Prior Restraint and Protest Regulation

In United States (‘US’) First Amendment jurisprudence, restrictions on expression in advance of publication are seen as inherently more threatening to expression than subsequent punishments. These restrictions are known as prior restraints. Although the concept of prior restraint is embedded in US law, it has not received analogous attention in Australia. This article interrogates judicial treatment of the concept by Australian courts, and the inconsistencies between its application to the implied freedom of political communication compared to interlocutory injunctions in defamation. It argues that principles of prior restraint can be accommodated in Australian law to strengthen protections of expression. It does so by reference to protest regulation in Australian states and territories, contending that a lens of prior restraint foregrounds harms in the permit and authorisation schemes which apply to public assemblies.