Review of the Unlawful Assemblies and Processions Act 1958Chapter 7 - Protests around Parliament House[Return to table of contents]INTRODUCTION7.1 Houses of Parliament are a focal point for public assemblies and demonstrations. A Commonwealth inquiry into the right to protest was told that: Demonstrations will inevitably take place in close proximity to Parliament House [Canberra] since this is where decisions are taken which give rise to the dissent and since proximity is essential if the protests are to be direct and effective.[302] The same rationale clearly applies to demonstrations and assemblies taking place around Parliament House in Spring Street, Melbourne. 7.2 However, in Victoria and the Australian Capital Territory, assemblies around Parliament House are specifically prohibited. The relevant legislation is briefly outlined in this Chapter. By contrast, the modern approach to assemblies and processions is to impliedly or explicitly recognise the right to peaceful assembly, and to seek to regulate these events in the interests of public order.[303] 7.3 The fact that Parliament House is a target for these activities creates some significant practical problems in relation to ensuring the security of people working in Parliament House, and also of the House itself. The primary issue here is how the right of peaceful assembly may be balanced against the need to prevent interruptions to the business of the Parliament, and to safeguard persons employed by, and the property of, the Parliament. Other jurisdictions have addressed this issue by introducing legislation to clarify the precincts of Parliament House, the powers of Presiding officers and so on. PROHIBITIONS ON ASSEMBLIES AROUND PARLIAMENT HOUSE7.4 Two jurisdictions in Australia retain legislation on their statute books that prohibits assemblies around the relevant Parliament Houses. Victoria7.5 As explained in Chapter 3, Part 1 of the Unlawful Assemblies and Processions Act 1958 (Vic) was specifically introduced to protect Parliament House from riotous assemblies and processions, while Parliament was sitting. The legislators responsible for the introduction of the legislation in 1860 clearly considered that the protection of the business of Parliament outweighed any right of citizens to express their grievances, at least when either House was sitting. Australian Capital Territory7.6 The Unlawful Assemblies Ordinance 1937 is outlined in Chapter 4 of this Report. In short, it replicates the prohibition contained in section 3 of the Victorian Unlawful Assemblies and Processions Act 1958 (Vic)[304] on assemblies near Parliament House. However, the Ordinance is not limited to assemblies taking place on sitting days. Committee's Comments7.7 As explained in some detail in Chapters 3 and 4, the Committee considers the prohibition of assemblies around Parliament House to be archaic and inconsistent with the values of a modern democratic society. The Committee believes this to be the general view, of the public and of the authorities, as demonstrated by the fact that the prohibitions outlined above have not been enforced for many years. LEGISLATION TO PROTECT COMMONWEALTH PREMISES7.8 The Public Order (Protection of Persons and Property) Act 1971 (Cth) was introduced to preserve public order in Commonwealth Territories, on Commonwealth premises, and on the premises of diplomatic missions. Part II (sections 6 to 13) of the Act covers Commonwealth Territories and Commonwealth premises, while Part III (sections 14 to 21) deals with diplomatic missions. "Commonwealth premises" means premises, whether in a State or a Territory, occupied by the Commonwealth or by a public authority under the Commonwealth.[305] This definition obviously covers the Commonwealth Parliament House in Canberra. 7.9 Sections 6 and 7 create an ascending scale of offences relating to unlawful physical harm to another person or unlawful damage to property in the course of an assembly in a Territory or on Commonwealth premises. "Assembly" means 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.[306] 7.10 Section 6(1) makes it an offence for a person to conduct themselves in a way that gives rise to a "reasonable apprehension" that the assembly will involve unlawful physical violence to persons or unlawful damage to property. Such an offence is punishable on conviction by a fine not exceeding $250 or imprisonment for more than 12 months, or both. Section 6(2) makes it an offence for a person taking part in such an assembly to "wilfully and without lawful excuse" do an act or thing "by way of" physical violence to another person, or damage to property. In this case, the punishment may be $1000 or imprisonment for not more than 12 months or both. Section 7 punishes a person who "wilfully and without lawful excuse" causes actual bodily harm or damage exceeding $200 to property. In this case, the offender is guilty of an indictable offence, and is liable to imprisonment for a term not exceeding five years (in the case of physical harm) or three years (in the case of damage to property). 7.11 Section 8 sets out guidelines for the dispersal of certain assemblies. A member of the police force of the rank of sergeant or above may give a direction under the section.[307] The direction is to be given orally, audibly and in a form prescribed by the Act.[308] The relatively modern language of the Commonwealth Act contrasts with the archaic language of the similar provision in the Victorian Unlawful Assemblies and Processions Act 1958 (Vic).