RIGHTS & CONSEQUENCES
Jackson Rogers
NSW Council for Civil Liberties
Activist Training Day – UTS – 29 March 2014
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Established 1963
aims of the organisation include “to assist in
the maintenance and protection of the rights
and liberties of persons in Australia and its
Territories...by vigilance...legal action and
advice...and assistance to individuals.”
Long history supporting the right to protest
and freedom of assembly
Non-partisan and non-sectarian
NSW Council for Civil Liberties
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Breach of the peace
Police on the street
Police arrest
Search
At the station
Bail and court
Right to protest
Q&A
NSW Council for Civil Liberties
NSW Council for Civil Liberties
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(2) Without limiting subsection (1) and
subject to section 9, nothing in this Act
affects the powers conferred by the common
law on police officers to deal with breaches of
the peace.
NSW Council for Civil Liberties
See R v Howell, where Watkins LJ in the English
Court of Appeal, defined breach of the peace in
the following way:
'disturbance' …in isolation cannot constitute a
breach of the peace. ”
“There is breach of the peace whenever harm is
actually done or is likely to be done to a person or
in his presence to his property or a person is in fear
of being so harmed through an assault, an affray, a
riot, unlawfully assembly or other disturbance.”
NSW Council for Civil Liberties
Forbutt v Blake, Connor ACJ said:
“A mere statement by a police constable
that he anticipated a breach of the peace
is not enough to justify his taking action
to prevent it; the facts must be such that
he could reasonably anticipate not a
remote, but a real, possibility of a breach
of the peace.”
NSW Council for Civil Liberties
There is, in my opinion, no evidence from which I could
conclude that there would be likely to be any breach of the
peace. I say this, having had regard to the submissions put
by counsel for the Commissioner to the effect that, given
the traffic congestion that can be expected, it is likely that
tempers will be frayed and there may be some
confrontation. In my opinion, that submission does less than
justice to the commonsense and goodwill of the residents
of suburban Sydney, who may be frustrated by any delays
that they encounter, but are not, in my opinion, likely to
engage in such conduct as would create a breach of the
peace.
NSW Council for Civil Liberties
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Vehicles
Near the scene of a serious crime
Large-scale public disorder (s.87A LEPRA)
Public transport
Unpaid fines
Searching ‘drug premises’
Drinking alcohol in public
Under 16
Terrorism
◦ HOWEVER, BETTER TO GIVE THEM IN A CONFIDENT
MANNER
NSW Council for Civil Liberties
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Do you have to give ID?
Can police search you for ID?
NSW Council for Civil Liberties
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Do you have to answer questions?
Should you answer questions?
‘Move on’ powers
◦ Police can give reasonable directions if they have
reasonable grounds to believe that your conduct or
presence is:
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Obstructing people or traffic
Harrassing/intimidatory
Causing fear (or likely to cause fear) to others
Connected with illicit drugs
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AG 2nd Reading: “The key purpose of [the move on
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What if you think a direction is unfair?
powers] is to enable police to disperse persons acting
in a disruptive manner before a situation gets out of
hand.”
NSW Council for Civil Liberties
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Reasonable grounds for suspecting you are
carrying:
◦ Stolen goods
◦ An item that has been used or about to be used in a
crime
◦ Drugs
◦ Knifes etc
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Under special public disorder powers
◦ BEWARE OF CONSENTING TO SEARCH
◦ MUST GIVE REASON FOR SEARCH BEFORE
SEARCHING
 After
arrest
NSW Council for Civil Liberties
DPP v Jackson & Funnell Magistrate Ellis:
©Tim Cole 2002
“The common law does not permit police officers or
anyone else…to search a person simply to see if he may
have committed some crime or other. …In the common
law, goods can’t be seized from a person where there
has been no arrest and the seizure has not occurred
during the execution of a search warrant.”
NSW Council for Civil Liberties
s.4A – Offensive Language
s.6 – Obstructing traffic
s.11A – Violent disorder
Crimes Act: Trespass, damage to property
Other: Anti-discrimination Act
NSW Council for Civil Liberties
s.23 – Summary Offences Act
Form 1 – Sent to Commissioner of Police
NSW Council for Civil Liberties
R v O’Donoghue (1988) per Hunt J:
“An arrest occurs whenever it is mady plain by
what is said and done by the police officer that
the suspect is no longer a free person...”
R v Lavery (1978) per King CJ:
“If...the circumstances are such as to convey...that
the suspect has no real choice, his freedom is
under restraint...If such a situation comes into
existence, and the police officer does not wish to
make an arrest, it is incumbent upon him to
make it clear by words or actions that the
suspect is free to go...”
