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NSW Contents RULE OF LAW INSTITUTE OF AUSTRALIA Freedom of Speech, and Right to Assemble in NSW Contents Rule of Law = Rights with Responsibilities 3 The Right to Assemble 5 Public Assemblies in NSW 6 Removal of a Public Assembly 8 Police Powers: ‘Move on’ Directions 9 Freedom of Speech and Political Communication 10 Freedom of Political Communication - Monis v the Queen [2013] 11 Offensive Language and Freedom of Speech 12 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 government and strongly supports the presumption of innocence, independence of the judiciary 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 The principles in the What is pyramid are essential parts of the rule of law the Rule in Australia. All are important in promoting confidence in Government, and of Law? protecting the rights of individuals. Operation of the rule of law promotes a stable economy and happy citizens. The separation of powers in The rule of law is a legal concept Australia ensures that power is which requires the use of power to LAW balanced between the three arms be controlled by the law to ensure GOVERNMENT of government and that there are equality before the law. checks on their use of power. Maintaining the rule of law is often The Judiciary is especially noted as being the best way to important in ensuring the integrity preserve human rights. of the Australian Constitution and that the Legislature and Executive If people believe the law is unjust, act according to the law. they may not want to follow it. Ideally people should feel the law Executive is just and want to follow it. Judiciary LAW Legislature The process of changing the law through democratic processes LAW ensures that the law remains up to LAW LAW date with the needs of society. Freedom of Speech, and Right to Assemble in NSW of Speech, and Right Assemble to Freedom www.ruleoflaw.org.au 2 RoLIA RULE OF LAW = RIGHTS WITH RESPONSIBILITIES The rule of law provides the best way for rights to be of breaking the law their freedoms can be taken away. protected. All rights come with responsibilities, which means following the law. International agreements such as the Universal Declaration of Human Rights (UDHR) promote Formal processes exist to deal with situations where human rights standards. The UDHR suggests that the law is broken. It is one of the most important the rule of law and legal processes are the best way to aspects of the legal system in Australia that a person protect human rights. should not be punished unless they have been found guilty of breaking the law. The purpose of human rights is to promote laws and legal processes which enforce rights and A person has the right to do what they want, as long responsibilities that prevent suffering, ensure people as they do not break the law. If they are found guilty are treated with fairness, and maintain a just society. EXPRESS AND IMPLIED RIGHTS There are two ways rights can exist in law: EXPRESS RIGHTS IMPLIED RIGHTS rights which are written into law and are clearly rights which are not defined in law, but exist because defined as ‘right to have’ or ‘freedom to do’ something, they are an assumption on which a law and the legal or right not to be treated in a certain way. system are based. Article 6.1 of the International Covenant on Section 18 - Murder and Manslaughter Defined Civil and Political Rights: - Crimes Act 1900 (NSW): Every human being has the inherent right to life. (1) (a) Murder shall be taken to have been This right shall be protected by law. No one shall committed where the act of the accused, or thing be arbitrarily deprived of his [or her] life. by him or her omitted to be done, causing the death charged, was done or omitted with reckless What is the express right in the law above? indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person... The right to __________________. What right is implied by the law above? If _________________ is a crime then it is implied that QUESTIONS a person has the right to _______________________. Label the following statements as express or implied rights. If implied, what right does it imply? • Everyone has the right to recognition as a person before the law (Article 6 - UDHR) • Whosoever commits larceny, or any indictable offence by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to imprisonment for five years. (s117 Crimes Act 1900 (NSW)) • ‘The employee may refuse to work additional hours...if they are unreasonable.’