Howie, Emily --- "Anti-protest legislation and the chilling of free speech" [2016] PrecedentAULA 63; (2016) 136 Precedent 26

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ANTI-PROTEST LEGISLATION AND THE CHILLING OF FREE SPEECH

By Emily Howie

In many respects, Australia’s democratic system is strong and healthy. Voting is near universal, electoral fraud is rare and our judiciary is ethical and independent. Yet there is a trend across Australia of governments gradually chipping away at free speech and protest rights, two of the foundational pillars of Australia’s democracy.

In February 2016, the Human Rights Law Centre’s Safeguarding Democracy report documented the various ways in which governments across Australia are eroding our basic democratic rights in the name of national security, border protection or the protection of business interests.

Two elements of this trend affect the ability of community members to join together and speak out on issues that they care deeply about.

First, in a number of states anti-protest laws have criminalised protest activity, even where it is peaceful.

Second, governments are sending a clear message to the charities and community organisations that support the most marginalised and disadvantaged members of our community that to criticize the government is to jeopardise their funding.

At the international level, these anti-democratic developments violate Australia’s human rights law obligations and have at times drawn condemnation from UN rights experts. Domestically, they will test the extent to which the Australian Constitution’s implied freedom of political communication can protect our representative democracy.

ANTI-PROTEST LAWS

In the last couple of years, state governments have proposed and passed anti-protest laws that seek to unfairly prevent peaceful assembly.

In 2014, Tasmania passed laws targeting environmental protests. The Workplaces (Protection from Protesters) Act 2014 (Tas) (Tasmanian Act) contains broad and vague new offences of ‘hindering’ access to business premises or ‘disrupting’ business operations. The new offences carry penalties of up to $10,000 and four years’ imprisonment for breach.

In March 2016, NSW passed the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016 (NSW), with harsh new penalties (fines of up to $5,500) for unlawful entry on to land that interferes with the conduct of a business. It also gives police powers to shut down peaceful protests that are obstructing traffic.

In Western Australia, the Criminal Code Amendment (Prevention of lawful activity) Bill 2015 (WA Bill) contains extremely broad new offences of ‘physically preventing a lawful activity’ and ‘possessing a thing for the purpose of preventing a lawful activity’. The WA Bill is written in such vague and broad terms that it would criminalise peaceful assembly and civil disobedience, as well as the possession of everyday items, such as bike locks, if done so knowingly for the purpose of preventing lawful activity. Both proposed offences carry serious penalties of up to one year in prison and a fine of up to $12,000 and, in some circumstances, the penalties increase to two years in prison and a fine of $24,000.^[1]

Common elements of these anti-protest laws are vague and ill-defined offences, excessive police powers, harsher penalties, and the prioritisation of business interests (particularly mining and forestry operations) over the rights of Australians to voice their concerns on issues that matter to them.

The anti-protest laws grant police officers excessively broad discretions to stop peaceful protest. Police can intervene in respect of a minor disruption of business or a temporary obstruction of traffic, or even in circumstances where a person possesses something that, in the mind of the officer, is intended to prevent a business activity. Although targeted at environmental protests, these powers can be used to silence other legitimate dissent on a range of controversial political issues, such as Australia’s asylum seeker policies, climate change, and marriage equality.

INTERNATIONAL LAW

Under international law, Australia is bound to respect, protect and facilitate people’s rights to assemble peacefully and associate freely.^[2] This creates a presumption in favour of allowing unrestricted and unregulated peaceful protests.^[3] It also imposes a positive obligation on governments across Australia to facilitate peaceful gatherings.^[4]

Under international law, protests can still be peaceful if they temporarily annoy, hinder, impede or obstruct the activities of third parties.^[5] In fact, international law will almost invariably protect peaceful civil disobedience.^[6] For restrictions on protests to be valid, they must be made for a legitimate aim and implemented in a manner that is proportionate.^[7]

In this context, the Tasmanian Act and the WA Bill clearly violate international law.

