Protesting is a human right. It is part of Australia's common law tradition as well as part of international law. It can be found in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Australia is a signatory to both documents.
Universal Declaration of Human Rights
The Universal Declaration of Human Rights was passed as a resolution of the General Assembly of the United Nations in 1948 in the immediate aftermath of World War 2 and the Holocaust.
The resolution says that "Whereas it is essential, if man [sic] is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law." It is against this lofty ideal that Australians assert their right to protest.
Article 19 of the Universal Declaration of Human Rights says that
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 20(1) says
Everyone has the right to freedom of peaceful assembly and association.
Freedom of expression and peaceful assembly was reaffirmed when Australia endorsed the International Covenant on Civil and Political Rights, which was passed by the United Nations in 1976.
Australia and New South Wales
International legal rights do not have automatic legal force in Australia. Each state and territory has to pass separate laws guaranteeing these rights.
As there is no Bill of Rights or human rights' legislation in Australia or New South Wales, the right to freedom of assembly is assumed. Both freedoms have long been recognised by the courts. Legislation such as Part IV Summary Offences Act 1988 (NSW) assume that there is a freedom of assembly and details how that freedom is regulated. The regulation of public assemblies is dealt with in more detail in the section Notice of Intention procedure.
The reality
Political protests in Sydney are seen negatively or ambiguously by the police. There seems to be a lack of appreciation by the police of the political importance of protest and they see the right to protest as little more than an unnecessary interruption to members of the public and traffic.
The law relating to public assembly is often not understood by the police.
Some protesters feel that they should be able to protest without contacting the police. Such protests are either ignored by the police (if they are small) or can be very aggresively policed.
Most protest groups in Sydney seem to contact the police in order to 'ask permission' to protest in relation to the public areas in which rallies will be held, or the streets down which protesters wish to march. The police often 'refuse' such permission or impose conditions which the protest organisers find unacceptable.
Where the police give 'permission,' it’s best to get such 'permission' in writing in case there is a confusion later about what was said. Sometimes, the police officer who gives 'permission' will be different from the one who later supervises the protest and this can lead to misunderstandings.
The words 'permission' and 'refuse' (above) are put in quotation marks because from a legal standpoint, there are laws in place which makes it unnecessary to ask permission from the police to hold a protest. Legally, it is possible to simply give 7 days notice to the police that a rally or march is being held, and go ahead and hold the protest.
On how the Notice of Intention procedure works, go to the Notice of Intention procedure page.
More reading and sources
There is a long-held common law freedom to engage in peaceful assembly. Any of the standard law texts will deal with this (eg, Retreat From Injustice: Human Rights Law in Australia - a bit old but easy to read). In some parts of Australia, peaceful assembly is recognised explicitly in statute: Human Rights Act 2004 (ACT), the Peaceful Assembly Act 1992 (Qld) and the Charter of Human Rights and Responsibilities Act 2006 (Vic).
For a state by state comparison, see Dealing with Demonstrations, the law of public protest and its enforcement by Roger Douglas, Federation Press 2004, Leichhardt, NSW. ISBN 1 86287 487 5.
For another comparative analysis, see (the somewhat dated) Law and Order Legislation in the Australian States and Territories: 2003-2006 by Lenny Roth of the NSW Parliamentary Library Research Service.
For the common law freedom to protest, see any of the academic texts on this area of law. For example, Chapter 8 of Criminal Laws: Materials and commentary on Criminal Law and Process of New South Wales 4th edition by Brown et al, The Federation Press 2006.
Other Human Rights documents applicable to Australia can be found on the Australian Attorney-General's Human Rights' webpage.
Updating: this page was last updated in October 2012.
Universal Declaration of Human Rights
The Universal Declaration of Human Rights was passed as a resolution of the General Assembly of the United Nations in 1948 in the immediate aftermath of World War 2 and the Holocaust.
The resolution says that "Whereas it is essential, if man [sic] is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law." It is against this lofty ideal that Australians assert their right to protest.
Article 19 of the Universal Declaration of Human Rights says that
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 20(1) says
Everyone has the right to freedom of peaceful assembly and association.
Freedom of expression and peaceful assembly was reaffirmed when Australia endorsed the International Covenant on Civil and Political Rights, which was passed by the United Nations in 1976.
Australia and New South Wales
International legal rights do not have automatic legal force in Australia. Each state and territory has to pass separate laws guaranteeing these rights.
As there is no Bill of Rights or human rights' legislation in Australia or New South Wales, the right to freedom of assembly is assumed. Both freedoms have long been recognised by the courts. Legislation such as Part IV Summary Offences Act 1988 (NSW) assume that there is a freedom of assembly and details how that freedom is regulated. The regulation of public assemblies is dealt with in more detail in the section Notice of Intention procedure.
The reality
Political protests in Sydney are seen negatively or ambiguously by the police. There seems to be a lack of appreciation by the police of the political importance of protest and they see the right to protest as little more than an unnecessary interruption to members of the public and traffic.
The law relating to public assembly is often not understood by the police.
Some protesters feel that they should be able to protest without contacting the police. Such protests are either ignored by the police (if they are small) or can be very aggresively policed.
Most protest groups in Sydney seem to contact the police in order to 'ask permission' to protest in relation to the public areas in which rallies will be held, or the streets down which protesters wish to march. The police often 'refuse' such permission or impose conditions which the protest organisers find unacceptable.
Where the police give 'permission,' it’s best to get such 'permission' in writing in case there is a confusion later about what was said. Sometimes, the police officer who gives 'permission' will be different from the one who later supervises the protest and this can lead to misunderstandings.
The words 'permission' and 'refuse' (above) are put in quotation marks because from a legal standpoint, there are laws in place which makes it unnecessary to ask permission from the police to hold a protest. Legally, it is possible to simply give 7 days notice to the police that a rally or march is being held, and go ahead and hold the protest.
On how the Notice of Intention procedure works, go to the Notice of Intention procedure page.
More reading and sources
There is a long-held common law freedom to engage in peaceful assembly. Any of the standard law texts will deal with this (eg, Retreat From Injustice: Human Rights Law in Australia - a bit old but easy to read). In some parts of Australia, peaceful assembly is recognised explicitly in statute: Human Rights Act 2004 (ACT), the Peaceful Assembly Act 1992 (Qld) and the Charter of Human Rights and Responsibilities Act 2006 (Vic).
For a state by state comparison, see Dealing with Demonstrations, the law of public protest and its enforcement by Roger Douglas, Federation Press 2004, Leichhardt, NSW. ISBN 1 86287 487 5.
For another comparative analysis, see (the somewhat dated) Law and Order Legislation in the Australian States and Territories: 2003-2006 by Lenny Roth of the NSW Parliamentary Library Research Service.
For the common law freedom to protest, see any of the academic texts on this area of law. For example, Chapter 8 of Criminal Laws: Materials and commentary on Criminal Law and Process of New South Wales 4th edition by Brown et al, The Federation Press 2006.
Other Human Rights documents applicable to Australia can be found on the Australian Attorney-General's Human Rights' webpage.
Updating: this page was last updated in October 2012.
