Melbourne activist Monica Smit unlawfully arrested during 2020 anti-lockdown protest, court finds

Prominent activist Monica Smit has been awarded $4000 in damages after a court found she was unlawfully arrested during anti-lockdown protests in Melbourne in October 2020.

Ms Smit, founder of the Reignite Democracy Australia (RDA) lobby group, was arrested three times during the October 31, 2020 “Stop the Sale of Victoria” protest at Treasury Gardens, which was organised to oppose the strict Covid measures of then-Premier Daniel Andrews.

The 36-year-old sued the Victorian government for false imprisonment in July.

The County Court of Victoria on Thursday ruled two of the three arrests were unlawful, as the government had failed in those instances to prove the elements required under section 458 of the Crimes Act for summary arrest.

“I have found that Smit was falsely imprisoned on two of the three occasions that she was arrested,” County Court Judge My Anh Tran said in her published decision, which noted there was “special and enduring protection afforded by the common law to the human right to liberty”.

“By definition, human rights are available to every member of our society, including people whose views may be seen as unreasonable by the majority of community members. Indeed, the protection of minorities from the tyranny of the majority is one of the tenets of human rights law.”

While the right to liberty can be can be abrogated, “the principle of legality provides that it may only be eroded by express, unmistakeable and unambiguous language” and powers of arrest are “therefore strictly construed”, Judge Tran said.

Ms Smit was arrested and released three times in the space of three hours during the protest, which she attended “ostensibly in the capacity of an independent journalist working for RDA”.

Public health orders in place in Victoria at the time required face masks to be worn outdoors, and banned public gatherings of more than 10 people or travelling more than 25 kilometres from home.

“Protesting is not unlawful — it’s a human right,” Assistant Commissioner Luke Cornelius told a press conference on October 22.

“But whether you are protesting at home, whether you are protesting down at the local park, whether you are protesting at the Shrine, you must comply with the [chief health officer’s] directions … if you don’t and we observe you in breach, we will hold you to account.”

Ms Smit was first arrested at about 10.45am for not wearing a face mask and refusing an officer’s direction to move on.

She was held on the street for around 20 minutes before being released, but was arrested again at 11.10am, this time for not wearing a mask and being outside of her required distance from home.

During the second arrest she was handcuffed and placed in a police wagon for around half an hour.

Ms Smit was briefly arrested a third time when police initiated a cordon to detain around 30 or 40 people at the protest.

Judge Tran ruled the first instance was unlawful as the officer did not adequately explain the grounds for arrest, even though he reasonably believed she was committing an offence.

The third arrest was also ruled unlawful.

At the time, Ms Smit was “standing by herself, surrounded by dozens of police officers” and “was clearly no longer committing the offence of gathering with a group of more than 10 people with a common purpose”, according to Judge Tran.

“I am not satisfied that Smit’s third arrest was authorised under s458,” she said.

Police were found to have acted lawfully during the second arrest.

Ms Smit was awarded $3000 in damages for the first and $1000 for the third arrest, with Judge Tran noting that the second, which she accepted “was the most distressing”, would have attracted damages of $5000 if it had been found unlawful.

Judge Tran said the evidence given by Ms Smit, who represented herself in court, was “unreliable” and that there was a “performative and melodramatic element to her claims of distress”.

“She had a tendency to view everything through the lens of what would further her desired narrative as a freedom fighter and hero for her people,” she said.

The court will rule on costs on Friday.

Ms Smit told news.com.au she had spent around $45,000 on the case.

“It took me four years to get public vindication that I was unlawfully arrested,” she said.

“I represented myself and I’m grateful to all those who supported and helped me along the way. The damages awarded to me were minimal, but it was never about the money for me. Anti-lockdown protesters and organisations like mine were targeted during this time for their political opinions. Victoria Police should neither affirm or oppose any political groups or causes.”

Earlier this year, Ms Smit and RDA were found guilty of running an unregistered fundraiser to pay for her legal challenges.

The fundraiser, which collected nearly $67,000, was set up after Ms Smit was arrested at another protest in August 2021.

RDA was convicted and fined $1500 while Ms Smit received a conviction and discharge, in a case brought by Consumer Affairs Victoria.

Ms Smit spent 22 days in custody on charges of inciting others to attend the 2021 protest. Those charges were eventually dropped, and she was later found guilty without conviction of breaching Covid orders.

“Victoria Police don’t seem willing to be accountable for their actions without being forced through the court system,” Ms Smit said. “And that is why I will be suing them for the 22 days I spent in isolation in a high security prison next.”

frank.chung@news.com.au