Calling out Australia at the United Nations

MALS Endorses Joint NGO Submission to Australia’s 3rd Universal Periodic Review

Concerned with narrowing space for civil engagement and protest across Australia, Melbourne Activist Legal Support (MALS) endorses in whole the joint non governmental organisation (NGO) submission to Australia’s 3rd Universal Periodic Review that was released on Thursday 9th April.

The submission was endorsed by 200 organisations and is available online here.

In particular, MALS supports the submission’s recommendations to:

  • Repeal laws in Queensland and New South Wales that criminalise peaceful protest;
  • Repeal metadata and encryption laws and severely restrict the use of facial recognition technology;
  • Establish of independent investigative bodies that meet international standards to investigate potential human rights abuses by police;
  • Implement of a comprehensive audit into policing law, policy and procedure to identify and eliminate discriminatory policing; and
  • Introduce a comprehensive, judicially enforceable national Charter of Human Rights and Freedoms to further enshrine protections into law.

2019 Budget: The Verdict Part 2 | Pursuit by The University of ...

MALS supports the submission’s consideration of the “intersectionality of inequality and compounding nature of discrimination and disadvantage” in Australia not meeting its human rights obligations.

MALS also supports the submission’s recognition that “Aboriginal and Torres Strait Islander Peoples are significantly over-represented across all low social indicators as a result of the continuing impact of colonisation, marginalisation and racism.”  MALS strongly urges national and state consideration of its role in perpetuating or redressing such over-representation.

The UPR is conducted by the United Nations Human Rights Council and cyclically addresses the human rights conditions in all United Nations member countries.

Universal Periodic Review of Australia 2020 | Human Rights Law Centre

Coordinated by the Human Rights Law Centre, the Kingsford Legal Centre, and the Caxton Legal Centre, the submission draws attention to areas of concern in upholding Australia’s human rights obligations. The submission was authored in consultation with 57 Australian NGOs and is to be submitted to the UN Human Rights Council for consideration early next year.

Although its focus is Australia-wide, the submission relates to concerns often voiced by MALS in Victoria.

Specifically, MALS continues to be concerned regarding the rise in coercive and excessive crowd control tactics, increased monitoring and surveillance, and use of force with less-than-lethal weapons employed by Victorian police to obstruct peaceful protest.

Peaceful protest is recognised as a human right under the Universal Declaration of Human Rights right to free expression (Article 19) and peaceful protest and assembly (Article 20).  Amongst other texts, the UPR process utilises the Universal Declaration of Human Rights as a yardstick for review.

The submission also shines an important light on the lack of improvement since Australia’s last review in 2015. This is because, despite accepting recommendations to “prevent the excessive use of force by the police and investigate all complaints thoroughly,” (Recommendation 199) and to “review the extent and scope of laws
governing secret surveillance and moderate the powers and discretion conferred on authorities in this regard,” (Recommendation 226), these areas still arise as areas of concern in the joint NGO submission.

MALS welcomes the opportunity to raise these concerns and strongly urges concrete efforts be made by both the Commonwealth and Victorian governments to protect civic space and peaceful protest.

The full submission is available here (PDF).

By Jen Keene-McCann

Melbourne Activist Legal Support

STATEMENT OF CONCERN: Unique protest squashed by police due to COVID restrictions

Melbourne Activist Legal Support (MALS) expresses concern regarding the dampening of political speech and peaceful association in police threats to fine protesters

A unique cavalcade protest that had planned to abide by social distancing restrictions has been banned by local police. Victoria Police threatened the organisers with a hefty fines if the cavalcade went ahead.*

On Saturday 4 April the Melbourne based Refugee Action Collective (RAC) planned to host a cavalcade of cars to slowly circumnavigate the Mantra Hotel in Preston where several asylum seekers have been held since the 25 July 2019. (1)

This event was directly linked to the health of detainees in the Mantra Hotel, who face the increased risk of coronavirus infection because of their detention conditions.(2) The protest follows the the news that a guard at a similar alternative place of immigration detention tested positive for COVID-19.(3)

In accordance with the Stage 3 public health restrictions made by the Victorian government, protest organisers instructed participants to have no more than 2 people per car and for those 2 people to be of the same household.  Participants were instructed not get out of the car if others were around and not to attend if sick, or in close contact with a sick person.

