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New laws try to kill protests. Here’s why they will fail.

Governments can now send non-violent protesters to gaol but face massive backlash. These laws have been tried for centuries – and for just as long, they’ve backfired.

Across most of Australia, people can be sent to prison for staging peaceful, non-violent protests. The fines and prison sentences in the current wave of anti-protest legislation penalise protesters to an extraordinary and novel extent.

So far, laws have been enacted in New South Wales, Queensland, South Australia, Tasmania and Victoria which target protesters who obstruct others.

Despite their severity – or rather because of it – they are vulnerable on two possible grounds. The first is legal: they may be unconstitutional. This was found by the High Court to be the case for a Tasmanian law, which was struck down.

The second vulnerability is essentially political. When people are sent to prison for protesting peacefully to promote a public good (such as protecting forests or reducing climate change) the public reaction in their favour can quickly become overwhelming.

LEGALITIES

The most recent, and most extreme, law is in South Australia. It prescribes maximum penalties of $50,000 or three months in gaol – not, the government claims, for protesting but for obstruction.

It’s a neat way around a long-standing right of political protest that’s protected under international and Australian law. Labor and Liberal governments have used the same loophole in the same way.

Two basic rights are involved here. One is the right to peaceably assemble and to have political communication. The other is to form associations to advance political aims.

Both rights are protected by a number of international treaties to which Australia is a signatory. Among these is the International Covenant on Civil and Political Rights, which stipulates:

Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests …

But …

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others …

The state governments promoting ani-protest legislation argue that this condition validates their laws. But the Australian Human Rights Commission interprets the International Covenant this way:

Any permitted measures restricting rights need to … be a reasonable, necessary and proportionate means for pursuit of a legitimate objective.

So is the banning of protests and the gaoling of protesters an appropriate response to a temporary obstruction of traffic? According to the Human Rights Law Centre’s David Meija-Canales (pictured), the clearest example of legal overreach is the new South Australian legislation.

“Ultimately, it would be up to the High Court to determine the proportionality of these things, but our argument is that because they impose so much on the right of peaceful assembly, they are not proportionate. They are not adapted in a reasonable way to allow protest and peaceful assembly to happen.

“The laws are very broad and vague all around the country.”

 Tasmania’s Liberal government has been in the forefront of the wave of anti-protest legislation in Australia. In 2014 they introduced a law that banned protesters from obstructing businesses. It was aimed at the state’s lively forestry protest movement. The law provided maximum fines of $100,000 for organisations and $10,000 for individuals, with a four-year prison sentence for subsequent offences.

In 2016, two environmentalists – Bob Brown and Jessica Hoyt – were arrested and charged under this act while photographing logging operations in the Lapoinya forest in north-west Tasmania. The charges were later dropped but Brown and Hoyt challenged the act in the High Court.

With a six-to-one majority, the court struck down the Tasmanian law. The majority judgement outlined three questions that needed to be asked about the proportionality of such laws:

  • Does the law effectively burden freedom of political communication?
  • Is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of government?
  • Is the law reasonably appropriate and adapted to advance that purpose in a manner compatible with the maintenance of the constitutionally prescribed system of government?

Brown and Hoyt after their victory
If the answers are yes to the first and no to the others, then the law is unconstitutional – as in this case.

In the case of the anti-protest laws, argues David Meija-Canales, the answer is clearly yes.

On the other two criteria – legitimacy and appropriateness – the situation is more clouded.

On legitimacy, he said: “In the absence of a human rights charter, the judgment would be on grounds that were far narrower [than breaching a right to protest]. It’s about the right of political communication. To be able to participate in a ‘constitutionally prescribed system of government’ in a democracy, people need to be able to communicate about political matters. Not all protest burdens the implied right of political communication. We would have to find a case where it does.”

Appropriateness speaks to proportionality and the weight of penalties. If someone goes to prison for blocking a footpath – which is possible, particularly in New South Wales – a clear case could be made that the law is unconstitutional.

“Something like that has already happened,” said Meija-Canales.

Deanna Coco ... arrest, gaol, appeal, release
Two years ago, Deanna ‘Violet’ Coco was sentenced to 15 months in prison for blocking one lane of the Sydney Harbour Bridge in a climate protest. The sentence was overturned by the District Court, so the case did not proceed to the High Court – at least, not at the time. Potentially, it still could.

