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Say It Loud: Protecting Protest in Australia

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Say It Loud: Protecting Protest in Australia Say it loud: Protecting Protest in Australia Contact Hugh de Kretser Human Rights Law Centre Level 5, 175 Liverpool St Sydney NSW 2000 Level 17, 461 Bourke Street Melbourne VIC 3000 T: +61 (3) 8636 4450 E: [email protected] W: www.hrlc.org.au Human Rights Law Centre Acknowledgements The Human Rights Law Centre protects and This report was researched and written promotes human rights in Australia and beyond by Hannah Ryan, Angela Chen and through a strategic mix of legal action, advocacy, Aruna Sathanapally. research, education and UN engagement. The Human Rights Law Centre thanks We are an independent and not-for-profit The Myer Foundation for generously organisation and donations are tax deductible. supporting this project. Follow us: @rightsagenda Thank you also to all of the organisations, academics and individuals who participated Join us: www.facebook.com/ in the research for this report and provided HumanRightsLawCentreHRLC/ valuable advice and guidance. Contents Introduction 2 Principles 3 Principle 1 Protest activities are protected by 4 the Australian Constitution and international law. Principle 2 Any regulation of protest must be 5 limited to what is necessary and proportionate. Principle 3 As far as possible, protesters should be 7 able to choose how they protest. Principle 4 Laws affecting protest should be 9 drafted as clearly and carefully as possible. Principle 5 Laws regulating protest should not 11 rely on excessive police discretion, and where discretion is necessary it should be properly guided by the law. Principle 6 Lawmakers and governments 12 (including police) should take positive steps to promote freedoms of expression and assembly. Principle 7 Notification procedures should 14 facilitate, not restrict, peaceful protest. Principle 8 Lawmakers and governments 16 should not prohibit protest based on its message, except in narrow circumstances where that message causes harm to other people. Principle 9 Other human rights of protesters 18 must be respected, including privacy, equality and freedom from inhuman or degrading treatment. Principle 10 The use of force by authorities 20 should only occur in exceptional circumstances and as a last resort. References 21 SAY IT LOUD: PROTECTING PROTEST IN AUSTRALIA 1 Introduction The ability to speak out publicly, to draw attention to a cause, to agitate for change, to protest, is an essential component of a democracy. The freedom to assemble and protest Peaceful protest is protected under In 2017, the High Court of Australia allows Australians to express their views international human rights law and decided a landmark case dealing with an on issues important to them and to press protests engage overlapping areas anti-protest law: Brown v Tasmania.3 With for legal and social change. Australia of Australian law: criminal law, local a majority of the court finding aspects has a proud history of protests leading government regulations, planning of Tasmania’s Workplaces (Protection from to significant change, including the controls, and environmental law. Laws Protesters) Act 2014 unconstitutional, the preservation of Tasmania’s Franklin River, that affect people’s ability to protest freely case is the most explicit guidance so far the apology to the Stolen Generations, also engage federal constitutional law from Australia’s highest court on the and the advancement of LGBTIQ rights through the implied freedom of political constitutional protection for protest. by groups like Sydney’s ‘1978ers’, who communication. In Victoria and the started the annual Mardi Gras parade. Australian Capital Territory, Australia’s Recent laws impacting on protest rights Attending a protest is a way for people to international human rights obligations and the new decision in Brown means the have their voices heard and participate in have been enshrined in domestic human time is ripe for a distilled set of principles public debate. rights legislation, expressly protecting to guide lawmakers, government, civil freedoms of expression and assembly. society and protesters on how to protect Protests can take many forms. They protest in Australia. may be planned or spontaneous. They In Tasmania, New South Wales and may be someone silently holding a Western Australia, governments have This report outlines ten principles guiding placard, a small group ‘sitting’ in or in recent times proposed or introduced how protest should and can be protected a march of thousands. Protests may laws directed to curbing protest rights, and regulated. These principles are rooted capture the public’s attention through known as ‘anti-protest laws’. Common in Australia’s Constitution, international being remarkable, or they may be simple elements of the laws are vague and ill- law, common law, and general and modest in scale. Because they defined offences, excessive police powers, democratic principles. They also draw on seek to capture attention and demand disproportionately harsh penalties, and international and domestic best practice. change, they may be uncomfortable and the prioritisation of forestry and mining They provide a blueprint for a democracy inconvenient. In some cases, protests operations over the rights of individuals in which the freedoms of expression and can create risks for the safety of the to access public land and protest. assembly are respected and protected. public or the protesters themselves. Independent human rights experts have been troubled by this trend, with a recent Governments must take positive steps report by the United Nations Special to promote protest rights and must Rapporteur on the situation of human respond to particular protests in a way rights defenders describing alarm at “the that accommodates the right to engage trend of introducing constraints by state in peaceful protest, and that strikes a and territory governments on the exercise proportionate balance with public order of this fundamental freedom.”1 Australia and safety, and the rights of others. is not alone – internationally there is a worrying trend of introducing legislation to restrict protest, including in the United States where at least eighteen states have seen such laws introduced or proposed.2 2 SAY IT LOUD: PROTECTING PROTEST IN AUSTRALIA Principles This report sets out ten principles to guide the protection of protest. Ten principles to protect protest in Australia Protest activities are protected by Lawmakers and governments 1 the Australian Constitution and 6 (including police) should take international law. positive steps to promote freedoms of expression and assembly. Any regulation of protest must be Notification procedures should 2 limited to what is necessary and 7 facilitate, not restrict, peaceful proportionate. protest. As far as possible, protesters should Lawmakers and governments 3 be able to choose how they protest. 8 should not prohibit protest based on its message, except in narrow circumstances where that message causes harm to other people. Laws affecting protest should be Other human rights of protesters 4 drafted as clearly and carefully as 9 must be respected, including privacy, possible. equality and freedom from inhuman or degrading treatment. Laws regulating protest should not The use of force by authorities 5 rely on excessive police discretion, 10 should only occur in exceptional and where discretion is necessary it circumstances and as a last resort. should be properly guided by the law. SAY IT LOUD: PROTECTING PROTEST IN AUSTRALIA 3 Principle 1 Protest activities are protected by the Australian Constitution and international law The right to protest peacefully is one For this reason, a law that prevents or Other state laws recognise the freedom of the defining features of a liberal deters protest will limit the freedom and to protest by providing exemptions from democracy. Encompassed in the act must be justified and proportionate to a certain offences for those participating of protest are several fundamental legitimate objective. In Brown v Tasmania, in public assemblies, such as New South democratic rights: freedom of expression, Tasmania’s ‘anti-protest’ laws were ruled Wales’ Summary Offences Act.9 freedom of assembly, and freedom of to be unconstitutional and invalid in their association. Peaceful protest is part of the application to forestry land. free flow of information and ideas, which “Assemblies are an equally legitimate can be picked up by the public and the Protest also receives protection under use of public space as commercial press, and considered by government. international law. The International activity or the movement of vehicles It allows civil society to come together Covenant on Civil and Political Rights (ICCPR), and pedestrian traffic. Any use of and broaden political impact, particularly to which Australia is a party, provides public space requires some measure to voice the concerns of minority or less for the rights to freedom of expression of coordination to protect different powerful individuals and groups. The (article 19), peaceful assembly (article 21) interests, but there are many legitimate exercise of these rights by the public also and freedom of association (article 22). ways in which individuals may use operates as a critical mechanism to hold Therefore, Australia has obligations under public spaces. A certain level of the government, as well as other powerful international law to respect, protect disruption to ordinary life caused by groups or interests, to account. and promote the rights of people within Australia’s
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