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

Unlawful Assemblies and Processions Act 1958
ISSUES PAPER

CHAPTER FIVE

LEGISLATION IN OTHER STATES OF AUSTRALIA

5.1 There are quite distinct legislative models operating within Australia. They are as follows:

* The prohibition model--

operational in the Australian Capital Territory, the Northern Territory, Tasmania and Victoria.

* The discretionary notification model--

examples of which are found in the legislation of NSW and South Australia.

* The permit model--

provided by the Queensland and Western Australian legislation.

PROHIBITION MODEL

5.2 The States with legislation falling within this model are the ACT, the Northern Territory, Tasmania and Victoria. Victoria is dealt with separately in Chapter Three while the legislation of A.C.T. is discussed in Chapter Four.[1]

5.3 The Northern Territory does not have specific legislation on assemblies. Instead reliance is placed on traffic by-laws and the criminal law. In the Northern Territory, Division 4 of Part III of the Criminal Code section 63 creates the offence of unlawful assembly:

s.63(1) Where 3 or more persons assemble with intent to carry out some common purpose, assemble in such a manner being assembled, conduct themselves in such a manner as to cause persons in the neighbourhood to fear on reasonable grounds that the persons so assembled will tumultuously disturb the peace, or will be such assembly needlessly and without any reasonable occasion provoke other persons tumultuously to disturb the peace, they are an unlawful assembly.

5.4 Section 64 provides a penalty of imprisonment of up to one year for such an offence. Section 66 of the Code details the proclamation ordering an assembly to disperse, in a similar manner to the provisions of the Victorian Act and the Commonwealth Ordinance. Part III of the Criminal Code deals with "Offences against Public Order" Sections 44 to 48 deal with seditious enterprise and seditious intention.

Tasmania

5.5 No law in Tasmania exists which enacts the right to public assembly.[2] Each of the municipalities is responsible for governing the procedure of regulating public assemblies. The Hobart City Council has imposed strict regulations on assemblies.[3]

5.6 The Tasmanian Criminal Code 1924 provides for unlawful assemblies: breaches of the peace.[4] The Code creates the offence of taking part in an unlawful assembly in circumstances where--

3 or more persons with an intent to effect any common purpose, lawful or unlawful, in such a manner that firm and courageous persons in the neighbourhood of such assembly have reasonable grounds for alarm.[5]

Further the Code provides that where an unlawful assembly has begun to put into execution the common purpose it is a riot[6] and any person taking part is guilty of a criminal offence.[7]

NOTIFICATION MODEL

NSW Summary Offences Act 1988 (NSW) Part 4

5.7 The NSW legislation provides that an assembly is an authorised assembly if notification is given to the Commissioner of Police of the intention to hold an assembly, the time, date, expected attendance, purpose, organisers name and address.[8] Such notification must be given seven days prior to the assembly. If less than seven days, the assembly can only authorised by the Court. Under the Act a `court' means the Supreme Court or District Court.[9]

5.8 The Commissioner may object to the Court but only after the organiser has been notified and issued with an invitation to confer with respect to the assembly. The Court's decision is final. The Act does not specify any grounds which confine the right of objection. Where the organiser has served the notification less than seven days prior to the assembly, the Court may authorise the assembly. The Court has this power only if the Commissioner has not notified the organiser of the public assembly that he does not oppose the assembly.

5.9 As in the South Australian model, if an assembly is authorised and held substantially in accordance with the particulars furnished, participants do not incur criminal liability for offences relating to participating in an unlawful assembly, or obstruction offences.

SOUTH AUSTRALIA Public Assemblies Act 1972 (SA)

5.10 This Act provides that notice may be given for public assemblies. Organisers of the assembly must give notice setting out the date, time, route and details concerning name of organiser, purpose of the assembly and the estimated attendance, to the Chief Commissioner of Police, the Chief Secretary or the Clerk of the local Council at least four days before the assembly.

5.11 Section 5 of the Act provides that objection to the assembly may be made by any of the three persons listed above on the grounds that it may unduly prejudice any public interest. The grounds of such objection must be set out and served on the organiser. The grounds must also be published in a newspaper circulating in the State at least two days prior to the assembly. Standing to seek Court resolution of the objection is given to any person who desires to participate in the assembly.

5.12 The notice provisions under the Act are discretionary. However, section 6 of the Act provides immunity from civil and criminal liability for obstruction of a public place where the conduct of the assembly substantially conforms with the approved proposals.

PERMIT MODELS

QUEENSLAND Peaceful Assembly Act 1992 (Qld)

5.13 This Act owes its existence to the recommendations of the Fitzgerald inquiry. It is the only Australian act to recognise a positive right to assemble. Section 2, which sets out the objects of the Act recognises this right and is modelled on Article 21 of the ICCPR. Section 2 provides:

2(1) The objects of this Act are --

(a) to recognise the right of peaceful assembly; and

(b) to ensure, so far as it is appropriate to do so, that persons may exercise the right to participate in public assemblies; and

(c) to ensure that the exercise of the right to participate in public assemblies is subject only to such restrictions as are necessary and reasonable in a democratic society in the interests of-

(i) public safety; or

(ii) public order; or

(iii) the protection of the rights and freedoms of other persons;

(iv) to ensure that the right of persons to participate in public assemblies may be exercised without payment of a fee, charge or other amount for a licence, permit or other authorisation.

