You've seen the headlines about Protest Rights in NSW, protesters detained and controversial new laws passed, what is going on? There is a growing number of court battles over the right to speak out in NSW. If you're confused about what's legal and what's not at a protest in New South Wales, you're not alone.
With authorities cracking down harder than ever and legal protections becoming increasingly unclear, many people are asking the same thing: What are my rights if I want to protest?
In this guide, we'll unpack your legal rights, explain what's changed, and offer practical steps to help you protest safely and legally.
Protest Rights in NSW: Is There a Legal Right to Protest?
The High Court has recognised an implied constitutional freedom of political communication. This means you do have a degree of protection when it comes to protesting, but it's far from absolute.
Your right to protest in NSW stems from two key legal sources:
- The implied freedom of political communication in the Australian Constitution
- The common law right to peaceful assembly
However, both are subject to laws that aim to preserve public order, protect infrastructure, and maintain safety. That means governments can—and often do, introduce laws that place limits on protests, even if those laws are challenged in court later on.
Read more about the legal foundations of protest rights in NSW.
Do You Need a Permit to Protest in NSW?
Not exactly. You don't need a permit just to attend or organise a protest. However, under the Summary Offences Act 1988, organisers can submit a "Form 1" notice to NSW Police at least seven days in advance.
If accepted, this notice provides limited protections:
- Organisers and participants can be shielded from certain criminal charges, such as obstruction
- Police are notified and can plan traffic control or impose conditions
Yet, there's a catch: police can object to your Form 1, often on grounds such as safety or disruption. There's no requirement for them to approve it, and even peaceful protests have been denied protection through this mechanism.
Human rights groups have criticised the Form 1 system for giving police too much power to restrict free assembly. Some people argue it should be scrapped altogether.
Protest Rights in NSW: What New Laws Are Making
Protests Riskier?
Over the last three years, NSW has introduced increasingly harsh protest laws. The latest is the Crimes Amendment (Places of Worship) Act 2025, which makes it a crime to block or intimidate people near places of worship. The penalties are serious, up totwo years in prison or a $22,000 fine. At O'Brien Criminal & Civil Solicitors, our Principal Peter O'Brien, condemned these laws as unconstitutional and undemocratic. Our solicitors argue these provisions suppress dissent under the guise of safety.
There's already evidence to back that up, sections of anti-protest legislation have been struck down in court for breaching the implied freedom of political communication.
Amnesty International has joined the chorus of legal advocates pushing back, warning that these laws pose a significant threat to democratic rights.
Can Police Shut Down a Protest or Move You On?
Yes, and they frequently do. Police in NSW have broad powers to issue move-on directions, declare assemblies illegal, and arrest individuals if they believe:
- An offence is being committed
- Public safety is at risk
- The gathering is obstructing others or traffic
These powers are discretionary, and with the new 2025 laws, the mere presence near a place of worship during a protest could give police legal grounds to intervene, even if you're peaceful and compliant.
This puts more pressure on protesters to understand the legal terrain before attending an event.
What Charges Can Protesters Face?
Attending a protest comes with legal risks, especially under the new legislative regime. Protesters may be charged with:
- Obstructing traffic or pedestrians
- Trespass
- Intentional or reckless damage to property
- Failing to comply with police directions
- Breaching protest-specific laws (e.g. protesting near critical infrastructure or places of worship)
Some charges carry maximum penalties of two years' imprisonment or hefty fines, even if the protest was non-violent.
For example, the Palestine Action Group has seen multiple members charged for peaceful demonstrations.
Read our high-profile case which raised important questions about the right to protest in NSW.
What Are Your Rights If You're Stopped or Arrested?
If police approach you during a protest, it's vital to understand your rights:
- You must give your name and address, but you don't have to answer other questions
- You have the right to remain silent
- You're entitled to legal advice, and can request to call a lawyer
- If you're under 18, you can ask for a trusted adult to be present
Police must identify themselves and explain why you're being detained or arrested. It's important not to resist. Stay calm, comply where necessary, and contact a lawyer as soon as possible.
Is Attending an "Unauthorised" Protest a Crime?
Not in itself. There's no offence called "attending an unauthorised protest" in NSW. But attending a protest that hasn't been protected via a Form 1 can increase your legal exposure. If police issue a move-on direction, and you stay, you may be charged, even if your protest is peaceful.
This blurring between "authorised" and "unauthorised" has become a tool for suppressing dissent. While the law technically allows protest, police discretion and vague legislation can chill your freedom to participate.
Are The Laws Being Challenged on Protest Rights in NSW?
Yes. Civil rights advocates and lawyers are actively challenging several NSW protest laws in court, especially those related to:
- Restrictions near places of worship
- Criminalisation of obstruction on public roads
- The discretionary nature of Form 1 approval
In fact, parts of previous anti-protest legislation have already been ruled unconstitutional. Legal experts argue that the latest laws are likely to face the same fate.
The NSW Supreme Court recently heard arguments in our client's case challenging the 2025 laws, with a decision expected later this year.
How Can You Legally Prepare for a Protest?
To minimise your legal risk, consider these steps before attending:
- Read up on your rights and the specific laws affecting protests
- Submit a Form 1 if you're helping organise the protest
- Bring ID and the contact number of a lawyer or legal observer
- Avoid wearing items that could be misinterpreted as threatening (e.g. face coverings, helmets)
- Don't engage in physical obstruction, threats, or damage, even if provoked
Always consider documenting the protest (safely) or liaising with legal observers to monitor police conduct.
Where Can You Get Help If You're Charged?
If you're charged after a protest,get legal advice immediately. A solicitor experienced in criminal and protest law can help:
- Defend your charges
- Apply for bail
- Protect your record
- Advise on appeals or complaints against police
Our lawyers at O'Brien Criminal & Civil Solicitors have acted in numerous high-profile protest cases and understand both the law and the politics at play.We're here to support you if your rights are violated.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
