June 2020 Update: This article was published in September 2018. In the past year or two, Queensland Police have become much less reasonable and flexible about negotiating and supporting authorised peaceful assemblies. It is becoming more common for the police to take organisers to court for lodging a notice of intention to occupy a road, which in turn means the value of lodging a notice is diminishing somewhat. It's hard to provide general advice on whether you should or shouldn't lodge a notice for a given event, because the outcome depends on the subjective discretion and biases of individual police commanders and judges. The following info is all still generally correct, and if you get a not-too-conservative judge, it's still possible to win in court even if the police apply for an order preventing your assembly.
Here’s some basic advice on navigating the rules for holding public rallies and marches in Brisbane, which are governed by the Peaceful Assembly Act 1992.
This is not a detailed guide on how to organise a protest, but simply a rundown of the specific rules that apply to protests in Brisbane. These rules can sometimes be overridden by special legislation for specific locations and events, such as with the G20 or the Commonwealth Games.
Disclaimer: The following is general advice only. I’m not a lawyer, and this information should not be interpreted as specific legal advice regarding individual situations.
If you have any questions about all this, you can email my office on firstname.lastname@example.org.
It’s important to remember that protest actions which challenge the power and authority of the state can often be more effective at shifting policy and getting your message across, so you don’t have to go through the legal processes, but then you run the risk of arrests and fines. Some activists argue that every time we organise a protest using the Peaceful Assembly Act process, we reinforce and legitimise the power of the state, and so actually we should never formally notify the police. This is an ongoing debate in Brisbane’s activist circles…
Step 1 – Avoid Date Clashes
Do some basic research online to avoid clashes with other protests and public events. There’s no point going any further in submitting notices to the police and council if some other event is already organised for the time and location you’re considering (unless of course your goal is to disrupt that other event). For spaces like King George Square and Brisbane Square, double-check the BCC website. You can also try calling the council on 3403 8888 but you might not get a straight answer.
The police keep their own calendar of protests they’re aware of. Before you lodge the formal documents, you can try contacting them at MajorEvents.BR@police.qld.gov.au to ask if they’re aware of any potential clashes, but they might be slow in getting back to you, so if you’re in a rush, don’t wait for them.
Step 2 – Lodge a Notice of Intention
Download a copy of a Notice of Intention to Hold a Public Assembly from the Queensland Police website.
At the police’s end, they tend to leave coordination up to whichever team oversees the area that the event starts on, so if your protest is meeting at South Bank but then marching across the river to the northside, it will probably still be handled by the South Brisbane Riverside Patrol team.
Advice on filling out the Notice of Intention
The Notice of Intention requirements are defined in section 9 of the Peaceful Assembly Act 1992. Technically, you don’t have to fill out the actual police form, you just have to make sure the written notice has all the information listed in the act. But it’s probably easier to just use the police’s form.
Even though the police form says it must be handwritten, there’s no legal requirement to do this. We always fill out the form by computer and this has never been a problem as long as there’s a signature on it.
Sometimes, Brisbane City Council might ask you to fill out their own Notice of Intention form, but you’re not legally required to do this. Just send them a copy of the same form that you’ve sent to the police.
Some parts of the form won’t be relevant to your event.
When I’m organising a stationary rally rather than a march, I just write ‘No procession’ in the sections that ask for info about a procession. We don’t usually bother giving much detail about what kind of banners we’re using, because it’s not a legal requirement and the police shouldn’t be preventing you from carrying banners anyway.
You can see an example of a completed notice at this link.
When we’re organising a march, or a larger rally that includes a big stage, we will sometimes send the police an aerial map showing the layout and march route. This is not a legal requirement, but it calms them down because it reassures them that you’re well organised, and it will mean that they’re less likely to try to make your life difficult.
Under section 10 of the Peaceful Assembly Act, your protest is ‘taken to be approved’ – that is, approved automatically – if you have emailed in your properly completed Notice of Intention with at least five business days’ notice.
This means that even if council or the police don’t want your protest to go ahead, giving written notice means it’s still legal, and they can’t technically charge you with causing a public nuisance or blocking a roadway etc (but they can still charge you if you damage property, harm another person etc).
If you’ve given at least five business days’ notice, the only way the council or police can stop you going ahead is if they get a court order from the Magistrates Court preventing the rally.
The actual wording of the act says “if the assembly notice was given not less than 5 business days before the day on which the assembly is held”. In counting the ‘five business days’ our understanding is that you just have to get the notice in before close of business a week beforehand. So if your rally is on a Monday morning, you would have to email your notice before 5pm of the previous Monday (assuming no public holidays). But for the sake of diplomacy and not stressing out overworked police officers, it still might be good to get the notice in as early as possible.
Step 3 – Approval/Negotiation with the police
Once police receive your notice of intention, their process is to give you a call to say hi, and email you out a notice of permission for the public assembly for you to sign. As explained above, if you have given five business days’ written notice, this permission notice is technically not a legal requirement.
However if you lodged your notice with less than five business days’ notice, and the police refuse to give you a notice of permission, your rally won’t be authorised under the Peaceful Assembly Act unless you apply for approval from the courts under section 14.
So if you’re organising your march at short notice, you should try to negotiate with the police to get a notice of permission, otherwise they can charge you with obstructing traffic etc.