(Fair Work Act 2009 (Cth)) Freedom of Speech, and Right to Assemble in NSW of Speech, and Right Assemble to Freedom www.ruleoflaw.org.au 3 RoLIA 4 Legal Protections of Human Rights in Australia 1 The Universal Declaration of Human Rights (1948) - UDHR 2 The International Covenant on Civil and Political Rights (1966) - ICCPR Signed by Australia in 1972, ratifi ed in 1980. Th e UDHR was written SOFT LAW in 1948 as a response to the How do international agreements become law in Laws which are not legally horrors of the Second World Australia? binding but promote protection War. of human rights. When an international agreement is ratifi ed by Australia, Z it does not immediately become law. Australia has a ZZ Australia signed the UDHR Z dualist system which means the Parliament of Australia Whereas it is essential, if man is Z in 1948 to promote the pass it as a statute before it has eff ect in Australian law. not to be compelled to have re- An Australian importance of human rights. course, as a last resort, to rebel- Dr H.V. Evatt was How is the ICCPR legally binding on Australia? lion against tyranny and oppres- involved in the While it is a soft law, it sion, that human rights should be creation Australia must report to the United Nations Human of the UDHR is widely recognised as a protected by the rule of law... HARD LAW Rights Committee every four years on how the rights in Laws which are legally binding on conerstone of human rights the ICCPR are being implemented under Australian law. - Preamble to the UDHR (1948) law. sovereign states and aim to enforce protection of rights. 3 Human Rights and Australian Statute Law Human Rights vs Anti-Discrimination Laws 4 Australian Human Rights Commission (AHRC) Anti-discrimination laws provide a legal process for seeking compensation if an individual feels they have been treated Federal Court Sex Discrimination Act 1974 (Cth) unfairly because of their sex, race, age or disability. of Racial Discrimination Act 1975 (Cth Defi nitions of what constitutes Australia discrimination are narrow. Th is limits the situations in which they can be Disability Discrimination Act 1992(Cth) used. Discrimination laws concerned Under the Human Right Commission Act In the Federal Court a judge with racial vilifi cation have come into 1986 (Cth) the AHRC is the fi rst place a can hear anti-discrimination confl ict with the right to ‘free speech’. person must take their discrimination cases and award damages if a Age Discrimination Act 2004 (Cth) complaint. If the AHRC cannot resolve complaint is successfully proven. Enforcement and protection of a a complaint made under one of the right occurs when a person brings a discrimination acts then a person can complaint. pursue their complaint in the Courts. Developing Recognition of Human Rights in International Law Year = when the instrument was adopted by the UN 1948 - Th e Universal Declaration1966 - International of Covenant1966 on - Civil International Covenant1969 on - Economic, International Convention1979 on- Convention the on the Elimination1984 - UN ofConvention All Against1989 Torture - Convention on the1975 Rights - Declaration of the Child on the Rights2007 of Disabled- Convention Persons on the Rights of Human Rights and Political Rights Social and Cultural Rights Elimination of All Forms Formsof Racial of Discrimination Against Women Persons with Disabilities Freedom of Speech, and Right to Assemble in NSW of Speech, and Right Assemble to Freedom www.ruleoflaw.org.au RoLIA THE RIGHT TO ASSEMBLE To understand the relationship between rights and responsibilities it is essential to understand how laws and legal processes define and protect rights, as well as enforce the responsibilities which go along with them. Under the law of NSW there is no clearly defined THE PURPOSE OF LAW right to assemble, although there is a legal process which can give a public assembly legal Laws and legal processes exists to protect protections. rights and enforce responsibilities. The rule of law is concerned with ensuring WHAT IS A PUBLIC ASSEMBLY? all receive equal access to rights given to A public assembly is defined as a group of people them by law and that legal resonsibilities are who gather in a public place for a common enforced according to the law. purpose. The purpose of an assembly could be to celebrate or commemorate an event, to protest, or for a variety of other reasons. WHY IS THE RIGHT TO ASSEMBLE IMPORTANT? In NSW the Summary Offences Act 1988 (NSW) The right to assemble is important because it provides a legal process for applying to have a allows people to gather in public and express public assembly which gives legal protection that their opinion about an issue, provided protests prevents those involved from being prosecuted are peaceful and comply with the law.
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