5.14 Section five of the Act expressly states that a person has the right to peacefully assemble with others in a public place. This right is expressed in the Act to be subject to the restrictions set out in Article 21 of the Convention. Legal immunity for participation in the assembly is granted when the assembly is an authorised assembly, is peaceful and is conducted in accordance with the permit and any conditions imposed on it. Subsection (2) provides that the right to peaceful assembly is subject only to such restrictions as are necessary and reasonable in a democratic society in the interests of--

(a) public safety; or

(b) public order; or

(c) the protection of the rights and freedoms of other persons.

Subsection (3) provides that a reference to the rights of persons includes a reference to--

(a) the rights of members of the public to enjoy the natural environment; and

(b) the rights of persons to carry on business.

5.15 The Queensland legislation follows a similar formula to the other Acts outlined above. Notification to the police and the local city council is discretionary but if done must provide certain information concerning the proposed assembly. The police and/or the council must determine whether they have concerns about the assembly.

5.16 Section 10 provides that an assembly is authorised if the required notice of permission has been granted. Section 11 governs the imposition of conditions on the permit. Any conditions sought to be imposed must fall within the matters set out in section five or other matters relating to the clean up cost or environmental concerns.

5.17 Section 13 expressly prevents the police or other objectors who have standing from seeking an order from the Court prohibiting the assembly where notice has been given more than five business days prior to the assembly, unless the objector has had regard to the objects of the Act.

5.18 The Queensland legislation, unlike the models of other States, imposes the intermediate step of mediation of the parties if they cannot agree on the assembly prior to seeking Court resolution. If the parties are unable to reach agreement they may take the matter to Court. At the hearing the Court may determine the application.

5.19 As with the other States, participation in an authorised assembly, confers immunity for what would otherwise be breaches of certain street offences. However, again it is not mandatory to notify the police and local council.

WESTERN AUSTRALIA Public Meetings and Processions Act 1984 (WA)

5.20 This Act has a comprehensive definition of an assembly. Pursuant to section 4(3) of the Act, an assembly shall not be taken to be a public meeting unless--

(a)(i) it comprises 3 or more persons;

(ii) and it is held for the purpose of communicating or expressing any view to or of ascertaining the view of the public or any section of the public, or of demonstrating as to any matter; and

(iii) members of the public in general are invited induced or permitted to attend.

Section 4(4) provides that an assembly shall be taken to be a procession if--

(a) it comprises three or more people; and

(b) those persons are assembled with the intent of moving, or move from the place of assembly by means of any street as, or substantially as, a body of persons in orderly succession proceeding by a common route.

5.21 Under section 5 of the Act, the organiser of the assembly may give written notice to the Commissioner of Police. Section 5(2) lists ten matters that must be included in the notice. The notice shall be given not less than four days before the proposed date.

5.22 Section 7 details the powers of the Commissioner which are, broadly, to grant a permit for the meeting with or without conditions or refuse to grant a permit. Under section 7(2) the Commissioner shall not refuse to grant a permit unless he or she has reasonable grounds for apprehending that the proposed public meeting or procession may--

(a) occasion serious public disorder, or damage to public or private property;

(b) create a public nuisance;

(c) give rise in any street to an obstruction that is too great or too prolonged in the circumstances; or

(d) place the safety of any person in jeopardy.

5.23 Section 8 details the appeal procedure established by the Act to have a Court hear and determine the matter. The Court only has power if the notice is served not less than four days before the planned date of the assembly. The Court has power to grant a permit where one has been refused or to modify conditions placed on the permit or to confirm the Commissioner's decision not to grant a permit.

5.24 The Western Australian legislation has two provisions not found in the other models. Section 10 of the Act provides--

No action or claim for damages shall lie against any person for on account of anything done, or ordered or authorised to be done, by him which purports to be done for the purpose of carrying out the provisions of this Act, unless it is proved that the act was done, or ordered or authorised to be done, maliciously and without reasonable and probable cause.[10]

5.25 The second distinguishing feature of this Act is section 9 which imposes penalties in cases where hostile onlookers disrupt a permitted assembly.

RELATED ISSUES ARISING FROM THE MODELS

5.26 The purpose of examining the interstate models which deal with public assemblies is to examine their appropriateness to Victoria. In the Committee's view none of the models examined are without problems. One symbolic issue of the notification and the permit models is the appropriateness of issuing permits. Advance controls of public assembly may be seen as restriction of a fundamental right. However the usefulness of the notification model is that it provides a mechanism whereby the need for traffic regulation, public order and protection of the institution of Parliament and Parliamentary business are reconciled with the right of peaceful assembly.[11]

Role of Police

5.27 Issues arise concerning the role of the police. The police are required to undertake two roles in the legislative models. In all of the models the police are one of the organisations required to be notified and have standing to object to the assembly taking place. The police are also responsible for enforcing order and preventing breaches of the peace or criminal law when an assembly is taking place.

5.28 The police have a legitimate interest in information concerning assemblies for the purposes of traffic control and public order. The potential for conflicts would be apparent between their two roles in cases where the police have objected and the Court has allowed the assembly to proceed.

Standing

5.29 The question of standing in court is an issue to be considered. Generally, the police and the other authorities who are required to be notified of an assembly have standing to seek Court orders. In South Australia the legislation grants standing to anyone who desires to participate in the proposed assembly. Additionally, the issue arises as to onus of proof in court proceedings when an objection is taken to an assembly taking place.

Issues

Last update 30/1/97 ©Parliament of Victoria