activists' rights guide august 2000, nsw -------------------------------------------------------------------------------- contents the activist rights guide intro activist rights: free assembly, expression, movement safety, freedom, security equal citizenship and non-discrimination police powers: move on and dispersal identification and search questioning and arrest useful publications legal contacts -------------------------------------------------------------------------------- the activists' rights guide: This is a pamphlet for progressive activists who may come into conflict with police and the state. Our starting point on activists' rights is that it is NOT critical to `obey the law'. However it IS critical to assert our civil rights, and to respect the rights of others. We have rights through our human and social being, not because some legal system bestows them. The standard of civil rights is best reflected in the International Covenant on Civil and Political Rights (ICCPR), accepted and ratified by most governments of the world, including the Australian Government. This treaty is the basis for our definition of rights. Australian laws mainly define police powers. In this pamphlet we discuss both. Activists engage in acts of direct democracy which do not require the permission of police or governments. This right to participatory democracy, "without unreasonable restrictions", is acknowledged by the ICCPR (Article 25). While the state often attempts to deny our right to resist and protest, we must regularly assert our basic right to social and political participation, and in doing so empower ourselves and our community. This may involve breaking bad laws, or laws enforced repressively. The repression of resistance and dissent in Australia is often backed by police intimidation, fabrication of evidence and violence. To deal with these threats, tactical measures are often more important than legal information. So to help activists, this pamphlet: defines our rights, outlines tactics to support our rights, and provides legal information. Rights and Police Powers Australia is one of the few countries in the world without a Bill of Rights - there is no clear statement of an Australian citizen's rights and duties. Instead, Australian law generally defines state or police powers, and rights have mostly become `residual' - whatever is not restricted or prohibited. We therefore define rights here as those set out in the International Covenant on Civil and Political Rights (ICCPR), the major human rights treaty. This treaty entered into force for Australia in November 1980. The Australian Government must now report to the UN on how it has met its obligations under the ICCPR. Since 1991 individuals have also been able to complain to the UN Human Rights Committee about breaches of their rights, after exhausting all domestic remedies. In the first section we describe activists' rights as defined by the ICCPR. In the second section we provide legal information on the NSW police powers relevant to activists' rights. Activist Tactics In public space in particular, policing depends on numbers, a show of strength and bluff. Police generally do not attack or bash people in big, well organised demonstrations. They less frequently misbehave when there are witnesses with cameras. They are also less able to block and repress surprise actions, if they have no advance knowledge and are distracted. Given that many laws are created specifically to repress dissent, and that police are fairly organised, activists have to be particularly careful about planning actions, and to ensure that they have sufficient support, backup, and witnesses. ALWAYS plan and monitor your action, and have alternative plans. Keep records of events at a demo, including witnesses and the names and details of police officers who may be the subjects of complaints or involved in arrests. Use video cameras and observers to RECORD your action. Use police liaison to help reduce unnecessary conflict, NOT to become the eyes and ears of police repression. Policing the Olympics Police and SOCOG boast of the many thousands of police, army, security guards and volunteers who will be available to police the Sydney Olympics. However repression of organised, peaceful protest could be a PR disaster, given the attention of the world media. To justify the paramilitary presence, `terrorist' stunts may be manufactured by security forces. Police have new weaponry, including OC (capsicum) spray, but will operate tactically, according to the needs of the Corporate Olympics. They will be directed according to SOCOG's PR needs. The army is unlikely to get involved in any protest actions, and has no clear power to do so.[1] Security guards and SOCOG volunteers will quite likely be conscripted to help `move on' protesters. Remember that back-up plans and good humour can defuse many tense situations. In the media spotlight creative and humorous protest may also be more effective and harder to repress. activists' rights #1 free assembly, expression and movement Activists have the right to peacefully assemble in any public place, so long as they do not compromise public safety or the rights and freedoms of others. There are some other exceptions of lesser significance: The right of peaceful assembly shall be recognised. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others (ICCPR Article 21). However the `public order' exception cannot be used to hide political embarrassment. In the case of Kivenmaa v Finland (1994) the UN Human Rights Committee found a violation of freedom of assembly [2] and freedom of expression [3] rights when Finnish police used a `seek permission for a public assembly' law to remove a banner from a group of protesters. The protesters were drawing attention to the human rights record of a visiting head of state. The Finnish Government was told it was obliged to provide Ms Auli Kivenmaa with an "appropriate remedy" and to ensure that such violations did not occur in future. Activists have the right to responsible freedom of expression, that is, freedom of expression which does not unfairly defame others or incite racial or religious hatred.