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There are a variety of anti-protest laws in Australia that exist, each having a different form and designated place in the law. Internationally, protest laws can exist at the state or federal level, according to the country they are created in. Both state and federal laws can be used in the act of protest under criminal codes. Specifically in the circumstances of trespass and public assembly law is used to counteract protests.
In Australia, there is a judicial recognition of the right to peaceful assembly. At the federal level protests laws are constituted under the Attorney-General of Australia's power. Within Australia, at the federal level there is a right to freedom of expression [1] with the conditions that this does not; cause derogation, affect the reputation of others, cause harm to national security or incite violence. [1]
At the state level laws are constituted by individual state governments and can vary largely. In Australia, there are various states that have a large amount of legislation surrounding protest laws. These states include the Australian Capital Territory, Queensland and Western Australia. In the states of Queensland and Western Australia mining is a large industry that is often met with protests and public demonstration[ citation needed ]. Therefore, within these states there is a larger amount of legislation relating to protests than in other areas of Australia[ citation needed ]. Additionally, as the Australian Capital Territory holds the capital of Australia, Canberra, protests are carefully regulated.
The Protection of Persons and Property Act 1971, [2] states the application of the law in circumstances where public assembly or protest is conducted on protected land or against a protected person. The act details how certain occasions of public protest could cause occasion for arrest or legal action to be taken. Clause 8 of the act states; [2]
Where there is an assembly consisting of not less than twelve persons in a Territory and:
(a) persons taking part in the assembly have conducted themselves in a way that has caused a member of a Police Force of the rank of Sergeant or above reasonably to apprehend that the assembly will be carried on in a manner involving unlawful physical violence to persons or unlawful damage to property;
(b) the assembly is being carried on in a manner involving such unlawful violence or damage; a member of a Police Force of the rank of Sergeant or above may give a direction under this section [3]
Australian protest law is not necessarily direct, rather legislation surrounding the place protests may occur are evident. The Trespass on Territory Land Act 1932, [4] dictates that if a person in any circumstance regardless of protest or not, is to be on territory land they will occur 5 penalty units from the state. This affects protests, as certain locations become inaccessible for demonstration.
In Australia's Capital Territory, protests are allowed dependent on the location the protest is being conducted. 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 different permissions are required for protest within the Australian capital as parliamentary zones and diplomatic areas are located within the ACT.
For approval of protests by the National Capital Authority in parliamentary and diplomatic zones, a protest works plan must first be submitted. Furthermore, if a protest is to occur there are strict guidelines in place, to enhance public safety and facilitate fair access to public domains. Some of the guidelines include; participants should arrive and depart from the location in an orderly manner, vehicles must not be used within the parliamentary precincts as part of the protest and participants must observe lawful directions issued by parliamentary security, Australian Federal Police or Australian Protective Service officers. Failure to obey these guidelines will result in arrest. [5]
In 2018, the New South Wales centre-right Coalition government passed anti-protest laws which came into effect on 1 July that year. The laws would give low-ranking government bureaucrats broad powers to ban protests. The laws were labelled a "fundamental attack on democracy" by a university law lecturer. [6]
In 2019, there were calls to review "two decades of 'piecemeal' legislation restricting freedom to protest at both state [NSW] and federal level". The call came a week after protests and civil disobedience by Extinction Rebellion in Sydney, NSW, which resulted in many protestors being arrested. [7] Many of the arrested protestors, including former Green Party federal MP Scott Ludlam, had "absurd" and possibly illegal bail conditions placed on them by the New South Wales Police which restricted the protesters freedom of assembly and freedom of association. [8] However the NSW Coalition government said they had no plans to review protest laws. [7]
Queensland follows the federal legislation Australia has created on protests and demonstrations whilst also having laws at the state level. Any public assembly or demonstration needs to give notice to the local police force five working days prior to the assembly being held. [9] Opposition to the assembly will only occur if the demonstration will dispute the law. In Queensland the Peaceful Assembly Act allows the right for protests to be held and will only be restricted if public safety, public order or the protection of rights and freedoms is infringed. [10]
In November 2019, the centre-left Queensland Labor government passed harsh anti-protest laws targeting environmental / climate-change activists who protested the construction of new coal mines in the state. United Nations human rights experts called the laws "inherently disproportionate". The Queensland government attempted to justify the laws by falsely claiming that protesters had "booby-trapped" locking devices used to secure them to objects/roads for protest. [11]
In 2016, the Tasmanian centre-right Coalition government attempted to pass a harsh anti-protest law, making it a crime to protest in forests which were going to be logged, among other places. The law was ruled unconstitutional by the High Court of Australia after a challenge was brought by former Green Party leader and environmental activist Bob Brown. The High Court ruled the laws unconstitutional because the breached the right to political communication, which is implicit in the Australian Constitution. [12]
In 2019, the Coalition state government attempted to pass similar laws, again. [12]
Within Western Australia there is distinct legislation that prohibits certain types of protests from occurring. These prohibitions are highlighted within the Criminal Code Amendment (Prevention of Lawful Activity) Bill. [13] The act illustrates that a protest can be considered illegal or have its members involved arrested in the circumstances of trespass and intent to cause harm.
