Public Order (Protection of Persons and Property) Act 1971

The legislation primarily affects three broad cohorts. First, participants in assemblies—any three or more persons assembled for a common purpose (s 4(1))—who find themselves in a Territory, on Commonwealth premises, or in relation to protected premises or protected persons. This captures protesters, demonstrators, picketers and even bystanders who join a moving crowd. Because liability under ss 6(1), 15(1) and 9(1) attaches to every person taking part once the requisite apprehension of violence or unreasonable obstruction arises, passive participants can be captured.

Second, protected persons and those responsible for protected premises are direct beneficiaries. Protected persons (s 4(1)) include diplomatic staff, consular officers exercising consular functions, prescribed staff members of designated overseas missions, high officers of international organisations and their representatives, but exclude Australian citizens and permanent residents. Protected premises encompass diplomatic missions, consular posts, designated overseas missions, international organisation offices, residences of protected persons, and former premises to which Article 45 of the Vienna Convention on Diplomatic Relations continues to apply. Owners, occupiers and authorised officers of these sites gain enhanced trespass, obstruction and removal powers (ss 11, 12, 20).

Third, law-enforcement and security actors are both empowered and regulated. Constables, protective service officers, and authorised officers for investigatory authorities (including police and persons authorised by the relevant Minister or tribunal) receive dispersal, arrest, search and removal authorities (ss 8, 13C–13E, 22). Police officers of sergeant rank or above are the only persons who may issue formal dispersal directions under ss 8 and 17. The Director of Public Prosecutions and authorised officers control prosecution decisions (s 23).

Investigatory authorities prescribed by regulation—tribunals or persons with coercive document-production or questioning powers—also fall within the regulatory net. Their premises become “authority premises” (s 13A) to which Part IIA security screening applies. Finally, the legislation indirectly affects ordinary citizens who wish to attend public hearings of such tribunals; s 13E(4) expressly preserves their right of access provided there is room.

Commonwealth and Territory governments, public authorities under the Commonwealth, and occupiers of Commonwealth premises are protected from trespass and unreasonable obstruction (ss 11–12). International organisations and foreign states benefit from the diplomatic protections in Part III.

The Act imposes duties on assembly participants to refrain from conduct that creates a reasonable apprehension of violence (ss 6(1), 15(1)), from intentional acts of violence or damage (ss 6(2), 15(2)), and from causing actual bodily harm or substantial property damage (ss 7, 16). A specific duty not to engage in unreasonable obstruction—defined by reference to all circumstances including place, time, duration and nature (s 4(1))—applies both generally (ss 9, 18(1)(d)) and in relation to access to premises (ss 11(2)(a), 12(2)(a), 20(2)(a)).

At investigatory authority premises, individuals face duties to provide name, address, reason for presence and identity evidence when lawfully required (s 13C), to submit to screening or frisk searches or deposit personal effects (s 13D), and not to carry firearms, explosive substances or offensive weapons (s 13F). Refusal triggers both a criminal offence and potential removal (s 13E).

Protected persons enjoy correlative rights not to be assaulted, harassed, unreasonably interfered with, subjected to offensive or insulting behaviour, or obstructed in the discharge of their duties (s 18). Occupiers of protected premises and Commonwealth premises hold rights to direct trespassers to leave and to have those directions enforced (ss 11(2)(c), 12(2)(c), 20(2)(c)).

Police and authorised officers possess statutory rights to issue dispersal directions (ss 8, 17), to use reasonably proportionate force (ss 8(4), 17(4)), to arrest without warrant (s 22), to conduct searches (s 13D), and to remove non-compliant persons. These powers are conditioned by reasonableness requirements and, in the case of force, by the officer’s honest belief on reasonable grounds.

Defendants enjoy important procedural rights. Section 24 entitles any person charged with a summary offence to request and receive further particulars of the conduct alleged; the court must adjourn until they are furnished and may dismiss the charge if they are not provided within a reasonable time. Reasonable excuse defences appear throughout (ss 8(3B), 10(1B), 11(2B), 12(5), 13C(3), 13D(2A), 20(3)), placing an evidential burden on the defendant (expressly referencing s 13.3(3) of the Criminal Code). The Act preserves the right of the public to attend public hearings before investigatory authorities provided seating is available (s 13E(4)).

Penalties are graduated. Summary offences predominate (s 23(1)). The base apprehension-of-violence offence (ss 6(1), 15(1)) and unreasonable obstruction (ss 9, 18) each attract fines not exceeding 20 penalty units. Trespass carries 10 penalty units (ss 11(1), 12(1), 20(1)). Weapons offences under paragraphs (b)–(d) of ss 10(1) and 19(1) carry up to six months imprisonment; mere possession under paragraph (a) is a 20 penalty unit fine. The s 13F prohibition on weapons at authority premises is 12 months imprisonment. Indictable offences under ss 7 and 16 for causing actual bodily harm or damage exceeding $1,500 carry maximums of five years (harm) or three years (damage).

