2023 NSWCCL AGM

Item 7.1 The Right to Protest

Under Article 21 of the International Covenant on Civil and Political Rights, the right to peaceful assembly shall be recognised. No restrictions may be imposed unless the protest is an imposition to national security, public safety, public order, the protection of public health, morals or the rights and freedoms of others. Australia has ratified this international agreement and therefore laws should not be passed that are inconsistent with this right. 

In April 2022, the NSW Parliament passed legislation to prevent ‘illegal protesting’ on major roads, bridges, tunnels, public transport and infrastructure facilities. The new legislation amends section 144G the Roads Act 1993 which criminalises causing serious disruption by entering, remaining on or trespassing on prescribed major bridges and tunnels, to now include all “main roads”. Offences carry a maximum penalty of $22,000 or two years in gaol, or both. NSWCCL condemns these legislative changes in totality. Protest should not be confined to back roads.  At the time they passed, we condemned the lack of proportionality of the punishment that can be imposed for offences committed by protesters. This was unfortunately only the latest in a series of repressive measures taken against protestors by the NSW government.

At the same time the policing of protests dramatically increased, culminating in comments in October 2023 from the NSW Police Minister to 2GB radio where she said “I don’t want to see protests on our street at all, from anybody. I don’t think anybody really does”. We have a long and proud history of standing up for the right to protest, now is the time for us to reaffirm that support.

The NSW Council for Civil Liberties:

1. Affirms support for the right to non-violent protest as fundamentally important in a democracy and central to complete realisation of freedom of expression, assembly and association.
2. Affirms that support for the right to non-violent protest is required under Australia’s obligations under international human rights law, especially the International Covenant on Civil and Political Rights and United Nations Human Rights Council General Comment 37 on Article 21 of 2020.
3. Affirms that the right to non-violent protest should be permitted in all public space, private spaces of public use (for example shopping centres), outside places of worship (including at funerals) and outside of diplomatic and private residences.
4. Recommends that the right to non-violent protest be protected by law.
5. Recommends that all laws presently in force which criminalise non-violent protest be repealed immediately. 
6. Recommends, to the extent that non-violent protest remains criminalised, that all options for custodial sentences be repealed.
7. Acknowledges that non-violent protest can be disruptive. But considers that no legal distinction should be drawn between disruptive and non-disruptive protest.
8. Acknowledges that protesters may, at times, interfere with the rights of property-holders as a legitimate means of attracting relevant attention or preventing harmful conduct.
9. Condemns the use of delegated legislation to regulate protest and calls for all such powers to be repealed, including:
   1. Section 87D of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW);
   2.  Rule 18 of the Place Management NSW Regulation 2022 (NSW)
10. Condemns over policing and pre-emptive policing of protest and surveillance and harassment of protestors and calls for the immediate dismantling of Strike Force Guard and Operation Shelter.
11. Condemns state efforts to hinder legal observation at protests.
12. Calls for revision of the Form 1 provisions in the Summary Offences Act 1988 (NSW) to more clearly respect international human rights obligations regarding the right to protest.