Our rights to protest, demonstrate and take part in political activities are recognised by The Universal Declaration of Human Rights (1948) (UNUDHR) as well as by many other international human rights conventions and covenants.
A right to freedom of peaceful assembly is part of international law under the UNUDHR (Article 20) and the United Nations International A formal, written agreement that creates a legal obligation, in a deed or on a certificate of title. For example, a property developer might add a covenant to every block of land in a subdivision to stop anyone building a house there unless it is made of brick. on Civil and Political Rights (1966) (UNICCPR) (Article 21). The right to engage in participatory democracy ‘without unreasonable restrictions’ is clearly acknowledged by the UNICCPR (Article 25). It is difficult to assert these rights in Australia because many rights have not been incorporated into Australian domestic law.
Also, in Australia, there is no affirmative right to free speech. However, there is an implied freedom of communication about political and governmental matters as that freedom of communication is essential to the Money paid to a person to financially support them. When a couple has separated both parents have a duty to support their children, and a court can order a parent to make regular payments to support the children. Maintenance for a spouse is now less common, and must be applied for within 12 months of a divorce. It is usually covered in a final settlement of all property. of the system of representative and responsible government provided by the Australian Constitution.
This implied freedom of communication operates as a limit on the use of Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute. to impede freedom of expression. It does not operate as a right to speak or to be heard.
Political communication includes non-verbal communication, assembly and movement for the purpose of political protest. The analysis requires the courts to decide if legislation burdens the freedom implied in the Constitution. Such analysis can produce unexpected results. For example, a law prohibiting communication has recently been upheld as not being constitutionally Not valid; with no legal effect and not enforceable at law. For example a legal provision or document may be invalid because it is not in proper legal form. (see Clubb v Edwards; Preston v Avery  HCA 11, 10 April 2019; discussed in ‘Safe access zones’, below.)
Protests and the police
Protesting often attracts the police’s attention. Sometimes the police accommodate a protest and do not exercise their authority. You may consider contacting the police before a protest, to allay their concerns about the protest’s intentions. However, the police often do exercise their authority by (sometimes pre-emptively) arresting and detaining people suspected of committing offences.
Local councils must consult the police before granting permits for the use of council land, or for road closures, or for anything else that the council believes A document that sets out what a person wants to happen to their money and other property after they die. facilitate a public protest being held by a permit applicant (s 6A Summary Offences A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 1966 (Vic) (‘SO Act’)).
If engaging in a protest that you anticipate may result in To seize a person suspected of breaking the law and hold them in custody. Police have powers to arrest and charge suspected offenders and bring them before a court. or detention, it is good to understand the nature and scope of police powers, and the common charges laid against protesters.
Some of the key The procedure that allows a person who has been charged with an offence to be released from police control or prison until the hearing of the case. Courts can add conditions to bail. For example, they can require that people released on bail promise to come to the court on a set date, or put up an amount of money that they cannot get back if they do not appear as they promised. See also undertaking. issues and common charges associated with protests are outlined below. For more information, see Chapter 3.5: Arrest, search, The asking of questions. In criminal cases, the questioning of suspects by police. In civil proceedings, a pre-hearing process in which one party asks the other party a series of written questions, called interrogatories, which must be answered on oath. and your rights, and Chapter 3.6: How bail works.
The SO Act (s 6(1)) authorises police offices and protective services officers to direct a person to leave a public place, if the officer believes on reasonable grounds that:
- the person is breaching the peace, or is likely to do so; or
- the person is endangering the safety of another person, or is likely to do so; or
- the person’s behaviour is likely to cause injury or property damage, or is a risk to public safety.
A A legally proper instruction by one person (or body) to another, so that the person is bound to take action, or make a decision, as instructed. Compare dictation. to ‘move-on’ can be given to an individual or to a group of people, and may require the person or group to avoid that particular public place for 24 hours. It is an A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious). to To break a legal rule or fail to carry out a legal obligation such as a court order. a direction (penalty: five penalty units).
Under the SO Act (s 6(5)), people cannot be directed to move-on if they are:
- picketing a place of employment; or
- demonstrating; or
- holding banners or signs or speaking in public.
It is important to note that what is required is that the officer has reasonable grounds to believe that certain things are ‘likely to happen’. They do not have to state the basis for their belief.
Designated areas, weapons and face coverings
Under the Control of Weapons Act 1990 (Vic) (‘CW Act’), the Chief Commissioner of Victoria Police may declare an area to be a ‘designated area’ at short notice. The declaration can be published on the Victoria Police website (www.police.vic.gov.au).
In a designated area, a police officer can search a person for weapons without a A document issued by a court directing an officer to take certain action. May be a warrant of apprehension, directing that a person be arrested and brought before a court; a warrant of commitment, directing that a person be arrested and imprisoned; a warrant of distress, directing that a person’s goods be seized to satisfy a debt; or a warrant of seizure and sale of real estate.. The officer should give the person a ‘search notice’.
A police officer can also direct a person who is wearing a face covering to leave a designated area. The police officer must reasonably believe that the person is wearing the face covering primarily to conceal their identity or to protect themselves from the effects of crowd-controlling substances (e.g. capsicum spray).
A police officer can also direct a person to leave a designated area if the officer reasonably believes that the person intends to engage in conduct that would constitute the criminal offences of affray or violent disorder.
It is an offence to fail to comply with a direction given by a police officer without a reasonable excuse. A penalty of five penalty units applies to this offence (s 10L(2) CW Act).
If the police are going to (1) A statement giving the details of a crime an accused person is claimed to have committed. (2) A personal property security. (3) A judge’s directions to a jury at the end of a case. you immediately with an offence, they may seek to impose bail conditions that cover the period up until your case is heard in An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate.. Imposing a geographical exclusion zone (being a place or area you must not visit or may only visit at specified times) is a common bail condition used against demonstrators to prevent them from returning to the protest site.
The object of bail should be to ensure that you attend court, and not to control your life. If you cannot negotiate with police to not include an oppressive bail condition, you have four options:
- accept bail and comply with the condition;
- accept bail and breach the condition – here, you risk bail being refused if you are re-arrested;
- accept bail and seek to have the condition changed at a later date by a court; or
- refuse bail and stay in Lawful control over a person which prevents them leaving. A person under arrest is in police custody and is not free to go. A person in prison is serving a custodial sentence that keeps them confined to the prison grounds. until you can have the condition removed by a court (during business hours) or by a An official, usually based at a police station, who is not a judge or magistrate but has the same power as judges and magistrates to grant or refuse bail to an accused person. (out of hours).
If you are putting your case before a magistrate, consider whether you have a legitimate reason for attending a designated area (e.g. attending work, study or transport connections), which would make the imposition of a geographical exclusion zone oppressive. Such arguments have been successfully made in the Magistrates’ Court to challenge these types of bail conditions.
If, however, a magistrate decides that the bail condition should stand, and you are forced to accept the condition or lose your freedom, you can lodge an urgent application to the Supreme Court to delete the condition. For more information, see Chapter 3.6: How bail works.
If a court imposes a fine as a penalty, it must take into account your personal circumstances and The ability to understand and be held responsible by the law for your actions. It also refers to a person’s ability to understand and agree to something, such as to undergo medical treatment. Full legal capacity is reached at 18 years of age, when a child becomes an adult. to pay a fine. You may request to pay a fine by instalments, or to work off any fines through community work.
For the period 1 July 2020 to 30 June 2021, one penalty unit (pu) equals $165.22 under Victorian state law and $222 under Commonwealth law. For more information, see ‘A note about penalty units’ at the start of this book.