Unlawful Assembly

Unlawful assembly is one of a number of offences related to protesting and activism that protesters can be charged with. It can be difficult to clearly define what offences may apply to protesters, with protesters often charged with multiple offences at once. There also seems to be significant overlap between what makes up the offences, with the charges tending to rely heavily on police discretion. The broadness and lack of clarity surrounding the offence allows it to be utilised by police to limit political protest.

Unlawful assembly is an offence at common law based around the concept of ‘breach of the peace.’ It has been used to charge those involved in political actions in the past and will likely be utilised to charge protesters in the future.

What is Unlawful Assembly?

In order to prove the offence of unlawful assembly, it must be found that:

1. There was an assembly of three of or more people; and
2. The people in the assembly gathered with a common purpose to commit a crime by “open force” or to act in a manner that would “threaten public peace.”¹

The offence carries with it a maximum penalty of 5 years imprisonment, under s 320 of the Crimes Act 1958 (Vic).

The common purpose of the group can be demonstrated in ways such as social media posts or by verbal communication at a protest and must be to commit a crime by open force or to breach public peace. Endangering public peace lacks a clear definition but can involve acting in a manner that is violent or with intention to damage property.²

It is important to note that an assembly may become unlawful even if the original assembly was lawful, if group members engage in a common purpose as described above.

Use of Unlawful Assembly

Unlawful Assembly is one of several archaic charges that have been laid against activists in Victoria over recent years alongside such charges as “Besetting” , “Public Nuisance” and ‘Disorderly conduct”.  In many cases these charges come in a raft of five or more charges that seem designed to tie up activist groups in long running legal defences.  MALS has been tracking Victoria Police’s use or mis-use of these charges for some time now as part of its examination of how Victoria Police are targeting particular movement groups.  

Unlawful assembly has been used to charge protesters recently in the United States during the Black Lives Matter (BLM) protests.³ Police in New South Wales also attempted to rely on the offence recently to prevent a BLM protest, however this was successfully appealed on the day of the protest.

In NSW it is a criminal offence to knowingly join or continue in an unlawful public assembly. The offence of unlawful assembly is legislated under s 545C of the Crimes Act 1900. Section 545C(3) finds that an unlawful assembly occurs when there is an assembly of five or more persons who have a common object to compel a person through intimidation or injury to act in a way in which they are not legally bound to do. Sections 22-27 of the Summary Offences Act 1988 (NSW) identify the rules that must be followed in order to make an assembly lawful in NSW. These involve very specific particulars regarding the requirement to receive notice from the Commissioner.

In the NSW case concerning the Black Lives Matter protest, the Commissioner sought a prohibition order under s 25 of the Summary Offences Act 1988 (NSW) on the grounds of public health due to the current COVID-19 health risk.⁴ The court found that the public interest in free speech and freedom of association outweighed the public health concerns, and the order was refused.

In this case, the court emphasised the significance of the implied freedom of political communication as a recognised matter of constitutional law.⁵ Any law which criminalises participation in a public assembly raises the question of whether it places a burden on the freedom of communication.

What should protesters be aware of?

Although a charge of unlawful assembly is rarely used in the present day, activists should be aware of the risk when organising large groups of people. InR v Caird (cited with approval by the Supreme Court of Victoria inR v McCormack), the court held:

“the law [leans] heavily against those who, to attain [an unlawful] purpose, use the threat that lies in numbers.”

R v Caird (1970) 54 Cr App R 499, 507.

In Anderson, the Magistrates’ Court held that protesting in hybrid enclosed spaces similar to that of QV Square was considered protesting in a ‘public space’, and thus protected by freedom of assembly provisions.⁶

This idea is at the crux of the offence of unlawful assembly, which holds people liable not for their individual acts, but for their participation in the group. This is of course of particular concern to protesters, who may be charged with an offence merely because of their participation in a protest.

The mental element of the offence—that is, the intention to fulfil an unlawful common purpose—is determined by the accused person’s conduct. Any person that attends a protest deemed to have an unlawful purpose may therefore satisfy the mental element. 

There are some possible mitigating factors that may be taken into account during sentencing. These include provocative conduct by a third party, an early guilty plea, or age compared to other persons involved.⁷

Aggravating factors may include awareness of the risks, taking an active role in planning and execution of the offence, previous offences, and age compared to other offenders involved.⁸

Possible defences may include proving an element of the offence has not been made out, acting under duress, honest and reasonable mistake of fact, wrongful identification, or lack of intent.⁹

Why is the offence outdated?

Part of the reason why the concept of unlawful assembly is outdated relates to its history as a common law offence.