How can they stop you?
If you’ve given five business days’ notice, and the police don’t want you to go ahead with the protest (for example, if you’re blocking a very busy road in peak hour), the police must apply for a court order under section 12 of the Peaceful Assembly Act. Before they can apply for a court order, the police (or council) must first hold a mediation session with the protest organisers using an independent mediator in accordance with the processes set out in the Dispute Resolution Centres Act 1990 .
What this boils down to is that as long as you’ve given adequate notice, the government has to go to a lot of trouble if they want to stop you, and generally it’s easier for them to just agree to the protest and try to impose conditions.
Do I need public liability insurance?
Lately, Brisbane City Council has been telling some organisers that they need insurance to hold a rally in a council park. This is not true. There is no legally enforceable requirement to hold insurance and you should clearly refuse such requests from council or the police.
Legal responsibility for any injuries or damage occurring at a protest is the same for any other use of public space. So for example, if a protestor scratches a parked car, they are personally criminally responsible for. If a protestor twists their ankle in a pothole that council should have repaired, the council might be responsible for medical costs under negligence laws, but if a protestor climbs a tree, falls and hurts themselves, it’s probably their own fault.
Am I responsible for traffic control or traffic management plans?
Police or the council might occasionally tell you that you also need to apply for a road closure permit or organise traffic control to shut off streets and divert traffic. This isn't actually true. The whole point of the Peaceful Assembly Act is to allow residents who don't have the money to hire a traffic control company to be able to use the street for the purposes of public assembly. If traffic control is considered necessary to allow residents to peacefully assemble on a particular street, it's technically up to council or the police to provide this.
Can they prevent me from erecting shade shelters and info tables as part of a rally?
The legal situation is unclear, but probably not.
Setting up temporary shade shelters/gazebos is part of a peaceful assembly, and as long as they’re properly secured against the wind and you’re not going over the top with them, you should be fine.
In places like King George Square, the council might try to insist on a condition preventing shade gazebos, but I doubt it would be legally enforceable.
Section 5 of the Peaceful Assembly Act says the right to peaceful assembly is subject “only to such restrictions as are necessary and reasonable in a democratic society in the interests of public safety, or public order” etc. On a hot sunny day, denying protestors access to shade is an unreasonable restriction on free assembly, so if you hold your ground when negotiating with police and council, they will not legally be able to insist on banning gazebos.
How much noise can we make?
There are no specific rules on noise limits and volumes within the Peaceful Assembly Act, but the act allows for restrictions that are necessary to protect the health, safety, rights and freedoms of other people. It’s probably arguable that the general state and federal environmental protection laws against noise pollution would apply, but as far as I know, it’s never been an issue at a rally.
In some publicly accessible spaces - such as inside the lobby of the State Government HQ at 1 William St - building security might ask you not to use a PA system/megaphones, but if you've lodged a notice of intention, they can't stop you. If you haven't lodged a notice of intention, it'll come down to a test of wills between you and the police/security. A police sergeant would have to be pretty stupid/crazy to start arresting or fining protesters simply on the basis that their PA is too loud.
In the past, we’ve had loud bands and DJs playing at events that were authorised under the Peaceful Assembly Act, and haven’t had any problems. I think the best approach is to use commonsense and don’t turn up the speakers so loud that you deafen your own supporters.
You should think practically about which direction your speakers are pointed to maximise coverage of the crowd (it helps to lift speakers off the ground with stands or milk crates) rather than having a single speaker pointed in one direction, which can mean that when someone is standing in front of the speakers it's way too loud while someone standing a bit off to the side still can't really hear the speeches properly.
Where can we legally assemble?
The Peaceful Assembly Act protects the right to protest in any public place. A public place is defined in section 4 as including:
“(a) a road; and
(b) a place open to or used by the public as of right; and
(c) a place for the time being open to or used by the public, whether or not—
(i) the place is ordinarily open to or used by the public; or
(ii) by the express or implied consent of the owner or occupier; or (iii) on payment of money;”
So basically, this would include publicly accessible spaces on private land, such as in the forecourt or lobby of a big office tower, or inside a shopping mall (of course, if security guards on a private property know you’re coming, they’ll probably lock you out).
Importantly, this also applies to land controlled by South Bank Corporation. In recent years, South Bank has strongly resisted any protests taking place within the parklands on the basis that South Bank is “a family-friendly place” (I find this amusing because it implies that other parks like Roma Street are not family-friendly). But in fact, in terms of how the Peaceful Assembly Act operates, South Bank Parklands is just like any other park, so if you send your Notice of Intention to both the police and council with five business days’ notice, they would need a court order to stop you.
It’s pretty straightforward
So that’s basically all you need to know.
Although for the last forty or fifty years, Australian streets have been seen as the exclusive domain of cars, there’s no reason we shouldn’t reclaim them as public spaces for people too.
If you lodge a Notice of Intention at least one week before the protest, you can legally block roads, hold protest gigs in public parks, and arguably even hold protest pool parties down at South Bank.
I find it’s generally better to maintain open channels of communication with the police, because they are more likely to panic and do something stupid if you take them by surprise. But remember: you have a democratic right to peaceful assembly, so don’t let them insist on conditions that unreasonably restrict or limit that right.