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

Unlawful Assemblies and Processions Act 1958
ISSUES PAPER

CHAPTER TWO

THE RIGHT OF ASSEMBLY

International Law

2.1 Australia is a signatory to the International Covenant on Civil and Political Rights. ("ICCPR") and as a matter of international law is bound to respect and ensure the rights recognised under the Covenant. The right of peaceful assembly is recognised by Article 21 which provides:

The right of peaceful assembly shall be recognised. 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 (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

The right of peaceful assembly is fundamental to a free and democratic society, it may be argued that positive measures are necessary to guarantee the right.

2.2 The right to free expression is also provided for in Article 19 of the Covenant--

1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary;

1. For respect of the rights or reputations of others;
2. For the protection of national security or of public order (ordre public), or of public health or morals.

2.3 Australia has also ratified the 1966 (First) Optional Protocol to the ICCPR. This came into force in December 1991. Where a citizen believes there has been a violation of any of the rights in the Covenant, the Optional Protocol gives a right of petition to the United Nations Human Rights Committee. The right to peaceful protest, may be described as providing Australian citizens with a web of rights in international law.[1]

2.4 As the ICCPR and the Optional Protocol have not been incorporated into domestic law the rights which they provide are not directly enforceable rights within Australian jurisdictions. However the High Court in Minister for Immigration Local Government and Ethnic Affairs v Ah Hin Teoh[2] held that where Australia had ratified a treaty, such ratification created a "legitimate expectation" that the Executive Government and its agencies will act in accordance with the treaty provisions, even if they have not been legislated into Australian law. If the decision maker proposed to act in a manner inconsistent with the treaty, the rules of procedural fairness require that the decision maker inform that person and provide an opportunity for them to reply. The Court held that the legitimate expectation will not arise if there is either a statutory or executive act amounting to a contrary indication.[3]

2.5 Following the Teoh decision the then Ministers for Foreign Affairs and Justice, issued a joint statement which stated that the contrary to the High Court view, the ratification of a treaty by Australia did not give rise to a "legitimate expectation". The Ministers said--

We state, on behalf of the Government, that entering into an international treaty is not reason for raising any expectation that government decision makers will act in accordance with the treaty where the relevant provisions of that treaty have not been enacted into domestic Australian law.[4]

2.6 The joint statement by the then Ministers was a deliberate action by the Executive to oust any legitimate expectation which was based on the existence of a treaty.[5] Treaties previous to the Teoh decision had been considered by Courts in statutory interpretation, the development of the common law and as a relevant but not obligatory consideration in administrative decision-making.

2.7 Introducing the Administrative Decisions (Effect of International Instruments) Bill 1995 the then Attorney General explained the purpose of the Bill as being--

...to eliminate any expectation which might exist that administrative decisions, whether at the Commonwealth State or Territory level, will be made in conformity with the provisions of ratified but unimplimented treaties, or, that if a decision is made contrary to such provisions, an opportunity will be given for the affected person to make submissions on the issue.

The Bill lapsed on the dissolution of the Parliament when an election was called on 29 January 1996 and did not proceed through the Parliament.

Common Law

2.8 The right of peaceful assembly and free expression along with principles of free speech, freedom of association,[6] freedom of the press and free movement may be seen as underpinning the fabric of the political, legal and social structures of Australia. The High Court in Theophanous v Herald and Weekly Times Ltd [7] has determined that within the Commonwealth Constitution there is an implied freedom of communication with respect to discussion of government and political matters. The purpose of the implication is to ensure the efficacy of representative democracy.[8] It may be argued that the freedom of communication as determined by the High Court extends to freedom of assembly and a right of peaceful demonstration.[9] Further discussing the implied right within the Constitution the following argument was made--

On one view, the right of peaceful assembly is a special, institutional form of freedom of expression. There is a view that in the absence of a specific constitutional guarantee of a right of peaceful assembly, a guarantee of freedom of expression would almost certainly be construed as importing freedom of peaceful assembly.

The purpose of assembly is often to criticise government decisions and actions, or to influence the elected representatives to take or to refrain from specific action. Where the vicinity is the vicinity of Parliament, the purpose of demonstrations and protests would usually be part of political discourse, a way for citizens to communicate views on "matters that may call for, or are relevant to, political action or decision." Such assemblies would attract the protection of the implied right to freedom of expression.[10]

2. 9 It may therefore be argued that the ability to organise and participate in public assembly is fundamental to democratic society. Acceptance of the range of rights of peaceful assembly, free expression, freedom of association, freedom of communication necessitates that citizens will have the means and the opportunity to exercise these rights. The implied right of political communication within the system of representative democracy provided for under the Constitution, could also operate to invalidate laws which restrict the right to protest or demonstrate on political matters.[11]

2.10 The opportunity to participate in an assembly may be seen as critical not only from the point of view of exercising political power but also as providing a mechanism whereby group action can be taken in a forum which recognises political expression. It may be argued that in a democratic society the opportunity for spontaneous demonstrations relating to issues of the moment as well as more formal avenues for expressing a point of view should be provided.

2.11 Discussing law liberty and democracy one writer commented--

Public assemblies are essential to the proper functioning of democracy, in situations ranging from election and political party meeting to demonstrations organised to protest about government policies or other issues. The right of public assembly is significant not only for political reasons, but also as an important aspect of respect for individual autonomy, because without the right to express views in public and to call public assemblies for this purpose, the right of the individual to self-expression is very limited. The right of public assembly gives the individual access to a public forum for expression of views and provides a mechanism for individuals to take action as a group.[12]

2.12 The right of assembly is however not absolute. Restrictions on important or fundamental rights, though not absolute, are permissible to protect other legitimate interests. Restrictions may be acceptable when the purpose is to ensure protections from violence or harassment or protection of property against damage. A key example is a restriction on the right to assemble which ensures the security of Parliament House and the prevention of interruptions to parliamentary business.

2.13 Mason CJ of the High Court decision of Australian Capital Television Pty Ltd v The Commonwealth[13] stated that to determine whether restrictions on the freedom of communication are justified requires a balancing of the public interest in free communication against the competing public interest which the restriction is designed to serve, and for a determination whether the restriction is reasonably necessary to achieve the public interest.

2.14 From its preliminary review the Committee notes that the provisions of the ICCPR and the decisions of the High Court acknowledge a need to strike a balance between the right of public assembly and other rights, such as the right to free movement on public roads and the need to protect the peace.

Issues

• Issue 1    Should a right to peaceful assembly consistent with the International Covenant on Civil and Political Rights. ("ICCPR") be enshrined in legislation?
• Issue 2    Are there any further public policy restrictions which should be placed on the right to assemble?

Last update 30/1/97 ©Parliament of Victoria