Democratic rights under attack

From 418 arrests in 1977 to fresh clashes in Sydney: Debate over Australia’s right to protest continues.

“The day of the political street march is over,” Joh Bjelke‑Petersen declared. “Don’t bother to apply for a permit. You won’t get one. That’s government policy now.”

A few weeks later, thousands of people defied then‑Queensland premier Bjelke‑Petersen’s proclamation and gathered in Brisbane for an anti‑uranium march. Ian Curr remembers an intense, unrelenting heat on that day nearly 50 years ago. It was “boiling hot”, the long-time anti-nuclear activist says. So hot that when protesters sat on the road, arms-linked in passive defiance, it was “not very pleasant” because the tarmac was scorching. Other memories emerge from the haze: lines of police, three and four deep, surrounding protesters; a woman with tears streaming down her face who had just heard her partner was arrested.

Fear swirled up spines and into the air. These were the years after the Springbok tour anti-apartheid protests had been violently suppressed.

That afternoon in October 1977, 418 people were arrested and Queensland’s “right to march” movement was baptised. Civil liberties demonstrations continued until the ban — originally enacted to curb a growing anti-nuclear movement — was lifted two years later.

Ross Gwyther was exhilarated to see some 5,000 anti-nuclear marchers turn out that day. But the sensation was tempered by an “intense fear because there’d already been many cases of police brutality.”

These moments mark the context for events in Sydney this week. “The people who saw that violence in Sydney, in 40 or 50 years, they will not forget it. In the same way I do not forget police brandishing batons and punching and throwing people into paddy wagons. It’s something you do not forget.”

Footage and reports of protesters being punched and pushed by police officers in Sydney last Monday have sparked concerns about the fragility of Australians’ right to protest and what constitutes a reasonable police response.

NSW Premier Chris Minns and senior police officers have defended police, calling their actions “proportionate” and saying they faced an “impossible situation.” Civil liberties and human rights groups have sounded the alarm and NSW’s police watchdog has announced it will investigate officers’ conduct.

The right to protest in Australia is not protected by one simple law. It’s implied in the constitution under freedom of political communication and exists under international human rights law. Only Queensland, Victoria and the ACT explicitly protect the right to peaceful assembly, freedom of association, and freedom of expression. And laws protecting the right to peaceful protest in Australia can be limited.

People assume that a right to protest means “you and I are free to get around the place, free to gather with people and free to express ourselves,” says Simon Rice, professor emeritus of law and social justice at the University of Sydney.

Saying we have a right to protest “is too simple.” A better description is that we have a right to protest subject to constraints imposed by legislation.

Australian governments have increasingly been passing laws restricting certain protest activities. In the past five years alone, South Australia established Australia’s harshest fine — up to $50,000 — for obstructing a public place following climate protests in Adelaide that caused traffic chaos. NSW created tougher penalties for protesters who “shut down major economic activity.” Tasmania brought in harsher penalties around trespass and obstruction, and Victoria established new laws to protect logging sites from protesters.

Victoria has also passed laws to crack down on “dangerous and radical” protest behaviour, giving police powers to unmask protesters and banning items like glue, ropes, or locks — tools often used in direct action by environmental activists. A statue of activist Zelda D’Aprano, with chains in hand, was unveiled in Melbourne by a former prime minister in 2023.

NSW passed hate speech laws which included provisions restricting protests near places of worship and, after the Bondi attack, laws limiting mass protests in the wake of such incidents.

An analysis of anti-protest legislation introduced in parliaments across Australia found 49 laws have been passed in the last two decades that constrain protest rights. The state of greatest concern is NSW, which enacted the highest number of anti-protest laws in the last 20 years.

Some legal scholars have criticised such laws, arguing they’re often poorly designed, rushed through parliament, and even unconstitutional.

In 2020, at the height of the pandemic, law professor Simon Rice suggested to his students researching protest laws that they observe a protest over student fees at the University of Sydney. The laws regarding the right to protest “are in the hands of police,” he says. “Police are exercising discretion. So the manifestation of the limits on our right to protest are decisions that the police make on the ground.”

Monday’s protest in Sydney occurred under what the NSW government had declared a “major event,” giving police additional powers to issue move-on orders, close certain locations, and search people in designated parts of the city. The government argued the declaration was aimed at ensuring public safety, something a court ultimately agreed with when it dismissed a legal challenge.

Rice says the additional powers essentially created a “protest exclusion zone” but argues that does not render them “human rights-free zones.” He believes a national Human Rights Act would define standards against which protest laws could be measured.

Luke McNamara, a law professor at the University of NSW who studies criminalisation as a public policy tool, was at the Sydney march. He attended both as a long-time supporter of Palestinian self-determination and to gather information: who gets to march, who is moved on, and who decides.

He describes “a large gathering of peaceful protesters. Lots of speeches, lots of cheering, lots of chanting.” McNamara says the size of the police presence and strategy to restrict movement was atypical. The incidents of violence, which he did not witness, left him “saddened and shocked.”

Sean Scalmer, a political historian at the University of Melbourne, says historically the right to protest has never been definitively secured or forfeited but is “an ongoing process of contest and renegotiation.” By nature, effective protest often involves disruption, which can provoke anger and encourage governments to limit it.

Scalmer highlights the mid-19th century — an era of mass enfranchisement — as a bold democratic experiment in Australia that also marked restrictions on citizens’ right to protest. In 1860, about 3,000 demonstrators gathered outside the Victorian parliament demanding access to land for small-scale farming. They threw stones at police and pushed on the doors of Parliament House. The result was legislation limiting the capacity of people to assemble near Parliament House.

During World War I and II, federal laws restricted public gatherings, speech, and assembly under the War Precautions Act 1914 and National Security Act 1939. These measures were used to suppress dissent, Scalmer says.

As the 20th century progressed, social movements became more emboldened, taking to the streets to challenge governments to change policy. Protesters under Bjelke-Petersen’s government are noted as some of the most determined and significant in Australia’s history.

Almost 50 years after the Queensland “right to march” movement, activist Ian Curr reflects on the courage of ordinary people sitting on Brisbane streets in defiance of protest bans. “It was very hard to get people to even do that as a means of solidarity and self-defense,” he says. “I believe ordinary people, especially in Australia, they’re very averse to any sort of confrontation.”