October 9, 2025 • 12 mins
Across the country, protests are held every week. Sometimes, it’s to protest against government actions, other times, to bring attention to an overseas cause. A pro-Palestine protest organised for this weekend in Sydney has been banned by a NSW court, which ruled the public safety risk is “extreme”. In light of this decision, we wanted to ask the question: Is there a right to protest in Australia? We’ll unpack that and the latest decision in today’s podcast.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
Already and this is the Daily This is the Daily OS.
Speaker 2 (00:05):
Oh, now it makes sense. Good morning and welcome to
the Daily OS. It is Friday, the tenth of October.
I'm Sam Kazlowski.
Speaker 1 (00:19):
I'm Lucy Tassel.
Speaker 2 (00:21):
Across the country, protests are held every week. Sometimes it's
to protest against government actions, and other times it's to
bring attention to an overseas cause. A pro Palestine protest
organized for this weekend in Sydney has been banned by
a New South Wales court, which ruled the public safety
risk is quote extreme. In light of this decision, we
(00:42):
wanted to ask the question of if there is indeed
a right to protest in Australia. Lucy and I are
going to unpack that and the latest decision in today's podcast.
Speaker 1 (00:57):
Sam, let's start pretty high level. Well, the question that
you mentioned up at the top, is there a right
to protest in Australia.
Speaker 2 (01:05):
Well, people certainly say there is. And I think that's
a good starting point. Is that we we're basing this
discussion out of observing how we talk about the rights
that we should have in a country like Australia and
the way in which those who lead these protests or
these protests attempts explain the legal basis for their plans.
But in Australia there are certain rights that are explicitly
(01:28):
protected in our constitution, but our constitution doesn't afford us
these constitutional protections in the same way that the US
speaks about their constitution. It's very clear. In the US
the constitutional rights are quite prescriptive. There's a huge amount
of case law that shows people exactly how they can
be used and how they can't be used. But in
(01:49):
an Australian context, there are only a few explicitly recognized
rights in that document. So that's things like the right
to vote, the right to a trial by jury, and
the freedom to practice religion. But there's nothing about protesting specifically.
Speaker 1 (02:04):
Okay, so is there anything that governs our ability to
protest in Australia.
Speaker 2 (02:10):
Well, if we go globally with it, that's where we
can bring in the human rights treaties that Australia is
a party two. And in international human rights law, there's
kind of seven core documents that people look at as
the Holy Seven, and we've signed and ratified those ones,
and the right to freedom of assembly and association, and
(02:31):
that's protesting is actually contained in two of those key documents,
at least, the International Covenant on Civil and Political Rights
or the ICCPR and the International Covenant on Economic, Social
and Cultural Rights. And if we go a bit deeper
into what those documents say is your rights in this space,
the ICPR says that no restrictions may be placed on
(02:54):
the exercise of the right to peaceful assembly other than
those that playing into the rest of the laws. So
you can't block traffic, for example, because then it's about
public safety and some of those laws, and that's where
we see tension here in Australia. National security comes into it,
public order, public health, so that's where we talked about
the COVID protests a lot. But overarchingly, there should be
(03:19):
efforts to allow for peaceful assembly. Another part of the
document says that governments must restrict any quote, advocacy of national, racial,
or religious hatred that constitutes incitement to discrimination, hostility, or
violence through protest. So even as far back as the
middle of the twentieth century when these documents were tabled internationally,
(03:41):
there was this tension recognized of what are the conditions
that allow for a peaceful protest anywhere? Around the world.
And what then is a defensible way for governments to
say it's not on. And this is coming to the
forefront of the news a lot in the last couple
of days because there has been a big rejection of
a protest in Sydney. So earlier this week New South
(04:03):
Wales police made a legal bid to stop a planned
protest at the Sydney Opera House from taking place this weekend.
They cited public safety concerns and so if you think
back to those key international documents, that is one of
the ways that in international law, law enforcement can step
in and say it's not on. And on top of
that we can then look at state law and in
(04:24):
New South Wales, if you want to hold a rally
or a protest, you need to tell police about your plans.
