Artist and activist Benny Zable has been wearing a mask at protests throughout Australia for more than 30 years.
His distinctive skull-like gas mask and painted death-bringer costume, atop large black radioactive drums has become an icon of peace, anti-nuclear and environmental movements throughout the country. He is a performance artist who uses his art form to depict a chilling prophesy of nuclear and environmental catastrophe.
But Victorian anti-mask legislation — the Crimes Legislation Amendment (Public Order) Bill 2017 — currently before the Legislative Council could put at risk this and countless other forms of peaceful political expression and potentially undermine the freedom to assemble and associate.
It was only a matter of time before the Victorian government put up anti-mask laws. The intense media and public outcry after the clashes between neo-Nazi and Antifa groups in Coburg last May meant that the pressure was on to look like they were doing something. Since then, the rationale for these laws has also been conflated with the various outbreaks of youth violence at public events such at brawling the Moomba festival last year.
There should be no doubt that these laws are political. They will do nothing to stem the rise of the far-right in Victoria. But rather than actually confront the growing surge of street politics by dangerous neo-Nazi groups, the government has responded with a blanket increase in penalties and the banning of bandanas.
Shadow Minister for Multicultural Affairs, Inga Peulich in said in Parliament in March: “The wearing of masks at protests, I think, simply indicates that people have come with the intent of committing some sort of violence and want to evade the law. That is totally unacceptable.”
This simplistic view has driven the introduction of this bill. It is wrong and its adoption into law could undermine some vital civil and political rights.
The bill would amend the Crimes Act 1958 to abolish the common law offences of affray, rout and riot and create new statutory offences of affray and violent disorder.
The definition of affray has not changed: “uses or threatens unlawful violence and whose conduct would cause a person of reasonable firmness present at the scene to be terrified”. Maximum penalty is five years.
Violent disorder is defined as when six or more persons use violence for a common purpose, and that conduct damages property or causes injury to a person. Maximum penalty is 10 years.
If committed wearing a face covering the maximum penalty is seven years for affray and 15 years for violent disorder.
It is already a crime in Victoria to be disguised with “unlawful intent” under s49C of the Summary Offences Act 1966. If a police officer has a reasonable suspicion that a masked protester is going to commit a violent act, they can arrest and unmask the protester.
Some anti-mask laws in other countries include exemptions for wearing masks for religious purposes, for theatrical productions, sporting events, parades, civil defence drills and protection from severe weather. Some, but not all, include exemptions for political expression. There are currently no protections or exemptions in the current bill.
The chief commissioner of Victoria Police already has the power to declare a specific area or event to be a “designated area” if they believe or assess that there was previous use of weapons in that area or during previous occasions of the event or that they assess that there is a “likelihood that violence or disorder involving the use of weapons will occur in that area”.
These “designated areas” were introduced in 2009 to allow police to deal with a perceived rise in youth knife-related crime. Designated areas are now increasingly being used in protest situations. This provides police with additional powers to search people and vehicles without warrant within that defined area for up to 12 hours.
The bill provides additional police powers in designated areas to require a person wearing a face covering to either remove their face covering or leave the area immediately. If the person refuses to comply with this order to leave, they will be committing an offence.
Masks as political expression
Masks of all kinds have a very long association with protest and political expression. We wear them to mock and ridicule public figures and politicians, to symbolise an act of oppression, to express dissent and disdain and as an act of political street theatre.
This proposed law makes police the arbiter of this form of political expression. Ordinary police will have the power to demand of a person at a political demonstration that they remove their face covering. If a political artist such as Benny Zable does not comply, he risks being arrested.
Vague but punitive laws and arbitrary policing have a chilling effect and deter people from attending protests or choosing to express themselves due to fear of repercussions, even if what they are intending to do is not actually unlawful.
At times, particularly in circumstances where protests are about controversial issues, maintaining our anonymity may be critical to allowing freedom of association. If attending a protest necessarily entails intrusive surveillance from the state or the threat of violence from other groups, then you cannot really say we have genuine “freedom” of peaceful assembly.
Protesters have legitimate reasons for wanting to conceal their identity. In an era of ubiquitous CCTV and street cameras, police filming units and the use of facial recognition technology, any facial image obtained by Victoria Police can be utilised in numerous unregulated and intrusive ways and can be stored indefinitely.
Victoria is yet to legislate or provide any restrictions or regulatory guidance about the police use of facial recognition technology.
Fear of retaliatory violence is also very real for protest groups confronting far-right or neo-Nazi groups on the streets. Far-right groups have used social media to identify counter-protesters, naming them in blogs and Facebook pages and attracting comments making threats of violence.
Several assaults of activists who had been identified by Nazis have occurred since the first Reclaim Australia rally in early 2015. In these circumstances it is understandable that some people might want to protect their identity at rallies without having any intention of engaging in criminality.
In this political climate, many activists face a difficult decision. If they take to the streets and protest on a controversial issue, they risk surveillance, harassment and intimidation. If they do not take to the streets, they are compromising their beliefs and remaining silent about the things that matter.
For many, a solution has been to continue protesting on these campaigns, but with masks covering their faces. It clearly is not always the best solution. But wearing a mask does not mean activists are guilty, or that they are “terrorists”. For many activists, it simply means they do not trust police, ASIO or others intent on doing them harm.
Masks as protection
Many commentators have already pointed out that faces at modern protests are often covered with scarves, goggles, gas masks or handkerchiefs in response to police use of chemical-based weapons such as pepper (OC) spray and tear gas.
The use of OC foam and spray at protests in Victoria has skyrocketed in recent years and has correlated with the rise in people wearing some form of face covering. Even journalists, medics and legal support teams covering protests now wear some sort of face protection. This law would criminalise that practice.
When police deploy OC spray or foam at a protest event, it is inevitable that many people in the vicinity, including other police, can be severely affected. In some OC spray incidents at Melbourne rallies up to 70 people were affected by spray at any one time. The need for some sort of mouth and nose covering is very real.
Liberty Victoria has already come out strongly against any laws banning masks. Fiona Patton from the Australian Sex Party has also spoken out in parliament against the proposed anti-mask legislation.
If the wearing of protective face coverings becomes unlawful it will be yet another infringement upon our right to assemble without the risk of state violence.
[This article was first published at the Melbourne Activist Legal website.]