SCRUTINY OF ACTS AND REGULATIONS COMMITTEE
REVIEW OF REDUNDANT AND UNCLEAR LEGISLATION

Unlawful Assemblies and Processions Act 1958
ISSUES PAPER

CHAPTER ONE

TERMS OF REFERENCE

1.1 The Scrutiny of Acts and Regulations Committee was given a reference by the Governor in Council to review redundant legislation on 12 May 1994. The terms of reference were:

1. The Committee is requested in conjunction with Chief Parliamentary Counsel, to inquire into, consider and make recommendations as to:

Acts of Parliament and provisions of Acts of Parliament which are unnecessary or redundant;

legislative instruments made under an Act of Parliament and provisions of legislative instruments made under an Act of Parliament which are unnecessary or redundant.

2. The Committee is requested in conjunction with Chief Parliamentary Counsel, to inquire into, consider and make recommendations as to:

Acts of Parliament and provisions of Acts of Parliament which are unclear, ambiguous or should be re-drafted;

legislative instruments made under an Act of Parliament and provisions of legislative instruments made under an Act of Parliament which are unclear, ambiguous or should be re-drafted;

3. In the conduct of this reference, the committee is requested to pursue the primary objects of reducing the number and complexity of Victorian acts and legislative instruments, and ensuring that acts and instruments are clearly expressed in accordance with modern drafting practices.
4. This reference shall continue unless revoked by the Governor -in-Council.

1.2 Following the March 1996 election and the commencement of the 53rd Parliament of Victoria, the Governor in Council on 18 June 1996 again referred the terms of reference to the Committee.

1.3 The terms of reference require the Committee to examine several aspects of the legislation contained in the Statute Book. Bearing in mind the primary object of reducing the number and complexity of Victorian Acts and legislative instruments, the Committee of the 52nd Parliament approached the task on a portfolio by portfolio basis. The portfolio reviews were conducted in conjunction with Ministers and departmental staff.

1.4 As part of the examination of the portfolio the then Minister for Police and Emergency Services, the Hon Pat McNamara requested the Committee to review the Unlawful Assemblies and Processions Act 1958 ("the Act").

Procedure

1.5 The Committee wrote to various organisations seeking submissions on the following questions--

1. Is there any reason why the Act should not be repealed?
2. Are there any offences and/or procedures which should be preserved and moved to another Act?
3. Is there any reason why a separate compensation scheme as established by this Act should be preserved? If yes, how could this best be achieved?

OTHER INQUIRIES

The Commonwealth of Australia.

1.6 In May 1995, the Joint Standing Committee on the National Capital and External Territories of the previous Commonwealth Parliament received terms of reference to--

Inquire into the right to legitimately protest or demonstrate on National Land and in the Parliamentary Zone in particular.[1]

1.7 The Standing Committee published a background information paper on The right to protest or demonstrate on national land[2], conducted public hearings and received submissions from a diverse range of parties. The work of the Standing Committee ceased when the March 1996 Federal election was called. Following the election however, the reference was returned to the Standing Committee by the Governor General.

The Australian Capital Territory

1.8 The ACT Community Law Reform Committee produced an issues paper in March 1994 examining Public Assemblies And Street Offences.[3] The terms of reference ask the Committee to have regard to the need to strike a balance acceptable to the community between the right to freedom of assembly; the right to make use of public places; the need to prevent inappropriate behaviour in public places in order to maintain the right to the safe use and enjoyment of public streets and other public places; and individual responsibility for behaviour in public places.

PURPOSE OF THE ISSUES PAPER

1.9 The Committee is of the view that an important function of the review of the Act is to consider the competing interests of a right of peaceful assembly and the exercise of such a right with the rights of the community at large, the community's interest in the maintenance of public order and the protection of the institution of Parliament whilst seeking a balance between these interests.

1.10 The civil libertarian argument has described the right a hallmark of constitutional democracies, that is, the right to gather and communicate an opinion against the policies or actions of government or any other body, group or individual should be regarded as inalienable. In contrast the alternate view is that the law must be implemented as it is stated, and as there is no common law right to assemble, the legal right to assemble simply does not exist.[4]

1.11 Chapter two of the issues paper considers the right of assembly in international law and at common law. Chapter three discusses the present legal position in Victoria in common law, within the Act and in subordinate legislation. Chapter four outlines the operation of legislation for the Commonwealth Parliament, whilst chapter five examines legislation in other states of Australia according to the model adopted within the legislation: the prohibition model, the notification model and the permit model.

