Offences Relating to Protests (NSW)
The right to freedom of political expression is protected under the Australian constitution. This includes taking part in peaceful protests. However, there are a number of criminal offences that can arise out of a person’s participation in a protest if certain boundaries are crossed. Offences relating to protests are contained in the Crimes Act 1900, the Summary Offences Act 1984, the Forestry Act 2012 and the Mining Act 1992.
Some of the most common charges that arise out of protests involve obstructing public infrastructure or hindering public officials. These include offences such as obstructing traffic, obstructing a railway and hindering or resisting police.
Section 6 of the New South Wales Summary Offences Act makes obstructing traffic an offence. This is punishable by a fine of four penalty units. This charge often arises when a protest consists of a blockade that stops traffic from getting through, even if the traffic is blocked only for a very short period.
Obstructing a railway
Under section 213 of the Crimes Act it is an offence to intentionally and without lawful excuse cause the passage of a train on a railway to be obstructed This offence carries imprisonment for up to two years. This charge may arise when a railway is blocked by a motor vehicle or by the bodies of protesters.
Resist or hinder police
Under section 546C of the Crimes Act it is an offence to resist or hinder police in the execution of their duty. This is punishable by imprisonment for up to 12 months or a fine of 10 penalty units.
If a person is taking part in a protest and the police attempt to place them under arrest, they may be charged with an offence if they resist. If the person is sitting down on a road or has their arms linked with others in a blockade, the offence of resisting police can be committed simply by failing to move when police try to carry out an arrest.
A person can also be charged with this offence if they get in the way of police when they are trying to arrest another person or carry out some other police duty during the course of a protest.
Under section 60 of the Crimes Act it is an offence to assault a police officer. If no bodily harm is suffered, the maximum penalty for this is imprisonment for five years. If bodily harm is suffered by the police officer, the maximum penalty increases to imprisonment for seven years.
An assault may consist of simply raising a fist to a police officer, even if no physical contact occurs. It is also common for charges to arise from spitting at or in the direction of a police officer.
Under section 545C(1) of the Crimes Act it is an offence for a person to knowingly take part in an unlawful assembly. This is punishable by a fine of five penalty units or imprisonment for up to six months or both. If the offender has a weapon, the maximum penalty that applies is a fine of 10 penalty units or imprisonment for 12 months.
An unlawful assembly is an assembly of at least five persons who aim to compel a person to do something they do not legally have to do through intimidation or injury.
Section 93C of the Crimes Act makes it an offence to use or threaten violence towards a person so as to cause fear to a person of reasonable firmness and courage. This offence is called affray and is punishable by imprisonment for up to 10 years.
Under section 59A of the Crimes Act, it is an offence to assault a person during a large-scale public disorder – such as a riot – that poses a serious risk to public safety. This offence can attract a term of imprisonment of up to five years, or seven years in the offender inflicts bodily harm.
Section 11A of the Summary Offences Act makes it an offence for three or more persons to use or threaten violence so as to cause a person of reasonable firmness and courage to fear for their safety. This offence carries a fine of 10 penalty units or imprisonment for up to six months. Violence includes violent conduct towards another person’s property.
Under section 93B of the Crimes Act it is an offence for 12 or more people to use or threaten violence for a common purpose in such a way that causes a person who is of reasonable firmness and courage to fear for their safety. This offence carries a penalty of imprisonment for up to 15 years.
Offences relating to protests at mine sites
There are also various offences relating to mines and forestry that may arise out of taking part in environmental protests.
Interfering with a mine
Section 201 of the Crimes Act makes it an offence to interfere with a mine. This carries a maximum term of imprisonment for seven years. This offence includes acts such as destroying or damaging equipment, buildings, roads, or bridges belonging to a mine or hindering the working of equipment belonging to a mine.
This offence is often charged when protesters ‘lock on’ to mining equipment or block roads leading to mines.
Obstructing or hindering
Section 257 of the Mining Act makes it an offence to obstruct or hinder a person who is doing anything under a permit issued under the Mining Act.
Offences relating to protests under the Forestry Act
It is an offence under Section 83 of the Forestry Act to obstruct, hinder or delay an authorised officer (including a police officer) under the Forestry Act. This offence carries a fine of 20 penalty units, or 50 penalty units if the victim is assaulted, threatened or intimidated.
It is also an offence to damage or destroy forest materials, such as timber. This carries a fine of 50 penalty units or imprisonment for up to six months, or both as well as a fine of $10 for each tree that was destroyed or damaged.
If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Armstrong Legal.