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This explainer covers the duty of governments to facilitate protest and when protest rights can justifiably be limited, for example to stop hate speech or incitement to violence. It is not intended to cover every protest rights issue. It focusses on issues that have been prominent in recent public debates.

Protest is vital to Australia’s democracy 

Protest is an essential part of our democracy. People who share concerns must be able to gather together peacefully and speak out about them. 

Protest has been critical to many advances that we now take for granted, from First Nations land rights to women’s rights, marriage equality, environmental protections, and beyond. 

Protest is particularly important for those whose interests are often ignored by our formal political system. 

People have human rights to peacefully gather and protest 

The human rights to freedom of expression, freedom of association and the right to peaceful assembly together enable our right to protest. These rights are protected under international law. Australia has agreed to comply with the key international treaty which guarantees these rights: the International Covenant on Civil and Political Rights. Article 21 of this treaty says: 

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order … the protection of public health or morals or the protection of the rights and freedoms of others. 

People in Australia can’t directly enforce the human rights protected by the International Covenant on Civil and Political Rights. Instead, Australian governments and parliaments are meant to protect these rights in our domestic laws.  

Protest rights are partly protected under Australian law 

While Australia has promised to protect protest rights, these rights are not comprehensively protected under Australian law. Only Queensland, Victoria and the ACT have Human Rights Acts and other laws which expressly protect the right to peaceful assembly, freedom of association and freedom of expression. Under these Human Rights Acts, human rights including protest rights, are able to be restricted, in broad terms, only when it is reasonable, taking into account issues like the purpose for the restriction and any less restrictive ways reasonably available to achieve that purpose.    

There is no express protection of protest rights under the Australian Constitution or Australian national laws. However, the High Court of Australia has ruled that the Australian Constitution protects an implied freedom of political communication because the Constitution is based on and creates a democratic system of government. This implied freedom is not a personal human right. Rather, it is a limit on laws and government decisions that unreasonably restrict political communication, which includes peaceful protest. 

The right to peaceful assembly is also protected in the Australian common law. Parliaments can override this common law right if a parliament passes a law which shows a clear intent to restrict it. 

Governments have tried to restrict protests in Australia 

In recent years, there has been a trend of governments seeking to pass laws that restrict certain types of protests, and in particular environmental protests. These laws have tended to feature severe penalties for protesters, excessive police powers and broad, vague offences. Courts have ruled that some of these anti-protest laws are invalid because they breached the implied freedom of political communication in the Australian Constitution. 

Notification schemes should facilitate, not restrict protests 

Under international human rights law, people do not need permission from government to protest, nor do they need to provide any advance notice. Protests can and do occur spontaneously.  

Some nations and some Australian states have adopted schemes under which protesters can notify authorities in advance of a particular protest.  

For example, NSW has laws which create a system of authorising protests. This scheme is not a permission scheme, but rather a scheme under which protesters can receive some limited legal protections for approved protests. Under the scheme, protesters can notify NSW Police of a particular protest. If NSW Police do not oppose the protest, it becomes an ‘authorised public assembly’ and the protesters receive some legal protection from possible offences like obstruction as long as the protest happens in accordance with the details provided to police.  

If NSW Police oppose the protest, the matter can go to court. If the court agrees with the police, it can make an order which means the protest is ‘prohibited’ which means the protesters do not have legal protection if they proceed with the protest.  

Queensland also has a scheme under which organisers of a proposed protest can notify authorities in advance and receive some legal protection if the protest meets certain criteria. 

There is nothing wrong in itself with a notification scheme. Cooperation between protesters and police helps to minimise disruption to others and promote the safety of people protesting. However, notification schemes should not become, in practice, permission schemes. 

Protest should only be restricted in very limited circumstances 

Under international human rights law, protest can only be restricted in ways that are necessary and proportionate to achieve a legitimate purpose. In other words, any restrictions must be reasonable to achieve a legitimate purpose. If there are less restrictive ways of achieving that purpose, they should be adopted. 

Lawmakers considering different policy proposals that may restrict protest rights should ask: 

• Will the policy proposal restrict protest rights and if so, how?
• What is the purpose of the restriction?
• Is that purpose legitimate (eg: to protect public safety, public order or the rights of others)?
• Is there a reasonable way of achieving that purpose that is less restrictive on people’s protest rights? 

Reasonable disruption from protests should be allowed 

Some protests are not controversial and cause little or no disruption. Others, because of their size, timing or nature can disrupt vehicle or pedestrian traffic or economic activity. 

The ability to use public spaces for peaceful protest is vital. Governments have an obligation to facilitate protests. This may include the need to block off streets, redirect traffic or provide security.  

Any restriction on a protest because of its disruption must be strictly necessary and proportionate to achieve a legitimate purpose. Reasonable disruption should be tolerated. Disruption regularly occurs in cities for sporting events, parades, festivals and other events. 

Protests should not be restricted solely because of their frequency. The timing, duration or frequency of a protest can be central to its objective. However, the cumulative impact of sustained protests may be considered in assessing whether restrictions are justified. For example, a regular, noisy protest held at night in a residential area may have a significant impact on those living nearby. 

