New pathway for organising protests under COVID: A MALS review

The Victorian Government has an application process for holding large protest events under COVID.  Here’s what you need to know.

Updated: 29 March 2021

This new framework provides a formal pathway for organisers of protest events  larger than the current public gathering limits (currently at 200 as at 26 March 2021) to be granted an exemption to the Stay Safe Directions.

Any protest which may be larger than the current restrictions can apply under this new Public Event Framework.  

There will likely be a gradual easing of public gathering restrictions in the months ahead but it is likely to be some time before we can see tens of thousands of people flooding our streets without any COVID related safety measures in place.

These new protest-specific guidelines were published on Monday 1st March 2021 and can be found in the FAQ section of the Public Events page here.

MALS and Liberty Victoria have been calling for guidance to be provided for some time to provide a clear framework to hold lawful protests within Victoria.  

For the first 12 months of this pandemic, activist groups and civil society organisations have been left to  plan and determine COVID-safe measures for each public rally themselves, giving Victoria Police significant power and discretion to determine whether the action is lawful or not.  As a result, the policing of protests throughout 2020 has been characterised by confusion, over-reach, and violence. There have been a raft of arguably unnecessary charges even against those who were making every effort to organise and participate in COVID-safe events. We have always argued that COVID-safe measures at protests should be determined and reviewed by health authorities, – not by police.  

Although we hold some concerns about the framework, it forms a sensible recognition that it is entirely possible to hold large COVID-safe protests just like those organised by Warriors of the Aboriginal Resistance in June 2020 and January 2021. Overall, the COVID-safe planning guidelines are sensible and reflect what most protest groups have been doing already for most of 2020.

It essentially means that very large protests can once again be held on the streets of Melbourne without the threat of fines or arrests or police charging organisers with offences such as ‘incitement’.

It is also the first time that the Victorian Government has explicitly acknowledged that protests “are essential in a democratic and inclusive society that respects the  rule of law, human dignity, equality and freedom.”  and that ”The Charter [of Human Rights and Responsibilities] protects  freedom of thought, conscience, religion and belief, freedom of  expression, rights of peaceful assembly and freedom of association.”  

How does it work?

The new  Public Events Framework is a process to review and approve events including protests, ensuring organisers consider the appropriate infection prevention controls and public health advice as part of their planning and running of them.

It specifies the responsibilities of organisers to design and run a COVID-safe event in accordance with current public health advice.

Protest organisers must seek an exemption to run the event. What steps they have to take depends upon the anticipated size of the event.

Tier 1 is for large events with 5000 or more attendees

• Tier 1 events must submit a COVIDSafe Event Plan 8 to 10 weeks prior to either the start of the event, or when the decision by the event organiser is required to confirm how/if the event will proceed.

Tier 2 is for mid-size events with 1000 to 5000 attendees.

• Tier 2 events must submit a COVIDSafe Event Plan  4 to 6 weeks prior to either the start of the event or when the decision by the event organiser is required to confirm how/if the event will proceed

Tier 3 is for smaller event with 1000 or fewer anticipated attendees.

• Tier 3 protest events must submit a COVIDSafe Event Checklist via the online registration form to register at least one week before the start of the event and publish that registration online.  The COVIDSafe Event Checklist  can be seen here,   Many things on this checklist are not applicable to most protests and those that are seem sensible health measures like those put in in place by WAR and others in the past.

The process is administered by the Department of Jobs Precincts and Regions (not Victoria Police). The process is easier, quicker and less onerous for smaller protest events. However, for larger Tier 1 or Tier 2 events, the process to consider and approve an event includes a review of the proposed event and its COVID-safe plan by the Public Health Advisory Panel followed by consideration of the Chief Health Officer and the Major Events Ministerial Taskforce (which has representation from Victoria Police). Following these steps, the event organiser will be notified of approved event capacity and any additional requirements that are required. Police have been urging protest groups to register upcoming events using the framework as part of their liaison with organisers.

Importantly, it is worth remembering that protest groups that do not use this exemption process and hold protests that are larger than the current public gathering restrictions risk the threats, fines, and potential arrests that protests faced prior to this process. 

Our Concerns

Many protest groups will find this application process daunting and onerous. Some larger and more resourced groups will be more able to develop elaborate plans and meet the approval guidelines more easily.

Given the flashpoint nature of many protest events, providing 8-10 weeks notice or even 4-6 weeks notice may be difficult in some circumstances.  We don’t yet know how flexible these notice periods are.

In particular, we need to ensure that this does not become a de-facto protest permit system beyond public health measures.

A ‘protest permit’ system is a dangerous and anti-democratic process and it is vital that it not be adopted in Victoria.   It results in an abrupt loss of democratic space and severely restricts freedom of association.  Protest permit systems lead to differential policing approaches where ‘permitted protests’  are treated differently to ‘un-permitted protests’ simply due to whether or not they have filled out a form. 

We must ensure that this system does not continue in any shape or form beyond the current public health emergency.     

Beyond this we understand that some groups will be extremely uncomfortable seeking any sort of permission or ‘authorisation’ from the state to hold a protest event.  Some protest groups may decide not to use this particular Framework on political and ideological grounds. 

There remains a lot of questions – some of which we have tried to answer below.

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FAQs for protest organisers

Q: Is there a risk that protests organisers will be held responsible or liable for the actions or behaviours of participants? 

Possibly. But we and our friends at the Human Rights Law Centre are currently researching exactly what this might mean for protest oraganisors.

There is a clause in the Framework that says that you, – the organiser  “control and accept sole responsibility, risk and liability for all aspects of your public event. The State of Victoria does not control and accepts no liability for your public event nor for any loss, damage, injury or death in connection with your public event, including (without limitation), any change to requirements for your public event or the cancellation or postponement of your public event.”

