Activist Rights

Do we have the right to protest?

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In Victoria we have the right to protest. This right comes from the Victorian Charter of Human Rights and Responsibilities Act (‘the Victorian Charter’). It can also be found in 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 you usually aren’t allowed to (e.g.: marching down the middle of the road or blocking a road or footpath) it does not allow you to break most laws. The allowance your protest is given to break some laws can change during an action – e.g.: if a march becomes a sit-in police may start arresting people for blocking a road.

The right to protest has been a live issue during the COVID-19 pandemic. Cases before the courts have explored both the Constitutional and Victorian Charter protections of the right to protest in the context of COVID-19 restrictions. See Cotterill v Romanes [2021] VSC 498 (HRLC Case summary here); Commissioner of Police v Gray [2020] NSWSC 867; and Commissioner of Police (NSW) v Gibson [2020] NSWSC 953.

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

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