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.
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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 jurisdiction to organise and assemblies, including disruption of The High Court has ruled that Australia’s participate in protests. traffic, annoyance and even harm to Constitution protects the ‘freedom of commercial activities, must be tolerated political communication’, because the Australia’s common law tradition also if the right is not to be deprived of Constitution is premised on a democratic protects protest. The common law substance.” system of government. This means laws recognises freedoms of expression and 6 and government decisions that overly assembly. Where legislation impacts United Nations Special Rapporteur on the upon freedoms of expression and restrict political communication are rights to freedom of peaceful assembly and constitutionally invalid. assembly, the “principle of legality” of association, Maina Kiai and United Nations operates under the Australian common Special Rapporteur on extrajudicial, summary Political communication includes both law, which means that laws affecting or arbitrary executions, Christof Heyns.10 verbal and non-verbal communication, protest should be interpreted narrowly, such as demonstrations and other protest in favour of protest rights, unless there activity.4 In its 2017 decision Brown is a clear, unambiguous intention from v Tasmania, the High Court squarely Parliament to restrict rights.7 considered the freedom’s application to laws restricting protest. The Court said:5 In some Australian states, protest is also expressly protected by legislation. “The implied freedom protects the free For example, section 5 of Queensland’s expression of political opinion, including Peaceful Assembly Act 1992 provides peaceful protest, which is indispensable to that “a person has the right to assemble the exercise of political sovereignty by the peacefully with others in a public place”. people of the Commonwealth. It operates as In Victoria and the Australian Capital a limit on the exercise of legislative power Territory, human rights legislation to impede that freedom of expression.” expressly protects and promotes the rights to assembly and expression.8
4 Say it loud: Protecting Protest in Australia Principle 2
Any regulation of protest must be limited to what is necessary and proportionate
The ability to protest is important, and its purpose and whether there are fashion, applied in the particular case or however, rights to freedom of expression, any less restrictive means reasonably with a specific justification.”12 peaceful assembly and freedom of available to achieve the purpose that association are not absolute rights. the limitation seeks to achieve. Several kinds of purpose are well These rights may be subject to accepted as legitimate objectives which limitations, where these limitations are —— In Queensland, the Peaceful Assembly may justify limitations on rights of necessary and proportionate to achieve Act 1992 provides that the right to expression, association and assembly. a legitimate aim. assemble peacefully is subject only to such restrictions as are necessary and Proportionality For example: reasonable in a democratic society in the interests of public safety; or public The legal test of proportionality is —— The freedom of political order; or the protection of the rights used to analyse whether a restriction communication allows for measures and freedoms of other persons.11 on protest activity is permissible. that limit political communication if they are “reasonably appropriate and Under constitutional law and Proportionality generally requires adapted” to a legitimate aim. international law, proportionality is the three questions to be asked about key to working out if a restriction on a the reason for, evidence in support —— Under the ICCPR, article 19(3) right is justified. of, and design of, any restriction on a provides that freedom of expression fundamental right: can be subject to restrictions which Laws and regulations which affect protest are provided by law and that are will not always directly target or regulate 1. Does the restriction have a necessary to respect of the rights protest activity (in contrast to specific legitimate objective? or reputation of others, or for the ‘anti-protest’ laws). Rather, a range of protection of national security or of general laws affect the ability of people 2. Is there a rational connection public order, or of public health or to engage in protest activities, such between this purpose and the morals. Article 21 provides that the as road and traffic laws, planning and restriction (that is, are the right of peaceful assembly can only environmental law, local government measures likely to be effective to be subject to restrictions imposed on regulations, and laws governing police achieve the stated purpose?) a similar basis. powers. Where a law limits a person’s 3. Is the restriction necessary and ability to enjoy their freedoms of proportionate: does it strike a —— The rights under the Victorian Charter expression or assembly, that limitation reasonable balance between the of Human Rights and Responsibilities must be justified and proportionate, purpose and the means adopted? Act 2006 and the Australian Capital whether or not the law is directly targeted Factors to consider here include Territory’s Human Rights Act 2004 at protest. may be restricted by law only by whether there are less restrictive such reasonable limits as can be The purpose of any law or government ways to achieve the same aim, or demonstrably justified in a free and action restricting protest should be clear effective safeguards in place to democratic society. Determining and precise. The United Nations Special prevent against unnecessary effects whether a limit is reasonable Rapporteur on the rights to freedom of on individuals. involves taking into account all peaceful assembly and of association relevant factors including the nature (UN Special Rapporteur) has stated that of the right, the importance of the arguments need to be specific; they purpose of the limitation, the nature cannot be made in the abstract “or by and extent of the limitation, the indicating general, unspecified risks, relationship between the limitation but must be made in an individualized
Say it loud: Protecting Protest in Australia 5 Principle 2 Any regulation of protest must be limited to what is necessary and proportionate
Public health and safety Protecting the rights and Democratic institutions and freedoms of others processes
Protecting the health and safety of International law specifies that freedom Laws protecting democratic institutions protesters and others is recognised as of expression can be limited when and processes may also lawfully limit a legitimate reason to restrict freedoms necessary to respect the rights of others, the freedom of political communication, of expression, association and assembly including their rights to privacy, dignity or individual human rights under under international law,13 and the and equality. In fact, nations are required international law, if appropriately constitutional freedom of political under international law to prohibit the targeted and proportionately designed. communication.14 advocacy of national, racial or religious For example, the High Court has ruled hatred.17 Australia’s High Court has that electoral laws which regulate It is well accepted under the law that also accepted that protecting other political donations may lawfully limit speech rights can be restricted to prevent people’s rights and freedoms can be a freedom of political communication for incitement to violence, even where a legitimate purpose justifying limits on the purpose of preventing corruption and person contends that the content of their the freedom of political communication.18 undue influence in the state government message is political. The High Court has For example, a number of judges and overcoming perceptions of corruption confirmed that keeping public places free recognised the interest of Australians and undue influence.20 from violence is a legitimate purpose for in being undisturbed by unsolicited, a law limiting the freedom of political seriously offensive material in their International law permits freedom communication. In Coleman v Power, an personal domain, and ruled that a law of expression to be restricted where offence of using “insulting words” to a criminalising the sending of offensive necessary to protect “public order”, which person in a public place was interpreted letters was valid as it justifiably restricted means “the sum of rules which ensure narrowly to only apply to words intended the freedom of political communication.19 the functioning of society or the set of to, or reasonably likely to, provoke In recent times, a number of Australian fundamental principles on which society 21 unlawful physical retaliation, and was states and territories have introduced is founded.” The restriction must be in ruled to be consistent with the freedom safe access zones for women accessing response to a pressing public or social 15 only on that basis. reproductive health services. These laws need. The concept of public order can limit protest rights outside abortion be understood to include the systems of Broader public safety concerns may also clinics in order to protect and promote democracy. be legitimate. For example, in a case women’s access to health, privacy and concerning by-laws which restricted dignity (see the case study on page 17). preaching, canvassing, haranguing If the purpose of the law does not sit and handing out printed material in clearly in the well-recognised categories Adelaide’s Rundle Street Mall, the High listed above, lawmakers should consider Court ruled that preventing obstruction carefully whether the law is directed at of roads and securing their safe use a substantial and pressing concern, that was a legitimate basis on which to limit would justify restricting a fundamental freedom of political communication.16 democratic freedom, and not simply the pursuit of convenience or efficiency.23
