Speaker 1: Already and this is the Daily This is the Daily OS.
Speaker 2: Oh, now it makes sense. Good morning and welcome to
Speaker 2: the Daily OS. It is Friday, the tenth of October.
Speaker 2: I'm Sam Kazlowski.
Speaker 1: I'm Lucy Tassel.
Speaker 2: Across the country, protests are held every week. Sometimes it's
Speaker 2: to protest against government actions, and other times it's to
Speaker 2: bring attention to an overseas cause. A pro Palestine protest
Speaker 2: organized for this weekend in Sydney has been banned by
Speaker 2: a New South Wales court, which ruled the public safety
Speaker 2: risk is quote extreme. In light of this decision, we
Speaker 2: wanted to ask the question of if there is indeed
Speaker 2: a right to protest in Australia. Lucy and I are
Speaker 2: going to unpack that and the latest decision in today's podcast.
Speaker 1: Sam, let's start pretty high level. Well, the question that
Speaker 1: you mentioned up at the top, is there a right
Speaker 1: to protest in Australia.
Speaker 2: Well, people certainly say there is. And I think that's
Speaker 2: a good starting point. Is that we we're basing this
Speaker 2: discussion out of observing how we talk about the rights
Speaker 2: that we should have in a country like Australia and
Speaker 2: the way in which those who lead these protests or
Speaker 2: these protests attempts explain the legal basis for their plans.
Speaker 2: But in Australia there are certain rights that are explicitly
Speaker 2: protected in our constitution, but our constitution doesn't afford us
Speaker 2: these constitutional protections in the same way that the US
Speaker 2: speaks about their constitution. It's very clear. In the US
Speaker 2: the constitutional rights are quite prescriptive. There's a huge amount
Speaker 2: of case law that shows people exactly how they can
Speaker 2: be used and how they can't be used. But in
Speaker 2: an Australian context, there are only a few explicitly recognized
Speaker 2: rights in that document. So that's things like the right
Speaker 2: to vote, the right to a trial by jury, and
Speaker 2: the freedom to practice religion. But there's nothing about protesting specifically.
Speaker 1: Okay, so is there anything that governs our ability to
Speaker 1: protest in Australia.
Speaker 2: Well, if we go globally with it, that's where we
Speaker 2: can bring in the human rights treaties that Australia is
Speaker 2: a party two. And in international human rights law, there's
Speaker 2: kind of seven core documents that people look at as
Speaker 2: the Holy Seven, and we've signed and ratified those ones,
Speaker 2: and the right to freedom of assembly and association, and
Speaker 2: that's protesting is actually contained in two of those key documents,
Speaker 2: at least, the International Covenant on Civil and Political Rights
Speaker 2: or the ICCPR and the International Covenant on Economic, Social
Speaker 2: and Cultural Rights. And if we go a bit deeper
Speaker 2: into what those documents say is your rights in this space,
Speaker 2: the ICPR says that no restrictions may be placed on
Speaker 2: the exercise of the right to peaceful assembly other than
Speaker 2: those that playing into the rest of the laws. So
Speaker 2: you can't block traffic, for example, because then it's about
Speaker 2: public safety and some of those laws, and that's where
Speaker 2: we see tension here in Australia. National security comes into it,
Speaker 2: public order, public health, so that's where we talked about
Speaker 2: the COVID protests a lot. But overarchingly, there should be
Speaker 2: efforts to allow for peaceful assembly. Another part of the
Speaker 2: document says that governments must restrict any quote, advocacy of national, racial,
Speaker 2: or religious hatred that constitutes incitement to discrimination, hostility, or
Speaker 2: violence through protest. So even as far back as the
Speaker 2: middle of the twentieth century when these documents were tabled internationally,
Speaker 2: there was this tension recognized of what are the conditions
Speaker 2: that allow for a peaceful protest anywhere? Around the world.
Speaker 2: And what then is a defensible way for governments to
Speaker 2: say it's not on. And this is coming to the
Speaker 2: forefront of the news a lot in the last couple
Speaker 2: of days because there has been a big rejection of
Speaker 2: a protest in Sydney. So earlier this week New South
Speaker 2: Wales police made a legal bid to stop a planned
Speaker 2: protest at the Sydney Opera House from taking place this weekend.
