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When is a protest not a protest?

When is a protest not a protest?

When it’s a silent prayer outside an abortion clinic, according to a recent decision of the ACT Magistrates Court.

In a case that grappled with the Constitution’s implied freedom of political communication, Magistrate Glen Theakston honed in on what it mean to “express” a protest.

The abortion clinic was covered by specific legislation which outlawed “a protest, by any means” within certain times and areas around the clinic.

It was not in dispute that the three defendants had been in the relevant area at the relevant time.

But were they protesting, by any means?

Various dictionary definitions and long lines of High Court authority were considered.

Magistrate Theakston found that the common thread in all was “the component of communication”.

“That is expressly required by the use of the term ‘expression’ used within the dictionary definitions, and is consistently described within the extracts,” he said in his judgment. “Accordingly, the expression ‘protest, by any means’ requires communication, or at the very least the intent to communicate…

“The defendants contend they were simply engaged in individual private prayer, which was not evident to others, and they therefore were not involved in a protest, by any means.”

After viewing video footage of the defendants’ actions on the relevant day, His Honour found: “They simply do not stand out as participating in any extraordinary activity. They do not even gather.”

There are many areas of the law where protesters can fall foul of the law. Beyond the Health Act 1993 (ACT), which covered the abortion clinic, there are particular provisions about trespassing on Commonwealth land as well as raft of provisions of the more common criminal law dealing with affray and obstructing public officials and the like.

If you are a protester charged with an offence, you should seek the advice of a specialist criminal lawyer.

The team at Armstrong Legal deal only in criminal and traffic matters are can assist you to get the best possible result.

Image Credit – Nito500 ©

Written by Andrew Fraser on May 24, 2018

Andrew represents clients in the ACT Supreme and Magistrates Courts as well as the NSW Local and District Courts of the Canberra region. He appears also before the ACT Civil and Administrative Tribunal in licensing, mental-health and other matters. His breadth of experience allows him to tailor his advice and submissions to ensure the best possible results for his clients. View Andrew's profile

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