1 Introduction

Campaigning carries with it the risk of falling foul of the law - for example, being arrested or having defamation action taken against you. For most campaign actions, the risks will be small. Nevertheless, it is important to be aware of your rights and duties under the law. Being informed helps you to feel more in control, be aware of your rights, stay out of trouble or, at least, minimise the trouble you may get into.

This Guide focuses on summary offences and police powers pertaining to non-violent actions, as these are the sorts of matters that campaigners (and especially environmental campaigners) are usually faced with. It also deals with police responsibilities in a campaigning context, an often neglected area. Broader and more serious matters (such as drugs, violent offences and tortious actions) are also touched on, as even non-violent actions can go wrong.

1.1 Using this Guide

This Guide is not a substitute for legal advice. Criminal laws and regulatory offences change so quickly that you should always seek legal advice before acting. The currency of the information contained in this guide is indicated at the beginning of each online chapter.

1.1.1 Before the event

This Guide seeks to arrange information from the perspective of campaigners. Many offences and powers are context specific - that is, they depend on where you are physically. For example, the powers of police or other authorised officers and the type of things you are allowed to do will depend on whether you are on the street, in forestry areas, on private land or even in a car. Police responsibilities to you will also differ in these different contexts.

Scenario-setting thus underpins the structure of the Guide, with chapters on specific areas - Inclosed Lands , On the Street, Forestry Areas, National Parks and Protected Areas, Special Areas, and Commonwealth Land . The Guide seeks to make campaigners aware of their rights and responsibilities in these specific contexts before they embark on a course of action - be it a street demonstration or a blockade - to ensure that they are adequately prepared.

However, this scenario-setting material needs to be read in conjunction with the chapters on actions and offences that operate regardless of location, such as speaking out in public and doing things that may interfere with business activities, as well as general offences and search and arrest powers under the criminal law.

1.1.2 After the Event

If things go wrong, the Guide serves a different purpose. By this stage, you will be aware of the specific charges you are facing or civil action that has been brought. The index will help to identify relevant information about the charges you are facing. Extensive references have been provided to point you and/or your lawyer to the relevant legislative provisions. Also, if you are facing criminal charges, you should read and familiarise yourself immediately with the chapters on Preparing for Court and Going to Court.

Text Box 1.1

Protesting in Particular Areas

This Guide provides information about laws applying in particular locations. Many of the rules applying to particular areas are contained in regulations. A regulation is a legal instrument that provides detailed rules in relation to issues covered by an Act of Parliament.

Two cautions should be noted.

First, regulations can be changed much more easily than Acts of Parliament. Regulations simply need to be put before Parliament, and will become law unless disallowed.

Second, regulations contain a great deal of detail. For example, you are not allowed to address public assemblies in the Royal Botanical Gardens, but you may do so in the Domain during the day. These are set out in the Royal Botanical Gardens and Domain Trust Regulation 2008.

This Guide seeks to provide a solid overview of the laws applying in particular areas, yet is obviously unable to cover all potential scenarios. Thus, certain assumptions about the nature of protest actions need to be made. The Guide covers in considerable detail the laws applying to loitering, identification, public assemblies, trespass, search and seizure, obstruction and so on.

Police and other authorised officers may be extremely tolerant, and privately supportive, of protest actions. On the other hand, they may be antagonistic and seek to thwart the aims of a demonstration. This Guide makes few assumptions about how officers will behave in specific circumstances. Rather, it sets out the main powers and responsibilities of police and other law enforcement officers as the basis for informing campaigners.

However, there are limits to this approach. In particular, innovative or overseas models of protest actions such as "crowd-surging" along public streets, human pyramids, music, kite-flying, balloons and even "contrived" spontaneity (which are often used to inspire campaigners, make the protest fun, and promote a sense of community), are activities that simply cannot be comprehensively covered. Particular regulations may allow, prohibit or prohibit indirectly (on grounds such as nuisance) such activities. As the Easter 2005 Baxter Detention Centre protests showed, the law is flexible: Police banned kite-flying and burst balloons due to the fact that the area is in "restricted air space".

Therefore, when considering and engaging in protest actions in particular areas, you should make yourself familiar with the regulations applicable to your protest, as well as this Guide. Refer to the footnotes in this Guide to identify the relevant regulations. These regulations are available at www.legislation.nsw.gov.au (NSW) or www.austlii.edu.au/au/legis/cth/consol_reg (Commonwealth).

To give a further historical example used by Douglas, hundreds of communists were charged with soliciting funds and selling literature under Domain by-laws in the 1930s. This offence remains today under (NSW) Royal Botanical Gardens and Domain Trust Regulation 2008 cl 11(a) and (b): see Douglas R (2004) Dealing with Demonstrations: the Law of Public Protest and its Enforcement Federation Press, Sydney, Australia at p 91.