Bail condition prohibiting participation in Cultural Ceremony, and in Social and Political activities in Musgrave Park .
Since May 2012 police have been using their move-on powers to interfere with and (on occasion) arrest people engaged in social, political and cultural business in Musgrave Park.
Police and courts have imposed onerous bail conditions on people arrested in that place.
One of those conditions has been to prohibit people from attending the sacred fire there.
Section 11 of the Bail Act states that the court or police:
“… 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 court may impose special conditions under s11 (2) to ensure the defendant:
(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 whether in relation to the person or another person;”
Argument to remove bail condition that a person shall not attend Musgrave Park.
These bail conditions are based on a legal fiction restricting where indigenous people and their supporters can go and what they can do. A similar legal fiction to that of ‘terra nullius’ that denied their existence and placed aboriginal people under the control of racist legislation such as the Aboriginals Protection and Restriction of the Sale of Opium Act 1897
In 2007 the Howard federal government suspended the prohibition on racial discrimination in the Racial Discrimination Act 1975 (Cth) as it applies in the Northern Territory.
Notwithstanding this, bail conditions under the Qld Bail Act may violate SECT 9 of the RACIAL DISCRIMINATION ACT 1975 – which says that Racial discrimination is unlawful:
“It is unlawful for a person … (who) requires another person to comply with a term, condition or requirement which is not reasonable having regard to … any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;
the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person‘s race, colour, descent or national or ethnic origin.”
Depending on the circumstances the arrest of the defendant may be unlawful –
For example if the defendant was carrying on cultural business of maintain the sacred fire or conducting smoking ceremony or dance.
Attending or maintaining the sacred fire on land in Musgrave Park is protected under the terms of the Deed-of-Grant-in-Trust (set up under Land Act 1994) which states:
“Elizabeth the Second, by the Grace of God, Queen of Australia, and Her other Realms and Territories, Head of the Commonwealth:-
TO ALL TO WHOM THESE PRESENTS SHALL COME, GREETING:
WE (meaning the Crown) with the advice of the Executive Council, under the Land Act 1994 (introduced by the Goss Labour Government), grant in fee simple (freehold) all that parcel of land described in Schedule 1 to the person described in Schedule 2 (Brisbane City Council), in trust, subject to the trust, reservations and conditions specified, and such other reservation and conditions as may be contained in and declared by the laws of the State.
Schedule of Trusts
The grantee is to hold the land in trust for aboriginal and for no other purpose whatsoever.
Police not acting in the execution of their duty
Police may not be acting in the execution of their duty when they arrest the defendant.
The special conditions (prohibition from going to Musgrave Park in South Brisbane, a traditional meeting ground of aboriginal people since before colonisation) imposed under the bail act should be removed because they do not fit the requirements on s11(2) of the Bail Act for the following reasons:
“commit an offence”
There is no evidence before the court that the defendant may commit an offence while attending aboriginal ceremony, social, or political functions in Musgrave Park. For example the condition may prevent the defendant from participating in important cultural events i.e. NAIDOC week.
‘endanger the safety or welfare of members of the public’
There is no evidence that events conducted by the Sovereign Tent Embassy endanger the safety or welfare of members of the public. Meetings and social gatherings are conducted in an orderly fashion according to cultural and democratic traditions.
‘interfere with witnesses’
This is unlikely because the relevant witnesses are usually armed police or members of the BCC rapid response group who have the full backing of the state.
It is for these reasons that the courts should desist from and restrict the use of s11 of Qld Bail Act 1980 for its intended purpose and not to aid Brisbane City Council and government to prevent participation in cultural, social and political activity.
5 July 2013
 National Aborigines and Islanders Day Observance Committee