SCRUTINY OF ACTS AND
REGULATIONS COMMITTEE
REVIEW OF REDUNDANT AND UNCLEAR LEGISLATION
Unlawful Assemblies
and Processions Act 1958
ISSUES PAPER
CHAPTER THREE
THE CURRENT STATE OF VICTORIAN LAW
Common Law
3.1 The Committee considers that there is a widely held community belief that the right of assembly is part of a parcel of rights that, in conjunction with the right of free speech and freedom of association, is held by Victorians. At common law the right to assemble is described in negative terms and by defining unlawful assemblies. The common law has not established legal rules relating to lawful assemblies. Therefore, there is freedom to assemble as long as other laws are not breached.
3.2 At common law an unlawful assembly has been described as--
.. an assembly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner or conduct themselves when assembled as to cause persons in the neighbourhood of such assembly to fear on reasonable grounds that the persons so assembled will disturb the peace tumultuously or will by such assembly needlessly and without any reasonable occasion provoke other persons to disturb the peace tumultuously.[1]
3.3 Processions at common law are not unlawful provided that they do not unreasonably interfere with the right of individuals to pass and re-pass on the highway. Mr Justice Isaacs of the High Court in Melbourne Corporation v. Barry[2] described a procession as--
.. a moving assemblage of individuals for a common purpose and a procession along a thoroughfare, is no more than a number of individuals exercising in the aggregate the individual right of each to pass through the thoroughfare.[3]
The Legislation
The Unlawful Assemblies and Processions Act 1958.
3.4 The statutory provisions governing assemblies and processions in Victoria are found in this Act. The Act has been on the Victorian statute books in substantially the same form since 1865. The 1928 Unlawful Assemblies and Processions Act repealed an earlier 1890 and 1903 Act with the 1958 Act repealing the 1928 Act.
3.5 The Act is based on English legislation dealing with sedition[4] and is therefore directed toward prohibiting disorderly behaviour against the government. The Act also contains prohibitions on assemblies in and around Parliament and incorporates provisions which have their origin in the Riot Act 1714 (UK) dealing with dispersal of crowds.
3.6 The Committee notes that the Crimes Act 1958 (Vic) sections 206 and 207 create offences liable to imprisonment for rioters who are `assembled together to the disturbance of the public peace who unlawfully and with force demolish' buildings[5] and for forcible entries in a manner likely to cause a breach of the peace.[6]
Structure of the Act
3.7 The Act is divided into four parts--
Part I deals with unlawful assemblies;
Part II deals with party processions;
Part III deals with special constables; and
Part IV deals with riotously disturbed districts.
3.8 The Committee considers that Parts I and II are the most relevant parts of the Act for the purpose of this paper. The intent and effect of the sections are discussed in this chapter, with the text of the Act included in the Appendix.
PART I - Unlawful Assemblies
3.9 Section 3 of the Act provides that it is not lawful for more than 50 persons to assemble for certain purposes in the open within the boundaries of Flinders Street, Lansdowne Parade to Victoria Parade and Exhibition Street while either or both Houses of Parliament are in session. The purposes for which it is prohibited to assemble are--
- for any unlawful purpose;
- for the purpose of or on the pretext of making known their grievances;
- discussing public affairs;
- considering/preparing or presenting any petition memorial complaint remonstrance declaration or other address to--
- the Queen, the Governor or both Houses or either House of the Imperial Parliament or the Parliament of Victoria; or
- any officer of Government for the repeal enactment of any law for the alteration of matters in state.
3.10 In relation to unlawful assemblies section 3 alters the common law position by increasing the number of persons from three[7] to fifty but only whilst Parliament is sitting. The provisions of the Act however do not regulate assemblies outside of Parliamentary sittings. That situation is covered either by section 10 (described below) of the Act, the common law or any relevant local law.
3.11 Section 4 provides that where any meeting falls within the ambit of section 3 the meeting is deemed to be an unlawful assembly and every person who attends and takes part is liable to imprisonment of not more than six months.
3.12 Section 5 regulates riotous meetings and provides that it shall not be lawful for any persons to assemble together riotously and tumultuously and to the disturbance of the public peace at any place in Victoria. This section also provides an indemnity for the killing, maiming or hurting of those persons who are unlawfully assembled while they being dispersed, seized or apprehended.
