Explainer: Protest Rights in the COVID-19 Pandemic

Our ability to come together and speak out on the issues we care about is fundamental to our democracy. Only after tireless, sustained protest did Aboriginal and Torres Strait Islander peoples change discriminatory laws to gain the right to vote, did LGBTIQ+ people achieve marriage equality, and did unions secure the eight hour work day. People power has played an invaluable role in protecting forests, important wetlands, and natural areas of significance. Protests are crucial to people and communities building the awareness and visibility needed for change. 

Right now the right to protest is proving vital for people in several countries rallying against generations of systemic racism and state violence. The COVID-19 pandemic is also requiring governments to make profoundly important decisions - decisions which often have immediate impacts on our rights and freedoms and which will fundamentally shape our society and economy for years to come. Robust scrutiny and debate will improve the quality of these decisions and strengthen public trust in them. 

We need our democracy to step up, not shut down, in the pandemic.

So as Victoria emerges from strict lockdown and State and Federal governments across the country continue to lift restrictions - opening up restaurants, gyms, cinemas and sports stadiums - they also have a responsibility to facilitate safe and peaceful protest as an essential component of a healthy democracy.

Legal protection of protest rights in Australia

Peaceful protest is protected under international human rights law. [1] In Victoria, Queensland and the Australian Capital Territory, Australia’s international human rights obligations have been enshrined in domestic human rights legislation expressly protecting freedom of expression and assembly. [2]

The High Court has ruled that Australia’s Constitution also protects the ‘freedom of political communication’, because the Constitution is premised on a democratic system of government. [3] This means laws and government decisions that unduly restrict political communication through limiting protest rights are constitutionally invalid.

Protest rights in the pandemic context 

COVID-19 poses a serious threat to public health, so some temporary and proportionate restrictions on gatherings and people’s movement have been – and may remain – necessary. However, democracy doesn’t stop in a pandemic and experience in Australia and internationally has shown that protests can continue to take place safely. 

To be lawful and consistent with democratic and human rights principles, any restrictions on protest rights must be limited to what is strictly necessary to protect public health and remain in force only for as long as is absolutely necessary - the pandemic must not be used as a gateway to impose lasting restrictions on protest rights.

Proportionality and reasonableness must also underpin the application of any restrictions.They must be enforced in a way that is fair, with common sense and discretion, and without the use of excessive force or violence.

Governments’ responsibility 

Blanket bans on protest are unjustified and potentially unconstitutional. Governments have a responsibility – recognised under international human rights law – to take reasonable steps to proactively facilitate safe and peaceful protest activity. [4] 

Reasonable steps governments should consider taking include:

  • distributing masks and hand sanitizer to protestors; 

  • closing off roads and public spaces to give protestors space to socially distance; and

  • recognising and making clearly defined allowances for protests organised in accordance with health restrictions and COVID-safe practices.

Protesting during a pandemic

Protesters also have a responsibility to ensure that when they attend protests during a pandemic, they do so safely. This includes carefully following health advice (wearing masks, practicing social distancing and using hand sanitizer) and not attending protests if showing symptoms, testing positive to COVID-19 or while awaiting test results.

School Strike 4 Climate Australia are a good example of safe protests during the pandemic, with organisers focused on running as many actions as they can of 10-20 people in small, COVID-safe gatherings. 

In overturning a police decision to deny authorisation to a protest, the NSW Supreme Court has also acknowledged the steps taken by organisers of the Newcastle Black Lives Matter protest to prepare a detailed COVID safety plan (including social distancing, provision of hand sanitizer and masks, collection of contact details for tracing purposes, and appointment of marshalls to monitor the crowd) which mirrored safety plans for permitted activities like  community sport and football matches. [5]

Overseas, activists in Israel protesting the policies of Prime Minister Benjamin Netanyahu assembled in Tel Aviv’s main square, each waving black flags and socially distanced at least six feet apart. Protesters in Brazil expressed anger at President Jair Bolsonaro’s handling of the coronavirus pandemic by banging pots and pans together on balconies.

What have our Courts had to say?

In several recent cases Australian courts have confirmed that protest remains central to our democracy even in a pandemic and that restrictions on protest action may be unlawful if they go beyond what is strictly necessary to protect public health.  

For example, in Commissioner of Police v Gray [6] organisers of a Black Lives Matter protest in Newcastle in July 2020 asked the Supreme Court to authorise the protest after police refused to do so. In deciding to authorise the protest, Justice Adamson said that social media was not an adequate replacement for traditional in-person protest, commenting that ‘if this were the case, Ms Gray… would not have gone to the trouble of organising the event’. Her Honour went on to hold that, given the protest was to take place at a time when many other activities which involve the gathering of people have been allowed, and the first protest was conducted in a peaceful manner with respect paid to social distancing, ‘to deprive such groups of the opportunity to demonstrate in an authorised public assembly would inevitably lead to resentment and alienation if the public risk concerns did not warrant it’.

In assessing the lawfulness of planned protest action courts have also considered steps taken by protesters to comply with the latest public health guidelines. For example, in  Commissioner of Police (NSW) v Gibson [7] (Gibson), the NSW Supreme Court acknowledged that a previous BLM protest on 6 June 2020 (which was authorised on appeal in Bassi v Commissioner of Police (NSW) [8]) had not led to any transmissions of COVID-19 despite there being at least 10,000 people in attendance. The Court also took into account the variety of safety measures the organisers had proposed to reduce the risk to public health, even though it felt that the organisers lacked mechanisms to enforce them. While ultimately the Court refused authorisation on public health grounds, this case highlighted the legal relevance of steps taken by organisers to ensure protests are conducted responsibly in adherence with reasonable public health guidelines.

Further resources on protest rights in the pandemic are available at:

The Human Rights Law Centre’s 2018 report, Say it Loud: Protecting Protest in Australia outlines 10 principles to better protect protest rights. Further resources on general protest rights across most state jurisdictions are available from CounterAct, Action Ready, Melbourne Activist Legal Support and activistrights.org.au

The contents of this publication do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as legal advice. You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have.

This explainer is not legal advice

The contents of this publication do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as legal advice. You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have.

1 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entry into force 23 March 1976) (‘ICCPR’), arts 19, 21, and 22.
2 Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 15 and 16; Human Rights Act 2019 (Qld), ss 21 and 22; Human Rights Act 2004 (ACT), ss 15 and 16.
3 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.
4 ICCPR, art 21. See also United Nations Committee on the Elimination of Racial Discrimination, General Comment 37 on the right of peaceful assembly (article 21), UN Doc CCPR/C/GC/37 (17 September 2020) [24].
5 Commissioner of Police v Gray [2020] NSWSC 867, [39]-[40], [66].
6 [2020] NSWSC 867.
7 [2020] NSWSC 953.
8  [2020] NSWCA 109.

ExplainersMichelleBennettDemocratic Freedoms, COVID-19