1 00:00:00,520 --> 00:00:04,480 Speaker 1: Already and this is the Daily This is the Daily OS. 2 00:00:05,120 --> 00:00:15,760 Speaker 2: Oh, now it makes sense. Good morning and welcome to 3 00:00:15,760 --> 00:00:18,440 Speaker 2: the Daily OS. It is Friday, the tenth of October. 4 00:00:18,480 --> 00:00:19,440 Speaker 2: I'm Sam Kazlowski. 5 00:00:19,680 --> 00:00:20,639 Speaker 1: I'm Lucy Tassel. 6 00:00:21,000 --> 00:00:25,040 Speaker 2: Across the country, protests are held every week. Sometimes it's 7 00:00:25,079 --> 00:00:28,479 Speaker 2: to protest against government actions, and other times it's to 8 00:00:28,520 --> 00:00:32,479 Speaker 2: bring attention to an overseas cause. A pro Palestine protest 9 00:00:32,680 --> 00:00:35,800 Speaker 2: organized for this weekend in Sydney has been banned by 10 00:00:35,840 --> 00:00:38,800 Speaker 2: a New South Wales court, which ruled the public safety 11 00:00:38,880 --> 00:00:42,559 Speaker 2: risk is quote extreme. In light of this decision, we 12 00:00:42,640 --> 00:00:45,879 Speaker 2: wanted to ask the question of if there is indeed 13 00:00:45,960 --> 00:00:49,080 Speaker 2: a right to protest in Australia. Lucy and I are 14 00:00:49,080 --> 00:00:52,960 Speaker 2: going to unpack that and the latest decision in today's podcast. 15 00:00:57,480 --> 00:01:00,800 Speaker 1: Sam, let's start pretty high level. Well, the question that 16 00:01:00,840 --> 00:01:03,560 Speaker 1: you mentioned up at the top, is there a right 17 00:01:03,640 --> 00:01:05,360 Speaker 1: to protest in Australia. 18 00:01:05,440 --> 00:01:08,200 Speaker 2: Well, people certainly say there is. And I think that's 19 00:01:08,240 --> 00:01:11,360 Speaker 2: a good starting point. Is that we we're basing this 20 00:01:11,360 --> 00:01:14,679 Speaker 2: discussion out of observing how we talk about the rights 21 00:01:14,720 --> 00:01:17,080 Speaker 2: that we should have in a country like Australia and 22 00:01:17,360 --> 00:01:19,880 Speaker 2: the way in which those who lead these protests or 23 00:01:19,920 --> 00:01:24,280 Speaker 2: these protests attempts explain the legal basis for their plans. 24 00:01:24,840 --> 00:01:28,200 Speaker 2: But in Australia there are certain rights that are explicitly 25 00:01:28,280 --> 00:01:32,920 Speaker 2: protected in our constitution, but our constitution doesn't afford us 26 00:01:33,200 --> 00:01:37,040 Speaker 2: these constitutional protections in the same way that the US 27 00:01:37,240 --> 00:01:40,360 Speaker 2: speaks about their constitution. It's very clear. In the US 28 00:01:40,560 --> 00:01:44,560 Speaker 2: the constitutional rights are quite prescriptive. There's a huge amount 29 00:01:44,600 --> 00:01:47,440 Speaker 2: of case law that shows people exactly how they can 30 00:01:47,520 --> 00:01:49,600 Speaker 2: be used and how they can't be used. But in 31 00:01:49,680 --> 00:01:53,919 Speaker 2: an Australian context, there are only a few explicitly recognized 32 00:01:54,000 --> 00:01:56,560 Speaker 2: rights in that document. So that's things like the right 33 00:01:56,600 --> 00:01:59,400 Speaker 2: to vote, the right to a trial by jury, and 34 00:01:59,560 --> 00:02:04,400 Speaker 2: the freedom to practice religion. But there's nothing about protesting specifically. 35 00:02:04,680 --> 00:02:08,640 Speaker 1: Okay, so is there anything that governs our ability to 36 00:02:08,680 --> 00:02:10,120 Speaker 1: protest in Australia. 