The right to protest in a democracy

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.