Australian Civil Liberties Union
Your Rights 2005
FREEDOM OF SPEECH AND MOVEMENT
General Restrictions on Freedom of Speech and Movement. Libel. Book Censorship. Rights of Demonstrators. Indoor Meetings.
RESTRICTIONS ON FREEDOM OF SPEECH AND MOVEMENT
There are several limitations upon freedom of speech and movement, namely, the requirements of local government by-laws, and the “incidental” offences of obstruction of the highway, conduct likely to cause a breach of the peace, the use of insulting, defamatory, blasphemous or seditious words, and obstruction of a policeman in the execution of his duty. Laws limiting freedom of speech and movement are in a chaotic state. The following observations are meant only as a general guide to your rights. There is no substitute for obtaining legal advice on the facts of each particular case.
Local By-Laws. Sometimes by-laws prohibit processions and open air meetings altogether; sometimes meetings are allowed provided application is made in advance, or at particular times or at certain sites. The provisions of local by-laws can be readily ascertained by ringing theTown Clerk of the relevant local government authority. Permits for processions are almost invariably required in city areas. Permits are usually easy to obtain.
Advance Notice to Police of Processions. The police have the right to regulate the route of processions, a right related to their duties of traffic regulation. If the police believe on reasonable grounds that a procession or proposed procession may cause serious public disorder, they may direct the organizers and participants to comply with such directions as they consider necessary for the preservation of order, but no restrictions on banners and placards should be imposed, except such as are reasonably necessary to prevent the risk of a breach of the peace. It is advisable to notify the police of a procession whether a permit is required or not. It might be thought that prior notice to police may give them greater opportunity of trying to regulate the route or laying down other conditions. However, large processions generally have to be widely advertised beforehand, so this point is a little unreal. Furthermore, whereas a meeting can generally get along without police assistance their cooperation in the case of processions can often be a real help by holding up traffic and so forth. The police have no power in general to censor the wording on posters but there have been cases of attempts to interfere with banners and placards in processions on the grounds that they are “likely to cause a breach of the peace” or on the ground that having regard to the wording used on the posters the parade amounts to “offensive behaviour”.
Likely Breach of Peace. Any intentional violence by one person against another is a breach of the peace.What we are concerned with here is not an actual breach of the peace (that would usually amount to assault or possibly an even more serious offence), but with conduct likely to cause a breach of the peace. A person may be arrested and brought before a magistrate if his conduct gives reasonable grounds for supposing that a breach of the peace may be committed, whether by him or someone else. Often the police can achieve all they want without making any arrest, by the mere threat of arrest. Thus, if an open air meeting is thought to be getting out of hand, the police may threaten to arrest the speaker if he does not close it down, or they may even threaten arrest if a meeting is started at all, on the grounds that a similar meeting held on a previous occasion had been disorderly.
Insulting words. Anyone using insulting words, or behaving offensively in a public place is guilty of an offence. It is not necessary to prove that anyone was actually insulted, but only that someone might have been. If a speaker goes too far in what he says, the mere content of his speech will be unlawful.
Offensive Behaviour. This must be such as is calculated to wound the feelings and arouse anger, resentment or outrage in the mind of a reasonable person. It does not cover conduct which is improper because it is blameworthy in a broad sense.
Slander. This involves making a false and derogatory statement about somebody which exposes him to hatred, ridicule or contempt or which has a tendency to injure him in his office, profession or trade. But actions of slander are rare.
Obstruction of Highway. Any person or collection of people likely to prevent members of the public from exercising their right to pass along or cross the street technically amounts to an obstruction, and as it is not necessary to prove that anyone was actually impeded, the offence is obviously a very wide one. The practical test is whether the accused person was using the street reasonably, having regard to the time of day, the amount of traffic, the width of the road, and the number of people present.
Obstructing a Police Officer. Any act intending to prevent a policeman from carrying out his duty is an offence. An assault on a policeman—which means any intentional striking, kicking or hitting, is punishable by heavy penalties. It is a defence to show that you did not intend to obstruct or assault him in the carrying out of his duty, but this is not easy to prove as a man is always presumed to intend the natural consequence of his actions, whether the person assaulted is a policeman or a private citizen. A defence to an assault charge is that you used only reasonable force to defend yourself.
