What is being proposed? 

The Victorian Government is proposing four major restrictions on the right to protest: 

1. A ban on face coverings at protests. It would become a criminal offence to wear any face covering at a protest – unless a person can prove they have a valid excuse.  
2. A ban on broadly defined ‘dangerous attachment devices’ used in peaceful direct action, and new police search and seizure powers at protests. 
3. A ban on the public display of certain symbols linked to terrorist organisations, which are already subject to Commonwealth laws.  
4. The creation of ‘safe access areas’ around places of religious worship to prohibit protest, or amendments to existing offences to protect against disturbance of religious gatherings. 

Executive summary 

The government has said that these measures are a response to antisemitism, violent extremism and hate-fuelled incidents across Victoria, including neo-Nazi activity. While these problems are undoubtedly serious, the government’s current proposal is not targeted at reducing racism and hatred. Rather, it amounts to a dangerous and repressive incursion into our democratic right to have our voices heard through peaceful assembly and political expression. 

Taken together, this suite of laws, which provide police with extraordinary powers against peaceful protesters, will have a chilling effect and deter people from attending protests and exercising their rights to freedom of expression and peaceful assembly due to fear of repercussions. 

A ban on face coverings would lead to the criminalisation and policing of people who wear facemasks for healthcare or disability reasons, religious or cultural reasons, to maintain their privacy and anonymity  including as a protection against surveillance, doxxing and retaliation, as a form of political expression, and as a protection from unlawful police force and racial profiling. It likely breaches rights to peaceful assembly, privacy, non-discrimination, and the constitutional freedom of political communication. 

A ban on ‘dangerous attachment devices’ risks capturing devices used in peaceful direct action, noting that temporary obstruction and disruption does not make a protest unpeaceful or justify criminal sanction. 

A ban on the display of terrorist symbols risks having discriminatory and unintended consequences and is duplicative of pe-existing Commonwealth legislation. 

A ban on protests outside or within a certain proximity to places of worship would prohibit peaceful protests for a genuine non-discriminatory purpose, for example protests by survivors of clergy sexual abuse. It would also have the unintended consequence of rendering large areas to be no-go zones for peaceful protest, due to the high number of places of worship. It is unlikely to be necessary or proportionate to a legitimate objective and is likely also unconstitutional. 

Police in Victoria already have significant powers to respond to crimes, vilification and threats of violence. Increasing police powers at peaceful protests is likely to increase risks of violence and make protests less safe for everyone.  

What are the government’s human rights obligations? 

The Victorian government has obligations under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) and international human rights law to protect the following human rights: 

1. The right to peaceful assembly and association.  
2. The right to be protected from unlawful or arbitrary interference with privacy by public authorities, including police. 
3. The right to freedom of expression.  
4. The right to non-discrimination, equality and to be protected from hate crime. 
5. The right to exercise and practice religion, including the freedom to worship, without interference.  

Any limits on these human rights must be lawful, necessary, and proportionate to a legitimate objective. 

There is also a constitutionally implied right to political communication. To be constitutional, laws which limit political communication must be justified and proportionate to a legitimate objective. 

A ban on face coverings is neither proportionate or necessary 

Face coverings are worn at protests for a variety of legitimate and lawful reasons, including 

• As a public health measure, to protect against illness, particularly for persons with a disability, elderly people and those with health conditions;. 

• For religious or cultural reasons;. 

• To protect anonymity and privacy, particularly where there is a risk of reprisals, surveillance, doxing, or retaliatory violence or other adverse consequences. For temporary migrants, adverse consequences can include visa cancellation and detention. Far-right groups, abusers of gender-based violence and other political groups have all been documented to engage in doxing, surveillance and retaliatory violence against protesters;. 

• As a form of political expression, including as political street theatre, an expression of solidarity, to mock or ridicule public figures, or to communicate a political idea;. 

• As a protection against unlawful and indiscriminate police use of chemical-based weapons such as OC spray and tear gas, or racial profiling by police. 

While the government has proposed exemptions to the ban for health and religious reasons, it would be impossible for any exemption to be implemented by police in a way which does not lead to the discriminatory policing of persons with disabilities and practicing their religion.  

