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Dealing with Demonstrations

The law of public protest and its enforcement

By Roger Douglas

CONTENTSREVIEWS

This book explores the laws relating to political demonstrations. It is comprehensive in its coverage, and analyses relevant law in the Commonwealth and each of the States and Territories:

  • the degree to which laws impinging on demonstrations are subject to the implied constitutional freedoms enjoyed by other forms of political communications;
  • laws applicable to riots, unlawful assemblies, and to peaceful demonstrations;
  • the ‘public order’ offences with which demonstrators are usually charged although, on their face, they have nothing to do with the collective, communicative, or coercive aspects of the demonstration; 
  • police powers in relation to demonstrations.

Dealing with Demonstrations has been written with a view to assisting those with a direct interest in knowing the nature of ’demonstration law’, but it may also be read as a case-study of the ambivalent relationships between liberal democratic governments and their adversaries. It treats laws as reflecting both the commitment of Australian governments to political liberalism, and their unease about political conduct which poses even symbolic threats to their legitimacy. Courts tolerate peaceful, communicative demonstrations, but show considerable unease when demonstrations threaten ‘order’.

But, Douglas argues, laws and their enforcement reflect not only what governments would like to achieve, but also what they can achieve, and while laws constrain demonstrators, demonstrators are able to constrain governments.


CONTENTS

The Ambiguity of Demonstrations

Debating demonstrations
In defence of demonstrations
Objections to demonstrations
Evaluating the arguments
Arguments about rights
Arguments about lawlessness and violence
Arguments about democracy
Arguments about demonstrators
Arguments from prudence
Conclusions

The Legality of Demonstrations

International law
Constitutional issues
Common law presumptions
Riots and unlawful assemblies
Obstruction
Permits
Traditional permit systems
Modern permission systems
'No permit' systems

Public Order Offences

Charges
Laws
Resisting police
Offensive language and behaviour
Other offences

Torts

Interference with contractual relations
Intimidation
Nuisance
Injury to the plaintiff's trade or business
Trespass

Powers to Control Demonstrations

Police powers
Preventing breaches of the peace
Preventive measures: dispersal
Arrest
Police violence and harassment
Negotiation
Court orders
Binding over
Preventive measures: injunctions -- General principles/ Policy issues/ Union disputes/ Targets of injunctive orders
Preventive measures: bail conditions
Sentences

Conclusions

Anachronisms
Uncertainty
Limited protections
The hostile audience problem
Limits to law

Table of Cases/ Table of Statutes/ Index


REVIEWS

This book capably categorises and describes relevant aspects of international law, constitutional law and torts as well as public order offences and procedures applying to public demonstrations. It provides invaluable reference to applicable statutes, and Douglas’ approach to common law principles is thoroughgoing and historical. His broad conception of the laws potentially applying to protest is one of the strengths of the work.

Alternative Law Journal, Vol 30:6, December 2005

An important point is made throughout the book: while Australian governments on the whole have acted as if they accepted a prima facie right to demonstrate, there is no such right recognised by the law, only a series of limited ‘immunities’ – freedoms that are not prohibited. … As Douglas repeatedly demonstrates, the limited protection provided to political dissent in the application of demonstrations law is overly inclined to subordinate political freedoms to the demands of public order, and to achieve public order by allowing the interests of peaceful demonstrators to be subordinated to the whims of their violent opponents. …
Activism remains a difficult undertaking in Australia. … If activists are under threat, none of us should be under the illusion that the rule of law will protect us. A vibrant democracy requires the right to self-expression as much as protection from outside threats.

Overland, Vol 179, 2005

The discussion of the social worth of demonstrations together with some history does provide an interesting insight into the background of many of the cases discussed in the text. The arguments put forward promoting the benefit of demonstrations are well presented and are backed up with a variety of statistics, extracted from authoritative sources. …
The law concerning demonstrations is also dealt with in a comprehensive and methodical fashion. Any practitioner dealing with clients charged pursuant to such activities will find a wealth of material in this book, and will be well-equipped to provide the best representation possible. The same applies to those representing people or organisations against whom social protest is likely, and police.

BJM, Tasmanian Law Society Newsletter

We generally take the right to free expression and political demonstration for granted … despite the very qualified nature of the right to demonstrate. In fact, reading Roger Douglas’s succinct but penetrating analysis, one gets the impression that things work because the law is not enforced, or at least not strictly so. The police in all jurisdictions retain the whip hand …
The legal consequences of demonstrations are enough to unsettle the bravest activist. Apart from the public order offences that may be involved – unlawful assembly, resisting police, offensive language and disorderly behaviour – there are various torts applicable – intimidation, nuisance, interfering with contractual relations and trespass. There is also the possibility of pre-emptive court action such as injunctions. It is possible for the police to carry out pre-emptive arrests if they reasonably apprehend a real possibility of a breach of the peace. …
Ocasionally we see pious statements by the judiciary of the need to safeguard political expression and to balance this against the right to go about one’s other business undisturbed. The tenor of even recent decisions clearly indicates a judicial concern for order over other civil rights. This is not surprising (when did you last see one of their Honours on a picket line?), and as a result parliaments of various states have been the liberalisers of demonstration laws. …
Demonstrators are probably not very concerned with the state of the law, and will go on with their activities regardless. But it is important that the liberal rhetoric be reflected in the law itself, in particular the protection of peaceful demonstrators against violent opponents. The present law in effect makes them responsible for the violence of their opponents. Peaceful protest requires protection, not mere toleration.

Philip Burgess, Law Society Jnl (NSW), Vol 43(4), May 2005

   

Published 17 May 2004
Publisher The Federation Press
Hardback/176pp
ISBN 9781862874879
Australian RRP $49.50
Direct Price $45.00
International Price $45.00
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