37 00:02:10,200 --> 00:02:13,440 Speaker 2: Well, if we go globally with it, that's where we 38 00:02:13,440 --> 00:02:17,040 Speaker 2: can bring in the human rights treaties that Australia is 39 00:02:17,160 --> 00:02:20,359 Speaker 2: a party two. And in international human rights law, there's 40 00:02:20,440 --> 00:02:23,200 Speaker 2: kind of seven core documents that people look at as 41 00:02:23,320 --> 00:02:27,440 Speaker 2: the Holy Seven, and we've signed and ratified those ones, 42 00:02:27,800 --> 00:02:31,200 Speaker 2: and the right to freedom of assembly and association, and 43 00:02:31,240 --> 00:02:35,960 Speaker 2: that's protesting is actually contained in two of those key documents, 44 00:02:36,000 --> 00:02:39,560 Speaker 2: at least, the International Covenant on Civil and Political Rights 45 00:02:39,680 --> 00:02:43,960 Speaker 2: or the ICCPR and the International Covenant on Economic, Social 46 00:02:44,000 --> 00:02:46,639 Speaker 2: and Cultural Rights. And if we go a bit deeper 47 00:02:46,680 --> 00:02:49,640 Speaker 2: into what those documents say is your rights in this space, 48 00:02:50,480 --> 00:02:54,840 Speaker 2: the ICPR says that no restrictions may be placed on 49 00:02:54,919 --> 00:02:58,520 Speaker 2: the exercise of the right to peaceful assembly other than 50 00:02:58,520 --> 00:03:02,320 Speaker 2: those that playing into the rest of the laws. So 51 00:03:02,400 --> 00:03:04,959 Speaker 2: you can't block traffic, for example, because then it's about 52 00:03:05,000 --> 00:03:07,359 Speaker 2: public safety and some of those laws, and that's where 53 00:03:07,400 --> 00:03:11,240 Speaker 2: we see tension here in Australia. National security comes into it, 54 00:03:11,360 --> 00:03:14,520 Speaker 2: public order, public health, so that's where we talked about 55 00:03:14,639 --> 00:03:19,560 Speaker 2: the COVID protests a lot. But overarchingly, there should be 56 00:03:19,600 --> 00:03:23,720 Speaker 2: efforts to allow for peaceful assembly. Another part of the 57 00:03:23,720 --> 00:03:28,400 Speaker 2: document says that governments must restrict any quote, advocacy of national, racial, 58 00:03:28,560 --> 00:03:33,440 Speaker 2: or religious hatred that constitutes incitement to discrimination, hostility, or 59 00:03:33,520 --> 00:03:37,040 Speaker 2: violence through protest. So even as far back as the 60 00:03:37,040 --> 00:03:41,680 Speaker 2: middle of the twentieth century when these documents were tabled internationally, 61 00:03:41,920 --> 00:03:45,960 Speaker 2: there was this tension recognized of what are the conditions 62 00:03:46,000 --> 00:03:48,520 Speaker 2: that allow for a peaceful protest anywhere? Around the world. 63 00:03:48,800 --> 00:03:51,720 Speaker 2: And what then is a defensible way for governments to 64 00:03:51,760 --> 00:03:54,040 Speaker 2: say it's not on. And this is coming to the 65 00:03:54,080 --> 00:03:56,040 Speaker 2: forefront of the news a lot in the last couple 66 00:03:56,080 --> 00:04:00,120 Speaker 2: of days because there has been a big rejection of 67 00:04:00,160 --> 00:04:03,640 Speaker 2: a protest in Sydney. So earlier this week New South 68 00:04:03,680 --> 00:04:06,960 Speaker 2: Wales police made a legal bid to stop a planned 69 00:04:07,000 --> 00:04:10,600 Speaker 2: protest at the Sydney Opera House from taking place this weekend. 70 00:04:11,160 --> 00:04:14,000 Speaker 2: They cited public safety concerns and so if you think 71 00:04:14,040 --> 00:04:16,800 Speaker 2: back to those key international documents, that is one of 72 00:04:16,839 --> 00:04:20,240 Speaker 2: the ways that in international law, law enforcement can step 73 00:04:20,240 --> 00:04:22,479 Speaker 2: in and say it's not on. And on top of 74 00:04:22,520 --> 00:04:24,760 Speaker 2: that we can then look at state law and in 75 00:04:24,800 --> 00:04:26,679 Speaker 2: New South Wales, if you want to hold a rally 76 00:04:26,760 --> 00:04:29,520 Speaker 2: or a protest, you need to tell police about your plans. 