Protest Laws in Australia: Your Rights, Police Powers and the Limits of Free Speech
The recent pro-Palestinian protests held across Australia in the context of Israeli President Isaac Herzog’s visit have reignited a national conversation about the right to protest, police powers, and the boundaries of free speech. Images of large crowds, road closures, arrests and public debate have left many Australians asking: what are my legal rights when it comes to protesting? And how do Australia’s new hate speech laws fit into the picture?
Understanding Protest Laws in Australia requires looking at both federal and state legislation, as well as the practical reality of how police enforce public order. Like many areas of law, the answer is nuanced.
Is there a right to protest in Australia?
Unlike countries such as the United States, Australia does not have an express constitutional right to freedom of speech. However, the High Court of Australia has recognised an implied freedom of political communication within the Constitution. This implied freedom protects communication about political and governmental matters, which includes public protest.
Public assemblies and protests are primarily regulated by state and territory legislation.
In New South Wales, the Summary Offences Act 1988 (NSW) governs public assemblies. Organisers of a protest can provide notice to police under Part 4 of the Act. If proper notice is given and no prohibition order is obtained, the protest becomes an “authorised public assembly.” This provides certain legal protections to participants, including limited protection from offences such as obstructing traffic.
However, even authorised protests must remain peaceful. Police retain powers to give directions under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). If a person fails to comply with a lawful direction - for example, to move on or disperse - they may be committing an offence.
The key takeaway is that Protest Laws in Australia differ between jurisdictions. What is lawful in Sydney may not be handled identically in Melbourne or Brisbane.
When can police intervene?
Police have broad powers to maintain public order. During high-profile events - such as the visit of a foreign head of state - security operations are often heightened. This may involve road closures, exclusion zones and increased police presence.
Under LEPRA in NSW, police may issue “move on” directions if they believe a person’s conduct is obstructing others, causing fear, or likely to result in violence. Failure to comply can result in fines or arrest.
Police may also rely on offences such as unlawful assembly or affray where a gathering becomes violent or threatens public safety. If property is damaged, separate criminal offences under the Crimes Act 1900 (NSW) may apply.
It is important to understand that while peaceful protest is lawful, blocking major roads without authorisation, entering restricted areas, or engaging in threatening behaviour may expose participants to criminal liability.
Freedom of speech and its limits
Freedom of speech in Australia is not absolute. Even political communication can be restricted where laws are reasonably appropriate and adapted to serve a legitimate purpose, such as public safety or preventing harm.
This becomes particularly relevant in emotionally charged protests. Speech that crosses the line into threats, incitement to violence, or harassment may fall outside legal protection.
For example, under section 93Z of the Crimes Act 1900 (NSW), it is an offence to publicly threaten or incite violence on the grounds of race, religion, sexual orientation, gender identity or other protected attributes. Similar provisions exist in other states.
At the federal level, section 18C of the Racial Discrimination Act 1975 (Cth) makes it unlawful to do an act in public that is reasonably likely to offend, insult, humiliate or intimidate a person because of their race or ethnicity. While controversial, this provision reflects the balance Australian law seeks to strike between free expression and protection from racial harm.
These developments are highly relevant in the context of protests relating to the Israel–Palestine conflict. Chanting slogans, displaying symbols or making public statements that are perceived as targeting individuals or groups on the basis of race or religion may attract scrutiny under both criminal and civil law.
It is not unlawful to criticise a government, including the Israeli government, or to advocate for Palestinian rights. However, the legal line may be crossed where speech targets Jewish people, Muslim people or other groups in a manner that incites hatred or violence.
Understanding this distinction is crucial. Protest Laws in Australia protect political expression, but they do not shield conduct that amounts to criminal incitement or unlawful vilification.
Balancing protest and public order
The visit of Israeli President Isaac Herzog placed Australian authorities in a complex position. On one hand, Australia has diplomatic obligations and security responsibilities when hosting foreign leaders. On the other, citizens have the right to express political dissent.
Courts have consistently recognised that maintaining public order is a legitimate objective. However, restrictions on protest must be proportionate. Blanket bans on peaceful protest may be open to legal challenge if they impermissibly burden political communication.
Each situation is fact-specific. The legality of police action will depend on whether directions were lawful, whether force used was reasonable, and whether restrictions were appropriately tailored to security risks.
What should protesters know?
If you are considering participating in a protest, it is important to:
Confirm whether the protest is authorised.
Comply with lawful police directions.
Avoid conduct that may be interpreted as threatening, inciting violence or damaging property.
Be aware that online posts connected to protests may also attract scrutiny under hate speech laws.
Organisers should seek legal guidance when planning large-scale demonstrations, particularly where high-profile political events are involved.
Protest Laws in Australia reflect a delicate balancing act. While Australians are free to express political views and participate in peaceful protest, those freedoms are subject to reasonable legal limits. Police retain significant powers to maintain public order, and new hate speech laws have sharpened the consequences of crossing certain lines.
In a climate of heightened global tensions, understanding your rights - and your responsibilities - has never been more important.
If you have questions about your obligations or exposure arising from participation in a protest, Contact New South Lawyers today, we can provide guidance tailored to your circumstances.
New South Lawyers’ communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication.
