This factsheet provides information regarding rights and legal consequences arising from participation in public protest. It provides a brief overview of common criminal offences relating to protest activity and information on interacting with police if you are suspected of committing an offence.

Right to peaceful assembly and the Human Rights Act 2019

Public demonstration and protest is considered a fundamental part of civic participation in democratic societies. This right has been recognised within Queensland to the extent that the conduct of the participants is lawful.[1]

As of 1 January 2020 the Human Rights Act 2019 (Qld) came into effect. This legislation provides a framework for other institutions to interpret functions in a way to be compatible with the rights listed in the Act.

The Act includes a right to peaceful assembly and freedom of association with others.[2] Institutional bodies such as parliament and the courts are required to interpret their decisions and new laws to act in accordance with prescribed human rights as much as possible.[3]

What can a Police Officer legally do?

The difference between Police and ordinary citizens is created by legislation. Legislation has requirements and limits that dictate when and how Police officers are required to undertake their duties. An awareness of these powers can assist to navigate situations on the ground during a protest.

Generally, a police officer can take the steps that the police office considers reasonably necessary to prevent the commission, continuation or repetition of an offence.[4]

While this may seem highly subjective, the legal test for reasonable suspicion has been interpreted to be whether ‘a reasonable person would be of that opinion having regard to the context and available information.’[5] A suspicion cannot be reasonable if it is arbitrary, irrational or prejudiced or is not supported by a sufficiently firm factual foundation.[6]

Require you to provide your name and address

You are required to provide your name and address to a police officer if they reasonably suspect you have committed, or are about to commit a criminal offence.[7]

If you are asked to provide your name and address you can ask the police officer what offence they suspect you have committed and why they believe you have committed it.  If you are not suspected of committing an offence, you do not have to provide your name and address.

If appropriate and safe to do so you should make a record of this interaction by audio or video recording or writing down the interaction after it takes place. This will help you recall what occurred later if you need to.

It is a criminal offence to fail to provide your correct name and address after lawfully being requested to do so.

Move on powers

A police officer can request that a person or group of people move on in any of the following ways:

  1. leave the place and not return to the place within a time of not more than 24 hours;
  2. leave a part of a place and not return within 24 hours;
  3. move from a location at or near a place for a stated distance and direction for a time within 24 hours.

They must tell you the reasons for giving the direction.[8]

When can a police officer lawfully exercise the power?

When a police officer reasonably suspects the person’s behaviour or presence is or has been:

  1. causing anxiety to a person entering, at or leaving the place, reasonably arising in all the circumstances; or
  2. interfering with trade or business at the place by unnecessarily obstructing, hindering or impeding someone entering, at or leaving the place; or
  3. disorderly, indecent, offensive, or threating to someone entering, at or leaving the place; or
  4. disrupting the peaceable and orderly conduct of any event, entertainment or gathering at the place[9]

However, a police officer must not give a direction to move on that interferes with a person’s right of peaceful assemble unless it is reasonably necessary in the interests of public safety, public order or the protection of the rights and freedoms of others.[10]

The power to search without a warrant

Police ordinarily need special permission in a document called a warrant from a Magistrate or a Judge to search people, places or property. However there are situations where they do not require a warrant to undertake a search.

Before discussing some of the circumstances where a police officer is lawfully allowed to undertake a search without a warrant, there are legislative safeguards designed to protect its abuse. Keep these in mind if you are searched because they are your rights and exist to hold members of Queensland Police accountable.

A police officer must not detain you for any longer than is reasonably necessary to undertake the search.[11]

They must –

  1. ensure, as far as reasonably practicable, the way the person is searched causes minimal embarrassment to the person; and
  2. take reasonable care to protect the dignity of the person; and
  3. unless an immediate and more thorough search of a person is necessary, restrict a search of the person in public to an examination of outer clothing; and
  4. if a more thorough search of a person is necessary but does not have to be conducted immediately, conduct a more thorough search of the person out of public view[12]

Unless an immediate search is necessary, the person conducting the search must be either –

  1. a police officer of the same sex as the person to be searched; or
  2. if there is no police officer of the same sex available to search the person – someone acting at the direction of a police officer and of the same sex as the person to be searched; or
  3. a doctor acting at the direction of a police officer.[13]

People

Police may stop, detain and search a person without a warrant and may employ reasonable force to do so in following circumstances:

*please note this is not a complete list and that it has been shortened to include the most likely circumstances for search without a warrant.

If they reasonably suspect the person has something that may be:

  • a weapon
  • an unlawful drug
  • stolen property
  • a housebreaking tool
  • intended to use to cause harm to someone else or themselves
  • a dangerous attachment device[14]

If any of the items are found, police are allowed to seize the item and keep it in their possession.[15]

A police officer conducting a lawful search may require a person to remove all items of clothing or all items of outer clothing from the upper or lower part of the body.[16] They must tell you before conducting the search that this is what they will ask you to do as well as their reason for requesting you to do so.[17] You must be given the opportunity to remain partly clothed during the search.