The duck-shooting case
had a hunting licence. Levy complained communication as banning political to the High Court that the regulations speech-making on that topic.24 This was prevented him from protesting against a milestone for the protection of protest laws which allowed hunters to shoot under the Constitution. ducks, and from being publicly seen protesting and helping the birds, and was However, the court also decided that a therefore unconstitutional for infringing law prohibiting particular non-verbal the freedom of political communication. conduct for a legitimate purpose Levy was unsuccessful: the High Court other than suppressing its political decided that, while the regulation did message is permitted, if the prohibition restrict the freedom, it was compatible is appropriate and adapted (that is, 25 In 1994, Laurie Levy, an anti-duck- with it. proportionate) to that purpose. In this shooting activist, was arrested and case, the court accepted that there was charged after entering an area where This case was the first time that the a real risk to human safety arising from ducks were being hunted in and around High Court recognised that non-verbal protesters confronting duck shooters, Lake Buloke in Donald, Victoria. The conduct is protected by the freedom of particularly given the probability that 26 law under which Levy was charged, the political communication. Chief Justice conflict would arise. Therefore, the Wildlife (Game) (Hunting Season) Regulations Brennan stated that denying a person court concluded that the regulation was 1994 (Vic), prohibited entry to hunting the opportunity to make a protest appropriate and adapted to the legitimate areas at certain times, unless a person through non-verbal conduct would be purpose of ensuring the greater safety of as offensive to the freedom of political persons in hunting areas.27
6 Say it loud: Protecting Protest in Australia Principle 3
As far as possible, protesters should be able to choose how they protest
Meaningful exercise of the rights to expressive value of the protest.31 The to intervene and enforce laws. Where freedom of expression, peaceful assembly conduct of Russian authorities in relation protesters contravene general laws or and freedom of association encompass to multiple protests on a range of issues, regulations in the course of peaceful each person’s choice over how to enjoy considered in the European Court of protest activities, they should not be those rights.28 There is no one way to hold Human Rights case of Lashmankin, subject to any aggravated penalties a protest. For example, sit-ins, marches provides a stark example of such simply because the acts were conducted and silent vigils are different suppression. For example, gay pride in the context of a protest.34 choices available to those seeking to activists were told to assemble at the communicate a public message. outskirts of the city and not the city centre, whereas pro-government In particular, protests should generally demonstrations were allowed to proceed be allowed to take place within “sight in the time, place and manner of their 29 and sound” of their target. This target choosing. In these circumstances, the may be the audience for the political court ruled that the Russian authorities communication (for example, to influence had violated protesters’ rights by using politicians and/or government) or the restrictions to arbitrarily and subject matter of the communication discriminatorily intervene in the (for example, “on-site” protests where protests.32 protesters seek to be seen or filmed at an important location to draw attention to Where applied, any time, place or manner the subject of their protest). restrictions must be in good faith, in accordance with law, and conform to the However, in some circumstances, the principle of necessary and proportionate government or law enforcement may limitation (see Principle 2 above). Where place prior restrictions on how a protest there are restrictions on time or place can be held by prohibiting activities of of a protest, suitable alternatives should a certain manner, timing or location. be available to protesters, such that As noted above, a number of laws the message that the protest seeks to regulate general conduct for other public convey is still capable of being effectively purposes, but may impact on a chosen communicated to those to whom it is method of protest. For example, laws of directed.33 trespass on private land, offences relating to obstruction of traffic, laws on obscenity It is important to note that protest often and late night noise regulations are relies on being out of the ordinary, that restrictions that would impede the way is, disruptive to routine, to capture public a person may choose to protest.30 Other attention and prompt consideration time, place or manner restrictions may of the protesters’ message. As part of apply specifically to protest activity, such a democratic society, there needs to as police determining an alternate route be tolerance for some inconvenience, of a protest march. including the contravention of general regulations that may ordinarily apply Time, place or manner restrictions should to public conduct or gatherings. Police not be applied in a way that suppresses or should carefully consider the rights undermines the political message or of protesters when deciding whether
Say it loud: Protecting Protest in Australia 7 Principle 3 As far as possible, protesters should be able to choose how they protest
Apparel and masks Importance of location to FLASHPOINT/ environmental protests New South Wales introduces Certain apparel and masks can have On-site protest is a valuable tool in aggravated offences affecting expressive value for those participating advocacy for environmental legislative environmental protests in a protest. A popular example is the and policy reform by raising public Guy Fawkes mask, which is particularly awareness of an environmental issue. prevalent among youth and student It has a special importance in Australian protest movements worldwide – described history. Most notably, the protests against by the UN Special Rapporteur as the damming of the Franklin River in 1983 potentially “as much a political statement led to the enactment of the World Heritage – a way of identifying with one’s Properties Conservation Act 1983 (Cth) fellow demonstrators and a worldwide which prevented construction of the dam. movement – as it is an attempt to conceal identity.”35 Police and lawmakers should The potency of on-site protest was generally not interfere with this mode recognised by the High Court in Brown of expression. The exceptions are when v Tasmania. Justice Gageler noted that In New South Wales, the Inclosed the mask is worn for the purpose of the case confirmed the “communicative Lands, Crimes and Law Enforcement preventing the identification of a person power of on-site protests” through the Legislation Amendment (Interference) whose conduct creates probable cause “the generation of images capable of Act 2016 introduced a new offence for arrest, and when the mask creates a attracting the attention of the public and of “aggravated unlawful entry on clear and present danger of imminent of politicians to the particular area of inclosed lands”, where a person, while unlawful conduct.36 Any limitation on the environment which is claimed to be 41 on inclosed lands, interferes with any anonymity should be justified on the threatened and sought to be protected.” “business or undertaking” on those basis of individualised suspicion of a Similarly, Justice Nettle wrote that in the lands.43 Inclosed lands include any serious criminal offence.37 The UN Special