Ugur Nedim

Our kids may protest, but our laws do not protect them

Yesterday, more school-age children met the government to protest climate change. Disappointingly, no existing laws protect them.

 

 

In September this year, 9-year old Brisbane schoolgirl Harper Nielsen refused to stand for the national anthem at Queensland’s Kenmore South State School on the basis that is fails to recognise Australia’s Indigenous history.

The school demanded the year four student either stand or leave the building – but she refused to do either.

As a result, she was told she would have to sign a written apology or risk suspension.

The incident triggered Australia-wide debate, with members of the community polarised in their views.

Some saw Harper’s efforts as brave and honourable – a little girl acting upon her convictions and refusing to stand for unfairness. Others viewed it as disrespectful, including Senator Pauline Hanson who went so far as to say she’d give the girl a “kick up the backside”.

 

 

“Take our futures seriously”

It seems students are once again finding their voices, like those during the era of popular dissent and social change in decades gone by.

Students last week converged on Parliament House to demand action against climate change.

This garnered numerous detractors, not least Prime Minister Scott Morrison who stated in Parliament, “What we want is more learning in schools and less activism”.

 

 

In the wake of that demonstration, a spokesperson for the NSW Department of Education issued a warning, telling the media that students “enrolled at school are expected to attend that school whenever instruction is provided”, and that “any student not in classes on a school day will be marked absent and may be subject to the school’s disciplinary code.”

The statement has raised concerns that students may be disciplined, or even suspended, for attending the protest.

 

 

Protect future generations

But many students are undeterred, taking to social media to voice views to the effect that without action on climate change, their futures and those of their children are at risk.

They are seeking action from parliament to protect the environment for future generations, and are disappointed by the lack of importance given by our politicians to the issue of climate change.

One teenage school girl told the media: “It is as if he expects us to be completely apathetic towards the world and its issues until we reach the age of 18, where we are suddenly supposed to become well-informed voters with our own developed opinions… Mr Morrison says that he does not support our schools being turned into parliaments. Well, maybe if the people in our Parliament listened to the science and took action like those of us in school, we wouldn’t have to resort to strike action like this.”

 

 

The “right” to protest in Australia

There is no general right to protest in Australia.

In fact, participating in an “unlawful assembly” is an offence under section 545C of the Crimes Act 1900 (NSW) which carries a maximum penalty of six months in prison and/or a $550 fine.

 

Section 545C states, “Whosoever knowingly joins an unlawful assembly or continues in it shall be taken to be a member of that assembly, and shall, on conviction before the Local Court, be liable to imprisonment for a term not exceeding six months or to a fine not exceeding 5 penalty units, or both.”

For any protest, rally or demonstration to be lawful, it must comply with the provisions of Part 4 (comprising sections 22 to 27) of the Summary Offences Act 1988 (NSW) which prescribes a range of requirements which must be fulfilled before an assembly can be considered “lawful”.

Section 22 defines a public assembly as any “held in a public place, and includes a procession so held.”

The definition of “public place” for the purposes of the Part is “a public road, public reserve or other place which the public are entitled to use.”

 

Section 24 essentially provides that a person cannot be criminally prosecuted for unlawful assembly if they join a protest, rally or demonstration which complies with the requirements within.

Sections 25 and 26 give higher courts, such as the District or Supreme Courts, the power to decide applications regarding whether public assemblies will go ahead or not. However, it should be noted that applications can involve substantial legal fees, which may dissuade or prevent protest organisers from pushing ahead with events.

Evidently, protesting in NSW is not as simple as gathering like-minded individuals who are concerned about the existing state of political or social affairs, creating a few placards and taking to public parks or streets.

Rather, police in NSW wield enormous power when it comes to determining which public assemblies are allowed to proceed, and which are not.

 

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist and the Principal of Sydney Criminal Lawyers, a leading Sydney Law Firm that specialises in Criminal Law and Traffic cases. http://www.sydneycriminallawyers.com.au

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