10 Jan 2020Dozens of protesters have been arrested in Australia for demanding immediate action on climate change. Sitting on roads, protesters have been charged with not obeying a police direction and disrupting traffic. Even “knitting nanas” have been in the firing line and have been arrested for attempting to block fracking or land clearing.
For some demonstrators, bail conditions included a ban on entering the city, although these demands were subsequently overturned.
Sparking vigorous discussion around a person’s right to protest, a number of politicians have used strong language to send a direct message to protesters. They have been called a “scourge” and told they should be jailed, publicly shamed and have their welfare cut.
Why is the right to protest important?
The right to protest is a defining feature of a liberal democracy, with its legal foundation being traced back to the Magna Carta, signed by King John in 1215.
Fundamentally, Australia enjoys a “fair go” culture that aims to empower all civilians. Pivotal in driving important change, we have a strong tradition of protesting our views on matters such as apartheid and the Vietnam war, along with our workers walking off the job to earn the right to an eight hour day.
Do Australians have a right to protest?
While it’s important that we continue to give everyone the right to express their views in a safe and reasonable manner, Australians only have an “implied” freedom of political expression under the constitution as interpreted by the High Court.
In Part 4 of the NSW Summary Offences Act 1988, the law doesn’t confer any specific right to protest. It merely facilitates the right to assembly, by encouraging mutual cooperation between protesters and police.
In recent times, we’ve seen a change in the nature of protests, which has polarised opinions as to whether or not such protests are reasonable. While some might believe it’s an attempt to silence dissent, those affected by protesters’ actions say the government is not doing enough.
Governments slowly restricting the right to protest
Developments over recent years have demonstrated an increasing reluctance of governments to allow protests that significantly impact the day to day life of civilians, with many jurisdictions implementing legislation on an as-needed basis to restrict specific forms of protest.
Most protesters see this as an infringement of their basic civil rights. However, others see it as a governmental response to increasingly disruptive protests.
State governments have made some forms of protest illegal, such as blocking access to logging and mining sites. Other jurisdictions, including Victoria and the ACT, have adopted human rights charters which provide for the right to peaceful assembly. Similarly, in Queensland this right is expressly granted under legislation.
New public protest laws in NSW
In 2017, NSW introduced new laws that increased fines tenfold for people protesting against mines and fracking, along with up to seven years in jail for hindering the use of mining equipment.
In November 2019, NSW parliament passed the Right to Farm Bill 2019, which punishes unlawful entry and disruption on “enclosed lands” with up to three years’ jail and fines of up to $22,000. This measure is aimed at animal activists who trespass on farmers’ land.
With trespass already unlawful, some believe the Right to Farm Bill is an overreach. While farmers have the right to defend their property, there is also a right to peaceful protest, a right we must ensure is not suppressed. (For more information please see our 2023 article NSW farm trespass laws upheld by High Court.)
In response to public feedback, the government amended the Bill after it was pointed out that it would ban peaceful protest on any fenced-in area, such as parks, schools, corporate entrances or worksites, along with picketing outside gates.
Are the new anti-protest laws fair?
Although the right to protest is generally accepted as a fundamental democratic right, there is underlying debate over the lawfulness of protests.
New legislation is slowly being introduced that impacts the way in which citizens can protest. Some Australians argue that the new laws are proportionate, while others disagree, claiming that they unreasonably restrict the manner in which citizens can protest.
For instance, in 2017 the High Court ruled that a 2014 Tasmanian anti-protest law that barred protest in state forests was unconstitutional, after being challenged by environmentalists. (See Brown v Tasmania [2017] HCA 43).
Protests are a fundamental human right
The right to protest is a feature of the Australian geopolitical landscape, where social matters will always require debate. It’s important that each individual should continue to have the opportunity to protest in an effective and reasonable manner, whatever their viewpoint may be.
