The protests against police brutality and systemic racism which started in the United States of America after the death of George Floyd have become a global movement, involving protests and marches around the world, including here in Australia.
However, in Australia the law has an interesting relationship with the right to protest, made even more confusing by the current restrictions on gathering and movement in place due to the ongoing coronavirus (COVID-19) pandemic.
The Black Lives Matter protest held on Saturday 6 June 2020 at Sydney Town Hall turned into a legal minefield as a result of the Supreme Court of NSW’s refusal to “authorise” the protest until only moments before it was due to begin.
Here is an interesting article by Australian Criminal & Family Lawyers outlining, from a legal perspective, the specific events leading up to the Black Lives Matter protest on 6 June and how it was eventually allowed to go ahead.
Australia is the only western democracy that doesn’t have a Bill of Rights.
We all know the First Amendment to the American Bill of Rights, which guarantees freedom of speech and freedom of assembly. In Australia, we have no such amendment, nor guarantee. Under the Australian Constitution, there is no right to protest.
There is, however, an implied right to freedom of political communication in Australia, upheld by the High Court in the case of Lange v Australian Broadcasting Corporation (1997). This is not an absolute right. This right may be affected by all sorts of restrictions, such as:
- Traffic obstruction
- Coronavirus restrictions
- The Summary Offences Act 1988 (NSW)
In NSW, the procedure for organising a protest is to apply under section 24 of the Summary Offences Act 1988 (NSW), which is a particularly badly drafted and confusing section. Protests are always legal, but they may either be “authorised” or “prohibited” under that section.
If a protest is authorised, then protesters are immune from prosecution for traffic obstruction, breaking coronavirus restrictions, or under the Summary Offences Act 1988 (NSW). They can, however, be prosecuted for other offences such as failing to follow police directions, and so forth. If a protest is prohibited, then protestors are not immune from prosecution for the above reasons.
The history of the Black Lives Matter protest on Saturday 6 June 2020 at Sydney Town Hall is basically that the protest was initially authorised by the government and by the police, more than seven days before it was due to occur, but then they changed their minds on the Friday before the protest. The police commissioner applied to the Supreme Court of NSW and obtained an Order, not declaring the protest illegal, but prohibiting the protest. This would mean that anybody who showed up to the protest could be prosecuted for traffic obstruction, breaking coronavirus restrictions, or under the Summary Offences Act 1988 (NSW).
The protest organisers immediately appealed, and the Court of Appeal delivered its judgment on 6 June 2020 at 2:45pm, 15 minutes before the protest was due to start. The three judges unanimously decided that the protest had actually been authorised, and that the organisers of the process had in fact given the requisite seven days notice. As it was authorised, this changed the way that the protest was policed, and no arrests could be made for any of the offences outlined above.
This was an example of the legal system working, taking into account the current coronavirus pandemic, but still authorising the protest in the circumstances. As a result, the protest proceeded largely without incident, except for the police presence at Central Station using a technique called kettling – forming a cordon around a group of protesters and preventing them from leaving – which unfortunately led to several people attending the protest being pepper sprayed. You can read more about that incident in this New Matilda article.
The message was heard. The protest was authorised. It is now up to the state and federal governments to decide how to respond – hopefully by enacting meaningful change to the criminal justice system in this country. Black lives matter.