PROTEST AND THE LAW

An Anarchist Speech At South Australia's Law Week Speakers’ Corner

16 May 2002

 

We think we live in a democracy. We think we have a right to protest, and a right to free speech. The sad reality is that we don’t.

In reality, what we have in Australia is a right to protest ineffectually. Pickets and protests are fine as long as they don’t disrupt anything. At the first sign that a picket or protest might have an impact on the object of its protest, it quickly becomes illegal. Police supervising any such protest will often tell you that they respect your right to protest within the law, a right to protest somewhere "over there". At any given protest the "over there" is likely to be behind a distant artificial barrier erected for the occasion. Of course protests are also allowed in parks and town squares where organisers have permission from Council, and in street marches which have Police approval.

When we look overseas at those countries which we have traditionally regarded as being authoritarian, we often see "official" protests, sometimes promoted by the government and otherwise tightly constrained by what protesters can say and do. What then do we make of our own governments telling us where and how we can protest?

The minute we don’t agree to protest "over there", the minute our protests look like impacting on the target of the protest, they quickly become illegal. There are any number of criminal laws which can be breached by a simple act of protest. Obstructing traffic, breach of the peace, trespass, loitering, and refusal to obey a police instruction are perhaps the most common, but not the only relevant ‘crimes’. And this is before any new "anti-terrorism" legislation becomes law!

The reality in any protest situation is that what is legal/illegal is not at all clear, it is controlled by a considerable Police discretion. This means not only that the lines of legality are not clear, but that Police can seek to control legal behaviour and perhaps that protesters, operating under the shadow of an unclear system will constrain their own activities for fear of breaking the law. Of course, unclear lines can be challenged in court (when the protest is over), but not on the ground in a protest situation.

Beyond the various criminal laws that control protests, there is also the Police themselves. When Police assault protesters there is little constraint or comeback. Internal investigations take a long time and instil little confidence in the complaint process. After a fairly violently policed protest in Canberra (AIDEX ’91), almost all complaints were dismissed by the Police internal investigation. Two years later the Ombudsman found that Police had used excessive force, but the protest was long over and such a finding provides no protection for the right to protest – including what I might characterise as the "right" to get arrested without being assaulted.

Of course many police do behave appropriately at protests, but individual ethics (or the fear threat of a complaint) can be outweighed by situation, stress and structure - as we saw with the Victorian Police "protecting" the World Economic Forum in September 2000. After a first day of sensibly dealing with the mass protest, and possibly in reaction to a media frenzy about "mob rule", that is, in reaction to the fact that the protest had been successful in disrupting the forum, police violently attacked protest lines over the next two days. The Police were heartily congratulated by the Victorian Premier. Again, the right to protest is only the right to protest ineffectually.

Beyond the criminal law and criminal law enforcement, there is the civil law. The minute a protest against a non-government body looks like being effective there are all manner of civil laws which can be brought to bear to constrain protest. Laws such as trespass, interference with trade and business, conspiracy to inflict economic harm are both sufficiently far-reaching and vague so as to capture almost any political activity. Even if people are not physically protesting, just expressing an opinion in a letter to a local newspaper or in a newsletter, the above torts are still available. Worse, there is the complex and bizarre defamation law to constrain their speech and public participation. As an environmentalist, if I said a particular development was bad for the environment, I could be sued for defamation for implying that the developer did not care about the environment, or would harm the environment. Of course, I might win the case, but it might take $100,000 and 5 years (and I could end up with a conservative judge who thinks that protesting is in fact illegal).

I should stress, these are not scary hypotheticals. This is happening right now in South Australia.

Last year activists had to go to the Supreme Court to be allowed to wear an Animal Liberation T-shirt. Another issue in South Australia has seen a dozen civil cases against over 20 individuals, community groups and the media. What we have seen in response to this civil litigation is a chilling of public debate and protest in South Australia. I’ve seen campaign initiatives cancelled, political groups destroyed, and people’s lives, relationships and health stressed to breaking point because of such law suits, and I’ve seen the legal system condone and promote assaults on the character and reputation of environmentalists because they were effective (clever) environmental advocates. This is not freedom of speech; this is public debate bought at too high a price.

Fortunately the broad environment movement is learning to fight back. The last case where a group was sued is still in court, but after nearly two years the case is barely advanced and those suing have probably run up in excess of $100,000 in legal costs and got nothing but bad publicity. The environment movement is also looking at developing and campaigning for legislation that would protect individuals and community groups from suits that would silence them.

Legislation is one avenue to protect freedom of speech and the right to protest. Such legislation is important and should be supported, but it is limited. It remains inside the paradigm of the law itself, where the law is seen as the source of justice. Another answer begins from a different starting point, from a politics that does not assume that there is justice or democratic rights in the system. Indeed, in observing too many cases where the law has been brought to bear on protest, it seems sadly clear that it was those who thought that they would get justice who were silenced. They were too nice to counterclaim, to challenge judges, to use different names or hide behind legal rights and legal fronts (like companies!). And in expecting justice and assuming they had a right to free speech, they paid an unacceptable price for speaking out.

By contrast, those who did not expect justice or that their rights to protest would be respected by the law have fared better. They fought back using politics and legal tricks to dodge the legal missiles sent against them. It is not nice, and it requires a combination of skill and political position, but it is those groups and individuals that have not been silenced.

The message is clear, if the parliament and the courts won’t act to protect freedom of speech and the right to protest, then we have no choice. We do not have freedom of speech and the right to protest. It is not and will not be given by law.

As always, freedom of speech is and will be won only by fighting for it!