Is it legal to protest in NSW?

5 December 2022 in Criminal Law

The answer to this question is: sometimes. The right to protest is reflected in the UN’s International Convention on Civil and Political Rights, to which Australia is a signatory. However, this is not legally binding and laws about protesting in NSW are indeed very strict. NSW law has undergone significant change in the past year, tightening restrictions on what constitutes a “peaceful protest”. It is important to be aware of these changes before participating in or organising a legal protest.

New “anti-protest” laws in NSW

As of April 2022, amendments to section 144G of the Roads Act 1993 (NSW) and section 545C of the Crimes Act 1900 (NSW) make it an offence to protest in a manner that impends roads or other infrastructure. The bill followed a string of climate protests that disrupted activity at major ports.

Under the new legislation passed by the NSW parliament, you could be fined up to $22,000 and/or imprisoned for up to two years for illegally protesting on public roads, bridges, tunnels, rail lines and industrial estates. Acting Premier and Minister for Police Paul Toole said this change is intended to prevent disruptions to the public and the impacts of what he calls “selfish, economic vandalism.”

The changes 

According to Section 214A of the amended Crimes Act, a person is prohibited from entering, staying on or near, climbing, jumping from, trespassing on or blocking entry to any component of a major facility if that behaviour:

1. Damages the facility
2. Seriously disrupts people using the facility
3. Causes all or part of the facility to be closed, or
4. Causes people using the facility to be redirected.

According to section 144G of the Roads Act, a person is also prohibited from making these actions on any part of the Sydney Harbour Bridge or any other major bridge, tunnel, or road if it:

1. Damages the bridge, tunnel or road, or
2. Seriously disrupts or obstructs pedestrians or vehicles using the bridge, tunnel or road.

This includes main roads, highways, freeways, tollways, bridges and tunnels connecting any roads in the Greater Sydney Region, the City of Newcastle, or the City of Wollongong.

Similar laws have been passed this year by the state governments of Victoria and Tasmania.

Impacts of changes to protest laws

Changes to the laws surrounding protests have been met with significant backlash. The secretary of the Australian Services Union, Angus McFarland, for example, has said the laws are “so broad and vague that almost all protest activity without prior approval now risks criminal sanction”.

In December 2022, climate activist Deanna “Violet” Coco was sentenced to fifteen months in prison (with an eight-month non-parole period) for blocking one lane on the Sydney Harbour Bridge for 25 minutes during a protest. She was refused bail before her appeal in March 2023.

The NSW attorney general, Mark Speakman, said on the matter that “the right to protest must be weighed against the right of ordinary members of the public to move about safely and freely in their day-to-day lives.” The NSW premier, Dominic Perrottet, described the sentencing as “pleasing to see.”

However, the penalty has been called disproportionate and unfair by a number of human rights advocates.

For example, Clément Voule, the UN’s special rapporteur on freedom of association and peaceful assembly, said he was “alarmed” by the sentence and the court’s refusal to grant bail. Likewise, the president of the NSW Council for Civil Liberties, Josh Pallas, said that “peaceful protest should never result in jail time.”

When am I allowed to protest?

In Australia, there is no legal protection for “freedom of expression.” However, the High Court of Australia has interpreted the Australian constitution to provide for an implied freedom of political communication. The High Court has stated in the past that this implied freedom of expression has served as a foundation for protests and the “peaceful expression of dissident views” (see Davis v Commonwealth (1988) 166 CLR 79). It must be remembered, however, that this implied right is not legally binding.

In NSW law, the Summary Offences Act 1988 (NSW) outlines what constitutes an authorised public assembly, and provides that those participating in one should be exempt from offences related to participating in an unlawful assembly, such as obstructing traffic.

Section 23 of the Act provides that protest organisers may gain authorisation from the Commissioner of the NSW Police. This involves serving a notice more than 7 days before the event containing a proposed date, time and location of the assembly, as well as the event’s purpose. The Commissioner will then determine whether or not to authorise the protest.

It is important to note that under Australian law, there is no guarantee in relation to the right of people to gather in a public place.

Barrister, Stephen Lawrence has said that “the ‘right to protest in NSW’ is a misnomer. We have no bill of rights enshrining it and no statutory regime that protects it. The regime in the Summary Offences Act for protest approval only creates a limited immunity from certain offences.”

Those considering participating in or organising a protest should be aware that they may be liable to a range of charges, including unlawful assembly, rioting, obstructing traffic or persons or offensive behaviour, or they may be ordered to “move on” by police.