What You Need To Know About Your Rights at a Protest

There’s a lot of awful shit occurring in our country right now, and one of the many ways people are trying to find a voice is by protesting. It’s not that protesting is a new thing, historically it’s been a really impactful way for the masses to show their power. But along with power, there’s a legitimate amount of fear, anxiety, and stress that can come along with being a part of a protest. This is compounded for marginalised people who can have targeted experiences of violence and criminalisation when faced with an increased police presence at a political event.

So here’s a basic, but useful, guide to what you can and can’t do at a protest in Australia.

First up, if you do something at a protest that is against the law, it could result in criminal charges. So it’s really important that if you are stopped by police, you get legal advice. The law is really tricky in this area and the following is just a summary of your general rights.

There’s not technically a right to protest in Australia. In the US, it’s actually written into the constitution that a citizen has a right to participate in peaceful protest. The Australian constitution doesn’t have a similar protection. Despite this, there are protections in place for you.

In Australia, your rights at a protest depend very much on what state or territory you’re in. That matters because a lot of state governments have shown a scary trend to pass laws that limit rights to protest peacefully.

For example, Tasmania and NSW have both passed legislation that criminalises protests on the basis that they might “hinder” or “disrupt” business and/or obstruct traffic. These laws provide police with pretty OTT powers to shut protests down. That could include fining people, putting them in jail, searching people, and charging them with criminal offences. That’s a disturbing reality when you consider the scope for the Government exercising these powers in politicised ways.

What can I do?

What is clear is that you have a right to be part of a peaceful protest. That means if you aren’t causing a risk to public safety, damaging property, or basically engaging in any other criminal behaviour, you have a right to speak out on an issue you care about.

The police in most states do not have a general right to move you on. This means they can’t move you on because they disagree with your particular view or if they think there are too many of you.

Most large protests do require you to get approval from your local council authority and notify the local police beforehand. So if you’re planning a protest yourself, call your local council and make sure you have the approvals in place before the day. This may involve the council contacting the police to let them know.

Having said that, there are different laws in each state and territory in Australia that give powers to police to deal with people who are protesting. While we suggest you get legal advice to find out exactly what they are in your area, broadly they may mean:

• Police can ask to search people and vehicles for weapons if they have a good reason to think you might be carrying something. It’s hard to say what a good reason is and a lot of that is up to police discretion. But it is mainly about whether the police think you’re likely, or at risk of, committing an offence.
• Police can require you to remove an item covering your face if they think you’re hiding your face to avoid being identified.
• Police can require you to move on if they have reasonable grounds to suspect you are going to engage in any activity that will turn the protest violent, endanger someone’s safety, damage property, or generally be a risk to public safety.

It can be hard to determine whether the basis of a police direction is legitimate or not, so if you are being directed by police to move on you can ask about their reasoning. But if you decide to refuse, you could be up for more serious police action — including being arrested.

It’s also generally legal for you to film police at a protest if the protest is being held in a public place and your filming doesn’t interfere with the performance of police duties. Generally speaking if you get asked to stop recording police at a protest, you should ask them why and explain to them what you are doing and why you have a right to do so. If you are in an altercation over this, get legal advice and make sure you take detailed notes of what happened.

Lastly, be safe and think of the safety of those around you. Protests are meant to raise awareness for a particular cause or hold power to account. Protests are also really impactful ways for marginalised communities to be seen and heard. While there’s no guarantee of things not getting hectic at protests, you can take small steps to ensure the safety of your fellow protesters and your cause.

If you want to know more about activists rights and protests in Australia, check out these links:

• Activist rights https://www.activistrights.org.au/
• Not for Profit law on Campaigns and protests https://www.nfplaw.org.au/campaignsprotests

Please note: this information is only intended as a guide to the law and should not be used as a substitute for legal advice.

For more legal advice about things you actually care about, check out the rest of the Know Your Rights series.