You're meant to tell them about the expected crowd size,
the planned route. The protest then either goes ahead or
police file a court application to block it. So the
Palestine Action Group filed a notice with police. They said
they wanted to hold a protest to quote oppose the
(04:45):
war on Gaza and call on the federal government to
quote enforce sanctions on Israel with a demonstration at the
Opera House as part of their application. Interestingly, they made
the point that the banned Crowded House had performed at
the Opera House Forecourt to a crowd of one hundred
and fifty thousand back in nineteen ninety six, and that
(05:06):
was a way for them to kind of show that
from a public safety and a capacity perspective, the site
itself could handle the amount of people that were expected
to attend.
Speaker 1 (05:16):
Yeah, they didn't necessarily expect one hundred and fifty thousand,
but they have held a protest before that got many
more people than they expected, So I imagine they were using
that to say, like, this exact space has hosted this
many people before.
Speaker 2 (05:30):
It was purely an argument being made about the logistics
of hosting something there, something as simple even as you know,
when a protest of that size ends, how do people
get out safely? And is there enough public transport in
the area to ensure that people can exit the area
as they did enter. The organizer's barrister her name is
Felicity Graham. She also said that previous public events with
(05:53):
large crowds at the Opera House, such as the light
show Vivid that's held annually, that all was capably managed.
Didn't agree. The police said it had quote disaster ridden
all over it, raising concerns around crowd crushes, which they
also made the point was a concern at Vivid. So
both of them were using this example of prior events.
Speaker 1 (06:13):
There and certainly having been down on the Opera House
four Court during VIVID, I can kind of see both sites. Yes,
there are a lot of people there, but also yes,
there are moments where it can feel like, oh my god,
there's too many people here.
Speaker 2 (06:25):
Yeah, And to even make things more complicated, I mean
we've talked about the layer of international law, talked about
the layer of state law, there's also a layer of
the actual by laws of the site itself from the
Opera House Trust, and that says that you can't hold
demonstrations there. So it's like this layered cake of bureaucracy
that at any point you can really get caught. And
(06:49):
so the police said that if a demonstration was held
on the fore Court, protests would be participating in an
unauthorized assembly, so they wouldn't have the legal protections that
could access when they're at an authorized protest, And that
basically means that protesters could be open to being arrested
and sued for taking part in an unauthorized demonstration. So
(07:11):
all of this was put to the court. The court
ruled in favor of New South Wales police. They mentioned
in their judgment the concerns around crowd crushes and getting
in and out of the site safely, and they told
protest organizers they would have to organize the protest elsewhere.
That's an important point in the judgment is that this
was not a matter of talking about the content of
(07:35):
the protest itself, but the location.
Speaker 1 (07:38):
Yeah. Yeah, yeah, so then it is going ahead elsewhere.
Speaker 2 (07:41):
Yes, So it's exactly kind of the international legal framework
in motion of it's not about the right to protest.
This was a legal argument mounted around public safety. But
it kind of raises this really interesting point about which
playbook are we all reading from when it comes to
the right to protest.
Speaker 1 (08:01):
Yeah, So, as you said, there's this kind of layer
cake where we've got these kind of international obligations which
I imagine would be pretty hard to enforce. Then you've
got at the national level not a huge amount. Then
at the state level we've got this requirement of we
need to let police know that we're going to do
this and if they think there's going to be a risk,
then they file a court motion. And that we even
(08:24):
get down to the granular level of the Sydney Opera
House is kind of an important site in the city.
Speaker 2 (08:32):
Run by a trust, a body that has its own
kind and it has its.
Speaker 1 (08:35):
Own laws, which again it's like a question of how
do those get enforced? And then underneath all of that
we have the people who are trying to hold a demonstration.
Speaker 2 (08:45):
And then you put on top of all of that
the expectation that police, regardless of where they are in Australia,
are kind of making judgments in live time in these environments.
They're making judgments about that point that you and I
chatted about before, on the content of the protest and
what the key message of that protest is. It's a
really challenging role.
Speaker 1 (09:06):
Well, so that's sort of not really what police have
done here though they've just been thinking about the safety requirements.
Police are the kind of physical manifestation of the law
in a sense, what do what kind of We haven't
really talked about what New South Wales protest laws are like,
or what the laws that individual states can make. What
can you tell me about that, Well.
Speaker 2 (09:27):
They can vary quite a bit. So for example, in
twenty twenty three, South Australia increased maximum finds. They were
seven hundred and fifty dollars. They were increased to fifty
thousand dollars along with potential jail time for intentionally engaging
in quote conduct that obstructs the free passage of a
public place.
