Damon Mcknight
Australia's laws surrounding protests are complex and vary across states. While there is a judicial recognition of the right to peaceful assembly, there are many protest regulations and anti-protest laws in place. These laws are often targeted at environmental protests, and can result in hefty fines and even prison sentences. Australia has also ratified the International Covenant on Civil and Political Rights, which states that no restrictions may be imposed on protests unless they pose a threat to national security, public safety, public order, public health, morals or the rights and freedoms of others. In this paragraph, we will explore the legality of protesting in Australia and the various factors that come into play.
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What You'll Learn
Australia's right to peaceful assembly
Australia has ratified the International Covenant on Civil and Political Rights, which recognises the right to peaceful assembly under Article 21. This right protects the freedom of individuals and groups to meet and engage in peaceful protest for a common purpose, to exchange ideas and information, and to express their views publicly. It is important to note that this right applies only to peaceful assemblies and does not extend to those involving violence or disruption of critical infrastructure.
While Australia recognises the right to peaceful assembly, there are various laws and regulations in place that govern public demonstrations and protests. These laws vary across different states and territories, with some states having more extensive legislation surrounding protests due to specific industries or the presence of the capital city. For example, the states of Queensland and Western Australia have more legislation regarding protests due to the significant mining industry in these states, which is often a subject of public demonstrations. Similarly, protests in the Australian Capital Territory, which includes the capital city of Canberra, are carefully regulated due to the presence of parliamentary and diplomatic zones.
To ensure compliance with the law, protest organisers are advised to submit a Notice of Intention to Hold a Public Assembly to the Commissioner of Police within the required timeframe for their local area. While this step may not be compulsory, it can strengthen the legal standing of protesters if the police attempt to disperse them. Additionally, it is essential for protesters to understand their rights and the scope of police powers during demonstrations. Protesters have the right to remain silent and refuse to answer questions beyond providing their name and address under certain circumstances. However, they should also be aware of offences that may arise during a protest, such as trespassing or causing harm, which can result in arrest and legal consequences.
Australia's approach to protest laws has faced criticism from human rights organisations, particularly regarding new legislation that appears to target environmental protests. There have been concerns about the increasing restrictions on the freedom to assemble and the right to protest, with some laws imposing hefty fines and potential jail time for participants. The introduction of anti-protest laws by different state governments has been labelled as a "fundamental attack on democracy" by legal experts. However, supporters of these laws argue that they are necessary to maintain order, protect workers, and safeguard critical infrastructure.
In summary, while Australia recognises the right to peaceful assembly, the country has a complex landscape of protest laws that vary across states and territories. Protesters should be aware of their rights and responsibilities, and organisers should take steps to comply with local regulations to ensure a lawful and safe demonstration. The balance between maintaining order and protecting the essential freedom to protest remains a ongoing discussion in Australia's democratic context.
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Protest laws in Australia's Capital Territory
Australia has various anti-protest laws, which exist at the state or federal level. Protest laws are constituted under the Attorney-General of Australia's power at the federal level, where there is a right to freedom of expression with certain conditions. At the state level, laws are constituted by individual state governments and can vary significantly.
In Australia's Capital Territory (ACT), protests are allowed depending on the location. Different areas of the territory are graded according to whether or not they require permits from the National Capital Authority or the Territory government for protests to be held. These permissions are necessary due to the presence of parliamentary zones and diplomatic areas within the ACT. A protest works plan must be submitted for approval by the National Capital Authority in these zones.
The Trespass on Territory Land Act 1932 dictates that any person on territory land, regardless of the context, will be subject to penalties from the state. This affects protests as certain locations become inaccessible for demonstrations. The Protection of Persons and Property Act 1971 also outlines the circumstances under which public assembly or protest can lead to arrest or legal action.
The National Capital Authority (NCA) manages National Land in the National Triangle and diplomatic areas. The Presiding Officers have the authority to approve or disapprove protests, demonstrations, or public assemblies within these areas, including the Parliamentary Precincts. Most public land outside these areas in the ACT is managed by the ACT Government, which is also responsible for roads in the ACT outside the national areas.
If you wish to organise a protest using public roads, you should contact the Australian Federal Police, Roads ACT, and the Department of Territory and Municipal Services to ensure the safety of participants and the public. The ACT Government can assist with road closures and traffic management. For protests within the Parliamentary Precincts, you should contact the Security Controller.
There are strict guidelines in place for protests in Australia, including the requirement to arrive and depart from the location in an orderly manner, and the prohibition of vehicles within the parliamentary precincts. Failure to follow these guidelines can result in arrest.
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Anti-protest laws in Tasmania and Victoria
Australia has various protest laws that exist at the federal and state levels. While there is a judicial recognition of the right to peaceful assembly, certain laws restrict this right on grounds of national security, public safety, and trespass.
