RULE OF INSTITUTE OF

Freedom of Expression & the Rule of Law in Australia Contents

The Rule of Law and of Speech 2

Express and Implied 3

The Lange Test 4

Coleman v Power [2004] HCA 39 5

Offensive Language and 6

Monis v the Queen [2013] HCA 4 8

Adelaide Street Preachers 9

The Right to Assemble 10

When Assemblies Go Bad 11

Public Assemblies in NSW 12

Public Assemblies in QLD 14

Greenpeace Coal Loader 16

Occupy 17

NSW Powers: ‘Move on’ Directions 18

The Rule of Law Institute of Australia is an independent not-for-profit organisation which promotes discussion of rule of law issues in Australia. It seeks to uphold transparency and accountability in and strongly supports the presumption of innocence, independence of the and procedural fairness in the Australian legal system.

For further information visit our website: www.ruleoflaw.org.au Have a question about this resource or a rule of law issue? Ask us on Facebook or Twitter: ‘Rule of Law Institute of Australia’ / @RoLAustralia 2 Freedom of Expression and te Rule of Law in Australia T opinions, and is often instrumental free to speakor write your ideasor Freedom of speech the ruleof law. particularly important inmaintaining of freedomof expression, andare to assemble Freedom of speech Freedom of Speech express their ideasandopinions. which relate to peoplebeingableto category of rights and Freedom of expression isabroad What isFreedomof Expression democratic processes 2) thelaw canbereformed through when thelaw isbroken 1) alegal dispute should beresolved which allow: protected by formal in Australia are rights are the best way to protect the ruleof law andlegal processes standards. The UDHRsuggests that Rights the International agreements suchas following thelaw. with The Rule of Law andFreedomof Speech protected by theruleof law,” oppression, that humanrights should be resort, to rebellionagainst tyranny and be compelled to have recourse, asalast “Whereas itisessential, if manisnot to Universal Declaration of Human responsibilities . (UDHR) promote (UDHR) humanrights be protected.be All way for rights andfreedomsto he rule of law arecentral aspects provides the best legal processes , which means , which andthe means to be - UDHR(1948) rights human come right

narrower than what peoplecommonly of political communication in theform of an speech” inthe Australian found anarrow protection for “free The criminal offences. violence or offensivebehaviour as speech, andeven definesthreats of the law controls different types of from alegal point of view since speech that we have alegal right to There isthe view inthecommunity way thecountry isgoverned. opinion about government, and the in ensuringpeople can express their participate in . is maintained and that citizens can important inensuring theruleof law These rights andfreedoms are freedom of political communication. people beingableto exercise their 10), which isan important aspectof with the right to assemble (see page The second sectionof thisbookdeals The Right to Assemble which it freedom of political communication the Australian Constitution andthe whether alaw is incompatible with hascreated to decide The Lange Test isatest theHigh matters inpublic. people’s ability to discusspolitical government making that restrict freedom that acts as abreak on the given to peopleindividually, but a in the Australian Constitution that is This freedom is not a understand asfreespeech. of Australia implies in Australia. This isnot true . implied freedom express right . This is . This has free of Law? the Rule What is preserve humanrights. noted as being the best way to Maintaining theruleof law isoften equality before thelaw be controlled by thelaw to ensure which requires theuse of power to The rule of law LAW Rights which are written into law Express rights are written into law: There aretwo ways in which rights should beprotected. what extent aparticular freedom enforcing rights anddecidingto be protected. This involves and freedomsallows themto The law definespeople’s rights legal system arebased. assumption on which a law and the law, but exist because they are an Rights which are not defined in Implied rights not to betreated inacertain way. or ‘freedom of’ something, or right and areclearly definedas‘right to’ ( a) right doesitimply? Label thefollowing statements asexpress or impliedrights. If implied, what Questions Express andImpliedRights is a legal concept Everyone hastheright to recognition asaperson before the law Article 6-UDHR . date with theneedsof . ensures that thelaw remainsupto through The process of changingthelaw is just and want to follow it. Ideally peopleshould feel thelaw they may not want to follow it. If peoplebelieve thelaw isunjust, GO VERNMEN democratic processes LA W The principlesinthe ) pyramid areessential parts of theruleof law in Australia. T All areimportant in promoting con dence in Government, and The checks ontheir use of power. of government andthat there are balanced between the three arms Australia ensures that power is The act according to thelaw. that theLegislature of the Australian Constitution and important inensuringtheintegrity protecting therights of individuals.

