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2022-2025
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
Right to Protest Bill 2025
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Shoebridge)
RIGHT TO PROTEST BILL 2025
OUTLINE
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The intention of this bill is to recognise at law the right to engage in peaceful protest and in
doing so, to give effect to Australia's obligations under articles 19, 21 and 22 of the
International Covenant on Civil and Political Rights (ICCPR) done at New York on
16 December 1966.
Article 19 of the ICCPR specifies that restrictions on the right to hold opinions without
interference must only be those provided by law and which are necessary for, among other
things, respecting the rights of others or protection of national security, public order and
public health.
Article 21 of the ICCPR requires recognition of the right to peaceful assembly with minimal
restrictions placed on this that are necessary in a democratic society.
Article 22 of the ICCPR provides that everyone shall have the right to freedom of association
with others, including the right to form and join trade unions for the protection of their
interests. Again no restrictions can be imposed on this right except those necessary in a
democratic society.
The Federal Government is the level of Government that has ratified the ICCPR and other
international treaties and it therefore bears the obligation for their implementation into
domestic law. This bill represents a codification of these elements specifically. This bill relies
on the Commonwealth's legislative powers under paragraph 51(xxix) (external affairs) of the
Constitution.
States and Territories have made a number of laws seeking to constrain the ability to protest
and free assembly. These laws are often in significant breach of rights to political
participation in a democracy and in breach of Australia's obligations under treaties ratified by
the Federal Government.
In particular the erosion of the right to protest by successive laws in States and Territories has
resulted in environmental and social justice movements being increasingly under threat of
legal sanction for engaging in peaceful protest and non-violent resistance.
Within a democracy the violent policing of peaceful protest and imposition of excessive
criminal penalties for protest action undermines fundamental rights to free expression and
assembly. Using executive power to restrict protest beyond what is necessary for community
safety represents an unacceptable and unlawful intrusion on the right to protest.
Australia's international obligations do not permit the restriction of protest purely to protect
commercial interest or to protect a government from scrutiny or criticism from an engaged
community.
NOTES ON CLAUSES
Part 1 - Preliminary
Clauses 1: Short title
Clause 1 provides that bill is to be known as the Right to Protect Act 2025.
Clause 2: Commencement
Clause 2 provides for the commencement of the bill.
Clause 3: Objects
Clause 3 provides that the objects of the bill are to recognise at law the right to engage in
peaceful protest and in doing so, to give effect to Australia's obligations under articles 19, 21
and 22 of the International Covenant on Civil and Political Rights (ICCPR) done at New
York on 16 December 1966.
Clause 4: Simplified outline
Clause 4 is a simplified outline of the bill
Clause 5: Definitions
Clause 5 sets out the definitions for the bill.
Clause 6: Act binds the Crown
Clause 6 clarifies that the bill binds the Crown in each of its capacities.
Clause 7: Extension to external Territories
Clause 7 provides that the bill extends to every external territory.
Part 2 - Right to protest
Clause 8: Right to protest
The bill recognises that a person has the right to engage in peaceful protest in a public place.
Specifically, clause 8 provides that a person has the right to engage in peaceful protest in a
public place.
Clause 9: Restrictions on right
Clause 9 provides that the right can only be restricted to the extent necessary in a democratic
society in the interests of one or more of the following:
(a) national security;
(b) public safety;
(c) public order;
(d) the protection of public health;
(e) the protection of the rights and freedoms of other persons.
These are not blanket restrictions but only apply insofar as restrictions appropriately are
adapted to the goal of addressing an unacceptable risk of harm raised by (a) to (e).
Excessive penalties in the form of lengthy prison sentences or excessive fines are considered
unnecessary restrictions regardless of their rationale.
Clause 10: Interaction with other laws
To the extent that other laws are inconsistent with the provisions of this bill, whether they are
in place before or after its commencement, they would be considered inoperable to the extent
of the inconsistency.
Laws or parts of laws that can operate concurrently are not impacted by this.
Part 3 - Miscellaneous
Clause 11: Constitutional basis of this Act
This bill relies on the Commonwealth's legislative powers under paragraph 51(xxix)
(external affairs) of the Constitution.
Clause 12: Additional operation of this Act
Clause 12 provides that, in addition to the constitutional basis for the bill set out in clause 11,
the bill also has effect as provided in subclauses 12(2), 12(3) and 12(4).
Subclause 12(2) provides that the bill would also have the effect it would have if a reference
to engaging in peaceful protest in a public place were expressly confined to engaging in
peaceful protest in a public place in a Territory.
Subclause 12(3) provides that the bill would also have the effect it would have if a reference
to engaging in peaceful protest in a public place were expressly confined to engaging in
peaceful protest in a public place that is a Commonwealth place (within the meaning of the
Commonwealth Places (Application of Laws) Act 1970).
Clause 13: Implied freedom of political communication
Clause 13 provides that the bill does not apply in relation to peaceful protest in a public place,
or to a law of the Commonwealth or of a State or Territory, to the extent (if any) that this Act
would infringe any constitutional doctrine of implied freedom of political communication.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Right to Protest Bill 2025
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
This bill recognises at law the right to engage in peaceful protest and in doing so, gives effect
or further effect to Australia's obligations under articles 19, 21 and 22 of the International
Covenant on Civil and Political Rights (ICCPR) done at New York on 16 December 1966.
The Federal Government is the level of Government that has ratified the ICCPR and other
international treaties and it therefore bears the obligation for their implementation into
domestic law. This bill represents a codification of these elements specifically. This bill relies
on the Commonwealth's legislative powers under paragraph 51(xxix) (external affairs) of the
Constitution.
Human rights implications
The Bill positively engages the right to protest and in particular freedom of assembly and
freedom of association and freedom of opinion and expression. The bill provides that all laws
inconsistent with any constitutional doctrine of implied freedom of political communication
are invalid to the extent of the inconsistency.
By implementing Australia's international human rights obligations as they pertain to the
right to protest the bill will significantly strengthen the rights of Australians.
The impact on State and Territory laws are reasonable, necessary and proportionate to
achieving the implementation of our international obligations.
Conclusion
The Bill is compatible with human rights because it advances the protection of human rights.
Senator Shoebridge