Review of the Unlawful Assemblies and Processions Act 1958

Chapter 4 - Other Jurisdictions [Part 2]

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UNITED KINGDOM

Public Order Act 1986

4.53 The Public Order Act 1986 (UK) was introduced for the following purposes:–

• to abolish the common law offences of riot, rout, unlawful assembly and affray, and certain statutory offences relating to public order;

• to create new, statutory offences relating to public order; and

• to control public processions and assemblies.[214]

Processions and assemblies

4.54 Part II of the Act governs public processions and assemblies. The Act distinguishes between processions and assemblies, subjecting the former to more onerous restrictions and controls.

(a) Processions

4.55 The Act introduced, for the first time in the UK, a national requirement that organisers give advance notice of public processions. A "public procession" means a procession in a public place. A "public place" means any highway and any place to which the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express of implied permission.[215] The notice requirement does not extend to public assemblies.[216]

4.56 Section 11 provides:–

(1) Written notice shall be given in accordance with this section of any proposal to hold a public procession intended–

(a) to demonstrate support for or opposition to the views or actions of any person or body of persons,
(b) to publicise a cause or campaign, or
(c) to mark or commemorate an event,
(d) unless it is not reasonably practicable to give any advance notice of the procession.

(2) Subsection (1) does not apply where the procession is one commonly or customarily held in the police area (or areas) in which it is proposed to be held or is a funeral procession organised by a funeral director acting in the normal course of his business.

4.57 Notice is therefore required for most public processions, as the categories in subsection 11(1) will cover most processions. Clearly included are all forms of political protest, whether against national, international or local governments. Also included are marches to commemorate events such as D-Day. The exception provided by subsection 11(2) would cover annual carnival processions, such as to celebrate Chinese New Year, or annual Guides and Scouts marches.[217] The section does provide an exemption where "it is not reasonably practicable to give advance notice". However, in practice, it will almost always be reasonably practicable to give notice, as even spontaneous protests take time to organise.[218]

4.58 The notice must specify the date when it is intended to hold the procession, the time when it is intended to start, the proposed route, and the name and address of the person (or one of the persons) organising the event.[219] The notice must be delivered to a police station in the area in which it is proposed that the procession will start.[220] The notice must be delivered not less than six days before the date of the proposed procession, or if that is not possible, as soon as reasonably practicable.[221]

4.59 It is a criminal offence to fail to comply with the advance notice provisions of the Act.[222] Where the requirements as to notice are not satisfied, or where the actual procession differs from the details given in the notice, each person organising the procession is guilty of an offence.[223] However, it is a defence for the accused to prove that he or she did not know of, or suspect, the failure to comply with the Act.[224] Where an alleged offence turns on a difference of date, time or route, it is a defence for the accused to prove that the difference was due to circumstances beyond his or her control, or due to something done with the agreement of or at the direction of a police officer.[225]

4.60 Part II of the Act also creates a scheme of controls over public processions.[226] Section 12 allows the police to impose conditions on a procession, where the senior police officer reasonably believes that:–

(a) [the procession] may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or

(b) the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do.

4.61 It is an offence if an organiser organises a procession and knowingly fails to comply with a condition. It is also an offence if a participant takes part in a procession and knowingly fails to comply with a condition. However, it is a defence in both these cases to prove that the failure arose from circumstances beyond the control of the organiser or participant, respectively. Finally, it is an offence to incite somebody else knowingly to participate in a procession in breach of a condition.[227]

4.62 Where the Chief Officer of Police reasonably believes that the powers under section 12 will not be sufficient to serious public disorder, he or she must apply to the council of a district for an order prohibiting the holding of all or specific public processions for a period not exceeding three months. The Council may then make such an order with the consent of the Secretary of State.[228] It is an offence if an organiser organises a procession which he or she knows to be prohibited. It is also an offence if a participant takes part in a procession which he or she knows to be prohibited. Finally, it is an offence to incite somebody else knowingly to participate in a prohibited procession.[229]

(b) Assemblies

4.63 Section 14 allows a senior police officer to impose conditions on public assemblies in the same circumstances as apply to public processions in section 12(1). A "public assembly" means an assembly of 20 or more persons in a public place which is wholly or partly open to the air. The definition of "public place" is outlined above. The same offences, and defences, as outlined in the discussion on section 12 apply for section 14.