LAW LAW LAW in Operation of Judiciary the ruleof law promotes a stable economy Judiciary and happy isespecially citizens. and Executive Can we assumepeoplehave the the law makesmurder acriminal or ju unless suchkillingisauthorised It is 1899 (QLD): being unlawful - Criminal Code Section 291 - Killing of a human inherent Every humanbeinghasthe Rights: Covenant onCivil andPolitical Article 6.1of theInternational of his[or her]life. one shall bearbitrarily deprived shall beprotected by law. No right to not bekilledbecause 2009 (Cth) unreasonable.’ ( hours...if they are refuse to work additional c) (NSW) years.( liable to imprisonment for five otherwise provided for, be except inthecaseshereinafter punishable likelarceny, shall, offence by this Actmade larceny, or any indictable b) unlawful to kill

stified or excused by law. ‘The employee may Whosoever commits right to life s117 Act 1900 ) offence? ) any person Fair WorkAct . This right . This 3 Freedom of Expression and the Rule of Law in Australia 4 Freedom of Expression and te Rule of Law in Australia read down no longer a law. A law can also be invalid part canbe to beincompatible in whole or Constitution. A law which isfound the Australianincompatible with used to decide whether alaw is In practice theLange Test is responsible government? Constitution’s ideasabout the Australiancompatible with it reasonably appropriate and the purpose of thegivenlaw, is 2) If itdoes, with referenceto government or political matters? freedom of communication about 1) Does the law effectively burden The test asks thefollowing: Constitution. communication the deciding if alaw interferes with High Court established a test for Commission [1997] HCA 25 In Lange Test The dismiss thechallenge. answer to is Q2 yes, thecourt will will dismissthechallenge.If the Q1 is no, it will not consider and Q2 If thecourt findsthat theanswer to Australian Constitution. so itisnot incompatible with the Lange vLange Broadcasting Australian implied freedomof political .

When thisoccurs thelaw is to clarify itsmeaning struck offor declared inthe Australian because itisincompatible Australian Constitution The law is with the the struck off

go to second court makes an order to... question appropriate andcompatible YES responsible government? ideasabout NO Q2. Q2. with the Australian with Is thelaw reasonably Q1. communication? burden freedom The law is“ that itisnot incompatible of political Does thelaw with the Australian with Constitution read down dismissed dismissed challenge challenge YES NO ” so ” so obstructing police. Coleman’s conviction for assault and The High Court did not interfere with Mr Power. to follow in cases similar to Coleman v courts inQueensland would berequired established a which all lower that Section7remainedlaw, andthecase to political communication. This meant the Vagrants Act sothat itdidnot apply over citizens,theHighCourt the charge.Given wide power of police political communication anddismissed police isa valid useof thefreedomof The HighCourt found that criticising Power. after ascuffle between himand Constable assaulting and obstructing a police officer lying bastards”. He was also convicted of Brendan Power asoneof the“slimy identifying local policeofficer Constable to know your corrupt type coppers” and out leaflets in Townsville Mall stating “Get and Other Offences Act(Qld) convicted under the Student Patrick Coleman was chargedand Coleman v Power [2004]HCA 39 a similar offence. This Act was repealed in2004. The shall beliableto apenalty of $100or to imprisonment for 6months. insulting manner; (e) behaves inariotous, violent, disorderly, indecent, offensive,threatening, or (d) uses any threatening, abusive,or insulting words to any person; (c) usesany profane, indecent, or obscene language; (b) writes or draws any indecent or obscene word, figure,or representation; (a) singsany obscene songor ballad; who might betherein, and whether any person isthereinor not, could view or hear- (1) Any person who, inany publicplaceor sonear to any publicplacethat any person Vagrants GamingandOther Offences Act1931(QLD) -s7 Vagrants Gaming for handing read down Summary Offences Act 2005 (QLD)

