Review of the Unlawful Assemblies and Processions Act 1958

Chapter 4 - Other Jurisdictions [Part 1]

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INTRODUCTION

4.1 There are two quite different legislative models presently operating within Australia in respect of public assemblies. The prohibition model, in force in Victoria[140] and the ACT, makes certain assemblies unlawful. As outlined in Chapter 3, this type of legislation is based on old English provisions which dealt directly with the suppression of political dissent, and prohibits some assemblies completely by making participation in them a criminal offence.[141]

4.2 By contrast, advance regulation models represent a more modern attitude to freedom of assembly, permitting regulation of assemblies in the interests of controlling traffic flow and public order.[142] Advance regulation models include delegated control systems, permit systems and notification systems. The first model refers to the situation where State governments have not exercised their power to regulate assemblies directly, but have conferred power under local government or traffic legislation on municipal councils or other authorities. The permit model exists where a State government has legislated directly for public assemblies and created a system under which a permit from some authority must be obtained in advance. The notification model applies where State legislation requires notification to be given of information relating to proposed public assemblies, and in return confers immunity on participants against certain obstruction offences.[143] This Chapter outlines and compares the various models.

4.3 As is the case in Victoria, there is a wide range of criminal law offences that may be used to control the behaviour of demonstrators in other Australian jurisdictions. These common law and statutory offences are briefly mentioned in this Chapter.

4.4 Finally, the situation in the United Kingdom is examined. The legislation in the UK is more restrictive than that of most Australian jurisdictions, as it provides for a mandatory permit system.

PROBIBITION MODEL

4.5 The Unlawful Assemblies Ordinance of the ACT ("the Ordinance") is similar in content to section 3 of the Victorian Unlawful Assemblies and Processions Act 1958.[144] The Ordinance prohibits the meeting or assembly of more than 20 people for any unlawful purpose, within the distance of 90 metres from any part of Parliament House in Canberra. The purposes for which it is unlawful to meet replicate those set out in the Victorian Act, with the additions of the very general "for the purpose of doing anything unlawful".[145] However, in contrast to the Victorian Act, the Ordinance is not restricted in operation to assemblies and meetings taking place on sitting days. A contravention of the Ordinance is punishable by a fine of $200 or imprisonment for six months.[146]

4.6 The Ordinance also confers power on the ACT police force to arrest without warrant any person who appears to have breached the Ordinance. A person who wilfully obstructs the police while attempting to exercise this power is guilty of an offence, punishable by a fine of $200 or imprisonment for six months.[147]

ADVANCE REGULATION MODELS

Delegated Control Model

4.7 The ACT, Victoria, Tasmania and the Northern Territory rely on systems of delegated control. The two main sources of delegated control are council by-laws made under local government laws, and regulations made by traffic authorities under traffic legislation. The ACT scheme, introduced in 1982, was repealed only a year later. However, assemblies in the other three States continue to be regulated in this manner.[148] The Victorian version, the Public Activities Local Law 1994, is discussed in Chapter 3.

Permit Model

4.8 A permit system operates in Western Australia. This model can be very restrictive of the right to assemble as it requires that permission to hold an assembly be obtained from some authority, usually the police.[149]

4.9 The Public Meetings and Processions Act 1984 (WA) regulates the holding of "public meetings" and "processions". An assembly amounts to a "public meeting" where:–

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

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

(iii) members of the public have been invited, induced or permitted to attend.[150]

An assembly amounts to a procession where:–

(a) it comprises 3 or more persons; 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.[151]

4.10 A person or organisation proposing to hold a public meeting or procession may give written notice to the Commissioner of Police, setting out the proposal and applying for the grant of a permit.[152] The notice must provide certain particulars including the date, place and time of the proposed event, the route (if a procession), the purpose, details of the organisers and the estimated number of persons likely to participate.[153] The notice may be given at any police station, and must be given not less than four days before the date of the proposed assembly or procession (or within such shorter period as agreed by the Commissioner).[154]

