Do we have the right to protest?

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In Victoria we have the right to protest.

Domestically, this right comes from the Victorian Charter of Human Rights and Responsibilities Act (‘the Charter’) and from the Constitution of Australia Act (the constitution).

However, the right to protest is not absolute. This means that it is balanced against other laws and other people’s lawful use of public space and private property.

Importantly, while the right to protest can allow you to use public space in a way usually prohibited (e.g.: marching down the middle of the road: jaywalking or obstructing a road) it does not permit you to break most laws. And the leeway your protest is given over some laws can change during an action – e.g.: if a march becomes a sit-in police may start arresting people for obstructing a road.

The right to protest has been a live issue on many occasions during the COVID-19 pandemic in 2020. Cases currently before the courts explore both the Constitutional and Charter protections of the right in the context of the pandemic related restrictions on movement (written November 2020).

Rights to protest can also be found in international laws. These are found in the UN Declaration of Human Rights and the International Covenant on Civil and Political Rights. Australia is a signatory to both of there instruments. The duty to protest was also set out in the Nuremberg trials.

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