Attending a protest is an important way to express your views and participate in public debate. However, participating in a protest in New South Wales can raise legal issues, particularly where demonstrations involve road closures, police directions, trespass or disruption to public spaces.
While peaceful assembly is recognised under Australian law, there is no unrestricted right to protest in any manner or location. Protesters may still face criminal charges if their conduct breaches the law, even when they are participating in a demonstration about a political or social issue.
Understanding your rights, the requirements for an authorised public assembly and the offences that may arise during a protest can help you make informed decisions about your conduct.
Is protesting legal in NSW?
Yes. Peaceful protest is generally lawful in NSW, and the common law freedom of assembly protects people’s ability to gather and express their views.
The High Court has also recognised that peaceful assembly is an important means of political communication protected by the implied freedom of political communication under the Australian Constitution. However, this is not an unlimited individual right, and it does not prevent laws regulating conduct during protests from operating in appropriate circumstances.
Importantly, a protest does not automatically become illegal simply because it has not been authorised by the police or a court. However, participating in an unauthorised assembly may mean that protesters do not receive certain legal protections available to participants in an authorised assembly.
Individual protesters can also be charged with separate offences if their conduct breaches the law.
What is an authorised protest?
Under Part 4 of the Summary Offences Act 1988 (NSW), a public assembly may obtain authorisation through a statutory process that involves notice to the police and, where necessary, an application to the Supreme Court.
An authorised public assembly receives limited legal protection under section 24 of the Act. These protections principally concern certain offences relating to obstruction of traffic and participation in an unlawful assembly, where the relevant conduct occurs solely for the purpose of participating in the authorised assembly.
Authorisation does not provide immunity from all criminal charges. Protesters may still be prosecuted for conduct such as assault, property damage, trespass or other offences where the relevant legal elements are established.
How do you obtain authorisation for a protest?
Under section 23 of the Summary Offences Act 1988 (NSW), the organiser must provide written notice to the NSW Police Commissioner containing the required details of the proposed assembly.
The notice generally includes:
- The date of the proposed protest.
- The time and location where participants will gather.
- The proposed route if the protest involves a procession.
- The purpose of the assembly.
- The expected number of participants.
- The details and signature of the person responsible for organising and conducting the assembly.
The statutory process distinguishes between notices provided at least seven days before the proposed assembly and notices provided less than seven days beforehand.
Where the Commissioner opposes a proposed assembly, the relevant provisions determine whether the Commissioner may apply to the Supreme Court for a prohibition order, or whether the organiser must seek an authorisation order from the Court.
Because the requirements depend on the circumstances and timing of the proposed protest, organisers should check the current legislation and obtain legal advice where necessary.
What offences can protesters be charged with?
A range of criminal offences may arise during a protest. The applicable offence will depend on what a person allegedly did, the evidence available and the circumstances of the incident.
1. Obstructing traffic or roads
Protests sometimes involve marches along roads, intersections or other areas used by vehicles. Depending on the circumstances, obstructing traffic may result in criminal proceedings or other legal consequences.
Authorisation can provide limited protection against certain obstruction offences where participants remain within the agreed route and satisfy the statutory requirements. It does not give protesters unrestricted permission to block roads or disregard traffic laws.
Other provisions, including the Roads Act 1993 (NSW), may apply to particular conduct.
2. Trespass
Protesters who enter or remain on private property, restricted premises or other land without lawful authority may face trespass-related allegations.
For example, entering a business, construction site or government building without permission may raise legal issues depending on the type of premises, the circumstances of entry and any applicable statutory provisions.
The fact that the entry occurred during a political demonstration does not automatically provide a defence.
3. Property damage
Damaging buildings, vehicles, equipment or other property during a protest may result in criminal charges.
The applicable offence and potential penalty depend on the nature and extent of the alleged damage, the person’s conduct and the relevant provisions of the Crimes Act 1900 (NSW).
A person’s political motivation does not, by itself, excuse conduct that otherwise constitutes an offence.
4. Assault and violent conduct
Physical confrontations can lead to assault-related charges. Depending on the circumstances, conduct during a protest may also give rise to allegations of affray or violent disorder.
The prosecution must establish the elements of the particular offence beyond reasonable doubt. Merely attending a protest where other people behave violently does not automatically establish that an individual committed an offence.
5. Offensive language or conduct
Certain behaviour in or near a public place may result in charges under the Summary Offences Act 1988 (NSW).
Whether particular words or conduct constitute an offence depends on the applicable statutory provision and the surrounding circumstances. Political expression and criticism of public officials should not automatically be treated as criminal conduct simply because they are controversial or unpopular.
6. Causing disruption to major facilities
Section 214A of the Crimes Act 1900 (NSW) addresses specified conduct involving damage to, or serious disruption of, major facilities.
The provision has been the subject of constitutional litigation. In Kvelde v State of New South Wales [2023] NSWSC 1560, the Supreme Court held certain parts of the provision invalid because they impermissibly burdened the implied freedom of political communication.
The decision did not invalidate the entire provision. Whether section 214A applies to particular protest activity requires consideration of the current law and the precise conduct alleged.
Can police arrest you at a protest?
Police may arrest a person where the legal requirements for arrest are satisfied. Depending on the circumstances, police may also issue directions, investigate alleged offences or exercise other powers provided by legislation.
For example, police powers under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) may become relevant where officers are responding to public disorder or investigating suspected criminal conduct.
However, police powers are subject to legal limits. The fact that someone is attending a protest does not, by itself, establish that they have committed an offence or that every police direction is lawful.
If police give you a direction, the circumstances matter. The applicable law may specify when the direction can be given, what it must require and what consequences may follow if it is not obeyed.
If you are arrested or questioned, you should remain calm, avoid physically resisting police and seek legal advice about your rights and obligations.
Can you be charged if your protest was authorised?
Yes. An authorised protest does not provide blanket immunity from criminal prosecution.
Section 24 of the Summary Offences Act 1988 (NSW) provides limited protection in relation to specified offences arising solely from participation in an authorised public assembly. It does not excuse unrelated criminal conduct.
For example, authorisation will not automatically protect a participant who allegedly assaults another person, damages property or commits another offence during the demonstration.
The circumstances of the alleged offence will determine whether the statutory protections are available.
What are the penalties for protest-related offences?
There is no single penalty for participating in an unlawful protest. The consequences depend on the offence charged, the applicable legislation and the individual circumstances of the case.
Depending on the charge, a person may face:
- A fine.
- A criminal conviction.
- A community correction order or other sentencing order.
- Licence or other legal consequences where applicable.
- Imprisonment for more serious offences.
The court will consider the relevant sentencing provisions and the circumstances of the offending when determining the appropriate outcome.
A person who has been charged should obtain legal advice before deciding how to respond to the allegation. Depending on the evidence and the applicable law, it may be possible to challenge the charge, raise a defence or make submissions about the appropriate penalty.
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