Australians’ ability to protest is back within the news this week. In the context of armed conflict within the Middle East and rallies across the country, the federal government has suggested that Australia should establish a permit system for all protests.
Minister for the NDIS and Government Services Act Shorten made a suggestion on TV this week:
how the permit system works, it doesn’t stop people from protesting, nevertheless it is to take a look at the circumstances (…) I do not necessarily think it should apply to employment relations, but with a few of these protests we have now seen week after week, I actually think that having a permit system would a minimum of sort it out.
So what are the laws regarding protests across the country? Do any states or territories have this permit system and may they? And importantly, what impact do these laws have on the precise to protest?
What are the national regulations?
A permit system allowing protest organizers to hold “authorized public gatherings” operates in most Australian states and territories. These systems allow the police to “authorize” a specific protest and require a written request to the police and/or the relevant local authority.
For example, in New South Wales, individuals who want to stage a certified protest must submit “notice of intention to hold a public meeting” lodged with the New South Wales State Police Commissioner.
Similar regulations also exist in Queenslandwhere organizers wishing to obtain permission to protest must submit a ‘Notice of Intent to Hold a Public Meeting’ form to the Queensland Police Service and native authorities.
In Western Australia, organizers may apply for permission to hold a public meeting and/or procession under s Act on public order on the streets.
However, there are significant differences within the detail of those provisions. In most states, the permit system simply allows you to “permit” a protest. This implies that while staging a protest without a permit is just not a crime, it does provide protesters with a certain level of protection against certain criminal charges, similar to obstructing traffic.
Loic Le Guilly/AAP
Victoria doesn’t have a permit system like NSW. Instead, has rights enabling the police to proceed to transfer people or arrest a person for aggressive or anti-social behavior.
However, in Tasmania some Police Offenses Act constitutes an offense to organize or conduct a demonstration without permission whether it is to happen wholly or partly on a public street. This may end in a wonderful.
The notice period also varies greatly. In most states and territories, turnaround time is between five days and two weeks.
However, in Tasmania, protest organizers are advised to file a police application 12 weeks before the demonstration.
Finally, the grounds for refusing authorization may be too broad. For example in South Australiapolice and other authorities may refuse a permit on the grounds that “if granted, it would unduly harm the public interest.” The regulations don’t specify any criteria for this examination.
Which laws are best?
When it comes to comparing these laws and which approach is most helpful, we need to consider two aspects: the practicality of the permit system and whether it’s advisable to allow government authorities to control protests.
From a practical perspective, the documentation burden, costs and uncertainty of a mandatory authorization system may be unfeasible. Further legal proceedings also needs to be considered.
This was clearly demonstrated in 2020 when planned protests against Indigenous deaths in custody were heard by the Supreme Court of New South Wales.
In New South Wales, which has a permit system, the “Stop All Black Deaths in Custody” protest was initially rejected by the Supreme Court of New South Wales, but was subsequently found to be a certified public meeting by the New South Wales Court of Appeal only minutes before the planned start of the protest.
When deciding on the very best approach to permits, we must also consider whether it is smart to allow government agencies to green light some protests and forestall others. Will this hand over an excessive amount of power to the police and individual judges?
The human right to protest
It is essential here to consider Australia’s obligations under a world human rights treaty that protect the precise to peaceful assembly. United Nations Guidelines on this law recognizes that states may establish protest notification laws but may not establish permit requirements.
This implies that Australia can create a notification system that may enable the police to facilitate the graceful conduct of a protest upfront (e.g. by organizing road closures).
Mick Tsikas/AAP
However, this cannot require people to obtain police permission before protesting. In fact, these international human rights guidelines state that having to apply for a permit to protest undermines its status as a fundamental human right.
More generally, it is crucial to keep in mind that protests can be spontaneous and may be allowed to occur.
This is best illustrated by one of the essential acts of protest in Australian history: the Aboriginal Tent Embassy. The campaign arose spontaneously on January 26, 1972, when 4 indigenous people placed a beach umbrella on the lawns opposite the Parliament House in Canberra in protest. protest against the federal government’s approach to indigenous land rights.
It still stands today and is a visual reminder of the ability of spontaneous protest carried out without police consent, in addition to a sober reminder of the importance of protest in our democratic system.