4.11 The Commissioner may grant the permit, or grant it subject to conditions, or refuse to grant the permit.[155] However, the Commissioner may not refuse to grant the permit unless he or she has reasonable grounds for believing that the proposed 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.[156]

4.12 A person or organisation may apply to a magistrate where a permit is refused or is subject to a condition with which the person or organisation does not agree.[157] A magistrate must approve the proposal where he or she is not satisfied that there are proper grounds for the refusal. The magistrate may also vary or cancel any condition, or confirm the decision of the Commissioner.[158]

4.13 It should be noted that it is not mandatory under the WA Act to give notice or to obtain a permit for the holding of an assembly or procession. Holding or participating in an unauthorised assembly is not an offence. However, section 4 offers an incentive to comply with the Act, by conferring a limited immunity on participants in a public meeting or procession that substantially conforms to the conditions of the permit or order, in respect of offences relating to obstruction.[159] In this respect, the WA system is similar to a notification system. However, it has been commented that there is a "symbolic difference" between requiring a permit and merely requiring notice for a demonstration:

A permit scheme requires action to be taken to allow a peaceful public assembly, suggesting that it is prima facie unlawful. A notification scheme, by requiring action to be taken to prevent an assembly, acknowledges the legitimacy of the exercise of the right to peacefully assemble.[160]

Notification Model

4.14 Notification schemes exist in New South Wales, South Australia and Queensland. The schemes generally require notification of certain details of a proposed demonstration, and in return confer some immunity for participants against certain obstruction offences. They attempt to give better recognition to the right to assemble than the permit system, but they are not entirely successful. An examination of the details of the schemes below reveals that they are not really much more liberal than the permit system in Western Australia. The schemes provide a procedure by which the authority notified may object to the demonstration and take steps to have it prohibited. The success of notification schemes therefore depends on how they are administered and, in particular, how frequently and on what grounds demonstrations are prohibited. Further, there are many issues left unsettled by the legislation, mainly concerning whether or not the assembly has complied with the terms of its notice so that the immunity is available.[161]

New South Wales

4.15 Part 4 of the Summary Offences Act 1988 regulates public assemblies in NSW. A "public assembly" means an assembly held in public, and includes a procession.[162] Section 23 provides for "authorised" public assemblies, which are those that take place after a notice in writing of the intention to hold such a meeting has been served on the Commissioner of Police. The section also outlines the particulars that must be included in the notice, such as the date, time and place of the assembly, the purpose of the assembly, and the number of persons expected to attend. The notice must be signed by a person who accepts responsibility for organising and conducting the assembly, and who specifies his or her address for the service of any notices under the Act. Additionally, to be an authorised assembly, the Commissioner must then notify the organiser that the Commissioner does not oppose the holding of the assembly.[163]

4.16 The Commissioner may apply to the Supreme or District Court for an order prohibiting a public assembly, if the notice required by section 23 was served seven or more days before the date of the proposed assembly.[164] Prior to applying for such an order, the Commissioner must serve on the organiser of the proposed assembly a notice in writing inviting him or her to confer with a member of the police force, or to make written submissions to the Commissioner, in respect of the assembly.[165] If the organiser does wish to so confer, the Commissioner must make an appropriate member of the police force available.[166]

4.17 If the section 23 notice is served on the Commissioner less than seven days before the proposed assembly, and the Commissioner has not authorised the assembly, the organiser may apply to the Court for an order authorising the holding of the assembly.[167]

4.18 The Court must decide any application made by either the Commissioner or the organiser with the "greatest expedition possible", and the decision of the Court is final and not subject to appeal.[168]

4.19 If an authorised public assembly is held substantially in accordance with the particulars provided under section 23, persons taking place in the assembly receive a limited immunity in respect of offences relating to participating in an unlawful assembly or obstruction.[169]

Queensland

4.20 The Queensland Peaceful Assembly Act 1992 (Qld) is unique in Australia, as it is the only Act to recognise a right of peaceful assembly. Closely modelled on Article 19 of the International Covenant on Civil and Political Rights ("ICCPR")[170], section 5 of the Queensland Act provides:–

(1) A person has the right to assemble peacefully with others in a public place.

