WEBVTT - Do we have a right to protest?

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<v Speaker 1>Already and this is the Daily This is the Daily OS.

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<v Speaker 2>Oh, now it makes sense. Good morning and welcome to

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<v Speaker 2>the Daily OS. It is Friday, the tenth of October.

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<v Speaker 2>I'm Sam Kazlowski.

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<v Speaker 1>I'm Lucy Tassel.

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<v Speaker 2>Across the country, protests are held every week. Sometimes it's

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<v Speaker 2>to protest against government actions, and other times it's to

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<v Speaker 2>bring attention to an overseas cause. A pro Palestine protest

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<v Speaker 2>organized for this weekend in Sydney has been banned by

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<v Speaker 2>a New South Wales court, which ruled the public safety

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<v Speaker 2>risk is quote extreme. In light of this decision, we

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<v Speaker 2>wanted to ask the question of if there is indeed

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<v Speaker 2>a right to protest in Australia. Lucy and I are

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<v Speaker 2>going to unpack that and the latest decision in today's podcast.

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<v Speaker 1>Sam, let's start pretty high level. Well, the question that

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<v Speaker 1>you mentioned up at the top, is there a right

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<v Speaker 1>to protest in Australia.

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<v Speaker 2>Well, people certainly say there is. And I think that's

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<v Speaker 2>a good starting point. Is that we we're basing this

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<v Speaker 2>discussion out of observing how we talk about the rights

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<v Speaker 2>that we should have in a country like Australia and

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<v Speaker 2>the way in which those who lead these protests or

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<v Speaker 2>these protests attempts explain the legal basis for their plans.

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<v Speaker 2>But in Australia there are certain rights that are explicitly

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<v Speaker 2>protected in our constitution, but our constitution doesn't afford us

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<v Speaker 2>these constitutional protections in the same way that the US

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<v Speaker 2>speaks about their constitution. It's very clear. In the US

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<v Speaker 2>the constitutional rights are quite prescriptive. There's a huge amount

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<v Speaker 2>of case law that shows people exactly how they can

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<v Speaker 2>be used and how they can't be used. But in

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<v Speaker 2>an Australian context, there are only a few explicitly recognized

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<v Speaker 2>rights in that document. So that's things like the right

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<v Speaker 2>to vote, the right to a trial by jury, and

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<v Speaker 2>the freedom to practice religion. But there's nothing about protesting specifically.

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<v Speaker 1>Okay, so is there anything that governs our ability to

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<v Speaker 1>protest in Australia.

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<v Speaker 2>Well, if we go globally with it, that's where we

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<v Speaker 2>can bring in the human rights treaties that Australia is

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<v Speaker 2>a party two. And in international human rights law, there's

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<v Speaker 2>kind of seven core documents that people look at as

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<v Speaker 2>the Holy Seven, and we've signed and ratified those ones,

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<v Speaker 2>and the right to freedom of assembly and association, and

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<v Speaker 2>that's protesting is actually contained in two of those key documents,

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<v Speaker 2>at least, the International Covenant on Civil and Political Rights

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<v Speaker 2>or the ICCPR and the International Covenant on Economic, Social

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<v Speaker 2>and Cultural Rights. And if we go a bit deeper

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<v Speaker 2>into what those documents say is your rights in this space,

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<v Speaker 2>the ICPR says that no restrictions may be placed on

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<v Speaker 2>the exercise of the right to peaceful assembly other than

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<v Speaker 2>those that playing into the rest of the laws. So

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<v Speaker 2>you can't block traffic, for example, because then it's about

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<v Speaker 2>public safety and some of those laws, and that's where

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<v Speaker 2>we see tension here in Australia. National security comes into it,

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<v Speaker 2>public order, public health, so that's where we talked about

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<v Speaker 2>the COVID protests a lot. But overarchingly, there should be

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<v Speaker 2>efforts to allow for peaceful assembly. Another part of the

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<v Speaker 2>document says that governments must restrict any quote, advocacy of national, racial,

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<v Speaker 2>or religious hatred that constitutes incitement to discrimination, hostility, or

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<v Speaker 2>violence through protest. So even as far back as the

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<v Speaker 2>middle of the twentieth century when these documents were tabled internationally,

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<v Speaker 2>there was this tension recognized of what are the conditions

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<v Speaker 2>that allow for a peaceful protest anywhere? Around the world.

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<v Speaker 2>And what then is a defensible way for governments to

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<v Speaker 2>say it's not on. And this is coming to the

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<v Speaker 2>forefront of the news a lot in the last couple

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<v Speaker 2>of days because there has been a big rejection of

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<v Speaker 2>a protest in Sydney. So earlier this week New South

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<v Speaker 2>Wales police made a legal bid to stop a planned

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<v Speaker 2>protest at the Sydney Opera House from taking place this weekend.

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<v Speaker 2>They cited public safety concerns and so if you think

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<v Speaker 2>back to those key international documents, that is one of

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<v Speaker 2>the ways that in international law, law enforcement can step

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<v Speaker 2>in and say it's not on. And on top of

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<v Speaker 2>that we can then look at state law and in

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<v Speaker 2>New South Wales, if you want to hold a rally

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<v Speaker 2>or a protest, you need to tell police about your plans.