Participants were also instructed to not to cover number plates with signage and to obey all road rules.

According to protest organisers: “Our protest would be safer than going shopping, safer than travelling on public transport, safer than nonessential work that continues, and safer by an order of magnitude than being stuck in a sealed corridor in the Mantra.”

When organisers were contacted by Preston police they were told that the proposed protest was illegal and that individual participants faced fines of $1652 for every person who took part. The organising group itself was threatened with “much heavier fines”.*

MALS recognises that efforts to protect public health in the face of the coronavirus pandemic demands temporary restrictions to some individual freedoms. However, the United Nations has directed that authorities must ensure any restrictions to rights and freedoms during the pandemic are “proportionate, necessary and non-discriminatory.”(4)

Because of this, MALS is concerned that a protest adapted to government public health restrictions could still be quashed by police. This raises concerns regarding protesters’ rights to free expression and peaceful association, as recognised in the Victorian Charter, and their implied right to political communication under the Commonwealth Constitution. MALS also notes the lack of institutional oversight to the powers police officers have been given in enforcing the Stay at Home directions.

MALS emphasises that activist groups have been proactive in efforts to ‘flatten the curve’ since the onset of the pandemic. Numerous large protest events were voluntarily cancelled or postponed in response to public health directions days earlier than corporate, private or government entities in order to reduce the risk of virus transmission. (5) Similarly, grassroots mutual aid networks, organised largely by social movement activists, have been at the forefront of community eduction, support for our health system and responses to prevent transmissions. Human Rights Watch has called upon governments to not exploit the coronavirus pandemic to criminalise or obstruct the work of civil society organisations. (6)

MALS asserts that compassion and human solidarity needs to be at the centre of our response to this pandemic. These values are enacted by social movement initiatives such as this protest and as such should be respected as vital responses to this unprecedented crisis.

MALS expresses concern that police response to this protest:

  • Goes beyond the spirit of the Deputy’s Chief’s Health Officer Stay at Home directions which explicitly allows travel for both work and volunteering tasks;
  • Fails to recognise the accommodative and safely organised nature of the event;
  • Fails to recognise the compassionate nature of the event – which is designed to draw attention to a potential health crisis currently being ignored by public authorities; and
  • Represents a dangerous, disproportionate and ultimately unnecessary limitation of civil and political rights. (7)

MALS urges Victoria Police and all authorities to ensure that:

  1. Safely organised public events such as this are seen as ‘volunteer ’ work as described in Clause 8 of the Stay at Home directions and therefore are permitted;
  2. Local police work in good faith with this and other event organisers to ensure proper social distancing measures are undertaken;
  3. Police attending any such activities also observe appropriate social distancing and protective measures.

This Statement of Concern is a public document and is provided to media, Victoria Police Professional Standards Command (PSC), Independent Broad-based Anti-corruption Commission (IBAC), the Victorian Equal Opportunity and Human Rights Commission (VEOHRC), Government ministers, Members of Parliament and other agencies upon request.

A downloadable copy of this Statement is available here (PDF).

For inquiries regarding this statement please contact: media@melbactivistlegal.org.au

About Melbourne Activist Legal Support

Melbourne Activist Legal Support (MALS) is an independent volunteer group of lawyers, human rights advocates and, law students and para-legals. MALS trains and fields Legal Observer Teams at protest events, monitors and reports on public order policing, provides training and advice to activist groups on legal support structures and develops and distributes legal resources for protest movements. MALS works in conjunction with law firms, community legal centres and a range of local, national and international human rights agencies. We stand up for civil & political rights.

