On Tuesday December 3rd, two young men climbed on top of a stationary coal train near the Port of Brisbane and refused to come down. They had a banner draped from the carriage showing statistics from recent bushfires. They were protesting against government climate inaction, in a way that so many have in recent years.

The two were arrested, as they normally would be in this kind of civil disobedience protest. The young woman who was nearby acting as media spokesperson was also arrested as a “party to the offence”. This is less common in protest situations, but legally if the prosecution can prove she was involved in the commission of a crime they have a case regardless of whether she physically stopped a train or not.

Over the last few years there have been many protest actions like this. At least 50 people have been arrested around the country stopping coal trains. But what happened next was unusual – in the watch house police refused to offer bail, and then when the arrestees were taken to Cleveland Magistrates court the prosecution opposed bail there. The magistrate Deborah Vasta agreed, saying the protesters were “holding a gun to the public’s head”. The three were remanded in custody (sent to prison) until their next court appearance in 15 days time.

Now you may suppose the magistrate did this as a deterrent to these young people who seem to believe their conscience gives them grounds to break the law of the land. You may think she did it as a general deterrent to any other people thinking of stopping trains as a protest. After all, there have been a lot of these and the recent penalties don’t seem to be dissuading people. You may think they were imprisoned because these actions cause great expense to freight companies. On such company, Aurizon, already have a lawsuit pending against other activists who took similar actions; claiming hundreds of thousands of dollars in damages.

But if you supposed any of those things you would be missing one vital part of information – these are principles to be used in sentencing an offender after they have been found guilty. These three had no trial. Whatever the magistrate thought of their character or political beliefs, she had no right to sentence them – this was an abuse of the bail act.

As it turned out, the legal system agreed. An appeal was launched, and on Friday the 6th the Queensland Supreme Court overturned the decision. The three were released on bail, as they should have been originally.

It’s not the first time this year that controversial use of bail on environmental activists has been on the news. In October, former senator Scott Ludlam was given bail conditions saying he wasn’t allowed to go within 2km of the Sydney CBD or to have any contact with members of the group “Extinction Rebellion”.

These conditions were also overthrown on appeal, and widely reported in the media. It certainly helps gain attention when a high profile former politician is on the receiving end; but the truth is that bail conditions restricting the freedom of movement, freedom of association and freedom of political expression are extremely common.

The legal principle that underlines any decision on bail is the presumption of bail. This means that unless the court has specific reasons not to, bail should be granted. This presumption extends to bail conditions – legally, conditions should only be given to defendants if certain requirements are met. In normal circumstances, bail should be offered with the only undertaking that of turning up to court.

Section 11 of the Queensland Bail Act lists the circumstances in which the court or police may apply certain conditions on someone’s release on bail. They are:

Where a court or a police officer authorised by this Act to grant bail considers that the imposition of special conditions is necessary to secure that a person—

(a) appears in accordance with the person’s bail and surrenders into custody; or (b) while released on bail does not—
(i) commit an offence; or
(ii) endanger the safety or welfare of members of the public; or
(iii) interfere with witnesses or otherwise obstruct the course of justice

that court or police officer shall impose such conditions as the court or police officer thinks fit for any or all of such purposes but shall not make the conditions for a grant of bail more onerous for the person than those that in the opinion of the court or police officer are necessary having regard to the nature of the offence, the circumstances of the defendant and the public interest.

The presumption of bail is a fundamental part of the law because it is built on a respect for the institutions of the law – that you are innocent until proven guilty in a criminal trial, and that sentencing should be decided then by the presiding magistrate or judge. To adhere to those very basic legal principles of presumption of innocence and separation of powers, it should be made clear that bail is not to be used as punishment.

As we have seen in the legislation above, the factors that affect the normal presumption of bail are whether the defendant is likely to dodge court (is a “flight risk”), to recommit an offence, is a danger to public safety, or likely to interfere with justice. In the case of the three at Wynnum, it’s hard to see which of these applies – none of the three had previous criminal convictions, nor was their offence one that is likely to be done on a whim (meaning they are unlikely to do it again while on bail). They had also done their action openly so there was no reason to assume they would either run away or attempt to interfere with witnesses.

What’s more, their charges were relatively minor offences which do not usually result in a sentence of imprisonment. So by sending them to prison without trial, the magistrate was effectively taking away the ability of her colleague when it came to trial to decide a fair sentence based on the evidence.

The reasons given by Ms Vasta in court for their imprisonment seemed to be largely about her disagreement with their tactics: “by stopping traffic you’re making the problem worse, you’re not solving anything… the means and methods you use is absolutely bullying society, holding a gun to everyone’s head… you keep getting fresh meat, people with no history, on the assumption they will get out on bail and get a slap on the wrist.” She is of course entitled to disagree with Extinction Rebellion’s politics or tactics, but these reasons simply do not give a legal justification for refusing bail.

You could assume that what we have here is one random magistrate letting her political preferences get in the way of legal principles. But while this is an extreme example, use of bail as punishment against political activists is so common it can almost be taken for granted.

The case of Scott Ludlam is a noteworthy one because the conditions, besides being onerous, made no sense – he was forbidden from having contact with Extinction Rebellion members, but the group has no formal membership; and the court he was required to attend was within the geographical area he was forbidden from entering. But this just illustrates how thoughtlessly those who should know better routinely use bail to punish those engaged in civil disobedience.

