¹ Goodhart, “Public Meetings and Processions” (1937) 6 Camb. L.J. 161CrossRefGoogle Scholar.

² [1893] 1 Q.B. 142, 154 per Lopes L.J.

³ Attorney-General v. Brighton and Hove Co-operative Supply Association [1900] 1 Ch. 276, 280.

⁴ Hickman v. Maisey [1900] 1 Q. B. 752, 756.

⁵ Gill v. Carson and Nield [1917] 2 K.B. 674.

⁶ Melbourne Corporation v. Barry (1922) 31 C.L.R. 174, 196 per Isaacs J.

⁷ Dicey, Introduction to the Study of the Law of the Constitution (10th ed. 1960) 270-272Google Scholar.

⁸ Op. cit.

⁹ [1893] 1 Q.B. 142.

¹⁰ [1900] 1 Q.B. 752.

¹¹ Infra p. 100.

¹² In Harrison's case, the Duke owned the land on both sides of the highway.

¹³ [1900] 1 Q.B. 752.

¹⁴ (1968) 121 C.L.R. 584.

¹⁵ Id. 599 per Barwick C.J. and Menzies J.

¹⁶ E.g. in N.S.W. under Local Government Act 1919 (as amended), s. 232.

¹⁷ City Area Leases Ordinance 1936-1974, s. 4 (A.C.T.) defines the “City Area” as land specified as such by the Minister: it includes the whole of suburban Canberra,

¹⁸ Halsbury's Laws of England (3rd ed. 1957) xix, 65-66.

¹⁹ Lanyon Pty Ltd v. Canberra Washed Sand Pty Ltd (1967) 115 C.L.R. 342.

²⁰ Ibid.

²¹ Id. 351.

²² (1966) 1 D.C.R. (N.S.W.) 177 per Monahan D.C.J.

²³ Id. 184.

²⁴ Norton, A Treatise on Deeds (2nd ed. 1928) 252Google Scholar. This is common on deposited plans and certificates of title.

²⁵ [1911] 1 K.B. 337. The issue here was whether a meeting on a highway could be a “lawful meeting” under Public Meeting Act 1908, s. 1(1) (Eng.).

²⁶ (1937) 6 Carob. L.J. 161, 167.

²⁷ London Borough of Redbridge v. Jaques [1971] 1 All E.R. 260.

²⁸ Id. 262 per Lord Parker C.J.

²⁹ Bailey v. Williamson (1873) L.R. 8 Q.B. 118.

³⁰ Reg. v. Graham and Burns (1888) 16 Cox C.C. 420; Ex parte Lewis (1888) 21 Q.B.D. 191.

³¹ De Morgan v. Metropolitan Board of Works (1880) 5 Q.B.D. 155; Brownlie, The Law Relating to Public Order (1968) 137.

³² (1888) 16 Cox C.C. 420.

³³ Turner, Russell on Crime (12th ed. 1964) i, 1387Google Scholar.

³⁴ Fleming, Law of Torts (4th ed. 1971) 243Google Scholar. Also Regina v. Clark (No. 2) [1964] 2 Q.B. 315.

³⁵ Harper v. G.N. Haden and Sons, Ltd [1933] Ch. 298, 320 per Romer L.J.

³⁶ Homer v. Cadman (1886) 16 Cox C.C. 51. Mens rea is probably an element of the offence; Brownlie, op. cit. 78.

³⁷ Lowdens v. Keaveney [1903] 2 I.R. 82 and Homer v. Cadman supra. n. 36. Also Hickman v. Maisey [1900] 1 Q.B. 752.

³⁸ Report of the Royal Commission on the September Moratorium Demonstration (South Australia) 1970, 69. Cited hereafter as the “Bright Report”.

³⁹ Ibid.

⁴⁰ 34 Edw. 111, c. 1.

⁴¹ The Queen v. Wright; Ex parte Klar [1971] 1 S.A.S.R. 103, 107.

⁴² This Act would have been introduced into Australia under 9 Geo. 4, c. 83 (Eng.) (The Australian Courts Act) and into the A.C.T. under Seat of Government Acceptance Act 1909, s. 6 (Cth).

⁴³ [1969] 2 N.S.W.R. 494 (decided in 1954), followed in Re Murray (1969) 2 D.C.R. (N.S.W.) 161.