Speaker 1 (09:47):
Okay.
Speaker 2 (09:47):
Now, those laws were seen as a direct response to
climate activists like extinction rebellion disrupting city movements, and we
saw moments around the country I think pretty much in
every state and territory of climate activists putting themselves in
the way of a busy highway or a particular business
and those were honed in on by governments as a
(10:09):
real kind of disruption to the flow of the city, which,
if you want to get philosophical, is arguably the point
of protest.
Speaker 1 (10:16):
I think that's what they would argue.
Speaker 2 (10:17):
Yeah, And so we saw responses from a lot of
states and territories. We had that South Australian response, and
then more recently in New South Wales the government passed
legislation that granted New South Wales police greater powers to
disband protests and demonstrations near or within places of worship.
So there's another layer then to our layer cake near
(10:38):
or within was a term that is being tested in
court because what does that actually mean is that the
particular meter distance there. And that legislation followed a series
of what New South Wales Premier Chris Mins at the
time called quote, acts of anti semitism and intimidation. So
there are many examples. Those are just a few that
(10:58):
come to mind. Yeah, I've laid out a pretty confusing
kind of patchwork of law here, and the reality is
is that's kind of what's happening.
Speaker 1 (11:06):
Yeah, I mean we've given you a factual summation of
a very confusing situation.
Speaker 2 (11:11):
Yeah. And I think at the heart of all of
this is that one point that you mentioned very briefly
about about how hard it is to enforce international law. Yeah,
and these overarching big ideas, human rights doctrines, and the
key documents, those seven key documents, they're very hard on
the grounds to enforce. Yeah, they require police intervention to
(11:35):
enforce them, because that's how our country works. And between
point A of international law and point B of a
protest on the weekend, there's a whole lot of complexity. Yeah.
Speaker 1 (11:45):
Absolutely, Thanks so much for explaining that for us today, Sam,
and thank you so much for joining us. We'll be
back this afternoon with the headlines. Until then, have a
great day. My name is Lily Maddon and I'm a
proud Arunda Bunjelung Calkatin woman from Gadighl Country. The Daily
(12:05):
oz acknowledges that this podcast is recorded on the lands
of the Gadighl people and pays respect to all Aboriginal
and Torrestrate island and nations. We pay our respects to
the first peoples of these countries, both past and present.
Already and this is the Daily This is the Daily OS.
Speaker 2 (00:05):
Oh, now it makes sense. Good morning and welcome to
the Daily OS. It is Friday, the tenth of October.
I'm Sam Kazlowski.
Speaker 1 (00:19):
I'm Lucy Tassel.
Speaker 2 (00:21):
Across the country, protests are held every week. Sometimes it's
to protest against government actions, and other times it's to
bring attention to an overseas cause. A pro Palestine protest
organized for this weekend in Sydney has been banned by
a New South Wales court, which ruled the public safety
risk is quote extreme. In light of this decision, we
(00:42):
wanted to ask the question of if there is indeed
a right to protest in Australia. Lucy and I are
going to unpack that and the latest decision in today's podcast.
Speaker 1 (00:57):
Sam, let's start pretty high level. Well, the question that
you mentioned up at the top, is there a right
to protest in Australia.
Speaker 2 (01:05):
Well, people certainly say there is. And I think that's
a good starting point. Is that we we're basing this
discussion out of observing how we talk about the rights
that we should have in a country like Australia and
the way in which those who lead these protests or
these protests attempts explain the legal basis for their plans.
But in Australia there are certain rights that are explicitly
(01:28):
protected in our constitution, but our constitution doesn't afford us
these constitutional protections in the same way that the US
speaks about their constitution. It's very clear. In the US
the constitutional rights are quite prescriptive. There's a huge amount
of case law that shows people exactly how they can
be used and how they can't be used. But in
(01:49):
an Australian context, there are only a few explicitly recognized
rights in that document. So that's things like the right
to vote, the right to a trial by jury, and
the freedom to practice religion. But there's nothing about protesting specifically.
Speaker 1 (02:04):
Okay, so is there anything that governs our ability to
protest in Australia.
