The legal framework surrounding protests in New South Wales is grounded in common law principles, most notably the right to peaceful assembly. However, the complexity of this right and the various legal nuances surrounding it raise important questions about the extent to which individuals can legally protest in NSW. Whilst the state recognises the common law freedom of assembly, which aligns with the implied freedom of political communication under the Australian Constitution, this right is far from absolute.
In NSW, there is no explicit statutory right to protest. Instead, the legal foundation is based on the common law freedom of peaceful assembly, which allows people to gather and express their views in public. This is supported by the implied freedom of political communication under the Australian Constitution, which safeguards public assembly as a critical form of political discourse. However, this freedom is qualified—it permits peaceful protests but does not protect activities that violate other laws. For instance, protesters engaging in actions such as blocking roads, trespassing, damaging property, or committing violence could face legal consequences, regardless of the cause of the protest.
A significant legislative tool in managing public protests in NSW is Part 4 of the Summary Offences Act 1988. This part outlines a process for protesters to seek authorisation from the police, which offers certain legal protections, such as protection against charges for obstruction. However, the absence of such an authorisation order does not make the protest itself illegal. The right to protest remains intact, even if a protest lacks authorisation, though participants may still face charges related to their conduct during the protest.
What makes the NSW legal framework distinct is its lack of a clear statutory right to protest, unlike other jurisdictions such as Queensland. The Peaceful Assembly Act 1992 in Queensland, for example, expressly enshrines the right to peaceful assembly, with certain limitations based on public safety and order. Similarly, the ACT and Victoria recognise the human right to peaceful assembly through their respective human rights charters, providing additional legal protections for protests in those jurisdictions.
In recent years, the expansion of powers available to law enforcement, especially in the context of protests, has raised concerns about potential overreach. Police in NSW have wide-ranging powers to address public disorder, including under the Law Enforcement (Powers and Responsibilities) Act 2002, and can charge protesters for offences such as obstructing traffic or causing disruption to public services.
Notably, in 2022 the NSW Parliament passed the Roads and Crimes Amendment Act 2022 (‘the Act’). The Act introduced section 214A of the Crimes Act 1900, which targets protests near major facilities like ports or railway stations. Moreover, the Act expanded the offence in section 144G of the Roads Act 1993 to include major roads. The scope and impact of the Act was subject to legal challenge in the landmark case of Kvelde v State of New South Wales ([2023] NSWSC 1560). In ultimately concluding that some parts of the legislation were unconstitutional, the Supreme Court found that the Act infringed on the implied freedom of political communication provided by the Australian Constitution. His Honour Justice Walton cited the 2017 case of Brown v Tasmania (2017) 261 CLR 328 (at [88]) in finding that the Commonwealth Constitution protects the ‘free expression of political opinion, including peaceful protest, which is indispensable to the exercise of political sovereignty by the people of the Commonwealth.’ Kvelde highlights the tension between maintaining public order and protecting the right to protest.
This legal landscape underscores a critical tension in NSW’s approach to protest regulation: the balance between protecting public order and safeguarding the democratic right to protest. While peaceful assemblies are a cornerstone of democratic expression, the extent to which they are permitted without legal consequence depends heavily on their alignment with existing laws. The right to protest in NSW, while recognised, is constrained by a complex web of statutory and common law provisions, and its exercise is often influenced by evolving judicial interpretations and the actions of law enforcement.
Ultimately, the issue of anti-protest laws in NSW illustrates the ongoing debate over the limits of civil liberties in a democratic society. As protests become an increasingly common form of political expression, the legal system must continue to navigate the fine line between preserving public order and ensuring that the right to protest remains a meaningful and accessible tool for all citizens.
Should you or someone you know be charged with an offence, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney, NSW (02 9696 1361), Canberra (02 5104 9640), Perth (08 6255 6909) or Northern NSW (02 5552 1902) to make an appointment to speak to one of our lawyers.