“The government has a legitimate interest in ensuring a public place is free for everyone to move through. But that interest has to be balanced with people’s ability to gather and use the public place to freely gather. The court would look at those things.

“But [our case would be] that the laws are so vague and punitive that they go well beyond what would be proportionate to achieve the policy outcome of people being free to use a public space.”

After the 2016 High Court judgment struck down its original legislation, The Tasmanian government revisited the area and, late last year, an amended version became law. Now:

  • A community member who obstructs access to a workplace as part of a protest could face 12 months in prison;
  • A community member protesting the destruction of old growth forests on a forestry site could face a penalty of over $13,000 or 2 years in prison;
  • An organisation supporting members of the community to protest could be fined over $45,000.

Although the replacement law is somewhat better defined and focused, it remains vulnerable to potential challenge. Laws in other states are generally similar to Tasmania’s. Penalties include:

New South Wales: $22,000 fine, two years imprisonment.

Victoria: $21,000 fine, 12 months imprisonment.

Queensland: $6,000 fine, two years imprisonment.

South Australia: $50,000 fine, three months imprisonment.

The state governments perceive a political advantage in being seen by the community to react strongly against unpopular and seemingly-radical protesters. But they need the courts to think the laws are not about restricting protest rights at all, and are solely about preventing obstructive and anti-social behaviour.

They want their electorates to believe one thing and the courts to believe another.

“These laws are made to be on the front page of newspapers,” Meija-Canales believes. “They’re not actually going to be much used, because they are so vague and they’re hard to prove. People have been charged under those laws but they’ve not been convicted of them.”

The Deanna Coco case is perhaps an exception, though the original judgment was overturned on appeal.

“Often, when they go to court, those charges are dropped,” Meija-Canales said. “There are already laws that cover this kind of behaviour.

“These laws are made for the front pages of tabloids. The premier can beat his chest and say he’s done something.”

One of the most serious effects of the new laws is the requirement that police permission is required before a public protest can be held. That gives the police a political role that is incompatible with the need, in a liberal democracy, for law enforcement to be above politics.

EVERY MOVEMENT NEEDS ITS MARTYRS

The human rights protections now inherent in liberal democracies like ours did not happen by magic. They were put there by determined, idealistic people who were prepared to go to gaol, or even to die, in the pursuit of basic freedoms.

Two hundred years ago, the freedom to assemble and to form associations did not exist. In 1819, a non-violent crowd of around 60,000 gathered on St Peter’s Field in Manchester in support of the right to vote and to hear a radical speaker, Henry Hunt. Cavalry charged into the crowd with sabres drawn, slashing at the unarmed protesters. Eighteen died and up to 700 injured.

As a result, the Peterloo Massacre became an critical turning-point in political reform not only in Britain but throughout the empire. Australia, in time, would benefit.

 In 1834, six agricultural labourers at Tolpuddle, a village in the English county of Dorset, were convicted of swearing a secret oath as members of an early trade union. They were sentenced to seven years in gaol and transported to New South Wales and Van Diemen’s Land.

It created an uproar. A petition demanding their release gathered 800,000 signatures and the Tolpuddle martyrs became popular heroes. They were pardoned and returned to England.

The case was a key moment in establishing rights we now take for granted. Without those protesters and others like them, trade unions could not exist and controversial political meetings would be illegal.

Brutal force-feeding of hunger-striking women
Votes for women, at that time, were contemplated by almost nobody. A century later, that changed.

By the early 20th century, women had the right to vote in Wyoming (1869), Utah (1870), Isle of Man (1881), New Zealand (1883), South Australia (1894), and Australia (1901) – but not in Britain, which claimed to be the home of democracy and to have the mother of parliaments.

Fifteen years of protest, disruption, obstruction, imprisonment and hunger strikes endured by Britain’s suffragettes between 1903 and 1918 finally triumphed when women were allowed to vote. The oppressive and sometimes brutal treatment of the protesters by police, courts and prison officials had helped swing public sympathy behind the cause.

