Are you allowed to protest in New South Wales?

protesting NSW during pandemic

Last week 150 people were arrested and hundreds more were handed public health infringement notices for taking part in demonstrations outside local council chambers across the state.

There were 79 separate protests against extended lockdowns in Ballina, Grafton, Lismore, Port Macquarie, and also further south in regional areas around Sydney.

In Australia we have long upheld the democratic right to protest, to freedom of speech and political opinion as well as the right to public assembly.

Protesting is prohibited during the pandemic

But right now, under current public health regulations, protesting is prohibited, and if you protest, you can expect to face the full force of the law.

In the wake of protests in the Sydney CBD several weeks ago, police set up strikeforce ‘Seasoned” which aims to identify anyone who has attended protests during lockdowns, because there are fears that these events could spread Covid. The Delta variant is particularly contagious, and right now police are heavily enforcing rules against gatherings and movement.

But aside from the current public health rules, other laws you may inadvertently break when you protest include resisting or hindering police, obstructing traffic, offensive conduct, and unlawful assembly.

When can you be arrested?

In New South Wales, under the Law Enforcement (Powers and Responsibilities) Act 2002, Section 99 outlines the circumstances in which police officers can arrest people without a warrant. These include preventing an offence, stopping a person from fleeing, suspecting that identification information provided is false and to protect the safety and welfare of others.

An officer can use as much force as is necessary to arrest a person, and an officer may handcuff an arrested person if they’re concerned they may try to escape.

Resisting arrest

Resisting arrest is an offence. Section 546C of the Crimes Act 1900 (NSW) outlines the offence,  which carries penalties of up to 12 months in prison and/or a $1,100 fine. Struggling, spitting at police and making threats, resisting handcuffs, and running away can all constitute this offence.

If you are arrested

If you are arrested, you are required to truthfully provide a name and address.

You do not have to answer any initial questions or undergo an interview, and it’s best not to. The first thing you need to do if you are arrested, is contact a lawyer.

If you are charged by police, the police at the station you have been taken to will decide whether or not to grant you police bail on the promise that you will attend court in due course to face the charges. There have been changes to the way courts are operating during Covid, so you may be able to appear by telephone or video link, or have your matter dealt with via email.

If the offence is fairly minor, police bail is usually granted, and you will be released with or without conditions. If police bail is refused, you will be kept in custody until your bail application is decided in court, and should have legal representation.

Police cannot refuse your request to seek legal advice.

Search Powers

Section 27 of the LEPRA allows police officers to search an individual following their arrest if they reasonably suspect they’re carrying something that is illegal (such as drugs)  presents a danger, could assist in their escape, has been used or is intended to be used in committing an offence, or is evidence of a crime.

Police officers also have the power to seize your phone or other electronic device, but only after they’ve either carried out a search or an arrest. However, if police want the password for a device, they must apply for a court order to be legally able to demand it.

 


 

This post is informative only. It is not legal advice.  If you have a specific legal matter you’d like to discuss, please contact us.

If you have a specific legal matter you’d like to discuss, please contact us. We service the area from Coffs Harbour to Byron BayBallina and Tweed Heads regions on the Far North NSW Coast.

To learn more about The Local Court Lawyers, see our What We Do page.

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