Vehicles

Police may stop, detain and search a vehicle as well as the occupants of a vehicle if they reasonably suspect that they have any of the items mentioned in the above list.[19]

Power of arrest

It is lawful for a police officer to arrest an adult the police officer reasonably suspects has committed or is committing an offence if it is reasonably necessary for 1 or more of the following reasons:

*some items have been omitted for relevance

  1. to prevent the continuation or repetition of an offence or the commission of another offence;
  2. to make inquiries to establish the person’s identity;
  3. to ensure the person’s appearance before a court
  4. to obtain or preserve evidence relating to the offence;
  5. to preserve the safety or welfare of any person, including the person arrested;

A police officer must inform you that you are under arrest and they may exercise reasonable force to affect that arrest. [20]

Common offences to be charged with at a public protest

Trespass[21] – a person must not enter or remain in a place used for a business purpose without the owner’s consent.

Public Nuisance[22] a public nuisance offence occurs if a person behaves in a disorderly, offensive, threatening or violent way and the person’s behaviour interferes, or is likely to interfere with the peaceful passage, through, or enjoyment of, a public place by a member of the public.

The legislation explicitly refers to offensive, obscene, indecent or abusive language as offensive behaviour capable of constituting the offence.[23]

An offence to contravene the direction or requirement of a police office[24] – Police officers have powers to give directions under certain circumstances. If they have lawfully given a direction to an individual or group of people, it is a criminal offence to disobey that direction.

The primary directions that you are likely to receive at a public demonstration is an order to move on from the area under the police power described above.

Assault or obstruct a police officer – a person must not assault or obstruct a police officer in the performance of their duties. [25]

New legislation targeting direct action methods

In late 2019 new legislation passed the Queensland parliament in response to disruptive actions taking place advocating for changes in climate change policy.

This new legislation creates new criminal offences and police powers that can be used to respond to previous direct action strategies.

Using a dangerous attachment device to disrupt lawful activities

A person must not use a dangerous attachment device to:

– Interfere with the ordinary operation of transport infrastructure
– Stop a person from entering or leaving a place of business
– Cause a halt to the ordinary operation of plant or equipment because of   concerns about the safety of any person unless the person has a reasonable excuse.[26]

 – it is a dangerous attachment device if it:

  1. reasonably appears to be constructed or modified to cause injury to a person who attempts to interfere with the device or;
  2. reasonably appears to be constructed or modified to cause injury to a person if another person interferes with the device; or
  3. incorporates a dangerous substance or thing; or

A sleeping dragon, dragon’s den, monopole and tripod are each a ‘dangerous attachment device’ separately to the definition proved above.[27] These devices have traditionally been used in direction action protest.

These are not dangerous attachment devices:

  • Glue
  • A bike lock
  • A padlock
  • A rope
  • A chain

EDO have a further factsheet on Dangerous Attachment Devices for more information.

Interacting with police

The right to remain silent

If you are involved in direct action or peaceful assembly in protest it is likely that at some stage you will have a direct interaction with police.

It is important to remember when interacting with police that you have a right not to self incriminate, also known as the right to remain silent.

This means that you don’t have to answer any questions that they ask you. This silence cannot be held against you if you are charged with an offence and your matter goes to court.

Anything that you say or do while interacting with a police officer can ultimately form a part of the evidence that police can use in a case to prove a criminal offence against you.

Exception to the right to remain silent – providing name and address

There are several exceptions to the right to remain silent in Queensland. At a protest, this is the most likely exception that you will encounter. It is an offence to disobey a lawful direction of a police officer.

Bail

Bail is conditions agreed to between police or a court and someone accused of an offence to remain in the community while waiting to resolve their charges.

If you are arrested for a protest or direct-action related charge and brought back to the nearest police station, a prescribed police officer may consider conditions to be imposed on you to be released into the community until your next court date. [28]

These conditions might vary depending on the circumstances of your arrest. They are generally attempts to ensure that you appear at your next court date and address concerns about further offending occurring in that time.

If a prescribed officer decides not to grant you bail or you decide not to agree with the conditions, there is a requirement that you be brought before a court as soon as reasonably practical where an application for bail can be made.

References

[1] s5 Peaceful Assembly Act 1992 (Qld).
[2] s22(a),(b) Human Rights Act 2019 (Qld).
[3] ss48 and 58 Ibid.
[4] s52(2) Police Powers and Responsibilities Act 2000 (Qld)
[5] R v N [2015] QSC 91 at [30].
[6] [34] Ibid.
[7] s40 Above n. 4.
[8] s48(4) Ibid.
[9] ss46 and 47 Ibid.
[10]s48(2) Ibid.
[11] s626 Ibid.
[12] s624(1) Ibid.
[13] s624(2) Ibid.
[14] s30 Ibid.
[15] s29 Ibid.
[16] s629 Ibid.
[17] s630(1) Ibid.
[19] ss31 and 32 Ibid.
[20] s391 Ibid.
[21] s11 Summary Offences Act 2005 (Qld).
[22] s6 Ibid.
[23] s6(3)(a) Ibid
[24] s791 Police Powers and Responsibilities Act 2000 (Qld).
[25] s790 Police Powers and Responsibilities Act 2000.
[26] s14C Summary Offences Act 2005 (Qld).
[27] s14B(2) Ibid.
[28] s7 Bail Act 1980 (Qld).