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:

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.

Posted on October 31, 2012, in Law & Government. Bookmark the permalink. 5 Comments.

  1. I haven’t read that act in awhile now, will have to check it out, but from memory the three year prison term, is doubled if the person found guilty, is acting on behalf of the state,(like a police officer for example)

  2. Is this act still current, or has it been replaced,(superseded) by other acts.. if still current when is its review date..?? Certain acts need to be reviewed every 10 years for example..

  3. With regards city square being a public space, I believe it’s actually a private space,(in public).. It is owned by the MCC which is a private corporation. I know confusing, in many ways and in as many ways it’s but semantics, based on human rights laws and social justice principles..

    Meaning there is no area where human rights and social justice is denied.. there’s no line on the ground that states,”your now entering a human rights free zone.”

    The Max Brenner case was interesting in that Q.V. management agreed when acquiring the site, that the open square and thoroughfares providing access to it ,were and will always be public space.. So the charges of bessetting were dismissed and the space,(being agreed and acknowledged as public space) can’t have its use determined by Q.V. centre management.. They can’t put signs up stating in effect that this is a “human rights and political protest free zone.”…. and would be ridiculous in the least, if they could..

  4. Constitutions were made to restrict the powers of government, not to restrict the power of the people, that’s the basis of the social contract in so-called democracies. Much of the legislation in this country is simply unlawful. Reminding ‘law-enforcers’ of the unlawfulness of their actions won’t prevent necessarily from immediate harm, but it can sow the seeds of doubts in police. Technically, two people were kidnapped in front of the embassy, or at least abducted, something that happened plenty on eviction day.

    Only a handful, basic laws apply to non-violent protest, and claiming to be treated according to the constitution, or basic human rights, or basic common law understandings, is usually hard to argue with.

    In our hearts, we know that we’re on the right side of history with non-violent protest. The more we back this up with some legal know-how, the less we need to follow orders because someone in uniform said so.

  5. MCC is a corporation, but it’s supposed to be local government (which does not exist according to the lawLOL, just to make things more confusing!) In any case,City Square, and all the parks are public spaces as in that they are not private residences or places of business. Doesn’t matter who “owns” them. It’s supposed to be the people, but because government has been corporatized altogether, there is no real space owned by “we the people”. This is in itself unlawful. I agree with the idea of sowing doubts in the police’s heads and also educating people on what their country really is. That would be a huge step forward, if people began to realize the root of the problem.

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