- The Crimes Legislation Amendment (Public Order) Bill 2017 (the Bill) is intended to address concerns regarding violence at public demonstrations, in particular the commission of violent acts while wearing masks.
- Liberty Victoria provided a preliminary comment on public calls for laws to prohibit wearing a mask at protests, and for potentially mandatory or prescriptive sentences for those that commit violent acts at protests.
- It is our view that wearing a mask can be an important means of self-expression. Consequently, we are still concerned that in practice the Bill could have a chilling effect on freedom of expression.
- The Bill addresses some of Liberty Victoria’s concerns. The Bill does not prohibit the wearing of masks at protests. It permits Police officers to direct a person to leave a designated area if the officer holds a reasonable belief the person is wearing a mask to conceal their identity or protect themselves from crowd control substances (the unlawful purposes). The penalty for refusing to comply is 5 penalty units. This power does not apply outside of a designated area. The penalties are not mandatory or baseline sentences.
- The Bill abolishes the common law offences of affray, rout, and riot replacing them with two new offences of affray and violent disorder. The maximum penalties are 5 years for affray and 10 for violent disorder. The maximum penalties are more severe where the offender is wearing a mask for the unlawful purposes: 10 years for affray and 15 for violent disorder.
- Liberty Victoria still has significant concerns regarding the Bill.
- First, in practice, the new powers would likely enable police to direct any person wearing a mask to leave a protest. The Bill provides no guidelines for how a police officer determines if a person is wearing a mask for expressive purposes rather than to conceal an identity. A police officer could form a reasonable view that any person wearing a mask is seeking to conceal their identity. Any mask, by covering a person’s face, could be said to be worn for the purpose of concealing identity.
- In fact, a person who wears a mask for expressive purposes, such as a politician’s face, is seeking to conceal their identity. They are pretending to be another person for the purpose of performance.
- In our view the power to direct persons to leave a designated area when wearing a mask to conceal their identity is unnecessary. Police already have the power to search any person in a designated area and ask that person to identify himself or herself.
- Alternatively, if police are to have a power to direct a person to leave a protest that power should require the police to form a view that a person is wearing mask to conceal their identity for the purposes of engaging in unlawful conduct such as affray or violent disorder without consequence.
- Second, the offence of affray applies where a person threatens to use unlawful violence or engages in unlawful violence that would terrify a person of reasonable firmness. It encapsulates a wide range of conduct. Given the lack of clarity over the nature of the offence, we are concerned that the maximum penalties specified in the Bill are excessive.
- Offenders engaging in violent conduct at a protest can be dealt with through existing criminal laws. Offences including: affray, assault, causing injury, threats to kill, and threats to inflict serious injury could all apply to violent acts committed at a protest. Importantly, these laws apply to specific criminal conduct.
- Further, it is unnecessary to set higher maximum penalties for affray and violent offenders where a mask is worn for the unlawful purposes. It is sufficient to specify wearing a mask for the unlawful purposes is an aggravating factor.
 Control of Weapons Act 1990, s.10K(1).