We Must Protest Restrictions On Our Right To Protest
This piece was first published in the Huffington Post
Over the weekend, millions of demonstrators across the world took to the streets with a clear message for the new U.S. President: if you tread on women's rights, you've got a fight on your hands. It was a stunning display of the dynamic relationship between the state and its people and how democracy continues to operate in between elections.
The demonstrations should be a wake-up call for Australia, and not just about the dangers of electing a "pussy grabber" as a national leader. Unlike America, where peaceful protest is a protected legal right, in some parts of Australia demonstrators can be charged with criminal offences simply for standing together and speaking out on issues they care deeply about.
Protests have secured many of the rights, laws and policies we now take for granted in Australia, from the eight-hour day to Indigenous land rights and women's rights to vote.
That track record is not simply historical. Thousands of Australians held their own sister marches in support of the Women's March on Washington. Keep Sydney Open has put on a sustained campaign of rallies protesting against the state government's lockout laws, at least until a court delivered a decision late last week prohibiting a protest planned in Kings Cross from going ahead. In Western Australia, large-scale protests are resisting the state government's controversial Roe 8 Highway Project.
Yet our right to protest is by no means guaranteed. While the U.S. Constitution expressly protects peaceful protest, the Australian Constitution contains no such thing. Save for limited protection in Victoria and the ACT's human rights laws, there is very little stopping territory, state and national governments from banning protest altogether.
In fact, a disturbing trend has emerged in the past few years, with a number of state governments passing draconian laws that curb even peaceful protests.
In 2014, Tasmania passed anti-protest laws which criminalise protests that "hinder" access to business premises or "disrupt" business operations. Protests are defined to include the expression of an opinion on a political, environmental, social, cultural or economic issue.
Former Greens Leader Bob Brown is challenging the laws in the High Court of Australia, claiming that it infringes the implied right to freedom of political communication in the Australian Constitution.
In 2016, New South Wales passed a law to give police excessive new powers to shut down peaceful protests on the basis that they obstruct traffic, and at the same time increased penalties from $500 to $5,000 for unlawful protest opposing mining activity.
A bill under consideration in the Western Australian parliament is similarly unreasonable and would, in some circumstances, make the possession of everyday objects such as bike locks the basis of arrest.
Most worryingly, these laws are not passed to protect the community, but to further vested corporate interests. Tasmania's Minister for Resources was clear that the central objective of their anti-protest bill was "to ensure that wealth-creating businesses can develop and grow free from disruptive protest action".
In 2016, a UN expert visiting Australia noted "it has become clear that the Government has prioritised business and government resource interests over the democratic right of individuals to peacefully protest."
Indeed, at the same time as NSW increased fines for unlawful protest, it planned to introduce fines for illegal mining down from $1.1 million to $5,000.
The government may disagree with protesters' views on a particular issue, but shutting down peaceful assemblies only serves to weaken our democracy.
Instead of shutting down demonstrations that are inconvenient or annoying to it, governments should facilitate the space for public protest and discussions on matters that people care about.
Indeed, that is Australia's duty under international human rights law. By ratifying the International Covenant on Civil and Political Rights (ICCPR), Australia has voluntarily committed to respect, protect and facilitate the rights of individuals to assemble peacefully and express their opinions.
This is not to say that the government can't protect public order and safety and regulate violent protests. However, under human rights law, any restrictions on peaceful protests must be for a legitimate aim -- which doesn't include the protection of businesses -- and be proportionate to that aim.
It's time Australians enjoyed their rights, not just rhetorically, but legally. We remain the only Western democratic nation that is yet to comprehensively protect human rights in law, much to the detriment of all of us.
Now more than ever, in an increasingly uncertain political climate, we need our voices to be heard, and not just on Election Day. We need to be able to express our views on development, mining, refugees, lockout laws and women's rights. And central to all of this, we need to ensure that we protect the space in which we do it. A national human rights act is an important step.
Emily Howie is the Director of Advocacy at the Human Rights Law Centre
Chloe Gall is a secondee lawyer at the Human Rights Law Centre