In NSW the 'right to protest' is the common law freedom of assembly. In some other jurisdictions the right to protest is statutory; for example, it is based on a stand-alone Act in Queensland and based on human rights legislation in Victoria and the Australian Capital Territory. Irrespective of the legal basis of the 'right to protest', it does not justify actions that depart from a peaceful assembly.
Is there a constitutional right to protest?
No explicit right to protest is provided in either the Australian or NSW Constitutions. However, the High Court has found that peaceful assembly is protected by the implied freedom of political communication in the Australian Constitution because it is an essential form of political communication.
What is the role of Part 4 of the Summary Offences Act 1988?
Part 4 of the
Summary Offences Act 1988 (NSW) does not recognise the right to peaceful assembly nor does it set out how that right is to be exercised. Instead, Part 4 establishes a process for consultation between police and protesters. Following initial consultation, and if certain preconditions are met, the police can apply to a court to issue a prohibition order for a proposed public assembly, or an organiser can apply to a court to issue an authorisation order for an assembly.
Do you need an authorisation order to protest?
No. A public assembly that occurs without an authorisation order is not illegal. This is because an authorisation order is not required to exercise the common law freedom of assembly and participate in a peaceful assembly. However, an authorisation order does provide protesters with a limited protection against being charged with obstruction and participating in an 'unlawful assembly'. In this context 'unlawful assembly' essentially means a violent assembly.
Do prohibition orders make protests illegal?
No. The effect of a prohibition order is not to prohibit a public assembly, as it does not affect the common law freedom of assembly. Rather, it is to remove the limited protection that an authorisation order provides. Individual protesters might also be charged with other offences depending on their conduct.
What offences can protesters commit?
A diverse range of offences can apply to protest activity in NSW. Many of these offences apply generally and are not exclusive to protests. Those offences include breach of the peace, obstruction of roads, trespass, damage to property, riot, or incitement of violence. Police also have special powers to respond to public disorders, and search and seizure powers in relation to lock-on devices that interfere with business and are likely to cause a serious safety risk.
An offence that was created in 2022 in response to protest activity is section 214A of the
Crimes Act 1900, which prohibits causing damage or serious disruption to a 'major facility' in NSW, such as a port or railway station. In 2023 environmental activists challenged the constitutional validity of section 214A in
Kvelde v State of New South Wales [2023] NSWSC 1560. The Supreme Court held that section 214A(1)(c) (as it related to the partial closure of major facilities) and (d) (which prohibited the redirection of persons attempting to use a major facility) were invalid because they infringed the implied freedom of political communication under the Australian Constitution.
Do other states have offences specific to protesters?
Like NSW, other states have a broad range of offences that can apply to protest activity but are not exclusive to that context. In addition, some offences have been created specifically with protesters in mind, such as using a 'dangerous attachment device' to disrupt transport or business in Queensland. In recent years, a number of states have also extended offences or increased penalties in response to protest activities; such as increasing the maximum penalty for obstruction in public places in South Australia and obstruction of timber harvesting in Victoria. Appendix 1 to the paper examines offences and application processes for authorised assemblies in all states and territories.