Freedom of information laws allow access by the general public to data held by national governments and, where applicable, by state and local governments. The emergence of freedom of information legislation was a response to increasing dissatisfaction with the secrecy surrounding government policy development and decision making. In recent years Access to Information Act has also been used. They establish a "right-to-know" legal process by which requests may be made for government-held information, to be received freely or at minimal cost, barring standard exceptions. Also variously referred to as open records, or sunshine laws, governments are typically bound by a duty to publish and promote openness. In many countries there are constitutional guarantees for the right of access to information, but these are usually unused if specific support legislation does not exist. Additionally, the United Nations Sustainable Development Goal 16 has a target to ensure public access to information and the protection of fundamental freedoms as a means to ensure accountable, inclusive and just institutions.
Although Australia is considered to have, in general, both freedom of speech and a free and independent media, certain subject-matter is subject to various forms of government censorship. These include matters of national security, judicial non-publication or suppression orders, defamation law, the federal Racial Discrimination Act 1975 (Cth), film and literature classification, and advertising restrictions.
A citizen's arrest is an arrest made by a private citizen – that is, a person who is not acting as a sworn law-enforcement official. In common law jurisdictions, the practice dates back to medieval England and the English common law, in which sheriffs encouraged ordinary citizens to help apprehend law breakers.
Abortion in Australia is legal. It has been fully decriminalised in all jurisdictions, starting with Western Australia in 1998 and lastly in South Australia in 2022. Access to abortion varies between the states and territories: surgical abortions are readily available on request within the first 16 to 24 weeks of pregnancy, although with no limit on gestational term in the Australian Capital Territory. Later term abortions generally require the approval of two doctors, though are heavily restricted in Western Australia after 20 weeks.
Law enforcement in Australia is one of the three major components of the country's justice system, along with courts and corrections. Law enforcement officers are employed by all three levels of government – federal, state/territory, and local.
Human rights in Australia have largely been developed by the democratically-elected Australian Parliament through laws in specific contexts and safeguarded by such institutions as the independent judiciary and the High Court, which implement common law, the Australian Constitution, and various other laws of Australia and its states and territories. Australia also has an independent statutory human rights body, the Australian Human Rights Commission, which investigates and conciliates complaints, and more generally promotes human rights through education, discussion and reporting.
Unlawful assembly is a legal term to describe a group of people with the mutual intent of deliberate disturbance of the peace. If the group is about to start an act of disturbance, it is termed a rout; if the disturbance is commenced, it is then termed a riot. In England, the offence was abolished in 1986, but it exists in other countries.
Human rights protection is enshrined in the Basic Law and its Bill of Rights Ordinance (Cap.383). By virtue of the Bill of Rights Ordinance and Basic Law Article 39, the International Covenant on Civil and Political Rights (ICCPR) is put into effect in Hong Kong. Any local legislation that is inconsistent with the Basic Law can be set aside by the courts. This does not apply to national legislation that applies to Hong Kong, such as the National Security Law, even if it is inconsistent with the Bills of Rights Ordinance, ICCPR, or the Basic Law.
Australian sedition law was an area of the criminal law of Australia relating to the crime of sedition.
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Governments sometimes take measures designed to afford legal protection of access to abortion. Such legislation often seeks to guard facilities which provide induced abortion against obstruction, vandalism, picketing, and other actions, or to protect patients and employees of such facilities from threats and harassment.
Australian heritage laws exist at the national (Commonwealth) level, and at each of Australian Capital Territory, New South Wales, Northern Territory, Queensland, South Australia, Tasmania, Victoria, Western Australia state and territory levels. Generally there are separate laws governing Aboriginal cultural heritage and sacred sites, and historical heritage. State laws also allow heritage to be protected through local government regulations, such as planning schemes, as well.
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Blasphemy is not a criminal offence under Australian federal law, but the de jure situation varies at state and territory level; it is currently not enforced in any Australian jurisdiction. The offences of blasphemy and blasphemous libel in English common law were carried over to the Australian colonies and "received" into state law following Federation in 1901. The common-law offences have been abolished totally in Queensland and Western Australia, when those jurisdictions adopted criminal codes that superseded the common law. In South Australia, Victoria, and the Northern Territory the situation is ambiguous, as the local criminal codes do not mention blasphemy but also did not specifically abolish the common-law offences. In New South Wales and Tasmania, the criminal codes do include an offence of blasphemy or blasphemous libel, but the relevant sections are not enforced and generally regarded as obsolete.
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