1.12 The most relevant parts of the Victorian Act under review are those sections which prohibit certain assemblies and processions within the Parliamentary precinct whilst Parliament is in session. The Committee considers the central issue to be whether legislation should prescribe the manner in which the right to assemble and take part in processions is exercised.

OVERVIEW

1.13 The Committee is of the view, at this stage of its inquiry that the Act is an outmoded piece of legislation. However, when considering interests as fundamental to a constitutional democracy as the protection of the Parliament and parliamentary business along with rights of public assembly, free expression, freedom of communication, association and movement the Committee is aware that such issues are of primary importance. It would appear to the Committee that there is a link between the protection of the institution of Parliament and the exercise of rights by its citizens which underpin the fabric of democratic society and so reconciles the tension between two potentially conflicting interests.

1.14 The Committee considered the view that the "process of forming, expressing and implementing political opinions"[5] is a right to a particular democratic function which is served by the right to freedom of assembly. It may be that such a right should be positively recognised by legislation. Further it may be that fundamental freedoms cannot be regarded as being enjoyed when there are restrictions on such freedoms. On the other hand however, limitations or restrictions, may be acceptable within democratic society when a balance is sought between otherwise competing interests.

1.15 As the Committee considers that the Act is outmoded, and likely to be redundant in some respects, it makes it highly desirable that broad consultation occur.

1.16 The Committee invites discussion and comment from the public as a review of the Act necessarily involves consideration of matters of rights and freedoms which are particularly pertinent in a democratic society.

1.17 Advice and guidelines for making submissions to the Committee are included in the Appendix to the Issues Paper.

Last update 30/1/97 ©Parliament of Victoria

CHAPTER ONE

TERMS OF REFERENCE

1.1 The Scrutiny of Acts and Regulations Committee was given a reference by the Governor in Council to review redundant legislation on 12 May 1994. The terms of reference were:

1. The Committee is requested in conjunction with Chief Parliamentary Counsel, to inquire into, consider and make recommendations as to:

Acts of Parliament and provisions of Acts of Parliament which are unnecessary or redundant;

legislative instruments made under an Act of Parliament and provisions of legislative instruments made under an Act of Parliament which are unnecessary or redundant.

2. The Committee is requested in conjunction with Chief Parliamentary Counsel, to inquire into, consider and make recommendations as to:

Acts of Parliament and provisions of Acts of Parliament which are unclear, ambiguous or should be re-drafted;

legislative instruments made under an Act of Parliament and provisions of legislative instruments made under an Act of Parliament which are unclear, ambiguous or should be re-drafted;

3. In the conduct of this reference, the committee is requested to pursue the primary objects of reducing the number and complexity of Victorian acts and legislative instruments, and ensuring that acts and instruments are clearly expressed in accordance with modern drafting practices.
4. This reference shall continue unless revoked by the Governor -in-Council.

1.2 Following the March 1996 election and the commencement of the 53rd Parliament of Victoria, the Governor in Council on 18 June 1996 again referred the terms of reference to the Committee.

1.3 The terms of reference require the Committee to examine several aspects of the legislation contained in the Statute Book. Bearing in mind the primary object of reducing the number and complexity of Victorian Acts and legislative instruments, the Committee of the 52nd Parliament approached the task on a portfolio by portfolio basis. The portfolio reviews were conducted in conjunction with Ministers and departmental staff.

1.4 As part of the examination of the portfolio the then Minister for Police and Emergency Services, the Hon Pat McNamara requested the Committee to review the Unlawful Assemblies and Processions Act 1958 ("the Act").

Procedure

1.5 The Committee wrote to various organisations seeking submissions on the following questions--

1. Is there any reason why the Act should not be repealed?
2. Are there any offences and/or procedures which should be preserved and moved to another Act?
3. Is there any reason why a separate compensation scheme as established by this Act should be preserved? If yes, how could this best be achieved?

OTHER INQUIRIES

The Commonwealth of Australia.

1.6 In May 1995, the Joint Standing Committee on the National Capital and External Territories of the previous Commonwealth Parliament received terms of reference to--

Inquire into the right to legitimately protest or demonstrate on National Land and in the Parliamentary Zone in particular.[1]

1.7 The Standing Committee published a background information paper on The right to protest or demonstrate on national land[2], conducted public hearings and received submissions from a diverse range of parties. The work of the Standing Committee ceased when the March 1996 Federal election was called. Following the election however, the reference was returned to the Standing Committee by the Governor General.

