Protest in Peril: Our Shrinking Democracy

By David Mejia-Canales, Human Rights Law Centre

Contents

About Protest in Peril

The right to protest is fundamental to our democracy. But governments across Australia have criminalised people who are peacefully protesting by proliferating a worrying number of anti-protest laws.The right to protest is in peril in Australia.

The Protest in Peril report analysed and compiled every single bill across Australia over the last two decades which has impacted upon the right to protest, and has found people’s ability to come together freely and peacefully to speak out on issues they care about is being steadily eroded in Australia.

Over the past two decades, 49 laws affecting protest have been introduced in federal, state and territory parliaments. New South Wales has introduced the most anti-protest laws, while South Australia has the toughest financial penalties with fines of up to $50,000 for common protests.

These laws have disproportionately targeted environmental defenders and people advocating for action on climate change.

The report recommends governments to:

repeal anti-protest laws;
ensure laws meet the minimum standards set out in the Declaration of the Right to Protest; and
introduce human rights acts across federal, state and territory governments

Introduction

Our hard-won freedoms of peaceful assembly and association are fundamental to our democracy.

Peaceful assembly encompasses various activities like meetings, sit-ins, parades, vigils, strikes, rallies, and of course protests, both in physical spaces and online. Similarly, our freedom of association gives us the liberty to interact with each other freely and organise collectively to express, promote, and defend our common interests, including by forming and joining trade unions. These rights are essential for exercising our other rights, which are also protected by international human rights law, including our rights to freedom of expression and participation in public affairs.

In this report, references to the “right to protest” refer to peaceful actions of both individual and collective expressions of opposing or reactive views and values. This includes actions that are spontaneous and coordinated, conducted online or offline. Protests may speak to any audience, including public authorities, private entities, or the general public. A peaceful protest may involve behaviour or expression that could annoy or offend; and it may also temporarily obstruct other activities. In short, the right to protest represents the individual or collective exercise of our universally recognised human rights, including our freedom of expression, peaceful assembly, association, participation in public affairs, freedom of thought, conscience, religion, cultural participation, and rights to life, privacy, liberty, security, and non-discrimination.

Peaceful protest is crucial for realising all of our other human rights. Australia has a long and proud history of protest movements which have won significant change, including preserving Tasmania’s Franklin River, the advancement of worker’s rights and trade unionism, the apology to the Stolen Generations, voting rights for women and Aboriginal and Torres Strait Islander people, and the advancement of LGBTIQ+ rights.

Some of us owe our human rights more to protest than to the goodwill of politicians.

The right to protest is particularly important for Aboriginal and Torres Strait Islander people and their ongoing calls for justice. Since colonisation, Aboriginal and Torres Strait Islander communities have fearlessly used protest as a way to fight for their right to self-determination, their land, air and water rights, an end to police violence and against the ongoing structural racism that continue to lock them out of justice.

Australia is a signatory to all of the major international human rights treaties which bind all Australian governments and their agencies to respect, ensure, and protect our human rights, including our right to peaceful protest.

Governments must also ensure that any restriction on our right to protest is in accordance with human rights law and is limited to what is strictly necessary and proportionate in pursuit of a legitimate objective.

Despite these clear human rights obligations, over the last twenty years, most governments around Australia have proposed and enacted laws to limit protest rights that are incompatible with our international human rights obligations.

Common elements of these laws are vague and ill-defined offences, excessive police powers, disproportionately harsh penalties, and the prioritisation of corporate interests, like forestry and mining, over the rights of people to access public land to voice dissent…

…The steady erosion of our right to peacefully gather on public spaces should concern all of us. Our ability to peacefully protest is fundamental to safeguarding democracy and for holding those in power accountable.

When this right is eroded or limited in a way that’s not compatible with international human rights law and principles, it not only limits the ways that we can voice our grievances, but it also undermines the democratic checks and balances which are essential for a healthy society.

This report provides a snapshot of how governments across Australia are failing to uphold our right to peaceful protest in accordance with international human rights law. The methodology involved thorough desktop research, including the analysis of Parliamentary Hansard, reports, legal databases, and newspaper articles, to identify legislative interventions that could substantially affect the right to freedom of assembly, between 2003 and 2023, even if they did not ultimately pass into law.

Trends Uncovered

A number of observable trends have emerged over the last 20 years. The state of greatest concern is NSW, which has enacted the highest number of anti-protest laws in the last 20 years. Conversely, the Australian Capital Territory stands out for its commendable efforts in protecting the fundamental right to protest.

The most consistently targeted activists by anti-protest laws were from the environmental, climate and animal rights movements.

But thanks to 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. For instance, in Western Australia, a law was proposed that made it an element of an offence to possess “a thing” to prevent the conduct of a business.

These laws often introduced excessive penalties, including prison time and fines of up to $50,000, for common forms of protest. A number of laws were introduced specifically for major events, like the visit to Australia by the Pope or the Naarm/ Melbourne Commonwealth Games. These laws imposed blanket bans on protests and banned items like banners or placards. Most of these laws lapsed immediately after the end of the major event, except for the laws governing the Commonwealth Games in Naarm/Melbourne. The repressive measures in those laws were in operation months after the conclusion of the games.

Throughout this report, case studies and profiles are presented to illuminate recent developments in anti-protest legislation across each jurisdiction, providing insights into their impact on protest movements.