Speaker 2 (02:10):
Well, if we go globally with it, that's where we
can bring in the human rights treaties that Australia is
a party two. And in international human rights law, there's
kind of seven core documents that people look at as
the Holy Seven, and we've signed and ratified those ones,
and the right to freedom of assembly and association, and
(02:31):
that's protesting is actually contained in two of those key documents,
at least, the International Covenant on Civil and Political Rights
or the ICCPR and the International Covenant on Economic, Social
and Cultural Rights. And if we go a bit deeper
into what those documents say is your rights in this space,
the ICPR says that no restrictions may be placed on
(02:54):
the exercise of the right to peaceful assembly other than
those that playing into the rest of the laws. So
you can't block traffic, for example, because then it's about
public safety and some of those laws, and that's where
we see tension here in Australia. National security comes into it,
public order, public health, so that's where we talked about
the COVID protests a lot. But overarchingly, there should be
(03:19):
efforts to allow for peaceful assembly. Another part of the
document says that governments must restrict any quote, advocacy of national, racial,
or religious hatred that constitutes incitement to discrimination, hostility, or
violence through protest. So even as far back as the
middle of the twentieth century when these documents were tabled internationally,
(03:41):
there was this tension recognized of what are the conditions
that allow for a peaceful protest anywhere? Around the world.
And what then is a defensible way for governments to
say it's not on. And this is coming to the
forefront of the news a lot in the last couple
of days because there has been a big rejection of
a protest in Sydney. So earlier this week New South
(04:03):
Wales police made a legal bid to stop a planned
protest at the Sydney Opera House from taking place this weekend.
They cited public safety concerns and so if you think
back to those key international documents, that is one of
the ways that in international law, law enforcement can step
in and say it's not on. And on top of
that we can then look at state law and in
(04:24):
New South Wales, if you want to hold a rally
or a protest, you need to tell police about your plans.
You're meant to tell them about the expected crowd size,
the planned route. The protest then either goes ahead or
police file a court application to block it. So the
Palestine Action Group filed a notice with police. They said
they wanted to hold a protest to quote oppose the
(04:45):
war on Gaza and call on the federal government to
quote enforce sanctions on Israel with a demonstration at the
Opera House as part of their application. Interestingly, they made
the point that the banned Crowded House had performed at
the Opera House Forecourt to a crowd of one hundred
and fifty thousand back in nineteen ninety six, and that
(05:06):
was a way for them to kind of show that
from a public safety and a capacity perspective, the site
itself could handle the amount of people that were expected
to attend.
Speaker 1 (05:16):
Yeah, they didn't necessarily expect one hundred and fifty thousand,
but they have held a protest before that got many
more people than they expected, So I imagine they were using
that to say, like, this exact space has hosted this
many people before.
Speaker 2 (05:30):
It was purely an argument being made about the logistics
of hosting something there, something as simple even as you know,
when a protest of that size ends, how do people
get out safely? And is there enough public transport in
the area to ensure that people can exit the area
as they did enter. The organizer's barrister her name is
Felicity Graham. She also said that previous public events with
(05:53):
large crowds at the Opera House, such as the light
show Vivid that's held annually, that all was capably managed.
Didn't agree. The police said it had quote disaster ridden
all over it, raising concerns around crowd crushes, which they
also made the point was a concern at Vivid. So
both of them were using this example of prior events.
Speaker 1 (06:13):
There and certainly having been down on the Opera House
four Court during VIVID, I can kind of see both sites. Yes,
there are a lot of people there, but also yes,
there are moments where it can feel like, oh my god,
there's too many people here.
Speaker 2 (06:25):
Yeah, And to even make things more complicated, I mean
we've talked about the layer of international law, talked about
the layer of state law, there's also a layer of
the actual by laws of the site itself from the
Opera House Trust, and that says that you can't hold
demonstrations there. So it's like this layered cake of bureaucracy
that at any point you can really get caught. And
(06:49):
so the police said that if a demonstration was held
on the fore Court, protests would be participating in an
unauthorized assembly, so they wouldn't have the legal protections that
could access when they're at an authorized protest, And that
basically means that protesters could be open to being arrested
and sued for taking part in an unauthorized demonstration. So
(07:11):
all of this was put to the court. The court
ruled in favor of New South Wales police. They mentioned
in their judgment the concerns around crowd crushes and getting
in and out of the site safely, and they told
protest organizers they would have to organize the protest elsewhere.
