The International Human Rights Framework on the Right of Peaceful Assembly
Australia is a State Party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
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.
Australia is also a State Party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the State has violated their human rights as protected under the Covenant.
There is no regional Asian human rights treaty to which Australia could adhere.
The Domestic Legal Framework on the Right of Peaceful Assembly
Australia's federal constitution does not explicitly protect fundamental human rights, including the right of peaceful assembly.
There is no federal legislation that enshrines the right to freedom of assembly and association in all circumstances. Under Section 8(1) of the 1971 Public Order Act (as amended through 2011);
Where there is an assembly consisting of not less than twelve persons in a Territory and:
(a) persons taking part in the assembly have conducted themselves in a way that has caused a member of a Police Force of the rank of Sergeant or above reasonably to apprehend that the assembly will be carried on in a manner involving unlawful physical violence to persons or unlawful damage to property; or
(b) the assembly is being carried on in a manner involving such unlawful violence or damage; a member of a Police Force of the rank of Sergeant or above may give [the order to disperse].
In 2015, the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association welcomed the introduction of a bill by the Victoria state government in Australia to revoke the State’s 2014 controversial “move-on laws”, which granted police extensive powers to move protesters who might be obstructing buildings or traffic or causing people to have a reasonable fear of violence”. The 2014 bill allowed authorities to impose harsh penalties on offenders, including arrest, fines and exclusion orders banning individuals from entering specified public spaces for up to a year.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the State and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
Under Section 9(1) of the 1971 Public Order Act (as amended through 2011), the police may use necessary and "reasonably proportioned" for to disperse an assembly.
The 1914 Crimes Act applies to use of force by both federal and state and territory law enforcement officers, requiring that force be both necessary and reasonable.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
Use of firearms by law enforcement officials is generally only lawful where necessary and where a threat to life or limb is imminent.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
In its 2017 Concluding Observations on Australia, the Human Rights Committee did not address the right of peaceful assembly as a concern.
In the context of Australia's 2015 Universal Periodic Review, the Committee on the Rights of the Child reiterated its previous concern about legislation in certain states and territories allowing police to remove children and young people who assembled peacefully in groups. It reiterated its recommendation that Australia consider alternative measures to policing and/or criminalization and reviewing the legislation
There is no regional human rights body to which alleged victims of a violation of the right of peaceful assembly can complain.
Views of Civil Society
CIVICUS reported that in July 2020, Australian police arrested six people and ordered about 50 others to disperse after they gathered in Sydney for a Black Lives Matter protest. The march was planned to highlight the deaths of Aboriginal people in custody, building on momentum from global rallies for racial justice and against police brutality. Police had said the gathering was unauthorised and in breach of coronavirus prevention measures. Among those arrested were protest organiser Paddy Gibson. New South Wales state Assistant Police Commissioner Mick Willing said Gibson and the other protesters were issued with fines of 1,000 Australian dollars (US$710) for breaking pandemic crowd restrictions. Gibson had organised the demonstration with the family of David Dungay, an Indigenous man who died in 2015 while being restrained in a Sydney prison after repeatedly saying, “I can’t breathe.” The demonstrators had gathered more than 100,000 signatures on a petition calling for his prison guards to be charged.
Writing in The Guardian in March 2019, Hugh de Kretser, Executive Director of the Human Rights Law Centre, stated that:
Most recently, state governments in Tasmania, New South Wales and Western Australia introduced or attempted to introduce harsh anti-protest laws with severe penalties, excessive police powers and broad, vague offences. These laws have targeted environmental protest in particular, prioritising vested corporate and government interests over people’s democratic rights.
According to Freedom House's 2019 report on Australia:
Freedom of assembly is not explicitly codified in law, but the government generally respects the right to peaceful assembly in practice. There are some limited restrictions meant to ensure public safety.
There has been some concern in recent years about measures designed to discourage protests at certain kinds of workplaces. In 2016, the New South Wales state government passed laws apparently meant to curb a protest movement targeting mining operations.