Mantra Bell City in Preston, Victoria


* CORRECTION: An earlier version of this statement indicated that police threatened the organising group with $20,000 fines. However the police threat of “much heavier fines” was interpreted by the group as what they could have faced under the Stay at Home directions if they had disobeyed a directive.

1. https://www.theage.com.au/politics/federal/medevac-asylum-seekers-detained-in-a-melbourne-hotel-for-months-20191217-p53kmh.html

2. The Australasian Society for Infectious Diseases and the Australian College of Infection Prevention and Control recommended releasing immigration detainees (currently held in hotels and detention centres across the country) into the community. The shared dining rooms, bedrooms and bathrooms and the notorious handling of detainees by security mean that Covid will spread through detention centres quickly.

3. https://www.sbs.com.au/news/guard-working-at-brisbane-hotel-housing-refugees-and-asylum-seekers-tests-positive-for-covid-19

4. COVID-19: States should not abuse emergency measures to suppress human rights – UN experts https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25722&LangID=E

5. Melbourne based activities groups began cancelling rallies and public events from 13 March 2020 – the Save Public Housing Rally cancelled on March 13 and Extinction Rebellion Vic cancelled its March Against Murdoch on the same day – both prior to the Prime Minister’s announcement that gatherings of more than 500 people would be banned from the following Monday.

6. Human Rights Dimensions of COVID-19 Response, Human Rights Watch,  19 March 2020. https://www.hrw.org/news/2020/03/19/human-rights-dimensions-covid-19-response#_Toc35446587

7. Human rights law also recognises that in the context of serious public health threats and public emergencies threatening the life of the nation, restrictions on some rights can be justified when they have a legal basis, are strictly necessary, based on scientific evidence and neither arbitrary nor discriminatory in application, of limited duration, respectful of human dignity, subject to review, and proportionate to achieve the objective.

Are governments violating human rights and civil liberties in coronavirus response?

Historically crises have been exploited to introduce dangerous policies—right now may be one of these moments.

Airport in Hong Kong. Photo: Lei Han / via Flickr CC

With the rise of far right, nationalist governments over the past few years, the world has seen more measures to systematically target voices of dissent and political opposition—resulting in the rapid shrinking of space for civil society organizations, including human rights groups, activists, and academics. And these efforts to restrict civil space may have just received a boost from the global pandemic we’re now facing.

By far, COVID-19 is the widest spread global pandemic of our lifetime, and its cost in human life, livelihoods, and community structures is devastating. Governments and authorities on both local and national levels have started using extreme emergency measures to contain the spread of the virus.

While public health should be a priority for everyone, these extreme measures are sounding alarm bells. Governments and corporations have historically used crises as opportunities to introduce new policies that would otherwise be impossible to pass, normalizing them in a new status quo—what author Naomi Klein calls the “shock doctrine.” COVID-19 may be one of these moments.

On March 16, the U.N. Office of the High Commissioner on Human Rights published a statement advising states to respond to the COVID-19 pandemic responsibly, voicing concerns regarding the possible human rights violations within measures being undertaken to slow the spread of this virus.

In an environment where many governments have failed to take adequate steps to protect public health through proactive investments in care capacity, research, supplies, and planning—often because their focus and resources have been directed at systems of militarized security rather than human security—it is doubly concerning that many of these same countries’ response to this crisis has been more focused on social control than public health.

We must monitor the measures our governments are taking, organize communities in this new environment of physical distancing, and demand that any emergency measures are focused solely on advancing public health and well-being—and restricted in time and scope so that they cannot be used beyond containing the virus.

Criminalizing dissent

One concerning tactic that governments are taking to control the spread of the virus is the criminalization of citizens breaking quarantine, citizens spreading fake news, or citizens not reporting sickness. While these measures are reasonable responses from a public health perspective, how they are being implemented and the vague language in which they are passing may allow them to be used against dissident voices.