Frequently people are given conditions that restrict their movement. This is not necessarily related to the place where an offence was committed – though at times (which is what is implied in the bail act) the conditions are not to go back to that location. But the conditions will frequently prohibit going near “any Adani infrastructure” or “any coal mining infrastructure”. Distances people are required to stay away vary from 100m to 20km. The argument is that this fits with the legal provisions in that it is to stop people reoffending. But it’s not against the law to stand outside a coal mine (certainly not to stand 20km from one), and if someone was to do something illegal at a coal mine then normal police powers would enable them to arrest that person or take other action as necessary.

But what about bail conditions prohibiting Extinction Rebellion activists from going into the CBD? Or activists who have stopped coal trains banned from catching passenger trains? Can anybody honestly argue this condition is necessary to stop them reoffending? How about Emily Starr and Matilda Heselev, who in July after blocking the entrance to Adani’s Abbot Pt coal terminal (15km north of Bowen), were given bail conditions barring them from the town of Bowen? Most extreme of all was 21 year old Freya Nolin, who earlier this year was given bail conditions banning her from the state of Queensland – 1,727,000 square km of Australia rendered illegal to her on the whim of one magistrate before she had even been brought to trial.

Similar to these are conditions banning people from specific residences. Probably 50 people this year at different times have been given bail conditions banning them from going within 100m of Camp Binbee, the property near Bowen where many people stay to organise frontline resistance to Adani. Police don’t seem to offer any proof that any individual has been involved at the property, but they are happy to restrict people’s access to a safe place to stay and a support network. Police say the camp is involved in organising illegal protests, but again if that is the case police have the power to gather evidence and arrest people who are breaking the law. That is literally their job and the reason we have laws.

Indeed if the property is such a threat, then people shouldn’t be allowed to go there whether on bail or not. But to actually restrict people’s movement is an extreme act that requires stringent evidence tests police would struggle to meet. Summarily using bail conditions to do the same is simply a way of bypassing those legal requirements. Anybody could plan to break the law from any location, that surely doesn’t mean police can arbitrarily pick destinations where they can’t go. And when it comes to actual sentencing for these crimes the punishment is usually a monetary fine, not a restriction of movement. So why is it acceptable for police, before someone has had a fair trial, to deem where they can and can’t go?

The other liberty bail conditions often impinge upon is freedom of association. Not always as extreme as Scott Ludlam’s, but nor was that an isolated event. I personally was given bail conditions a few years ago with a list of 10 people I wasn’t allowed contact with. None of them had been charged with any crime. This goes beyond just freedom of association – in spaces where activist groups often act as informal legal support, it is depriving people of that. But the conditions are not really designed to deny people legal support. What it is designed to do is to stop people taking part in political protests.

It should be noted to that use of bail in this way is not new. I have heard that in 2002, after activists helped some asylum seekers to breakout of detention at Woomera, police arrested everyone they could – giving bail conditions that they could not return to the isolated detention centre. The charges were based on no evidence and were eventually dropped, but they had the effect of stopping people who had travelled across the country from contacting the detainees they had come to support.

Back in 1994, political bail conditions were taken to the Victorian Supreme Court. Forest activists John Flynn and Stewart Paton were given conditions that said “the defendant is not to attend at or interfere with any logging operation.” They refused to sign them and took the case to the Victorian Supreme Court. There, Justice Byrne declared “the imposition of such a term is inconsistent with the primary purpose of bail which is to ensure that the accused in each case attends to answer the charge with which he is currently facing… it strikes me a collateral objective is being sought by imposing the conditions the magistrate did.” That ruling should have acted as a precedent, but in the quarter of a century since sadly not much has changed.

A few years ago, I spoke to Michael Cope, president of the Queensland Council for Civil Liberties, about the prevalence of this. He was adamant: “it is entirely inappropriate to use bail as a device to stop people taking part in legitimate political protest… it’s just an infringement of freedom of speech

And yet preparing for the punitive bail conditions likely to be applied is a basic part of taking civil disobedience actions. With this month’s example in mind, we might have to change that to say preparing for the prospect of arbitrary imprisonment.

Why this is the case is not hard to imagine. Protesters breaking laws are annoying and inconvenient for people trying to go about their daily business. They not only break the law, but by claiming they have the moral authority to do so they are disrespecting the very institution of the law, a sacred artefact many employed in the law-enforcing professions hold dear. They create extra work for police; who feel they should be attending to more important duties; then are often let off with a slap on the wrist by courts that accept their acts as valid protest. Maybe they hold political beliefs others find disagreeable. Whatever sentencing principles are being applied currently are clearly not deterring anyone – acts of civil disobedience are becoming more common, not less.

For all these reasons, it’s easy to see why people take the opportunity to slip in a bit of extra punishment when and where they can. But to do so is an abuse of legal processes, not an enforcement of them.

And yet it happens all the time, in all parts of this country. It is a part of the apparatus that keeps people in line. It should come as no surprise to anyone that our legal system is stacked in favour of those who enforce the laws and against those who get on the wrong side of them. But on top of that, the people who go on most about the importance of keeping the law are still just as likely as any to manipulate the legal system when it suits their purposes.

– Andy Paine