It’s not the time to protest…regardless of what you’re protesting about.
Daniel Andrews, Premier of Victoria, 3 September 2020
As we installed this exhibition in May 2021 the right to protest was under threat in many democracies. The COVID pandemic has made many cautious, but perhaps also allowed some governments to restrict protest for other reasons. So how secure is our right to protest in Victoria?
In many democracies the right to protest is protected by some legal instrument, often by inclusion in a Charter or Bill of Human Rights. In Australia this is not the case. Alone amongst governments based on the Westminster system, the Commonwealth of Australia has enacted no laws to safeguard human rights, or to compensate for their omission from the Australian constitution. Whether in ignorance of this fact, or simply in defiance of it, most Australians assume they have a right to protest and express it vigorously. And they may be justified in doing so. Legal scholars argue that the right to express dissent, to assemble peacefully in protest, and to occupy public space for that purpose, are rights implied in the constitution and are assumed to be important in preserving a functioning democracy. In general, the exercise of such rights has been upheld by the courts.
Despite this absence at the national level, two Australian jurisdictions have passed specific legislation to protect human rights. These are the Australian Capital Territory, which passed a Human Rights Act (ACT) in 2004 and Victoria, which passed the Charter of Human Rights and Responsibilities Act (Vic) in 2006. Sections 15 and 16 of the Victorian Charter include the right to freedom of expression, peaceful assembly and freedom of association - all essential components of a right to protest.
Limiting the right to protest
Even in ordinary times the right to protest is limited by other laws, including those prohibiting violence, trespass, damage to property, racial or religious vilification and the use of offensive language. In extraordinary times, as during the COVID-19 pandemic, or on other occasions that government declares a state of emergency, the right to protest can be further curtailed. For many months during 2020 any protest activity in Victoria had to comply with directives issued by the Chief Health Officer and was strongly discouraged on public health grounds.
Protest during COVID
Victorians lived with unprecedented restrictions for many months during the COVID19 pandemic. At times people could only leave their homes for a maximum of one hour per day and only for ‘four essential reasons’. Those reasons included attending essential medical appointments, performing essential work (including caregiving), shopping for essentials or exercising. At times travel was restricted to a radius of 5 kilometres from home. Other strictures included maintaining a safe ‘social distance’ from other people in public and wearing a face mask outside the home (including during physical exercise at the height of the lockdowns). Exercising the right to protest was not considered an ‘essential reason’ to leave home.
Nevertheless there were causes that brought Victorians onto the streets in protest. One such issue was the global ‘Black Lives Matter’ movement, which originated in the United States from 2012 in response to a series of killings of black people. In June 2020, at the height of the pandemic, huge protests were held in the United States in response to the death of George Floyd and others. Similar protests followed in many Australian cities, protesting at continuing black deaths in custody and the close detention of refugees, although they were much smaller crowds than might otherwise have been expected. Governments throughout Australia tried strenuously to discourage people from protesting in person, urging concerned citizens to voice their protests via social media instead.
In Victoria protestors generally made an attempt to comply with public health directives. Many wore masks and tried to observe social distancing. In April 2020 activists protesting at the plight of refugees held in the suburbs of Melbourne in crowded living conditions staged a car convoy through the central city. One man was arrested and 26 others were fined because they were not in public for an ‘essential reason’.
During the pandemic small groups of protestors also gathered to express their opposition to the lockdown restrictions, including the wearing of face masks. On Saturday 5 September about 300 people gathered at the Shrine of Remembrance, in defiance of police, and later walked in convoy to Albert Park Lake. Victoria Police arrested 17 protestors, including one for assaulting a police officer, and issued 160 infringement notices for breaching the Chief Health Officer’s stay-at-home directive. A larger rally outside Parliament House in November resulted in 400 arrests.
