EH v Queensland Police Service; GS v Queensland Police Service [2020] QDC 205

Date: 28 August 2020
Court: Magistrates Court Of Queensland
Judicial Officer: Fantin DCJ
Human Rights Act 2019 (Qld) Sections: s 22
Rights Considered: Right to peaceful assembly and freedom of association
Other Legislation: Criminal Code Act 1899 s 477; Transport Infrastructure Act 1994 s 257; Summary Offences Act 2005 ss 14B, 14C; Police Powers and Responsibilities Act 2000 s 791(2)l; Justices Act 1886 s 222; Penalties and Sentences Act 1992 ss 9, 12, 48; Summary Offences and Other Legislation Amendment Act 2019; Summary Offences and Other Legislation Amendment Bill 2019
Keywords: Political Freedoms; Peaceful assembly and freedom of association

The right to peaceful assembly and freedom of association (section 22) in the Human Rights Act 2019 (Qld) was briefly mentioned by Fantin DCJ in Her Honour’s reasons for allowing an appeal and resentencing the two appellants in circumstances where the original sentences imposed were manifestly excessive.

The two appellants were charged with obstructing a railway, trespassing on a railway, and using a dangerous attachment device to interfere with transport infrastructure, and contravening a police direction or requirement, after taking part in protest activity against coal mines. At first instance, the Acting Magistrate convicted and sentenced the appellants to three months imprisonment, wholly suspended for two years, for the offence of using a dangerous attachment device: at [8]. The appellants were convicted of the other offences, but no further penalty was imposed: at [8].

The appellants appealed against the sentences of imprisonment on the grounds that they were manifestly excessive, and Fantin DCJ made orders allowing the appeal and the resentencing of the appellants. Her Honour noted that the Explanatory Notes to the Summary Offences and Other Legislation Amendment Bill 2019 which included a statement highlighting the right to peaceful assembly. The Explanatory Notes stated that the right to peaceful assembly ‘has long been recognised in international human rights law through Article 21 of the International Covenant on Civil and Political Rights’ and has also been recognised in both the Peaceful Assembly Act 1992 (Qld) and Human Rights Act 2019 (Qld): at [50].

Consequently, Her Honour held that the appellants ‘have the right to express their views and to protest against an activity to which they object’, which is limited by law and the ‘prevention of disorder or crime of the protection of the rights and freedoms of others’: at [66]. Her Honour held that the Acting Magistrate imposed a sentence that was ‘manifestly excessive’ and ‘made several errors which caused the sentencing discretion to miscarry’: at [86]. Subsequently, a single fine of $1000 was issued to each of the appellants for all of the offences: at [94].

Visit the reported judgement: https://archive.sclqld.org.au/qjudgment/2020/QDC20-205.pdf