77 00:04:29,960 --> 00:04:32,400 Speaker 2: You're meant to tell them about the expected crowd size, 78 00:04:32,440 --> 00:04:35,640 Speaker 2: the planned route. The protest then either goes ahead or 79 00:04:35,720 --> 00:04:39,240 Speaker 2: police file a court application to block it. So the 80 00:04:39,279 --> 00:04:42,719 Speaker 2: Palestine Action Group filed a notice with police. They said 81 00:04:42,760 --> 00:04:45,159 Speaker 2: they wanted to hold a protest to quote oppose the 82 00:04:45,200 --> 00:04:48,159 Speaker 2: war on Gaza and call on the federal government to 83 00:04:48,400 --> 00:04:52,159 Speaker 2: quote enforce sanctions on Israel with a demonstration at the 84 00:04:52,200 --> 00:04:56,360 Speaker 2: Opera House as part of their application. Interestingly, they made 85 00:04:56,440 --> 00:05:00,680 Speaker 2: the point that the banned Crowded House had performed at 86 00:05:00,680 --> 00:05:03,080 Speaker 2: the Opera House Forecourt to a crowd of one hundred 87 00:05:03,120 --> 00:05:06,359 Speaker 2: and fifty thousand back in nineteen ninety six, and that 88 00:05:06,440 --> 00:05:07,960 Speaker 2: was a way for them to kind of show that 89 00:05:08,000 --> 00:05:11,400 Speaker 2: from a public safety and a capacity perspective, the site 90 00:05:11,440 --> 00:05:15,400 Speaker 2: itself could handle the amount of people that were expected 91 00:05:15,440 --> 00:05:15,960 Speaker 2: to attend. 92 00:05:16,080 --> 00:05:18,960 Speaker 1: Yeah, they didn't necessarily expect one hundred and fifty thousand, 93 00:05:19,000 --> 00:05:22,000 Speaker 1: but they have held a protest before that got many 94 00:05:22,040 --> 00:05:25,839 Speaker 1: more people than they expected, So I imagine they were using 95 00:05:25,880 --> 00:05:29,279 Speaker 1: that to say, like, this exact space has hosted this 96 00:05:29,400 --> 00:05:30,320 Speaker 1: many people before. 97 00:05:30,440 --> 00:05:33,440 Speaker 2: It was purely an argument being made about the logistics 98 00:05:33,880 --> 00:05:37,120 Speaker 2: of hosting something there, something as simple even as you know, 99 00:05:37,160 --> 00:05:40,240 Speaker 2: when a protest of that size ends, how do people 100 00:05:40,279 --> 00:05:42,800 Speaker 2: get out safely? And is there enough public transport in 101 00:05:42,839 --> 00:05:46,040 Speaker 2: the area to ensure that people can exit the area 102 00:05:46,400 --> 00:05:49,720 Speaker 2: as they did enter. The organizer's barrister her name is 103 00:05:49,720 --> 00:05:53,039 Speaker 2: Felicity Graham. She also said that previous public events with 104 00:05:53,160 --> 00:05:55,720 Speaker 2: large crowds at the Opera House, such as the light 105 00:05:55,760 --> 00:05:59,240 Speaker 2: show Vivid that's held annually, that all was capably managed. 106 00:06:00,200 --> 00:06:03,719 Speaker 2: Didn't agree. The police said it had quote disaster ridden 107 00:06:03,800 --> 00:06:08,240 Speaker 2: all over it, raising concerns around crowd crushes, which they 108 00:06:08,440 --> 00:06:11,040 Speaker 2: also made the point was a concern at Vivid. So 109 00:06:11,120 --> 00:06:14,040 Speaker 2: both of them were using this example of prior events. 