4.64 Section 14A deals specifically with trespassory assemblies. Where a chief officer of police reasonably believes that an assembly will be held in a place to which the public has no right of access, and is likely to be held without the permission of the owner of the place, and may result in serious disruption to the community or significant damage to land or buildings of historical value, he or she may apply to the council of the relevant district for an order prohibiting for a specified period the holding of all trespassory assemblies. The council may, with the approval of the Secretary of State, make such an order.[230] Section 14C permits a constable who reasonably believes that a person is on the way to an assembly prohibited under section 14A may stop that person and order him or her not to proceed. A person who fails to comply with such an order is guilty of an offence.[231] A person who organises, or knowingly takes part in, an assembly prohibited under section 14A is guilty of an offence.[232] Further, a person who incites another to take part in a prohibited assembly is guilty of an offence.[233]

Abolition of common law and statutory offences

4.65 The Act abolishes the common law offences of riot, rout, unlawful assembly and affray.[234]

4.66 The Act also abolishes a number of statutory offences, of which the most noteworthy is section 23 of the Seditious Meetings Act 1817, which prohibited certain meetings within one mile of Westminster Hall when Parliament was sitting.[235]

New offences

(a) Riot

4.67 A riot occurs where 12 or more persons together use or threaten unlawful violence for a common purpose, and their conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety.[236] A person is only guilty of the offence of riot if he or she intended to use violence.[237]

(b) Violent disorder

4.68 Where three or more persons together use or threaten unlawful violence, and their conduct is such as would cause a person of reasonable firmness to fear for his or her personal safety, this amounts to violent disorder.[238] A person is guilty of violent disorder only if he or she intended to use or threaten violence.[239]

(c) Affray

4.69 A person is guilty of affray if he or she uses or threatens unlawful violence towards another, and his or her conduct is such as would cause a person of reasonable firmness to fear for his or her personal safety. For the purposes of this section, a threat cannot be made by the use of words alone.[240] A person is guilty of affray only if he or she intended to use or threaten violence.[241]

(d) Fear of violence

4.70 It is an offence for a person to use threatening words or behaviour towards another person, or to distribute threatening material to another person, with intent to cause that person to fear the use of violence against him or her, or to provoke the use of violence against that person.[242]

(e) Harassment

4.71 A person is guilty of an offence if he or she uses threatening words or behaviour, or displays any threatening material, within the hearing or sight of another person likely to be harassed by this conduct.[243] Intent is a necessary element of the offence.[244] It is a defence for the accused to prove that he or she was unaware of the presence of another person, or that he or she had no reason to believe that the conduct would be observed by another person, or that his or her conduct was reasonable.[245]

Criminal Justice and Public Order Act 1994

4.72 The recent Criminal Justice and Public Order Act 1984 (UK) ("the CJPO Act") also imposes some considerable restrictions on freedom of assembly. Part V of the Act deals with public order.

4.73 A person commits the offence of "aggravated trespass" where he or she trespasses on land, and does anything which is intended to disrupt or obstruct people engaged in a lawful activity, or to intimidate people so as to deter them from engaging in that activity.[246] This section does not apply to activity on most roads and highways.[247]

4.74 A senior police officer present at the scene of an aggravated trespass, may direct the offender(s) to leave the land.[248] If the offender, knowing that such a direction has been given, then fails to leave the land, or re-enters the land within three months from the date of the direction, he or she is guilty of an offence.[249] However, it is open to the offender to prove that he or she was not trespassing, or had a reasonable excuse for being there.[250]

SUBMISSIONS ON DIFFERENT LEGISLATIVE MODELS

Permit and Notification Models

4.75 Victoria Police observed that the introduction of a permit system may have little practical effect on the exercise of the freedom to assemble:

People tend to come forward and advise us if they are intending to have a procession or assembly. Generally they advise us of their intentions. If they do not do that under the current system, they are not likely to do that under a permit system. As the committee would have observed regarding the interstate legislation, there is no obligation to take out a permit. Even if there were, we do not think that would necessarily work any better. If the people are unwilling to cooperate now, they will not cooperate just because a permit system is in place.[251]

4.76 The LIV preferred the notification model to the permit model, as the latter was more restrictive:

A permit model places significant restrictions on the right to peacefully assemble particularly where assemblies are not lawful where a permit is not obtained or complied with.

... If permits may be refused, there must be an accessible and timely appeal system. In addition, if the police and other persons are permitted to object, the organisers of the assembly must be able to be heard in relation to the objections.[252]

4.77 The LIV also commented on the notification model:

If certain assemblies are only lawful where advance notification is given, spontaneous civil disobedience will clearly be unlawful even where there is no significant impact on traffic control, public order and safety, and other persons' rights to freedom of movement and enjoyment of public places. This constitutes an incursion on the right to peacefully assemble. Notification should arguably not be necessary where the assembly is not likely to have a substantial impact on traffic control. Alternatively, depending on the expected size and nature of the proposed assembly, it may be that notification could be given just prior to the spontaneous civil disobedience.[253]

