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Freedom to Protest? A complete Legal Guide to Protest Laws.

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As tensions in the Middle East soar with the Palestinian and Israeli conflict, so to have tensions domestically, with many Australians taking to the streets in protest against the violence. Ultimately, leading the Minns led Labor Government to suggest that it will attempt to block / ban pro-Palestinian protests.

While the suggestion may have gained some support from certain minorities, fortunately for Australians, the laws presently do not allow the NSW Police to stop people from protesting, nor can a court in NSW make an order “banning” a protest.

More to the point, nor could the NSW State Parliament introduce a law that banned protests or a particular political expression, as such a law would be in direct conflict with the implied freedom of political communication contained in the Australian Constitution.

So, what can the law do in regards to protests?

The laws surrounding protests are predominantly contained under Part 4 of the Summary Offences Act (the Act) under the heading “Public Assemblies”.

As distinct to banning, blocking, or prohibiting a protest, in NSW, protestS can either be an “authorised protest” or an “unauthorised protest”. However, in this context, those terms do not imply their ordinary meanings.

Just because a protest is “unauthorised” does not mean that the protest is banned. To explain the legal concepts surrounding “unauthorised protests” it is best that we first discuss what an “authorised protest” is.

What is an authorised protest?

In the context of protest laws, the term “authorised protest” does not mean that the particular protest has been “allowed” or “permitted”, in the sense that in the absence of it’s authorisation, the protest is banned.

Rather, under Section 24 of the Act, if a protest is “authorised”, it just means that participants at the protest will be immune from prosecution in respect of the following specific offences that they would otherwise commit solely by virtue of their attendance at the protest:

a) Obstruction of traffic

If a protest has been “authorised”, participants at the protest cannot be charged with the offence of obstructing traffic so long as they are within the agreed protest route.

Therefore, protestors can walk on the roadway within the protest route without legal ramification.

However, protestors can still be prosecuted for obstructing traffic if they were to obstruct traffic outside the bounds of the agreed protest route.

b) Joining or participating in an unlawful assembly

Similarly, Section 24 of the Act also provides partial immunity to protestors from being prosecuted with the offence of joining or participating in an unlawful assembly.

However, this immunity strictly applies to acts undertaken by protestors for the purpose only of participating in that public assembly. Therefore, acts undertaken outside that can still be prosecuted.

In this regard, it is important to note that the legal definition of unlawful assembly does not simply mean the gathering of persons at an unauthorised protest.

The legal definition of unlawful assembly is contained in Section of 545C(3) of the Crimes Act 1900 and provides as follows:

Any assembly of five or more persons whose common object is by means of intimidation or injury to compel any person to do what the person is not legally bound to do or to abstain from doing what the person is legally entitled to do, shall be deemed to be an unlawful assembly.

The immunity provided by Section 24 of the Act, only provides immunity in so far as a person would be guilty solely by virtue of their attendance at the protest.

The above is the only effect of having a protest authorised. Therefore, if a protest has not been authorised, it simply means that the above immunity does not apply. It does not however make the protest illegal.

Therefore, if a protest is not authorised, so long as protestors were not committing any other offence the protest would remain to be perfectly legal.

How does a protest become authorised?

For a protest to become authorised in New South Wales, an application must be made under Section 23 of the Act to the Commissioner of Police and must meet the following criteria:

  1. Notice of the Protest must be served in writing on the Police Commissioner; and
  2. The notice must contain all the relevant information about the protest. This includes the date, the time, the place, and the route for the protest; and
  3. The written notice must indicate the number of people who are expected to participate in the protest; and
  4. The notice must include the service details of the person who is taking responsibility for organising and conducting the protest. This person must also sign the notice.

Once the Notice is served, the Police Commissioner can either consent to the protest taking place, meaning that the protest will be “authorised” and the relevant immunity in Section 24 will apply to the attendees at the protest, or alternatively the Police Commissioner can oppose the protest taking place.

If the police commissioner opposes the protest, then the timing in which the written notice was served will determine what will happen next.

If the notice was served on the Commissioner at least 7 days before the date of the protest then the protest is authorised unless the commissioner applies to the Supreme Court under Section 25 of the Act to “prohibit” the protest.

It is again important to note that the effect of “prohibition” in this context simply means that the protest will no longer be “authorised”, meaning that participants are no longer afforded the immunity in contain in Section 24 of the Act. It does not mean that the protest is illegal.

Alternatively, if the notice was served on the Commissioner less than 7 days before the scheduled protest date. Then the protest organiser must apply to the Supreme Court under Section 26 of the Act to have the protest “authorised”.

Again, “authorise” in this context only means that the participants at the protest will be provided with the immunity contained in Section 24 of the Act.

Does an authorised protest provide complete immunity from charge:

No, of course not.

The immunity in Section 24 only provides the limited immunity as stated above. It does not entitle protestors to behave violently, nor does it excuse the commission of other offences.

Protestors engaged in criminal conduct may still be guilty of offences such as:

Can the police arrest me for participating in a prohibited (unauthorised) Protest?

No. If a person is not committing any other offence, the police have no power to arrest the person or to stop the person from protesting.

Otherwise, it is worthwhile noting that police cannot arrest a person simply because that person has committed a criminal offence.

In New South Wales, police can only arrest a person under certain circumstances as contained in Section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Can the police give me a “move-on direction” for participating in a prohibited Protest?

This in our view is possibly the most problematic aspect of participating in an unauthorised protest.

That is because police can legally issue a person with a move-on direction under Section 197 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) if the police officer believes on reasonable grounds that the persons presence or behaviour is:

(a) obstructing another person or persons or traffic; or

(b) constitutes harassment or intimidation of another person or persons, or

The most obvious issue is that any protest on a footpath is likely to obstruct other persons from using the footpath. While that in and of itself is not an offence, failure to comply with the police move on direction is an offence.

The offence of ‘failing to comply with move-on direction‘ is contained under Section 199 of LEPRA and carries a maximum penalty of $220.

While some people might think that the fine is not significant, aside from the fine, the issue is that the continued failure to comply with the move-on direction can form the basis for the legal arrest of that person.

That is because Section 99(1)(b)(i) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) allows the police to arrest a person to stop the person from continuing or repeating the offence.

Why are protest rights so important?

No matter which side of the Middle East debate you fall on, the right of Australians to protest is one of the most fundamental rights that we have. It allows Australians to effectively share their political views without the fear of prosecution.

The moment we decide to choose who we silence and who we allow to protest is the moment that we will lose one of our most fundamental legal rights.

Our office is happy to give legal advice to protest organisers and protest attendees through our 24 hour, 7 days a week free legal advice hotline.