3.13 Section 6 sets out the forms of words that a Magistrate is required to read to an assembled crowd in order to disperse them. The form of words are--
Our Sovereign Lady the Queen doth strictly charge and command all manner of persons here assembled immediately to disperse themselves and peaceably depart to their own homes. God save the Queen.
If persons hinder the Magistrate or remain after the expiration of fifteen minutes, they are deemed to be guilty of an indictable offence.
3.14 Section 7 provides that sections 3 to 6 do not apply to assemblies held for the purpose of any election of any member to serve in Parliament or any persons attending upon the business of either House of Parliament.
PART II - Party Processions
3.15 Section 10 prohibits the carrying of fire-arms or other offensive weapon in parades or processions within Victoria for the purposes of celebrating or commemorating any festival, anniversary or political event relating to or connected with any religious or political distinction or differences between any persons.
3.16 This section also prohibits the carrying of flags, emblems or other symbols or music which is designed to provoke animosity between different religions. Such a procession is deemed to be an unlawful assembly and persons present are deemed to be guilty of an indictable offence. The proviso to section 10 exempts processions or assemblies held in the course of any election of any member to serve in Parliament from the foregoing provisions.
3.17 The following comment has been made about the section--
Although this provision appears on its face to be an outrageous restraint on individual expression and the right of public assembly, it may be possible to find a justification for it in terms of modern political theory. The offence is not mere participation in a procession or joining in a celebration. The offence applies only where these acts are accompanied by either carrying a offensive weapon or by action designed to provoke animosity between different groups in society. The restriction on offensive weapons can be justified on the basis of its clear potential to cause harm to others: restrictions which relate to public safety are not an unjustifiable constraint on the right of assembly.[8]
The authors also noted that although the section may be too widely worded to be completely acceptable, it may however be justified on the same basis as arguments which justify outlawing incitement to religious or racial hatred which is required by Article 21 of the ICCPR.[9]
3.18 Section 11, like section 6, provides for a Magistrate or a person appointed by the Magistrate to read a certain form of words in order to disperse a procession or meeting. Section 12 provides that failure to disperse and depart within fifteen minutes leaves the persons open to arrest on warrant. If convicted a person may be imprisoned for one month on a first offence, or three months for a second or subsequent offences.
PART III - Special Constables
3.19 Sections 13 to 25 regulate the appointment by a Magistrate of special constables. All persons willing to act[10] as special constables may be appointed in cases where there are insufficient ordinary constables or officers to maintain the preservation of the peace, protection of people and security of property.[11] A penalty of ten dollars is imposed upon a person who refuses to take the oath[12] or fails to appear or refuses to obey lawful orders and directions for the performance of the duties as a special constable.[13] The magistrates who have appointed special constables have the power to make orders and regulations as are necessary and may remove from office a special constable for any misconduct or neglect of duty.[14] The Magistrate may notify the Minister,[15] and discontinue the services of all or any of the special constables who must at that time surrender all arms staves and weapons.[16]
PART IV - Riotously Disturbed Districts
3.20 Sections 26 to 55 provide for a jury summoned by the Magistrates Court[17] to certify a district as riotously disturbed,[18] whereupon the Governor may proclaim the district as being in a state of disturbance.[19] The Act provides for levies to be imposed on the residents of such a district in order to pay for any losses suffered by the residents,[20] the appointment of a Commissioner for the district,[21] whose expenses are to be met by a levy imposed on the residents[22] and various procedures to be established for setting a value on losses, settling claims and the manner of imposing levies.[23]
Issues:
Issue 3 Is the Unlawful Assemblies and Processions Act 1958 still relevant as a model to regulate assemblies and processions in Victoria?
Issue 4 If the Act were to be repealed should the common law be left to cover the field?
Issue 5 If the common law is not suitable, should there be specific legislation enacted regulating assemblies and processions or could the matters be dealt with by inserting new provisions in existing legislation?
Issue 6 Is there a need for legislation to cover riots ?
Issue 7 Is the reading of a statement to disperse a riot still necessary?