The common law previously recognised unlawful assembly, rout and riot as escalating levels of offending involving a collective decision to commit unlawful acts.¹⁰ The distinction between each offence was that riot required actual violence, rout involved attempted actual violence and unlawful assembly supposedly merely required an intention to commit actual violence.

In 2017, the offences of riot and rout were abolished under s 195G Crimes Act, and replaced with the statutory offence of ‘violent disorder’, contained within s 195I of the Act. 

While rout and riot are now codified within statute law, unlawful assembly remains untouched. This is concerning because it overly broadens the scope of the unlawful assembly offence. While the inclusion of riot and rout created a spectrum of similar offences a person may be charged with, the separation of unlawful assembly from the now-statutory violent disorder offence means that the former stands alone as a possible common law offence able to be charged. Common law offences, having no clearly-defined application contained within one source—their definitions instead dispersed across decades and centuries of previous legal judgements—are already ambiguous.

The way in which unlawful assembly is constructed, existing in isolation, provides no meaningful check for the offence to be applied in a broad way. Instead, it is problematic insofar as it heavily relies on the judgement of law enforcement officers to determine the common intent of the gathering. Certain sections of a large demonstration may well have an intent to cause violence, but how would it be fair for this intent to be extrapolated as being the intent of the entire gathering? As interstate and international examples have shown, broad criminal offences that cast a wide net are particularly dangerous in reference to protest and activism.

Police judgement of intention is also problematic where they allege there was “actually committed violence” for the purpose of s 195I of the Act. Often, the alleged violence is a defence to the actions of police, where police may escalate an event through the use of excessive force. For example, at the 2019 IMARC protests, OC foam and police horses were deployed against protesters passively resisting, setting a tone of violence. In the context of unlawful assembly, this would allow police to trip the condition of the Act by claiming “the intention of the protest was to commit violence”, whereas the violence was actually police instigated.

Another aspect of the offence’s outdatedness relates to the distinction between ‘lawful’ and ‘unlawful’ assembly itself. Alongside freedom of speech and press, freedom of assembly is touted as one of the staples of civil rights protections in liberal democracies. Article 21 of the International Covenant on Civil and Political Rights (ICCPR) safeguards it,¹¹ as does s 16(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).¹²

However, in both these instances, this right is quite significantly qualified. The ICCPR allows it to be limited ‘in the interests of national security, public safety [or] public order’, while the Victorian Charter specifies that only ‘peaceful’ assembly is protected. While virtually everyone would agree that the right to assembly is one that should be limited in certain circumstances—as the current COVID-19 pandemic demonstrates—activists should be wary of any attempts to stifle the right to protest. The very division of association into two categories, one which is permissible, and another that can be dismissed on often ambiguous grounds of public order, discussed above, derives from a liberal understanding of human rights. Liberal and Enlightenment thought, emphasising individual liberty, protects the freedom of the individual so long as it does not infringe upon the rights of others. While this ostensibly seems like a reasonable concept, as David Fasenfest outlines, ‘the right to liberty is an expression of human separation.’¹³ Liberty—and thus the freedom of assembly—under liberal democracies is individualised, meaning that the collectivist nature inherent to the freedom of assembly is diminished, and constantly viewed under the backdrop of other individuals’ rights (often rights which are used to defend business interests protests are campaigning against).

Without delving too deeply into philosophy, the supposition that there are ‘acceptable’ and ‘unacceptable’ forms of public assembly is an archaic one derived from 18th and 19th century discourse on rights. While unlawful assembly was not ultimately charged in Victoria Police v Anderson,¹⁴ or in relation to the October 2019 IMARC protests, in both of these instances, the police claimed that arrests were justified through the lens of protecting an unspecified ‘public order’ which protesters had supposedly breached.

The IMARC protests, which MALS earlier noted were characterised by a ‘tone of violence … set by Victoria Police,’¹⁵ were impeded by the police on the grounds that it was disrupting a conference of mining executives. In Anderson, a similar principle was argued (although not accepted by the Magistrates’ Court) by Victoria Police. In that instance, Victoria Police supported the view of QV management that freedom of assembly should not apply around shopping centres if it disrupts business. Sue Bolton, a Councillor in the City of Moreland, contacted for this piece—one of the defendants in Anderson—was arrested for protesting around Max Brenner in support of the Palestinian BDS movement. As she states, ‘Victoria Police targeted protesters with megaphones … in order to protect Max Brenner’s profit interests.’ The question which is critical therefore is—who determines what ‘peaceful’ assembly is?

Unlawful assembly may not be extensively employed within Victorian courts, but its ongoing ambiguity undermines the Victorian Charter and continues to threaten civil and political rights.

Jasmine, Bec, Bridie, Caitlin and Leo
Melbourne Activist Legal Support

Legal information in this article is up to date as of 3rd August 2020, and should not be taken as legal advice.