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

Unlawful Assemblies and Processions Act 1958
ISSUES PAPER

CHAPTER FOUR

ASSEMBLIES IN AND AROUND PARLIAMENT

4.1 The Commonwealth has specific legislation to regulate assemblies in and around Parliament.[1] Aside from Victoria and the Australian Capital Territory, the other jurisdictions within Australia that regulate assemblies do not distinguish between Parliament and other areas. The Commonwealth Parliamentary precinct is a significant meeting place for assemblies and rallies in relation to issues of national importance.

The Commonwealth Parliament

4.2 The regulation of assemblies in Parliamentary precincts entails a balance between Parliamentary privilege along with the right to assemble and the use of Parliament as a point of focus for communicating political opinion. The privileges of Parliament relate to the rights and immunities of the Houses, their Committees and members which are part of the process of Parliamentary democracy. In the Constitution of the Commonwealth these privileges are enshrined in section 49[2] which provides--

The powers, privileges, and immunities of the Senate and of the House of Representatives , and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and its members and committees, at the establishment of the Commonwealth.

4.3 Under the law of Parliamentary privilege the Parliament may treat as contempt any acts which obstruct or impede either House of Parliament in the performance of its functions.[3]

Parliamentary Precincts Act 1988 (Cth)

4.4 This Act defines the geographical boundaries of the Parliamentary precincts[4] and provides that the control and management of the precincts reside with the respective Presiding Officers of the Parliament. The Presiding Officers, being the Speaker of the House of Representatives and the President of the Senate may, subject to any order of either House, take any action considered necessary for the control and management of the precincts.

4.5 In recognition of the need to balance the right to assemble with the need to protect Parliamentary privilege the Presiding Officers have issued guidelines which regulate the conduct of public demonstrations within the parliamentary precincts.[5] In summary, the guidelines cover where authorised demonstrations are to be held within the precincts, how participants are to conduct themselves and that access to the Parliament is not to be obstructed.

4.6 The Parliamentary Precincts Act also provides that the Public Order (Protection of Persons and Property) Act 1971 (Cth) applies to the precincts as if they were Commonwealth premises within the meaning of that Act.

Public Order (Protection of Persons and Property) Act 1971 (Cth)

4.7 Section 4 of the Public Order (Protection of Persons and Property) Act 1971 (Cth) defines "assembly" as--

an assembly of not less than three persons who are assembled for a common purpose, whether or not other persons are assembled with them and whether the assembly is at a particular place or moving and includes the conduct in connection with that common purpose of all or any of the persons in the assembly.

"Unreasonable obstruction" is also defined in the Act as meaning--

an act or thing done by a person that constitutes to, an obstruction of, or interference with, the exercise or enjoyment by other persons of their lawful rights or privileges (including rights of passage along the public streets) where, having regard to all the circumstances of the obstruction or interference, including its place, time, duration and nature, it constitutes an unreasonable obstruction or interference, and unreasonably obstructs has a corresponding meaning [6]

4.8 Part II of this Act is particularly relevant to the issue before the Committee. It provides that it is an offence to participate in an assembly involving violence or a reasonable apprehension of violence. Section 8 of the Act provides a reading of a direction to disperse those assembled in much the same manner as the direction in the Unlawful Assemblies and Processions Act 1958 (Vic). However in contrast with the language of the direction under the Victorian Act, the Commonwealth Act is couched in language of a modern style--

In pursuance of the Public Order (Protection of Persons and Property) Act of the Commonwealth of Australia, I (name of police officer) being a Sergeant (or higher rank) in (name of Police Force), direct all persons taking part in this assembly to disperse forthwith. Persons who fail to disperse may render themselves liable to the penalties provided by the Act.

Where at least twelve people remain at the expiration of fifteen minutes from the reading of the direction, all those present without reasonable excuse are guilty of an offence.[7]

4.9 Reasonable force to disperse the assembly may be used whether or not a direction has been given if the assembly continues to be conducted in an unlawful manner and/or there is physical violence or damage to property.

4.10 Section 9 of the Act creates an offence where a person on Commonwealth premises takes part in an assembly and engages in unreasonable obstruction. Given the definition of "unreasonable obstruction" this section may have the result that it leads to a blanket prohibition on assemblies. This section unlike the Victorian provision and the Ordinance (discussed below) does not list criteria which make the assembly unlawful. The Act also creates the offence of unreasonable obstruction in relation to the passage of persons or vehicles on Commonwealth premises.[8]

4.11 A further Act dealing with Parliament is the Unlawful Assemblies Ordinance 1937 (Cth). It has its origins in the Seditious Meetings Act 1817 (U.K.) which was enacted to suppress political dissent.[9] The Ordinance deals with unlawful assemblies in much the same manner as the Victorian provisions. Section 3 (2) of the Ordinance provides that it is not lawful for more than twenty people to meet or be assembled in the open air for any unlawful purpose within 90 metres from any part of the building known as Parliament House, Canberra. Any person who takes part in the assembly shall be guilty of an offence. A penalty of two hundred dollars or six months imprisonment may be imposed.

4.12 Section 3 (2) provides that the assembly is unlawful if it is for the purpose of--

doing anything unlawful, or for the purpose or on the pretext of making known their grievances, or, discussing public affairs, or considering, preparing or presenting any petition, memorial, complaint, remonstrance declaration or other address to the Queen, the Governor General, or to both or either House of Parliament or to any Minister or officer of the Commonwealth, or for the repeal of any law or alteration of matters of State.

It has been suggested in relation to the Ordinance that--

the continued existence in law of such a blanket prohibition seems incompatible with the recognition of a right of public assembly required by the ICCPR.[10]

4.13 The Committee considers, that in particular, the Ordinance does not attempt to strike a balance between the right to assemble and the use of public places. Under this Ordinance and by analogy the relevant Victorian provisions, assemblies on any matters that may concern citizens are prohibited. The Victorian provisions do limit the prohibition to when Parliament is sitting which may be a relevant factor in determining its acceptability.

4.14 The Commonwealth Parliamentary Precincts Act and the Public Order (Protection of Persons and Property) Act 1971 (Cth) to some extent attempt to balance the competing rights of assembly and use of public space. The guidelines made under the former Act may be seen as a recognition that citizens may want to assemble and inform the Parliament of their concerns. The guidelines are however, subject to Parliamentary approval and the provisions of the latter Act may override them. The latter Act does also make it an offence to create an unreasonable obstruction.

4.15 From an examination of the legislation it is arguable that certain provisions of the Acts may be in breach of Articles 19 and 21 of the ICCPR.

The imposition of overly restrictive requirements to obtain permission to hold a protest, for example, would not be supported since "permission" would detract from the essence of protest (in so far as it is mounted against the interests of the State), and could amount to State "interference" with the messages communicated through peaceful assemblies.

However, requirements that notice of protest action be given to the State might be considered reasonable in light of the duties of the State to "protect" freedom of assembly, and in view that some arrangements for the re-routing of traffic or the maintenance of the public order may need to be made.[11]

Issues

Issue 11 Should assemblies in and around the Victorian Parliament be dealt with in the same manner as other assemblies?

Issue 12 If not should there be separate legislation or should the Presiding Officers of the Parliament be empowered to make regulations?

Issue 13 If there is separate legislation should it define the Parliamentary precinct, as it currently stands ?

Issue 14 Is the present definition too wide?

Last update 13/8/99 ©Parliament of Victoria