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Ruling vindicates ‘Occupy Melbourne’ protesters but highlights lack of legal protections for free speech and protest rights

Ruling vindicates ‘Occupy Melbourne’ protesters but highlights lack of legal protections for free speech and protest rights

1 October 2013

In a case about free speech and protest rights, the Federal Court has today found that council by-laws regarding advertising and camping do not  infringe  human rights, but some of the ways in which they were used by the City of Melbourne against a group of peaceful protesters in a public space were unlawful.

The HRLC’s Director of Advocacy, Anna Brown, said the decision had ramifications for the rights of all Australians to gather peacefully with others to express their views.

“Free speech is the cornerstone of democracy. Australian law must adequately protect essential democratic rights such as freedom of expression and the right to peaceful assembly. Whilst the decision is a mixed bag, some aspects deliver an important vindication for the protestors who believed that the actions taken against them were arbitrary and unlawful,” said Ms Brown.

To disperse the ‘Occupy Melbourne’ protesters, the City of Melbourne had relied on council by-laws which prohibit advertising signs or camping without a permit. The legal action challenged the validity of these by-laws and the actions taken under them by the Council including the issuing of compliance notices against the protesters.

While Justice North of the Federal Court found that a small number of notices issued against one of the Applicants, Sara Kerrison, were unlawful, he also found the legal proceeding could not go ahead as a ‘representative proceeding’ on behalf of all protesters. This meant the notices issued against other protesters could not be considered.

Justice North also found the Council by-laws and regulations did not infringe the rights of the protesters, a decision that will disappoint many human rights advocates.

“Regardless of your views on the Occupy movement, this decision should be of interest to any Australians that believe in free speech, because it once again highlights that fundamental human rights are not adequately protected in our laws,” said Ms Brown.

The protesters’ legal case argued the heavy-handed response from the Melbourne City Council was is in breach of the implied freedom of political communication in the Australian Constitution and the rights to peaceful assembly and freedom of expression under the Victorian Charter.

One of the Occupy Melbourne protesters, Sara Kerrison, said the group had started the case nearly two years ago, but felt it was now more relevant than ever.

“This decision really highlights how few avenues we have left to express alternative opinions within Australia. The law should be protecting our democratic rights not restricting them. Evidently we will need to defend and advocate for these rights even more vigorously,” said Ms Kerrison.

The Human Rights Law Centre and Fitzroy Legal Service were part of the legal team led by Ron Merkel QC that received pro bono support from leading corporate law firm Allens Arthur Robinson together with Mark Moshinsky SC, Emrys Nekvapil, Nick Wood and Rupert Watters of Counsel.

The HRLC is currently examining the detail of the decision, but for further comments please contact Anna Brown, HRLC Director of Advocacy & Litigation on 0422 235 522 or Anna.Brown@hrlc.org.au

A copy of Justice North’s decision can be found here.