Am I allowed to protest freely through the streets of Melbourne without being asked to move on by Police.

Are you allowed to protest? In short, yes under international law we have the right to peaceful protest.  The problem is that while the right to protest is enshrined in international law it's difficult to enforce those rights here in Australia.  The mechanisms exist, but they take a long time, can be expensive and are often ineffective ways to seek redress for breaches.

Luckily in Victoria we have the Charter of Human Rights and Responsibilities.  Some of the rights the Charter gives Victorians are the rights to take part in public life, to assemble peacefully, to association (like being a member of a union or a political party), humane treatment when jailed and so on.

Victoria Police as a public authority has to ensure that they do not breach the rights afforded to you as a Victorian under the Charter, and if they make a decision (like to make people move on from an area) that they have made that decision after taking into consideration the human rights of those involved.

The rights in the Charter can be removed by the police but only if it is proportionate to the reason they are removed for and that the removal can be properly justified.

Police can break up a protest using force and by doing so remove your right to protest if thousands of you are about to start a riot,  but the removal of rights to protest has to be proportionate.  

If the police used a water cannon and 100 horses to break up a protest of 20 frail grandmothers then the removal of a right may not be justified and it would not be proportionate, it might be if they were carrying grenade launchers. This is all taken on a case by case basis in court. 

If police want to stop you protesting they do have the power to do so and they also have the power to charge you with committing a crime during or after your protest.  

Here are some examples:

  • Obstruction

That you were somehow and deliberately obstructing the free flow of traffic

  • Trespass

If you protest on someone's property and you do this wilfully and you don't leave once you have been asked to do so you can be charged with trespass.

  • Offensive language and behaviour

Like swearing. Yep, this is a thing.

  • Breaching the peace.

This is exactly what it sounds like.

  • Offences against the police

This includes you assaulting the police directly or hindering their work or getting someone else to assault or hinder them. Yep, this includes police horses, they're police too.

  • Unlawful assembly

Here is the good stuff, if there are three or more of you (a protest with less than three people isn't a very good protest) getting together intending to commit a crime you're committing an offence if your assembly is deemed to be unlawful.

You don't have to be intending to do anything unlawful you could  just be intending on getting together as a group and do something perfectly legal ; but if you manage to scare the people around you into thinking you'll breach the peace then you can be charged with unlawful assembly.

What's more, once the police claim an unlawful assembly is taking place anyone who attends and joins in to that assembly can be guilty of an offence.  It doesn't matter if you are there doing something legal, an unlawful assembly is just that, unlawful.

  • Breaching a "Move On Order"

A "move on" order by police is an order to move on from a place, this gave the police the ability to instruct protesters to move on from places if they were obstructing buildings or if they scared people into thinking violence was going to ensue. These laws are in the process of being modified by the Andrews' Victorian Government.  

Police will still retain the power to move people on but the power of police to move you on or fine you in anticipation of committing an offence are being removed.  Police still have many other tricks at their disposal though, as you can see above.

  • Can the police use force?

Yes they can, but the power Victoria Police has to use force against anyone is the same power we have to use force.  That is, the use of force has to be proportionate to the end that you want to achieve like arresting someone, stopping someone from committing a serious crime or self defence.  

In conclusion:

Dear reader, you do have the right to protest, but your right to protest also has to live with the right to other people to live freely and go about their business, and the right for police to do their job.

Rights are not a zero-sum thing, they're a balance. As one famous jurist once said "my right to swing my fist ends where the other person's nose begins."



Fitzroy Legal Service