In April, six brave, passionate, committed souls climbed onto the roof of a several-storey building housing Forestry Corporation in Coffs Harbour.
They unfurled a banner calling for an end to native forest logging. We owe them a debt of gratitude.
In May, three fervent activists were arrested on the roof of the electoral office of MP Justine Elliot after rolling down a banner stating ‘Free Palestine – no trade with genocide’.
And who could argue with that?
The offence charged in each case was the criminal version of trespass. In NSW it is a relic dating back to 1901 called, with ancient grammatical flourish, the Inclosed Lands Protection Act.
When arrested, all five demonstrators were taken to the police station – searched, finger-printed, photographed and locked up for hours. Release was conditional on signing bail conditions restricting conduct, area, behaviour, and requiring the defendants to attend court on a certain date.
Pretty ho-hum so far.
But here is the exciting bit, if you’re an activist lawyer – the offence does not carry a prison term. It carries a $550 maximum fine.
Yet the police have the power to arrest, detain and bail even though the ultimate penalty that can be imposed by the court is a fine.
Go figure.
The take-home is that the police have the power to arrest for any crime, and the criteria for that decision include whether the offence is continuing, and if it is necessary to stop ongoing or repeated conduct.
Bruns van parking fiasco
And so to the Brunswick Heads van fiasco. Please bear with me, because I don’t want anyone to think for a moment that I am comparing opportunistic travellers to the courageous selfless friends who put their liberty on the line in furtherance of the wonderful tradition of peaceful nonviolent protest.
I see Council struggling to deal with what is ultimately a police matter, and I view all the gnashing of teeth, and motions, and huffing and puffing as well-meaning but ultimately misguided. Of course Council should do what they can. But the police have the power, the resources, and the training to arrest even for parking offences.
They have the authority to move on where others are harassed or obstructed. They can arrest for breaching ‘no camping’ signs.
They can even tow away vehicles in certain circumstances.
They can apprehend people for offences or issue go-away orders under the Crown Land Management Act 2016 – like the boat harbour area. It is obviously an imprisonable offence to defecate or urinate in a park, or indeed anywhere within view of a public place.
If the police can institute a spy, catch, cover and arrest for nude swimmers like they did a few years ago (or manage thousands of drug-driving tests) they can surely undertake a shit, grab and smear undercover dunny-paper sting now.
Effectively all Council can do is issue fines, 90 per cent of which aren’t getting paid anyhow, and are laughed off by Mr Belgium and Ms Guatemala.
When I went down to Brunswick Heads to have a look I was pretty appalled. I saw at least 40 arrestable offences within ten minutes. Everything from the gas stove regulations, to negligent driving, to illegal parking, to pooh pooh in bush bush.
(By the way, it is no defence to swap places within the same zone to beat a time limitation – you have to move completely outside the designated area).
So rather than Council spending too much time and money (and the ultimate cutting-off-nose-to-spite-face of closing whole areas to parking for everyone – think South Beach Lane) here is the answer.
Police – do your frigging job. Here is a set of proposed bail conditions – ‘liberty is conditional on you not returning within 5km of Brunswick Heads Post Office.
‘You are not to sleep in your vehicle except in a permitted caravan park or campground’.
After all, if it’s good enough for environmentalists and humanitarians, bail is applicable for problematic parkers. And if they breach their bail, well, they may be held in custody until their court date and face further more serious charges. At least the cell will have a proper toilet.
Lobby police, not mayor
Residents, if you want to picket, protest and lobby, go to the local police commander, not the mayor.
Police should, and hopefully would, exercise discretion – a genuinely homeless family for example could just be moved on. I saw none of those at Bruns. But I reckon a determined operation would end the problem in Bruns with just a few arrests in a few days.
News travels fast on WhatsApp.
Then perhaps the same squad, while they’re at it, can arrest a few people walking their dogs, thus killing shore birds in National Parks or on prohibited beaches. And then some Forestry Corp illegal loggers. And then some noisy doofers.
Sadly, there are three problematic questions. Is this the society we want to be?
Arrest and detention is ultimately a form of violence – is that who we are? And where would the van dwellers move to next?
Better not be my street.
♦ Professor David Heilpern is Dean of Law and Chair of Discipline at SCU. He is also a former magistrate.
For four decades The Echo has printed the stories some people loved, some people hated, and some pretended not to read. If you want us to keep telling the truth, the real truth, not the sugar-coated version. We’ll need your support to keep the presses rolling. 