It might have happened without the protests, but when? In Belgium, women could not vote in national elections until 1948. In Switzerland it was 1971 and, in Liechtenstein, 1984.

In Melbourne in 1969, union official Clarrie O’Shea was sent to prison by Justice Kerr of the Industrial Court. (The judge later became Sir John Kerr, the governor-general who sacked the elected Whitlam government.)

Clarrie O'Shea's arrest
O’Shea was the militant secretary of the tram and bus union, and the issue was the penal powers wielded by the Industrial Court. The union was fined $13,200 over five years for unapproved industrial action; Kerr demanded the union’s financial records; O’Shea refused and was gaoled.

The sentence resulted in a national general strike across many industries, angry marches in the capital cities and massive political blowback. In the end, O’Shea’s fine was paid (by a former advertising manager for the Australian Financial Review) and he was released.

It was the end – for a time – of the penal provisions in industrial law. But there is no right to strike in Australia, and industrial law was progressively tightened by the Howard government. Now, any industrial action has to be approved by the Fair Work Commission – the Industrial Court’s current iteration – and union power, once again, massively weakened.

Townsend outside court
Imprisonment of conscientious objectors to the Vietnam War gave the initial impetus to the anti-war movement that eventually triumphed.

Simon Townsend was one of the first. He later became host of a television children’s show but in 1964 was a 19-year-old journalist on the New South Wales central coast. In November that year, the Menzies government introduced conscription, requiring all 20-year-old men to register for service in the armed forces.

“I suddenly decided to be a ... objector to the Vietnam War,” Townsend recalled later. “I then went to Sydney, I met people, I joined the groups and I read. And suddenly I had an intellectual basis for my objection to the Vietnam War.”

When he  refused to obey his call-up notice, the government seemed in no hurry to prosecute. Finally, in 1968, he was arrested and sentenced to 28 days military detention. At the Holsworthy army base he was subjected to treatment that amounted to torture.

Another draft resister, Bob Scales, documented the case in a book on Australia’s draft resisters:

“Townsend spent his first days of army detention on a diet of bread and water. Every half hour a guard would rap loudly on the door in an attempt to stop Townsend sleeping. As a supposed precaution against suicide, the prisoner would be ordered to stand at attention at regular intervals during the night.

“After considerable publicity (initiated by Jim Cairns MP) the Military Board ordered these practices to cease.”

The backlash against the government and the army was immense and embarrassing; responsibility for draft resisters was transferred to civil authorities. Finally, after another month in Long Bay prison, Townsend was released.

There were many more draft resisters. Most went successfully underground, surfacing to embarrass the government and then disappearing, protected by a large and determined following. They were the vanguard of a protest movement that eventually ended a war.

It is highly probable that protesters will also be sent to prison under the new wave of anti-protest laws. When that happens, governments will be reminded of the lessons of the past that they have so comprehensively failed to learn.

That reminder will come with the predictable public backlash when peaceful protesters are sent to gaol. And there will be another reminder when those people take action in the High Court to overturn the legislation.

To bring a High Court case, a plaintiff would have to have standing before the court. They would need evidence that an anti-protest law was having an impact on them which rendered that law invalid under the constitution. The selection of a lead plaintiff is therefore crucial.

“If  someone has been charged under the laws – or even if someone who wants to protest but can’t because of those laws – could bring a case,” said the Human Right Law Centre’s Meija-Canales. But a case would be more solid if the plaintiff had suffered a real and onerous penalty.

“One of the things I’m looking at now is what kind of person, or group of people, we could look at to run a case. It depends not only on the charges they receive but also on the facts surrounding their arrest and so on.”

These new laws are clearly intended to abridge the right to protest. Obstruction has always been an element of public protest, from the Peterloo Massacre to now. After all, a protest has to take place somewhere, almost always in a public place.

It is also the case that a substantial number of people are quite prepared to go to gaol not only to protect their civil rights but also to protect the planet. Just as Clarrie O’Shea, back in 1969, disobeyed a court order and refused to pay a fine, people being fined under the anti-protest laws can – and probably will – refuse to pay and then be sent to gaol for contempt.

This issue will end in the High Court. Some of our most basic liberties will depend on the result.

 

 

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