[4] Activists also have the right to freedom of movement [5] and freedom of association [6], only qualified by the need to ensure public safety and the rights and freedoms of others. In practice, a large well-organised group of demonstrators can occupy the streets. A small fragmented group will often be attacked or dispersed by police. The level of repression will vary, depending on the political pressure on the police. If police order you to `move on' and you wish to assert your right to stay, always ensure you have the necessary backup, and witnesses. Make sure you know the route of the demo, who to call for legal help, and who is keeping independent records of the demo. activists' rights #2 safety, freedom, security Activists, as all people, have the right to "liberty and security of person"[7]. This means that states are obliged to ensure that citizens are free from harassment, intimidation and threats, as well as actual physical attacks. In particular, it means that police harassment and violence is prohibited. Degrading and humiliating treatment is also prohibited[8]. All people are also entitled to freedom from arbitrary or unlawful arrest or detention[9] and from arbitrary OR unlawful invasions of privacy[10]. "Arbitrary" here means unreasonable in all the circumstances. The Human Rights Committee says "arbitrary" also suggests "elements of injustice, unpredictability, unreasonableness, capriciousness and unproportionality". All this means that police must have a good and measured reason to detain, arrest or invade the privacy of any person. In practice, NSW police have a long history of brutalising small, disadvantaged and activist groups. They generally will not brutalise large or well organised groups. In principle and in practice, you can resist arbitrary arrest. However when considering whether to do this, assess the circumstances, including the size of your group, your backup and your witnesses. At times a large group can exert persuasive pressure on police. In principle, all citizens are entitled to use proportionate force to defend themselves from unjustified police aggression and violence. However the police also have a similar entitlement. In practice, before using any such force, either party will need to be ensure they have necessary support, backup, and witnesses. Although police guidelines restrict the use of capsicum spray to protecting life and controlling violent people, police have used this toxic spray at many peaceful demonstrations. Capsicum spray is a special danger to people with asthma and heart problems. If police use any sort of gas or spray, protect your mouth and eyes with some cloth material, keep asthma medication within reach and know where to go for first aid. activists' rights #3 equal citizenship & non-discrimination Activists, as all people, have the right to full equality "without distinction of any kind"[11]. People are to be "equal before the law" and discrimination "on any ground" is prohibited[12]. In addition, for citizens of a country, there is to be the "right and opportunity ... to take part in the conduct of public affairs, directly or through freely chosen representatives" [13]. This right is to be recognised and protected without discrimination of any kind and "without unreasonable restrictions". This right to DIRECT democracy must include the right to activist politics, provided that the rights and freedoms of others are respected. In practice police will be directed to discriminate, e.g. against those with banners protesting the Corporate Olympics, while leaving alone those waving Aussie flags. Police may correctly point out that there is no law prohibiting political discrimination. Prosecutors in the courts will argue that legal action is against individuals, and is not affected by police discrimination. Discrimination will occur, so asserting your right to political participation is a matter of tactics, not law. The collective plan of any act of direct democracy is central to its being effective and your avoiding discrimination. At any demo, make sure you have a "demo buddy", and try to ensure that you and others are not separated by police. police powers #1 move on & dispersal The clash between your right to freedom of assembly and police powers of `dispersal' is the most highly contested conflict in public space. Most is decided by bluff and a show of strength. Little is decided by rational argument, and most is decided in that moment. If police order you to `move on' and you think it's unfair, make sure you have support and witnesses, and consider whether it's in the interests of your action to resist to the point of arrest. Sometimes you may accept arrest but mostly you will want to avoid it. Legal information (NSW): Generally speaking, people can gather in public space so long as they don't harm other people. However police may ask activists to `move on', and may also threaten them with arrest for trespass (on private property) or for offensive language in a public place[14]. While there is a process for authorised demonstrations under the Summary Offences Act 1988, unauthorised assemblies are not prohibited.[15] Under 1998 additions to the Summary Offences Act 1988 police may now give a "reasonable direction" to prevent obstruction, harassment or intimidation. So if you are blocking a footpath or scaring someone, police may ask you to `move on' and it is a minor offence to disobey such a direction[16]. This section does not apply to "an apparently genuine demonstration", a procession or an assembly [17]. Special Olympic laws have now extended removal or dispersal powers, at or near the Olympic sites. Under the Homebush Bay Operations Regulation 1999, both police and "authorised officers" (authorised by the Olympic Coordination Authority) have been given the power to use "reasonable force" to remove non-authorised sports persons from the sportsgrounds at Homebush Bay,[18] and ban a person from entering Homebush Bay for up to 6 months for committing an offence under the Regulations.[19] There are a range of new offences at Homebush Bay, including offensive language, handing out or displaying advertising material unless on clothing [20] and causing annoyance or inconvenience.[21] Under the Olympic Arrangements Act 2000, the Minister may order that any Olympic associated area (other than Homebush) come under the Homebush Bay laws.