⁴⁴ [1971] 1 S.A.S.R. 103.

⁴⁵ Its repeal has been recommended by the A.C.T. Law Reform Commission.

⁴⁶ (1949) 65 T.L.R. 418. Fisse, and Jones, “Demonstrations: Some Proposals for Law Reform” 45 A.L.J. 593Google Scholar for other criticisms.

⁴⁷ Traffic Ordinance 1937-1964, s. 23 (A.C.T.).

⁴⁸ Gifford (note) 45 A.L.J. 627. A rather repressive view is put here.

⁴⁹ Williams v. Wallace (1965) 240 F. Supp. 100.

⁵⁰ This Act refers to religious processions and has not been used.

⁵¹ [1936] 1 K.B. 218.

⁵² Brownlie, op. cit. 37 ff.

⁵³ Smith, and Hogan, , Criminal Law (3rd ed. 1973) 611Google Scholar.

⁵⁴ (1882) 9 Q.B.D. 308.

⁵⁵ Brownlie, op. cit. 42-45.

⁵⁶ Turner, Kenny's Outlines of Criminal Law (19th ed. 1966) 416.

⁵⁷ Ibid.

⁵⁸ [1907] 2 K.B. 853, 860.

⁵⁹ Regina v. Sharp, Regina v. Johnson [1957] 1 Q.B. 552,

⁶⁰ (1970) 54 Cr. App. R. 499.

⁶¹ 1 Geo. 1, Stat. 2, c. 5. The Act has been used in Australia, e.g. in the Maritime Strike in 1890.

⁶² S. 1.

⁶³ S. 3.

⁶⁴ Infra p. 139.

⁶⁵ Mr Hughes when Commonwealth Attorney-General attempted to use this Ordinance's N.S.W. equivalent, Sydney Morning Herald, 11 December 1970.

⁶⁶ Discussed in Police v. Merhav unreported infra p. 116.

⁶⁷ Supra p. 111.

⁶⁸ (1908) 7 C.L.R. 133.

⁶⁹ Id. 138 per Griffith C.J.

⁷⁰ S. 5 of this Ordinance inserted these provisions as s. 19A in the Gaming and Betting Act 1906 (N.S.W.) (in its application to the A.C.T.).

⁷¹ Unreported.

⁷² Bright Report, 67. Of 130 arrests in the Moratorium, 20 involved charges of offensive behaviour or language,

⁷³ 'The liberty of procession is in many respects a safety-valve”, Melbourne Corporation v. Barry (1922) 31 C.L.R. 174, 209 per Higgins J.

⁷⁴ Worcester v. Smith [1951] V.L.R. 316, 318. Many other cases have used this formula.

⁷⁵ Re Marland (1963) 1 D.C.R. (N.S.W.) 224.

⁷⁶ (1966) 9 F.L.R. 237.

⁷⁷ Id. 244.

⁷⁸ Id. 245.

⁷⁹ Police Offences Ordinance 1930-1970, s. 17 (A.C.T.). They may also amount to disturbing the public peace P.O.O., s. 12 or making noise P.O.O., s. 1lA.

⁸⁰ (1920) 27 C.L.R. 548, 550.

⁸¹ (1932) 32 S.R. (N.S.W.) 499. Also Ex parte Breen (1918) 18 S.R. (N.S.W.) 1.

⁸² [1970] 1 N.S.W.R. 572.

⁸³ Brownlie, op. cit. 13.

⁸⁴ Brownlie, op. cit. 14, nn. 19-20.

⁸⁵ Bright Report, 25.

⁸⁶ Ibid.

⁸⁷ They are: P.O.O. s. 73—assaults, resists, hinders or delays, Police Ordinance 1927-1974, s. 25 (A.C.T.)

assaults or resists,

disturbs or hinders,

Crimes Act 1900, s. 58 (N.S.W.) (in its application to the A.C.T.)—assaults, resists, or wilfully obstructs,

Crimes Act 1914-1973, s. 76 (Cth)—wilfully obstructs, resists or threatens (applies to Commonwealth officers).

There are also provisions which only apply to offences under specific ordinances, e.g. P.O.O. s. 72 and Unlawful Assemblies Ordinance 1937, s. 4 (A.C.T.).

