THE RIGHT OF PEACEFUL ASSEMBLY IN THE A.C.T. Occasional Paper No. 8 February 1985 Australian Government Publishing Service Canberra 1985 © Commonwealth of Australia 1985 ISSN 0810-0314 ISBN 0 644 03893 4 Occasional Paper No. 1 Incitement to Racial Hatred: Issues Occasional Paper No. and Analysis, October 1982. 2 Incitement to Racial Hatred: The International Experience, October 1982. Occasional Paper No. 3 Words that Wound:. Proceedings of the Conference on Freedom of Expression and Racist Propaganda, February 1983, Occasional Paper No. 4 Compendium of Human Rights Courses in Australian Tertiary Institutions, August 1983. Occasional Paper No. 5 Aboriginal Reserves By-Laws and Human Rights, October 1983. Occasional Paper No. 6 The Teaching of Human Rights, August 1984. Occasional Paper No. 7 Epilepsy and Human Rights, October 1984. This is the eighth of the Human Rights Commission's Occasional Papers series. Occasional Papers are issued by the Commission from time to time to deal in depth with a particular problem or subject. The views expressed or implied in this Occasional Paper do not necessarily represent the views of the Human Rights Commission or its members on the subject and should not be identified as such. Printed by C. J. THOMPSON, Commonwealth Government Printer, Canberra Contents Page Nos PREFACE 1 Part I BACKGROUND Ch.1 Introduction 4 Ch.2 Anzac Day Legislation in the A.C.T. 11 1980-1984 Part II THE PRESENT STATE OF THE LAW Ch.3 The Perception of the Right of Assembly 20 Ch.4 Common Law Prevention and Control Measures 32 Ch.5 Statutory Prevention and Control Measures 69 Ch.6 Criminal and Tortious Liability 105 Part III THE RIGHT OF ASSEMBLY AND THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 142 Part IV CONCLUSION 176 Summary of Recommendations 184 Table of Cases 186 Select Table of Legislation 191 Bibliography 194 Appendix 1 Statistics on Demonstrations in the A.C.T. 207 Appendix 2 (a) Submission to the Department of Territories and Local Government 209 (b) Copy of Proposed Public Assemblies Ordinance225 ACKNOWLEDGEMENT This Occasional Paper was prepared by Mr Robin Handley, then a Lecturer at the Canberra College of Advanced Education, while he was attached to the Human Rights Commission under the Public Service Board's Interchange Program. It was completed by him after he had finished his attachment to the Commission. The Commission acknowledges, with gratitude and appreciation, the skill, time and effort put in by Mr Handley in preparing this Paper, both during the time he was with the Commission and afterwards. PREFACE In March 1982, the Human Rights. Commission instituted a public inquiry on the right to freedom to expression as set out in paragraphs 2 and 3 of Article 19 of the International Convenant on Civil and Political Rights and invited submissions from the public. Article 19(2) and (3) states:- 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. One area of concern revealed in the submissions received was the extent to which laws governing freedom of assembly restricted the right to freedom of expression. 2 2. The Human Rights Commission, noting that the right to peaceful assembly was a specific right guaranteed by Article 21 of the International Covenant decided to have a separate inquiry into the right of peaceful assembly in the A.C.T. Article 21 states:- The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. The inquiry was restricted to the A.C.T. because the Human Rights Commission's jurisdiction does not cover State legislation on this subject, and also because at that stage it was aware of pending changes to the relevant legislation in the A.C.T. 3. It invited Mr Robin Handley Lecturer at the Canberra College of Advanced Education who was then attached to the Human Rights Commission under the Public Service Board's Interchange Program to research the subject, consider public submissions received, and to prepare this Occasional Paper. Mr Handley had made a special study of the laws relating to public assembly as part of his research for his LL.M degree at the Australian National University. 4. Although the Occasional Paper concentrates on the laws relating to public assembly in the A.C.T. the points made in this Paper would have relevance generally to the laws of the States as well and the Commission is hopeful that this Occasional Paper would prove useful to persons interested in the laws relating to public assemblies in the States and Territories (other than the A.C.T.). 3 5. The Commission has left open, for later consideration, the desirability of an examination of State laws which by virtue of the Commonwealth Places (Application of Laws) Act 1970 apply to public assemblies held in Commonwealth places in the States and invites persons who may have an interest in this subject, to forward their comments to the Commission, as to whether they feel such an examination would be useful. 4 PART I: BACKGROUND CHAPTER 1: INTRODUCTION Meetings and Demonstrations 6. Recognition of the right to peaceful assembly concerns freedom to organise and participate in demonstrations and public and private meetings. In this context, although the word 'assembly' is generally only thought of as meaning those assemblies which take the form of demonstrations and public or private meetings which involve some protest or action, it does, of course, include assemblies in the widest sense of the word meaning a 'gathering of people' which eccompasses other forms of assembly performing community functions, many of which have become institutionalised. This needs some amplification. 7. Assemblies are a fundamental part of the life of every community. People assemble for a variety of reasons: to engage in political discussion or air political grievances; to participate in religious ceremonies; for social or recreational purposes; in the course of employment; to adjudicate disputes and criminal prosecutions. Without assemblies basic community functions could not be fulfilled. Recognition of the fundamental importance of particular assemblies in the conduct of community functions has in many cases led to their institutionalisation, and to their acceptance as a part of the normal order of things. For example, the assembly in which power to govern the community is founded, has become a parliament. Religious assemblies have become institutionalised in the church. Social and recreational assemblies have adopted institutionalised forms: race meetings, athletics fixtures, football and cricket matches, dances, bingo meetings, clubs. Groups of employees have adopted institutional form in trade unions. The adjudication of disputes and criminal prosecutions has become a function of specialised courts of law. 8. These institutionalised assemblies are not generally envisaged as the subject of the right of assembly. And, indeed, for most practical purposes it is only in relation to demonstrations and protest or action meetings that questions concerning recognition of the right of peaceful assembly arise. Accordingly, in this Occasional Paper discussion of the right of peaceful assembly is limited to this narrower category of assemblies. Rights 9. Article 21 of the ICCPR refers to the 'right' of peaceful assembly. But what does it mean to say that one has a right to do something? Definition in this area is difficult and has long perplexed philosophers and jurists. The problem seems to lie with differences in how the word 'right' is used and understood, especially among lawyers, philosophers and the public generally. Indeed, it seems now to be widely accepted that any abstract definition is bound to be misleading and that one must examine the typical context in which the word is used in order to understand the meaning of the word when it performs that function.5 10. An examination of the use of the word lrightl5 indicates that it can be used in three senses. First, a right in the widest sense is a claim derived from some moral standard or rule of law.7 This is a sense in which the word is commonly used in everyday speech. Secondly, a right in a more restricted sense is a claim recognised though not necessarily enforceable by law. Thirdly, a right in the narrowest sense is a claim not only recognised by law, but for violation of which the law provides a specific remedy. Some jurists contend that such 'positive' rights are the only ones which should be accorded the description 'rights'. 6 11. A consideration of the relevant law in Australia shows that the right of peaceful assembly belongs in the second category of this analysis. The law recognises the assembly as lawtul to the extent that there are no restrictions on it, but provides no specific legal remedy for violating that lawful 'activity. Remedies may be available as a result of the violation' but'auch remedies derive from coincidentally violating other 'positive' rights, for example that of personal physical security.8 Thus, the right of peaceful assembly is, in Australia, often more closely defined as a residual 'freedom'.