In Myanmar, the government has made “not reporting an illness” a criminal offense and designated military bases to forcibly intern quarantined citizens. Many political activists have fled cities in fear that such a broad definition can be used against anyone the government wants to criminalize.

In Hungary, new legislation suggests up to five years in prison for circulating “misinformation.” With such a broad definition, activists fear it will once again allow the government to arrest whoever they see fit.

In Switzerland, France, Iran, Israel, Austria, Italy, the Czech Republic, Germany, Slovakia, South Korea, Vietnam, Poland, U.K., Palestinian Authority, the United States, China, and other countries, gatherings of a certain number of people (in most cases over 10) have been completely banned, criminalizing most forms of protest. In a protest in Israel on March 19, against the de-facto shut-down of Knesset (parliament), nine people were arrested under the “people’s health” emergency decree barring such public gatherings.

With reports coming in from across the globe of thousands being arrested for breaking lock-down rules, there is sad irony that little has been done to address public health in detention facilities worldwide, where crowded conditions and lack of access to soap and other implements of basic hygiene are more the rule than the exception, and threaten devastating consequences.

Expanding legislative authorities

Countries around the world have already declared states of emergency, which allow drastic measures to be taken quickly. While in most cases these declarations are temporary and time bound, a bill put forward by the Hungarian government will allow for the state of emergency declaration to be valid throughout 2020. Further, the Hungarian proposed bill cites the possibility of a “forced parliamentary break,” which has raised concerns that this bill is purposefully setting the stage for the suspension of parliament.

Despite just coming out of elections, the exiting speaker of the Israeli parliament is citing the COVID-19 crisis and the need for the (exiting) government to not be challenged in this time, as a justification for his refusal to step down as speaker and allow the newly elected parliament to operate.

Increasing technological surveillance

In the era of smartphones, most people walk around with a potential tracking device in their pockets. Digital surveillance, specifically based on geolocation, is an extremely easy measure for states to implement as a means to try and track the spread of the virus. While there is a clear appeal in knowing where infected people were, are, and will be–and who they have come in contact with–this raises important questions of privacy and normalization of technological surveillance by our governments.

Through enforcing the use of a GPS phone application, South Korea is using geolocation surveillance to monitor quarantined citizens. More intrusive measures are being implemented by the Israeli government, which allows the General Security Service to collect historic and present geolocation data on the phones of COVID-19 infected people to locate and enforce quarantine of those who were in close proximity during periods of contagion (regardless if there was a wall or a few floors between them–geolocation has its clear limitations). China and Iran are doing the same, and these mass data collection tools are already being sold to other countries by the Israeli company NSO, notoriously famous for their role in surveilling human rights activists.

China and Russia have taken this one step further, employing facial recognition software to track people’s locations, including through developing new abilities to identify people wearing masks. In both countries, which have seen mass protest movements in recent years, masks have been primary protection tools for protestors against state persecution.

To these, we can add the normalization of the use of drones for civilian surveillance purposes (China and Europe), electronic tracking bracelets (Hong Kong), assigning QR codes to citizens to control movement (China), and tracking of credit card use (South Korea). And we are seeing new surveillance measures every day.

While these measures may certainly aid in ensuring public health and safety and could be vital in stopping the spread of this pandemic, there should be certain minimum, rights-based standards and considerations for these regulations and policies. Such standards are critical to ensure they are not later normalized and perpetuated once the spread of the virus is controlled. These may include:

  • Clear and short time limits for the use of these measures (that can be extended for further, short periods of time as needed);
  • Clear regulations about the storage, access, and deletion of private information stored during this time, as well as restrictions on what information is taken;
  • Transparent decision-making processes based on guidance from public health professionals, answering questions such as: Whose professional opinion is being taken in order to decide on such measures? Whose opinion will be taken to determine when they will be lifted?