Discretionary notification is also to be preferred to compulsory notification. Similarly if advance notification is to be required, a shorter period within which notification is to be given is to be preferred to a longer period.[254]

4.78 Mr Iain Stewart of South Melbourne opposed the introduction of "elaborate legislative models" that seek to prohibit or restrict the right to assemble, or require notification:

I submit that a process of liaison with any relevant authority and/or the Victoria Police ... should be encouraged, but should not be introduced as a pre-condition to a gathering of citizens... Processes which require prior notification and the gaining of permission are too restrictive, act as a disincentive, or worse, are an impediment to the exercise of the right to assemble. Also it takes no account of the need to protect legitimate spontaneous expressions of dissent or support. In addition, in order to ensure that natural justice was accorded to unsuccessful applicants presumably any such process would require an appeal mechanism. The process could potentially become unwieldy and should be avoided.[255]

4.79 The Save Albert Park organisation also favoured:

...a simple legislative model that avoids measures to prohibit, restrict or require prior notification. Processes which require prior notification and permits must limit a positive right to protest, take no account of the need to protect the right to spontaneous protest, and are at best a discouragement of democratic activity.[256]

Enshrining a Right of Peaceful Assembly

4.80 The idea of enshrining a right of peaceful assembly was supported in several of the submissions received by the Committee. Mr Iain Stewart of South Melbourne submitted that:

The rationale for casting the legislation in this manner is to ensure that, as a matter of public policy, the onus rests with those who seek to curtail the express right to establish the overriding public interest that would justify any limitation or restriction on citizens' right to assemble... [However, s]upport for the primacy of the right to assemble should not be (mis)interpreted as implicit/explicit support for an unfettered right to assemble. The need to balance competing interests is always present.[257]

4.81 The Save Albert Park organisation agreed that the right should be enshrined in legislation as an overriding right.[258]

COMMITTEE'S COMMENTS

Prohibition Model

4.82 The Committee notes that Victoria and the ACT are the only Australian jurisdictions to prohibit assemblies and demonstrations around Parliament House. As discussed in Chapter 3, in the context of the Victorian Act, the Committee is of the view that the prohibition model represents an outdated method of dealing with public assemblies and processions. Legislation following this model is inappropriate in a modern democracy where considerable importance is attached to civil rights, such as the right to assemble.

Advance Regulation Models

4.83 The Committee considers that the notification and permit models are more appropriate than the prohibition model for the regulation of an important civil right such as the right to peaceful assembly. Indeed, there are good reasons for requiring advance notification of processions and assemblies. With advance notice, the relevant authorities can take steps to ensure that the processions or assembly takes place uneventfully, with minimum interruption of transport, businesses and so on.

4.84 However, the Committee notes that these models set up fairly complicated procedures and involve considerable administration, by both organisers of assemblies and various government authorities. The Committee also recognises that such a model may discourage, or be irrelevant to, assemblies that take place with very short notice. Further, the cooperative system currently practised in Victoria appears to achieve the same result, but with less bureaucratic red-tape. The Committee notes that the Joint Standing Committee on the National Capital and External Territories came to a similar conclusion.[259]

4.85 For all of the above reasons, the Committee considers that Victoria should not follow either the permit or notification models. Rather, the Committee prefers to build on the existing process of cooperation and coordination between the authorities affected by and responsible for assemblies and demonstrations. In this respect, the Committee agrees with similar recommendations by the Commonwealth Joint Standing Committee on the National Capital and External Territories.[260]

Enshrining a Right of Peaceful Assembly

4.86 However, the Committee is in favour of enshrining the right of peaceful assembly in legislation, along the lines of section 5 of the Queensland Act. While enacting such legislation may make little difference to the practice of the right of peaceful assembly, it would be of symbolic importance. Further, it would bring the State into line with the position at international law.[261]

4.87 However, the Committee recognises that there must be a balance between the right of peaceful assembly and competing considerations, such as the freedom of people to go about their affairs. Therefore the right should be subject to the same sorts of considerations as expressed in the Queensland Act, such as measures necessary for the maintenance of public order. The Committee further considers that the wording of paragraph 5(3)(b) of the Queensland Act is unnecessarily restrictive in referring to "business". The Committee believes the following wording would be more appropriate:

(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 their activities and business.

UK Model

4.88 The Committee notes that the UK model imposes greater restrictions on the right of peaceful assembly than any of the permit or notification models in Australia, by making advance notice mandatory, rather than merely encouraging it. The Committee recognises that the UK model has been introduced, at least in part, to deal with matters not relevant to Victoria, such as "New Age" travellers and protests against fox hunting which often involve deliberate trespass. The Committee therefore believes that this is not an appropriate model to follow in Victoria.

Scrutiny of Acts and Regulations Committee
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