NSW Council for Civil Liberties
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They catch you committing/having just
committed an offence
They suspect on reasonable grounds you
have committed an offence
They have a warrant for your arrest
Know or suspect you have breached bail
Prevent a breach of the peace (or
imminent breach of peace), eg fight
NSW Council for Civil Liberties
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Provide evidence they are an officer (unless in
uniform)
Their name and place of duty
Tell you that you are under arrest
Tell you why they are arresting you
◦ WHAT ARE YOUR KEY QUESTIONS?
NSW Council for Civil Liberties
DPP v Carr [2002] NSWSC per Smart J:
“This Court has been emphasising for many
years that it is inappropriate for powers of
arrest to be used for minor offences where
the defendant’s name and address are
known, there is no risk of him departing and
no reason to believe that a summons will not
be effective.”
NSW Council for Civil Liberties
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Police can use reasonable force to arrest you
or stop you breaking the law
Capsicum spray
Tasers
Firearms
NSW Council for Civil Liberties
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The trifecta
◦ Don’t resist – unless that is your point
◦ Don’t swear – this should never be your point
◦ Don’t touch or spit at the police
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Do
◦ Take video footage (not yourself)
◦ Ask questions
NSW Council for Civil Liberties
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Ordinary search
Frisk search
Searching for things in mouth and hair
Strip search
Body cavity search – must be done by doctor
◦ AGAIN, ASK THE REASON FOR THE SEARCH
◦ DON’T RESIST IT BUT STATE CLEARLY THAT YOU DO
NOT CONSENT
◦ REMEMBER SEARCH MUST BE PROPORTIONAL TO
THE SERIOUSNESS OF THE OFFENCE – THERE IS NO
REASONABLE BASIS FOR A SEARCH IN PROTESTRELATED OFFENCES
NSW Council for Civil Liberties
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Breach of peace is not an offence – they must
let you go after the situation has stabilised
Detention only if reasonably suspected of
committing a crime
4 hours – investigation time but this does not
include ‘time outs’
Don’t talk to people you don’t know in your
cell
Be careful what you say on telephone
Custody manager – responsible for your
rights
NSW Council for Civil Liberties
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Right to silence
Communicate with friends/family
Communicate with lawyer
Reasonable refreshments
Toilets
NSW Council for Civil Liberties
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Police may take fingerprints, palm prints and
photographs
Police may take DNA of a suspect – do not
consent.
NSW Council for Civil Liberties
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Exercise it
Wait for your lawyer
Beware of visiting Legal Aid with the arresting
officer
NSW Council for Civil Liberties
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As soon as reasonably practicable
Nominal presumption in favour of bail
NSW Council for Civil Liberties
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If you can, get a lawyer
S.10 Crimes (Sentencing Procedure) Act 1999
Stick to the truth
NSW Council for Civil Liberties
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$1,600 going rate for s.10 application
(including all appearances)
Beware of lawyers costs
NSW Council for Civil Liberties
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Career and travel implications
Two records – one 10-year & one for life
People are discerning
NSW Council for Civil Liberties
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UN Declaration on Human Rights, Art 20:
(1) Everyone has the right to freedom of peaceful
assembly and association.
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ICCPR Article 22 states:
◦ Everyone shall have the right to freedom of
association with others
NSW Council for Civil Liberties
“Resolution 15/21 reaffirms that “everyone has the rights to
freedom of peaceful assembly and of association”...This
provision must be read jointly with article 2 of the ICCPR, which
stipulates that “each State Party undertakes to respect and to
ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the Covenant, without
distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin,
property, birth or other status”...and article 26 thereof, which
guarantees to all individuals equal and effective protection
against discrimination on grounds identified in article 2. This
applies inter alia to minors, indigenous peoples, persons with
disabilities, persons belonging to minority groups or other
groups at risk, including those victims of discrimination
because of their sexual orientation and gender identity (see
Council resolution 17/19), non-nationals including stateless
persons, refugees or migrants, as well as associations, including
unregistered groups. The rights to freedom of peaceful
assembly and of association are key human rights in
international human rights law, which are enshrined in article
20 of the Universal Declaration of Human Rights.”
NSW Council for Civil Liberties
“The rights to freedom of peaceful assembly and of
association serve as a vehicle for the exercise of many
other...rights. The rights are essential components of
democracy as they empower men and women to
“express their political opinions, engage in literary and
artistic pursuits and other cultural, economic
and social activities, engage in religious observances
or other beliefs, form and join trade unions and
cooperatives, and elect leaders to represent their
interests and hold them accountable” ... Such
interdependence and interrelatedness with other rights
make them a valuable indicator of a State’s respect for
the enjoyment of many other human rights.”
NSW Council for Civil Liberties
NSW Council for Civil Liberties