When the Tasmanian Act was introduced into parliament, three UN human rights experts released a statement condemning the law. They said that the law would violate Australia's international obligations as it silenced legitimate and lawful speech and protests, was disproportionate and targeted particular protests.^[8]

The same experts urged the WA parliament not to adopt a proposed law that would criminalise legitimate protest action. They said the Bill would violate free speech and the right to peaceful protest.^[9]

Instead of shutting down protest and demonstrations that are inconvenient or annoying to it, our governments should be facilitating peaceful assemblies and public discussions on issues that people care about. In fact, Australia is bound by international law to do so, including state and territory governments.

The government may disagree with protesters’ views on a particular issue, but shutting down peaceful assemblies only serves to diminish a fundamental pillar of our democracy and the types of people’s movements that have made Australia great.

CONSTITUTIONAL QUESTION

These state-based anti-protest laws may also violate the implied freedom of political communication in the Australian Constitution. The question of the constitutional validity of the Tasmanian Act is currently before the High Court.

On 25 January 2016, former Greens Leader, Bob Brown, was arrested under the Tasmanian Act for failing to comply with a direction to leave a ‘business access area’.

The Tasmanian Act prohibits protesters from doing certain activities on ‘business premises’ or in ‘business access areas’, including remaining in an access area after being directed to leave by a police officer (ss6, 8).

Brown filed proceedings in the High Court against the State of Tasmania, alleging that the impugned provisions of the Tasmanian Act are inconsistent with the implied freedom of political communication. The implied freedom limits the legislative power of both state and federal parliaments.^[10] It operates to invalidate laws that are a disproportionate burden on political communication.^[11]

On that basis, Brown is seeking a declaration that the Tasmanian Act is invalid and of no effect or, alternatively, that it is invalid and of no effect with respect to forestry land.

The terms of the Tasmanian Act directly concern political communication. Section 4 prohibits conduct ‘in the furtherance of’ or ‘for the purposes of promoting public awareness of or support for’, ‘an opinion, or belief, in respect of a political, environmental, social, cultural or economic issue’.^[12] On that basis, Bob Brown argues that the Act burdens the implied right of political communication and that it is not reasonably appropriate and adapted, or proportionate, to achieving a legitimate end.^[13]

The legitimate end, taken from the long title of the Tasmanian Act, is ‘to ensure that protesters do not damage business premises or business-related objects, or prevent, impede or obstruct the carrying out of business premises’. Bob Brown argues that because the purpose of the Act is to prevent or restrict political communication on particular topics, including the logging of Tasmanian forests, the purpose of the Act is not legitimate.

Brown also argues that the Tasmanian Act goes too far in preventing peaceful on-site protests, which are a critical element of political communication on environmental issues and punishes communication that has minimal impact on business activities.

The matter is proceeding by way of a special case. A second plaintiff, Jessica Joyt, has now been joined to the proceeding.

SILENCING COMMUNITY ORGANISATIONS

A second anti-democratic trend relates to governments stifling robust advocacy by community organisations. Governments across Australia are using a range of funding levers to either ban or dissuade community organisations from advocating on behalf of the groups they represent, particularly where that advocacy is critical of government.

Some might argue that publicly funded organisations should not bite the hand that feeds them, but charities that provide services in the community are also a vital source of information for government. On a practical level, we need their contribution for good policy and law-making practices. From a human rights perspective, the people in those organisations have a right to express their views.

WHY WE NEED ADVOCACY BY COMMUNITY ORGANISATIONS

Community organisations represent and speak out for the millions of Australians who care deeply about a compassionate, diverse, equal and inclusive society. Their contribution to policy debates is critical to the efficient and effective delivery of government services. They can provide information needed to identify systemic problems and also to assess the merits of alternative policy proposals.

Sometimes, community organisations will oppose government policy or criticise government actions. In a democracy, governments should welcome and encourage this advocacy, even when it is uncomfortable for them.

Instead, governments are attempting to silence community organisations using a range of funding pressures.

Governments have continued to ignore the strong economic and other evidence of the public value and efficiency of these advocacy activities.^[14] Instead, governments have created false distinctions between ‘frontline services’ (which are deemed worthy of government funding) and ‘advocacy’ (which, apparently, is not).

Peak bodies across sectors have had their funding cut – from the Refugee Council of Australia to Homelessness Australia to the National Congress of Australia’s First Peoples. The message to community sector organisations is clear – if you oppose government policy you risk losing your funding.

