Your rights when performing a

freedom of speech event in a

public venue (NSW)
A guide to help you know your rights when out in the public
domain so that you don’t break the law and so that your rights
don’t get breached by the police and members of the public.

Friday, 9 January 2009

Freedom of political expression

Firstly let’s start with your right to freedom of speech. It’s not very clear,
however, without going into the in depth analysis of the Australia Constitution,
there was a Supreme Court decision in ‘92 and ’94 that stated that there was an
implied right to political communication.

If you want to read more about it you can go here:

http://epress.anu.edu.au/agenda/001/01/1-1-A-8.pdf

This right to communication is referenced in several acts recently such as:

Independent Commission Against Corruption Act 1988 No 35

Police Integrity Commission Act 1996 No 28
Protected Disclosures Act 1994 No 92

These acts only reference parliamentary freedom however in essence; you have
the right to political freedom of speech.

If someone tries to stop you from a political demonstration, you should tell them
“I have a right to political freedom of speech as covered by the
Australian Constitution” This should inform whoever is trying to move you on
or gag you from speaking or protesting that you know you have rights.

You do not need a permit to have political freedom of speech event if

you are in any public area; this includes the Sydney Harbour Foreshore Authority
regulated area. http://www.shfa.nsw.gov.au

Proof of Identity
As a general rule you do not have to give anyone your identity. Do not be
conned or scared into giving your identity when you do not have to. If you do,
your rights have been breached.

There are some exceptions to this where you have to give your identity,
which I will cover below so that you don’t get yourself arrested.
Law Enforcement (Powers and Responsibilities) Act 2002 No 103

Part 3 Division 1 Section 11

11 IDENTITY MAY BE REQUIRED TO BE DISCLOSED

A police officer may request a person whose identity is unknown to the officer to
disclose his or her identity if the officer suspects on reasonable grounds that the
person may be able to assist in the investigation of an alleged indictable offence
because the person was at or near the place where the alleged indictable
offence occurred, whether before, when, or soon after it occurred.

This is fairly straight forward. If you are asked for your Identity, you can reply
with “Is there an offence you are investigating that requires you to
obtain my identity?” If there is, then hand over your details.

Part 3 Division 2 Section 14

14 POWER OF POLICE OFFICER TO REQUEST DISCLOSURE OF DRIVER OR PASSENGER IDENTITY

(1) A police officer who suspects on reasonable grounds that a vehicle is being,
or was, or may have been used in or in connection with an indictable offence
may make any one or more of the following requests:

(a) a request that the driver of the vehicle disclose his or her identity and
the identity of any driver of, or passenger in or on, the vehicle at or about
the time the vehicle was or may have been so used or at or about the
time the vehicle last stopped before the request was made or a direction
was given under this Division to stop the vehicle,

(b) a request that any passenger in or on the vehicle disclose his or her
identity and the identity of the driver of, or any other passenger in or on,
the vehicle at or about the time the vehicle was or may have been so used
or at or about the time the vehicle last stopped before the request was
made or a direction was given under this Division to stop the vehicle,

This is ambiguous, how does an officer know you may be driving and related to
an offence? However because there are so many road laws that they can pin on
you, you should probably hand over your license.

Part 6A Division 3 Section 87L

87L POWER TO OBTAIN DISCLOSURE OF IDENTITY

(1) A police officer may request a person whose identity is unknown to the officer to disclose his or
her identity if:

(a) the person is in an area that is the target of an authorisation (whether or not in or on a
vehicle), or
 (b) the person is in or on a vehicle on a road that is the target of an authorisation,
and the police officer reasonably suspects that the person has been involved or is likely to
be involved in a public disorder.

(4) A police officer may request a person who is requested under this section to disclose his or her
identity to provide proof of his or her identity.

This one is clear cut and you need to know this. There is a clause, 87D that refers
to authorisation of special powers. These special powers are essentially a police
state zone. You have no rights there and you need to hand over ID and move on
if requested. They could probably bash you without recourse. If you are asked for
ID, sometimes it might be worth to asking if the area you are in is that target of a
special authorisation.

Filming and Your Rights

One of the most important and right protecting things you can do is FILM or
AUDIO RECORD any interactions you have with people of civil authority. This can
turn a bad situation where your rights are being abused to a good situation
where you rights are upheld.

There are many Supreme Court case laws that you can reference but a good one
to remember is:

R v Sotheren (2001) NSWSC 204 , where the Justice Dowd stated:

“A person, in our society, does not have a right not to be

photographed”

You can basically film and record anything and anyone as long as it’s clear you
are doing so and you are on public land. The best practice for this is to clearly
state that you have a camera and that you ARE RECORDING. “Officer, just to
inform you I have a camera in my hand and I am filming this
interaction, this is not a concealed device and we are in a public place”

The laws that govern recording of conversation can be found in the federal Act.
LISTENING DEVICES ACT 1992 - SECT 4

Use of listening devices

(1) A person must not use a listening device with the intention of—

(a) listening to or recording a private conversation to which the person is

not a party; or

(b) recording a private conversation to which the person is a party.

As you can see, it is only when you hide your recording devices is it illegal.
Many members of the public including the police think that you need to ask them
permission before filming. It’s purely a matter of courtesy if you do or do not
record them. The only caveat to this is if you intend to profit from the image or
recording you are taking of the individual. It’s at this point you need to obtain a
Release Form. The ways people stop others from using their imagery are:

Common Law Tort of "Passing Off"

Unfair Practices portion of the Commonwealth Trade Practices Act 1974,
(Part V — Division 1 — Section 52 and Section 53).

I won’t be covering these, just remember not to profit from your filming of others
without a release.

If an officer asks you to stop filming him because you didn’t ask his permission,
you can reply with something similar to this “I appreciate you have asked
me not to film, however under the listening devices act and case law R
v. Sotheren, I do not have to ask your permission because this is not a
concealed device and I have informed you I am filming”

Stick to your guns here. If it gets heated the recording is your insurance in case
of assault by a police officer.

Make sure your colleagues or friends also have cameras and are filming you
while you have this interaction.

If you would like further reading on photographic rights go here:

http://www.4020.net/words/photorights.php

Summary
To end this article I want to state that I am not a lawyer and you should not take
this as legal advice, I am only providing you with references to the law in NSW.

Follow the underlined text, they are all linked.

Know your rights, get out there and pass on your message. Freedom!

Erik@ Sydney