plaintiff Bob Brown’s experience, “on- public land inclosed or surrounded Rapporteur has expressed concern at site protests against forest operations by a fence, wall, building or some laws banning peaceful protesters from and the broadcasting of images of parts natural feature.44 This offence carries wearing masks, and has stated that there of the forest environment at risk of a steep penalty, up to $5,500. The may be legitimate reasons to hide one’s destruction are the primary means of 2016 Act also expanded an existing face, including fear of retribution.38 bringing such issues to the attention of the public and parliamentarians. Media offence of “interfering with a mine” Accordingly, new Victorian laws giving coverage, including social media coverage, which carries a maximum penalty of police greater powers in respect of of on-site protests enables images of the 7 years imprisonment and expanded masked protesters, and increasing threatened environment to be broadcast associated police discretion in respect penalties for certain offences where the and disseminated widely, and the public of search and ‘move on’ powers. defendant wore a mask, are concerning.39 is more likely to take an interest in an This legislation was introduced with They are drafted in terms that exceed environmental issue when it can see the the stated intention of deterring what is necessary to prevent violence and environment sought to be protected.”42 protesters from engaging in activities criminal conduct, and deter the wearing claimed to threaten safety and disrupt of masks for expressive purposes.40 Accordingly, restrictions that prevent the public from accessing environmental business activities, specifically mining locations, particularly public land, for the and coal seam gas.45 It was introduced purpose of peaceful protest should be despite concern from environmental avoided unless it is strictly necessary for organisations and others (including maintenance of public safety or another the Human Rights Law Centre46) compelling purpose and such limitation that it would unreasonably restrict is necessary and proportionate as per peaceful on-site protests which Principle 2. cause any disruption to mining or forestry operations, such as picketing in front of gates to mining sites. These concerns remain, however the constitutional validity of the laws has not yet been tested.47
8 Say it loud: Protecting Protest in Australia Principle 4
Laws affecting protest should be drafted as clearly and carefully as possible
Laws that affect protest, whether or not The risks posed by unclear laws are they directly target protest activity, must compounded when their penalties are be clear and easily understood by those disproportionate. The consequences that they affect, including protesters, of a misapplied law or a law that can police officers, and the general public. be applied arbitrarily are greater when In recent years, unclear laws have been protesters face lengthy prison sentences introduced in Australian jurisdictions or hefty fines. People are also more likely criminalising or otherwise penalising to be deterred from engaging in protest protest, for example prohibiting conduct activities when they face these kinds that “causes annoyance” to certain of consequences under a law that may people,48 “hinders the working of penalise peaceful, legitimate conduct.54 equipment”,49 or stating that a person In principle, peaceful forms of expression must not “disrupt” or “interfere with the should not be made subject to the threat reasonable enjoyment of” Brisbane’s 2014 of imprisonment.55 G20 meeting.50 In one proposed law which was eventually withdrawn, it would have Where a law creates this type of been an element of an offence to possess deterrent effect on protest, it restricts a “thing” for the purpose of “preventing the constitutional freedom of political 56 lawful activity”.51 communication. Broad and unclear measures will often not be closely Legal certainty is a key aspect of connected to the purpose the law is the rule of law. The law should be seeking to achieve. It is also likely that accessible to lay people and its effects they will not be the least restrictive way foreseeable.52 Vagueness and ambiguity to achieve the end. This poses a risk of make it more likely that a law will be unconstitutionality – broad and unclear applied inconsistently, misapplied, or laws are likely to fail the proportionality misunderstood in practice. In the protest test because they will be ineffective or context, the risk of an unclear law is that inappropriate in pursuing their goal. protest will be prevented or ended when it should not be.53 Laws that are not clear Where a law may affect people’s ability and comprehensible may be applied more to assemble and protest, legislative broadly than they are intended to, or in a drafters must consider how people will manner that is unreasonable. They may understand the laws they write, and how also result in people being deterred from easy a particular rule, requirement or engaging in protest for fear of falling foul prohibition will be to apply in practice. of a law when they are uncertain whether It should be clear to all what conduct is or not it will apply to them. and is not permitted.
Say it loud: Protecting Protest in Australia 9 Principle 4 Laws affecting protest should be drafted as clearly and carefully as possible
Sabotage: new offences in the Commonwealth Criminal Code
by persons who are ordinarily entitled to access it. The definition of “national security” is similarly broad, extending not just to defence and territorial integrity, but also to political, military and economic relations with other countries.
The combined breadth of these definitions means the offences will capture peaceful protest far beyond what is necessary to protect national security. It is not difficult to imagine a protest – such as a blockade, a lock-on, or even a well-attended demonstration – that temporarily blocks access to a Commonwealth building, where the In June 2018, the Commonwealth where they intend that the conduct protesters intend to have some impact Parliament passed the National Security will prejudice Australia’s national security. on an international issue and could Legislation Amendment (Espionage and “Public infrastructure” is defined broadly, prejudice our political or economic Foreign Interference) Act 2018, which including for example infrastructure relations with a particular country or inserted a number of new sabotage and premises that relate to providing countries. One example given by civil offences into the Criminal Code, replacing the public with utilities or services of society is a group of people blockading the sabotage offences previously in the any kind, as well as Commonwealth a public highway to prevent the export Crimes Act. government buildings and infrastructure. of uranium sold to the government of This means that the laws will apply to another country, with a view to ending There is a real risk that the broad a significant number of places within uranium exports entirely. The breadth language of these offences criminalises Australia such as roads, retail shops, of these key terms means that there are peaceful protest. For example, it is an and train stations. Conduct will result serious risks that it violates the freedom offence punishable by 20 years in prison in “damage to public infrastructure” of political communication. if a person engages in conduct that if it limits access to it or any part of it results in damage to public infrastructure,
The Bob Brown case: an unclear and broad law is ruled to be unconstitutional
In a 2017 landmark case for protest rights Clarity in Australia, two protesters, Bob Brown The definition of business premises in the and Jessica Hoyt, challenged Tasmanian laws included “forestry land”, which was 63 “anti-protest” laws in the High Court, an area of land on which forest operations arguing that they breached the freedom were being carried out. In Tasmania, that 64 of political communication. The laws could cover a potentially very large area of empowered police to “move on” protesters land, and it would not always be obvious if the police officer “reasonably believe[d]” (through the use of signs, barricades or that the person had or would contravene similar) where the relevant area would provisions which prohibited protesters begin or end. A “business access area” was from engaging in certain conduct on a as much of the area of land outside the business premises or business access business premises that was reasonably area on forestry land. The court ruled that necessary to enable access to the business the relevant sections of the laws were premises. Because of the uncertainty unconstitutional. around what a “business premises” was, The Human Rights Law Centre’s Emily Howie with it was also difficult to determine what a Bob Brown and Jessica Hoyt “business access area” might be.