Given that it is impossible for police to know beforehand why a person is wearing a face covering, police would have to approach and question any person wearing a covering. Being subjected to police questioning for the exercise of religion or requirement of a disability, at the threat of arrest and charge, is likely to be intimidating and humiliating, infringing on rights to equality and non-discrimination. 

It is not a crime to wear a face covering in public. The proposed offence banning facial coverings would give Victoria Police an extraordinarily broad power to remove peaceful protesters from public spaces and conduct arrests, in circumstances where there is no dangerous and harmful behaviour.  

An exercise of police power perceived as unjust or unreasonable, exercised in a heightened environment such as a public demonstration, can create risks to the safety of protestors, police and by-standers that would otherwise not arise, even if escalation is not intended. As such, this ban is likely to make protests less safe for everyone. 

There is no evidence that a blanket ban on face masks would be effective in addressing threats caused by violent or extremist conduct. Assemblies which advocate for national, racial, or religious hatred that amounts to incitement are not protected by human rights law. If the Government is seeking to target neo-Nazi activities, or regulate assemblies which take place for the purpose of inciting racial or religious hatred, it can make precise laws to do so.  

It is already a crime in Victoria to be disguised with “unlawful intent”, and police also have various powers to remove face coverings, including where a crime is reasonably suspected. A blanket ban affecting all peaceful protests is presumptively disproportionate under human rights law and does not meet the legal requirements of necessity and proportionality. The law is also likely to fall afoul of the constitutionally implied right to political expression, as it is not justified or proportionate to a legitimate objective. 

Banning ‘dangerous attachment devices’ risks criminalising non-violent direct action 

Whilst attachment devices may be used as further disruptive elements of protests, this does not make them inherently violent. There is a long history of protesters, including the suffragettes, using attachment devices in a way that does not pose a danger to the public or law enforcement. The proposal to ban certain attachment devices and provide Victoria Police with enhanced powers risks criminalising peaceful protest tactics, including civil disobedience and direct-action tactics which cause disruption. 

Human rights law protects against the criminalisation of peaceful protest tactics even if they are temporarily disruptive. Obstructing vehicular or pedestrian movement, temporary economic activity, or the ordinary flow of daily life does not render a protest ‘unpeaceful’. Similar laws in Queensland have been criticised by several UN Special Rapporteurs for using vague terms and for criminalising non-violent direct action. 

Victoria Police already have extensive powers to manage any safety risks at protests, to remove unlawful obstructions and respond to threatening conduct.  

This proposal does not meet the threshold of being reasonable, necessary and proportionate to a legitimate objective. 

Unintended consequences of the prohibition of terrorist symbols 

The proposal to ban the public display of terrorist symbols reflects a legitimate desire to prevent symbols associated with violence, hate and extremism from being used to intimidate or incite harm against racialised communities in Victoria.   

However, criminal sanctions against the display of certain symbols is likely to have unintended and harmful consequences borne disproportionately by racialised and marginalised communities.  

Of the 31 proscribed terrorist organisations, only three are right-wing extremist groups and the vast majority are Islamist organisations. The Nazi party is not a listed terrorist organisation. Criminalisation of terrorist flags will have little or no impact on the presence of right-wing extremists at demonstrations or protests, and the proposed provision carries a racialised dimension.  

For example, the flag of ISIS — a proscribed terrorist organisation — features the Shahada—the Islamic declaration of faith that reads: “There is no god but God, and Muhammad is the messenger of God.” The Shahada is not a symbol of terrorism- it is a core tenet of Islamic belief and appears on national flags, such as that of Saudi Arabia and Afghanistan.  

In regard to similar Commonwealth laws prohibiting the display of terror symbols, serious concerns were raised by human rights groups (see AHRC’s submission no. 131) and Muslim communities in regard to the risks of conflating religious symbolism with extremism, the inability to clearly distinguish between ISIS insignia and widely used expressions of Islamic faith like the Shahada, and the lack of clarity around how such laws would be enforced in practice. If “sufficiently similar” clauses are used, there are serious risks that symbols containing Arabic calligraphy could easily be misidentified—particularly by members of the public or law enforcement unfamiliar with Arabic or Islamic contexts.  