Incitement. A public speaker who aids, counsels, procures or incites the commission of the above or any other offence is himself guilty of an offence, even if the incitement turns out to be ineffective.
Selling Literature in the Streets. In a number of areas there exists local legislation to control street trading and the distribution of advertising matter in the streets. It is not the general practice to invoke these laws against members of non-commercial bodies engaged in propaganda, and where they are so worded that they may possibly be used in such a way, specific exception may be granted upon application to the Town Clerk. The main difficulty likely to be met by a person selling literature or distributing leaflets is a suggestion that he is creating an obstruction. To avoid being accused of obstruction, the sellers or distributors should try to keep to the kerb and be careful not to get in the way of vehicles or pedestrian traffic. If a policeman thinks that a real obstruction is being caused, he has no right to confiscate the literature (again depending on local by-laws); all he can rightly do is to tell the seller or distributor to move on.
Written Material. Any printed paper or book meant to be published or distributed must bear the name and address of the printer. If any such material is published without the printer’s name and address both the printer and any person distributing the document are guilty of an offence (for example, a person distributing a handbill or sticking up a poster). The law of libel is much stricter than that of slander (defamation in speech) to which we have previously referred. Anyone proposing to publish material where there is a risk of it being considered likely to injure the reputation of an individual or any identifiable body of people should consult a lawyer first so as to ensure that no breach of the law is committed. This is particularly important when feelings are running high. Defences to libel proceedings include fair comment on a matter of public interest, fair reporting of a statement made in Parliament or the courts, and truth
Book Censorship. Although there is no formal censorship of serious books in Australia, many books on important issues are difficult to obtain. Thus various books on world wars, the Vietnam war, alleged war atrocities, the financing of wars, and the issues in the Middle East crisis are not freely available, often because of an informal trade boycott. To obtain a list of such books write to the ACLU, Box 1137, Carlton, 3053, Victoria.
The right to demonstrate is an important aspect of freedom of speech and assembly. A democratic system implies that minority dissenting views should not be suppressed unless they present a clear threat to public order. Expression of views on public issues by means of street meetings or processions—in short by demonstrations—should accordingly be afforded legal protection in a democracy.
The following approach could be adopted: Organizers of demonstrations should inform the police reasonably in advance of their intention to demonstrate and of necessary details such as purpose, time and intended location, and if the police know that a demonstration is to be held and do not hear from the leaders of the demonstration wishing to demonstrate, they should contact the leaders.There should be no requirement that people wishing to demonstrate should have to obtain a permit to do so. Police should not arrest people for trivial offences
Rights of Demonstrators. If you are approached by a policeman it is advisable to give your name and address upon request (whether local by-laws require you to do so or not). You should not be abusive or disorderly or resist a policeman, and should “move on” if required to do so. If you are arrested, you are entitled to make no statement, obtain a solicitor, and apply for bail. If you believe in freedom of speech and movement in principle, and not merely for yourself, you should respect the freedom of speech and movement of other people. If you are present at a public meeting, you should bear in mind the distinction between restrained (preferably witty) interjections, and organized disruption of meetings.The principle behind public meetings in a democracy is that public speakers have a right to a hearing.
The comments made above in relation to likely breaches of the peace, obstructing a police officer, and using insulting words, etc., apply here as well. A member of the public who goes to a meeting held on private premises such as a specially hired hall, does so technically at the invitation of the organizers of the meeting, who accordingly have the right to refuse admission to any member of the public without giving any reason, irrespective of whether the meeting has been advertised as “free” or whether admission is on payment only.
Heckling. This is everybody’s right, provided it is kept within reasonable limits. If the heckler goes too far and acts in a disorderly manner he will lay himself open to charges of insulting words and offensive behaviour, and possibly other offences.
Presence of Police. The police have no specific right to be present at an indoor meeting, except by invitation of the organizers. It is, however, the duty of the police to prevent the commission of any criminal offence and the courts have held that if the police reasonably believe that a breach of the peace is likely to be committed then they have power to enter private premises to which the public have been invited for the purpose of preventing the commission of such anticipated breach of the peace.
Contents of Your Rights
Australian Civil Liberties Union