Legal Info



Summary of legal info

  • You must give your name and address to police but no other info to police
  • Police may search you
  • If you are being arrested ask the police to explicitly tell you the charge
  • Get the officers ID, name and rank.
  • You do not have to accompany police to the police station unless you are under arrest
  • If charged seek legal advice asap.
  • You don’t need to answer police questions, saying “no comment” may be the best response.
  • If you are arrested police may take your fingerprints but not your photo
  • You can appeal a court decision within 28 days

 

You must give police your name and address; other questions do not need to be answered.  It is an offence with a maximum penalty of a fine of $500 to refuse to give your name and address or to give false details to police.

If the police demand your name and address they MUST give you reasons for doing so. You should ask for these reasons.  The police must also tell you their name, identification number, police station and rank.

The police can search you, your possessions and your car without consent or a warrant if you are in a public place and they believe you are carrying illegal drugs, volatile substances, weapons, graffiti implements, or firearms.  They may also conduct a ”pat-down search” of the outside of your clothes and ask you to empty your pockets.

You do not have to accompany the police to the police station unless you are under arrest.

Being arrested

 Most charges laid at protest actions are relatively minor. As for other criminal charges, the police are required to prove beyond reasonable doubt that an offence has been committed.  If you think you might contest the charges, try and get witnesses at the arrest and take statements.  It is also important to take the identity of the arresting police officer.

  • If you are a Koori you should tell the police immediately. The police must then notify the Victorian Aboriginal Legal Service and any local Aboriginal Justice Panel.
  • If you do not speak English – ask for an interpreter. The police should not conduct an interview without the aid of an interpreter.
  • If you are not an Australian citizen you have the right to contact your embassy or consular office.
  • If you are under 18 years of age the police cannot formally question you unless your parents, guardian or an independent person is present during questioning.

 Once charged, it is important to seek legal advice at the earliest opportunity.  You have the right to speak to a lawyer in a private space where you cannot be overheard by police.

 If property is taken from you during an arrest or at a demonstration, have a lawyer write a letter to police immediately, demanding return of the property.

You have the right to remain silent It is best to remain silent (aside from name and address) until you have spoken to a lawyer.  If the police question you before you have received legal advice, you should answer “no comment” to all questions.

Don’t answer some questions and not others as this may be used in court as evidence that you had something to hide.

Another reason to refuse to answer any questions is that what you say can be held against others arrested. NO COMMENT in solidarity for all.

Fingerprints and photos

In all but a few minor offences, you must allow the police to take your fingerprints if they believe that you have committed an offence.  However, you cannot be forced to have your photo taken. It is your right to refuse any request from the police for a photo.

Court

If you are going to court for the first time and intend to plead guilty, inquire about the Criminal Justice Diversion Program, which could see you avoid a criminal record.

It is a good idea to obtain references addressed to the magistrate.

If you have pleaded guilty, you are entitled to a discount from the ordinary sentence, for saving the prosecution and the court the trouble of proving a case against you. You may still appeal a decision and apply for a lighter sentence if you plead not guilty and are convicted.

Jail sentences are rarely given for a first or minor offence. If you receive a short jail sentence (less than 12 months), appeal bail is often given. 

Court decisions can be appealed.  This should be done promptly. In Victoria, there is a 28-day period after the conviction during which an appeal can be lodged.  Almost every offence for which a person can be punished is capable of being appealed at least once to a higher court.

jumping

Possible charges at anti deport actions

Maximum penalties are rarely given and usually only where a person has many prior convictions or commits the worst type of that particular offence. An exception to this is the mandatory senting relating to assaults on an emergency service worker.

Obstruction

You are more likely to be charged under Commonwealth law for obstruction.  The State offence applies if you are obstructing a road or footpath which provides access to general public, and has a maximum penalty of $500.

The commonwealth offence however is more clearly aimed at demonstrations and has a penalty fine of up to $2,000. A defence to this charge would be that the obstruction was “reasonable”.

Besetting

It is an offence to “beset” any premises, whether public or private, for the purpose and with the effect of obstructing, hindering or impeding by an assembly of people any person’s lawful right to enter, use or leave such premises.  The maximum penalty is a $1500 fine or three months jail.

Breach of the peace

You might get charged with breaching the peace where other charges are less applicable. The maximum penalty is $2500 or 6 months’ jail.

Resist or hinder police or other emergency services workers (including custodial officers)

This includes resisting arrest. It is an offence to assault, resist or hinder a member of the police force in their duty, or to incite someone else to do so.  “Resisting” means opposing by force and “hindering” means making the arrest or other police action more difficult to carry out. It doesn’t make a difference if the resistance actually prevents the arrest. The maximum penalty is six months jail or a fine of $2500

It is not an offence to passively resist arrest, or to run away before an arrest has commenced.  Passive resistance includes any nonviolent refusal to cooperate or comply with directions, but does not include linking of arms or holding onto other structures.