110 00:06:13,680 --> 00:06:16,560 Speaker 1: There and certainly having been down on the Opera House 111 00:06:16,560 --> 00:06:19,839 Speaker 1: four Court during VIVID, I can kind of see both sites. Yes, 112 00:06:19,880 --> 00:06:21,960 Speaker 1: there are a lot of people there, but also yes, 113 00:06:22,040 --> 00:06:24,480 Speaker 1: there are moments where it can feel like, oh my god, 114 00:06:24,480 --> 00:06:25,560 Speaker 1: there's too many people here. 115 00:06:25,720 --> 00:06:28,560 Speaker 2: Yeah, And to even make things more complicated, I mean 116 00:06:28,680 --> 00:06:31,479 Speaker 2: we've talked about the layer of international law, talked about 117 00:06:31,520 --> 00:06:34,080 Speaker 2: the layer of state law, there's also a layer of 118 00:06:34,760 --> 00:06:37,360 Speaker 2: the actual by laws of the site itself from the 119 00:06:37,400 --> 00:06:40,320 Speaker 2: Opera House Trust, and that says that you can't hold 120 00:06:40,360 --> 00:06:45,560 Speaker 2: demonstrations there. So it's like this layered cake of bureaucracy 121 00:06:45,640 --> 00:06:49,159 Speaker 2: that at any point you can really get caught. And 122 00:06:49,200 --> 00:06:51,799 Speaker 2: so the police said that if a demonstration was held 123 00:06:51,839 --> 00:06:54,719 Speaker 2: on the fore Court, protests would be participating in an 124 00:06:54,800 --> 00:06:59,480 Speaker 2: unauthorized assembly, so they wouldn't have the legal protections that 125 00:07:00,400 --> 00:07:04,039 Speaker 2: could access when they're at an authorized protest, And that 126 00:07:04,120 --> 00:07:07,160 Speaker 2: basically means that protesters could be open to being arrested 127 00:07:07,200 --> 00:07:11,680 Speaker 2: and sued for taking part in an unauthorized demonstration. So 128 00:07:11,720 --> 00:07:13,400 Speaker 2: all of this was put to the court. The court 129 00:07:13,520 --> 00:07:17,400 Speaker 2: ruled in favor of New South Wales police. They mentioned 130 00:07:17,480 --> 00:07:20,600 Speaker 2: in their judgment the concerns around crowd crushes and getting 131 00:07:20,640 --> 00:07:24,160 Speaker 2: in and out of the site safely, and they told 132 00:07:24,320 --> 00:07:27,720 Speaker 2: protest organizers they would have to organize the protest elsewhere. 133 00:07:28,040 --> 00:07:30,800 Speaker 2: That's an important point in the judgment is that this 134 00:07:30,960 --> 00:07:34,920 Speaker 2: was not a matter of talking about the content of 135 00:07:35,280 --> 00:07:37,800 Speaker 2: the protest itself, but the location. 136 00:07:38,200 --> 00:07:41,240 Speaker 1: Yeah. Yeah, yeah, so then it is going ahead elsewhere. 137 00:07:41,640 --> 00:07:46,960 Speaker 2: Yes, So it's exactly kind of the international legal framework 138 00:07:47,040 --> 00:07:49,960 Speaker 2: in motion of it's not about the right to protest. 139 00:07:50,040 --> 00:07:53,880 Speaker 2: This was a legal argument mounted around public safety. But 140 00:07:54,360 --> 00:07:57,000 Speaker 2: it kind of raises this really interesting point about which 141 00:07:57,000 --> 00:07:59,920 Speaker 2: playbook are we all reading from when it comes to 142 00:08:00,120 --> 00:08:01,000 Speaker 2: the right to protest. 143 00:08:01,360 --> 00:08:04,040 Speaker 1: Yeah, So, as you said, there's this kind of layer 144 00:08:04,080 --> 00:08:06,920 Speaker 1: cake where we've got these kind of international obligations which 145 00:08:07,280 --> 00:08:10,600 Speaker 1: I imagine would be pretty hard to enforce. Then you've 146 00:08:10,640 --> 00:08:14,160 Speaker 1: got at the national level not a huge amount. Then 147 00:08:14,400 --> 00:08:16,760 Speaker 1: at the state level we've got this requirement of we 148 00:08:16,800 --> 00:08:18,560 Speaker 1: need to let police know that we're going to do 149 00:08:18,680 --> 00:08:21,000 Speaker 1: this and if they think there's going to be a risk, 150 00:08:21,080 --> 00:08:24,600 Speaker 1: then they file a court motion. And that we even 151 00:08:24,640 --> 00:08:27,800 Speaker 1: get down to the granular level of the Sydney Opera 152 00:08:27,800 --> 00:08:32,280 Speaker 1: House is kind of an important site in the city. 153 00:08:32,120 --> 00:08:34,439 Speaker 2: Run by a trust, a body that has its own 154 00:08:34,520 --> 00:08:35,600 Speaker 2: kind and it has its. 155 00:08:35,440 --> 00:08:37,760 Speaker 1: Own laws, which again it's like a question of how 156 00:08:37,800 --> 00:08:41,360 Speaker 1: do those get enforced? And then underneath all of that 157 00:08:41,400 --> 00:08:45,080 Speaker 1: we have the people who are trying to hold a demonstration. 158 00:08:45,400 --> 00:08:46,920 Speaker 2: And then you put on top of all of that 159 00:08:47,320 --> 00:08:51,800 Speaker 2: the expectation that police, regardless of where they are in Australia, 160 00:08:51,840 --> 00:08:55,560 Speaker 2: are kind of making judgments in live time in these environments. 161 00:08:55,559 --> 00:08:58,200 Speaker 2: They're making judgments about that point that you and I 162 00:08:58,280 --> 00:09:01,760 Speaker 2: chatted about before, on the content of the protest and 163 00:09:02,080 --> 00:09:05,000 Speaker 2: what the key message of that protest is. It's a 164 00:09:05,040 --> 00:09:06,280 Speaker 2: really challenging role. 165 00:09:06,600 --> 00:09:08,920 Speaker 1: Well, so that's sort of not really what police have 166 00:09:08,960 --> 00:09:12,800 Speaker 1: done here though they've just been thinking about the safety requirements. 167 00:09:13,120 --> 00:09:17,280 Speaker 1: Police are the kind of physical manifestation of the law 168 00:09:17,559 --> 00:09:20,560 Speaker 1: in a sense, what do what kind of We haven't 169 00:09:20,559 --> 00:09:23,079 Speaker 1: really talked about what New South Wales protest laws are like, 170 00:09:23,200 --> 00:09:26,080 Speaker 1: or what the laws that individual states can make. What 171 00:09:26,120 --> 00:09:27,720 Speaker 1: can you tell me about that, Well. 172 00:09:27,640 --> 00:09:30,600 Speaker 2: They can vary quite a bit. So for example, in 173 00:09:30,640 --> 00:09:35,280 Speaker 2: twenty twenty three, South Australia increased maximum finds. They were 174 00:09:35,480 --> 00:09:37,760 Speaker 2: seven hundred and fifty dollars. They were increased to fifty 175 00:09:37,840 --> 00:09:43,040 Speaker 2: thousand dollars along with potential jail time for intentionally engaging 176 00:09:43,080 --> 00:09:46,120 Speaker 2: in quote conduct that obstructs the free passage of a 177 00:09:46,160 --> 00:09:46,960 Speaker 2: public place. 178 00:09:47,120 --> 00:09:47,440 Speaker 1: Okay. 179 00:09:47,600 --> 00:09:49,880 Speaker 2: Now, those laws were seen as a direct response to 180 00:09:50,000 --> 00:09:55,320 Speaker 2: climate activists like extinction rebellion disrupting city movements, and we 181 00:09:55,360 --> 00:09:58,880 Speaker 2: saw moments around the country I think pretty much in 182 00:09:58,920 --> 00:10:03,680 Speaker 2: every state and territory of climate activists putting themselves in 183 00:10:03,679 --> 00:10:06,680 Speaker 2: the way of a busy highway or a particular business 184 00:10:07,200 --> 00:10:09,560 Speaker 2: and those were honed in on by governments as a 185 00:10:09,600 --> 00:10:12,480 Speaker 2: real kind of disruption to the flow of the city, which, 186 00:10:12,520 --> 00:10:15,560 Speaker 2: if you want to get philosophical, is arguably the point 187 00:10:15,600 --> 00:10:16,200 Speaker 2: of protest. 