The Australian Capital Territory

1.8 The ACT Community Law Reform Committee produced an issues paper in March 1994 examining Public Assemblies And Street Offences.[3] The terms of reference ask the Committee to have regard to the need to strike a balance acceptable to the community between the right to freedom of assembly; the right to make use of public places; the need to prevent inappropriate behaviour in public places in order to maintain the right to the safe use and enjoyment of public streets and other public places; and individual responsibility for behaviour in public places.

PURPOSE OF THE ISSUES PAPER

1.9 The Committee is of the view that an important function of the review of the Act is to consider the competing interests of a right of peaceful assembly and the exercise of such a right with the rights of the community at large, the community's interest in the maintenance of public order and the protection of the institution of Parliament whilst seeking a balance between these interests.

1.10 The civil libertarian argument has described the right a hallmark of constitutional democracies, that is, the right to gather and communicate an opinion against the policies or actions of government or any other body, group or individual should be regarded as inalienable. In contrast the alternate view is that the law must be implemented as it is stated, and as there is no common law right to assemble, the legal right to assemble simply does not exist.[4]

1.11 Chapter two of the issues paper considers the right of assembly in international law and at common law. Chapter three discusses the present legal position in Victoria in common law, within the Act and in subordinate legislation. Chapter four outlines the operation of legislation for the Commonwealth Parliament, whilst chapter five examines legislation in other states of Australia according to the model adopted within the legislation: the prohibition model, the notification model and the permit model.

1.12 The most relevant parts of the Victorian Act under review are those sections which prohibit certain assemblies and processions within the Parliamentary precinct whilst Parliament is in session. The Committee considers the central issue to be whether legislation should prescribe the manner in which the right to assemble and take part in processions is exercised.

OVERVIEW

1.13 The Committee is of the view, at this stage of its inquiry that the Act is an outmoded piece of legislation. However, when considering interests as fundamental to a constitutional democracy as the protection of the Parliament and parliamentary business along with rights of public assembly, free expression, freedom of communication, association and movement the Committee is aware that such issues are of primary importance. It would appear to the Committee that there is a link between the protection of the institution of Parliament and the exercise of rights by its citizens which underpin the fabric of democratic society and so reconciles the tension between two potentially conflicting interests.

1.14 The Committee considered the view that the "process of forming, expressing and implementing political opinions"[5] is a right to a particular democratic function which is served by the right to freedom of assembly. It may be that such a right should be positively recognised by legislation. Further it may be that fundamental freedoms cannot be regarded as being enjoyed when there are restrictions on such freedoms. On the other hand however, limitations or restrictions, may be acceptable within democratic society when a balance is sought between otherwise competing interests.

1.15 As the Committee considers that the Act is outmoded, and likely to be redundant in some respects, it makes it highly desirable that broad consultation occur.

1.16 The Committee invites discussion and comment from the public as a review of the Act necessarily involves consideration of matters of rights and freedoms which are particularly pertinent in a democratic society.

1.17 Advice and guidelines for making submissions to the Committee are included in the Appendix to the Issues Paper.

Last update 30/1/97 ©Parliament of Victoria

CHAPTER ONE

TERMS OF REFERENCE

1.1 The Scrutiny of Acts and Regulations Committee was given a reference by the Governor in Council to review redundant legislation on 12 May 1994. The terms of reference were:

1. The Committee is requested in conjunction with Chief Parliamentary Counsel, to inquire into, consider and make recommendations as to:

Acts of Parliament and provisions of Acts of Parliament which are unnecessary or redundant;

legislative instruments made under an Act of Parliament and provisions of legislative instruments made under an Act of Parliament which are unnecessary or redundant.

2. The Committee is requested in conjunction with Chief Parliamentary Counsel, to inquire into, consider and make recommendations as to:

Acts of Parliament and provisions of Acts of Parliament which are unclear, ambiguous or should be re-drafted;

legislative instruments made under an Act of Parliament and provisions of legislative instruments made under an Act of Parliament which are unclear, ambiguous or should be re-drafted;

3. In the conduct of this reference, the committee is requested to pursue the primary objects of reducing the number and complexity of Victorian acts and legislative instruments, and ensuring that acts and instruments are clearly expressed in accordance with modern drafting practices.
4. This reference shall continue unless revoked by the Governor -in-Council.

1.2 Following the March 1996 election and the commencement of the 53rd Parliament of Victoria, the Governor in Council on 18 June 1996 again referred the terms of reference to the Committee.

