Notice of Intention procedure for holding a rally or march
The theory
Australia comes from a historical ‘common law’ system. Essentially, this means that you can do anything you like as long as there is not a specific law against it. This is different from the European system of law, which is where there are explicit ‘rights’ that you can enforce. Australia has a slight mixture of the two. The law in NSW comes from the old common law system.
In NSW the law assumes that there is a right to protest and there are only laws saying how protests are to be regulated. The law regulating protests is found in ss22-27 Summary Offences Act 1988 (NSW). Protesting in the Act is called ‘peaceful assembly.’ This is the phrase used for the rest of this section, so as to make it the same as the Act.
In legal theory you can have a peaceful assembly anywhere at any time but in reality it is likely that you will end up breaking some laws. For example, if you engage in a peaceful assembly across George Street, Sydney, in front of the Town Hall, you are not breaking a law against peaceful assembly, because you are free to do that anytime, anywhere. However, by blocking off George Street, you would be breaking the law in relation to obstructing traffic - because obstructing traffic is a crime.
There is a "notice" procedure in place to deal with this. This means that if you give the police ‘notice’ of the assembly, you have a legal defence to the obstruction offences. That is, if you give notice to the police, you are not breaking the law if you then obstruct traffic or pedestrians on the footpath.
7 days’ clear notice to the police
If you fill in the Form 1 and serve it on the police giving seven days' clear notice, it becomes 'authorised.' The word 'authorised' is the word used in the Act, although it is slightly misleading, because ‘authorised’ suggests that someone has authorised something, but this isn’t the case. The police have no power to 'authorise' or 'unauthorise' the peaceful assembly taking place. The only thing the police can do is to make an application to the Supreme Court for the peacefully assembly to be 'prohibited.'
This rarely happens: the police have made fewer than ten applications to the Supreme Court in the last 20 years.
Even if the peaceful assembly is 'prohibited' by the court, you can still go ahead. The use of the word 'prohibited' in the Act is also misleading. It simply means that the peaceful assembly can go ahead, but that you don’t have the immunity from the criminal offences of obstruction and unlawful assembly. It may be that the police don't fully understand these legal subtitles, and they perceive a protest to have been 'prohibited' as one that is banned and police the assembly accordingly.
Just to repeat: the advantage of getting a protest authorised is that you cannot be held guilty of any offence relating to obstructing vehicles, or pedestrians, or the offence of unlawful assembly. However, it doesn’t give you protection against other crimes, such as graffitiing, or breach of the peace, or damaging property.
The practice
The completed Form 1 can be served by "leaving it with any member of the police force" (s23(2) Summary Offences Act 1988 (NSW). It is important to photocopy the Form 1 so you have a copy for your own records, and to get a receipt from the police officer that you give the Form 1 to. Some police officers think you have to give the Form 1 to the police station nearest the protest point or to the Police Head Office. This is not correct.
Also, if the police contest a Form 1 application by applying to the Supreme Court, the Supreme Court can award legal costs against the person who signed the Form 1. These costs can be thousands of dollars, so the person signing the Form 1 has to consider this before signing. The ability to award costs in this way has not been known to occur in relation to a protest situation, but there is always a first time.
Even very senior police officers are sometimes confused about this area of the law. While freedom of speech and political expression are an essential part of a democratic society, police on the day are more likely to focus on issues such as traffic disruption.
If the police have said that they will oppose the protest going ahead and will be making an application to the Supreme Court, it may be an idea to contact a group like the NSW Council for Civil Liberties who have experience with these issues.
If you insist on having the protest, the police may decide that they wont go to the Supreme Court but may police the protest more aggresively. It is better to get police agreement, but sometimes the police insist on conditions that activists find unacceptable.
How do you obtain ‘authorisation’?
