The right to protest is a fundamental aspect of democracy, allowing individuals to express their opinions and advocate for change. However, the right to protest is regulated and controlled under various laws, creating a complex system which protestors and law enforcement must navigate.
This blog post delves into the complex protest laws in NSW, highlighting the legal distinctions between authorized and unauthorized protests, and the risks of protesting.
If you have been charged in relation to a protest, contact the team here at National Criminal Lawyers now by clicking here.
Authorised Protests
The legal guidelines for authorised protests which are referred to as “Public Assemblies” within NSW is legislated under Part 4 of the Summary Offences Act 1988.
An authorised protest does not mean or signify any sort of endorsement for any cause by NSW, rather, it provides protesters legal immunity from certain offences that could arise as part of their protest. This is highlighted in Section 24 of the Summary Offences Act 1988 which states, that as part of an authorised protest, protesters cannot be charged with certain offences that are charged as part of unauthorized protests including blocking a “person, vehicle or vessel in a public place”.
For a protest to be classified as authorised, organizers must adhere to the requirements under Section 23 of the Summary Offences Act 1988.
These requirements include the submission of a written notice of the public assembly to the Commissioner of Police. This notice must include various details about the protest, including but not limited to the date, the location, the planned route, the time, and the purpose of the protest.
It is then on the discretion of the Commissioner to approve, or oppose the notice provided.
If the Commissioner has made the decision to oppose the notice of protest, then if the notice was given at least 7 days before the protest, then the protest is authorised unless the Commissioner applies to the Supreme Court for the prohibition of the public assembly per Section 25 of the Summary Offences Act 1988.
However, of the notice of the protest was given less than 7 days before the protest, then the organizers hold the burden to apply to the Supreme Court for authorization in cases where the Commissioner opposes the notice per Section 26 of the Summary Offences Act 1988.
Remember
An authorised protest does not provide immunity for all criminal offences, but rather only the offences listed in Section 24 of the Summary Offences Act 1988. Other offences such as assault, resisting arrest, and affray, among other offences, can still be charged during an authorized protest, meaning the authorized protest only provides limited legal immunity for limited offences.
Find out more about Assault by clicking here.
Find out more about Affray by clicking here.
Find out more about Resisting Arrest by clicking here.
Learn more about other offences by clicking here.
If you have been charged with an offence, it is important that you seek legal advice. The talented lawyers here at National Criminal Lawyers offer free initial consultations, allowing you to decide what’s best for your matter. Click here to book your free initial consultation now.
Unauthorized Protest
Participating in an unauthorized protest is unlikely to get you arrested on its own, however facts associated with, and offences conducted in conjunction with the protest impact the legal implications.
This is seen with the offence of obstructing traffic as legislated by Section 6 of the Summary Offences Act 1988.
6 Obstructing traffic
A person shall not, without reasonable excuse (proof of which lies on the person), wilfully prevent, in any manner, the free passage of a person, vehicle or vessel in a public place.
Maximum penalty—4 penalty units.
Whilst this offence falls within legal immunity for authorised protests, an individual partaking in an unauthorized protest could be charged with this offence.
A recent example was seen where 19 individuals were arrested after protesting the arrival of a shipping container in Sydney, which is associated with the ongoing Palestine and Israel conflict, with,
“The 19 arrested were all taken to Surry Hills police station and later charged with obstructing roads or paths, failing to comply with a move on direction, and remaining “near or on [a] major facility causing serious disruption”.”
Further, as also seen in this case, whilst the police cannot arrest an individual solely for participating in an unauthorized protest, they possess the authority to issue move-on directions under specific circumstances. Police are able to issue and give legally enforceable directions in the case of unauthorized protests as seen in Section 200(4)(a) of the Law Enforcement (Powers And Responsibilities) Act 2002. This establishes that such directions can be provided if the protest meets the factors outlined in Section 197 of the Law Enforcement (Powers And Responsibilities) Act 2002, which includes the obstruction of people or traffic, among other factors, which are common protesting activities.
The Importance of Protest Rights
The right to protest is a core element of the freedom of political expression, which is established by the Australian Constitution, enabling Australians to voice their political views without fear of prosecution, a critical aspect of the democracy. The legal framework surrounding protests in NSW is designed to balance this fundamental right with the need for public order and safety. Understanding these laws is crucial for both protestors and law enforcement, especially during times of mass protest such as can be seen all around the world for Palestine and Israel.
If you have been charged in relation to a protest, it is important that you seek trusted legal advice. The team here at National Criminal Lawyers can assist you in defending and achieving the best possible outcome for your matter.