Though news headlines over the weekend were dominated by the infamous G20 summit talks, the largest gathering of the world’s most influential political leaders attracted a number of protests in and around the Brisbane CBD.
Police ended-up making several arrests over relatively minor offences, including persons failing to state their name and address.
With protests and demonstrations being an important part of our freedom of expression, it can be helpful to know your rights when it comes to engaging in protests in NSW.
Know your rights
Many assume that in Australia, the right to protest is a natural incidence of the right to free speech or freedom of political communication.
However, there is no explicit right to freedom of speech or freedom of political communication under the law – rather these are implied rights.
This means that there is essentially no right to protest in NSW.
In fact, section 545C of the Crimes Act 1900 (NSW) makes it a criminal offence to participate in an unlawful assembly – which is punishable by a maximum term of 6 months imprisonment.
The requirements for a ‘lawful assembly’ are outlined in sections 22 to 27 of the Summary Offences Act 1988 (NSW).
Provided that the assembly is ‘lawful’, are supposed to only intervene to prevent offences or other harm to the general public.
Should you be approached by police at a protest, it’s important to know your rights.
Here are answers to some common FAQs when it comes to protesting:
- Do I have to give police my personal details such as my name and address? Generally, you will not be obliged to speak to police or provide them with any personal details, unless they reasonably believe that you committed an offence or witnessed a serious crime. There are certain exceptions, including where you are suspected of a ‘terrorism-related offence’. The law also says that you must provide police with your name and address after they arrest you.
- What is a ‘move on direction?’ At some protests, police may order you to ‘move on’ from a certain area or refrain from doing something. They can only make these directions where you are obstructing people or traffic, harassing or intimidating people, acting in a way that may cause fear to others or possessing, receiving or supplying drugs. Police must also notify you of their name and police station, tell you the reason for the move on direction, and inform you that if you disobey the order, it may count as an offence. If you refuse to move on, they must ask you again – it is only after they order you to move on again that they can fine you or charge you.
- When can police arrest me? Police may only arrest you if they reasonably suspect that you have committed an offence, or you are about to commit an offence, or where they have a warrant for your arrest or know or reasonably suspect that you have breached your bail conditions.
- What rights do I have if I am arrested? Police must inform you that you are under arrest and what you have been arrested for. They must only use reasonable force in arresting you – what constitutes ‘reasonable force’ depends on the circumstances, but it must only be enough to prevent you from resisting arrest. When arresting you, police must also inform you of your right to silence and your rights. Once you are taken back to the police station, you must be given the opportunity to contact family or friends or a lawyer. You must also be given the chance to have a lawyer present if you submit to police questioning, however you are not obliged to speak to police or take part in an interview. In fact, it’s often advisable not to speak to police until you’ve sought legal advice. Finally, you must be given the opportunity to receive medical assistance if you are sick or injured. Police must also provide you with food, water and access to a bathroom.
- How long can police hold me after I have been arrested? Police are only able to hold you in custody for a ‘reasonable period,’ which cannot exceed 4 hours. After this period, they must charge you with an offence or release you. Where they are able to obtain a warrant from an authorised justice, they may extend this period by another 4 hours. The ‘reasonable period’ will not include ‘time-outs,’ which is time taken to bring you to the police station, arrange to speak to a lawyer, doctor or interpreter, receive medical treatment, go to the bathroom, sober up and so on.
If police do not perform their obligations and duties in accordance with the law, or if you are denied your rights, you can lodge a complaint with the NSW Ombudsman.
If you are charged with an offence and it is found that police acted outside their legal limits, a good lawyer can push to have the charges dropped or thrown out of court on this basis.
An experienced lawyer can also fight to have costs awarded in your favour in certain situations.
What are ‘public disorder’ offences?
‘Public disorder’ offences are those where there is some form of ‘public disturbance’ – these include affray, riot and violent disorder.
Riot refers to situations where there were 12 or more persons present together who used or threatened unlawful violence.
The prosecution must also prove that the group used or threatened the unlawful violence for a common purpose – for example, for some religious or ideological cause.
It must also be proved that the conduct of the group as a whole would have cause a person of ‘reasonable firmness’ to fear for their safety.
The maximum penalty for riot is 15 years imprisonment.
Affray essentially refers to situations where you threaten ‘unlawful violence’ towards another person, which would cause a person of ‘reasonable firmness’ to fear for their safety.
Affray carries a maximum penalty of 10 years imprisonment.
The offence of violent disorder, which is very similar to affray, involves three or more persons acting together in using or threatening unlawful violence towards another person or their property, where this conduct would cause person of reasonable firmness to fear for their safety.
It is a summary offence and carries a maximum penalty of 6 months imprisonment and/or a fine of $1,100.
It’s important to remember that you may be charged with a public disorder offence even if there is no-one else present at the scene.
Further, despite the misleading name, you may be charged with a public disorder offence where you commit the offence in private.
Finally, if you are arrested or charged with a public order offence, it’s important to get an experienced criminal defence lawyer on your side who can advise you of your rights and how to fight the charges.