⁸⁸ Daintith, “Disobeying a Policeman” [1966] Public Law 248Google Scholar.

⁸⁹ Lenthall v. Curran [1933] S.A.S.R. 248.

⁹⁰ [1936] 1 K.B. 218.

⁹¹ [1966] 2 Q.B. 414.

⁹² Bright Report, 29.

⁹³ R. v. Reynhoudt (1962) 107 C.L.R. 381.

⁹⁴ [1967] 2 Q.B. 510.

⁹⁵ (1963] 2 Q.B. 561, 567; Brownlie, op. cit. 80.

⁹⁶ [1936) 1 K.B. 218.

⁹⁷ [1960) 3 All E.R. 660.

⁹⁸ Brownlie, op. cit. 21.

⁹⁹ (1883) 15 Cox C.C. 435. Particularly Coyne v. Tweedy [1898) 2 I.R. 168.

¹ Punch 10 February 1971, 183.

² H.R. Deb., Vol. 71, 926 (16 March 1971).

³ Stokes v. Kent unreported.

⁴ Ibid.

⁵ Jbid.

⁶ 1d. 11-12. In McEwan v. Siely unreported 17 April 1972 Connor J. felt that the intention to associate was necessary to create a common purpose where a group of people independently had the same purpose. This is probably true, but it does not alter the discussion.

⁷ R. v. Munks [1964] 1 Q.B. 304 is a recent application of this rule. Also, Turner, Kenny's Outlines of Criminal Law (19th ed. 1966) 48.

⁸ Kent v. Somosi (unreported 16 July 1971) per Flynn S.M.

⁹ Like all mental states, this too is a matter of inference. If this legislation remains, the distinction between the same purpose, and a common purpose, will trouble the courts in the future. The quotation cited above from Kent v. Somosi seems to give an example of an obvious purpose which is the same for all participants, but it may not amount to a common purpose under the Act.

¹⁰ Unreported.

¹¹ This appears to have been the gist of the Crown case in McEwan v. Siely supra n. 6.

¹² The common law required that firm and courageous persons be apprehensive, Turner, Russell on Crime (12th ed. 1964) 256.

¹³ Turner, Kenny's Outlines of Criminal Law (19th ed. 1966) 619Google Scholar. Hiller, “Law and Order under the Public Order Act 1971” (1973) 47 A.L.J. 251, 254Google Scholar does not advert to this practical limitation.

¹⁴ R. v. Caird (1970) 54 Cr. App. R. 499.

¹⁵ I.e. wilfully and without lawful excuse.

¹⁶ These sections dealt with damage by rioters and carried penalties of up to 10 years penal servitude.

¹⁷ Note also s. 14 C.C.A. which provides that “any exception, exemption, proviso, excuse, or qualification … “ need not be negatived by the prosecution in a charge for an offence against the law of the Commonwealth. This section was considered in Ex parte Ferguson; Re Alexander (1945) 45 S.R. (N.S.W.) 64, and it is suggested that this section relates to specific exemptions such as driving a motor vehicle “without the consent of the owner”. Otherwise s. 14 would completely cover all the situations dealt with by s. 21C.

¹⁸ [1955] A.C. 93.

¹⁹ Card, “Authority and Excuse as Defences to Crime” [1969) Crim.L.R. 359.

²⁰ [1971] W.A.R. 29, relying on Carter v. Reaper [1920) V.L.R. 337. Proof of absence of wrong intention may not go as far as positively proving innocent motive.

²¹ Pascoe v. Nominal Defendant (Qld) (No. 2) [1964) Qd.R. 373, 378.

²² Unreported 11 August 1971.

²³ Supra n. 14.

²⁴ Subramaniam v. Public Prosecutor [1956) 1 W.L.R. 965.

²⁵ Card, supra n. 19.

²⁶ The Riot Act, 1 Geo. 1, Stat. 2, c. 5, s. 1.

²⁷ S. 23(1) Public Order Act 1971 (Cth).

²⁸ This view is supported by Brownlie, op. cit. 19-22, and by comments of Mr Dobson S.M. (Canberra Times 12 October 1971). Superior courts have taken a more objective view, e.g. Ball v. McIntyre (1966) 9 F.L.R. 237.