10 Say it loud: Protecting Protest in Australia Principle 5
Laws regulating protest should not rely on excessive police discretion, and where discretion is necessary it should be properly guided by the law
Where laws governing protest activities more flexibly and reasonably based on minor infringements and disorderly or public gatherings afford police officers individual facts and circumstances. behaviour should be tolerated;60 broad powers to arrest, search, issue The key is for any discretion to be ‘move on’ orders, confiscate property appropriately constrained, and for police —— ensure any discretionary action taken and disperse groups, this can have to have proper guidance on appropriate is necessary and proportionate in the profound implications for the right to decision-making. This may be through circumstances; protest. When these powers are exercised a combination of regulations, internal —— ensure that they are not arbitrary, (or not exercised) on a discretionary procedures, protocols and training. discriminatory or unlawful in the basis, concerns arise in relation to the exercise of discretion;61 appropriateness of conduct by the In exercising discretion, police should be guided by a human rights approach to police. Where police exercise discretion —— where possible, consult legal advisers policing and should: inappropriately or inconsistently, it can prior to making any decision that escalate tension and increase risks of —— recognise the rights of protesters, would impair rights, in particular, conflict with protesters.57 including the State’s duty to facilitate where decisions made would be out of line with other regulations For these reasons, laws should not peaceful protest; or protocol.62 confer more discretion than reasonably —— opt for less rights-restrictive measures necessary.58 where possible (including refraining The remaining principles in this report 59 provide further specific guidance on However, it is not possible nor desirable from use of force); the best practice policing of public to eliminate police discretion from —— only decide to terminate protest in assemblies. laws that regulate protest. Discretion rare circumstances. During protests, allows police to apply regulations
It was primarily because of vagueness freedom of political communication was made even worse by the harshness about where the law applied that the law considered to be too high. of the criminal consequences which was found to be unconstitutional in its flowed automatically from an exercise application to forestry land. The court Discretion of the police discretion, including that decided that it would often be difficult for Another reason that the law was ruled protesters would be excluded from police and protesters to determine what unconstitutional was the breadth relevant areas for the next four days the boundaries of business premises and of powers given to police. The court and would commit a criminal offence access areas were, and whether protesters identified the problem that the trigger for merely by being present on the land in were on them. The judges ruled that a protester’s removal from an area was that extended period of time. Further, confusion around the geographical scope not a violation of particular prohibitions, it would not be practically possible to of the law would be likely to lead to errors but rather the officer’s reasonable belief seek judicial review of the police in its application. Lawful protests would that the protester had committed or officer’s direction before the protest be prevented or terminated, and other was committing a contravention. Under was brought to an end. protesters would be deterred. Because this discretion, the police officer was the law would deter protests of all kinds authorised to remove someone even (including lawful and peaceful protests if their belief, though reasonable, was that were not disruptive), the cost to the wrong. This problem with the law was
Say it loud: Protecting Protest in Australia 11 Principle 6
Lawmakers and governments (including police) should take positive steps to promote freedoms of expression and assembly
Under international law, States owe to The facilitation of protest (even where it Clear and accessible information should all people within their jurisdiction duties causes certain disruption) is compatible be readily available to protesters, to protect and promote freedoms of with the function of law enforcement whether or not they notify authorities expression, association and assembly. to maintain public safety and public in advance. For example, the National This means that governments have a order, particularly if there are good Capital Authority, the Commonwealth positive duty to facilitate peaceful protest, channels of communication and body responsible for planning and for example, by protecting individuals trust between protesters and police.67 management of national land in from being prevented from exercising Especially in the case of protests which the Australian Capital Territory, has their right to protest by other groups or are planned in advance, the “negotiated published guidelines and has a telephone private companies. management” approach, which seeks service for advice about holding protests agreement with protesters rather than within the areas around parliament and States must also take active steps to compulsion,68 has helped to maintain foreign embassies.72 prevent police or other public officials peace in protests that otherwise raised from violating these rights. This includes risks of clashes with police (see further Counter protests having effective laws and policies in on this in the section on special events place, as well as the necessary education at page 13). It is critical that police are Facilitation of protest becomes more and training, that span across the genuine in negotiations with protesters.69 challenging where protests by groups planning stage of protest activity, the This requires police to engage with with opposing views (counter protests) protest itself and afterwards. organisers of protests with the aim of are planned or anticipated at the building agreement on base logistics of same time. Police should endeavour As best practice, lawmakers should the protest, parameters for acceptable to facilitate the rights of each side give effect to these duties through conduct and a positive relationship that in a safe manner and allow the two express legal recognition of the right to promotes communication. This approach groups to assemble within “sight peaceful protest, subject to proportionate also encourages a level of self-regulation; and sound” of each other whilst also limitation in accordance with protesters know in advance where the maintaining physical separation of international human rights law.65 line will be drawn in exercise of police the groups.73 Given the increased risk of escalation of violence and Before the protest… powers and discretions, and the likely consequences if that line is crossed. clashes between the different sides, On the ground, the logistics of an Protesters should be encouraged to this may require deploying additional assembly may be the most important work with police and the authorities personnel in order to maintain the thing for governments and police to on a voluntary basis; organisers of safety of participants and bystanders. work with protest organisers on to protests should not be compelled to Police should have adequate training properly facilitate protest, particularly negotiate or suffer retribution or adverse to address, and if required remove, large-scale protests. Can the activity consequences for refusing to negotiate.70 non-peaceful counter protesters occur in the time, place and manner attempting to disrupt a protest. chosen by organisers? How can the Notification procedures are one way in Participants of peaceful assemblies safety of protesters, other participants which protests can be facilitated and should not be subject to restrictions and bystanders be protected? Are traffic negotiation between protest organisers to their protest merely on the basis diversions required? Are there amenities and police can commence (see Principle of potential disorder arising from and services such as bathrooms, seats, 7 below). However, where a protest is hostility directed at them.74 and paramedics available? Will clean up spontaneous or otherwise not notified, 66 services be required after the event? government and law enforcement should still protect and facilitate that protest.71
12 Say it loud: Protecting Protest in Australia Principle 6 Lawmakers and governments (including police) should take positive steps to promote freedoms of expression and assembly
Special events
