Anti-Protest Bail Conditions: A guide for activists

Anti-protest bail conditions have been used by police to disrupt activist groups and undermine the ability of social movements to organise. They are a serious infringement on civil and political rights.  Many anti-protest bail conditions criminalise lawful activity such as organising and participating in protests and associating with others.

It is vital that all protest groups make plans in case police decide to apply anti-protest bail conditions against your group or campaign and understand how you can challenge them.

If you find yourself in police custody

If you are arrested at a protest, and charged with an offence, police may offer you bail and release you from custody.

Bail is an undertaking or promise, that you will attend court at a specified date. In Australia, bail rarely involves any money or bond.  You are entitled to be granted bail (unless there are certain serious charges or circumstances). It is rarely refused for protest related charges. 

Police will sometimes attempt to place ‘special conditions’ as part of your bail undertaking that may restrict your civil and political rights.

These conditions may include:

• Not returning to a place or area, such as a protest location
• Not entering an area such as the Melbourne Central Business District
• Not participating in protests
• Not being involved in certain activities such as planning or protest related activities
• Not associating with, or contacting certain people, such as your friends, comrades, people in your activist group or network
• Onerous reporting conditions or curfews.

Some conditions imposed by police may be unreasonable, outside the purposes of the Bail Act or infringe upon your rights under the Victorian Charter or Human Rights and Responsibilities. They will apply for many months up until your court date.

If you are on bail and police percieve that you have broken a bail condition, you can be charged with further offences or refused bail and remanded (kept) in custody. This has also been used by police to hamper and restrict activist groups.

What you can do

If you are offered bail that includes special conditions, you can:

1. Take time to read the conditions carefully. Think about the effect they may have on your ability to get support, work, travel and participate in protests. Also consider the impact the conditions may have upon your activist group or campaign. If you were arrested as a group, talk together if possible.

2. Seek advice. Ask the police to contact a lawyer or legal support and put you on the phone to speak to them.  If you have a Duty Lawyer, make sure you clearly tell them about your concerns regarding bail conditions.

3. Ask police to remove them. You or your legal representative can ask the police for the conditions to be changed or removed. If you are with others, consider a collective demand to have them removed. 

4. You can refuse to sign the bail form. This means that you may be kept in custody until you sign, or the police change the conditions. If police do not change or remove the conditions you will be held in custody until your bail application is heard by a magistrate, which will usually be within 48 hours. You can decide to sign at any time before then, despite what police may tell you. 

3. Sign the bail form with the special conditions and leave. An application to vary the bail conditions can be made to the court at a later date. (This could be several weeks.)

Activists have successfully removed anti-protest bail conditions many times and have deterred police from continuing to impose them. The decision to refuse to sign anti-protest bail conditions could be made collectively if you are arrested with others or as part of the same campaign.

Reasons to demand bail conditions be changed or removed could include:

• they are more onerous than is required
• they are unreasonable given the nature of the alleged charges
• the conditions impose unwarranted restriction on lawful activities
• the conditions are outside the purpose of the Bail Act and form an injunction against participation in lawful protest.
• you intend to show up at court at the specified date
• you have no intentions of breaking the law before the court date
• there is nothing to indicate you will endanger the safety or welfare of any person
• the conditions will restrict your access to support services, study or work
• the conditions impose unwarranted restriction on lawful activities
• the conditions are outside the purpose of the Bail Act and form an injunction against lawful activities
• The conditions do not take into consideration your age, your health or that you are and Aboriginal or Torres Starit Islander.

The Victorian Supreme Court ruled that bail should not be used for a ‘collatoral purpose’, as an injunction against participation in protests (Flynn and Paton v The Queen, 1994). This is a precedent that you or your lawyer can raise.

Make sure that your legal support and the Magistrate are aware if you are Aboriginal or Torres Strait Islander, under 18 years old, have a disability or experiencing ill-healh, including mental illness.

This is information only and is not legal advice. Activists should consult with a lawyer about their specific circumstances. Victoria, Australia. Up to date as September 2024.

Acknowledgements:  With thanks to Lawyers for Forests, Environmental Justice Australia, Legal Guide for Forest Protectors in Australia (2023)

Extinction Rebellion protesters in Melbourne have bail conditions revoked Guardian Australia, October 2019.