188 00:10:16,360 --> 00:10:17,520 Speaker 1: I think that's what they would argue. 189 00:10:17,640 --> 00:10:20,400 Speaker 2: Yeah, And so we saw responses from a lot of 190 00:10:20,520 --> 00:10:23,400 Speaker 2: states and territories. We had that South Australian response, and 191 00:10:23,400 --> 00:10:26,520 Speaker 2: then more recently in New South Wales the government passed 192 00:10:26,600 --> 00:10:29,720 Speaker 2: legislation that granted New South Wales police greater powers to 193 00:10:29,840 --> 00:10:34,720 Speaker 2: disband protests and demonstrations near or within places of worship. 194 00:10:35,160 --> 00:10:38,080 Speaker 2: So there's another layer then to our layer cake near 195 00:10:38,200 --> 00:10:41,640 Speaker 2: or within was a term that is being tested in 196 00:10:41,679 --> 00:10:44,320 Speaker 2: court because what does that actually mean is that the 197 00:10:44,360 --> 00:10:49,280 Speaker 2: particular meter distance there. And that legislation followed a series 198 00:10:49,480 --> 00:10:51,640 Speaker 2: of what New South Wales Premier Chris Mins at the 199 00:10:51,679 --> 00:10:55,960 Speaker 2: time called quote, acts of anti semitism and intimidation. So 200 00:10:56,000 --> 00:10:58,240 Speaker 2: there are many examples. Those are just a few that 201 00:10:58,280 --> 00:11:01,520 Speaker 2: come to mind. Yeah, I've laid out a pretty confusing 202 00:11:01,840 --> 00:11:05,079 Speaker 2: kind of patchwork of law here, and the reality is 203 00:11:05,080 --> 00:11:06,439 Speaker 2: is that's kind of what's happening. 204 00:11:06,559 --> 00:11:09,120 Speaker 1: Yeah, I mean we've given you a factual summation of 205 00:11:09,120 --> 00:11:11,119 Speaker 1: a very confusing situation. 206 00:11:11,520 --> 00:11:13,880 Speaker 2: Yeah. And I think at the heart of all of 207 00:11:13,920 --> 00:11:17,679 Speaker 2: this is that one point that you mentioned very briefly 208 00:11:17,760 --> 00:11:21,800 Speaker 2: about about how hard it is to enforce international law. Yeah, 209 00:11:21,840 --> 00:11:27,479 Speaker 2: and these overarching big ideas, human rights doctrines, and the 210 00:11:27,600 --> 00:11:30,960 Speaker 2: key documents, those seven key documents, they're very hard on 211 00:11:31,040 --> 00:11:35,040 Speaker 2: the grounds to enforce. Yeah, they require police intervention to 212 00:11:35,200 --> 00:11:38,320 Speaker 2: enforce them, because that's how our country works. And between 213 00:11:38,679 --> 00:11:41,760 Speaker 2: point A of international law and point B of a 214 00:11:41,840 --> 00:11:44,960 Speaker 2: protest on the weekend, there's a whole lot of complexity. Yeah. 215 00:11:45,000 --> 00:11:48,560 Speaker 1: Absolutely, Thanks so much for explaining that for us today, Sam, 216 00:11:48,640 --> 00:11:51,240 Speaker 1: and thank you so much for joining us. We'll be 217 00:11:51,320 --> 00:11:53,840 Speaker 1: back this afternoon with the headlines. Until then, have a 218 00:11:53,840 --> 00:12:00,319 Speaker 1: great day. My name is Lily Maddon and I'm a 219 00:12:00,360 --> 00:12:05,040 Speaker 1: proud Arunda Bunjelung Calkatin woman from Gadighl Country. The Daily 220 00:12:05,160 --> 00:12:08,200 Speaker 1: oz acknowledges that this podcast is recorded on the lands 221 00:12:08,200 --> 00:12:11,439 Speaker 1: of the Gadighl people and pays respect to all Aboriginal 222 00:12:11,520 --> 00:12:14,680 Speaker 1: and Torrestrate island and nations. We pay our respects to 223 00:12:14,720 --> 00:12:17,640 Speaker 1: the first peoples of these countries, both past and present.