[309] 7.12 Where a direction is given as above, and the assembly of no less than 12 persons[310] continues after the expiration of 15 minutes from the time of the direction, each person is guilty of an offence, punishable by a fine of not more than $500 and/or imprisonment for not more than six months.[311] It is lawful under the Act for a person to use such force as is reasonably necessary and proportionate to disperse an assembly in respect of which a direction has been given under section 8(2).[312] 7.13 Further offences in relation to behaviour at assemblies are set out in sections 9 to 12. It is an offence under the Act for a person, while taking part in an assembly, to "engage in unreasonable obstruction". Such offence is punishable by a fine not exceeding $250 and/or imprisonment for a term not exceeding three months.[313] It is also an offence for a person taking part in an assembly to have a weapon in his or her possession, or to use a weapon.[314] Depending on the gravity of the offence, punishment ranges from a fine not exceeding $500 to imprisonment for not more than six months.[315] Trespass is an additional offence under the Act, and includes unreasonable obstruction, offensive or disorderly behaviour while trespassing, and refusal to leave when directed to do so.[316] Again, the penalty depends on the gravity of the breach, and ranges from a fine not exceeding $100 to imprisonment for not more than three months.[317] 7.14 Part III of the Act contains provisions mirroring those outlined above, but applicable to diplomatic and consular premises and personnel, and international organisations. PARLIAMENTARY PRECINCTS ACTS7.15 The regulation of protests around Commonwealth Parliament House and Parliament House in New South Wales is assisted by legislation in those jurisdictions outlining the parliamentary precinct and the powers of those in charge of the precinct. Commonwealth7.16 The Commonwealth Parliamentary Precincts Act 1988 (Cth) defines the precincts of the Commonwealth Parliament House in Canberra. Section 4 provides that the Parliamentary precincts consist of Parliament House, being the land and buildings within a geographical boundary defined in subsection (2) and indicated on a plan attached as Schedule 1. Section 5 extends the Parliamentary precincts to property owned or leased by the Commonwealth, (but not already covered by section 4). Section 5 also permits the Presiding Officers to certify in writing that specified property is required for the purposes of the Parliament, in which case the regulations may declare that the property will be treated as part of the Parliamentary precincts for the purposes of the Act. 7.17 The Parliamentary precincts are under the control and management of the Presiding Officers, who may take any action they consider necessary for the control and management of the precincts.[318] The Presiding Officers of the Commonwealth Parliament noted that the Act gave them the power to "determine the arrangements within the precincts for the holding of protests and demonstrations".[319] While the powers of the Presiding Officers are not enumerated in the Act, the provisions have been interpreted as giving the Presiding Officers (and officers authorised by them) the power to move, remove, and attempt to exclude any person, including any protester, from the parliamentary precincts. This does not, however, include the power to arrest and detain the person.[320] 7.18 Where, under an order of either House relating to the powers, privileges and immunities of that House, a person is required to be arrested or held in custody, the person may be arrested or held by a member of the Australian Federal Police ("AFP") in accordance with general arrangements agreed between the Presiding Officers and the Minister administering the Australian Federal Police Act 1979 (Cth).[321] 7.19 The Presiding Officers have issued guidelines for the conduct of public demonstrations in the parliamentary precincts.[322] The Presiding Officers of the 37th Parliament have indicated that the guidelines seek to achieve a balance between the rights of protesters and the needs of Parliament. These guidelines set down the minimum standards which must be adhered to when protesting within the parliamentary precincts. They establish an authorised area for protests at the front of Parliament House and provide that:–
7.20 The guidelines also state that parliamentary security, the AFP or APS officers will ensure that protests in the parliamentary precincts are not held outside the authorised protests area. Where necessary, a person entering an area other than the authorised area will be removed to the authorised area or from the parliamentary precincts. Non-compliance with the orders of the people mentioned above may result in arrest. While failure to obey the guidelines is not of itself an offence, any breach may be the subject of police investigation, and subsequent action taken where the failure amounts to an offence at common law or under some other legislation.[323] New South Wales7.21 The primary purpose of the NSW Parliamentary Precincts Act 1997 is to "define the Parliamentary precincts and to provide for the control, management and security of those precincts and adjoining areas". Part 2 deals with the Parliamentary precincts, which consist primarily of the land identified by a Deposited Plan, and all buildings, structures and works on above, or under that land.[324] Other premises may be treated as included in the Parliamentary precincts as follows:
7.22 The Parliamentary precincts are under the control and management of the Presiding Officers, who may take any action they consider necessary for the control and management of the precincts.[326] 7.23 Part 3 of the Act establishes a Parliamentary zone, again consisting of the land described in a Deposited Plan, together with all buildings, structures and works on, above or under the land.[327] Where property adjoins or is in the vicinity of the Parliamentary precincts, and both Houses pass a resolution declaring that the property is to be treated as part of the Parliamentary zone, the property is then considered part of the zone for the purposes of the Act.[328] The Presiding Officers may make general or particular arrangements with the Commissioner of Police, to preserve security within the Parliamentary zone, and to restrict public access to any part of the zone on ceremonial occasions, or in the event of an actual, threatened or anticipated disturbance.[329] 7.24 Part 4 of the Act deals with directions and removal of persons from the Parliamentary precincts (Division 1) and from the Parliamentary zone (Division 2). An authorised officer may direct a person to leave or not enter the Parliamentary precincts. He or she may also direct another authorised officer to remove a person from, or prevent a person from entering, the precincts.[330] An "authorised officer" means a Presiding Officer, a Parliamentary officer authorised by a Presiding Officer, or a police officer acting in conformity with certain instructions.[331] If a person is lawfully directed to leave or to not enter the Parliamentary precincts, and fails to comply with the directions, he or she will be liable to a penalty.[332] An authorised officer may arrest a person who fails to comply with a direction to leave or to not enter the precincts.[333] An authorised officer may also remove a person from, or prevent a person from entering, the Parliamentary precincts, and may use such force as is reasonably necessary to achieve this end.[334] 7.25 Where arrangements are in place between the Presiding Officers and the Commissioner of Police in respect of the Parliamentary zone (under section 15), a police officer may direct a person to leave or not enter the zone.[335] A person who fails to comply with such a direction will be liable to a penalty.[336] A police officer may also remove a person from, or prevent a person from entering, the Parliamentary zone, and may use such force as is reasonably necessary to do so.[337] 7.26 It should be noted that the provisions described above do not apply to members of either House of Parliament.[338] THE SITUATION IN VICTORIA7.27 Victoria does not have a Parliamentary Precincts Act. The Presiding Officers of the Parliament of Victoria, however, strongly believe that such an Act should be introduced. In their detailed submission, they outlined their particular concerns regarding the security of Parliament House during protests and assemblies. Guiding the comments of the Presiding Officers was: ... the everyday experience of successive Presiding Officers and Parliamentary staff in dealing with the overriding need to maintain the integrity and independence of the Parliament, and the interdependent issues of security, access, freedom of movement, Police powers, and the accepted democratic right of citizens to demonstrate.[339] 7.28 As noted in Chapter 3, the Presiding Officers concluded that the Unlawful Assemblies and Processions Act 1958 (Vic) was redundant and could be repealed. However, they also believed that it was timely to consider the introduction of specific legislation for the security and protection of the Parliament, the building and its environs.[340] The purpose of such legislation would be to "clarify the area, rights, privilege and authority of the Victorian Parliament", and would include the following:
7.29 Victoria Police also commented on the problems associated with assemblies and processions taking place around Parliament House: The present boundaries are obviously unworkable and too wide. It has been our practice to have police line up along the front of Parliament House. It is understood by most groups that that is as far as they will go, but there is no real legislation that prevents them from going any further. If anything, we would be asking that the boundaries be narrowed to the front of the Parliament's precincts, to where the building line finishes. That would let us say to organisers that that is where the legislation takes us to, and that is where we will hold the line, so to speak.[341] ...Having the Presiding Officers present [only] from time to time provides us with operational problems. The police have to locate them, have them there and make announcements... In that regard, it would be more convenient for us if officers of Parliament were authorised for whatever system were in place – there might be delegations in place for various people in the parliamentary precincts to do the same sorts of things at times of demonstrations so the police do not have to locate one person.[342] COMMITTEE'S COMMENTS7.30 The Committee notes the considerable problems involved in ensuring the security of Parliament House while assemblies and processions are taking place around the building. The Committee is of the view that the parliamentary precincts and the powers of parliamentary officers should be clarified by legislation. The Committee therefore endorses the view of the Presiding Officers that a Parliamentary Precincts Act should be enacted in Victoria. The Committee considers that the Parliamentary Precincts Act 1997 (NSW) is the preferable model for Victoria, as it clearly outlines the powers of both the Presiding Officers and the police in respect of ensuring the security of Parliament House.
Scrutiny
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