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<v Speaker 2>You're meant to tell them about the expected crowd size,

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<v Speaker 2>the planned route. The protest then either goes ahead or

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<v Speaker 2>police file a court application to block it. So the

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<v Speaker 2>Palestine Action Group filed a notice with police. They said

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<v Speaker 2>they wanted to hold a protest to quote oppose the

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<v Speaker 2>war on Gaza and call on the federal government to

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<v Speaker 2>quote enforce sanctions on Israel with a demonstration at the

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<v Speaker 2>Opera House as part of their application. Interestingly, they made

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<v Speaker 2>the point that the banned Crowded House had performed at

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<v Speaker 2>the Opera House Forecourt to a crowd of one hundred

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<v Speaker 2>and fifty thousand back in nineteen ninety six, and that

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<v Speaker 2>was a way for them to kind of show that

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<v Speaker 2>from a public safety and a capacity perspective, the site

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<v Speaker 2>itself could handle the amount of people that were expected

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<v Speaker 2>to attend.

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<v Speaker 1>Yeah, they didn't necessarily expect one hundred and fifty thousand,

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<v Speaker 1>but they have held a protest before that got many

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<v Speaker 1>more people than they expected, So I imagine they were using

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<v Speaker 1>that to say, like, this exact space has hosted this

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<v Speaker 1>many people before.

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<v Speaker 2>It was purely an argument being made about the logistics

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<v Speaker 2>of hosting something there, something as simple even as you know,

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<v Speaker 2>when a protest of that size ends, how do people

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<v Speaker 2>get out safely? And is there enough public transport in

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<v Speaker 2>the area to ensure that people can exit the area

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<v Speaker 2>as they did enter. The organizer's barrister her name is

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<v Speaker 2>Felicity Graham. She also said that previous public events with

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<v Speaker 2>large crowds at the Opera House, such as the light

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<v Speaker 2>show Vivid that's held annually, that all was capably managed.

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<v Speaker 2>Didn't agree. The police said it had quote disaster ridden

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<v Speaker 2>all over it, raising concerns around crowd crushes, which they

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<v Speaker 2>also made the point was a concern at Vivid. So

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<v Speaker 2>both of them were using this example of prior events.

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<v Speaker 1>There and certainly having been down on the Opera House

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<v Speaker 1>four Court during VIVID, I can kind of see both sites. Yes,

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<v Speaker 1>there are a lot of people there, but also yes,

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<v Speaker 1>there are moments where it can feel like, oh my god,

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<v Speaker 1>there's too many people here.

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<v Speaker 2>Yeah, And to even make things more complicated, I mean

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<v Speaker 2>we've talked about the layer of international law, talked about

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<v Speaker 2>the layer of state law, there's also a layer of

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<v Speaker 2>the actual by laws of the site itself from the

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<v Speaker 2>Opera House Trust, and that says that you can't hold

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<v Speaker 2>demonstrations there. So it's like this layered cake of bureaucracy

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<v Speaker 2>that at any point you can really get caught. And

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<v Speaker 2>so the police said that if a demonstration was held

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<v Speaker 2>on the fore Court, protests would be participating in an

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<v Speaker 2>unauthorized assembly, so they wouldn't have the legal protections that

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<v Speaker 2>could access when they're at an authorized protest, And that

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<v Speaker 2>basically means that protesters could be open to being arrested

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<v Speaker 2>and sued for taking part in an unauthorized demonstration. So

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<v Speaker 2>all of this was put to the court. The court

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<v Speaker 2>ruled in favor of New South Wales police. They mentioned

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<v Speaker 2>in their judgment the concerns around crowd crushes and getting

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<v Speaker 2>in and out of the site safely, and they told

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<v Speaker 2>protest organizers they would have to organize the protest elsewhere.

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<v Speaker 2>That's an important point in the judgment is that this

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<v Speaker 2>was not a matter of talking about the content of

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<v Speaker 2>the protest itself, but the location.

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<v Speaker 1>Yeah. Yeah, yeah, so then it is going ahead elsewhere.

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<v Speaker 2>Yes, So it's exactly kind of the international legal framework

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<v Speaker 2>in motion of it's not about the right to protest.

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<v Speaker 2>This was a legal argument mounted around public safety. But

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<v Speaker 2>it kind of raises this really interesting point about which

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<v Speaker 2>playbook are we all reading from when it comes to

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<v Speaker 2>the right to protest.

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<v Speaker 1>Yeah, So, as you said, there's this kind of layer

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<v Speaker 1>cake where we've got these kind of international obligations which

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<v Speaker 1>I imagine would be pretty hard to enforce. Then you've

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<v Speaker 1>got at the national level not a huge amount. Then

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<v Speaker 1>at the state level we've got this requirement of we

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<v Speaker 1>need to let police know that we're going to do

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<v Speaker 1>this and if they think there's going to be a risk,

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<v Speaker 1>then they file a court motion. And that we even

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<v Speaker 1>get down to the granular level of the Sydney Opera

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<v Speaker 1>House is kind of an important site in the city.