²⁹ S. 8(1) provides that the police officer may give a direction.

³⁰ Unreported.

³¹ Cf. The Riot Act, 1 Geo. 1, Stat. 2, c. 5, s. 2.

³² (1830) 4 C. & P. 442: 172 E.R. 774. Mr Hiller in “Law and Order under the Public Order Act 1971” (1973) 47 A.L.J. 251, 255 refers to this case but does not note the similarity of the words used in the Riot Act to those in the Public Order Act.

³³ S. 8(3).

³⁴ The author knows of no case where persons so charged were convicted, and thus it remains unclear whether the charge related to dispersal from the original assembly, or from the re-formed assembly. Accounts from police and demonstrators differ widely on this point.

³⁵ This is mentioned by counsel in Kent v. Visschedyk, unreported 11 August 1971, but no reference is given.

³⁶ Otherwise there is no assembly.

³⁷ Unreported.

³⁸ Stokes v, Kent (unreported),

³⁹ Unreported 11 August 1971, 5. Page references in unreported decision refer to official transcripts of judgments.

⁴⁰ Id. 4.

⁴¹ Adopted in Kent v. Visschedyk 9ff.

⁴² S. 25 can be read to preserve intact the common law power infra p. 139 in which case it would apply to s. 6 assemblies.

⁴³ To this extent, s. 8(4) is broader than the Riot Act.

⁴⁴ Turner, Kenny's Outlines of Criminal Law (19th ed. 1966), 416Google Scholar.

⁴⁵ Unreported 11 August 1971.

⁴⁶ Supra pp. 115-117.

⁴⁷ Cf. the definition of obstruction, supra p. 13.

⁴⁸ Unreported 1 September 1971 before Flynn S.M.

⁴⁹ (1908) 7 C.L.R. 133.

⁵⁰ Unreported, 9.

⁵¹ Id. 10.

⁵² Lawful excuse supra p. 126.

⁵³ [1958] V.R. 547.

⁵⁴ This limitation has been used for offensive weapons, but is just as applicable here: ibid.

⁵⁵ S. 10(2)(b). Cf. sub-s. (a).

⁵⁶ Mackay v. Roe, Gaylard, & Green, Canberra Times 25 January 1973. This case lasted 21 months in Petty Sessions. It is interesting to note that the three defendants in this case, who were arrested on the footpath outside Manuka Oval, were held to constitute an assembly for the purposes of the Public Order Act. The $10 fine imposed was small compared to the defendants' costs (approximately $60).

⁵⁷ S. 10(2) (b). This is also true of sub-s. (c).

⁵⁸ Sweet v. Parsley [1970] A.C. 132.

⁵⁹ S. 12(1) is in identical terms but it applies only to Commonwealth premises. As is noted later, the consent of the Deputy Crown Solicitor is not required for prosecutions under s. 11.

⁶⁰ The original Trespass on Commonwealth Lands Ordinance 1932 (A.C.T.) provided for a £10 fine for trespass to lawns or grassed areas in certain shopping centres, to gardens maintained by the Commonwealth or to lands on which trespassing is prohibited by a notice. Its limitations are obvious and unexceptional. In 1948 s. 24B was added to the Police Offences Ordinance creating an offence of being found on any lands, or in a building or vehicle without lawful excuse, the onus of proof whereof lay on the defendant. Thereafter s. 89 C.C.A. created the offence of trespassing on prohibited land, but this is severely limited by the definition of prohibited land in s. 89(5). The sections now under consideration were the next of this type, and they were followed by the Trespass on Commonwealth Lands Ordinance 1972 (A.C.T.). This last Ordinance has been substantially repealed by the Trespass on Commonwealth Lands Ordinance 1973.

⁶¹ Fleming, op. cit, 19.

⁶² Ibid. 22-23.

⁶³ Blacker v. Waters (1928) 28 S.R. (N.S.W.) 406; Williams v. Milotin (1957) 97 C.L.R. 465. Also Hefley, and Glasbeek, “Trespass: High Court Versus Court of Appeal” (1966) 5 M.U.L.R. 158Google Scholar.

⁶⁴ [1960] 3 All E.R. 660.

