Unlawful assemblies in New South Wales
Knowingly joining or continuing in an unlawful assembly is a criminal offence under section 545C of the Crimes Act 1900 which carries a maximum penalty of 6 months in prison.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
- You joined or continued in a public assembly,
- You did so knowingly, and
- The assembly was unlawful.
The maximum penalty increases to 12 months in prison where you are armed with any weapon or loaded arms, or with anything which used as a weapon of offence is likely to cause death or grievous bodily harm.
The law makes clear that assemblies include protests, demonstrations and processions, and these events are ‘public’ if they are conducted on a public road, public reserve or any other place which the public are entitled to use.
The section further makes clear that any assembly of five or more persons whose common object is by means of intimidation or injury to compel any person to do what the person is not legally bound to do or to abstain from doing what the person is legally entitled to do, is deemed to be an unlawful assembly.
When is an assembly lawful?
Part 4 of the Summary Offences Act 1988 (NSW) sets out a range of rules and requirements which must be complied with before a proposed assembly can be regarded as lawful.
Section 23(1) of the Act provides that an assembly is an authorised public assembly if:
(a) notice, in writing, of intention to hold the public assembly, addressed to the Commissioner, has been served on the Commissioner, and
(b) if a form of notice has been prescribed, the notice is in or to the effect of the prescribed form, and
(c) the notice contains the following particulars:
(i) the date on which it is proposed to hold the public assembly,
(ii) if the proposed public assembly is not a procession, a statement specifying the time and place at which it is intended that persons gather to participate in the proposed public assembly,
(iii) if the proposed public assembly is a procession, a statement specifying the time at which it is intended that the procession commence and the proposed route of the procession and, if it is intended that the procession should stop at places along that route for the purpose of enabling persons participating in the procession to be addressed or for any other purpose, a statement specifying those places,
(iv) the purpose for which the proposed public assembly is to be held,
(v) such other particulars as may be prescribed, and
(d) the notice specifies the number of persons who are expected to be participants in the proposed public assembly, and
(e) the notice:
(i) is signed by a person who indicates in the notice that he or she takes responsibility for organising and conducting the proposed public assembly, and
(ii) specifies the address of that person for the service on him or her of any notice for the purposes of this Part (which may include an address for the transmission of facsimiles or the sending of emails to the person), and
(f) the Commissioner has notified the organiser of the public assembly that the Commissioner does not oppose the holding of the public assembly or:
(i) if the notice was served on the Commissioner at least 7 days before the date specified in the notice as the date on which it is proposed to hold the public assembly—the holding of the public assembly is not prohibited by a Court under section 25 (1), or
(ii) if the notice was served on the Commissioner less than 7 days before that date—the holding of the public assembly is authorised by a Court under section 26.
Section 25 of the Act contains a mechanism for the Commissioner of Police to challenge a proposed assembly which complies with the above requirements.
The section provides that:
(1) The Commissioner may apply to a Court for an order prohibiting the holding of a public assembly in respect of which a notice referred to in section 23 (1) has been served if the notice was served 7 days or more before the date specified in the notice as the date on which it is proposed to hold the public assembly.
(2) The Commissioner shall not apply for an order under subsection (1) relating to a public assembly in respect of which a notice referred to in section 23 (1) has been served unless:
(a) the Commissioner has caused to be served on the organiser of the public assembly a notice, in writing, inviting the organiser to confer with respect to the public assembly with a member of the Police Force specified in the notice at a time and place so specified, or to make written representations to the Commissioner, with respect to the public assembly, within a time so specified, and
(b) if the organiser has, in writing, informed the Commissioner that he or she wishes so to confer, the Commissioner has made available to confer with the organiser at the time and place specified in the notice:
(i) the member of the Police Force specified in the notice, or
(ii) if that member of the Police Force is for any reason unavailable so to confer, another member of the Police Force, and
(c) the Commissioner has taken into consideration any matters put by the organiser at the conference and in any representations made by the organiser.