Enforcement mechanisms include warrantless arrest (s 22) where summons would be ineffective or repetition is likely. Dispersal directions under ss 8 and 17 are enforced by the 15-minute compliance period and subsequent offence. Search and removal powers at authority premises are self-executing once a lawful requirement is made (ss 13C–13E).

Prosecution is centrally controlled: DPP consent is required for all proceedings except the minor trespass and obstruction offences in s 11 (s 23(2)–(3)). Certificates issued by authorised persons or the Secretary of the Foreign Affairs Department constitute prima facie evidence of Commonwealth premises status or protected status (ss 13, 21), reversing the evidential onus.

The Criminal Code applies in full (s 5A). Absolute liability frequently removes fault elements for location or status (e.g. ss 6(1A), 7(2), 9(2), 12(3), 15(3), 16(2), 20(4)). Strict liability attaches to elements such as the giving of a direction (s 12(4)) or the fact of a direction having been given (s 8(3A), 17(3A)).

The Act is expressly positioned within a web of Commonwealth, State, Territory and international instruments. Section 5A applies Chapter 2 of the Criminal Code to all offences, including the general principles of criminal responsibility and the specific modifications to s 10.5 for the s 13F weapons offence. References to “penalty units” incorporate the value set by s 4AA of the Crimes Act 1914.

Section 25 comprehensively displaces the common law of unlawful assembly, rout and riot in Territories and Commonwealth places, and repeals the Imperial and State enactments listed in the Schedule (including the Riot Act and various colonial provisions). The exclusion is not total: s 25(4) preserves concurrent operation of State or Territory laws capable of operating alongside the Act. Section 11(3A) confirms that s 11 does not exclude or limit concurrent Australian Capital Territory laws.

Part III is framed as implementing Australia’s international obligations under the Vienna Convention on Diplomatic Relations and Vienna Convention on Consular Relations (s 14 and definitions in s 4(1)). The definitions of protected premises expressly incorporate Articles 45 of each Convention. The Overseas Missions (Privileges and Immunities) Act 1995 supplies the meaning of “designated overseas mission”.

Part IIA operates only in respect of investigatory authorities prescribed by regulation (s 13B). Its powers are additional to, and do not derogate from, existing contempt powers or court-like powers of tribunals (s 13G). Section 12(6) carves out Commonwealth premises used exclusively for court sittings governed by the Court Security Act 2013.

The Lands Acquisition Act 1989 once supplied the delegation mechanism for certificates under s 13; that reference was updated in 2016. The Australian Federal Police Act 1979 supplies the meaning of “protective service officer”. Interaction with the Commonwealth Places (Application of Laws) Act 1970 is expressly addressed in s 25.

The compilation date is 11 May 2018 (Compilation No 18). The most significant structural addition was the insertion of Part IIA by the Public Order (Protection of Persons and Property) Amendment Act 1995, responding to security concerns at royal commissions and other coercive tribunals. That Act also expanded the definition of protected persons and premises to include designated overseas missions via consequential amendments to the Overseas Missions (Privileges and Immunities) Act 1995.

The Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 inserted s 5A and applied absolute and strict liability notes throughout (e.g. to ss 6, 7, 8, 9, 10, 12, 15–20), ensuring fault-element clarity after the Criminal Code’s general principles came into force. Subsequent Statute Update and Statute Law Revision Acts (2014, 2016) adjusted penalty unit cross-references and modernised language.

The Court Security (Consequential Amendments) Act 2013 inserted s 12(6) to prevent overlap with dedicated court security legislation. The Home Affairs and Integrity Agencies Legislation Amendment Act 2018 made minor machinery changes to definitions of authorised officers (s 13A).

These changes reflect a legislative trend toward risk-based security at official premises, alignment with federal criminal law codification, and avoidance of duplication with specialist regimes. Penalty levels have been updated only through the general penalty unit mechanism rather than substantive amendment.

Although the Act has been in force since 1971, reported challenges are relatively sparse, consistent with its largely summary character and high prosecution threshold. The constitutional validity of the diplomatic protection provisions was assumed in early commentary to rest on the external affairs power (s 51(xxix) of the Constitution), given s 14’s explicit linkage to international law. No High Court decision has invalidated any provision.

Evidential presumptions in s 21 have attracted occasional forensic challenge; the section renders presence in the vicinity of protected premises prima facie evidence that the assembly was “in relation to” those premises. Courts have treated this as an evidentiary rather than conclusive presumption, consistent with the statutory language.

The reasonable excuse defences (multiple instances) have generated litigation on burden placement. Because the Act expressly invokes s 13.3(3) of the Criminal Code, defendants need only adduce evidence capable of raising the excuse; the prosecution then bears the legal burden of disproving it beyond reasonable doubt. Disputes have arisen over whether fear of violence from counter-protesters or media presence can constitute reasonable excuse for continued presence after a dispersal direction.

Controversy has surrounded the breadth of “unreasonable obstruction”. The definition in s 4(1) requires regard to “all the circumstances … including its place, time, duration and nature”. In practice, this has allowed police to treat prolonged sit-ins or human blockades outside embassies as offences even where no violence is apprehended. Civil liberties groups have criticised the potential chilling effect on peaceful protest, particularly given the absolute liability attaching to the location element in several offences.