[22] The Olympic Arrangements law will remain in force until 31 December 2000 but the Homebush Bay law will remain in force until 31 March 2002 Under the Sydney Harbour Foreshore Authority Regulation 1999 rangers and police officers have been given similar wide removal powers,[23] and similar offences created as above,[24] in the area from Elizabeth Bay to East Balmain. Other new offences in these areas include camping, putting up structures such as tents or signs, making noise in a way that "interferes with the amenity of the area",[25] unless authorised. Authorisation is now required for any public assembly in these areas, and there is a $2,200 penalty for unauthorised assemblies.[26] This law will remain in place after the Olympics. police powers #2 identification ... Police may ask you to identify yourself, but in most cases you don't have to do so. In just a few circumstances the law demands identification. However unless you suspect it may be used for harassment, there is generally no harm in identifying yourself. It is generally not an offence to use an assumed name or a nickname, unless you are trying to mislead by doing so. Legal information (NSW): Despite the general rule, there are a number of specific circumstances where it is an offence to NOT identify yourself. For example, NSW law says you must identify yourself if: you are driving a car, or you unreasonably refuse a breath test when driving a car[27], you are under 18 and police suspect you of carrying or consuming alcohol in public,[28] you are suspected of involvement in a traffic offence,[29] if police are trying to serve a fine default warrant,[30] police "believe on reasonable grounds" you may be a witness to a serious crime,[31] if on the Sydney Harbour foreshore a ranger or police officer reasonably suspects that you have committee an offence,[32] if police or someone authorised by the Olympic Coordination Authority believes you may have committed an offence under the Homebush Bay Regulations.[33] ... and search A body or property search is a serious invasion of privacy. If police have no reason to believe you (i) possess illegal drugs (ii) possess a weapon, or (iii) have committed a serious crime, and if they are not arresting you, they generally have no reason to demand such an invasion of your privacy. However your capacity to resist such a demand will depend on the numbers of police and the numbers of your supporters and witnesses. Police will often lie about their `reasonable beliefs'. Legal information (NSW): Police powers to search individuals are in four main categories: if police "reasonably suspect" you of carrying something stolen, or intended to be used in a serious crime,[34] if police "reasonably suspect" you or your vehicle has a prohibited drug,[35] if police "reasonably suspect" you have a knife or a dangerous implement - in this case police may only ask for outer clothing to be removed,[36] if police have a written search warrant, or if you are arrested, if the request to search is to secure the "good order and management and enjoyment" of Olympic sites[37] police powers #2 questioning & arrest If you are arrested, you will at some stage have to identify yourself. However you are never obliged to answer any questions about your alleged offence. It is best not to do so, as any answers may well be used in evidence against you. You are not obliged to go anywhere with police (eg. `for questioning') unless you are arrested. However if police seem intent on forcing you to go with them, consider what support you have to assert your right to freedom. Protest loudly, if you are wrongly arrested! Legal information (NSW): While police often ask questions about an alleged offence, you are not obliged to answer their questions and your refusal to answer cannot be used in court against you. Police are entitled to ask questions, but you do not have to answer. An arrest occurs when: police take hold of you, or police tell you that you are under arrest, or you are arrested by written warrant After arrest, it is an offence to physically resist police. If a group of demonstrators are being `moved' by police and it is not clear if they are being arrested, they can passively resist by linking arms. This is not `resisting arrest'. If members of your group are arrested, make sure some people follow and monitor the arrested persons, and help secure bail and medical attention. Detention: Legal information (NSW): Police can detain you for up to four hours after arrest for questioning,[38] but you are still not obliged to answer their questions. Those arrested have a right to speak with a lawyer or friend, and to ask them to come to be with you and advise you.[39] Except for some serious categories of offence (eg. robbery, drug trafficking, murder) you are entitled to release on bail, unless police make a good case against bail.[40] Bail is just an agreement to appear in court, but conditions may be attached. Bail conditions must not be oppressive, or beyond your means. However bail conditions are often `rough justice' and you may have to take what you can get. Useful Publications Youth Street Rights pamphlet (1999), UTS Community Law and Legal Research Centre (Tel: 9514-2914), Sydney - a guide for young people dealing with police Defend Yourself: facing a charge in court (1996) by Gaby Carney and Tim Anderson, Redfern Legal Centre Publishing (Tel: 9698-3066), Sydney Activists Rights Handbook (1993) by Tim Anderson, Kylie Kilgour, Steve Bolt and Brett Collins, Activists Rights Network, Sydney If You Are Arrested (1987) by the NSW Council for Civil Liberties, Redfern Legal Centre Publishing (Tel: 9698-3066), Sydney legal contacts for legal help, call: Legal Line for homeless persons and young people during the Olympics period (24 hours) - a service staffed by volunteer lawyers and co-ordinated by Redfern Legal Centre 9698 7277 Legal Aid Helpline incl. assistance in Bail Court 1800 806 913 Ombudsman - complaints against police 9286-1000 Redfern Legal Centre 9698-7277 Macquarie Legal Centre 9689-1777 Aboriginal Legal Service (Redfern) 9318-2122 Aboriginal Women's Legal Resource Centre 9569-3847 Inner City Legal Centre (Darlinghurst) 9332-1966 Shopfront Youth Legal Centre (Darlinghurst) 9360-1847 -------------------------------------------------------------------------------- This booklet was produced by the UTS Community Law and Legal Research Centre (tel: 9514 2914) Thanks to the student councils of NSW for support for this project. Artwork: Phoenix Leonard, David Pope (Scratch! Media, email: info@scratch.com.au)