What do we want? Protests! When do we want them? Now!

It may seem like protests have recently escalated in all of Australia’s major cities with the finger pointing squarely at climate change protestors. However, protests have been used by all sides of politics for a very long time in Australia. They ended our fight in Vietnam, secured women’s right to vote 💪🏽 and gave us the eight hour working day.
But with every news coverage of This Week’s Protest comes the inevitable footage of police clashes and politicians hating on protestors. As I was watching the protest coverage this week at IMARC 2019, the thought occurred to me: “How is it that I, enlightened Law/Human Rights student, don’t know my legal rights around protests?”
So, here is my rookie’s guide to Australia’s right to protest.
Let’s start with the implied freedom of political communication found in the Australian Constitution. Why is it implied? Because there is no explicit right written into the Constitution. Rather, we can assume that we have freedom of political communication quite simply because: Legitimate democracy = Free access to political information. It also doesn’t really operate like a right, it’s more the court’s way of saying to the politicians: “This is one thing you can’t take away from your citizens.”
There is a bright side — Victoria, Queensland (from January 2020) and the ACT have protected the right to protest through their state-based human rights acts. However, in the case of Victoria, those rights are trumped if Parliament says “We intend on limiting your rights.”— which it has in the past.
Our lack of a federal Bill of Rights (like the USA) or the explicit freedom of political communication means that we have to ask the courts how far our rights extend when it comes to political communication, including protests. For example, previous federal laws that prohibited the broadcasting of political material in the lead-up to elections were declared invalid.
What about our international human rights — don’t we have any?
Australia is party to seven core international human rights treaties. Most importantly for protest rights, we are party to The International Covenant on Civil and Political Rights (ICCPR). However, Australia is the only democracy in the world that has not passed a law directly implementing the ICCPR. It did establish the Australian Human Rights Commission, which has powers to investigate alleged violations of the ICCPR but it can’t penalise anyone or enforce those obligations.
So where does that leave us?
It means that federal and state governments can pass laws (e.g. police ‘stop and search’ laws; laws penalising interruptions to business) that possibly limit our ability to protest. The infographic below from the Sydney Morning Herald shows the laws restricting protest passed since 2002.
It is then up to the people who are arrested under such laws to plead ‘not guilty’ and challenge these laws for being unconstitutional. The former Australian Greens leader, Bob Brown, succeeded at challenging Tasmania’s anti-protest laws in 2016 (the Workplaces (Protection from Protesters) Act 2014). He was arrested for filming a video about an anti-logging protest in Tasmania. The law, which granted police powers to order protestors to move on and ban them from returning for 4 days when they protested about “political, environmental, social, cultural or economic issues”, was held by the High Court as breaching the implied freedom of political communication.
Challenges aren’t always successful. In 1994, Laurie Levy was arrested after protesting duck shooting by entering a hunting area without a hunting licence. In the end, the High Court found that he was legitimately arrested and rejected his challenge. However, it did mark the first time the High Court recognised non-verbal conduct as protected by the freedom of political communication. Levy’s case failed because the law was for a legitimate purpose other than suppressing political messages, such as protecting public health and safety. In the past, keeping public places free from violence has been a legitimate purpose for a law limiting the freedom of political communication.
So…what does this mean for the humble protestor?
Every state and territory has different laws that limit your protesting rights to a certain extent. Some examples include prohibiting conduct that “causes annoyance” to certain people (NSW) or prohibiting the disruption or enjoyment of Brisbane’s 2014 G20 meeting (QLD). In Victoria, a police officer or protective service officer (PSO) can direct you to leave a public place for 24 hours if they believe that you are breaching the peace (or likely to do so), endangering the safety of another person (or likely to do so), or cause injury or property damage or constitute a risk to public safety (s 6(1) Summary Offences Act 1966). This doesn’t apply if you are picketing a place of employment, demonstrating, or holding banners or signs or speaking in public. If you are wearing a face mask to conceal your identity (like a Guy Fawkes mask) or protect yourself from crowd-controlling substances (i.e. capsicum spray), the police can ask you to leave the area (s 10KA Control of Weapons Act 1990).
The best thing you can do to keep yourself safe to know your rights. Check out this article by the Foundation for Young Australians!
P.S: If you’re interested in more about the rights to protest in Australia, read the Human Rights Law Centre’s report here.