Special events, such as sporting events, in London and Toronto. In response, the meetings of global leaders or visits from Queensland Parliament passed specific major religious figures, are often also laws to regulate and restrict protest the site for protest activity, both large around the event. Legal commentators and and small. These events often attract a community groups, including the Human large number of attendees (for example, Rights Law Centre,83 expressed concern the Olympic Games, or the 2007 visit to over the excessive measures in the G20 Australia by the Pope), or involve a large Safety and Security Act 2013 (Qld), which cast of prominent world leaders and suspended the state law which expressly dignitaries in a single location. These recognises the right to protest,84 prohibited events are therefore seen as a valuable a wide range of items in regulated areas, opportunity for protesters to advance created vague new offences, and increased their objective by catching the media’s discretionary police powers of search attention, potentially internationally, and (including strip searches), seizure and communicating their message to attendees. arrest.85 These concerns were amplified given high police presence; the event It is commonplace for parliaments to itself involved the use of 6,400 police pass specific legislation to facilitate the from eight jurisdictions across Australia event and ensure security and public and New Zealand.86 Taken cumulatively, order by imposing restricted access zones these factors may have deterred potential During the protest… and increased police powers for the time participants from attending the protests.87 During the protest, police should seek to around the special event. Such regulation protect the safety of protesters. Protests introduced for and exercised around However the actual policing at the event often attract various people and different the special event must carefully balance was considered a success by independent interest groups. As such, police should the security concerns with the rights of commentators and observers in take special care in ensuring the safety protesters, particularly their ability to use facilitating peaceful protests relative of more vulnerable participants such as public space. to prior G20 summits.88 Academics Tim children, disabled and elderly.75 Legrand and Simon Bronitt identify two The principles outlined in this report key reasons for this: first, a human rights still apply in special events. It is vital This is best achieved through continuous framework was central to training and that protest is not unnecessarily or and clear lines of communication from planning of policing strategies, including disproportionately restricted: protest the police to protest organisers. It is also free speech, safety from violence and must still be able to occur before, important that, if required, police can the right to peacefully protest. The core during and after the special event in communicate with protesters directly. message of the policing manuals, training A good example is communicating if a other parts of the city or the state or 79 and philosophy was that “irrespective 76 territory. Restricting protesters’ access protest route is diverted. Mass texting, of the noise and discomfort caused by to limited, clearly marked security areas, social media and electronic signage may protest messages…police are bound to and additional police powers with the be used to ensure protesters are informed uphold the human rights of everyone”.89 view of maintaining security, may be and allowed to proceed with the protest Second, the police engaged in dialogue in safe means. acceptable only if reasonably appropriate with a large number of diverse issue-based and adapted in accordance with Principle community groups in the months leading After the protest… 2.80 Additionally, permitted locations for up to the event to try to build mutual trust Facilitation of protest rights extends to protest must be reasonable and the laws and promote understanding of protesters’ after the protest. It is important that any must not endure beyond the period of rights and responsibilities and the role protest organisers are notified of arrests the special event. Laws and regulations of police, including police negotiators.90 made and summons issued. Moreover, should not prohibit conduct that causes This strategy was developed based on there should be a procedure by which mere disturbance or “annoyance” to 81 lessons learned from failures of policing at complaints about police conduct can be special event participants. the previous London and Toronto events. made without serious expense or time Conduct of police and other law Some groups however, did not feel that typical of court procedures.77 enforcement bodies are central to negotiations were in good faith and some Additionally, debriefing after protests maintaining this balance in the way protest organisers felt compelled to agree 91 can present a valuable opportunity for that protest is facilitated and monitored. with terms set by the police. fostering consistency in practice across The “negotiated management” approach Police exercised restraint at the event. the police force. In particular, engaging discussed in Principle 6 is a way of There are multiple reported incidents the organisers of the protest in the helping to strike the right balance where police did not enforce restrictions debriefing exercise allows for the police between security and protesters’ rights. under the Act, favouring de-escalation to reflect on lessons learnt from different The 2014 G20 hosted in Brisbane provides over strict enforcement. Where police views and bridge any mismatch in a useful example of positive and negative did exercise powers, the Queensland Law perceptions.78 protest responses.82 Prior to the event, Society reported that the majority of police there were concerns about risks of powers exercised appeared to be under violence at protests at the event given normal police legislation and not under the experience at previous G20 summits the excessive special event legislation.92
Say it loud: Protecting Protest in Australia 13 Principle 7
Notification procedures should facilitate, not restrict, peaceful protest
Many jurisdictions have adopted state-wide legislative notification Crucially, laws must accommodate notification procedures for assemblies. procedure or permit system. spontaneous assemblies for which These procedures are intended to allow notification is not practicable. ‘Snap authorities to facilitate the exercise of the While the modern permission system rallies’ are a legitimate form of protest right to freedom of peaceful assembly, appears to offer protection to protesters, activity, and the basis for the protest and to take measures to protect public activists have expressed concerns may require prompt action by those safety and order and the rights and about it. A 1997 federal parliamentary wishing to engage public attention or freedoms of others.93 committee inquiring into the right to demonstrate their views. Such assemblies protest found that there was “strong should be exempted from any notification Notification procedures are not community resistance to the proposition requirement, and notification procedures preconditions to enjoying the freedom that people should apply for a permit in should not form an impediment to such to engage in protest. Accordingly, it is order to exercise a democratic right,” and assemblies.102 important that notification procedures that many would choose not to seek a support protest rather than constrain permit if they could.98 This is a reminder it. Notification should generally be that even when adopting a modern voluntary, and failure to comply with a permission system, it is important notification procedure should not render that the emphasis is on the facilitating a protest unlawful. cooperation rather than granting or withholding permission.99 Australian jurisdictions adopt different approaches to notification procedures.94 Best practice in relation to notification Some jurisdictions use a “traditional procedures involves several features, permit system”. For example, in Tasmania identified by the UN Special Rapporteur:100 a permit is necessary: it is an offence to organise or conduct a demonstration or 1. The notice period specified in any law procession to take place wholly or partly should be as short as possible, while on a public street without a permit, issued allowing authorities time to plan – 101 by a senior police officer.95 A traditional ideally no greater than 48 hours. permit system also applies in most parts 2. Notification procedures should not of the Northern Territory.96 be administered in such a way that In New South Wales, state-wide legislation they become, in reality, a request creates a “modern permission system”, for authorisation (as opposed to where permission for a demonstration notification). offers additional protection in the form of 3. They should also not be administered a limited immunity from certain criminal in a way that discriminates against charges and civil liability, and where particular views (see Principle 8 below). refusal of permission either requires a court order or is subject to judicial 4. Paperwork or forms involved in 97 review. In jurisdictions using this system, notification procedures should be a protest can still go ahead without a accessible and understandable to all, permit, but protesters and organisers will including people with a disability and not enjoy the added protections that a people for whom English is a second permit brings. In Victoria, there is no language.
