top of page
Search
  • Writer's pictureGeoff Harrison

Protests or Unlawful Assemblies

Updated: Nov 3, 2023


Best Barrister, Best Lawyer, Best Solicitor, Best Criminal Barrister, Criminal Solicitor, Criminal Barrister, Criminal Lawyer, Protests, Unlawful Assemblies, Lawful Assemblies, Unlawful Protests

Published by Geoff Harrison | 22 October 2023


As per s23 of the Summary Offences Act 1988 ('the Act') it is lawful to engage in a public assembly or protest provided that the relevant criteria are met (see below). If the assembly is authorised, a person cannot be found guilty of participating or joining in an unlawful assembly (s545C of the Crimes Act 1900) or of obstructing a person, vehicle or vessel in a public place (s6 of the Act): as per s24 of the Act. However, if the public assembly is not authorised and a person knowingly joins or continues in the unlawful assembly, the maximum penalty is 6 months imprisonment and/or 5 penalty units ($550):s545C of the Crimes Act 1900.


Parliament has recently passed legislation in relation to the disruption of the Sydney Harbour Bridge or major facilities (see below) with the maximum penalties being 2 years imprisonment and/or 200 penalty units ($22,000).


Other Sources:

Cases:


_________________________________________________________________________________________________


Extracted Legislation:


ROADS ACT 1993 - SECT 144G

Damage, disruption or obstruction of Sydney Harbour Bridge and other major bridges, tunnels and roads


(1) A person must not enter, remain on, climb, jump from or otherwise trespass on any part of the Sydney Harbour Bridge or any other major bridge, tunnel or road if that conduct--

(a) causes damage to the bridge, tunnel or road, or

(b) seriously disrupts or obstructs vehicles or pedestrians attempting to use the bridge, tunnel or road.

Maximum penalty--200 penalty units or imprisonment for 2 years, or both.


(2) Without limiting subsection (1) (b), a person seriously disrupts or obstructs vehicles or pedestrians attempting to use the bridge, tunnel or road if, as a result of the person's conduct, the bridge, tunnel or road (or any part of the bridge, tunnel or road) is closed or vehicles or pedestrians are redirected.


(3) Nothing in this section prohibits conduct in accordance with the consent or authority of TfNSW, the NSW Police Force or other public authority.


(4) It is a defence to the prosecution of an offence against this section if the person charged proves that the person had a reasonable excuse for the conduct concerned.


(4A) A person does not commit an offence under this section if the conduct occurs--

(a) at the workplace at which the person works, or

(b) at a workplace owned, occupied, operated or used by an employer of the person.


(4B) This section does not apply to the extent that it prohibits conduct in relation to--

(a) Parliament House, or

(b) an office of a member of parliament.


(5) For the purposes of subsection (4) but without limiting that subsection, a person has a reasonable excuse if the conduct arose from a mechanical fault or breakdown of a motor vehicle.


(5A) A person does not commit an offence under this section if the conduct forms part of the following--

(a) industrial action,

(b) an industrial dispute,

(c) an industrial campaign.


(6) In this section--


"major bridge, tunnel or road" means a bridge, tunnel or road prescribed by the regulations for the purposes of this section.


"vehicle" includes a train.


CRIMES ACT 1900 - SECT 214A

Damage or disruption to major facility


(1) A person must not enter, remain on or near, climb, jump from or otherwise trespass on or block entry to any part of a major facility if that conduct--

(a) causes damage to the major facility, or

(b) seriously disrupts or obstructs persons attempting to use the major facility, or

(c) causes the major facility, or part of the major facility, to be closed, or

(d) causes persons attempting to use the major facility to be redirected.

Maximum penalty--200 penalty units or imprisonment for 2 years, or both.


(2) It is a defence to the prosecution of an offence against this section if the person charged proves that the person had a reasonable excuse for the conduct.


(3) A person does not commit an offence under this section if the conduct forms part of the following--

(a) industrial action,

(b) an industrial dispute,

(c) an industrial campaign.


(4) A person does not commit an offence under this section if the conduct occurs--

(a) at the workplace at which the person works, or

(b) at a workplace owned, occupied, operated or used by an employer of the person.


(5) This section does not apply to the extent that it prohibits conduct in relation to--

(a) Parliament House, or

(b) an office of a member of parliament.


(6) A person does not commit an offence under this section for anything done or omitted to be done in accordance with the consent or authority of--

(a) the NSW Police Force, or

(b) another public authority, or

(c) for a privately owned major facility--the owner or operator of the facility.


(7) In this section--


"major facility" means the following, whether publicly or privately owned--

(a) a railway station or other public transport facility prescribed by the regulations,

(b) a private port within the meaning of the Ports and Maritime Administration Act 1995 , or another port prescribed by the regulations,

(c) an infrastructure facility, including a facility providing water, sewerage, energy, manufacturing, distribution or other services to the public, prescribed by the regulations.


CRIMES ACT 1900 - SECT 213

Obstructing a railway


A person who--


(a) intentionally and without lawful excuse, does an act, or omits to do an act, which causes the passage or operation of a locomotive or other rolling stock on a railway to be obstructed, or

(b) assists a person to do or omit to do such an act, with the knowledge that the person's intention to do or omit to do that act is without lawful excuse,

is liable to imprisonment for 2 years.


CRIMES ACT 1900 - SECT 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.


SUMMARY OFFENCES ACT 1988 - SECT 6

Obstructing traffic


A person shall not, without reasonable excuse (proof of which lies on the person), wilfully prevent, in any manner, the free passage of a person, vehicle or vessel in a public place.


Maximum penalty: 4 penalty units.


SUMMARY OFFENCES ACT 1988 - SECT 23

Authorised public assemblies


(1) For the purposes of this Part, a public 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.


(2) Without prejudice to any other method of serving a notice referred to in subsection (1) on the Commissioner, such a notice may be served by leaving it with any member of the Police Force or such other person as may be prescribed at the address prescribed as the address of the office of the Commissioner.


SUMMARY OFFENCES ACT 1988 - SECT 24

Participation in authorised public assembly


If an authorised public assembly is held substantially in accordance with the particulars furnished with respect to it under section 23 (1) (c) or, if those particulars are amended by agreement between the Commissioner and the organiser, in accordance with those particulars as amended and in accordance with any prescribed requirements, a person is not, by reason of any thing done or omitted to be done by the person for the purpose only of participating in that public assembly, guilty of any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place.


SUMMARY OFFENCES ACT 1988 - SECT 25

Prohibition by a Court of a public assembly


(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.


SUMMARY OFFENCES ACT 1988 - SECT 26

Authorisation by a Court of a 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,

the organiser may apply to a Court for an order authorising the holding of the public assembly.


SUMMARY OFFENCES ACT 1988 - SECT 27

Applications under section 25 or 26


(1) The Court to which an application in respect of a public assembly is made under section 25 (1) or 26 shall decide the application with the greatest expedition possible so as to ensure that the application is not frustrated by reason of the decision of the Court being delayed until after the date on which the public assembly is proposed to be held.


(2) The decision of a Court on an application under section 25 (1) or 26 is final and is not subject to appeal.


(3) Not more than one application may be made under section 25 (1) or 26 in respect of the same public assembly.


9 views0 comments

Recent Posts

See All

Comments

Rated 0 out of 5 stars.
No ratings yet

Add a rating
bottom of page