Australia’s Human Rights Law Centre published a report on Wednesday finding that the ability to protest in Australia has been eroded by anti-protest legislation over the last two decades. The report, entitled Protest in Peril: Our Shrinking Democracy, analysed and compiled every bill which affected protests in each Australian jurisdiction over the last 20 years and found that 49 laws inhibiting protests have been enacted by federal, state and territory parliaments.
According to the report, New South Wales (NSW) has enacted the highest number of anti-protest laws over the period, the most recent instance being the Roads and Crimes Legislation Amendment Act 2022, which inserted section 214A into the Crimes Act 1900 criminalising damage or disruption to a major facility. Previous legislation covered disruption on major bridges or tunnels. In contrast, the amended legislation has a significantly broader operation – having the practical effect of criminalising all protests without authorisation on major roads, train stations, ports and public and private infrastructure. The offence also carries a potential $22,000 (AUD) fine or a maximum two-year prison sentence.
Environmental, climate and animal rights activists are the most consistently targeted by the anti-protest legislation, the report also found. However, because of the “often vague and poor drafting of offences like “obstructing a road”, “preventing a business undertaking”, or “causing annoyance” to participants of a meeting their application extends to all movements, the report said. Another key finding of the report is that several anti-protest laws were introduced, imposing blanket bans on protesting and the carrying of banners or signs specifically for major events such as the Melbourne Commonwealth Games and the Pope’s visit to Australia.
In Australia, there is no constitutionally protected right to protest like in the US. Instead, there is the implied ‘freedom of political communication’, which limits federal and state legislation from burdening political communication. Laws which do burden this freedom may still be constitutionally valid if they are proportionate to achieving a legitimate legislative objective. International law such as the International Covenant on Civil and Political Rights (ICCPR) to which Australia became a signatory in 1972, and the country’s domestic law and several state statutes such as the Victorian Charter of Human Rights do however provide some legal foundation for the right to protest in Australia.
Nikita White, an Amnesty International activist said, in response to the report:
“[t]oday we face an unprecedented attack on people’s rights to protest; from the violent repression of protests around the world, to laws in Australia that impose prison sentences and tens of thousands of dollars in fines on people taking part in non-violent civil disobedience. In the face of this unprecedented attack on the right to protests, Amnesty International calls on governments to change course, and to send a clear message that protests will be protected and respected.”
Other human rights organisations have called on Australian jurisdictions in the past to stop anti-protest legislation from being enacted and for the federal parliament to follow Australia’s Parliamentary Joint Committee recommendations to enact a human rights bill which would give greater protection to the ability to protest.