(2) The right 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.

(3) In subsection (2)(c), 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.

4.21 There are a couple of differences between section 5 of the Queensland Act and the ICCPR. First, section 5(2) omits a reference to "the protection of public health or morals" which appears in the ICCPR. Secondly, subsection (3) is not included in the ICCPR.

4.22 The Act also sets out a procedure for the authorisation of public assemblies. A "public assembly" is simply an assembly held in a public place, whether or not it is moving (a demonstration).[171] A public assembly is an "authorised public assembly" if notice of intention to hold the assembly is given to the Commissioner of Police and to any relevant local authority.[172] The notice must be in writing and signed by the organiser, and must include certain information, such as the day, time and place of the proposed assembly, the expected number of participants, the purpose of the assembly, the proposed route (if a procession), and details of the organiser.[173]

4.23 A public assembly is taken to be approved if, after the giving of the notice, notice of permission in writing is given by the Commissioner to the organiser, or the Magistrates Court makes an order approving the assembly, or no Court order has been made to the contrary.[174] A permission notice may, however, be subject to certain conditions, but only after the organiser has agreed to the condition(s).[175]

4.24 The Commissioner or local authority may apply to a Magistrates Court for an order refusing to authorise the holding of an assembly. The Court may refuse to authorise the assembly, or specify conditions.[176] However, the Act makes it clear that an application for such an order should not be made lightly. The authority must first have a reasonable belief that the holding of the assembly may jeopardise public safety, create serious public disorder, or lead to excessive interference with the rights and freedoms of persons. The authority must also consult with interested parties and engage in a mediation process.[177] The organiser may, similarly, apply to the Magistrates Court for an order authorising the assembly, but only where mediation has taken place.[178] In determining applications under the Act, the Magistrates Court must have regard to the objects of the Act, and conduct the hearing as speedily and with as little formality as possible.[179]

4.25 Incentive to comply with the provisions of the Act is provided by section 6, which confers immunity from civil or criminal liability merely because of the obstruction of a public place, on persons taking part in an authorised and peaceful assembly that substantially complies with the particulars provided and any conditions imposed.

South Australia

4.26 The Public Assemblies Act 1972 (SA) provides for the orderly conduct of assemblies and processions in South Australia. A person involved in a proposed assembly may give notice of the assembly to the Chief Secretary, the Commissioner of Police, or the clerk of the relevant local council.[180] The notice should include the date, time, place and purpose of the proposed assembly, as well as an estimate of the number of persons expected to attend, and the details of the person giving notice.[181]

4.27 The authority receiving such a notice may object to the proposed assembly on the ground that it would unduly prejudice any public interest.[182] An objection must set out the basis for this assertion, and must be served on the person who gave notice of the proposed assembly.[183] Where an objection is made, any person involved in the proposed assembly may apply to a Judge to determine the matter.[184]

4.28 Once again, the advantage to be gained from complying with these provisions is that the Act then confers a limited immunity on participants in the assembly in respect of civil and criminal liability arising from obstruction of a public place.[185]

CRIMINAL LAW OFFENCES

4.29 The major means of controlling the conduct of public assemblies in Australia today is through the numerous summary offences created by statute. Even where an assembly is authorised under public assemblies legislation, only a limited immunity is conferred from the many summary offences that may apply. These offences may be found in legislation relating to summary offences, police offences, vagrancy, traffic, as well as in traffic regulations or council by-laws. This complex patchwork of offences has been criticised:

Perhaps the worst feature of our present law is to be found in the bewildering array of petty criminal offences which can be called into play by the police in dealing with persons involved in public meetings and processions – offensive behaviour, indecent language, unseemly words, vagrancy, loitering, assaulting police, obstructing police, trespass, affray and so on. None of these has anything to do with the issues arising out of illegal demonstrations. But participants, even unwitting and unwilling participants, may be charged and convicted. Thereafter they have a criminal record which gives no indication of the real offence committed.[186]