Speaker 2: They cited public safety concerns and so if you think
Speaker 2: back to those key international documents, that is one of
Speaker 2: the ways that in international law, law enforcement can step
Speaker 2: in and say it's not on. And on top of
Speaker 2: that we can then look at state law and in
Speaker 2: New South Wales, if you want to hold a rally
Speaker 2: or a protest, you need to tell police about your plans.
Speaker 2: You're meant to tell them about the expected crowd size,
Speaker 2: the planned route. The protest then either goes ahead or
Speaker 2: police file a court application to block it. So the
Speaker 2: Palestine Action Group filed a notice with police. They said
Speaker 2: they wanted to hold a protest to quote oppose the
Speaker 2: war on Gaza and call on the federal government to
Speaker 2: quote enforce sanctions on Israel with a demonstration at the
Speaker 2: Opera House as part of their application. Interestingly, they made
Speaker 2: the point that the banned Crowded House had performed at
Speaker 2: the Opera House Forecourt to a crowd of one hundred
Speaker 2: and fifty thousand back in nineteen ninety six, and that
Speaker 2: was a way for them to kind of show that
Speaker 2: from a public safety and a capacity perspective, the site
Speaker 2: itself could handle the amount of people that were expected
Speaker 2: to attend.
Speaker 1: Yeah, they didn't necessarily expect one hundred and fifty thousand,
Speaker 1: but they have held a protest before that got many
Speaker 1: more people than they expected, So I imagine they were using
Speaker 1: that to say, like, this exact space has hosted this
Speaker 1: many people before.
Speaker 2: It was purely an argument being made about the logistics
Speaker 2: of hosting something there, something as simple even as you know,
Speaker 2: when a protest of that size ends, how do people
Speaker 2: get out safely? And is there enough public transport in
Speaker 2: the area to ensure that people can exit the area
Speaker 2: as they did enter. The organizer's barrister her name is
Speaker 2: Felicity Graham. She also said that previous public events with
Speaker 2: large crowds at the Opera House, such as the light
Speaker 2: show Vivid that's held annually, that all was capably managed.
Speaker 2: Didn't agree. The police said it had quote disaster ridden
Speaker 2: all over it, raising concerns around crowd crushes, which they
Speaker 2: also made the point was a concern at Vivid. So
Speaker 2: both of them were using this example of prior events.
Speaker 1: There and certainly having been down on the Opera House
Speaker 1: four Court during VIVID, I can kind of see both sites. Yes,
Speaker 1: there are a lot of people there, but also yes,
Speaker 1: there are moments where it can feel like, oh my god,
Speaker 1: there's too many people here.
Speaker 2: Yeah, And to even make things more complicated, I mean
Speaker 2: we've talked about the layer of international law, talked about
Speaker 2: the layer of state law, there's also a layer of
Speaker 2: the actual by laws of the site itself from the
Speaker 2: Opera House Trust, and that says that you can't hold
Speaker 2: demonstrations there. So it's like this layered cake of bureaucracy
Speaker 2: that at any point you can really get caught. And
Speaker 2: so the police said that if a demonstration was held
Speaker 2: on the fore Court, protests would be participating in an
Speaker 2: unauthorized assembly, so they wouldn't have the legal protections that
Speaker 2: could access when they're at an authorized protest, And that
Speaker 2: basically means that protesters could be open to being arrested
Speaker 2: and sued for taking part in an unauthorized demonstration. So
Speaker 2: all of this was put to the court. The court
Speaker 2: ruled in favor of New South Wales police. They mentioned
Speaker 2: in their judgment the concerns around crowd crushes and getting
Speaker 2: in and out of the site safely, and they told
Speaker 2: protest organizers they would have to organize the protest elsewhere.
Speaker 2: That's an important point in the judgment is that this
Speaker 2: was not a matter of talking about the content of
Speaker 2: the protest itself, but the location.
Speaker 1: Yeah. Yeah, yeah, so then it is going ahead elsewhere.
Speaker 2: Yes, So it's exactly kind of the international legal framework
Speaker 2: in motion of it's not about the right to protest.
Speaker 2: This was a legal argument mounted around public safety. But
Speaker 2: it kind of raises this really interesting point about which
Speaker 2: playbook are we all reading from when it comes to
Speaker 2: the right to protest.
Speaker 1: Yeah, So, as you said, there's this kind of layer
Speaker 1: cake where we've got these kind of international obligations which
Speaker 1: I imagine would be pretty hard to enforce. Then you've
Speaker 1: got at the national level not a huge amount. Then
Speaker 1: at the state level we've got this requirement of we
Speaker 1: need to let police know that we're going to do
Speaker 1: this and if they think there's going to be a risk,
Speaker 1: then they file a court motion. And that we even
Speaker 1: get down to the granular level of the Sydney Opera
Speaker 1: House is kind of an important site in the city.