14 Say it loud: Protecting Protest in Australia Principle 7 Notification procedures should facilitate, not restrict, peaceful protest.
CLOSE LOOK/ Notifications for public assemblies in New South Wales
New South Wales is one jurisdiction with advantage of the protections must engage In other cases, the courts have declined a “modern permission system” in place. in legal proceedings if they give less than applications for authorisation on the basis seven days’ notice – far longer than the of speculation that the particular cause Part 4 of the Summary Offences Act 1988 maximum 48 hour period recommended may attract those who do not share the allows protest organisers to inform the by UN experts. peaceful intentions of the applicant.111 It Police Commissioner of their assembly by is unfair to prevent people from engaging submitting a “Notice of Intention to Hold Because the legislation does not set out in peaceful assembly on the basis that a Public Assembly”. If organisers give criteria to guide authorisation, the New others, with whom they are not working seven days’ notice and the Commissioner South Wales Supreme Court has had to or associated, may engage in violent does not oppose the assembly it becomes develop guidance. The court has said activity.112 Internationally, this approach an “authorised public assembly”. If that proper exercise of the discretion has been found to breach rights.113 an authorised assembly proceeds in requires the court to balance freedoms line with the details included on the of expression and assembly against Finally, while requiring protesters to give notice, participants are protected from the competing rights of other citizens at least 7 days’ notice to avoid a court criminal liability for offences relating to including avoiding injury to persons or hearing, the Act allows the Commissioner participating in an unlawful assembly or property, or the right to pursue their to apply for a prohibition order at the last obstruction of people and vehicles.103 own affairs unimpeded by others’ minute, posing difficulties for protesters exercise of their rights, together with who have given advance notice, made If the Commissioner does not approve the interest of the community in plans and face challenges preparing for a of the assembly, and has invited the maintaining public order.106 last minute court hearing. In 2017, a group organiser to confer on the assembly, the called Keep Sydney Open served notice on Commissioner may approach the court However, court decisions on applications 9 January of an assembly that was to take 104 for an order “prohibiting” the assembly. have been occasionally unpredictable. place on 21 January. At 4 pm, only two days Further, if organisers give less than seven For example, it has been decided that a before the proposed assembly the Police days’ notice, they must ask the court for prohibition order will ordinarily require Commissioner sought a prohibition order. 105 “authorisation”. a real prospect of a breach of the peace On 20 January, the Supreme Court made a 107 to be established. However, in relation prohibition order.114 The scheme would be The language of “prohibition” and to an application made in 2017 the judge improved by requiring the Commissioner “authorisation” adopted in the scheme concluded that the logistical challenges to make an earlier application for a is unhelpful – there is no legal barrier posed by the expected large crowd were prohibition order.115 preventing a protest or demonstration “too large” and “too unknown” to deny that is not authorised under the police the powers they may need, even legislation, it is only that participants assuming that all participants would be will not enjoy the extra legal protection well behaved, sober and conscious of the that the scheme provides. The scheme rights of others.108 In some judgments is really a notification scheme, not an making a prohibition order, the fact that authorisation scheme. an assembly is planned for a time of heavy traffic has been emphasised,109 where Some aspects of the scheme could be elsewhere an assembly at peak time in an improved upon to better realise best area of significant commuter traffic area practice. Organisers wishing to take did not lead to a prohibition order.110
Say it loud: Protecting Protest in Australia 15 Principle 8
Lawmakers and governments should not prohibit protest based on its message, except in narrow circumstances where that message causes harm to other people
In general, laws restricting protest should and participation in organisations and more than 10 protests reported by media not aim to restrict specific ideas or to activities which promote and incite racial where protesters in support of far-right discriminate based on the viewpoint discrimination.121 The key consideration is views have met with counter protest, taken by protesters.116 whether the protester is engaging in this often resulting in violence and arrests type of conduct. For example, a protester of protesters from both groups. (See also Consequently, laws which target the cannot chant statements which incite Principle 6 on facilitation of counter message of a protest either directly (also violence. However, it may be acceptable protest.) known as ‘content-based’ restrictions) for a protester to chant in support of or indirectly (for example, by regulating an organisation that represents such The difficulty for public authorities the conduct of the protest in a way that views.122 lies in deciding whether a planned disproportionately affects a particular event or assembly should be allowed viewpoint) should be approached with In recent times, the emergence and to proceed (with potential enforcement great caution.117 As part of a democratic growth of far-right organisations of any violations of the law) or should society, there should be tolerance espousing views of racial, ethnic be curtailed as a pre-emptive measure. for differing views.118 Protest can be and religious superiority has seen Imminence of violence or breach of hate particularly important to effectively an increased prevalence of public speech laws should be a guiding factor communicate the issues facing, or assemblies, rallies and protests by these when deciding on whether to seek to advance views held by, a minority or an groups. In such situations, expression, prevent a planned assembly or intervene individual in an otherwise majoritarian association and assembly rights must in one that is underway.125 political system.119 be balanced against the obligation on the State to protect the human rights of However, in certain circumstances, a others, including freedom from racial or law or regulation targeting a particular religious discrimination.123 message is permitted, in line with the general requirement that this limitation For example, Victoria has experienced an on protesters’ rights is necessary and increase of far-right and anti-immigration proportionate (set out in Principle 2 above). assemblies organised by groups such as Examples include hate speech, threatening the United Patriots Front. Such events or harassing conduct or measures raise serious risks of unlawful racist undertaken to protect public health. and religiously-motivated hate speech, threats of violence and intimidation of International law expressly requires minorities. In 2017 three members of the States to enact content-based restrictions United Patriots Front were found guilty relating to incitement of violence and by the Melbourne Magistrates’ Court on a hate speech in order to protect rights criminal charge under Victoria’s Racial and of all people to equality and non- Religious Tolerance Act 2011 for conducting discrimination. The ICCPR provides that and filming a mock-beheading outside States must prohibit any advocacy of Bendigo Council Offices, to register their national, racial or religious hatred that objection to the council’s decision to constitutes incitement to discrimination, approve a mosque in Bendigo.124 Where 120 hostility or violence. The International far-right protests are met with anti- Covenant on the Elimination of All Forms of racist counter protests, there is a risk Racial Discrimination requires States to of physical violence between opposing take action to combat racist hate speech protesters. Since 2016, there have been
16 Say it loud: Protecting Protest in Australia Principle 8 Lawmakers and governments should not prohibit protest based on its message, except in narrow circumstances where that message causes harm to other people
CLOSE LOOK/ Safe access to reproductive health clinics
