The shrinking space for dissent in Australia

Co-sponsored by the Gilbert + Tobin Centre of Public Law and the Australian Institute of Administrative Law, the Public Law and Protest in Australia seminar explored a shifting legal landscape. Chaired by Daniel Joyce, Associate Professor at UNSW Law & Justice and Director of the Free Speech, Social Media and Online Speech Project, the discussion revealed a trend in which the rhetoric of “social cohesion” and “public safety” is increasingly used to dismantle the fundamental right to assemble.

A history of “whistling down” rights

According to barrister Felicity Graham, Australia’s legal relationship with protest has migrated from a foundation of common law, originally designed to deter actual violence, into a complex matrix of statutory offences. A pivotal turning point was the 1979 Public Assemblies Act, which followed the 1978 Sydney Mardi Gras. While it introduced the “Form 1” notification scheme to balance assembly rights with traffic management, experts argue the scales have now tipped toward total state control.

Graham describes a “whistling down” of legal protections, in which original laws, once designed with explicit carve-outs for “genuine protest,” have been overtaken by a modern regime of “exceptions to the exception.” This restrictive shift is exemplified by the Public Assembly Restriction Declaration (PARD), which empowers the Police Commissioner to declare broad “protest-free zones” that effectively nullify assembly rights.

Associate Professor Maria O’Sullivan of Deakin Law School identified a troubling judicial trend: the increasing use of contempt charges against protest organisers. Pointing specifically to the controversial NSW Court of Appeal ruling involving last year’s Pro-Palestine march to the Sydney Opera House, she argued that the threat to hold attendees in contempt creates a dangerous intersection between administrative authorisation and criminal liability. “[T]here’s been some criticism of that, I think, quite rightly, because it’s an authorisation process, and then having contempt charges is problematic,” O’Sullivan said.

She also warned that newly implemented hate speech prohibitions risk stifling the very slogans and expressions central to political dissent. According to O’Sullivan, these laws represent a move toward “criminalising certain speech which will have a chilling effect on the right to protest.”

Lawyers as allies to protest experts

A key theme was the necessity of collaboration between legal professionals and activists. Graham emphasised that while lawyers bring constitutional expertise, activists are the true “protest experts” who understand how laws function on the ground.

“We might be public law experts, but our clients are protest experts. We need the expertise of both to come together to be able to tease out the practical realities of these laws … and how that can translate into a challenge,” Graham stated.

She noted that this collaborative approach was evident in the 2023 Knitting Nannas case. In this case, the NSW Supreme Court struck down portions of anti-protest laws that threatened activists with $22,000 fines and two-year prison sentences for disrupting infrastructure. The court ruled these penalties unconstitutionally stifled the implied freedom of political communication, a major win for strategic grassroots litigation.

The rise of executive power

However, despite court victories, Samantha Lee, supervising solicitor at Redfern Legal Centre, warned of a significant rise in executive power. “The administrative processes really do curtail that legislative right,” Lee remarked, noting that executive declarations can now effectively decide the fate of a gathering before it even begins.

Lee emphasised that the right to protest must remain a universal pillar of democracy, regardless of whether the participants represent the far right or the far left.

She argued that society often “slips up” by conditioning its support for protest rights based on the cause being championed, rather than defending the principle itself. For Lee, physical assembly remains vital for the disempowered to hold the government accountable and demand a seat at the decision-making table.

“I think it can be a letting off of a valve to let people feel as though they’re participating in something,” Lee said.

While acknowledging the need for a balance, ensuring that protests do not descend into violence or violate hate speech laws, she expressed deep concern over the current climate in New South Wales, suggesting excessive police force and over-policing threaten the safety of those who still feel the powerful, fundamental need to make their presence known in the streets.

O’Sullivan added that governments often circumvent protest “carve-outs” in legislation such as the Major Events Act (2009) by citing “public safety” or the presence of visiting dignitaries. Challenging these moves on the grounds of “improper purpose” is notoriously difficult, as the true intent of a politician is rarely a matter of public record. Success, therefore, often hinges on the granular work of statutory interpretation.

Padraic “Paddy” Gibson, Associate Professor of History at the Jumbunna Institute, University of Technology Sydney, argues that protest is more than a right—it is a necessary assertion of collective power for those who lack institutional influence.

“I think what’s crucial, historically about protests is the vehicle whereby subaltern groups, oppressed groups, people who don’t have institutional power can actually express themselves and express their desires,” Gibson states.

Gibson argues the law often ‘morphs’ not out of benevolence, but in response to the scale of a movement, pointing to the 2024 Invasion Day march as a prime example. He says the “protest-free zone” map was nonsensically carved out around the march route, a move Gibson attributes to the government’s desire to avoid a high-profile failure of police power against a massive, defiant crowd.

The panellists were clear that a dual approach was needed. Litigation is essential to chip away at unjust statutes, but it is collective power, the physical presence of people on the street, that ultimately forces the state to recognise the limits of its own authority.

“[W]e’ve seen both the ways in which the law can be limited, but we’ve also seen the ways in which the participatory prospects of protests remain ever more urgent, and so hopefully public lawyers … will continue to think creatively about this area and recognise its significance within our democratic and legal system,” Joyce concluded.