An arrest commences when the police officer makes it plain to you by words or other action that you are under arrest.

Incitement

Under Commonwealth legislation, encouraging another person to comit an offence can make you guilty of the crime of incitement. Incitement generally has penalties of approximately half the maximum penalty for the crime being committed.

Mandatory prison sentences for assaults on emergency service workers

Harsh sentencing laws introduced in 2018 make a custodial sentence almost inevitable should you be found guilty of assaulting or injuring an emergency services worker. This also includes ‘custodial staff’. It is important to keep in mind that assault includes a threat to cause injury – verbal or non-verbal.

Recklessly causing injury and intentionally causing injury carry much heavier custodial sentences. The minimum custodial sentence a Victorian magistrate or judge can impose is 6 months for assault of an emergency service officer.

The minimum non parole custodial sentence for the much more serious offence of intentionally or recklessly causing injury in a circumstance of gross violence is 5 years.

There are some very particular circumstances where magistrates and judges can take into account impairment – be it mental or relating to substance abuse – but this is extremeley  limited, and is unlikely to apply to a prepared direct action.

Serious offences

Police have special powers at Airports, Federal Property and Federally ‘prescribed places.’  They can:

  • Conduct searches without warrants and use necessary and reasonable force to do so.
  • Request identification and demand proof of identification. (Having ID with you will make your life easier). It can be a serious offence to refuse to provide ID or to use a false ID in a prescribed zone.
  • Arrest without warrant if they have reasonable grounds to suspect that you are committing an offence or have committed an offence.
  • If you are lawfully under arrest officers can take your photograph or fingerprint you if the officer believes it is reasonably necessary to do so to identify you.
  • There are new amendments proposed for 2019, that would make contravening an identity check or move-on direction in an airport a protective service offence. This has not yet become law, but if it does, could attract a penalty of up to $4200 if you are found guilty.

    Aviation Crimes Act

    Interfering with an aircraft, the crew or staff of an aircraft or airport could be a very serious offence under the Aviation Crimes Act.  Some of the potential trigger points for serious charges include:

  • Any act of violence on an aircraft or at an airport
  • Any threats of violence or damage to an aircraft or any person on an aircraft
  • taking control of or exercising control over an aircraft
  • Destroying or damaging an aircraft or any facilities at an airport
  • Interfering with the safe operation of an aircraft
  • Disruption of services at an airport

    The above offences are taken extremely seriously and penalties range between 10 – 20 years of imprisonment.

    Migration Act

    A person who is found guilty of escaping from an immigration detention centre faces a 5 year jail penalty.

    Concealing or harbouring a non citizen under the Migration Act is a very serious offence. If found guilty, the penalty could be up to  10 years imprisonment or a $220,000 fine.


Australia’s asylum policies- some facts

  • Seeking asylum is not illegal, it is a human right
  • The world has forcibly displaced over 57 million people, the highest number since World War II. Most of the displaced refugees are hosted by non-signatory refugee countries.
  • Australia is the only country in the world with offshore processing and mandatory detention of asylum seekers.
  • Australia’s policy of mandatory detention is in breach of the UN refugee convention, of which Australia is a signatory.
  • The United Nations Special Rapporteur on Torture found that Australia’s asylum policies are in breach of International Law,
  • The average days in held immigration detention has increased steadily, with an average of 450 days (in Jan 2016).
  • More asylum seekers have died on Manus Island than have been resettled.
  • Australia boasts that it ranks first in the world in the intake of resettled refugees per capita. Australia’s resettlement program accepts refugees from other countries, most of whom have been processed by the UNHCR. The number of asylum seekers who arrived in Australia and were granted refugee status ranks Australia as 46th in the world per capita.
  • Studies have found that migrants actually benefit local economies.
  • The cost of running Nauru & Manus detention centres is $1.2 billion per year (roughly $1,800 per person per day)
  • Australia has been found guilty of over 150 violations of international law by the UN Human Rights Committee for its arbitrary indefinite detention of refugees.

 



Contacts & links

Refugees, Survivors and Ex Detainees. “Nothing about is without us”

Refugee & Immigration Legal Centre.
(03) 9413 0101  http://refugeelegal.org.au/

Refugee Advice and Casework Service.
(02) 8355 7227  http://www.racs.org.au/

Starry Norton Halphen Law firm (Rob Starys)
(03) 8622 8200  http://www.starylaw.com/www/home/

Tamil Refugee Council
0470 650 065   http://tamilrefugeecouncil.org.au/

http://www.activistrights.org.au/

https://melbourneactivistlegalsupport.wordpress.com/

On facebook: Anti-Deportation Snap Actions (Melbourne)

 

 

 


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