One example of a measure that is and communicate directly with, patients women’s reproductive choices and ensure directed towards an important public seeking reproductive health services, access to medical care. policy goal, but that impacts protest including abortions. They use typical activities, is legislation that creates a ‘safe protest activities such as holding signs, In Australia, the High Court will soon hear access zone’ outside reproductive health chanting and leafleting but also engage a challenge to Victoria’s safe access zone clinics that provide abortions. in tactics such as displaying confronting laws on the grounds that a prohibition on and misleading images, handing out communications about abortion likely to 126 127 In recent years, Tasmania, Victoria, medically misleading information, cause distress and anxiety infringes the 128 139 the Australian Capital Territory, the physically obstructing patients, “kerbside freedom of political communication. 129 Northern Territory, and New South counselling” (where they talk to patients The Human Rights Law Centre supports 130 Wales have introduced safe access zone about abortion without consent) and the laws: our position is that the law laws which prohibit certain acts around filming, abuse and intimidation of limits political communication but is abortion clinics including besetting, patients and staff.134 On occasion conduct constitutional, because it is reasonably harassing, intimidating, interfering with, has included violence and even murder. appropriate and adapted to achieve threatening, hindering, obstructing or The targets are those seeking and a compelling legitimate end. We also impeding a person from accessing the providing abortion services. consider that the law is consistent with clinic, or communicating about abortion Australia’s human rights obligations in a way that could cause anxiety and These activities impact on patients’ under international law. The manner in distress. Recording and filming without privacy, health and dignity. Anti- which the laws protect the health of the consent in safe access zones is also abortionists confront women without women seeking medical services, and prohibited. This follows similar measures their consent about a very personal rights to privacy, dignity and equality, introduced in Canada131 and the US.132 decision, at the time when health services are consistent with the limits allowed to are being sought. The activities can cause freedom of expression and freedom of These laws have been directed at people significant distress, intimidation and assembly. who have, for decades, engaged in anti- anxiety. Women who want reproductive abortion activities directly outside abortion health services are not able to escape clinics. By limiting communications in the from being confronted; they are a captive zones, the laws limit the rights of these audience. The evidence indicates that individuals to express themselves and women experience significant distress gather specifically outside reproductive but are unlikely to change their views on health clinics. abortion.135 Access to safe abortions is central to preventing women from being However, the activity of anti-abortionists forced into unsafe options136 yet protests outside health clinics has particular and other activities, such as filming, features which justify targeted geographic immediately outside clinics deter and restrictions on it to pursue the accepted restrict access to healthcare. legitimate aims of public health and safety, and protecting the right of others Accordingly, while the laws restrict protest (in this case, patients’ rights to privacy, activity, they have been ruled to be a dignity and access to reproductive proportionate restriction on freedom of 133 healthcare). expression by both the British Columbia Supreme Court137 and the British Columbia By locating themselves outside of clinics, Court of Appeal,138 in order to protect anti-abortionists are able to identify,
Say it loud: Protecting Protest in Australia 17 Principle 9
Other human rights of protesters must be respected, including privacy, equality and freedom from inhuman or degrading treatment
Lawmakers, police and other authorities Different laws and practices can restrict for police to monitor the actions have a duty not only to protect the the range of rights that protesters should of protest groups during planned freedoms of assembly and expression, enjoy. Common issues in relation to events. This is to ensure public order but also to respect the other rights and protest include: is maintained, as well as the safety of freedoms enjoyed by participants in a all parties.” However, in the absence demonstration.140 —— Searches: Police are empowered to of any suspicion that a crime or search members of the public in violence was imminent, this level The rights to which people attending a certain circumstances. A search is an of surveillance is a disproportionate protest are entitled include the rights intrusive act which affects a person’s response to an exercise of political to privacy, to freedom of movement, right to privacy. This power should not rights. to liberty, to equality before the law, be used on people on their way to, or and to freedom from inhuman or at, a protest unless there is a clear and —— Crowd control: Demonstrations can degrading treatment. These rights are present danger of violence, and even attract large crowds and inspire protected at international law,141 under then, searches must be carried out in the heated expression of views, the Victorian Charter of Human Rights and a reasonable way.145 Laws should be including opposing views in the Responsibilities,142 the Australian Capital designed to build in an assessment same place. Police often respond Territory’s Human Rights Act,143 in various of the necessity and proportionality to these conditions with crowd statutes, and under the common law of interference with a person and control measures, which may affect and the principle of legality. These rights discretion should be limited.146 protesters’ rights to freedom of are not only important in themselves: movement and liberty. One example it should be remembered that if other —— Surveillance: Sometimes police is “kettling” or “containment”, where rights are not adequately protected in use surveillance and intelligence- police contain demonstrators by the protest context, the rights to engage gathering measures at and in the surrounding them for a length of in expression and assembly will also be lead-up to protests. Surveillance time, during which they are unable to undermined. People should not have techniques can interfere with the leave – sometimes for hours on end to risk having their fundamental rights right to privacy. It should only without access to food or bathrooms. interfered with simply because they be done when necessary and The UN Special Rapporteur opposes choose to express their views in a protest. proportionate. Indiscriminate, this practice.150 In Canada, the Toronto untargeted surveillance of protesters police have decided to abandon Conduct by authorities that interferes and protest organisers will not kettling.151 Courts and other decision- with rights and freedoms, like stopping be proportionate and should be makers have ruled kettling to be 147 and searching protesters, cannot be prohibited. Photographing or filming unlawful.152 Where police engage in used arbitrarily or in a discriminatory protests for intelligence-gathering this practice, they risk liability for manner. The mere participation in a purposes should not be routine, as it false imprisonment.153 protest does not justify the use of such can discourage people from exercising powers.144 Legislators should design the their rights.148 For example, it was —— Discrimination: Often, demonstrations laws conferring such powers on police recently reported that several New will advance minority rights or so that they are limited to circumstances South Wales Police cars followed unpopular causes. Police powers of necessity, and police guidelines and a bus tour for hours as city-based should not be used to discriminate rulebooks should make these principles supporters of an environmentalist against certain groups. There is clear. group met with mining-affected evidence that move-on orders have communities around the Hunter been used by certain police forces Valley in regional New South Wales.149 in a disproportionate way against Police stated that it was “appropriate Indigenous Australians,154 including
18 Say it loud: Protecting Protest in Australia Principle 9 Other human rights of protesters must be respected, including privacy, equality and freedom from inhuman or degrading treatment
at protests.155 In one year in Western
Australia, of the total move-on notices FLASHPOINT/
issued, 40% were issued to Aboriginal Plans for a national facial people.156 Such practices constitute recognition database an infringement of the rights to equal Facial recognition technology, enjoyment of rights, to expression and particularly real-time uses, risk to gather in public. transforming public spaces into what experts have called a In order to ensure that protesters’ “perpetual line-up”.158 The use of rights are protected, in these and facial recognition technology in the other situations, states, territories protest context could heighten the and the federal government should risks of participating in a protest enact meaningful privacy protection. – for example, a false positive on a Such robust protections should be demonstrator could lead to them implemented prior to the adoption of being asked for identification, moved any biometric technologies, including on, or even arrested by police. This risk facial recognition software, in the context In 2017, the Council of Australian is sharpened by concerns about the of assemblies.157 Police operational Governments concluded an inaccuracies of some facial recognition policies and guidelines should encourage Intergovernmental Agreement, under technologies, particularly in their policing strategies which do not unduly which the states and territories application to ethnic minorities.159 restrict rights. To ensure that police act agreed to contribute driver licence More broadly, the fact that they may appropriately, they should receive human images to a national database, be identified by police could deter rights training, and the police force which will also include passport and potential protesters from participating. should embed human rights expertise on visa photos, which may be used by It is concerning that early uses of the an ongoing basis. various government agencies for technology in the United Kingdom has facial recognition. The creation of included targeting persons protesting this database comprising images of outside an arms fair.160 London millions of innocent Australians poses Metropolitan Police have also used it the risk that law enforcement may be at large public gatherings, including able to identify participants in rallies the Notting Hill Carnival, a celebration and demonstrations, potentially in of London’s Caribbean communities.161 real time.