because itisincompatible Australian Constitution The law is with the struck off

go to second court makes an order to... question appropriate andcompatible YES responsible government? NO Constitutions ideasabout Q2. Q2. now contains with the Australian with Q1. Is thelaw reasonably communication? burden freedom The law is“ that itisnot incompatible of political Does thelaw with the Australian with Constitution read down dismissed dismissed challenge challenge YES NO ” so ” so 5 Freedom of Expression and the Rule of Law in Australia 6 Freedom of Expression and te Rule of Law in Australia • • • following reasons: that the word was offensive for the The was not satisfied he calledapoliceofficer a‘pr**k’. Suburbs for fare evasion where upon at atrain station in ’s Eastern The accused,Mr Grech was arrested maximum fine was increased in 2014). community service(asof 2010,the of upto $660or upto 100hours of criminal offence whichcarriesafine 1988 (NSW) Under the language, anddismissedthecharge. by theaccused was not offensive made thedecisionthat the word used In R v Grech[2010]theMagistrate the law andcarriesacriminal penalty. place suchasatrain station isbreaking Using offensivelanguageinapublic s4A Summary Offences Act1988(NSW) was ‘offensive language’ under the for publictransport fare evasion Grech, when fined by apoliceofficer language used by the accused, Mr This casedealt with whether the NSW Local Court -3May 2010 R v Grech[2010] Offensive LanguageandFreedom of Speech accustomed to badlanguage their work andthat they would be offensive language aspart of that thepoliceofficer would hear this country.’ words and...isin common usagein ‘less derogatory nature thanother the word is considered to be of a general conversation be offended by the word pr**kin a ‘reasonableperson’ would not . Summary Offences Act Summary offensive languageisa offensive language was used by the dealt withwhethercase This QLD Court R v Kaitira [2010] magistrate that Mr Kaitira was not Mr Kaitira’s convinced the and he was arrested. swearing at police was anoffence girlfriend’s drink.He was told that patrolling thearea poured out his group of policeofficers who were Mr Kaitira swore at her twice after a The policeofficer gave evidencethat officer outside a Townsville night club. Bardon Kaitira, swore at apolice A 28 year old Mundingburra man, was not apublicnuisance. Court found that swearing at police In August 2010 Townsville Magistrates fine. of upto 6months inprisonand/or a s6(3) Summary Offences Act (QLD) 2005 public placeisanoffenceunder the Using offensivelanguageina in Townsville. exchange with policeat anight club accused, Mr Kaitira, duringaheated same situation?” same way astheaccused in the behave in the The question to askis“would a might behave inagivensituation. with how a ‘reasonable person’ conduct inquestion to becompared person’ isalegal fiction to allow the offensive language. A ‘reasonable test’ to decide whether something is court canusethe‘reasonableperson In thecaseof offensivelanguagethe dismissed by theMagistrate. The offensivelanguagecharge was and carriesacriminal penalty not! word asbeingoffensive languageor regardless of whether thelaw findsa appropriate useof languageapply schools or workplaces with regard to To beclear: if achargeisbrought to acourt. be considered as offensive language but that useof such words may not in places like a school or workplace, by peopleareallowed to beused which may be considered offensive This doesnot meanthat words offensive language. to beunlawful for thepurposes of an more offensive, arenot usually found by most peopleinthecommunity and others words usually considered suggests that words suchaspr**k, onoffensivelanguage considered to be. how offensive particular words are about which words areoffensive,and Community opinion varies greatly Expectations Offensive Languageand Community police asacceptablebehaviour. see usingoffensivelanguageagainst that people inthecommunity would the precedent set by this case and The police were concerned about the caseagainst him was dismissed. Summary Offences Act(QLD) a nuisanceto the publicunder the the rulesof conduct in and obscene, indecent or abusivelanguage; way if theperson usesoffensive, (3) (a)aperson behaves inanoffensive ... imprisonment. months Maximum penalty—10 penalty unitsor 6 nuisance offence. (1) A person must not commit apublic 6 Publicnuisance Section 6(3)-OffensiveLanguage Summary Offences Act2005(QLD) himself or herself inthemanner alleged reasonable excuse for conducting the court that thedefendant hada this sectionif thedefendant satisfies prosecution for anoffenceunder (2) It isasufficient defence toa Maximum penalty: 6penalty units. from, apublicplaceor aschool. language inor near,or within ‘(1) A person must not useoffensive (as it was in2010): Section 4a-OffensiveLanguage Summary Offences Act1988(NSW) in theinformation for theoffence.’ - - 7 Freedom of Expression and the Rule of Law in Australia 8 Freedom of Expression and te Rule of Law in Australia Monis v theQueen[2013]HCA 4 it would have been declared invalid and could have been struck off the books. If a majority of hadfound thisoffence was not compatible withthe Constitution upheld. court was Constitution. The court’s opinion was equally divided so thedecision of thelower This caselooked at whether acriminal offence was compatible withthe Australian What if theHighCourt cameto amajority decision? service eachinSeptember 2013. sentenced to 300 hours community Droudis pleadguilty and were each Court heard thecase.Monisand their appeal stood andtheDistrict Criminal Court of Appeal to reject court stands. The decisionof theNSW opinion thedecisionof thelower When theHighCourt isdividedin communication. communication protects offensive extent to which freedomof political it was not. A critical issue was the the Constitution, three found that compatible with offence was the Question 2. Three justices found that did not come to anagreement about The court appliedtheLange Test and Constitution. communication inthe Australian with thefreedomof political offence on the basis that it interfered in Afghanistan. They appealedthe relatives of Australian soldiers killed after sendingoffensiveletters to the were placedontrial for theoffence The appellants MonisandDroudis communication intheConstitution. constitutional freedomof political was consistent with the implied harass or causeoffence postal or similar serviceto menace, the criminal offence,under s471.12 of This casedealt with whether the Full Citation: Monis v theQueen& Anor; Droudis v theQueen& Anor [2013]HCA 4 Criminal Code Act (Cth) (seebelow), Using a because itisincompatible Penalty: Imprisonment for 2 years. offensive.’ circumstances, menacing, harassing or persons would regard asbeing,inall the communication, or both) that reasonable by themethod of useor thecontent of a (b) the person doessoina way (whether service; and (a) theperson usesapostal or similar ‘A person isguilty of anoffence if: Criminal Code Act (Cth) s471.12: harass or causeoffence Using apostal or similar serviceto menace, Australian Constitution The law is with the struck off

