably two people being arrested for wearing tents).
What can we learn from this? Two things mainly:
1)Police who remove protesters, are hired thugs by corporations that consider themselves above the law. They can get away with this, because most protesters do not know their rights according to the constitution, which is above state based statutory laws.
2)If enough protesters acquire basic legal knowledge stated here and in the article called “How to talk to police”, things will, most likely , change. It is not sufficient to act like naughty children who have been caught trespassing. It is vital to assert your legal rights with police and video record the entire conversation. With the small numbers we have, knowledge of our basic constitutional rights is one of our best weapons, so let’s use it.
This article was written according to my current understanding of constitutional law. Comments and corrections are welcome.