Protest movements have helped to shape the world we live in. We associate protest with revolution, democracy and social movements. It takes varying forms and locations from the classic street protest and occupation to digital media activism (or clicktivism as its critics maintain). In 2011 Time magazine declared ‘the protestor’ to be its person of the year – ‘the defining trope of our times’ and ‘once again… a maker of history’. Here in Australia protest is seen as a critical aspect of our democratic society. It is practised, dismissed as messy and inconvenient, mythologised, celebrated and even outlawed.
But if protest is so fundamentally linked to our system of democratic politics, how is it protected in our legal system? Is there in fact a right to protest? This is a difficult question for a legal system that is federal in nature and lacking a bill of rights. But is it too easy then to say that there is no right to protest because it cannot be found in the Australian constitution?
There is no free standing right to protest, but protest is protected indirectly and directly by the law. Firstly, the common law protects protest as a fundamental right and freedom, which in combination with an interpretive tool – the principle of legality – can mean that laws affecting protest might be interpreted restrictively.
Secondly, even without a bill of rights, the Australian constitution provides indirect constitutional protection for protest – as political speech – via the implied freedom of political communication. Australian case law on the implied freedom of political communication is confusing and to some extent unresolved. But with the right set of facts, there is the possibility of constitutional protection for protest.
The High Court first addressed this question in a case about duck shooting protests, where the majority of the judges recognised the activity of the protestors as being capable of constituting political communication, but found that restrictions on that protest were lawful as they were directed to the important countervailing rationale of safety.
A similar approach was taken in the more recent Occupy Sydney case in the Federal Court where laws prohibiting camping or staying overnight in Martin Place were found to be valid as they were directed to ‘the legitimate ends of maintaining public health, safety and amenity in a high use public area, and preserving the ability of all members of the public to use the area’.
Notwithstanding the occasional recognition of protest as an object for legal protection, many of the cases illustrate the difficulty of balancing this with other interests at stake, notably public amenity, health or safety. The lofty rhetoric of speech protection rarely translates to legal success for protestors in a constitutional context. Conceptually, protest straddles categories ranging from speech to association and assembly, but it also struggles to achieve constitutional protection when operating as a ‘strategy of rupture’.
Thirdly, protest is protected in various statutes regulating police powers, public order and local government. An example of such protection is found in section 200 of the Law Enforcement (Powers and Responsibilities) Act 2002 in NSW. The accompanying section 199 creates an offence for failure to comply with a direction. Section 200 provides that a police officer is not authorised to give such a direction in relation to ‘an apparently genuine demonstration or protest’.
The difficulty with these kinds of laws is that they are often subject to the discretion of relevant authorities. You might end up being able to establish your ‘right’ to protest in any given context, but this could involve significant legal risk, the possibility of arrest and conviction or civil penalty.
Protest can make history, it can speak truth to power, it can change the legal system itself, but it is indirectly and rather poorly protected. Protest, like democracy, is often messy, disruptive, inconvenient and even annoying, but as with free speech more broadly, it deserves more formal recognition and legal protection in Australia.
Post by Daniel Joyce, UNSW Law
Dr Daniel Joyce is a Lecturer at UNSW Law. He is Project Director for the Digital Media and Human Rights Project at the Australian Human Rights Centre.