⁶⁵ S. 17 Police Offences Ordinance 1930-1970 (A.C.T.).

⁶⁶ [1893] 1 Q.B. 142. Supra p. 108.

⁶⁷ [1900] 1 Q.B. 752. Supra p. 109.

⁶⁸ Mackay v. Abrahams [1916] V.L.R. 681.

⁶⁹ Definition of “Commonwealth premises” in s. 4, Public Order Act 1971 (Cth).

⁷⁰ Supra p. 111.

⁷¹ 16 August 1970. In the incident referred to, a number of demonstrators invaded the gardens of Mr Hughes' home and he proceeded to shoo them away with a cricket bat. Charges laid against the demonstrators by Mr Hughes under the Enclosed Lands Protection Act failed: see The Sydney Morning Herald 11 December 1970.

⁷² Police v. Garner unreported.

⁷³ S. 14.

⁷⁴ Campbell, and Whitmore, Freedom in Australia (2nd ed. 1973) Ch. 10Google Scholar.

⁷⁵ Ss. 16, 19 and 20 correspond exactly to ss. 7, 10 and 11 respectively. S. 15 copies s. 6 except that the word “wilfully” ins. 6(2) is absent from s. 15(2).

⁷⁶ S. 4.

⁷⁷ Though not to the exclusion of State law, if in a State: s. 25(4).

⁷⁸ H.R. Deb. Vol. 72, 1586 (7 April 1971).

⁷⁹ Supra p. 125.

⁸⁰ This may be the case anyway under s. 19(c) infra.

⁸¹ The words “violence, threats or intimidation” only apply to intentional acts.

⁸² Note there is no defence of lawful or reasonable excuse in this section.

⁸³ Behaviour is not offensive in vacuo (as under s. 17 P.O.O.) for this paragraph. It seems reasonable to assume that, if the protected person is not offended, there is no room for applying an objective test of offensiveness.

⁸⁴ Ball v. McIntyre (1966) 9 F.L.R. 237; Worcester v. Smith (1951] V.L.R. 316.

⁸⁵ Supra n. 83.

⁸⁶ Worcester v. Smith [1951] V.L.R. 316.

⁸⁷ Words can amount to behaviour in such a provision: Allen's Police Offences of Queensland (3rd ed. 1971) 81.

⁸⁸ They have a common purpose if they are together: McEwan v. Siely unreported 17 April 1972.

⁸⁹ S. 40(1) (i).

⁹⁰ It only permits discharge.

⁹¹ S. 24.

⁹² Police v. Roe unreported. This was stated by the accused who defended himself in this case.

⁹³ S. 24(3).

⁹⁴ This does not necessarily exclude the power of dispersal. Although persons cannot be charged with these old offences, they may still do the acts which were proscribed and thus be subject to dispersal.

⁹⁵ London Times 7 November 1947.

⁹⁶ Though see the resurrection of conspiracy to corrupt morals in Shaw v. D.P.P. [1962] A.C. 220.

⁹⁷ Such an act could be done by anyone.

⁹⁸ S. 8(3) (b).

⁹⁹ Riot defined supra p. 114. Also Brownlie, op. cit. 48.

¹ This comment applies equally to the common law power, if it survives.

² The author supports the removal of the prison term from this offence.

³ S. 23.

⁴ E.g. Gun Licence Ordinance 1937-1971, s. 5 (A.C.T.).

⁵ Supra p. 135.

⁶ Supra pp. 138-139.

⁷ H.R. Deb. Vol. 76,189 (23 February 1972).

⁸ 21 May 1971.

⁹ Supra p. 125.

¹⁰ Infra p. 143.

¹¹ D. Williams, Keeping the Peace (1967) 11.

¹² See comments by Fox J. reported in the Canberra Times 8 February 1973.

¹³ Campbell and Whitmore, op. cit. Ch. 10.

¹⁴ In Williams v. Wallace (1965) 240 F. Supp. 100, 106 it is said that: “The law is clear that the right to petition one's government for the redress of grievances may be exercised in large groups. Indeed, where, as here, minorities have been harassed, coerced and intimated, group association may be the only realistic way of exercising such rights.”

¹⁵ E.g. the use of s. 7A C.C.A. to prevent the dissemination of pamphlets attacking the National Service Act.