Careful monitoring of these measures and clear messaging that they cannot be used to suppress civil liberties will allow us to mobilize and demand their lift once the crisis has ended. In the meantime, we must not allow these tools to be normalized. For this, we can use social media and other online platforms to keep a conversation going, to raise awareness of these dangers, and to make sure our authorities know that we’re paying attention.

About the Author

Sahar Vardi has served three prison sentences for her refusal to be conscripted into Israel’s military service. She works with other refusers and serves as Coordinator of AFSC’s Israel program in east Jerusalem.

Article republished under Creative Commons,

An Open Letter to Victoria Police:

‘Disruption to others’ does not justify limiting the Right to Peaceful Assembly

6 October 2019

Melbourne Activist Legal Support (MALS) acknowledges the response to our recent Statement of Concern by Victoria Police Assistant Commissioner Luke Cornelius (3 October 2019)

In reply and in light of protest events planned in Melbourne for the month of October we take this opportunity to remind Victoria Police senior command and all operational commanders assigned to public order policing duties over the coming weeks of the following:

There is no basis for claiming that a protest that is deliberately disruptive to the activities of others falls outside the protection of rights to freedom of assembly;

The Right to Peace Assembly, Freedom of Association and the Right to Political Expression have far greater legal protections and recognition both within Victorian legislation and in international law than the Melbourne Flower Show, The Grand Final Day Parade, Moomba and White Night and many other similar public events regularly held in Melbourne’s CBD;

Events such as the Melbourne Flower Show, The Grand Final Day Parade, Moomba and White Night all cause significant disruption to public access to roads, public parks, through traffic, trams and vehicular access. Policing these events includes facilitating the shutting down of significant parts of the city over significant periods of time;

‘Disruption to others’ is not, nor can it be used as an excuse, rationale or justification for limiting or preventing civil society groups from enacting the Right to Peaceful Assembly and The Right to Freedom of Political Expression at public events;1

There is no commensurate ‘right not to be disrupted by other people’s activities’;

In light of the fact that political expression is the most protected by law of all forms of expression. it is arguable that peaceful protest should be facilitated over and above that provided to commercial and community events mentioned above;

We remain concerned about recent public comments made by North West Metro Region Commander Tim Hansen (Herald Sun 4/10/19), that seem to equate disruption with threats of violence as well as earlier comments by Minister for Home Affairs, Peter Dutton. (2GB, 4/10/2019)

International human rights jurisprudence clearly recognises that peaceful assembly, by its very nature, is disruptive, and can inconvenience and be perceived as a nuisance by some people, but that “Rights worth having are unruly things.2.

Furthermore, the actions of some or a minority of people involved in an event do not remove the rights of peaceful assembly for others collectively; individual actions that are unlawful committed in the course of a demonstration cannot be used to justify the removal or limitation of the collective rights to peaceful assembly and expression; 3

The rights to peaceful assembly, association and expression are explicitly recognised and protected within Victorian legislation and international human rights law precisely due to their importance to the establishment and maintenance of a free, equal and democratic society;

In essence, the bar to determine whether ‘disruption’ becomes a threat to ‘public order or safety or morality’ needs to be set quite high.  Particularly in light of the extent of disruption caused regularly by other public events such as community festivals, parades, commercial events and road works which are not protected in legislation.

Any policing of civil society actions or events that limits these Charter rights must be
– lawful
– necessary, reasonable and proportionate, and
– in compliance with the Charter of Human Rights and Responsibilities Act 2006.

Further any limitation must be demonstrably justified in a free and democratic society based on ‘human dignity, equality and freedom’. Decisions by public authorities to limit Charter rights require substantial evidential backing to be justifiable and cannot be based upon assumptions, opinions, operational imperatives or current practices; 4.