Rather than delivering safety, laws that ban symbols risk further marginalising Muslim and other racialised communities—especially when developed without extensive consultation.  

There is no evidence that displaying hateful symbols is a reliable precursor to violent extremism, and that criminalisation is an effective and proportionate tool to counter such risks. Attempts to outlaw extremist symbols often devolve into a game of legislative “whack-a-mole” —once one image or emblem is banned, groups adapt, modify, or co-opt new symbols designed to evade the law while continuing to signal allegiance to extremist ideologies.  

Extremist groups thrive on the dynamic caused by criminalisation. It allows them to frame themselves as victims of censorship, drawing further attention to their causes and using the law as a platform for recruitment and provocation.  

Banning symbols also raises significant concerns about legitimate expression. The same imagery that may be associated with terrorism or hate can also appear in satire, education, art, historical analysis or even stamps and coins. Without careful drafting and clear safeguards, such laws risk capturing innocent and legitimate uses—creating confusion and a chilling effect on political discourse, scholarship, and protest. 

Commonwealth laws already criminalise the display of proscribed terrorist organisation symbols, including those deemed “sufficiently similar”. These laws were enacted despite the very practical difficulties and risks outlined above. The introduction of further state-based offences in Victoria raises questions about necessity, duplication, and whether any additional legal measures can be justified in a rights-consistent and evidence-based way. 

‘Safe access’ areas around places of worship are not lawful, necessary or proportionate 

Proposed laws for “safe access” areas would amount to a blanket ban on protest outside places of worship. Blanket bans are presumed not to meet the requirement of being necessary or proportionate to a legitimate objective. 

This ban would go well beyond the legitimate objectives of protecting the right to worship free of interference and the right to be protected from racial or religious hatred. It would prohibit peaceful protests outside of places of worship for a genuine non-discriminatory purpose, for example, protests for climate action, protests by survivors of clergy sexual abuse, or protests against the political activities of religious institutions.  Such a broad ban would also limit the rights of individuals from religious communities to protest the activities of their own institutions. Notably in NSW, similar laws have been widely opposed by many religious organisations. 

Given the number of places of worship throughout Melbourne (which are also often located near common protest locations – for example St. Peter’s Church or Saint Patrick’s Cathedral near Victoria’s Parliament House), such laws could have the unintended consequence of making large swathes of the city and other urban areas as no-go zones for peaceful protests which have no impact on the right to practise religion.  

Given these factors, the proposed law is unlikely to meet the requirement of being sufficiently precise, necessary or proportionate to a legitimate objective.  

Similar laws to provide police with broad powers to restrict protests near places of worship are also being challenged in NSW for their unconstitutionality. It is likely that similar constitutional issues would apply to these proposed laws. 

Mere proximity to a place of worship is not, in itself, a sufficient basis for limiting the right to protest. Any restriction must target conduct that actually prevents or deters people from exercising their right to practise their religion—such as harassment, threats or direct obstruction at entry points – or conduct which aims to incite racial or religious hatred. 

How are proposed ‘safe access’ areas around places of worship different to safe access zones around abortion clinics? 

In the 2019 case of Clubb v Edwards [2019] HCA 11, the High Court upheld the constitutionality of safe access zone laws around abortion clinics. It did so in the specific context of private, sensitive, and time-critical medical services, where protecting patient safety, dignity and privacy was paramount. 

Places of worship are fundamentally different spaces to healthcare services. They are public, communal institutions that frequently engage in political, cultural and social discourse. Any restriction on protest activity near places of worship would need to be far narrower in scope and carefully justified by evidence of intent to interfere with the right to worship, practise, teach and observe religious beliefs. 

Our recommendation 

We recommend that the government engage in proper consultation with all affected communities and enact policies which are targeted at addressing the root causes of racism and hatred, including investment in communities working to tackle all forms of racism, measures to address online hate, and early detection, intervention and rehabilitation of individuals at risk of radicalisation. 

Addressing neo-Nazi activity and other forms of violent and racist extremism is a legitimate and important policy objective.  The Victorian Government should develop targeted, rights-affirming measures that address the specific harms at issue.