Murray Watt (Queensland, Australian Labor Party, Minister for the Environment and Water) Share this | Hansard source

The government will not be supporting the Right to Protest Bill 2025. The Albanese government recognises the rights of individuals to assemble and protest peacefully. This is an important right in any democracy. Freedom of expression and freedom of political communication are fundamental human rights that are enjoyed by all Australians and all people who are in Australia. These rights of freedom of political communication and the right to assemble and protest peacefully are rights that I've exercised myself on many occasions, along with my family, my friends, my Labor comrades and many other Australians. They are rights that Labor has always fought for.

These freedoms are, of course, subject to limitations that are reasonable and necessary in a free and democratic society to achieve an appropriate balance between freedom of expression and the protection of groups and individuals from offensive or harmful behaviour. These rights are protected under international law, which also recognises that they must be balanced with other important considerations. The key international treaty which guarantees these rights is the International Covenant on Civil and Political Rights. Article 21 of this treaty says:

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order … the protection of public health or morals or the protection of the rights and freedoms of others.

Even in the treaty on which this proposed bill is allegedly based there is recognition that the right of peaceful assembly is not unfettered.

In Australia finding the right balance between these considerations is generally a matter for the states and territories. Communication about political and government matters is already protected from undue burdens by the implied constitutional freedom of political communication, which the High Court has determined is essential to the proper functioning of Australia's system of democratic and representative government. The implied freedom operates as a constraint on laws passed by state and territory governments as well as the federal government.

The implied freedom of political communication is not an absolute freedom and is not infringed by laws that are reasonable appropriate and adapted or proportionate to advancing a legitimate purpose, such as protecting public health and safety. Under the current case law, three questions must be answered when deciding whether a law infringes the implied freedom. First, does the law effectively burden the freedom in its terms, its operation or its practical effect? This is known as the burden question. Second, if so, are the purpose of the law and the means adopted to achieve that purpose legitimate in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government? This is known as the legitimate-end question. Third, if the answer to the second question is yes, is the law reasonably appropriate and adapted to advance that legitimate object? This is known as the reasonably appropriate and adapted question. This question involves a proportionality test to determine whether the law is justified as suitable, necessary and adequate in its balance.

If the first question is answered yes and the second or third question is answered no then the law will be invalid. There is essentially a three-step process to determining whether a particular law infringes the implied freedom of political communication. This implied freedom provides an existing avenue for challenging the validity of laws that restrict protest activity as a form of political communication, and the courts have considered the application of the implied freedom to protest activities in a number of cases. For example, in Cotterill v Romanes, a Victorian case, the Supreme Court of Victoria rejected a challenge to the Victorian COVID-19 stay-at-home and other health directions on the basis that they infringed on the implied freedom of political communication.

In Brown & Anor v The State of Tasmania, a majority of the High Court held that provisions of the Workplaces (Protection from Protesters) Act, a Tasmanian piece of legislation which restricted onsite protest activities, were invalid because they 'impermissibly burden the implied freedom of political communication'. I guess the point I'm making is that the implied freedom of political communication already operates as a method of challenging laws that unduly seek to limit protest activities, especially of course where they do breach that implied freedom of political communication.

While the implied freedom does not provide a personal right to protest, there would likely be a substantial overlap between the kinds of activities that would be protected by this bill and those that a court may find to infringe the implied freedom. The extent to which the bill may afford greater protection against laws that unjustifiably constrain protest activity is unclear.

Even if a law does not infringe the implied freedom of political communication, courts will still interpret legislation having regard to the protection of fundamental common law rights, such as the freedom of speech. This bill also includes a vague standard that would be difficult to apply in practice. There is an exception to the right to protest that would be established by the bill, where the state and territory law is necessary in the interests of national security, public safety, public order, the protection of public health or the protection of the rights and freedoms of other persons. In practice, the only way to clarify whether a particular state or territory law crosses this line would be through litigation, which creates needless uncertainty and expense.

In making laws, it is a matter for the Australian parliament and the state and territory parliaments to weigh the right to protest against other important considerations, such as upholding other rights and public safety concerns. As I've illustrated, there are a number of issues with this bill regarding its potential constitutionality or lack thereof. The fact is that we do have an implied freedom of communication—which is already is being used to challenge state laws which overly restrict that kind of activity. On balance, our system of government allows voters to judge whether parliaments have struck the right balance between competing freedoms and other critical considerations, such as upholding public safety concerns.

For all of those reasons, the government does not support this bill.