Not-for-profit organisations — particularly those in the social justice space — often spend time advocating for new laws or policies. This advocacy can include organising a protest or rally. However, before doing so, your organisation should consider a number of legal issues, particularly if you plan to hold the protest in a public space. These issues include:
- liaising with the local police department;
- obtaining necessary insurance;
- ensuring public safety and access to first aid;
- complying with whistleblowing and defamation laws; and
- having civil liability protection.
For each issue, this article explains the key points your charity should address before organising a protest.
Liaising with Police
There may not be any laws stating that you have to inform police of a planned protest. However, if you are organising a protest in a public area, we recommend that you give written notice to the police. This makes it less likely that the police will charge you with unlawful assembly or obstructing people in public places. You can provide notice to the police commissioner in your State or Territory.
You may want to consider insurance if you’ll be holding your protest in a public place. Insurance can help if your organisation is sued, including lawsuits arising from a member of the public getting injured during a staged march. The types of insurance that may be suitable for your organisation will vary between different insurance companies but can include:
- public liability insurance;
- directors and officers insurance; and
- specific charity and not-for-profit insurance packages that cover events.
Safety and Access to First Aid
Besides insurance, you should also consider the safety of both the public and your organisation’s members. You can reduce safety risks by taking specific precautions.
|Will there be adequate access to first aid?||Make a first aid worker available at the event.|
|Have you designated an area for the campaign or protest?||Cordon off the area.|
|How many people will be involved?||Ensure that the space is adequate for the anticipated number of people.|
|Is there a way to warn people participating in the protest of any danger?||If possible, have protest participants sign a waiver.|
While your main objective should be to ensure no one is injured, taking these precautions may also help limit your liability if someone does get hurt.
Whistleblowing and Defamation Laws
Protest campaigns often draw attention to government corruption. A whistleblower is someone who provides information on corrupt conduct in the public sector or inside an organisation.
Each State and Territory has its own anti-corruption organisation. In NSW, whistleblowers report to the Independent Commission Against Corruption (ICAC). It is a crime to take reprisal actions against someone for giving the ICAC information. If your organisation is taking part in whistleblowing activity in NSW you may need to:
- report information to the ICAC;
- keep information confidential while the ICAC conducts an investigation; and
- keep records of proof of any allegations.
Other states and territories have similar laws protecting whistleblowers.
You also need to be aware of defamation laws if your campaign or protest publishes information about any person. Defamation happens when something you publish about a person causes ordinary members of society to think less of that person. Furthermore, people can be defamed by social media posts, so be aware of all communications made on behalf of your organisation — not just official press releases.
Civil Liability Issues
However, even if you take precautions to prevent defamation and other legal problems, there’s always a risk that someone will sue your organisation. Therefore, you should ensure that your members organising a protest are protected from lawsuits as much as possible.
If you are an unincorporated organisation, your individual members may be legally liable for any action they take on behalf of your organisation. If you get sued, your members may be ordered to pay damages. However, incorporating as a formal legal entity may protect your members from individual liability for actions they take on your organisation’s behalf.
Therefore, you may want to consider incorporating as either an incorporated association or a company limited by guarantee.
There are a number of issues to think about when organising a protest. Before you start the protest, ensure that:
- you have informed the police about your protest;
- your organisation has appropriate insurance;
- you have taken action towards protecting the safety of individuals taking part;
- you have considered whistleblowing and defamation laws; and
- your organisation has a legal structure that will protect its members.
If you are unsure about what laws apply to your protest or need assistance in drafting a waiver for individuals taking part, contact the ACNC for further information.
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