Protestors clash with police officers during anti-lockdown protests outside Parliament House in Melbourne Victoria, 10 May 2020
Reproduced courtesy Herald Sun newspaper
Attempts to discourage large protests continued, even as Victoria emerged from its long lockdown in December 2020. Premier Daniel Andrews urged Victorians not to attend the annual Australia Day/Invasion Day march on 26 January, arguing:
It’s no time to be protesting, it just isn’t. We’ve built something precious and unique, [in quashing the number of infections] Victorians have, through their sacrifice and their commitment and their compassion for each other, and we have to safeguard that. (The Age, 21 January 2021)
There was a sense that regardless of the justice of the cause, it was irresponsible to threaten the fragile public health gains. Although the marches did proceed, they were much smaller than usual.
Public opinion, protest and the pandemic
Victorians have a robust history of public protest, with many causes attracting large crowds of supporters over the years. But during the pandemic many felt differently. Far fewer people were prepared to attend rallies, even for otherwise popular causes. Most seem to have supported the government’s approach to containing the pandemic, even while chafing at the lockdown restrictions. One survey of public attitudes to various aspects of life under COVID asked specifically what people thought about the right to protest during COVID. It was conducted in December 2020, as restrictions were lifting and the number of infections was thought to be controlled. It asked people whether large protest gatherings should be allowed, either immediately, or in some months’ time. Over 70 per cent of those surveyed said that they thought such gatherings should only be allowed from one to three months in the future: 50 per cent selected the later timeframe – in three months’ time. Perhaps significantly, far greater numbers supported allowing larger crowds at sporting events! (Newgate Australia for the Committee for Melbourne, Newgate Pulse results, Tuesday 1 December, p. 14)
Protest and the law
The recent pandemic raised many questions about the right to express dissent in Victoria and in Australia generally. Despite their respect for the government’s approach to containing the pandemic, some legal scholars in Victoria expressed concern at the extent to which the right to express dissent was curtailed, especially during the periods of stage 4 restrictions (the highest level of restrictions). They noted that protestors had been arrested even when they complied with most of the rules – with the exception of the ban on large gatherings, or on travelling more than 5 kilometres from home – and suggested that in future, where the health evidence allowed gatherings, the law should recognize the right to protest as a reason to leave home, if protestors complied with social distancing rules. (Castan Centre for Human Rights Law, Submission to the Victorian Parliament’s Inquiry into the Victorian Government’s Response to the COVID-19 Pandemic, 7 August 2020, p. 65).
A more serious issue concerns the government’s decision to charge the organizers of some protest events with ‘incitement’ – a charge generally applied to behavior that encourages the commission of a serious crime like murder or assault. Incitement is an offence under the Victorian Crimes Act, and can result in a criminal conviction – a far more serious outcome than a fine for breaching public health regulations. In a contribution to The Conversation, (3 September 2020) legal scholar Maria O’Sullivan argued that the decision to charge protest organizers with incitement was both complex and controversial, since taking part in a protest was not, in itself, a criminal act, unless protestors damaged property, committed trespass or threatened public order. Moreover the event or act in question need not even take place for the charge to be levied: merely inciting the act is enough.
Whatever the outcome of any resulting trials in these cases, it is clear that the legal context of protest has changed considerably during the pandemic. Whether that change outlasts COVID remains to be seen, but we can expect a robust debate to continue as Victorians recover from the pandemic and resume their normal lives.
Author: Margaret Anderson
Maria O’Sullivan, ‘Is protesting during the pandemic an ‘essential’ right that should be protected?’ The Conversation, 21 April 2020.
Maria O’Sullivan, ‘Protest in a Pandemic - The Special Status of Public Spaces’, Auspublaw, July 2020
Maria O’Sullivan, ‘Protests have been criminalized under COVID. What is incitement? How is it being used in the pandemic?’ The Conversation, 3 September 2020.
Newgate Australia for the Committee for Melbourne, Expectations vs Reality: the return to the CBD, Newgate Pulse Results: Wave #38, Tuesday 1 December 2020
Jon Piccini, Human Rights in Twentieth Century Australia, Cambridge University Press, 2019