This article first appeared in The Guardian.
We also have a history of governments trying to suppress protest. It’s time this changed.
The deputy prime minister recently told school students they should be in school “learning about Australian history” instead of joining the global student strike for climate action on Friday. Half of what he said was good advice. For if the students researched Australia’s protest history, they would learn that protest has been critical to so many social advances that we often now take for granted.
Protest helped to win the eight hour working day, to protect the Franklin and the Daintree and advance Aboriginal land rights. Protest helped to secure women’s right to vote, to stop our involvement in the Vietnam War and end the criminalisation of homosexuality. Protest continues to play a key role in highlighting the cruelty of our refugee policies, in protecting workers’ rights, in stopping coal seam gas exploration and so much more.
Protest is particularly important for those whose interests are often ignored by our formal political system, whether it’s Aboriginal and Torres Strait Islander people pushing for self-determination or school kids whose future is at stake and yet who can’t vote to choose the representatives who will determine it.
But while protest is vital for our democracy, its importance isn’t well understood, and our protest rights aren’t properly protected in Australian law. It’s time this changed. Because while Australia has a proud protest history, we also have a history of governments trying to suppress protest.
Most recently, state governments in Tasmania, New South Wales and Western Australia introduced or attempted to introduce harsh anti-protest laws with severe penalties, excessive police powers and broad, vague offences. These laws have targeted environmental protest in particular, prioritising vested corporate and government interests over people’s democratic rights.
Fortunately, the McGowan government on taking office tore up the proposed Western Australian laws. The Tasmanian laws were then struck down by the high court for breaching the constitution, with one judge describing the “Pythonesque absurdity” of their operation. But the Hodgman governmentis trying to resurrect the laws. And NSW anti-protest laws remain in force, with penalties of up to seven years jail for “interfering” with a mine including coal seam gas sites, although the NSW Labor opposition has promised to repeal them if elected on 23 March.
At the federal level, we have the construction watchdog pursuing workers with threats of fines of up to $42,000 for attending mass union protests late last year if they didn’t have written approval from their employer, as well as forcing employers to hand over workers’ names and addresses.
These issues will come into sharper focus in coming years with increased focus on climate change, workplace disruption, the push for implementation of the Uluru Statement and more. The exposure of Adani’s self-declared “attack dog” lawyers and their proposed tactics of pressuring government, silencing critics and financially crippling activists, gives a taste of what is to come.
All of this underscores the critical importance of properly protecting our protest rights in law. Yet Australian law fails to do this, making our ability to protest fragile and liable to be eroded.
The Whitlam government signed, and the Fraser government ratified the key international treaty which guarantees our human rights to freedom of expression, peaceful assembly and association which together enable our right to protest. But international treaties don’t automatically become part of Australian law. Instead, Australian governments are meant to implement them in our domestic laws.
In a major step forward, in February Queensland joined Victoria and the ACT as the only Australian jurisdictions with human rights charters which protect protest rights. Yet Australia is still the only Western democracy without a national charter of rights. Our constitution protects few rights. It took the high court until the 1990s to recognise, by implication, that the constitution protects freedom of political communication. This important but limited safeguard falls short of the protection that should be afforded to protest rights.
The Human Rights Law Centre recently launched our report “Say it loud: Protecting Protest in Australia” which guides law makers, law enforcers and protesters on how to protect protest rights. While protest by its nature may be inconvenient or uncomfortable, it is an essential element of our liberal democracy. The report explains the duty of governments to facilitate protest and also when protest rights can justifiably be limited, for example to stop harassment and abuse outside abortion clinics or incitement to violence. It’s a blueprint for a democracy where protest rights are upheld.
Our democracy doesn’t start and end on election day. Its enduring success rests on vital foundations like press freedom, the ability of charities and community groups to advocate freely, the rule of law and the right to protest. When governments chip away at our protest rights, they erode our democracy. To protect our democracy and help ensure a better future for all Australians, we must protect our protest rights.
Hugh de Kretser is the executive director of the Human Rights Law Centre.