Review of the Unlawful Assemblies and Processions Act 1958

Chapter 2 - Freedom of Assembly

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INTRODUCTION

2.1 The Unlawful Assemblies and Processions Act 1958 (Vic) ("the Act") restricts freedom of assembly in the State. Yet the right to assemble or protest is often said to be a fundamental principle of Australian society.[2] At the outset, then, it is necessary to consider whether a "right" to assemble exists in Australia. This chapter considers the position at common law, and outlines very briefly the other factors impacting on freedom of assembly, which are discussed further in the following chapters of this Report.

IMPORTANCE OF THE RIGHT OF PEACEFUL ASSEMBLY

2.2 There is a "strong community expectation" that a right to assemble or protest should be acknowledged to exist as a fundamental principle of Australian society.[3] The central place of public protest, especially political protest, in Australian democracy appears to be beyond doubt.

2.3 One view holds that the right of peaceful assembly is fundamental for the following reasons:

Public assemblies are essential to the proper functioning of democracy, in situations ranging from election and political party meetings 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. The right to assemble is closely based on the rights to freedom of speech and freedom of association...[4]

COMMON LAW

2.4 Despite the generally acknowledged importance of the concept, a "right" of assembly is not recognised in Australian law.[5] The common law recognises the right of assembly only as a "residual freedom". This means that a person is free to take part in an activity to the extent that there are no restrictions on it.[6]

2.5 The concept of a residual right may be contrasted with a "positive" right, a claim recognised by law, and for the violation of which the law provides a specific remedy.[7] There is therefore no specific remedy available at common law for violation of freedom of assembly.[8] Further, as there is no positive right to assemble, an assembly can be restrained (for example) on the ground that it constitutes a nuisance, in exactly the same way as any other nuisance, and without regard to its special character as the exercise of a fundamental right.[9]

RESTRICTIONS ON FREEDOM OF ASSEMBLY

2.6 Freedoms are usually subject to some restrictions in order to balance competing interests. For example, the exercise of the freedom of assembly may need to be regulated in the interests of public safety and order. However, such restrictions should ideally only be imposed where necessary. A considerable number of restrictions are imposed on the freedom to assemble in Australia, many of which are statutory.[10] The existence of such limitations means that the residue of common law freedom is very small.[11]

2.7 In Victoria, the Act is the principal piece of legislation governing freedom of assembly. Legislation aimed at regulating assemblies and processions exists in most Australian States and Territories. The Victorian Act is examined in Chapter 3, and the legislation of other Australian jurisdictions is outlined in Chapter 4.

2.8 Other legislation also has an impact on freedom of assembly, including criminal law statutes and local council regulations. The common law further restricts freedom of assembly, through common law offences such as riot, affray and rout. These restrictions, in so far as they apply in Victoria, are considered in Chapter 3. Restrictions in other jurisdictions are covered in Chapter 4.

COMMONWEALTH CONSTITUTION AND IMPLIED RIGHTS

2.9 The High Court has, in the last decade, handed down a number of important decisions which have implied certain fundamental rights from the text of the Australian Constitution. The most widely accepted right has been the right to freedom of speech. This right arguably includes a right to protest, at least in relation to political matters. This important development, and its implications for legislation such as the Victorian Act, is considered in Chapter 5.

INTERNATIONAL LAW

2.10 The position in Australia must be contrasted with that in international law. A right of peaceful assembly is enshrined in Article 21 of the International Covenant on Civil and Political Rights ("ICCPR"). Australia is a signatory to the ICCPR, although the articles of the covenant have not been incorporated into domestic law. In recent years, international standards have come to play an important role in determining the legal and ethical validity of domestic legislation. Chapter 6 discusses relevant international law, and its impact on the situation in Australia.

Scrutiny of Acts and Regulations Committee
© Parliament of Victoria