Charge of Incitement

Earlier this year, several people were fined for breaching COVID-19 restrictions whilst protesting. They were protesting against the serious mistreatment of refugees and asylum seekers in Mantra hotels in Victoria and the heightened risk surrounding COVID-19 for those detained.

Whilst many protesters were fined for disobeying COVID-19 restrictions, Mantra protest organiser Chris Breen was arrested in his home under the charge of incitement before the protest had even begun. The police also seized his computers and phones during the raid.

Given the evolving climate surrounding protesting under COVID-19 restrictions, it is important to have an understanding of the charge of incitement and how it is used in Victoria.

What is Incitement?

The Oxford dictionary describes incitement as the act of encouraging somebody to do something violent, illegal or unpleasant.

Section 2A of the Crimes Act 1958 (Vic) (“CA”) defines ‘incite’ non-exhaustively as to command, request, propose, advise, encourage or authorise.

The Charge

The crime of Incitement is legislated under the CA at s 321G and concerns the commissioning of a crime, before the occurrence of the crime.

In order for incitement to be proven beyond a reasonable doubt, it must be established that:

• the accused person incited another to “pursue a course of conduct” that would, should that incited person act upon it, result in the commission of a criminal offence (s 321G); and
• at the time of the alleged inciting conduct, the accused had an intention that the offence would occur (s 321G(2)(a)).

The “inciting conduct” is outlined in the definition: to command, request, propose, advise, encourage or authorise. This could be done through social media, use of texts or phone calls, posters, conversations; anything that can cause another to become aware of the criminal offence.

The principal offence (the crime) does not need to have been committed for the offence of incitement to be established. According to the Victorian Court of Appeal in R v Dimozantis (1991), an attempt to incite is sufficient.

It must also be proved that the inciter intended to induce the commission of the crime.

How Incitement is Used

The purported purpose of the charge of incitement is to deter behaviour that urges or encourages others to commit a crime. It has been described as an offence ‘that enables the police to nip criminal tendencies in the bud.’¹

The charge of incitement is particularly relevant during the current pandemic where we see the criminalisation of various ‘normal’ activities, such as organising public gatherings, restricted under the guise of COVID-19 protections. This is concerning for MALS because public gatherings are an integral part of action that individuals can take to address and challenge assumptions and regulations in society.

It is important to note that enforcement authorities have not applied the charge of incitement to all public gatherings during COVID-19 restrictions. Other significant protests were without threat of charging incitement, including the 5G, Black Lives Matter, and Workers’ protest events, despite prior knowledge of the planned events. The organisers of the 5G² and BLM³ events faced fines for breaching COVID-19 regulations as attendees of the event. No material response was therefore imposed on the organisers that was unique to them as organisers.

In relation to the Mantra protests however, the authorities both threatened and have subsequently charged people on the basis of incitement. The reasons for these differing responses by authorities are not clearly understood, however, the inconsistencies may point to authorities’ insistent hard-line defence of Australian border policies.

The Mantra Protest

In Chris’s case, the charge of incitement carries with it the possibility of a heavy fine and concerns his alleged conduct in commissioning an action considered criminal under the COVID-19 safety measures; his organisation of the Mantra hotel protest event.

While some legal restrictions around the pandemic are clearly necessary in order to minimise rates of COVID-19 infection, the right to take action and the ability to uphold values of care and support for others should not be limited.

The Mantra protest was organised as close as possible to public gathering restrictions and with respect for the need to continue to support and protect others. The event involved very little risk; people were confined to their cars with two people from the same household per car. Refugee Action Collective’s Lucy Honan provided a statement published on SBS News website that, “we were told that we had breached the stay at home direction. We said we are there for compassionate reasons. Compassion and care is one of the reasons you can leave the house.”⁴

Refugee Action Coalition’s Ian Rintoul explained that the protest was safe, while what they were protesting against was, and is, incredibly unsafe. On their website, Ian stated, “The police action has deliberately targeted protest action that highlights the government’s hypocrisy on COVID-19 safety.” He added as an example that you could “leave your home to drive to JB Hi-Fi, but you can’t drive outside a hotel to highlight the lack of safety for vulnerable people who should not be imprisoned.”⁵

Are we to understand that the Australian government considers shopping for consumer goods essential, but to take action for the care and safety of your fellow human beings is not?

Testing the Application of COVID-19 Laws

In one of our own Statements of Concern dated 4 April, we outlined the Victorian Government’s failure to recognise the nature of the Mantra hotels protest event. The response by the authorities arguably “goes beyond the spirit of the Deputy’s Chief’s Health Officer Stay at Home directions which explicitly allowed travel for both work and volunteering tasks.” Any new laws must be tested to determined their scope, and Chris’s case will be no different.

If Chris is convicted for inciting this new “crime,” this may work to alter our philosophical understanding of the nature of criminal activity. In addition, if Chris is convicted, it may set a concerning precedent for subjugating expressions of dissatisfaction with government, policy-makers, and even with workplace conditions. This may act to fray even further our once deeply-held assumption to free speech.

Jasmine Wright Catron, Matthew Healy, Kate Taylor
Melbourne Activist Legal Support