The legal right to protest is fundamental to the proper functioning of our democracy. Only after tireless, sustained protest did First Nations peoples win the right to vote, did LGBTIQ+ people achieve marriage equality, and did unions secure the eight-hour workday.
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. Should the changes remain, and we do not think they should, we especially condemn the lack of proportionality of the punishment that can be imposed for offences committed by protesters.
Register as a legal practitioner willing to assist on the right to protest
PREPARING TO STAGE OR ATTEND A RALLY/PROTEST MARCH/DEMONSTRATION:
Make sure the organisers have obtained the correct permit to stage the demonstration, and if not, why?
- You may wish to consider alerting Legal Observers NSW and requesting that they observe the protest and distribute rights information to protestors.
- If you are the organiser, submit a Notice of Intention of Hold a Public Assembly to the Commissioner of Police. The minimum time frame required to submit a form prior to your protest will vary on the local area you wish to hold it in. Make sure to follow local regulations to remain compliant. Here is a starting point for holding a protest in the Sydney CBD: https://www.cityofsydney.nsw.gov.au/facility-bookings-outdoor-events/hold-public-assembly. Whilst this is not compulsory, it may provide you with a stronger case if the police attempt to disperse you or move you along.
- Read more about the role of Legal Observers at demonstrations.
- Copwatch - Learn more about recording the police, and your rights.
ON THE DAY:
- Research any hotlines that have been set up to field calls from protestors who are cautioned or arrested during the protest.
- An official complaint about the NSW Police Force or its employees can be made to the Commissioner of Police or the Law Enforcement Conduct Commission (LECC).
IF ARRESTED, KNOW YOUR RIGHTS:
- It is not an offence to participate in a protest. However, you may be charged with an offence arising from your conduct whilst participating in a protest.
- The police must identify themselves when arresting you and must also declare the reason/s for arrest.
- Under certain circumstances, you are legally required to provide your name and address to the police. However, you have the right to remain silent in response to any further questions.
- The police may seize your phone if they have reasonable suspicion that it is stolen, has been used to commit an offence or contains evidence of an offence. You are not required to provide them with your passcode if they do not hold a warrant.
- For a more comprehensive guide see Counteract’s ‘Guide for Activists in NSW.’
If you need a lawyer you can contact the following:
- Law Society referral service
- National Justice Project
- O'Brien Solicitors (specialist criminal lawyers)
- Legal Aid NSW
- LawAccess 1300 888 529
- Community Legal Centres NSW (02) 9212 7333.
- Aboriginal Legal Service NSW ACT - The Aboriginal Legal Service (ALS) is an Aboriginal community organisation giving information and referral, and legal advice and court representation to Aboriginal and Torres Strait Islander men, women and children across NSW and ACT. Visit the website or call 1800 765 767 (for criminal matters)
- Public Interest Advocacy Centre
- Intellectual Disability Rights Service
- Justice Connect is a legal organisation that connects people with legal assistance. They may be able to help you, or recommend an organisation that can provide legal information, or represent you in a case (02) 8599 2100
Research the Law in NSW - two free resources from the State Library of NSW providing plain english guidance to the law in NSW.
* If you are in immediate danger, dial 000 (within Australia).
This information is not intended to constitute legal advice, but rather to provide legal information as a starting point for people who are interested in the right to protest.