That's an important point in the judgment is that this
was not a matter of talking about the content of
(07:35):
the protest itself, but the location.
Speaker 1 (07:38):
Yeah. Yeah, yeah, so then it is going ahead elsewhere.
Speaker 2 (07:41):
Yes, So it's exactly kind of the international legal framework
in motion of it's not about the right to protest.
This was a legal argument mounted around public safety. But
it kind of raises this really interesting point about which
playbook are we all reading from when it comes to
the right to protest.
Speaker 1 (08:01):
Yeah, So, as you said, there's this kind of layer
cake where we've got these kind of international obligations which
I imagine would be pretty hard to enforce. Then you've
got at the national level not a huge amount. Then
at the state level we've got this requirement of we
need to let police know that we're going to do
this and if they think there's going to be a risk,
then they file a court motion. And that we even
(08:24):
get down to the granular level of the Sydney Opera
House is kind of an important site in the city.
Speaker 2 (08:32):
Run by a trust, a body that has its own
kind and it has its.
Speaker 1 (08:35):
Own laws, which again it's like a question of how
do those get enforced? And then underneath all of that
we have the people who are trying to hold a demonstration.
Speaker 2 (08:45):
And then you put on top of all of that
the expectation that police, regardless of where they are in Australia,
are kind of making judgments in live time in these environments.
They're making judgments about that point that you and I
chatted about before, on the content of the protest and
what the key message of that protest is. It's a
really challenging role.
Speaker 1 (09:06):
Well, so that's sort of not really what police have
done here though they've just been thinking about the safety requirements.
Police are the kind of physical manifestation of the law
in a sense, what do what kind of We haven't
really talked about what New South Wales protest laws are like,
or what the laws that individual states can make. What
can you tell me about that, Well.
Speaker 2 (09:27):
They can vary quite a bit. So for example, in
twenty twenty three, South Australia increased maximum finds. They were
seven hundred and fifty dollars. They were increased to fifty
thousand dollars along with potential jail time for intentionally engaging
in quote conduct that obstructs the free passage of a
public place.
Speaker 1 (09:47):
Okay.
Speaker 2 (09:47):
Now, those laws were seen as a direct response to
climate activists like extinction rebellion disrupting city movements, and we
saw moments around the country I think pretty much in
every state and territory of climate activists putting themselves in
the way of a busy highway or a particular business
and those were honed in on by governments as a
(10:09):
real kind of disruption to the flow of the city, which,
if you want to get philosophical, is arguably the point
of protest.
Speaker 1 (10:16):
I think that's what they would argue.
Speaker 2 (10:17):
Yeah, And so we saw responses from a lot of
states and territories. We had that South Australian response, and
then more recently in New South Wales the government passed
legislation that granted New South Wales police greater powers to
disband protests and demonstrations near or within places of worship.
So there's another layer then to our layer cake near
(10:38):
or within was a term that is being tested in
court because what does that actually mean is that the
particular meter distance there. And that legislation followed a series
of what New South Wales Premier Chris Mins at the
time called quote, acts of anti semitism and intimidation. So
there are many examples. Those are just a few that
(10:58):
come to mind. Yeah, I've laid out a pretty confusing
kind of patchwork of law here, and the reality is
is that's kind of what's happening.
Speaker 1 (11:06):
Yeah, I mean we've given you a factual summation of
a very confusing situation.
Speaker 2 (11:11):
Yeah. And I think at the heart of all of
this is that one point that you mentioned very briefly
about about how hard it is to enforce international law. Yeah,
and these overarching big ideas, human rights doctrines, and the
key documents, those seven key documents, they're very hard on
the grounds to enforce. Yeah, they require police intervention to
(11:35):
enforce them, because that's how our country works. And between
point A of international law and point B of a
protest on the weekend, there's a whole lot of complexity. Yeah.
Speaker 1 (11:45):
Absolutely, Thanks so much for explaining that for us today, Sam,
and thank you so much for joining us. We'll be
back this afternoon with the headlines. Until then, have a
great day. My name is Lily Maddon and I'm a
proud Arunda Bunjelung Calkatin woman from Gadighl Country. The Daily
(12:05):
oz acknowledges that this podcast is recorded on the lands
of the Gadighl people and pays respect to all Aboriginal
and Torrestrate island and nations. We pay our respects to
the first peoples of these countries, both past and present.
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