Melbourne Activist Legal Support will be fielding teams of trained, independent Legal Observers in the CBD at protest events during October to record, monitor and report upon actions of Victoria Police members according to their responsibilities under the Charter, the International Covenant of Civil & Political Rights (ICCPR) the Victoria Police Manual, use of force guidelines and other human rights considerations and jurisprudence;

We remind Victoria Police of the recommendations made regarding the policing of public protest events and reiterate our request that they be incorporated into operation orders and the VPM. [Statement of Concern: The Policing of Extinction Rebellion]

Responses or further inquiries regarding this open letter can be made to melbactivistlegal@gmail.com

About Melbourne Activist Legal Support

Melbourne Activist Legal Support (MALS) is an independent volunteer group of lawyers, human rights advocates and, law students and para-legals. MALS trains and fields Legal Observer Teams at protest events, monitors and reports on public order policing, provides training and advice to activist groups on legal support structures and develops and distributes legal resources for protest movements. MALS works in conjunction with law firms, community legal centres and a range of local, national and international human rights agencies. We stand up for civil & political rights.

To support our work please make a small donation at:

Endnotes:

1. Despite a lack of Australian case law, courts in Europe have repeatedly made clear, direct action protests, including lockons, occupations of land and other activities which are capable of being deliberately disruptive to others, fall within the scope of Articles 10 and 11 in the European Convention of Human Rights (ECHR). In
Hashman and Harrup v United Kingdom (1999) 30 EHRR 241 the court stated:
“It is true that the protest took the form of physically impeding the activities
of which the applicants disapproved, but the Court considers nonetheless
that they constituted expressions of opinion within the meaning of Article
10… The measures taken against the applicants were, therefore,
interferences with their right to freedom of expression.” (at [28])
This was confirmed in the United Kingdom in R v Roberts & Others [2018] EWCA Crim 2739 which concerned the deliberate blocking of a major road for a period of 3
days. The Court of Appeal stated: “there is no doubt that direct action protests
5 App 76900/01, 29 June 2006 fall within the scope of articles 10 and 11…“ (at [39]).

2. In considering the need for tolerance of disruptive protest (whether intentional or
collateral) the words of Laws LJ in Tabernacle v Secretary of State for Defence
[2009] EWCA Civ 23 are insightful:
“Rights worth having are unruly things. Demonstrations and protests are
liable to be a nuisance. They are liable to be inconvenient and tiresome, or
at least perceived as such by others who are out of sympathy with them.”
(at [43]).

3. Strasbourg case law which emphasises that a protester does not lose the right to assemble/protest peacefully unless they themselves are violent:
“an individual does not cease to enjoy the right to peaceful assembly as a
result of sporadic violence or other punishable acts committed by others in
the course of the demonstration if the individual remains peaceful in his or
her own intentions or behaviour” (Ziliberberg v Moldova, App no 61821/00 Admissibility decision of 4 May 2004).

Also relevant is Moos & Anor, R (on the application of) v Police of the Metropolis [2011] EWHC 957 (Admin) (14 April 2011) discussed at: https://www.hrlc.org.au/human-rights-case-summaries/moos-anor-r-on-the-application-of-v-police-of-the-metropolis-2011-ewhc-957-admin-14-april-2011?rq=peaceful%20assem

4. See http://www.judicialcollege.vic.edu.au/eManuals/CHRBB/57276.htm

Are you a human rights defender? The statement from the United Nations special rapporteur is worth a read

In early October, members of Melbourne Activist Legal Support met with the United Nations special rapporteur Michel Forst, who has since released his report on the situation of human rights defenders in Australia.*

It is a powerful and important statement and has largely backed up what Australian activist, legal and human rights organisations have been saying for many years – that the Australian Government is dangerously impeding and repressing those of us in Australia trying to defend and stand up for basic civil, political, social, cultural and economic rights.