4.30 There are also a number of common law offences that may apply, as outlined in Chapter 3. The common law offence of unlawful assembly still applies in Victoria and Tasmania, but has been replaced by legislation in New South Wales and the Commonwealth, and codified in the criminal code States of Queensland, Western Australia and Tasmania and the Northern Territory. The Commonwealth legislation covers both diplomatic and consular personnel and premises which the Commonwealth has an obligation to protect under international law.[187] Similarly, the common law offence of riot currently applies in South Australia and New South Wales, and has been codified in the criminal code States and the Northern Territory.[188] New South Wales also has a statutory summary offence of using or threatening violent disorder.[189]

REVIEWS IN OTHER AUSTRALIAN JURISDICTIONS

4.31 Other Australian jurisdictions have carried out reviews of their legislation relating to assemblies and processions. It is useful to consider their conclusions and recommendations.

Commonwealth Inquiry

4.32 In May 1997, the Joint Standing Committee on the National Capital and External Territories of the Commonwealth Parliament ("JSC") published its report entitled A Right to Protest. The purpose of the inquiry was to "assess the appropriateness, adequacy and effectiveness of the laws and administrative arrangements applying to protests on national land".[190] National land comprises the designated areas of land in Canberra required to fulfil its special purpose as national capital. In other words, Parliament House, the residences of the Governor-General and the Prime Minister, the Australian War Memorial, embassies and high commissions are all national land.[191] The national capital has, of course, been a particular focus for assemblies and demonstrations on all sorts of issues.

4.33 The Report is long and detailed. For present purposes, it is sufficient to reproduce here a summary of the JSC's conclusions and recommendations.

4.34 The JSC recognised that there was a "strong community expectation that a right to protest should be acknowledged as a fundamental principle of Australian society". The JSC further found that there was a solid basis for this expectation in the combination of Australian democratic traditions, implied constitutional guarantees and international obligations. Once it was acknowledged that a right to protest was a basic tenet of Australian society, it followed that Australians must be able to exercise that right on national land. However, such a right carried with it certain obligations; in particular, an obligation to exercise the right with due regard for public safety and public order.[192]

4.35 The JSC concluded that close cooperation between protesters and relevant authorities was crucial in ensuring that the interests of all parties involved in public demonstrations could be satisfied. Confusing laws and overlapping responsibilities had not contributed to the resolution of practical difficulties. All parties involved should have a clear understanding of their rights and responsibilities, which could be achieved only by clarifying the existing laws and administrative arrangements applying to protests on national land. Changes to the law and administrative arrangements should be directed to encouraging cooperation between protesters and authorities.[193]

4.36 The JSC did not favour the introduction of a permit system in relation to protests, noting that there was strong community resistance to this means of regulating protests. Also, such a system could introduce an overly complex legislative and administrative process, rather than providing greater clarity and certainty. The JSC preferred to build on existing cooperative arrangements. However, the JSC did support the introduction of a formal notification system for the management of protest structures on national land, recognising that these could have safety and public health implications, with the proviso that the permit system be regarded as a mechanism for facilitating protests rather than restricting them.[194]

4.37 The JSC recommended that:

1. a permit not be required in order to protest on national land subject to recommendation 3 dealing with protest structures;

2. a broad legislative scheme for non-compulsory prior notification of protests, based on the Queensland Peaceful Assembly Act 1992, not be introduced, but instead a cooperative approach to protest management be encouraged by:

(a) identifying in a community liaison section of the Australian Federal Police a contact officer for coordination of protests on national land who would provide a contact and information point for protest organisers and who would be responsible for liaising with other relevant authorities when a protest is planned for national land; and

(b) producing and making available a public information booklet on protesting in the national capital which would encourage prior notification of protests to a protest coordination officer of the Australian Federal Police and which would provide relevant information and advice on the conduct of protests in the national capital, focusing on national land;

3. a permit system be introduced for the management of protest structures on national land so that a permit is required from the National Capital Authority for a structure placed on national land as part of or in association with a protest, but a permit not be required where the structure:

(a) is of a size which would have minimal impact on the land and is used to facilitate the protest, such as sound systems and small stages; and

(b) is erected and removed on the same day during daylight hours.