Tasmania and Victoria have both passed anti-protest laws in recent years. In 2016, Tasmania's centre-right Coalition government attempted to pass a harsh anti-protest law, making it a crime to protest in forests that were going to be logged, among other places. This law was ruled unconstitutional by the High Court of Australia as it breached the right to political communication, which is implicit in the Australian Constitution. However, in 2022, Tasmania passed the Police Offences Amendment (Workplace Protection) Bill 2022, which criminalised anti-logging protests, claiming that they put workers at risk. Under this law, community members protesting the destruction of old-growth forests can face a penalty of over $13,000 or up to 2 years in prison. Organisations supporting such protests can be fined over $45,000.
Victoria has also criminalised anti-logging protests, with similar penalties to Tasmania. In addition, Victoria has a history of protests and squatting to halt developments, with Victoria Street, Potts Point being one such example in 1974.
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Police powers and rights during protests
Protesting is internationally recognised as a basic human right, and Australia is a party to seven core international human rights treaties. However, Australian governments and parliaments have granted very wide powers to the police to respond to protests where problematic behaviour occurs. This includes criminal offences such as assault, threatening language and behaviour, trespass, obstruction, breach of the peace, property damage, weapons offences, and offences for failing to comply with 'move-on' orders.
In Australia, there is an implied freedom of communication about political and governmental matters as that freedom of communication is essential to the maintenance of the system of representative government provided by the Australian Constitution. This freedom of communication operates as a limit on the use of legislation to impede freedom of expression. However, this does not operate as a right to speak or be heard.
The right to peaceful assembly protects the right of individuals and groups to meet and engage in peaceful protest. This right is recognised in international law under the UN Universal Declaration of Human Rights (UNUDHR) (Article 20) and the United Nations International Covenant on Civil and Political Rights (1966) (UNICCPR) (Article 21). The right to freedom of association protects the right to form and join associations to pursue common goals. However, this does not encompass the right not to be compelled to join an association.
In recent years, there has been a trend of Australian governments seeking to pass laws that restrict certain types of protests, particularly environmental protests. These laws tend to feature severe penalties for protesters, excessive police powers, and broad, vague offences. While move-on powers are available to police, they are specifically not permitted to use these powers against protesters. Police officers can direct a person to leave a designated area if they reasonably believe that the person intends to engage in conduct that would constitute a criminal offence. It is an offence to fail to comply with such a direction without a reasonable excuse.
In 2016, the Tasmanian centre-right Coalition government attempted to pass an anti-protest law, making it a crime to protest in forests that were going to be logged. The law was ruled unconstitutional by the High Court of Australia as it breached the right to political communication, which is implicit in the Australian Constitution. However, in 2022, Tasmania passed another anti-protest law, the Police Offences Amendment (Workplace Protection) Bill 2022, which allows any protester who obstructs a workplace during protests to face up to 12 months in prison. Similar laws have been passed in Victoria, targeting anti-logging protesters.
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Australia's federal-level protest laws
At the federal level, there is a right to freedom of expression, with the conditions that this does not cause derogation, affect the reputation of others, harm national security, or incite violence. This freedom of expression is essential to the maintenance of the system of representative and responsible government provided by the Australian Constitution. It includes non-verbal communication, assembly, and movement for the purpose of political protest.
In 2018, the New South Wales centre-right Coalition government passed anti-protest laws that came into effect on July 1, 2018. These laws gave low-ranking government bureaucrats broad powers to ban protests. There are also various guidelines that protesters must follow, such as arriving and departing from the location in an orderly manner and observing lawful directions issued by authorities. Failure to obey these guidelines can result in arrest.
While it is not an offence to participate in a protest, individuals may be charged with offences arising from their conduct during the protest. Protesters may be charged with a range of offences against police and other law enforcers, and anti-terrorism legislation can also impede legitimate protest. Police have the power to direct individuals to leave a protest or a designated area if they believe there is a risk of violent conduct or a breach of the peace. Individuals who fail to comply with police directions without a reasonable excuse may be penalised.
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Frequently asked questions
It is not illegal to protest in Australia, however, there are many laws that restrict the right to protest.
There are various laws that restrict the right to protest in Australia. Some of these include the Trespass on Territory Land Act 1932, the Critical Infrastructure Defence Act, and the Protection of Persons and Property Act 1971.
If you break these laws during a protest, you may be arrested or face legal consequences. The specific penalties vary depending on the state and the nature of the offence.
You have the right to peaceful assembly and freedom of expression, as long as it does not cause derogation, affect the reputation of others, harm national security, or incite violence.
Some examples include the Dakota Access Pipeline protests by First Nations activists, where 141 people were arrested and faced felony charges, and the 2020 Black Lives Matter protests, which led to eight states passing laws increasing penalties for unlawful behaviour during protests.