Part IIA search powers have raised dignity concerns. The requirement that frisk searches be conducted by a person of the same sex (s 13D(5)) and the prohibition on removal of clothing during a frisk search (s 13D(4)) were inserted to address privacy objections, yet the absence of a warrant or judicial oversight for what are effectively airport-style security measures at public tribunals continues to attract academic critique.

No appellate decisions have struck down the dispersal direction regime, but the 15-minute grace period and the form of words prescribed in ss 8(2) and 17(2) have been strictly construed; minor deviations have led to acquittals on technical grounds.

Most practitioners miss that absolute liability applies to the “in a Territory or on Commonwealth premises” element in the base offences (ss 6(1A), 9(2), 10(1A)). This means mistake of fact as to location is not available; a protester who genuinely but mistakenly believes they are on State land can still be convicted. The same trap exists for the “in relation to protected premises or a protected person” circumstance under s 15(3).

The evidential burden for “reasonable excuse” is another common oversight. While the defendant need only point to evidence, many summary hearings treat the defence as requiring the defendant to prove the excuse on the balance of probabilities. The statute is clear that only the evidential burden shifts (ss 8(3B), 10(1B), 13.3(3) Criminal Code).

Section 21’s evidentiary presumption is powerful but rebuttable. Defence counsel frequently fail to lead positive evidence that the assembly’s location was coincidental rather than chosen because of the proximity of protected premises. Once the prosecution tenders a certificate under s 21(2), the evidential onus effectively shifts in practice.

Part IIA’s regulation-making power (s 13H) allows the Governor-General to prescribe both the investigatory authorities to which the Part applies and limitations on the exercise of search powers. Many practitioners assume the powers are unqualified; in reality, regulations may narrow them significantly, yet few have been made public.

The interaction between s 12(6) and the Court Security Act 2013 is a trap for Commonwealth premises that host both administrative tribunals and occasional court sittings. The exclusion is not automatic; the premises must be “used exclusively” for court purposes on the relevant occasion.

Finally, the Schedule repeal of old riot laws does not operate in every State. Section 25(3) excludes common-law and scheduled offences only in relation to assemblies on non-Commonwealth-place Commonwealth premises or in relation to protected premises/persons. In a pure State-law protest away from any federal nexus, the old laws listed in the Schedule may still apply.

Compliance for organisers of assemblies near sensitive sites begins with risk assessment. Any gathering of three or more persons for a common purpose technically constitutes an “assembly”. Organisers should brief participants that conduct creating a reasonable apprehension of violence—shouting, pushing, throwing objects—can render every participant liable under s 6(1) or s 15(1), even those who remain peaceful. Written protocols emphasising non-violence, designated marshals and de-escalation procedures should be prepared and retained.

To avoid the unreasonable obstruction offence, organisers must ensure that any blockade or sit-in is time-limited, leaves clear pedestrian and vehicle access, and is moved promptly upon police request. The statutory definition (s 4(1)) invites a proportionality analysis; short, symbolic obstructions during business hours are less likely to be unreasonable than all-day blockades.

For events near diplomatic premises, compliance requires understanding the “in relation to” test (s 5). Holding a protest directly outside an embassy is almost certainly caught; locating it several blocks away with no reference to the embassy in publicity materials reduces risk, though s 21’s presumption may still apply.

At investigatory authority premises, any person attending a hearing should carry photo identification and be prepared to state their name, address and reason for attendance. Refusal, even on privacy grounds, is an offence unless a reasonable excuse exists (s 13C(3)). Legal observers or media should obtain prior accreditation where possible. Weapons of any description, including pocket knives that could be classified as offensive weapons, must be left elsewhere; the s 13F prohibition is strict.

Commonwealth agencies and tribunal administrators should ensure that any person authorised to give directions under s 12(2)(c) or s 13E is formally delegated in writing. Certificates under ss 13 and 21 should be prepared in advance for anticipated prosecutions.

Event organisers should obtain legal advice on whether a dispersal direction is likely and prepare a compliance plan that includes filming the direction being given, noting the exact time, and ensuring all participants can hear it. Fifteen minutes is the statutory minimum; attempting to negotiate beyond that window risks the s 8(3) or s 17(3) offence.

Record-keeping is critical. Because s 24 entitles defendants to particulars, investigators should document specific acts of each alleged participant rather than relying on generalised “the crowd behaved violently” evidence. For defendants, immediate requests for particulars in writing can force prosecution disclosure or lead to dismissal.

Finally, agencies should monitor regulations made under s 13B (prescribing investigatory authorities) and s 13H (limitations on search powers). Compliance programs for tribunal staff must be updated whenever new regulations appear. Training on the distinction between screening searches and frisk searches, same-sex requirements, and the prohibition on removing clothing (s 13D(4)–(7)) is mandatory to avoid civil liability despite the good-faith protection in s 13D(6).