go to second court makes an order to... question appropriate andcompatible YES responsible government? NO Constitutions ideasabout Q2. Q2. with the Australian with Q1. Is thelaw reasonably communication? burden freedom

The law is“ that itisnot incompatible of political Does thelaw with the Australian with Constitution

read down dismissed dismissed challenge challenge YES NO ” so ” so the conviction against theCorneloup different andinthiscaseitmeant that court found itspurpose was quite with political communication. The question was not intended to interfere the Lange Test isthat theby-law in The critical point about thiscaseand Constitution. was compatible with the Australian legitimate purpose for thelaw and to the majority of thecourt, was a to ensuresafety. This, according prevent theobstruction of roads communication, itsobject was to law didburden thefreedomof the Court found that while theby- the Lange Test, themajority of reached the High Court. Applying A challengeto their conviction ladders andtrestles. structures suchasfences,hoardings, or drivinglivestock anderecting vehicles, collect donations, leading also prohibited usingroads to repair road to passers-by. The sameby-law or distributing printed matter onany preaching onaroad without apermit from haranguing, canvassing or Council which prohibited people breaching aby-law of Adelaide City They were convicted andfined for Adelaide. middle of Rundle Mall intheheartof Corneloup, who preachedinthe Church”, CalebandSamuel who arepreachers of the“Street This caseconcerned two brothers Corporation of theCity of Adelaide [2013]HCA 3 Full Citation: Attorney-General for theState of South Australia v Adelaide Street Preachers brothersupheld. was because itisincompatible Australian Constitution The law is restriction shall not apply to any handbill or or other printed matter, provided that this or passer-by any notice, handbill,book, 2.8 giveout or distribute to any bystander ... and for thepurpose of aReferendum; Government or duringthecourse the course of aFederal, or Local or with theauthority of acandidate during and any survey or opinionpoll conducted by the Council known asa“Speakers Corner” apply to adesignated areaasresolved by poll provided that thisrestriction shallnot business or conduct any survey or opinion 2.3 preach,canvass, harangue, tout for any road:- 2. Noperson shall without permissionon City of Adelaide Council by-law: purpose of aReferendum. or distributed duringthecourse andfor the Election or to ahandbill or leaflet givenout of aFederal, State or Local Government authority of acandidate duringthecourse leaflet givenout or distributed by or withthe with the struck off

