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 Covenant 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 maintenance 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 legislation 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 invalid (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 will facilitate a public protest being held by a permit applicant (s 6A Summary Offences Act 1966 (Vic) (‘SO Act’)).
If engaging in a protest that you anticipate may result in arrest 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 bail issues and common charges associated with protests are outlined below. For more information, see Chapter 3.5: Arrest, search, interrogation 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 direction 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 offence to contravene 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 warrant. 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 charge you immediately with an offence, they may seek to impose bail conditions that cover the period up until your case is heard in court. 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 custody until you can have the condition removed by a court (during business hours) or by a bail justice (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 capacity 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.