The impact of these funding cuts for advocacy has been so severe that in Pro Bono Australia’s 2015 survey of the not-for profit sector, nine out of ten respondents saw recognition of the role of advocacy as being the most important factor in developing a thriving not-for-profit sector in 2016.^[15]

SILENCING COMMUNITY LEGAL CENTRES

Community legal centres (CLCs) are not immune from this trend. Their funding agreements contain terms that indirectly deter their involvement in policy and law reform debates.

Until recently, CLCs received Commonwealth funding specifically to engage in advocacy and law reform work in addition to providing their legal services to clients. Around 200 CLCs across Australia provide access to justice for hundreds of thousands of disadvantaged and vulnerable clients each year including homeless people, people with disabilities, women experiencing domestic violence, and those who have been defrauded by unscrupulous businesses.

As with advocacy by the broader community sector, there is strong evidence supporting the value of CLC advocacy and the importance of it being government-funded. For example, in 2014, the Productivity Commission recommended that governments continue to fund CLC advocacy activities ‘that seek to identify and remedy systemic issues because it reduces demand for frontline services’.^[16] More recently, Delia Rickard, the Deputy Chair of the Australian Competition and Consumer Commission, noted that CLCs make critical contributions to the work of regulators because they are in a position to ‘analyse their cases, identify system conduct (such as poor practices by debt collectors...) and present the necessary information to regulators, industry and governments’.^[17]

Despite these recognised benefits, in 2014 the Australian government changed CLC funding agreements to expressly prohibit funding being used to lobby government or to engage in public campaigns, with extremely narrow exceptions.^[18] The attorney-general stated that government should only fund services that are ‘actually helping a flesh and blood individual’.^[19]

In the context of broader funding cuts and budget pressure, these restrictions at the Commonwealth level, along with similar restrictions in NSW, delivered a strong message to the CLC sector – that advocacy and law reform work are not valued and organisations that criticise government risk losing their funding. Understandably, this has had a chilling effect.

Amanda Alford, Deputy Director of the National Association of Community Legal Centres, says that CLCs now feel ‘less able to undertake absolutely crucial preventative and early intervention work, or assist by addressing legal problems in a systemic way’.^[20]

LEGAL QUESTIONS ON CIVIL SOCIETY ADVOCACY

In 2010, the High Court removed any doubt that advocacy by charities is a legitimate activity where it is in line with their mission, with its decision in Aid/Watch Incorporated v Commissioner of Taxation.^[21] The High Court recognised that advocacy by community organisations is a vital part of the political communications that are, in turn, ‘an indispensable incident’ of Australia’s constitutional system and that contribute to public welfare.

Under international human rights law, Australian governments are tasked with creating an environment that enables advocacy by community organisations. Australia has international law obligations ‘to create the best possible environment for the existence and operation of associations’.^[22]

The Not-for-Profit Sector Freedom to Advocate Act 2013 (Cth) prevents the Australian government from inserting express gag clauses into community sector funding agreements.^[23] But the silencing of CLCs is not done expressly, it is done by limiting the activities on which government funds can be spent. The government has not prohibited the organisations that it funds from speaking out entirely, only from using government funds to do so. However, the indirect effect is to create an environment in which advocacy is at best seen as unwelcome, and at worst seen as an activity that could seriously jeopardise the CLCs’ ongoing funding from government.

The indirect nature of the silencing of community organisations also makes legal action difficult. Given that the CLC funding agreement does not expressly forbid advocacy, it would be a challenge to prove that the prohibition on government funding being used in advocacy in fact burdens political communication.

CONCLUSION

Australians can be proud of the strong, healthy democracy in which we live. However, the foundations of that democracy must be fiercely protected. In the absence of a national human rights act or other legal instrument that protects our rights, Australians are vulnerable to governments removing these rights without restraint. Some constitutional protection is provided through the implied freedom of political communication; however, that protection falls far short of those provided under international human rights law.

Emily Howie is the director of advocacy and research at the Human Rights Law Centre. PHONE [phone] EMAIL [e-mail] TWITTER @emilyhowie.

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^[1] Criminal Code Amendment (Prevention of lawful activity) Bill 2015, s68AA.