go to second court makes an order to... question Q1. appropriate andcompatible YES responsible government? Constitutions ideasabout NO Q2. Q2. freedom of political Does thelaw burden communication? with the Australian with Is thelaw reasonably The law is“ that itisnot incompatible with the Australian with Constitution read down dismissed dismissed challenge challenge YES NO ” so ” so 9 Freedom of Expression and the Rule of Law in Australia 10 Freedom of Expression and te Rule of Law in Australia and people. being prosecuted for obstructing traffic assemblies which prevent them from protections to participants in These legal processes grant legal authorised publicassembly. a legal process for applying to hold an Assembly Act 1992(QLD) to hold anassembly, andthe legal process to seeklegal protection Offences Act1988(NSW) public assembly. InNSW the each have different laws relating to The Australian States and Territories for a variety of other reasons. commemorate an event, to , or an assembly could beto celebrate or common purpose. The purpose of who gather inapublicplacefor a A public assembly is a group of people What isaPublic Assembly? with thelaw. accept the responsibility to comply law requiresthat those who assemble about anissue.However, theruleof in publicandexpress their opinion because itallows peopleto gather The right to assemble is important influencing thedirection of . the ruleof law, democratic life,and accountability ingovernment under is anessential aspectof upholding Free and open criticism of the law administration of thelaw’. fear for thepurpose of criticisingthe should be able to ‘assemble without Australia’s principles states that people One of the Rule of Law Institute of responsibilities under thelaw. the relationship between rights and The right to assemble highlights The Right to Assemble also provides a Summary Peaceful

provides assembly. have theright to peaceful public states that peopleinQueensland express right Act 1992(QLD) however the process to seekprotections, Queensland hasasimilar legal right to assemble. 1988 (NSW) under the protections to hold anassembly have the an The right to peaceful assembly is impliedright Queensland andNew South Wales Compared right to apply Summary Offences Act Summary but have noexpress Peaceful Assembly inNSW. People which directly provides an for legal them with publicorder offences. police canusepowers or charge responsibilities under thelaw the an assembly fail to uphold their When peopleparticipating in issues. vehicles, and create public safety unlawfully obstruct people or Some assembliesturn violent, When Assemblies GoBad offence. unlawful violence isguilty of an persons usingor threatening her personal safety, eachof the at thesceneto fear for hisor of reasonablefirmnesspresent is suchas would causeaperson conduct of them(takentogether) unlawful violence andthe present together useor threaten (1) If 3or morepersons who are Violent disorder -s11A (NSW) Summary Offences Act1988 does not hitor falls short). capable of causinginjury which a person amissileof akind example, throwing at or towards any other violent conduct (for injury or damagebut includes causing or intended to cause (b) itisnot restricted to conduct and violent conduct towards persons, towards as well as (a) itincludes violent conduct conduct, sothat: “violence” meansany violent (7) Inthissection: ... months. units or imprisonment for 6 Maximum penalty: 10penalty offences, someinclude: conduct arepunishable with criminal participants are,certaintypes of assembly, or how well meaningthe Regardless of the purpose of the offence. to whether they have committed an of anassembly arejudgedaccording The behaviour of individual members and together for acommon purpose; (a) 3or morepersons arepresent (1) If— Unlawful assembly (QLD) -s10A Summary Offences Act2005 imprisonment. (b)otherwise—1 year’s or imprisonment; violence—2 years ought reasonably to know of, the (ii) theoffender knows of, or and violence to aperson or property; assembly hasused unlawful assembly after anyone inthe participate intheunlawful (i) theoffender continues to (a) if— Maximum penalty— offence. each of thepersons commits an used to aperson or property; that unlawful violence will be in the vicinity to reasonably fear together would causeaperson (b) theconduct of themtaken 11 Freedom of Expression and the Rule of Law in Australia 12 Freedom of Expression and te Rule of Law in Australia • • Commissioner andtheCourts. subject to theapproval of thePolice implied right is aright to peaceful assembly -this for apeaceful assembly Legal processes that exist to allow the Notice of Intention. provided they actinaccordance with people or vehicles inpublicspaces, of offencesrelating to obstructing participating cannot be found guilty does not oppose theassembly those of Police. If thePolice Commissioner submit itto the NSW Commissioner Assembly’ ‘Notice of Intention to Hold aPublic A person must fill out a form calleda Commissioner of Police or aCourt. public assembly authorised by the for groups who apply to have their of NSW. Legal protections exist is not anexpress right inthelaw The right to peaceful assembly Public Assemblies inNSW Notice of Intention. the assembly complies with the the NSW Police approve and of peopleor vehicles provided offences relating to obstruction protection from prosecution for Offences Act1988(NSW) assembly under the the right to apply to hold apublic Rights andProtections (seenext page) and isstrictly definedand imply Summary there • • it would receivenolegal protections. The assembly could still goaheadbut this decision. prohibited thereisnoright to appeal If thecourt orders theassembly to be assembly ‘prohibited.’ can apply to aCourt to have the opposes theassembly, thePolice arranged. If theCommissioner still the organiser andthePolice must be the assembly ameeting between If thePolice Commissioner opposes assembly? What if thePolice oppose an protections the assembly loses itslegal of Intention place according to the If theassembly doesnot take Intention way described on the the assembly takesplaceinthe (1988) under the the organiser of the assembly isresponsiblefor ensuring Responsibilities (see next page). Summary Offences Act Summary those involved in Notice of Notice NOTICE OF INTENTION TO HOLD A PUBLIC ASSEMBLY 2 The purpose of the proposed assembly is......