1.3 The terms of reference require the Committee to examine several aspects of the legislation contained in the Statute Book. Bearing in mind the primary object of reducing the number and complexity of Victorian Acts and legislative instruments, the Committee of the 52nd Parliament approached the task on a portfolio by portfolio basis. The portfolio reviews were conducted in conjunction with Ministers and departmental staff.

1.4 As part of the examination of the portfolio the then Minister for Police and Emergency Services, the Hon Pat McNamara requested the Committee to review the Unlawful Assemblies and Processions Act 1958 ("the Act").

Procedure

1.5 The Committee wrote to various organisations seeking submissions on the following questions--

1. Is there any reason why the Act should not be repealed?
2. Are there any offences and/or procedures which should be preserved and moved to another Act?
3. Is there any reason why a separate compensation scheme as established by this Act should be preserved? If yes, how could this best be achieved?

OTHER INQUIRIES

The Commonwealth of Australia.

1.6 In May 1995, the Joint Standing Committee on the National Capital and External Territories of the previous Commonwealth Parliament received terms of reference to--

Inquire into the right to legitimately protest or demonstrate on National Land and in the Parliamentary Zone in particular.[1]

1.7 The Standing Committee published a background information paper on The right to protest or demonstrate on national land[2], conducted public hearings and received submissions from a diverse range of parties. The work of the Standing Committee ceased when the March 1996 Federal election was called. Following the election however, the reference was returned to the Standing Committee by the Governor General.

The Australian Capital Territory

1.8 The ACT Community Law Reform Committee produced an issues paper in March 1994 examining Public Assemblies And Street Offences.[3] The terms of reference ask the Committee to have regard to the need to strike a balance acceptable to the community between the right to freedom of assembly; the right to make use of public places; the need to prevent inappropriate behaviour in public places in order to maintain the right to the safe use and enjoyment of public streets and other public places; and individual responsibility for behaviour in public places.

PURPOSE OF THE ISSUES PAPER

1.9 The Committee is of the view that an important function of the review of the Act is to consider the competing interests of a right of peaceful assembly and the exercise of such a right with the rights of the community at large, the community's interest in the maintenance of public order and the protection of the institution of Parliament whilst seeking a balance between these interests.

1.10 The civil libertarian argument has described the right a hallmark of constitutional democracies, that is, the right to gather and communicate an opinion against the policies or actions of government or any other body, group or individual should be regarded as inalienable. In contrast the alternate view is that the law must be implemented as it is stated, and as there is no common law right to assemble, the legal right to assemble simply does not exist.[4]

1.11 Chapter two of the issues paper considers the right of assembly in international law and at common law. Chapter three discusses the present legal position in Victoria in common law, within the Act and in subordinate legislation. Chapter four outlines the operation of legislation for the Commonwealth Parliament, whilst chapter five examines legislation in other states of Australia according to the model adopted within the legislation: the prohibition model, the notification model and the permit model.

1.12 The most relevant parts of the Victorian Act under review are those sections which prohibit certain assemblies and processions within the Parliamentary precinct whilst Parliament is in session. The Committee considers the central issue to be whether legislation should prescribe the manner in which the right to assemble and take part in processions is exercised.

OVERVIEW

1.13 The Committee is of the view, at this stage of its inquiry that the Act is an outmoded piece of legislation. However, when considering interests as fundamental to a constitutional democracy as the protection of the Parliament and parliamentary business along with rights of public assembly, free expression, freedom of communication, association and movement the Committee is aware that such issues are of primary importance. It would appear to the Committee that there is a link between the protection of the institution of Parliament and the exercise of rights by its citizens which underpin the fabric of democratic society and so reconciles the tension between two potentially conflicting interests.

1.14 The Committee considered the view that the "process of forming, expressing and implementing political opinions"[5] is a right to a particular democratic function which is served by the right to freedom of assembly. It may be that such a right should be positively recognised by legislation. Further it may be that fundamental freedoms cannot be regarded as being enjoyed when there are restrictions on such freedoms. On the other hand however, limitations or restrictions, may be acceptable within democratic society when a balance is sought between otherwise competing interests.

1.15 As the Committee considers that the Act is outmoded, and likely to be redundant in some respects, it makes it highly desirable that broad consultation occur.

1.16 The Committee invites discussion and comment from the public as a review of the Act necessarily involves consideration of matters of rights and freedoms which are particularly pertinent in a democratic society.

1.17 Advice and guidelines for making submissions to the Committee are included in the Appendix to the Issues Paper.

Last update 30/1/97 ©Parliament of Victoria