The freedom to be heard and communicate your political views through a peaceful protest is implied by the Australian Constitution and the common law right to a peaceful assembly, which can be traced back to the Magna Carta. These two pathways give way for our citizens to legally protest in our society.

However, there is a misconception about the freedom to be heard and communicate political views through a peaceful protest because this right is only implied and unfortunately is not automatic. i.e cannot be done randomly. 

The common law right to assembly or protest

In NSW, the right to a lawful protest operates under the Summary Offences Act 1988.

This does not actually give any rights, but Part 4 sets out a range of rules and requirements which must be complied with before a proposed assembly or protest can be regarded as lawful. This Part enables our community to protest by mutual co-operation between protesters and the police, meaning it has to be ‘lawful’.

For a protest to be lawful, it must be organised with the requirements of section 23 of the Summary Offences Act 1988, which requires an organiser to lodge a form with the Police Commissioner to give notice and be authorised to protest with the cooperation of police.

The right to protest remains an important way to express political views. A person cannot get charged with taking part in a lawful political protest. However, there are limits imposed on protests under the Criminal Law in NSW. For example, under Section 545C(1) of the Crimes Act, it is a criminal offence to knowingly take part in an unlawful assembly (defined in that section). This carries a maximum of a fine of $550 or imprisonment for six months, or both. If the accused person has a weapon, the maximum penalty is a fine of $1100 or imprisonment for 12 months (see Part 4 of the Summary Offences Act 1988 for the provisions relating to a lawful assembly). 

Permission to participate in a political and lawful protest does not offer a shield of protection for protesters if breaking the law, including Public Health orders, breaching the peace or commission of offences under the Crimes Act 1900 or the Summary Offences Act.

An atmosphere where emotions are high, and groups gather to prove a point can cultivate into more than a peaceful protest and unfortunately innocent bystanders or participants can get harmed if they are caught up in the middle of a disorder or caught up in the “mob mentality”. When it comes to public disorder, police in NSW have a no tolerance policy and wont hesitate to use force to disperse crowds or arrest people.

Common offences that occur during protests

Offence Type and Legislation	Maximum Penalty
Unlawful Assembly Section 545C(1) of the Crimes Act	A maximum penalty of 6 months’ imprisonment and/or a fine of $550. If armed, the maximum penalty increases to 12 months imprisonment and/or a fine of $1,100
Breach of the peace or obstructing or hindering Police in execution of duty. Section 546C of the Crimes Act 1900	A maximum penalty of 12 months imprisonment and/or a fine of $1100
Obstructing people or traffic. Police can give you a move along direction for obstructing traffic or other persons in a public place. It is an offence if you refuse to do so. Section 6 of the Summary Offences Act 1988	A maximum penalty of $440 fine
Offensive conduct or manner in a public place Section 4 of the Summary Offences Act 1988.	A maximum penalty for this offense is $660 or imprisonment for 3 months. Section 4A of the
Offensive language in a public place Section 4A of the Summary Offences Act 1988	A maximum penalty of $660
Affray is committed when a person uses or threatens unlawful violence towards another and that conduct causes a person to fear for his or her safety. Section 93C(1) of the Crimes Act 1900	The offence of affray is a serious criminal offence and carries a maximum penalty of 10 years imprisonment.
Assault another person during public disorder Section 59A(1) of the Crimes Act 1900	A maximum penalty of 5 years imprisonment or 7 years if actual bodily harm is occasioned.
Assault or harass or intimidate police in execution of their duty Section 60 Crimes Act 1900	No actual bodily harm is occasioned, is liable to imprisonment for 5 years. Where a person commits that offence during a public disorder, section 60(1A) increases the maximum penalty to imprisonment for 7 years
Violent Disorder where three or more persons who are present together use or threaten unlawful violence and their conduct (taken together) is such as would cause a person of reasonable firmness to fear for his or her personal safety.Section 11A(1) of the Summary Offences Act 1988	This offence carries a maximum penalty of $1,100 or imprisonment for 6 months.
Riot and large public disorder (12 or more persons who threaten unlawful violence or cause fear for safety) Section 93B(1) of the Crimes Act 1900	A maximum term of imprisonment for 15 years.
Protester entering and remaining on enclosed lands Section 4 of the Inclosed Lands Protection Act 1901	a maximum penalty of $550 applies but increases to $1100 if the conduct is offensive
Protesters who commit to damaging or recklessly destroy public property or the property of another person is a criminal offence under section 195(1)(a) of the Crimes Act 1900.	A maximum term of imprisonment for 5 years.
Resisting arrest is an offence in NSW. Section 546C of the Crimes Act 1900 (NSW) Struggling, flapping about and making threats can also constitute this offence.	A maximum term of imprisonment of 12 months and/or a fine $1,100.

Police to Arrest without a Warrant

Police officers can arrest people without a warrant if they need to prevent an offence or stop a person from fleeing. During the Public Health restrictions being in force, police can ask for a persons name and address, however if they suspect that those details especially relating to identification are false, they can arrest that person (see section 99 LEPRA), especially when they need to protect the safety and welfare of others.

What is happening to our civil liberties and our rights?

Australia does not have a ‘bill of rights’ that lists fundamental protections of the rights of an individual from being violated. However, it does promote some common law rights such as:

• The right to a fair trial
• The right to have a lawyer
• The right to remain silent
• The right to appeal
• Access to public health and welfare

The absence of a bill of rights has been a major debate in Australia since the 1970’s with supporters arguing that parliament cannot be trusted to protect human rights while opponents constantly argue that it would restrict the powers of parliament to legislate as needed.

The protection of human rights is very important to sustain a society free from over policing, ensuring fairness and setting boundaries on political agender or control.

In Australia, only Victoria and the ACT have enacted human rights acts. For the rest of Australia, we have these rights under the constitution:

• the right to vote (Section 41),
• the right to trial by jury (Section 80), 
• freedom of religion (Section 116),
• protection against acquisition of property on unjust terms (Section 51), and
• prohibition on discrimination on the basis of state of residency (Section 117).
• the constitution gives an implied right to freedom of political communication

If a State and Federal law is inconsistent with rights provided by the constitution, it can be challenged in the High Court of Australia.

This blog may shock many people and as lawyer and defender of human rights, I find it difficult to contemplate the limitation and restrictions that apply on human rights and liberties in NSW.

We all want the best for our family, our friends and our community. As Australians, we are one of the hardest working people on the planet and pride ourselves on our ability to achieve great things as a young and vibrant country. We, as a community have a duty to look after each other and our neighbours. My duty as a defence lawyer is to also ensure everyone is well informed about the current law and their rights. Please share this post with your family and friends and lets get through this together.

Contact our experienced criminal defence lawyers on 1800 100 529 if you need help with a police related matter or if someone you know is arrested for an Unlawful Assembly. We will arrange a free first conference with an experienced defence lawyer to help you immediately.

Written by Chadi Irani, Principal Solicitor and Accredited Specialist in Criminal Law