With more restrictive laws across the country, how can we protect the right to protest?
- Written by Maria O'Sullivan, Associate Professor of Law, Member of Deakin Cyber and the Centre for Law as Protection, Deakin University, Deakin University
In the wake of the Bondi terror attack, multiple state governments have passed laws to restrict mass protests. Most notably, the New South Wales government introduced[1] controversial legislation giving police the power to restrict public protests for up to 90 days after a terrorist incident.
This unprecedented restriction was tested when thousands took to the streets to protest[2] against the visit of Israeli President Isaac Herzog.
The protest was followed by widespread allegations[3] of police brutality. These are currently being investigated[4] by the state’s police watchdog.
The organisers of the protest are also challenging the constitutional validity of the laws in the NSW Court of Appeal.
This latest round of law reform follows long-running concerns[5] about whether the right to protest in Australia is under threat. Two years ago, the Human Rights Law Centre found “protest is in peril[6]”. Little has changed since.
So, what do these state laws do, and how might they affect people’s democratic right to protest? How can lawmakers strike the right balance between human rights and the protection of public safety?
States tightening anti-protest laws
The right to protest has been restricted[7] in many of Australia’s states and territories over recent years through increased fines and sentences for acts such as traffic obstruction.
These laws have been further tightened in the past year.
In NSW, the government passed legislation[8] in December 2025 to allow the police to make a “Public Assembly Restriction Declaration”, following a terrorist attack.
As the name suggests, such a declaration means specific areas are restricted places for protest. If the police make this declaration, it grants them additional powers to:
A number[9] of these declarations were made by NSW Police during the protests against Isaac Herzog’s visit.
The declarations have now lapsed[10], so they’re no longer in operation. However, the legislation allowing police to make them remains in force.
What about in other states?
In Queensland, draft legislation[11] is currently before parliament. It will, among other things, allow the Queensland government to ban certain protest slogans.
If passed, it will be an offence to publicly use a prohibited expression in a way that “might reasonably be expected to cause a member of the public to feel menaced, harassed or offended”. This offence carries a maximum penalty of two years in prison.
Under this legislation, the government has announced they intend to ban[12] two phrases: “from the river to the sea” and “globalise the intifada”.
In Western Australia, the government has introduced a bill[13] allowing police to refuse a protest permit if they believe the protest is likely to promote hate based on factors such as religion, race, disability, gender, sexuality or ethnicity.
While various protest restrictions have existed for some time, the recent use of police “declarations” is concerning. They may lead to disproportionate use of force or discriminatory policing practices.
Some of the new hate speech offences are also problematic as they exclusively restrict protest slogans used by some pro-Palestinian protesters. These laws can therefore be seen as targeting particular political causes.
Protesters pushing back
A number of challenges to government restrictions have been lodged with varying success in recent months.
In Victoria, protesters challenged a “designated area” declaration prior to the 2026 Invasion Day rallies. The Federal Court found in favour of the protesters, dismissing the declaration as unlawful[14].
The declaration gave police the power to search a person or vehicle without a warrant and to direct a person to leave the designated area if they refused to remove a face covering when requested to do so.
The court found the declaration unlawful for a number of reasons. First, the assistant police commissioner did not apply the correct legal criteria and did not satisfy key requirements under the relevant legislation[16]. This meant there was a legal error in the way the decision was made.
Second, the assistant commissioner failed to give proper consideration to the right to privacy under the Victorian Charter of Human Rights[17].
In NSW, the Palestine Action Group recently tried to overturn a government declaration[18] that Israeli President Herzog’s visit would qualify as a “major event[19]” under the Major Events Act[20].
That declaration was significant because it granted police many of the additional powers outlined above.
That challenge, which had to be brought to court at short notice, did not succeed[21].
What can we do?
While governments in Australia are correct to address the perils of hate speech and consider public safety, there is a real concern that current legislation is weighted too heavily on the side of protest restriction.
One way lawmakers can strike a balance between the right to protest and other considerations is to adopt a human rights charter[22]. This would include a formal process for considering the right to protest (and other rights).
Importantly, this should also enforce an obligation on police to consider the right to protest when making decisions (as occurs in Victoria under its state charter).
There have also been calls[23] for a federal human rights act, as well as the introduction of human rights charters in states and territories that do not have one.
Combined, this would enshrine important legal recognition of our right to protest, which is fundamental to the functioning of a healthy Australian democracy.
References
- ^ introduced (www.nsw.gov.au)
- ^ protest (www.theguardian.com)
- ^ allegations (www.amnesty.org.au)
- ^ being investigated (www.bbc.com)
- ^ long-running concerns (www.abc.net.au)
- ^ protest is in peril (www.hrlc.org.au)
- ^ has been restricted (theconversation.com)
- ^ legislation (classic.austlii.edu.au)
- ^ A number (www.police.nsw.gov.au)
- ^ lapsed (www.police.nsw.gov.au)
- ^ legislation (www.legislation.qld.gov.au)
- ^ intend to ban (statements.qld.gov.au)
- ^ introduced a bill (www.parliament.wa.gov.au)
- ^ dismissing the declaration as unlawful (www.judgments.fedcourt.gov.au)
- ^ Jay Kogler/AAP (photos.aap.com.au)
- ^ relevant legislation (www.legislation.vic.gov.au)
- ^ Victorian Charter of Human Rights (www.legislation.vic.gov.au)
- ^ declaration (gazette.nsw.gov.au)
- ^ major event (legislation.nsw.gov.au)
- ^ Major Events Act (legislation.nsw.gov.au)
- ^ did not succeed (www.caselaw.nsw.gov.au)
- ^ human rights charter (theconversation.com)
- ^ been calls (www.hrlc.org.au)
Authors: Maria O'Sullivan, Associate Professor of Law, Member of Deakin Cyber and the Centre for Law as Protection, Deakin University, Deakin University
