The Human Rights Law Centre
Say it loud: Protecting Protest in Australia report comments
The freedom to assemble and protest
allows Australians to express their views
on issues important to them and to press
for legal and social change. Australia
has a proud history of protests leading
to significant change, including the
preservation of Tasmania’s Franklin River,
the apology to the Stolen Generations,
and the advancement of LGBTIQ rights
by groups like Sydney’s ‘1978ers’, who
started the annual Mardi Gras parade.
Attending a protest is a way for people to
have their voices heard and participate in
public debate.
Protests can take many forms. They
may be planned or spontaneous. They
may be someone silently holding a
placard, a small group ‘sitting’ in or
a march of thousands. Protests may
capture the public’s attention through
being remarkable, or they may be simple
and modest in scale. Because they
seek to capture attention and demand
change, they may be uncomfortable and
inconvenient. In some cases, protests
can create risks for the safety of the
public or the protesters themselves.
Governments must take positive steps
to promote protest rights and must
respond to particular protests in a way
that accommodates the right to engage
in peaceful protest, and that strikes a
proportionate balance with public order
and safety, and the rights of others.
Peaceful protest is protected under
international human rights law and
protests engage overlapping areas
of Australian law: criminal law, local
government regulations, planning
controls, and environmental law. Laws
that affect people’s ability to protest freely
also engage federal constitutional law
through the implied freedom of political
communication. In Victoria and the
Australian Capital Territory, Australia’s
international human rights obligations
have been enshrined in domestic human
rights legislation, expressly protecting
freedoms of expression and assembly.
In Tasmania, New South Wales and
Western Australia, governments have
in recent times proposed or introduced
laws directed to curbing protest rights,
known as ‘anti-protest laws’. Common
elements of the laws are vague and illdefined
offences, excessive police powers,
disproportionately harsh penalties, and
the prioritisation of forestry and mining
operations over the rights of individuals
to access public land and protest.
Independent human rights experts have
been troubled by this trend, with a recent
report by the United Nations Special
Rapporteur on the situation of human
rights defenders describing alarm at “the
trend of introducing constraints by state
and territory governments on the exercise
of this fundamental freedom.” Australia
is not alone – internationally there is a
worrying trend of introducing legislation
to restrict protest, including in the United
States where at least eighteen states have
seen such laws introduced or proposed.
In 2017, the High Court of Australia
decided a landmark case dealing with an
anti-protest law: Brown v Tasmania. With
a majority of the court finding aspects
of Tasmania’s Workplaces (Protection from
Protesters) Act 2014 unconstitutional, the
case is the most explicit guidance so far
from Australia’s highest court on the
constitutional protection for protest.
Recent laws impacting on protest rights
and the new decision in Brown means the
time is ripe for a distilled set of principles
to guide lawmakers, government, civil
society and protesters on how to protect
protest in Australia.
This report outlines ten principles guiding
how protest should and can be protected
and regulated. These principles are rooted
in Australia’s Constitution, international
law, common law, and general
democratic principles. They also draw on
international and domestic best practice.
They provide a blueprint for a democracy
in which the freedoms of expression and
assembly are respected and protected.
The HRLC offers ten principles -
Principle 1 Protest activities are protected by
the Australian Constitution and
international law.
Principle 2 Any regulation of protest must be
limited to what is necessary and
proportionate.
Principle 3 As far as possible, protesters should be
able to choose how they protest.
Principle 4 Laws affecting protest should be
drafted as clearly and carefully as
possible.
Principle 5 Laws regulating protest should not
rely on excessive police discretion,
and where discretion is necessary it
should be properly guided by the law.
Principle 6 Lawmakers and governments
(including police) should take
positive steps to promote freedoms
of expression and assembly.
Principle 7 Notification procedures should
facilitate, not restrict, peaceful protest.
Principle 8 Lawmakers and governments
should not prohibit protest based
on its message, except in narrow
circumstances where that message
causes harm to other people.
Principle 9 Other human rights of protesters
must be respected, including privacy,
equality and freedom from inhuman
or degrading treatment.
Principle 10 The use of force by authorities
should only occur in exceptional
circumstances and as a last resort