4. relevant legislative amendments be introduced to recognise protests as an appropriate use of national land and to enable the National Capital Authority to issue permits for the erection of protests structures;

5. the term "structure" be defined broadly to ensure that the myriad fixtures, edifices, constructions, vehicles, machinery and fixed display materials which could be used in association with a protest, including tents used for camping, come within the terms of the permit system;

6. in determining an application for a permit to erect a protest structure on national land, including the duration of a permit, the National Capital Authority be required to give due consideration to:

(a) the public's right to peaceful assembly on national land;

(b) issues regarding equality of access on national land;

(c) public interest considerations which may require certain limitations to be placed on the erection of structures, including public order, public health and safety, national security, the rights of other persons, and the proper functioning of the Parliament and other national institutions including their ceremonial functions; and

(d) any specific requirements relating to the parliamentary precincts as determined by the Parliament's Presiding Officers, including existing requirements set down in their guidelines for protests in the parliamentary precincts;

7. guidelines on the erection of protests structures on national land, covering issues such as location, duration and public health and safety considerations, be developed by the National Capital Authority and be included in the information booklet proposed at recommendation 2;

8. on the basis of advice from the National Capital Authority or the Presiding Officers in relation to the parliamentary precincts, the Australian Federal Police be empowered to remove any protest structure on national land for which a permit is required under the system proposed at recommendation 3 but for which a permit has not been issued;

9. the Unlawful Assemblies Ordinance 1937 be repealed;

10. the Commonwealth Attorney-General's Department, in consultation with the [ACT] Attorney-General's Department, review the existing laws which can apply to protests on national land to ensure that they are written in plain English and define clearly the powers which are available to relevant authorities in dealing with protests; and

11. building on the memorandum of understanding established between the Australian Federal Police and the Australian Protective Service, clearly documented procedures for coordination of protests be developed between all relevant authorities involved with the management of protests on national land.

4.38 The Committee agrees with many of the recommendations of the JSC. In particular, the Committee agrees that a system of cooperation and voluntary notification is preferable to a legislative permit or notification model.[195] The Committee also considers that a booklet outlining practical aspects of the freedom to assemble, to be made available to the public, would be very useful. The booklet could be produced by the City of Melbourne and Victoria Police, and made available from the offices of both those organisations. The booklet should encourage prior notification of assemblies and demonstrations to the authorities, and set out the rights and obligations of those involved in such events.

Australian Capital Territory Inquiry

4.39 The ACT Community Law Reform Committee ("CLRC") published its Report on Peaceful Assemblies in September 1997. By contrast with the JSC Report, the ACT Report recommended the introduction of a non-compulsory notification system modelled on the Queensland legislation. The CLRC's recommendations are summarised below.[196]

4.40 The CLRC concluded that the law of the ACT did not adequately reflect the community's views about the rights of assembly participants. Rights and obligations were not clear, nor did the law provide clear guidance to law enforcement officials as to how to deal with assemblies. The CLRC sought to recommend reforms that more adequately balanced the rights of assembly participants and other members of the community.[197]

4.41 The CLRC recommended that reform of the law relating to public assemblies have two components:

First the enactment of a comprehensive Act dealing with peaceful assemblies. This Act should be along the lines outlined in the remainder of this Report. Second the repeal or limitation of application of a number of provisions that are not consistent with the recognition of a right of peaceful assembly in the 1990s.[198]

4.42 The CLRC considered that the legal protection of the right of peaceful assembly was of "primary importance", and recommended that it be formally recognised in the ACT.[199] The CLRC did not, however, recommend the enactment of a Bill of Rights including the right of assembly. Rather, as indicated above, it proposed that the right be recognised in a new Peaceful Assemblies Act ("Proposed Act"). The Proposed Act should contain a provision similar in content to the first two subsections of section 5 of the Peaceful Assembly Act 1992 (Qld).[200] Further, recognition of the right of peaceful assembly should underlie all of the provisions of the Proposed Act.[201]

