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.

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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.

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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