In general, protests should not be restricted based on the content of the protest 

Under international human rights law, in general, protests should not be restricted based on the ideas or viewpoints taken by protesters. An essential part of our democracy is sharing differing ideas and views even if those ideas and views are unpopular, annoying or confronting. 

Hate speech and incitement to violence are not legitimate forms of protest 

While protests in general should not be restricted based on their content, international human rights law requires governments to restrict the incitement of violence and hate speech. This is to protect the rights of all people to equality, non-discrimination and safety.  

Article 20(2) of the International Covenant on Civil and Political Rights says: 

any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.  

Australia has also agreed to comply with the International Covenant on the Elimination of All Forms of Racial Discrimination. Article 4 of this treaty says that nations who have agreed to the treaty: 

1. Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitements to such acts against any race or group of persons of another colour or ethnic origin…
2. Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law… 

There are a range of national, state and territory civil and criminal laws which prohibit racist hate speech, incitement of violence and the display of Nazi or terrorist material. When policing protests where there may be breaches of these laws, law enforcement authorities need to carefully weigh up issues including: 

• the content of the relevant behaviour
• the likelihood of harm, and
• the extent of the behaviour within the specific protest. 

In general, where a small number of people within a much larger protest are engaging in problematic behaviour, police should respond on an individualised basis to suspected unlawful behaviour rather than seek to prohibit or disperse the entire protest. 

Dispersing protests should be limited to very rare cases 

Under international human rights law, police are only justified in dispersing a protest in rare cases such as when the protest itself incites discrimination, hostility or violence. Force should generally not be used to disperse unlawful but non-violent protests. Mass arrests will usually be unlawful as an indiscriminate and arbitrary use of police power. The UN Human Rights Committee’s expert guidance on the right to peaceful assembly says ‘isolated acts of violence by some participants should not be attributed to others, to the organizers, or to the assembly as such.’ 

Restricting protests at particular locations must be strictly justified 

Governments should adopt laws and practices that facilitate protests in public spaces. Any restrictions on protests at or outside particular places must be strictly justified as necessary and proportionate. 

For example, governments across Australia have introduced safe access zone laws which prohibit certain acts around abortion clinics including harassing, intimidating, threatening, filming or obstructing people from accessing the clinic. These types of laws which restrict protest activity at particular places have been ruled to be a legitimate restriction on protest rights by courts in Australia, Canada and the United States of America. 

The lawfulness of restrictions on protest outside places of worship has not yet been considered by courts in Australia. People must be able to freely attend places of worship. However, there are legitimate reasons why people may want to protest outside a place of worship, for example to draw attention to sexual assault in churches and inadequate justice responses.  

Any restrictions on protest outside places of worship need to be very carefully drafted with the minimum possible restriction on rights to achieve the purpose of enabling people to safely worship. In the United States, tailored restrictions on people protesting at funerals have been ruled by their courts to be a legitimate restriction on freedom of expression. 

Protesters should be allowed anonymity 

There are legitimate reasons why people may wear masks to protests including for health reasons, for religious or cultural purposes, to protect their identity for fear of reprisals or surveillance, or to make a particular point (eg. a caricature of a politician). There are also illegitimate reasons why people wear masks to protests such as to conceal their identity while they commit a crime or to intimidate people and cause fear. 

It is difficult to draft a law which allows legitimate mask wearing while banning illegitimate mask wearing. Governments should avoid blanket bans on wearing masks at protests. A targeted, individualised power for police to order a person to remove a mask if the officer reasonably suspects the person has committed a crime (other than trivial offences) may be justified. 

Police in Australia already have wide powers to deal with unlawful protest 

Australian governments and parliaments have granted very wide powers to police to respond to protests where problematic behaviour occurs in order to protect the rights and interest of people affected by that behaviour.  

This includes criminal offences such as assault, threatening language and behaviour, trespass, obstruction, breach of the peace, property damage, weapons offences and offences for failing to comply with ‘move on’ orders.  

There are also laws which allow people and organisations who are affected by problematic protest behaviour to take legal action to protect their interests, such as trespass, assault, intimidation and defamation laws. People affected by discrimination and hate speech can also take legal action to stop or seek redress for harm suffered. There are barriers to taking action to protect people’s legal rights includings cost, time and stress. 

Other principles to promote protest rights 

As far as possible, protesters should be able to choose how they protest.  

Laws affecting protest should be drafted as clearly and carefully as possible to enable people to comply with them. They should not rely on excessive police discretion and where discretion is necessary, it should be properly guided by the law. Penalties for unlawful behaviour during a protest must be reasonable and proportionate. 

Lawmakers and governments, including police, should take positive steps to promote protest rights.  

The use of force by authorities should only occur in exceptional circumstances and as a last resort. 

Other human rights of protesters must be respected, including privacy, equality and freedom from inhuman or degrading treatment.  

The right to freedom of expression also comes with responsibilities. Protesters must respect the rights of others, for example, by avoiding discrimination or inciting hatred or violence against others, causing physical harm or breaching people’s privacy.  

More information 

For more information on how governments should protect the right to peaceful assembly, see International Covenant on Civil and Political Rights, Human Rights Committee (2020). 

ENDS