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<v Speaker 2>Run by a trust, a body that has its own

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<v Speaker 2>kind and it has its.

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<v Speaker 1>Own laws, which again it's like a question of how

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<v Speaker 1>do those get enforced? And then underneath all of that

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<v Speaker 1>we have the people who are trying to hold a demonstration.

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<v Speaker 2>And then you put on top of all of that

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<v Speaker 2>the expectation that police, regardless of where they are in Australia,

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<v Speaker 2>are kind of making judgments in live time in these environments.

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<v Speaker 2>They're making judgments about that point that you and I

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<v Speaker 2>chatted about before, on the content of the protest and

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<v Speaker 2>what the key message of that protest is. It's a

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<v Speaker 2>really challenging role.

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<v Speaker 1>Well, so that's sort of not really what police have

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<v Speaker 1>done here though they've just been thinking about the safety requirements.

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<v Speaker 1>Police are the kind of physical manifestation of the law

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<v Speaker 1>in a sense, what do what kind of We haven't

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<v Speaker 1>really talked about what New South Wales protest laws are like,

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<v Speaker 1>or what the laws that individual states can make. What

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<v Speaker 1>can you tell me about that, Well.

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<v Speaker 2>They can vary quite a bit. So for example, in

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<v Speaker 2>twenty twenty three, South Australia increased maximum finds. They were

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<v Speaker 2>seven hundred and fifty dollars. They were increased to fifty

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<v Speaker 2>thousand dollars along with potential jail time for intentionally engaging

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<v Speaker 2>in quote conduct that obstructs the free passage of a

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<v Speaker 2>public place.

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<v Speaker 1>Okay.

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<v Speaker 2>Now, those laws were seen as a direct response to

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<v Speaker 2>climate activists like extinction rebellion disrupting city movements, and we

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<v Speaker 2>saw moments around the country I think pretty much in

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<v Speaker 2>every state and territory of climate activists putting themselves in

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<v Speaker 2>the way of a busy highway or a particular business

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<v Speaker 2>and those were honed in on by governments as a

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<v Speaker 2>real kind of disruption to the flow of the city, which,

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<v Speaker 2>if you want to get philosophical, is arguably the point

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<v Speaker 2>of protest.

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<v Speaker 1>I think that's what they would argue.

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<v Speaker 2>Yeah, And so we saw responses from a lot of

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<v Speaker 2>states and territories. We had that South Australian response, and

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<v Speaker 2>then more recently in New South Wales the government passed

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<v Speaker 2>legislation that granted New South Wales police greater powers to

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<v Speaker 2>disband protests and demonstrations near or within places of worship.

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<v Speaker 2>So there's another layer then to our layer cake near

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<v Speaker 2>or within was a term that is being tested in

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<v Speaker 2>court because what does that actually mean is that the

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<v Speaker 2>particular meter distance there. And that legislation followed a series

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<v Speaker 2>of what New South Wales Premier Chris Mins at the

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<v Speaker 2>time called quote, acts of anti semitism and intimidation. So

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<v Speaker 2>there are many examples. Those are just a few that

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<v Speaker 2>come to mind. Yeah, I've laid out a pretty confusing

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<v Speaker 2>kind of patchwork of law here, and the reality is

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<v Speaker 2>is that's kind of what's happening.

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<v Speaker 1>Yeah, I mean we've given you a factual summation of

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<v Speaker 1>a very confusing situation.

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<v Speaker 2>Yeah. And I think at the heart of all of

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<v Speaker 2>this is that one point that you mentioned very briefly

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<v Speaker 2>about about how hard it is to enforce international law. Yeah,

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<v Speaker 2>and these overarching big ideas, human rights doctrines, and the

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<v Speaker 2>key documents, those seven key documents, they're very hard on

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<v Speaker 2>the grounds to enforce. Yeah, they require police intervention to

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<v Speaker 2>enforce them, because that's how our country works. And between

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<v Speaker 2>point A of international law and point B of a

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<v Speaker 2>protest on the weekend, there's a whole lot of complexity. Yeah.

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<v Speaker 1>Absolutely, Thanks so much for explaining that for us today, Sam,

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<v Speaker 1>and thank you so much for joining us. We'll be

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<v Speaker 1>back this afternoon with the headlines. Until then, have a

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<v Speaker 1>great day. My name is Lily Maddon and I'm a

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<v Speaker 1>proud Arunda Bunjelung Calkatin woman from Gadighl Country. The Daily

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<v Speaker 1>oz acknowledges that this podcast is recorded on the lands

0:12:08.200 --> 0:12:11.439
<v Speaker 1>of the Gadighl people and pays respect to all Aboriginal

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<v Speaker 1>and Torrestrate island and nations. We pay our respects to

0:12:14.720 --> 0:12:17.640
<v Speaker 1>the first peoples of these countries, both past and present.