There was a lot of talk of riots in the news recently – mostly in relation to student protests against proposed higher education changes in the federal budget. Prime Minister Tony Abbott cancelled a visit to Deakin University because he said students wanted to “riot on national television”. Education Minister Christopher Pyne said students had been “planning a riot” at the university. Riot police were reported to have actually attended at a protest by students at Sydney University.

Throughout Australia, the statutes which regulate public order treat the offences of riot or riotous assembly as very serious. Violence or the threat of violence for a common purpose is a common element of the offences in some jurisdictions: Crimes Act 1900 (NSW), s 93B(1); Criminal Code (Qld), s 61; and Criminal Law Consolidation Act 1935 (SA), s 83B(1). And the violence and disruption contemplated is of a high order judging by the severe penalties available for riot offences, including maximum prison terms of: 15 years in NSW (Crimes Act 1900 (NSW), s 93B; 21 years in Tasmania (Criminal Code (Tas), s 389; and 10 years in Victoria (Crimes Act 1958 (Vic), s 320). In Western Australia, a person convicted of the summary version of the riot offence could face two years in prison and a $24,000 fine (Criminal Code (WA), s 65)!

In this light, can the recent protest activity by university students around the proposed higher education changes be reasonably characterised as riotous? While not accused of rioting, student protesters who disrupted the ABC’s Q&A television discussion program with chanting and the unfurling of a banner in May were admonished by compere Tony Jones. “That is not what democracy is all about,” said Jones. The next day, Labor MP Anna Burke, who had been on that program, expressed similar sentiments.

Whatever particular political purposes the negative stigmatisation of political protests may serve, it suggests a view that parliament, elections, and a limited number of other sanctioned forums are the only legitimate repositories of the nation’s democratic life. This seems at odds with the position taken by the High Court in a series of cases in which it recognised an implied freedom of political discussion in the Constitution and that the freedom extended to political protests: see Australian Capital Television Pty Ltd v Commonwealth (Political Advertising Case) (1992) 177 CLR 106; 66 ALJR 695; 8 BR 117; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; 68 ALJR 713; Lange v Australian Broadcasting Corp (1997) 189 CLR 520; 71 ALJR 818; and Levy v Victoria (1997) 189 CLR 579; 71 ALJR 837.

Arguably implicit in this interpretation of the Constitution is the recognition that political protests are necessary. The development of civilisation has proceeded via political activity outside established institutions and laws as well as within them. Protests publicise alternative views that might otherwise be stifled in more conventional forums, serve as a rallying mechanism for similarly concerned citizens, and give a voice to the marginalised.

This is not to advocate an anarchic approach to protest – discordant, self-indulgent, infantile. But to argue that protests that are anchored in the real life experiences and reasoned concerns of people, that are unifying and empowering, and that are directed towards the protection of long-held social interests – eg a universally accessible and comprehensive education system – are legitimate and even obligatory.

The regulation of political protests is one of the topics discussed in updated The Laws of Australia Subtitle 10.10 “Public Order”.

For more information about The Laws of Australia click here.