(3) A notice referred to in subsection (2) (a) may be served on the organiser:
(a) personally, or
(b) by registered post, facsimile transmission or email addressed to the organiser at an address, specified in the notice served on the Commissioner under section 23 (1) (e) (ii), as an address for the service of any notice for the purposes of this Part, or
(c) by leaving it with any person apparently of or above the age of 16 years at a postal address so specified.
And section 26 of the Act provides a mechanism for organisers to apply to the Supreme Court to authorise an assembly.
It provides that the organiser may apply to a Court for an order authorising the holding of the public assembly if:
(a) a notice referred to in section 23 (1) is served on the Commissioner less than 7 days before the date specified in the notice as the date on which it is proposed to hold the public assembly referred to in the notice, and
(b) the Commissioner has not notified the organiser of the public assembly that the Commissioner does not oppose the holding of the public assembly.
What about the implied freedom of political communication?
Australia is one of the few developed countries not to have a national bill of rights.
In fact, only five rights are expressly guaranteed by the Australian Constitution:
- The right to vote (Section 41),
- Protection against acquisition of property on unjust terms (Section 51 (xxxi)),
- The right to a trial by jury for criminal cases in the higher courts (Section 80),
- Freedom of religion (Section 116), and
- Prohibition of discrimination on the basis of State of residency (Section 117).
There is no express right to free speech.
However, section 7 of the Constitution requires the Senate to be comprised of representatives who are “directly chosen by the people of the State”, while section 8 similarly requires that the House of Representatives “be composed of members directly chosen by the people.”
In the case of the Australian Capital Television v Commonwealth (1992) , the High Court relied on these provisions to find that the constitution enlivened a system of government whereby the people directly elect those who are in power.
This means members of parliament are representatives of the people, who are chosen by, and accountable to, the public. This, the court found, gives rise to an implied freedom of political communication.
The court found that this gives an individual the liberty to:
“communicate his or her views… criticize government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives…
The court added that:
“Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives.”
The freedom, the court found, is not restricted to communications between the public and government – it extends to political communication between individuals and groups within the community, and a range of methods of communication, including speech, written publications and actions on matters of political significance.
Limits to freedom of political communication
However, freedom of political communication is not completely unfettered – hate speech is an example of what many would consider to be beyond the limits of free speech, regardless of whether it is based in political views.
But not all encroachments are this clear cut, so what is the test for deciding whether or not certain communications can be banned?
The test is contained the case of Lange v Australian Broadcasting Corporation (1997), also known as the “Political Free Speech Case.” The judges in that case ruled that the curtailment of the freedom was allowed if the enacted law satisfied a legitimate purpose and fulfilled two conditions:
- It is compatible with the maintenance of the representative and responsible government mandated by the Constitution, and
- It is “reasonably appropriate and adapted” to the fulfilment of a legitimate purpose.
The judges in Lange found that “the freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution.”
Freedom of political communication has been relied on to overturn parts of anti-protest laws in Tasmania, but whether a High Court challenge would lead to the repeal of anti-protest laws in New South Wales remains to be seen.
Watch the videos below for more information.
Section 545C of the Crimes Act 1900 deals with the offence of ‘Unlawful Assembly’ and reads as follows:
545C Knowingly joining or continuing in etc an unlawful assembly
(1) Whosoever knowingly joins an unlawful assembly or continues in it shall be taken to be a member of that assembly, and shall, on conviction before the Local Court, be liable to imprisonment for a term not exceeding six months or to a fine not exceeding 5 penalty units, or both.
(2) Whosoever being armed with any weapon or loaded arms, or with anything which used as a weapon of offence is likely to cause death or grievous bodily harm, is a member of an unlawful assembly, shall be liable, on conviction before the Local Court, to imprisonment for a term not exceeding twelve months or to a fine not exceeding 10 penalty units, or both.
(3) Any assembly of five or more persons whose common object is by means of intimidation or injury to compel any person to do what the person is not legally bound to do or to abstain from doing what the person is legally entitled to do, shall be deemed to be an unlawful assembly.
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