Say it loud: Protecting Protest in Australia 19 Principle 10
The use of force by authorities should only occur in exceptional circumstances and as a last resort
People participating in protests have a and testing, and according to clear where that is not possible that only the right to be safe and free from violence. guidelines.169 minimum amount of force necessary Police may only use force in protest should be used.173 Cooperative, rather situations when strictly necessary and Moves to militarise local police forces can than adversarial, policing practices then only to the extent required for the endanger the principle that the use of should be supported by training in “soft performance of their duty.162 force is a last resort, as well as frighten skills” like negotiation and mediation.174 and deter peaceful protesters. In 2006, the Force includes physical contact with New South Wales Police Force established protesters; arrest; dispersal and move- the Public Order and Riot Squad (PORS), in on orders; deployment of horses and which each officer is armed with $8,500 canines; the use of OC (pepper) spray and worth of gear, including pistols and stun crowd control devices like long-range guns, and receives military training.170 acoustic devices. This action was justified by the need to deal with national security threats and The dispersal of a protest is permitted riots. However, the PORS was deployed 163 only in rare cases, such as when the more broadly than that in its first decade, protest itself incites discrimination, including being deployed to local protests, 164 hostility or violence, and then only and it has used physical force to break up the minimum force necessary should those protests.171 The use of militarised 165 be used. Force should generally force risks the introduction of unnecessary not be used to disperse unlawful but tension and violence to the protest arena. non-violent protests. Mass arrests will Centralised police forces like the PORS can usually be unlawful as an indiscriminate also undermine attempts to develop local 166 and arbitrary use of police power. relationships between protest organisers and police forces. The use of weapons should be treated with caution by law enforcement. In order to ensure that use of force is One way of ensuring this, adopted by exceptional and proportionate, the UN Argentina, is to prohibit the carrying of Special Rapporteur has recommended firearms by any law enforcement official that nations ensure that law enforcement who may come into direct contact officials have the equipment, training with participants in an assembly, in and instructions necessary to police the exercise of their duties during the assemblies wherever possible without 167 operation. Law enforcement should recourse to any use of force; and that be particularly careful when purchasing tactics in the policing of assemblies or engaging crowd-control weapons like should emphasise de-escalation tactics water cannons, chemical irritants and based on communication, negotiation acoustic weapons, which can have long- and engagement.172 term detrimental health consequences168 and which can affect protesters and Specific law enforcement guidelines passers-by who are not involved in any outlining the appropriate use of force unlawful behaviour. These weapons are important. Police guidelines should should only be used as an absolute for example, as in Victoria, identify that last resort, following proper training the use of force is to be avoided and
20 Say it loud: Protecting Protest in Australia References
1 Michel Forst, “Report of the Special 23 March 1976) arts 19(3), 21, and 22(2) 28 Organization for Security and Co-operation Rapporteur on the situation of human (‘International Covenant on Civil and Political in Europe, Office for Democratic Institutions rights defenders on his mission to Rights’). and Human Rights (OSCE/ODIHR) & Venice Australia,” Human Rights Council, A/ 14 Levy v Victoria (1997) 189 CLR 31; O’Flaherty v Commission Panel of Experts (Venice HRC/37/51/Add.3, 28 February 2018, [43]. City of Sydney Council [2013] FCA 344 [62]. Commission), Guidelines on Freedom of 2 Christopher Ingraham, “Republican Peaceful Assembly (2nd edn, 2012),
Say it loud: Protecting Protest in Australia 21 References
36 OSCE/ODIHR and Venice Commission, 58 Joint Committee on Human Rights, 73 OSCE/ODIHR and Venice Commission, above n 28, 58. Demonstrating respect for rights? A human above n 28, [3.5], [33], [45], [101] and [123]. 37 ARTICLE 19, The Right to Protest: Principles on rights approach to policing protest, House of 74 Organization for Security and Co- Protection of Human Rights in Protests (2015) Lords Paper 47, House of Commons Paper operation in Europe, Office for Democratic 21 (Principle 9.3). 320, Session 2008-09 (2009), [71], [76]. Institutions and Human Rights, Monitoring 38 Maina Kiai, above n 35, 11. 59 Maina Kiai and Christof Heyns, above n 10, of Freedom of Peaceful Assembly in Selected [29]-[31]; OSCE Participating States (April 2015 – July 39 Crimes Legislation Amendment (Public Order) 60 Organization for Security and Co-operation 2016) (2016),
22 Say it loud: Protecting Protest in Australia References
92 Queensland Law Society, Crime and 113 Ibid. 133 International Covenant on Civil and Political Corruption Review of the G20 (Safety and 114 Commissioner of Police v Keep Sydney Open Rights, arts 3, 7, 17; International Covenant on Security) Act 2013, 27 April 2015,
Say it loud: Protecting Protest in Australia 23 References
151 Jayme Poisson, Jennifer Yang and Brendan Congress on the Prevention of Crime and Photography Kennedy, “Exclusive: Toronto police swear the Treatment of Offenders held in Havana Cover James Thomas / Australian off G20 kettling tactic”, The Star (online), (Cuba) from 27 August to 7 September 1990; Conservation Foundation June 22 2011,
24 Say it loud: Protecting Protest in Australia
HRLC.ORG.AU