“I reminded the Government that human rights defenders have a legitimate right to promote and protect all human rights, including the right to a healthy environment, regardless of whether their peaceful activities are seen by some as frustrating development projects. I therefore recommend that the laws criminalizing peaceful protests are urgently reviewed and rescinded.”  – Michel Forst

In the parlance of the global human rights community, a ‘human rights defender’ can be anyone, anywhere, who is taking action that seeks to defend, promote or strengthen a right recognised by the Universal Declaration of Human Rights or any of the subsequent UN conventions or covenants. It has been well documented that around the world, human rights defenders are often targeted, threatened, abducted, abused, tortured or killed due to their activism – most often by their own governments. Hence the need for a clear Declaration documenting the rights and protections available to them and stating the obligations of governments to observe them.

The Declaration on Human Rights Defenders

The Declaration on human rights defenders, from which Michel Forst, the current Special rapporteur gets his mandate to investigate and report on countries who have signed it,  was adopted by the UN General Assembly in 1998. The position of Rapporteur is an independent expert, able to exercise professional and impartial judgement and report directly to the Human Rights Council and the General Assembly.

This particular Declaration on HRDs is particularly useful for activists in Australia to know about as it is designed, in part, to speak directly to us – activists who defend or promote human rights.  It as a strong, very useful and pragmatic text. It tells us that we all have a role to fulfill as human rights defenders and emphasizes that there is a global human rights movement that involves us all. It outlines concretely each of the obligations that the state has to protect and ensure that we have access to protection, information and safety.

cropped-silencing-act.jpg

This Declaration is very important to the work of the Melbourne Activist Legal Support and is something that we refer to in our training.  If you act as a Legal Observer or are a part of MALS, then you are acting as a Human Rights Defender  and have all the rights articulated in the Declaration on HRD’s whilst you are doing that work.

Likewise – if you are an Indigenous activist standing up for the rights entailed in the The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) then you can also call yourself a human right defender if you so choose. As can people protesting for rights in The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) or any other UN article or convention that spells out our civil, political, economic or cultural rights.

If you want to have a read of it see here>And this Fact Sheet is also very useful.

In other words, every one of us has the right to defend all human rights for all. The Australian State is therefore under the obligation to take steps to create necessary conditions, including in the political and legal domains, in order to ensure that everyone in the country can enjoy all those rights and freedoms in practice.  Well, wouldn’t that be good.

Concerns raised by MALS

During his two-week visit, at the invitation of the Government, the expert met with vast range of federal and state officials, members of the parliament and judiciary, statutory bodies, as well as human rights defenders and representatives of civil society, media and business.

In our meeting with Mr Forst, MALS members raised specific and general concerns about policing and anti-protest laws according to our observations of many protest events over several years. We referred to assaults on peaceful protestors, the growing use of OC (pepper) spray by police, corporate spy infiltration of movements and anti protest laws proliferating around the country. We referred to the spraying of street medics and injured people in Melbourne at the Counter Reclaim Australia protests (18/7/2015) and Jafri Katagar being sprayed at close range outside Flinders Street (23/9/2016). We also raised the rights of Legal Observers to be free from police harassment and interference whilst observing public protest events. See this  Statement of Concern (July 2015). We spoke about how Legal Observers had been restricted from accessing certain areas were activists had been taken for questioning.

We raised the issue of over-policing and how the deployment of so many police units including, mounted and teams of riot police, often deters people from attending or joining in at a protest and leads to a ‘closing down’ of political space.
We raised the issue of the police bias often noticeable at protest events and gave the example of the police officer that was captured high-fiving a Reclaim Australia protestor (18/7/15).

End Of Mission Statement

In his end-of-mission statement on Australia Michel Forst said he was “astonished” by numerous measures heaping “enormous pressure” on public servants, whistleblowers and ordinary citizens that restrict and curtail their rights.

The official statement stated that he found a growing body of laws, both at the federal and state levels, constraining the rights of human rights defenders.

“They have ranged from intensifying secrecy laws to proliferating anti-protest laws, from the stifling Border Force Act to the ‘Standing’ bill shrinking environmental access to courts,” Mr. Forst specified.

