About the Anti-Mask (Public Order) Laws

Since our article Anti-Mask Laws proposed in Victoria, was published the Crimes Legislation Amendment (Public Order) Bill 2017 has been passed in the Victorian Legislative Assembly and is now law in Victoria.

This article has been updated on 21 June 2018.

PLEASE NOTE: Masks are NOT be banned at all protest events–but ONLY those held in a area that police have declared a ‘designated area’.

(See below for more detail.)

Performance artist and activist Benny Zable. Photo by Wanagi Zable-Andrews.

The Crimes Legislation Amendment (Public Order) Bill 2017 was introduced into parliament by the Victorian Attorney General, Martin Pakula to allow “new measures to prevent serious disturbances of public order, including outbreaks of violence at protests, demonstrations and other public events.”

The intense media and public outcry after the clashes between neo-nazi and Antifa groups in Coburg in May 2016 meant that the pressure was on to introduce laws that make it look like the government is doing something about this.

Since then, the rationale for these laws was also conflated with the various outbreaks of youth violence at public events such at the Moomba brawling in 2016.

Designated Areas

To understand how these new laws work, you need to understand how ‘Designated Areas’ already work in Victoria.

The Chief Commissioner of Victoria Police already has the power to declare a specific area or event to be a ‘designated area’ under the Control of Weapons Act 1990 (Section 10D or 10E) if they believe or assess that there was previous use of weapons in that area or during previous occasions of the event or that they assess that there is a “likelihood that violence or disorder involving the use of weapons will occur in that area.”

These ‘designated areas’ were introduced in 2009 to allow police to deal with the perceived rise in youth knife-related crime several years ago (which was disputed at the time). Designated areas are now increasingly being used in protest situations.

This provides police with additional powers to search people and vehicles without warrant within that defined area for up to 12 hours.

The new Act provides additional powers for police within those designated areas.

New Police Powers

The Act provides additional police powers in designated areas to require a person wearing a face covering to either remove their face covering or leave the area immediately.

A police officer who reasonably believes a person intends to use the kind of violent and antisocial behaviour that would constitute one of the new public order offences of affray or violent disorder created by this Act is able to direct a person to leave a designated area.

If the person refuses to comply with this order to leave, they will be committing an offence.

In detail, this Act amends the Control of Weapons Act 1990 with a new section, 10KA(1), which would allow a police officer to direct a person wearing a face covering to leave a designated area if the person refuses to remove it when requested. The police officer must reasonably believe the person is wearing the face covering primarily to conceal his or her identity or to protect himself or herself from the effects of crowd-controlling substances such as capsicum spray.

New Offences

The Act amends the Crimes Act 1958 to abolish the common law offences of affray, rout, and riot, and creates new statutory offences of affray and violent disorder (new sections 195H or 195I).

Affray now captures all conduct that currently constitutes the common-law offence of affray: “… uses or threatens unlawful violence and whose conduct would cause a person of reasonable firmness present at the scene to be terrified.” Maximum penalty 5 years.

Violent disorder is committed when six or more persons use violence for a common purpose, and that conduct damages property or causes injury to a person. Maximum penalty 10 years.

If the above offences were committed wearing a face covering, the maximum penalty rises to 7 years for affray and 15 years for violent disorder.

Our Concerns

Any laws targeting protesting can dangerously impinge upon basic freedoms of speech, expression and assembly.

It is important to acknowledge that it is already a crime in Victoria to be disguised with “unlawful intent” under s 49C of the Summary Offences Act 1966 (Vic).

Use of Masks as Political Expression

Police already asking people to remove masks at protests. This is likely to increase with these new laws.

The new law means Police become arbiters of expression versus intent to commit violence.

The Right to Anonymity

“The right to protest should not be contingent on consent to surveillance.” Liberty Victoria

At times, particularly in circumstances where a protest is about controversial views, maintaining our anonymity may be critical to allowing freedom of association.

If attending a protest necessarily entails intrusive surveillance from the state or the threat of violence from other groups then you cannot really say we have genuine ‘freedom’ of peaceful assembly.

Furthermore, Victoria Police use of Facial Recognition Technology is currently unregulated.

Masks as Protection

Masks are commonly used at protests to protect attendeees from OC foam (Including journalists, observers, medics etc).

The use of OC foam at protests in Victoria has skyrocketed. It is inevitable that many people in the vicinity including other police, can be severely affected. In some incidents up to 70 members of the public were affected by spray at any one time.

Scarves, goggles, gas masks or handkerchiefs are used by journalists, media photographers, legal observers, street medics or bystanders.

This law now criminalises that practice.

The Act Contains No Exemptions or Protections

Some anti-mask laws in other countries include exemptions for wearing masks for religious purposes, for theatrical productions, sporting events, parades, civil defence drills and protection from severe weather.

Some, but not all, include exemptions for political expression. There are currently no protections or exemptions in current Act.

Status in Parliament

The Scrutiny of Acts and Regulations Committee (SARC) examined the Bill and referred it back to Parliament for its consideration on the question “whether or not clauses 6 and 7 (police powers in 10KA(1) etc) are suitable, necessary and proportionate limitations on the implied freedom of political communication.”

The Bill was accented to and is now law in Victoria.

Resources

The new Act can be read online at AustLII.

Some more detailed critique of the law in our previous post.

New Laws To Stamp Out Violence At Public Events, Victorian Attorney General Media Release.

Last year the Human Rights Law Centre launched a report, Safeguarding Democracy, that documents the unmistakable trend of governments at national and state level steadily chipping away at free speech, a free press, peaceful assembly, open government and the rule of law–some of the foundations of our democracy.