Law on Australia’s Right to Hold Public Assemblies

By Poppy Morandin & Jimmy Singh.

The death of George Floyd has inspired protesters to take to the streets, across the USA and globally, to campaign against systematic racism and demand stronger police accountability.

In performing an arrest of Floyd, officer Derek Chauvin defied police protocol and all sense by kneeling upon the victim’s neck for over eight minutes. Despite Floyd being handcuffed, crying out that he could not breathe and being outnumbered by five police officers, Chauvin decided to do so until Floyd lost consciousness.

Whilst covering protests in California, an Australian reporter thanked a protester for participating in an interview remarking “appreciate you giving your perspective mate, because people in Australia don’t have the understanding of the history of police killings and things here.”

Prime Minister Scott Morrison echoed similar sentiments in response to planned demonstrations in Australia this week remarking “there’s no need to import things happening in other countries here to Australia.”

Such statements have ignited debate in Australia as to issues with our own criminal justice system and its processes.

Indigenous activists and elders have sought to draw comparisons between the African American experience and that of First Nations peoples in Australia.

Since 1991 Royal Commission into Aboriginal Deaths in Custody, there have been 432 further deaths in custody, with only two leading to charges.

“Police discretion has historically almost always been misapplied in that it focuses on the most vulnerable people in the community, with a strong emphasis on First Nations peoples,” said David Shoebridge, Greens MP.

Only recently an investigation has begun regarding a NSW police officer’s use of force in arresting a 16-year old Indigenous boy without charge. During the arrest, the boy had his feet kicked out from underneath him, causing him to fall to the ground face first, sustaining cuts and bruises to his body.

Police Commissioner Mick Fuller has defended the officer, remarking “you would have to say he has had a bad day.”

Protests such as the ‘Stop Aboriginal Deaths in Custody & George Floyd Peaceful Protest’ in Sydney were organised in order to utilise the heightened attention garnered regarding systematic racism and to show solidarity.

An attendee at the protest in Sydney on Tuesday remarked how “it’s important to discuss police accountability in Australia – it’s an issue that has been far too undiscussed and unnoticed.”

She continued “there was grieving tonight by many Indigenous Australians, one of the organisers turned to me with tears in her eyes and said, ‘we shouldn’t have to be doing this’.”

According to her account, there was a heavy police presence with officers lined up in a perimeter around the protesters, however there were no reportable overly positive or negative interactions between the parties.

Various events have sprung up on social media, sparking concerns as to whether the requisite authorisations have been applied for in order to protect attendees.

Australia’s Right to Hold a Public Assembly

The right to hold a peaceful public assembly is regarded as of integral importance to a democratic society, highlighted by its inclusion in the International Convention on Civil and Political Rights, which Australia is party to.

However, under Australian law there is no positive guarantee in relation to the right of persons to gather in a public place.

In Australia, participation in an unauthorised public assembly, subject to circumstances, may leave persons liable to a variety of charges including unlawful assembly, obstructing persons or traffic, riot, and offensive behaviour or they may be directed by police to ‘move on’.

More concerning during COVID-19 times, it can also result in breaches of the covid-19 social distancing rules, attracting $1,000 on-the-spot fines. And if those fines are court-elected, some of these breaches attract up to $11,000 fine or 6-months jail, or both under section 10 Public Health Act 2010 (NSW).

A public assembly is an “assembly held in a public place, and includes a procession so held”.

The circumstances in which an assembly can be authorised is outlined in section 23 of the Summary Offences Act 1988 (NSW). Although self-explanatory it is anything but an easy read, however the important thing to understand is the significance of having an authorised public assembly as opposed to an unauthorised public assembly, and the consequences of each type of assembly in NSW.

In a nutshell, Part 4 of the Summary Offences Act 1988 (NSW) basically says the following:

• An authorised public assembly, that’s held substantially in accordance with the particulars furnished, will basically provide an exemption to all those participants from being subject to any breaches as a consequences of participating in the public assembly. This means that anything he/she does or omits to do for purposes only of participating in that public assembly will not be guilty of any offence relating to the participation of an unlawful assembly, obstruction of traffic, move-on directions or in this case social distancing rules.
• An unauthorised or prohibited public assembly, on the other hand will not exempt the participants of the public assembly from any offence(s) relating to the participation of an unlawful assembly, obstructions of traffic laws, move-on directions or social distancing rules.

Regardless of whether the public assembly such as a protest is authorised or prohibited, the law does not say that you are not allowed to conduct such a public assembly. We may notwithstanding this continue to protest, but with the above restrictions/conditions.

Participants of a protest involved in an authorised public assembly will not be fined or charged by police if they incidentally obstruct traffic on the roads, or breach social distancing laws providing the protest is done in accordance with the particulars furnished. Those that participate in a prohibited public assembly can expect to be fined and charged by police.

The Supreme Court on Friday 5 June 2020 heard an application to the court to authorise the “Stop All Black Deaths in Custody: Vigil for George Floyd” also known as the Black Lives Matter Protest.

On Friday 5 June 2020, the Supreme Court refused to authorise the protest, rendering it an unauthorised or prohibited public assembly. It meant that all participants of the protest will be vulnerable to fines and charges by police if they breach any rules or laws, including obstructing traffic, social distancing etc.

The Black Lives Matter protest was scheduled and did in fact take place on Saturday 6 June 2020 notwithstanding the social distancing rules during COVID-19.

Interestingly, tables turned very quickly, as the decision to refuse authorisation for the protest was appealed to the appeals court which overturned the original Supreme Court decision, and eventually provided the authorisation during the day of protest.

Can Police Arrest Participants of an Unauthorised or Prohibited Public Assembly in NSW?

If a police officer forms a reasonable suspicion that participant(s) of an unauthorised protest are breaching a public health order relating to the COVID-19 pandemic, the police officer is giver the power to arrest the participant(s) and take him/her (or them) home or their other place of residence according to section 71A Public Health Act 2010 (NSW). On the other hand, it will not be practical for police to do this to every single participant in a large gathering for purposes of protesting.

Generally, police can only arrest someone without a warrant under section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). This means they can only arrest a person without a warrant if the officer forms a reasonable suspicion the person has committed an offence (is committing one or is about to commit one), and if the same office also forms the belief that the arrest is reasonably necessary to stop the offence, to stop the person from absconding, to establish identity, to get the person to appear before a court in relation to the charge. The list continues, and is outlined in section 99.

The Offence of Knowingly Joining or Continuing in an Unlawful Assembly in NSW

It’s not a crime to participate in an unauthorised public protest (known as an unauthorised or prohibited public assembly) in NSW.

However, in NSW it is a crime to knowingly join an unlawful assembly or continue in it if the assembly is of 5 or more people whose common objective is by means of intimidation or injury to compel a person to do what the person is not legally bound to do or to abstain from doing what the person is legally entitled to do.

Section 545C Crimes Act 1900 (NSW) prescribes a maximum sentence of up to 6-months jail or $550 fine, or both to anyone guilty of this.

The meaning of ‘unlawful assembly’ here is different to that of an unauthorised or prohibited public assembly.

Have a question? Call our friendly team of our Sydney based criminal lawyers today.

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