SUBORDINATE LEGISLATION
3.21 The City of Melbourne has power under the Local Government Act 1989 (Vic) to enact local laws and has enacted the Public Activities Local Law 1994. Some of the objectives of this local law are to--
(a) prevent, control and abate various nuisances and other conditions likely to cause detriment or affect amenity;
(b) control, protect and conserve aspects of the environment;
(c) prohibit, regulate or control activities, events, practices and behaviour which could give rise to detriment or to persons or to the amenity of a neighbourhood or cause a nuisance or interfere with the use or enjoyment of premises by or the personal comfort of a person;
(d) facilitate the giving of permits and consents for activities in or on, public places or Council buildings;
(e) protect the use of public places and Council buildings and control activities in or near then(sic);
(g) provide for safety in public places; and
(j) generally maintain the peace, order and good government of the municipal district.
3.22 The local law gives the City of Melbourne a discretion whether to grant a permit for a procession. Paragraph 3.14 provides--
(1) Unless in accordance with a permit, a person must not conduct or participate in a parade or procession of vehicles in, or over any public place unless written notification of the proposed parade or procession has been given to the Council at least five days before the event.
(2) A person conducting or participating in a parade or procession must comply with any reasonable directions given by the Council, a delegate or an Authorised officer.
3.23 In relation to traffic control, paragraph 3.25 provides--
3.25 Unless in accordance with a permit, a person, must not obstruct or interfere with the passage of pedestrian or vehicular traffic in or on a public place or allow that traffic to be obstructed or interfered with by:-
(a) haranguing or the making any of any loud outcry:
(b) the playing or operating of any radio, record, cassette or compact disc player, television set or similar device;
(c) the operation of any public address system or other sound broadcasting equipment:
(d) a display of goods or services; or
(e) any activity or thing
whether in or on a public place or premises adjacent to it if an assemblage of persons is attracted to or remains temporarily in the vicinity.
3.24 Penalties are set out in part 4 of the local law--
4.1 A person who:-
(a) does not do anything required to be done or does anything forbidden to be done by or under this Local Law;
(b) allows any act or omission which is a contravention of this Local Law;
(c) contravenes a permits or a condition included in a permit; or
(d) is the owner or occupier of any premises (other than a road or other premises owned or occupied by the Council, the Government or a public body) upon which a contravention of this Local Law occurs
is guilty of an offence and liable to a penalty not exceeding 20 penalty units (but in the case of a wilful or deliberate offence not less than 2 penalty units) and in the case of a continuing offence is liable to a penalty not exceeding 2 penalty units for each day after conviction for an offence during which the contravention continues.
Issues
Issue 8 What is the combined effect of the Public Activities Local Law 1994 and the Act on the right to assemble?
Issue 9 Should the process for permits be left to the City of Melbourne to administer? Is it sufficient to provide that the granting of a permit is discretionary?
Issue 10 Should the local law and/or statute provide a criteria for the granting of a permit?
Footnotes 1 Flick G. Civil Liberties in Australia Law Book Company 1981 p. 105. 2 (1922) 31 CLR 174, 3 ibid. at p. 196. 4 Seditious Meetings Act 1817 (U.K.) in force until repealed by the Public Order Act 1986 (U.K.) 5 Section 206 Crimes Act 1958 (VIC). 6 Section 207 Crimes Act 1958 (VIC). 7 See Feldman Civil Liberties and Human Rights in England and Wales Clarendon Press 1993 at p. 802-3-- The common law offences were of considerable antiquity, and they belonged to an age when public gatherings and public protest were seen as a threat to good government rather than as a part of the democratic activity which legitimises government. The essence of common-law riot was a gathering of three or more people, giving effect to a common purpose, displaying force or violence in such a way as to alarm a person of reasonable firmness and courage, and intending to use force if necessary against anyone who opposes them. 8 Gaze and Jones Law, Liberty and Australian Democracy Law Book Company 1990 p. 121. 9 Ibid. 10 Section 15. 11 Section 13. 12 See Section 13 which provides for :"I [A.B.] swear by Almighty God that I will well and truly serve Our Sovereign Lady the Queen in the office of special constable for the [municipal district] of [ ] without favour or affection or malice or ill-will; and that I will to the best of my power cause the peace to be kept and preserved and prevent all offences against persons and property of Her Majesty's subjects; and that while I continue to hold the said office I will to the best of my knowledge discharge all the duties thereof faithfully according to law." 13 Section 14. 14 Section 18. 15 Section 19. 16 Section 20. 17 Section 27. 18 Sections 30 and 31. 19 Section 32. 20 Section 34. 21 Section 35. 22 Section 36. 23 Sections 37 - 55.
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Last update 13/8/99 ©Parliament of Victoria |