In Australia there’s no specific law that enshrines the right to protest.
However, Australia is a party to a number of international human rights treaties that contain the right to ‘peaceful assembly’.
The right to peaceful assembly protects the right of individuals and groups to meet and to engage in peaceful protest. The key word being ‘peaceful’.
The right to peaceful assembly protects the right of individuals and groups to meet for a common purpose or in order to exchange ideas and information, to express their views publicly and to hold a peaceful protest. The right extends to all gatherings for peaceful purposes, regardless of the degree of public support for the purpose of the gathering. However, the right applies only to peaceful assemblies, not to those involving violence.
Freedom of assembly can be limited by other laws which are in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. (in Australia, state laws such as resisting police, interfering with business etc might be laid against protestors where relevant)
Generally, in NSW public assemblies must be authorised by police in accordance with sections 22-27 of the Summary Offences Act 1988. The Act details a long list of requirements for organisers of a public gathering such as a rally or protest including that the organiser is required to serve notice on the police providing details such as the date, place, time, whether the protest is being held in a single place or whether it’s a march from one location to another and the purpose of the gathering or protest. The notice must also include the number of participants organisers anticipate will attend. You can see all of the requirements here.
If the gathering is not authorised or if there is a serious safety to risk, police have the power to direct that the group disperse or move on. The penalty for ignoring the direction is a maximum fine of $220.
The right to freedom of assembly is not the same as the right to freedom of association which protects the right to form and join associations to pursue common goals (such as joining a trade union).
Where does the right to freedom of assembly and association come from?
They can be found in the treaties below:
- International Covenant on Civil and Political Rights (ICCPR) – articles 21 & 22
- International Covenant on Economic, Social and Cultural Rights (ICESCR) – article 8(1)(a)
- Convention on the Elimination of All Forms of Racial Discrimination (CERD) – article 5
- Convention on the Rights of the Child (CRC) – article 15
- Convention on the Rights of Persons with Disabilities (CRPD) – article 51
The Attorney-General’s Department has more information.
If you are charged with an offence as the result of participating in a rally or protest, call me on 0444 580 187 or email fleur@fleurbitconlegal.com.