To obtain authorisation (remember, it is an automatic authorisation) you need to give 7 days’ clear notice. Clear notice means 7 days have to elapse between putting in the form and the assembly, so if the assembly is next Sunday, the form has to be served on the previous Saturday (or before). The form is called a ‘Notice of Intention’ and a copy can be found here: Appendix 1 of the Summary Offences Regulation
Filling in the form
The form requires details of the peaceful assembly or march, such as
- date of protest
- if it is a march, state the time at which it will commence, and a
proposed route
- the purpose of the protest
- an expected number of participants at the protest, etc.
The notice must be signed by the organiser of the protest and state their address (a business address will do).
The bottom of the "Notice of Intention" says that "I take responsibility for organising and conducting the proposed assembly." It is not clear what this means, if anything, apart from the fact that a person can be directed not to further organise the assembly if the Supreme Court gives that order.
Giving less than 7 days’ clear notice to the police
A procedure exists where it is possible to get a peaceful assembly ‘authorised’ if you give less than 7 days notice. You can still give a Notice of Intention to the police, but this time they have the discretion to say that they don’t approve of it. If that happens, it is possible to apply to the Supreme Court for an order. We do not know if this as ever happened.
If the law is not on your side, still try and negotiate with the police. They might agree to protests at very short notice (a day or two) if a good case is made out.
Also, don’t assume that the police officers you deal with are knowledgeable about authorisation procedures. Very senior police officers may have little practical experience of this area of law.
What is the likelihood of the police taking the matter to the Supreme Court?
It is rare for the police to seek a Supreme Court "prohibition" order. They are more likely to say “we won't allow it” or "that's not going to happen." The officer who says this is likely to be from the Traffic Division. They are well aware of the basic law in relation to protests. Simply point out that you know that the police have no power to prohibit a peaceful assembly and they have to apply to the Supreme Court if they wish to do so. If the police continue to oppose the assembly going ahead, consider contacting a group like the NSW Council for Civil Liberties for support.
More discussion about the meaning of the Notice of Intention procedure can be found in the 2003 case Commissioner of Police v Rintoul.
Earlier cases
An early example dealing with similarly worded legislation in 1980 concerned Commissioner of Police v Vranjkovic (unreported, 1980 NSW BC8000050 27 November 1980). The Croatian National Council wished to protest against the oppression of the Croatian people by the Yugoslav Government. The protest was due to be held outside the Yugoslav Consulate in Woollahra.
Croatian National Council protests had previously been violent and Justice Lee believed that a breach of the peace was likely at the proposed protest. Justice Lee stressed that a court order "prohibiting" a protest did not make the protest illegal.
The point is worth emphasising because sometimes the idea of a "prohibited assembly" is confused with a serious criminal offence called 'unlawfu assembly.'
Commissioner of Police v Rintoul
The Refugee Action Coalition planned a protest against the Federal Government’s policy on refugees. The protest was due to take place outside the home of Phillip Ruddock, Federal Minister for Immigration, in the Sydney suburb of Pennant Hills. The organiser of the protest, Ian Rintoul, submitted a Notice of Intention with 7 days’ clear notice, and the Police Commissioner said he opposed the demonstration going ahead.
Rintoul pointed out that under the law, the Police Commissioner had no authority to stop the demonstration going ahead, so the Police Commissioner had to apply to the Supreme Court for an order "prohibiting" the demonstration.
Senior police officers gave evidence saying that they opposed the demonstration and said that the factors they took into account include their fear that the protest would lead to a breach of the peace, the fact that the protest was due to take place in a residential area, the potential invasion of privacy for the Minister and his family and that traffic would be disrupted.
Justice Simpson rejected the application by the Police Commissioner for a prohibition order saying that protests were by their very nature disruptive. If traffic were always given priority then there would never be a protest. Her Honour also emphasised the 'very limited nature' of the 7-days Notice procedure, as it only protected people from being charged with obstruction and unlawful assembly.
The 2004 case of Commissioner of Police v Gabriel also discusses these issues.