¹⁶ They are also likely to get a less sympathetic Press coverage: see (1967) 44 Denv. L.J. 499.

¹⁷ Campbell and Whitmore, op. cit. cite numerous examples.

¹⁸ Canberra Times 7 February 1973. This event took place in Queensland, but it is a fairly typical example.

¹⁹ Canberra Times 21 April 1971. Woroni 10 June 1971.

²⁰ Canberra Times 22 July 1971.

²¹ Le Bon, The Crowd (1894) 121.

²² 1d. Ch. 1.

²³ R. v. Caird (1970) 54 Cr. App. R. 499.

²⁴ 1d. 508.

²⁵ Fisse, and Jones, “Demonstrations: Some Proposals for Law Reform” (1971) 45 A.L.J. 593, 613Google Scholar.

²⁶ This may no longer be true with bombings and snipers.

²⁷ Quite properly, although he may have been incapable of choice in the matter.

²⁸ Kent v. Visschedyk (unreported) 11 August 1971.

²⁹ The “Day of Rage” demonstration on 21 May 1971 lasted almost 5 hours.

³⁰ The Aboriginal Embassy was established on the lawns in front of Parliament House, Canberra, by a group of Aborigines protesting about the failure of the incumbent government to take any steps to help the aboriginal people. The government hastily passed the Trespass on Commonwealth Lands Ordinance 1972 (A.C.T.) to permit the removal of this structure; police then forcibly removed it and its tenants. The Embassy was re-established and removed again, and set up a third time after the A.C.T. Supreme Court declared that the Ordinance was invalid because of improper gazettal. The Ordinance was then re-gazetted and the Embassy removed a third time.

³¹ Brownlie, op. cit. 140ff. and discussion supra p. 108.

³² 1 Will & M. Sess 2, c. 2.

³³ (1922) 38 T.L.R. 781.

³⁴ Lipez, “The Law of Demonstrations: The Demonstrators, The Police, The Courts” (1967) 44 Denv. L.J.1 499, 534Google Scholar.

³⁵ D. Chipp, then Minister for Customs, expressed this view at a dinner held at Bruce Hall, A.N.U. in 1972.

³⁶ Brownlie, op. cit. 144, n. 18.

³⁷ Unreported 16 July 1971.

³⁸ Also his comment in Kent v. Menere unreported 1 September 1971 that “Persons are entitled to protest as much as they like. Sometimes they are bound to protest but they are not entitled to use the highway or the rights of other people, to infringe the rights of other people, for the protest”.

³⁹ (1966) 9 F.L.R. 237, 245.

⁴⁰ Council for Civil Liberties (pamphlet), The Right of Peaceful Assembly 1.

⁴¹ Mr Callaghan, Home Secretary, Parliamentary Debates, House of Commons, 24 October 1968, prior to a huge (and in the event, peaceful) anti-Vietnam demonstration.

⁴² This applies to State Laws under the 14th Amendment guaranteeing due process of law.

⁴³ U.S. v. Cruikshank (1876) 92 U.S. 542, 552: 23 L. Ed. 588, 591.

⁴⁴ Witness the struggle in Gratwick v. Johnson (1945) 70 C.L.R. 1 to have the right of free trade, commerce and intercourse, guaranteed by s. 92 of the Australian Constitution, upheld in wartime.

⁴⁵ Per Jackson J. in West Virginia Board of Education v. Barnette (1943) 319 U.S. 624,638: 87 L. Ed. 1628, 1638.

⁴⁶ Campbell and Whitmore, op. cit. Ch. 10.

⁴⁷ (1922) 31 C.L.R. 174, 196 per Isaacs J.

⁴⁸ Cox v. Louisiana (1965) 379 U.S. 536: 13 L. Ed. 2d 471.

⁴⁹ Coates v. Cincinnati (1971) 402 U.S. 611: 29 L. Ed. 2d 214.

⁵⁰ Shuttlesworth v. Birmingham (1969) 394 U.S. 147: 22 L. Ed. 2d 162,

⁵¹ Brandenburg v. Ohio (1969) 395 U.S. 444: 23 L. Ed, 2d 430,

⁵² Cf. Human Rights Ordinance 1971 (T.P.N.G.).