This would be a standard clause for all public events and most non-protest events such as fairs and car boot sales would have their own public liability insurance etc. Protests rarely do. This clause by itself is unlikely to change the liability of most protests.

There is another clause that says: “You will indemnify the State of Victoria against any liability to or claims by a third party for any loss, damage, injury or death in connection with your public event, including (without limitation), the cancellation or postponement of your public event.”

This is more tricky and we don’t want to see Victoria Police indemnified against any misuse of force or injuries they cause at a protest. Unlikely but we are checking it out regardless.

Q: Privacy: If I apply – will I have my personal details published? 

No. Although organisers will need to publish the event registration form publicly on their social media or website, names and personal details of organisers can and should be blanked out.  It is suggested you check this before publishing.

Q: What happens if we can’t give the required amount of notice for the protest?

We suggest that you contact the Department of Jobs Precincts and Regions at [email protected] and check whether you can submit an approval request later than the allocated time period.  Which is 1 week for Tier 3 events, 4-6 weeks for Tier 2 events and 8-10 weeks for Tier 1.

For many protest events, providing 8-10 weeks notice or even 4-6 weeks notice may be difficult and eth Department should assist and cooperate with organisors for the safest possible event.

Organisors of the Women’s #March4Justice in March 2021 were able to make a special last minute Tier 2 application (of up to 5000 people) as it became clear the numbers would exceed their originally approved  Tier three application.  This was approved just before the event. 

Q: Can I get help filling out the forms and developing a COVIDSafe Plan?

You could reach out to other protest groups in Melbourne who may be willing to share their COVID-safe plan with you to update and adapt.  They may be willing to assist or at least share how they organised their event.  

You could also contact  the Department of Jobs Precincts and Regions at [email protected] and ask for assistance and template plans.  They have reached out to protest organisers recently offering to provide training to rally marshals. 

Q: What are the COVIDSafe Principles for Protests:

According to the Public Events Framework “anyone arranging, organising and attending protests should ensure that it is managed in accordance with COVIDSafe principles to reduce the risk of COVID-19 transmission.”  

These principles include: 

• Hold the protest outdoors, where possible
• Hold seated protests, where possible
• Practise good hygiene and make hand sanitiser available for protesters
• Enable protesters to maintain physical distancing, keeping at least 1.5 metres apart
• Ensure protesters carry and/or wear a fitted face mask as required under the public health directions, which may change depending on the public health advice applicable at the time. It is strongly recommended that people wear a fitted face mask whenever they cannot keep 1.5 metres physical distance from others. 
• Keep records of who is attending the protest
• Where possible, keep an appropriate distance between those singing, shouting or chanting.  Singing, shouting and chanting may increase risk of spread of COVID-19. Refer to the Frequently Asked Questions Coronavirus (COVID-19) transmission from air-circulating, wind-blowing devices and activities
• Consider the use of Event Marshals to monitor and enforce COVIDSafe practices, such as physical distancing, breaking up large groups and distributing hand sanitiser to protesters.
• Use pre-event communications to emphasise the importance of physical distancing, hand hygiene and not attending if unwell
• Adhere to cleaning and disinfection requirements and clean shared objects such as microphones, signage, and musical equipment
• Not attending the protest if you feel unwell and reminding others not to attend if they are unwell.

Q. Do police get to control or have a say about how we run our protest? 

Not necessarily any more than usual. Police have been urging protest groups to register upcoming events using the framework as part of their liaison with organisers. A police officer may well call you once you register your event if they haven’t already.  Often police will make some efforts to control or change a protest plan by offering advice, suggestions or making threats. It’s up to the protest group about how assertive and resolute you want to be with your plans for the protest event and how much you are prepared to negotiate.  Registering your protest wont necessarily change that.  

Q: What if we don’t register our event and hold our protest anyway?

Check what the  current Public Gathering limits are here.    If your protest is larger than this and you do not use this exemption process you risk fines, and potential arrests even if you follow all of the COVIDSafe principles above.  Police have discretion in how they police protest and they may decide not to fine or restrict the event but the risk of COVID fines and penalties remains.  These include on-the-spot fines of up to $1,652 for individuals and up to $9,913 for businesses for:

• refusing or failing to comply with the emergency directions
• refusing or failing to comply with a public health risk power direction
• refusing or failing to comply with the Public Health Directions to provide information.

Police have said that they are no longer accepting the breaking up of large rallies into smaller groups as permissible.

Q: What if we register a Tier 3 protest for less than 1000 people and 10,000 people show up?    

This is entirely possible and we know it is hard to estimate numbers based upon Facebook RSVPs or even past attendances.  We suggest you plan the event with the best estimates possible.

Organisors of the Women’s #March4Justice in March 2021 had originally applied for a Tier 2 event which was not approved – then had a Tier 3 registration (for 1000 people) approved but were were eventually able to make a special last minute Tier 2 application (of up to 5000 people) as it became clear the numbers would exceed 1000.  This was approved just before the event.   The event potentially exceeded  the 5000 person limit and as yet we do not know if that has resulted in any repercussions from authorities.

Questions about the application process can also be emailed directly to the Department of Jobs Precincts and Regions at [email protected]

If you have issues and concerns about this framework please let us know at [email protected] 

If you are still in doubt about registering your protest or COVIDSafePlan we recommend seeking specific advice from a solicitor. Some suggested contacts are here. 

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Special thanks to the Human Rights Law Centre, and all the wonderful protest organisers who have spoken to us about the application process over the past 2 weeks.