...... Summary Offences Act 1988 ...... To the Commissioner of Police This document is a State purpose Notice of Intention which is 1 I, ...... 3 The following special characteristics associated with the assembly would be Name completed by the organiseruseful for the Commissioner of Police to be aware of in regulating the flow of of ...... of a public assembly...... and traffic or in regulating the assembly: Address sent to the NSW Police * (i) There will be ...... (number) of vehicles and/or* floats on behalf of ...... Commissioner. It becomes...... involved and their type and dimensions are as follows: Organisation an agreement between the police and the organiser ...... notify the Commissioner of Police that on the ...... that the assembly...... will be Day ...... of ...... conducted in...... a certain way. Month/Year * (ii) There will be ...... (number) of bands, musicians, entertainers etc entertaining or addressing the assembly it is intended to hold: * (iii) The following number and type of animals will be involved either: in the assembly

(a) a public assembly, not being a procession, of approximately ......

...... persons which will assemble ...... Number *(iv) Other special characteristics of the proposed assembly are as at ...... follows: Place at approximate ...... am/pm ...... Time ...... and disperse at approximately ...... am/pm Time 4 I take responsibility for organising and conducting the proposed public assembly. or 5 Notices for the purposes of the Summary Offences Act 1988 may be served on me at the following: (b) a public assembly, being a procession of approximately ...... Number 13 Address: ...... personsFreedom which of will Expression assemble and at the...... Rule of Law...... in Australia Place ...... at approximately...... am/pm Time ...... Post Code......

and at approximately ...... am/pm the procession will Telephone: ......

commence and shall proceed...... Signed: ......

Capacity/Title...... Date ...... Specify route, any stopping places and the approximate duration of any stop: and the approximate time of termination. A diagram may be attached. * Delete as applicable 14 Freedom of Expression and te Rule of Law in Australia place. charged with obstruction inapublic of theauthorisation they cannot be lawfully andmeet theconditions people intheassembly behave If anassembly isapproved, the Commissioner of Queensland. local authority and/or thePolice example next page) to therelevant Public Assembly a ‘ for their assembly they must submit like to apply for legal protections If aperson, ‘theorganiser’ would lawful. compulsory for anassembly to be for their assembly, thisisnot groups to apply for legal protections While alegal process exists for law. an The right to peaceful assembly is Public Assemblies inQLD • • Public Assembly Notice of Intention to Hold of the assembly complies with the of peopleor vehicles provided offences relating to obstruction protection from prosecution for Assembly Act 1992(QLD). assembly under the an express right to hold apublic Notice of Intention to Hold a express right Rights andProtections ’ letter or form (see under Queensland Peaceful • • an organiser cannot reapply but If aMagistrate refusesauthorisation the authorities. organisers, thegeneral publicand to occur between the (QLD) 1992 The assembly. than 5days before theproposed the notice of intention isgivenless to not be authorised, but only if to amagistrate for theassembly Police or local authority canapply proposed assembly thenthe If the authorities oppose a authorities oppose anassembly? What if thePolice or local authorisation. provided by thenotice of it will not have theprotection can still goaheadandbelawful decision. they canaskfor areview of the protections the assembly lose their legal Assembly of Intention to Hold aPublic place according to the If theassembly doesnot take holding apublicassembly freedoms of other people when and with regard to the rights and in regard to publicorder, safety the responsibility to obey the law

Peaceful Assembly Act Responsibilities However, theassembly those involved in requiresaprocess of Notice QUEENSLAND POLICE SERVICE Email: ......