4.43 However, the CLRC recognised the need for a balancing of interests:

...the right of peaceful assembly should not be superior to other rights to the extent that assembly participants are able to severely and unreasonably restrict the rights of others. It believes that cooperation and negotiation are the keys to ensuring that the right of peaceful assembly is balanced with the rights of others in the community.[202]

4.44 The CLRC considered that the best way to achieve a fair balance of interests was through a system of voluntary notification, to be introduced by the Proposed Act. The CLRC opposed a mandatory notification system or a licence system for a number of reasons:

Firstly, the right of peaceful assembly should not have lower priority than ease of policing... Secondly, it is suggested that the majority of assembly organisers voluntarily approach the police in any case, seeing it as in their interest to do so. Thirdly, a mandatory system would discourage demonstrations concerning issues of immediate importance. Most importantly, the imposition of a requirement to notify of all proposed assemblies would undermine the force of a declaration of the existence of a right of peaceful assembly.[203]

4.45 The CLRC believed that organisers of assemblies should be offered an incentive to notify the authorities of an impending assembly. This could be achieved by including immunity provisions in the Proposed Act. Where a participant had behaved substantially in accordance with the terms of the notification (and any subsequent agreement between organisers and police, or any court imposed conditions – see below), that participant should enjoy immunity from a certain, limited range of ACT laws. In particular, a participant in a notified assembly should receive immunity from the offences of obstruction and breach of peace. The CLRC recommended that these immunity provisions apply to assembly participants on an individual basis, so that an assembly as a whole would not be penalised for the transgressions of a few. The CLRC believed that such immunity provisions would reflect in the law what was in practice occurring in the ACT.[204]

4.46 From a practical perspective, the CLRC recommended that assembly organisers notify the police (in this instance, the Australian Federal Police) at any police station in the ACT. It should then be up to the police to provide advice to any other authorities, such as government departments.[205] Notification should be in writing, on special forms, which should be received at a police station three days before the proposed assembly takes place. The fulfilment of these conditions would then attract the operation of the immunity provisions.[206]

4.47 The CLRC proceeded from the assumption that all peaceful assemblies are lawful, and therefore recommended that there be no power to ban or limit an assembly in the Proposed Act, beyond the extent to which the organisers voluntarily agreed. A notified assembly would be subject only to denial of the benefits of the immunity provisions, or to the imposition of conditions to be observed by participants if they wished to retain immunity.[207]

4.48 The CLRC recommended that a decision whether an assembly should be denied the benefit of the immunity provisions or whether conditions should be imposed should be a matter for the Magistrates' Court, rather than the police.[208] Only the Attorney-General should have standing to seek such orders from the Court, as denial of immunity should be a last resort, to be used "only if the assembly would unreasonably impinge upon the rights of others and if it is not possible to reach a compromise that would sufficiently diminish the risk posed by the assembly."[209]

4.49 In deciding whether or not to impose conditions or deny immunity, the court should have regard to the following matters:

(a) the objects of the Act, and in particular, the right of peaceful assembly;

(b) the likelihood that if the assembly was held as notified;

(i) serious public disorder would be occasioned;
(ii) the safety of any person would be placed in jeopardy;
(iii) damage to property would be occasioned; or
(iv) the assembly would cause an obstruction that would, in the circumstances, be of unreasonable size or duration.[210]

4.50 Any conditions imposed by the court should be sufficient to alleviate concerns, but should not change the fundamental nature of the assembly.[211]

4.51 The CLRC was at pains to emphasise that primary importance should be attached to the right of peaceful assembly, and recommended that the Proposed Act include a prohibition against serious disruption of peaceful assemblies. An offence of interfering "seriously and unreasonably" with an assembly should be created.[212]

4.52 The CLRC recommended the repeal or amendment of a number of ACT and Commonwealth laws. In particular, the CLRC recommended the repeal of the Unlawful Assemblies Ordinance 1937.[213] The Committee further strongly recommended that various provisions relating to the offences of obstruction, offensive behaviour, riot, affray and so on, not be used so as to unreasonably impede the exercise of the right of peaceful assembly.

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