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Crimes Legislation Amendment (Public Order) Bill 2017

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Sam Hibbins MP
Member for Prahran
15 May 2017

Mr HIBBINS (Prahran) — I rise to speak on behalf of the Greens on the Crimes Legislation Amendment (Public Order) Bill 2017. This bill gives the police powers to direct people wearing masks in certain circumstances to leave a designated area; introduces new public order offences to replace the existing common-law and public-order offences with increased maximum sentences; and requires local government to consult with Victoria Police when considering applications for permits that relate to proposed protests.

The Greens understand the need for community safety and ensuring that Victoria Police have sufficient powers to keep the peace and enforce the law at protests, but we have a number of concerns regarding this bill, particularly that it could infringe on freedom of expression and would allow police to direct any person wearing a mask to leave a protest. In the anti-mask provisions, there is a need to balance the right to freedom of expression and privacy, the rights of community safety and the right to protest peacefully — and to wear masks is a form of expression that is an important one.

There are a range of legitimate reasons why people may wear face coverings at a protest, such as to not be identified in the media or in other forms when voicing views that are anti-government or challenging to some people, and which may affect their personal lives or employment. People may wear anonymous masks or masks of political figures by way of expression or, of course, wear face coverings for cultural or religious purposes. Police do need to be able to identify people who commit unlawful acts during a protest and to have in place laws that prevent a person intending to commit an unlawful act from wearing a mask.

This bill arose after a violent brawl that erupted in a demonstration in Coburg in May last year when police were forced to intervene against violent protesters who were wearing masks. It was difficult for them to identify between some right-wing protesters and anti-fascist groups involved in the fight. The government is saying that we need these laws as more protesters are wearing balaclavas, other face coverings and masks. It is saying that if the mask was worn for religious, cultural or medical reasons, it will not have to be removed and that police will receive training and guidelines on the appropriate use of this power.

However, there are no guidelines in the bill provided for police to know if a mask is to conceal a person's identity. In fact the reality is that any face covering can be worn to conceal an identity, and the police already do have the power to identify people. The police already search people and ask for their identity in a designated area. If necessary, the new law should only be permitted where police form a view that a mask is worn to conceal identity to commit an illegal act.

In the Summary Offences Act 1966, it already says:

A person must not with unlawful intent—

(a)    be disguised or have a blackened face; or

(b)   have an article of disguise in his or her custody or possession.

The penalty for that is two years maximum imprisonment. It is already against the law.

There are serious concerns from activists who feel this law will inhibit freedom of political expression. What is a permitted or not permitted face covering is unclear, and what will be allowed or not allowed is unclear. There are people who may wish to protect their identity at a protest or who may wish to wear a mask but not have the intent to commit an offence.

The use of capsicum spray is referenced in this bill and, of course, the increased use of capsicum spray has resulted in people wearing masks at protests. Those people are not necessarily there to commit an offence — they are just there to protest — but they do not want to suffer the effects of capsicum spray used against people that may be causing an offence.

In terms of the new public order offences, this bill has increased maximum penalties for people wearing a mask for those offences, but it is unclear why wearing a mask for unlawful purposes could not just be made an aggregating factor in the sentencing of that particular offence. The penalties in this bill are such that offences at public protests would now be more serious than, for example, family violence committed in the home.

The third part of this bill requiring local government to consult with Victoria Police and considering applications for permits that relate to proposed protests seems like a reasonable amendment and is something we will support, but we do have concerns that this bill will infringe on legitimate political expression. The safeguards against misuse by the police are not included in this legislation. The police already have the powers to identify someone in a designated area, and to have a disguise with unlawful intent is already an offence. If there is need for legislation in this area why not, as Liberty Victoria have suggested, require the police to form the view that the person is concealing their identity with intent to offend?

This is, in our view, an ill-thought out bill at this stage, and it is clearly designed — as are many of the law and order bills that are coming before us from the government — to serve the Herald Sun along with the Liberal Party, who are really setting the government's law and order agenda. So the Greens cannot support this bill in its current form and will be reserving the right to seek amendments in the upper house.

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Sam Hibbins MP
Member for Prahran
15 May 2017
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