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A guide to help you know your rights when out in the public domain so that you don’t break the law and so that your rights don’t get breached by the police and members of the public.
Friday, 9 January 2009
Freedom of political expression
Firstly let’s start with your right to freedom of speech. It’s not very clear, however, without going into the in depth analysis of the Australia Constitution, there was a Supreme Court decision in ‘92 and ’94 that stated that there was an implied right to political communication. If you want to read more about it you can go here: http://epress.anu.edu.au/agenda/001/01/1-1-A-8.pdf This right to communication is referenced in several acts recently such as: Independent Commission Against Corruption Act 1988 No 35 Police Integrity Commission Act 1996 No 28 Protected Disclosures Act 1994 No 92 These acts only reference parliamentary freedom however in essence; you have the right to political freedom of speech. If someone tries to stop you from a political demonstration, you should tell them “I have a right to political freedom of speech as covered by the Australian Constitution” This should inform whoever is trying to move you on or gag you from speaking or protesting that you know you have rights. You do not need a permit to have political freedom of speech event if you are in any public area; this includes the Sydney Harbour Foreshore Authority regulated area. http://www.shfa.nsw.gov.au
Proof of Identity
As a general rule you do not have to give anyone your identity. Do not be conned or scared into giving your identity when you do not have to. If you do, your rights have been breached. There are some exceptions to this where you have to give your identity, which I will cover below so that you don’t get yourself arrested.
Law Enforcement (Powers and Responsibilities) Act 2002 No 103 Part 3 Division 1 Section 11 11 IDENTITY MAY BE REQUIRED
TO BE DISCLOSED
A police officer may request a person whose identity is unknown to the officer to disclose his or her identity if the officer suspects on reasonable grounds that the person may be able to assist in the investigation of an alleged indictable offence because the person was at or near the place where the alleged indictable offence occurred, whether before, when, or soon after it occurred. This is fairly straight forward. If you are asked for your Identity, you can reply with “Is there an offence you are investigating that requires you to obtain my identity?” If there is, then hand over your details. Part 3 Division 2 Section 14 14 POWER OF POLICE OFFICER TO
REQUEST DISCLOSURE OF DRIVER OR PASSENGER IDENTITY
(1) A police officer who suspects on reasonable grounds that a vehicle is being, or was, or may have been used in or in connection with an indictable offence may make any one or more of the following requests: (a) a request that the driver of the vehicle disclose his or her identity and the identity of any driver of, or passenger in or on, the vehicle at or about the time the vehicle was or may have been so used or at or about the time the vehicle last stopped before the request was made or a direction was given under this Division to stop the vehicle, (b) a request that any passenger in or on the vehicle disclose his or her identity and the identity of the driver of, or any other passenger in or on, the vehicle at or about the time the vehicle was or may have been so used or at or about the time the vehicle last stopped before the request was made or a direction was given under this Division to stop the vehicle,
This is ambiguous, how does an officer know you may be driving and related to an offence? However because there are so many road laws that they can pin on you, you should probably hand over your license. Part 6A Division 3 Section 87L 87L POWER TO OBTAIN DISCLOSURE
(1) A police officer may request a person whose identity is unknown to the officer to disclose his or her identity if: (a) the person is in an area that is the target of an authorisation (whether or not in or on a vehicle), or
(b) the person is in or on a vehicle on a road that is the target of an authorisation, and the police officer reasonably suspects that the person has been involved or is likely to be involved in a public disorder. (4) A police officer may request a person who is requested under this section to disclose his or her identity to provide proof of his or her identity.
This one is clear cut and you need to know this. There is a clause, 87D that refers to authorisation of special powers. These special powers are essentially a police state zone. You have no rights there and you need to hand over ID and move on if requested. They could probably bash you without recourse. If you are asked for ID, sometimes it might be worth to asking if the area you are in is that target of a special authorisation.
Filming and Your Rights
One of the most important and right protecting things you can do is FILM or AUDIO RECORD any interactions you have with people of civil authority. This can turn a bad situation where your rights are being abused to a good situation where you rights are upheld. There are many Supreme Court case laws that you can reference but a good one to remember is: R v Sotheren (2001) NSWSC 204 , where the Justice Dowd stated: “A person, in our society, does not have a right not to be photographed” You can basically film and record anything and anyone as long as it’s clear you are doing so and you are on public land. The best practice for this is to clearly state that you have a camera and that you ARE RECORDING. “Officer, just to inform you I have a camera in my hand and I am filming this interaction, this is not a concealed device and we are in a public place” The laws that govern recording of conversation can be found in the federal Act. LISTENING DEVICES ACT 1992 - SECT 4 Use of listening devices (1) A person must not use a listening device with the intention of—
(a) listening to or recording a private conversation to which the person is not a party; or (b) recording a private conversation to which the person is a party.
As you can see, it is only when you hide your recording devices is it illegal.
Many members of the public including the police think that you need to ask them permission before filming. It’s purely a matter of courtesy if you do or do not record them. The only caveat to this is if you intend to profit from the image or recording you are taking of the individual. It’s at this point you need to obtain a Release Form. The ways people stop others from using their imagery are: Common Law Tort of "Passing Off" Unfair Practices portion of the Commonwealth Trade Practices Act 1974, (Part V — Division 1 — Section 52 and Section 53). I won’t be covering these, just remember not to profit from your filming of others without a release. If an officer asks you to stop filming him because you didn’t ask his permission, you can reply with something similar to this “I appreciate you have asked me not to film, however under the listening devices act and case law R v. Sotheren, I do not have to ask your permission because this is not a concealed device and I have informed you I am filming” Stick to your guns here. If it gets heated the recording is your insurance in case of assault by a police officer. Make sure your colleagues or friends also have cameras and are filming you while you have this interaction. If you would like further reading on photographic rights go here: http://www.4020.net/words/photorights.php
To end this article I want to state that I am not a lawyer and you should not take this as legal advice, I am only providing you with references to the law in NSW. Follow the underlined text, they are all linked. Know your rights, get out there and pass on your message. Freedom!
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