ASSEMBLY DETAILS

Day: ...... Date: ...... NOTICE OF INTENTION TO HOLD A PUBLIC ASSEMBLY QP 0802 Place: ...... 08/11 Time participants assemble: ...... am / pm Time assembly to commence: ...... am / pm D2 Time assembly to conclude: ...... am / pm Expected number of participants: ......

Privacy Collection Statement Purpose of assembly: ......

The Queensland Police Service is collecting your information for the purpose of recording your intention to hold a public assembly. The collection ...... …………………………………………………………………………………………………………………………………. of this information is authorised by the Peaceful Assembly Act 1992. The information you provide will not be disclosed without your consent unless

such disclosure is authorised by law, including the Police Service Administration Act 1990, the Police Powers and Responsibilities Act 2000 and the Description of any sound amplification equipment to be used: ......

Information Privacy Act 2009. You have a right to access personal information that the Queensland Police Service holds about you, subject to any ......

exceptions in relevant . If you wish to seek access to your personal information or inquire about the handling of your personal information, IF ASSEMBLY IS TO INCLUDE A PROCESSION please contact the Queensland Police Service Right to Information and Privacy Unit by email at [email protected], by telephone 07 3364

4666 or by facsimile 07 3364 4675. Do you propose to use? Roads Footpaths / bikepaths

What is a ‘NoticeTime procession of Intention commences: to...... am / pm Time procession concludes: ...... am / pm

Hold a Public Assembly’?Proposed route: ...... (Please tick applicable box)

...... To: Commissioner of the Queensland Police Service a document filled out by the

organiser of a publicProposed assembly stoppage point(s): which ...... Relevant local authority is sent to the police commissioner...... Name of organisation: ...... It becomes an agreementLength of time at stoppage between point(s): ...... Name of organiser: ...... the...... police and the organiser that ...... Address of organiser: ...... the...... assembly will be conducted in a certain way. Do you propose to carry placards and/or banners? Yes No Contact details—Telephone no.: ...... Mobile no.: ...... Fax no.:...... I Email: ...... Details of any vehicles involved: ...... Name of person giving notice: ...... How many marshals are available to manage the movement of the procession? ...... Address of person giving notice: ...... How will marshals be identified? ...... Contact details—Telephone no.: ...... Mobile no.: ...... Fax no.:...... 15 Freedom of Expression and the Rule of Law in Australia 16 Freedom of Expression and te Rule of Law in Australia assembly isunauthorised and theassembly is‘causinganxiety’ to thepublic. apply for participants in authorised public assemblies but may be used if the Section 6of anxiety to others. police powers to ‘move on’ people when their behaviour may becausing Section 36of the Police ‘move on’ Powers andPeaceful Assembly ranged from $300 to $750. no conviction recorded, andfines Act 2005(QLD) fined under the The protesters were chargedand ‘unregulated highriskactivities’. They were charged with engagingin to protest against coal exports. highlight environmental issuesand Point coal terminal in and danglingfrom thetop of aHay Greenpeace spent 36 hours chained the environmental organisation In August 2009protesters from . those around them,or trespasson dangerous for the protesters and obstruct people or vehicles, are found to beunlawful becausethey assemblies which areprotests are lawful inQueenslandsometimes Although peaceful assembly is Act (QLD) 2000 Police Powers andResponsibilities Summary Offences Act(QLD) 2005 Peaceful Assembly1992 (QLD) Act Legislation Greenpeace Coal Loader Protests Peaceful Assembly1992 (QLD) Act Summary Offences . The majority had Police Powers andResponsibilities Act 2000(QLD)