The statement says:

“it is alarming to observe the increasing trend by State governments to constrain the exercise of this fundamental freedom through what essentially is anti-protest legislation. Jointly with other fellow UN experts, I have conveyed repeated concerns to the Australian Government that such laws would contravene Australia’s international obligations under international human rights law, including the rights to freedom of expression as well as peaceful assembly. The proposed laws would criminalize a wide range of legitimate conduct by determining them as “disrupting” business operations, physically preventing a lawful activity or possessing an object for the purpose of preventing a lawful activity. Peaceful civil disobedience and any non-violent direct action could be characterized as disruption and “physically preventing a lawful activity”, and thus become criminalized.”

On the new national security laws, dealing with a data-retention scheme to retain metadata for two years, the statement said that these have:

“serious implications for journalists and whistleblowers. They have mandated the stockpiling of huge rafts of metadata of individuals, reportedly giv­ing law enforcement agencies the means to identify jour­nalists’ confidential sources.”

Emily Howie, Director of Advocacy and Research at the Human Rights Law Centre, said that the Special Rapporteur’s statement highlights what many Australians already know.
“This a wake-up call to Australia: despite our strong track record as a vibrant and diverse
democracy, the reality is that more and more people here feel silenced by government and fearful of speaking out. This trend has widespread impact, including on environmental organisations, journalists, trade unions, landholders, community lawyers, doctors working with refugees, philanthropists and more,”

Forst makes a set of recommendations to the Australian Government including one to ensure prompt and impartial investigations into alleged threats and violence against human rights defenders and trade unionists and bring to justice direct perpetrators, and also to review and revoke laws that restrictive of the right to freely and peacefully assemble.

He also makes a set of recommendations directly to human rights defenders  (as in ‘us’) to:

  • Develop and strengthen federal and state networks aimed at empowering defenders and facilitating coordination;
  • Become more familiar with the UN Declaration on Human Rights Defenders and publicise it broadly in society.
  • Make full use of United Nations human rights mechanisms, when reporting on human rights violations.

These are all good ideas and things that we have been doing already.  MALS will continue to support groups and communities exercising their civil and political rights by fielding legal observer training, providing free resources and up to date information regarding the right to protest at law in Victoria.

cropped-megaphones.jpg

So what now?

So will things change now with this searing indictment on Australia? No. Not at all really.

The Turnbull government has said it “will consider the special rapporteur’s recommendations in the same way as it considers recommendations from all United Nations mechanisms” – which is another way of saying it will totally ignore them.

Like all international rights it takes years of struggle and a lot of hard work to see them realised and all rights need constant defending.  But this Special Rapporteur’s statement is yet another tool we can use in our advocacy and to inform our ongoing work. It will be referred to by NGO representatives and delegates at the UN and  raised in meetings, forums and by delegations to do with Australia.  It provides a great deal of authority to our existing work and backs up our local campaigning against anti-protest laws and against repressive police powers. Campaigners in Tasmania and Western Australia will be able to use this statement in their ongoing work against their respective anti-protest legislation.

Forst’s visit is also a reminder that we are part of an international struggle and human rights are under threat everywhere, that our struggle is international and that we win rights, often step by little step.  International attention, condemnation and outrage can, at certain times, be a deciding factor in a movements ability to win – particularly when domestic governments refuse to listen or engage.  Groups in the global south suffering under authoritarian regimes often called this transnational human rights advocacy the ‘boomerang’ strategy. Australian activists could always improve how we mobilise and utilise international pressure on our own domestic issues.

Mr. Forst will present a final report with his findings and recommendations to the Human Rights Council in 2017.

In February 2016, the Human Rights Law Centre published Safeguarding Democracy, a report that addressed many of the concerns now raised by the UN. It is also worth a read.

 

(*) Read the Special Rapporteurs full end-of-mission statement here:
2016-10-18_australia_sr-hrd-statement-final