^[2] Human Rights Council, The Rights to Freedom of Peaceful Assembly and of Association, 24^th sess, UN Doc A/HRC/RES/24/5 (8 October 2013) [2]. Maina Kiai, Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, 70^th sess, A/70/266, 4 August 2015, [4]. See also OSCE Office for Democratic Institutions and Human Rights, Guidelines on Freedom of Peaceful Assembly, 2010, 2.2.

^[3] Human Rights Council, Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association: Addendum – Observations on Communications Transmitted to Governments and Replies Received, 29^th sess, UN Doc A/HRC/29/25/Add.3, 10 June 2015, 42 [212]. See also also OSCE Office for Democratic Institutions and Human Rights, Guidelines on Freedom of Peaceful Assembly, 2010, 2.1.

^[4] Maina Kiai, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, , UN doc. A/HRC/23/39, 24 April 2013, 49.

^[5] See OSCE Office for Democratic Institutions and Human Rights, Guidelines on Freedom of Peaceful Assembly, 2010, 1.3.

^[6] Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (Oxford University Press, 3^rd ed, 2013) 19.05.

^[7] Human Rights Council, Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association: Addendum – Observations on Communications Transmitted to Governments and Replies Received, 29^th sess, UN Doc A/HRC/29/25/Add.3, 10 June 2015, 42 [212]. See also Maina Kiai, Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, 70^th sess, A/70/266, 4 August 2015, [4] and OSCE Office for Democratic Institutions and Human Rights, Guidelines on Freedom of Peaceful Assembly, 2010, 2.2.

^[8] Office of the High Commissioner for Human Rights, ‘UN experts urge Tasmania to drop its anti-protest bill,’ Statement, 9 September 2014, available at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15002&LangID=E (accessed 1 February 2016).

^[9] Office of the High Commissioner for Human Rights, ‘UN human rights experts urge Western Australia’s Parliament not to pass proposed anti-protest law’, (15 February 2016), available at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=17047&LangID=E.

^[10] Unions NSW v NSW [2013] HCA 58 at [17]- [31].

^[11] Most recently considered by the High Court of Australia in McCloy v NSW [2015] HCA 34; (2015) 89 ALJR 857.

^[12] Workplaces (Protection from Protesters) Act 2014 (Tas), s4.

^[13] Amended Statement of Claim, Brown and Hoyt v Tasmania, No H3 of 2016, High Court of Australia, 8 July 2016.

^[14] There are sound economic arguments in favour of government providing subsidies for advocacy by community organisations, either through tax concessions or through direct funding from government: Krystian Seibert, ‘Letting Charities be Political – an Economic Rationale for a Liberalised Approach to Advocacy’ (2015) 40(3) Alternative Law Journal 199, 200-3.

^[15] Pro Bono Australia, Sector Survey Report, 2015, available at http://www.probonoaustralia.com.au/sites/www.probonoaustralia.com.au/files/2015_sector_survey.pdf (accessed 1 February 2016). The survey was answered by 1,100 people from not-for-profit organisations.

^[16] Productivity Commission, Access to Justice Arrangements, Inquiry Report No. 72, 5 September 2014, Recommendation 21.1.

^[17] Delia Rickard, quoted in Liz Curran, Solving Problems – A Strategic Approach, Report for the Consumer Action Law Centre and the Footscray Community Legal Centre, March 2013, 14, available at http://www.fclc.org.au/public_resource_details.php?resource_id=2249 (accessed 1 February 2016).

^[18] There is a very limited exception to that for providing community legal education or ‘where a legal assistance service provider makes a submission to a government or parliamentary body to provide factual information and/or advice with a focus on systemic issues affecting access to justice’.

^[19] Commonwealth, Legal and Constitutional Affairs Legislation Committee, Senate, 24 February 2014, 52.

^[20] Human Rights Law Centre, Safeguarding Democracy, February 2016, p15 available at http://hrlc.org.au/wp-content/uploads/2016/02/HRLC_Report_SafeguardingDemocracy_online.pdf.

^[21] [2010] HCA 42; [2010] 241 CLR 539.

^[22] Maina Kiai, Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, 70^th sess, A/70/266, 4 August 2015, 4. As a party to the major human rights treaties, most relevantly the International Covenant on Civil and Political Rights, Australia is bound in international law to respect, protect and promote human rights to free speech, peaceful assembly and freedom of association: International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) arts 19(1)-(2), 21 and 22.

^[23] See ss4 and 5(1).