Mackay

to to structure; of abuilding or a (c) climbupor down theoutside a building or structure; (b) BASE-jump or hang-glidefrom building or structure; (a) parachute or hang-glide onto a do any of thefollowing— (1) A person must not unlawfully Unregulated high-risk activities units or 1 year’s imprisonment Maximum penalty—20 penalty structure. (d) abseil from abuilding or Summary Offences Act(QLD) states that thisdoesnot 2005 s14 gives as apublicassembly. allowed themarchto occur legally The policeusedtheir compromise with theNSW Police. the Sydney CBDafter negotiating a from Town Hall to MartinPlacein Sydney protesters march Hold aPublic Assembly Police Allow Occupy Sydney to 5 November 2011 Local Government Act 1993(NSW) an offenceunder the Some participants charged with Martin Placeat 5aminthemorning. equipment removed by policefrom Occupy Sydney Tents andcamping Sydney Campout Police Remove anIllegal Occupy 22 October 2011 Local Government Act 1993(NSW) Legislation Occupy MartinPlace the council isguilty of anoffence.” with the termsof a notice erected by the areaof acouncil, fails to comply “1) A person who, inapublicplace within Section 632.1 see below: notice suchasasigninpublicplace, (NSW) The Signage inMartinPlace,Sydney CBD Local Government Act 1993 makesitanoffence to disobey a discretion s632.1 of the and

penalties for campingovernight While theprotesters could face free to communicate their views. the protesters were otherwise and useof apublicplace,and that of promoting publichealth, safety, and adaptedto servethepurpose law was reasonably appropriate Constitution. However, itfound the communication inthe Australian burden thefreedomof political Test, that thelaw dideffectively The Court found, per theLange Australia in2014. Act 1993 in the Federal Court of challenged theLocal Government The organisers of Occupy Sydney Council [2014]FCAFC 56 O’Flaherty v City of Sydney Full casecitation: other laws indoingso. provided they didnot breakany each morningandassembling, prohibition onthemarriving in MartinPlace,there was no 17 Freedom of Expression and the Rule of Law in Australia 18 Freedom of Expression and te Rule of Law in Australia 1 penalty unit=$ _____ 2 penalty units ‘move on’ directionisafine of The penalty for disobeying a to ‘move on’ directions. protests should not besubject genuine demonstrations or assemblies andapparently recognise that organised The limitations to thispower this power. police inrelation to theuseof for challengingtheactionsof power, and a process exists limits to thisdiscretionary defined. Section200provides is acceptableprovided itis well the useof discretionary power follow, under theruleof law general principlesthey must These laws givepoliceofficers move ondirection. a policeofficer could issuea and list every situation where and impossible to define is that it would beimpractical discretion. The reasonfor this to move onpeopleat their LEPRA givespolicethepower Assemblies Police Discretion andPublic NSW. responsibilities of police in which definesthe powers and (NSW). This isthemainlaw 2002 Responsibilities) Act Enforcement (Powers and directions under theLaw power to issue ‘move on’ The NSW Police have the NSW Police Powers: ‘Move on’ Directions forare what reasonable for givinga to aperson Guidelines can givea direction direction grounds Police who firmness, or to cause fear to person of reasonable the relevant conduct would besuchas another person or persons, so long as c) iscausingor likely to causefear to of another person or persons, or b) constitutes harassment or intimidation persons or traffic, or a) isobstructing another person or “relevant conduct”): in theplace(referredto inthisPart as that theperson’s behaviour or presence officer believes onreasonable grounds to aperson inapublicplaceif thepolice (1) A policeofficer may giveadirection relating to publicplaces Section 197 -Directions generally police powers Section 200-Limitation onexercise of purchasing of theprohibited drug c) stopping theobtaining, procuring, or supply, of theprohibited drug,or b) stopping thesupply, or solicitingto harassment, intimidation, or fear,or a) reducingor eliminating theobstruction, the circumstances for thepurpose of: under thissectionmust bereasonablein (2) A directiongivenby apoliceofficer (d) anorganisedassembly. (c) aprocession, or or protest, or (b) anapparently genuinedemonstration (a) anindustrial dispute, or officer togivedirectionsinrelation to: This Part doesnot authorise apolice person to possess. drug that it would beunlawful for the procuring or purchasing any prohibited d) isfor thepurpose of obtaining,

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