Speaker 2: Run by a trust, a body that has its own
Speaker 2: kind and it has its.
Speaker 1: Own laws, which again it's like a question of how
Speaker 1: do those get enforced? And then underneath all of that
Speaker 1: we have the people who are trying to hold a demonstration.
Speaker 2: And then you put on top of all of that
Speaker 2: the expectation that police, regardless of where they are in Australia,
Speaker 2: are kind of making judgments in live time in these environments.
Speaker 2: They're making judgments about that point that you and I
Speaker 2: chatted about before, on the content of the protest and
Speaker 2: what the key message of that protest is. It's a
Speaker 2: really challenging role.
Speaker 1: Well, so that's sort of not really what police have
Speaker 1: done here though they've just been thinking about the safety requirements.
Speaker 1: Police are the kind of physical manifestation of the law
Speaker 1: in a sense, what do what kind of We haven't
Speaker 1: really talked about what New South Wales protest laws are like,
Speaker 1: or what the laws that individual states can make. What
Speaker 1: can you tell me about that, Well.
Speaker 2: They can vary quite a bit. So for example, in
Speaker 2: twenty twenty three, South Australia increased maximum finds. They were
Speaker 2: seven hundred and fifty dollars. They were increased to fifty
Speaker 2: thousand dollars along with potential jail time for intentionally engaging
Speaker 2: in quote conduct that obstructs the free passage of a
Speaker 2: public place.
Speaker 1: Okay.
Speaker 2: Now, those laws were seen as a direct response to
Speaker 2: climate activists like extinction rebellion disrupting city movements, and we
Speaker 2: saw moments around the country I think pretty much in
Speaker 2: every state and territory of climate activists putting themselves in
Speaker 2: the way of a busy highway or a particular business
Speaker 2: and those were honed in on by governments as a
Speaker 2: real kind of disruption to the flow of the city, which,
Speaker 2: if you want to get philosophical, is arguably the point
Speaker 2: of protest.
Speaker 1: I think that's what they would argue.
Speaker 2: Yeah, And so we saw responses from a lot of
Speaker 2: states and territories. We had that South Australian response, and
Speaker 2: then more recently in New South Wales the government passed
Speaker 2: legislation that granted New South Wales police greater powers to
Speaker 2: disband protests and demonstrations near or within places of worship.
Speaker 2: So there's another layer then to our layer cake near
Speaker 2: or within was a term that is being tested in
Speaker 2: court because what does that actually mean is that the
Speaker 2: particular meter distance there. And that legislation followed a series
Speaker 2: of what New South Wales Premier Chris Mins at the
Speaker 2: time called quote, acts of anti semitism and intimidation. So
Speaker 2: there are many examples. Those are just a few that
Speaker 2: come to mind. Yeah, I've laid out a pretty confusing
Speaker 2: kind of patchwork of law here, and the reality is
Speaker 2: is that's kind of what's happening.
Speaker 1: Yeah, I mean we've given you a factual summation of
Speaker 1: a very confusing situation.
Speaker 2: Yeah. And I think at the heart of all of
Speaker 2: this is that one point that you mentioned very briefly
Speaker 2: about about how hard it is to enforce international law. Yeah,
Speaker 2: and these overarching big ideas, human rights doctrines, and the
Speaker 2: key documents, those seven key documents, they're very hard on
Speaker 2: the grounds to enforce. Yeah, they require police intervention to
Speaker 2: enforce them, because that's how our country works. And between
Speaker 2: point A of international law and point B of a
Speaker 2: protest on the weekend, there's a whole lot of complexity. Yeah.
Speaker 1: Absolutely, Thanks so much for explaining that for us today, Sam,
Speaker 1: and thank you so much for joining us. We'll be
Speaker 1: back this afternoon with the headlines. Until then, have a
Speaker 1: great day. My name is Lily Maddon and I'm a
Speaker 1: proud Arunda Bunjelung Calkatin woman from Gadighl Country. The Daily
Speaker 1: oz acknowledges that this podcast is recorded on the lands
Speaker 1: of the Gadighl people and pays respect to all Aboriginal
Speaker 1: and Torrestrate island and nations. We pay our respects to
Speaker 1: the first peoples of these countries, both past and present.