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Luke McNamara on your right to protest

Sometimes we think that democracy is about turning out to vote once every few years, but it's much bigger than that. Democratic participation takes all sorts of forms, and protesting, assembling with others, marching through streets, these are really important parts of democratic participation.

Luke McNamara

Protests, particularly in the last few years, have been fraught with questions about the legality of public demonstrations, the lack of communication between organisers and the government, and concerns from the public and legal observers about police responses during protests. In the aftermath, the Australian public has been left questioning their right to protest, the role of police during mass-demonstrations, and the duty of communication between government and protest organisers. 

Tune in to hear UNSW’s Luke McNamara, Professor in the Faculty of Law & Justice, explain the legal grounds Australians have to freedom of expression, the legal obligations of police, and what kind of behaviour to expect at a protest.

Transcript

If you ask any politician, do Australians enjoy the right to protest? They'll say, well, of course we do. But if you go looking for the basis of that right in a statute or in the constitution, it might be a bit hard to find. And that's because it's not one single right. It's a combination of our right to freedom of expression, freedom of association and freedom of assembly.  

Sometimes we think that democracy is about turning out to vote once every few years, but it's much bigger than that. So democratic participation takes all sorts of forms, and protesting, assembling with others, marching through streets, these are really important parts of democratic participation.  

If a person participates in a public protest, they can expect to hear lots of speeches, lots of chanting, some robust political expression. 

But there are limits on what you can say and do. And so for, for example, encouraging violence against anyone or being racist, those things are not allowed.  

So the rules vary quite a bit across the states and territories of Australia. But essentially the role of the police in a public protest is to facilitate that peaceful assembly. If participants step beyond the bounds of what's acceptable, then the police are able to use their lawful powers to intervene and to stop that transgression. So an example of that would be if a person during a protest said something or acted in a way which was threatening or intimidating to another person, then the police would be entitled to intervene. Consider that matter and decide whether an arrest was appropriate or a move on direction.  

It can be tricky to decide how to intervene. The protest context is one of high emotions, usually high passion, and it's sometimes hard to know exactly what a person intends when they say certain words. So it's really important that calm, considered deliberation is operating here.  

The right to protest is a really important part of liberal democracies around the world, including Australia. We have seen some recent signs that governments are becoming increasingly intolerant of the right to protest. And that's a concern.  

Some of the ways in which we see that tolerance being reduced is greater levels of police force used against protesters or the introduction of special laws that restrict how protests can happen.  

It's really important that we continue to insist on our right to peaceful assembly. I guess you could say the best way to protect the right to protest is to make sure you use it.

Speakers
Luke McNamara

Luke McNamara

Luke McNamara is a Professor in the Faculty of Law & Justice at UNSW Sydney. His research focuses on the deployment of criminalisation as a public policy tool. Current projects include studies of sexual offence trials and the history of criminal law-making directed at safety from violence. He is the author of the books Regulating Racism: Racial Vilification Laws in Australia (2002), and Human Rights Controversies: The Impact of Legal Form (2007); and a co-author of Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (7th ed, 2020).

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