The Right to Protest and Human Rights

If I were Attorney-General, I’d recognise the close interdependence between protest and human rights. You can tell public opinion is going against protestors when even Bono, the activist lead singer of Irish rock group U2, condemns their behaviour.  In the wake of the G20 protests in Melbourne, Bono told the ABC that to ‘argue rationally and emotionally is OK, but not to the point of smashing up the downtown area of Melbourne.’

The protests surrounding the two-day G20 summit on 18-19 November 2006 were widely reported as a raucous affair which on occasion tipped over into violence.  Rumours were reported as fact in the often hysteria-tinged coverage of the protests.

The News Limited website, for instance, uploaded a story titled ‘Arrests as anti-G20 turns violent’, reporting that ‘Protestors in bandannas hurled flares, horse manure, fake blood and urine-filled balloons.’  In fact it was the Federal Treasurer Peter Costello who claimed that G20 protestors had flung urine-filled balloons, a claim later dismissed by Victoria Police.  The story variously described the protestors as a ‘hardcore mob’ and ‘thugs’, unleashing ‘mayhem’ and ‘chaos’ when the protests ‘exploded with violence.’

By contrast, the Human Rights Observer Team who monitored the event observed a ‘series of disparate protests surrounding the G20 meeting [that] were generally peaceful and non-violent aside from a sporadic series of incidents.’

Demonstrations engender debates about their legitimacy, especially when they are characterized by considerable disruption or tainted by violence.  It should not need to be said that violence is never acceptable, whether by citizens or by authorities.  Violence is antithetical to the protection and promotion of human rights.

Violence presents a challenge for the legitimacy of protest.  However, representations of violence in the context of particular protests should not tempt us into the wholesale delegitimation and devaluation of protest as a valid form of political expression and a fundamental human right.

In the context of political demonstrations, it is more often the ‘threat of violence’ that is used to justify banning of protests and the criminalisation of lawful political activity.  In the lead up to many protests, police and media have vilified protesters in order to create a climate that attempts to justify any future violence against them.

Like violence itself, these practices are extremely damaging, as they corrode public confidence in the value of protest, and the importance of the human rights which protect this form of democratic activity.

There are many forms of protest and protests are one form of political behaviour through a spectrum that includes ‘voting, electioneering and opinionating over talkback radio.’  Protesting is underpinned by a number of important human rights, and is sometimes the only means of expression available for those most in need of human rights protection, the politically powerless or voiceless.  As one example of this, witness asylum seekers in detention centres sewing their lips together in silent protest.

Australia has a long history of tolerance to and recognition of the right to protest as a legitimate form of political expression.  In Law, Liberty and Australian Democracy, Gaze and Jones write:

Public assemblies are essential to the proper functioning of democracy, in situations ranging from election and political party meetings to demonstrations organized to protest about government policies or other issues.  The right of public assembly is significant not only for political reasons, but also as an important aspect of respect for individual autonomy, because without the right to express views in public and to call public assemblies for this purpose, the right of the individual to self-expression is very limited.  The right of public assembly gives the individual access to a public forum for expression of views and provides a mechanism for individuals to take action as a group.  The right to assemble is closely based on the rights to freedom of speech and freedom of association.

A right to freedom of peaceful assembly is part of international law under art 20 of the UN Declaration of Human Rights and art 21 of the ICCPR.  The right to engage in participatory democracy ‘without unreasonable restrictions’ is clearly acknowledged by art 25 of the ICCPR.

Notwithstanding this, the rights of protesters are regularly violated in protest situations.  While art 9 of the ICCPR prohibits arbitrary arrest and detention, police in Australia commonly use arbitrary arrests and detention, special bail conditions to deny rights to peaceful assembly and other actions which contravene international law.

In this context, the experience of Drasko Boljevic is perhaps not so surprising.  On 19 November, Boljevic was buying a drink at a Swanston Street convenience store when a group of men in casual clothes grabbed him and threw him into an unmarked white van.  Boljevice was later released after the police realized they had the wrong person.  The HRO Team who observed the G20 protests also expressed concern about the use excessive force by police including the use of over-handed baton strikes without warning leading to injuries of several protestors.

We shouldn’t allow protest to be devalued and demeaned through associations with violence.  When this occurs, we create the conditions for further human rights breaches.  Like the rhetoric of ‘children overboard’ and the treatment of asylum seekers, devaluing the right to participate in democracy through peaceful assembly and other forms of political activity lays the groundwork for violence which is unacceptable in any form and by whomever perpetrated.

Protests are an important part of our participatory democracy.  If activism and peaceful protest are under threat, so are human rights.  Promoting and protecting all human rights, including the right to protest, is an important and valuable undertaking.  Sometimes the two are indistinguishable.  Those sweating in the hot sun at Federation Square in a peaceful assembly on 9 December 2006 in downtown Melbourne would probably agree with Bono on this point, who, like them, called for the release of David Hicks.

Stan Winford is a Lawyer and Legal Projects Officer with Fitzroy Legal Service