In the past two weeks this issue has moved to the forefront of Australian politics and divided the nation, with some suggesting a citizen’s right to protest should be “deferred” in the current context.

THE RIGHT TO FREEDOM OF ASSEMBLY

The rights to protest and freedom of assembly are critical to a functioning democracy, and give voice to the people in holding governments accountable. 

Australia is signatory to the – non-binding – International Covenant on Civil and Political Rights (ICCPR), which protects the right to peaceful assembly and freedom of association in Articles 21 and 22.

Unlike many other democracies, Australia does not have an explicit right to protest enshrined in Commonwealth law. Some states, including Victoria, Queensland and the Australian Capital Territory, have introduced their own human rights acts protecting the right to protest, however most states rely on state-based legislation that allows citizens to apply to authorities for permission to protest, which protects protesters from criminal liability for things like traffic obstruction during a demonstration.

Under Article 4 of the ICCPR, member states may derogate from their obligations “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed…to the extent strictly required by the exigencies of the situation”, provided that the emergency measures are not discriminatory or in conflict with the country’s international law obligations. 

THE CONTEXT OF THE BLM MOVEMENT IN AUSTRALIA

As the world watched the harrowing footage of George Floyd’s last moments, Australians were reminded of the death of David Dungay Jnr, a young indigenous man who died in custody in 2015 while being restrained by prison officers, both men sharing the last words “I can’t breathe”.

Indigenous Australians are 15 times more likely to be incarcerated than non-indigenous Australians, are the most incarcerated group of people in the world, and in the Northern Territory, every child in custody is indigenous. There have been 437 indigenous Australian deaths in custody since 1991. Despite a Royal Commission into Aboriginal Deaths in Custody and several coronial inquests, not one person has ever been found guilty of homicide.

The reality is that indigenous Australians have been campaigning against police prejudice and brutality towards their community since colonisation, and the BLM movement has highlighted the public health emergency of Aboriginal deaths in custody.  As prominent indigenous rights activist and journalist Amy McQuire put it, “Aboriginal people have never stopped protesting. The difference is we finally have a situation where white Australia is ready to sit up and listen”.

BLM PROTESTS IN AUSTRALIA

Like many countries around the world, Australian state governments have enacted temporary legislation limiting certain aspects of daily life to protect public health during the pandemic, derogating from their obligations under the ICCPR. Although some states decided to temporarily lift public health orders for demonstrations, others took a more conservative approach, fining protest organisers and arresting participants. 

The most notable response came from the New South Wales Police Force, who initially approved a public demonstration for the deaths of George Floyd and David Dungay Jnr, then successfully applying for a Supreme Court injunction to prevent the protest from going ahead. 

At the time of the application, New South Wales COVID-19 legislation prohibited public gatherings of more than 10 people. After hearing evidence from the New South Wales Chief Health Officer, Justice Desmond Fagan remarked that in the context of the pandemic, the public health orders effectively “deferred” a citizen’s right to protest. Less than 15 minutes before the protest was schedule to start, the organisers successfully appealed the Supreme Court’s decision, with the Court of Criminal Appeal declaring the protest an authorised public assembly. Ultimately, the decision rested on a procedural issue regarding authorisation of the protest, but for protestors, it was a recognition of the urgent need for attention to the BLM movement and for government accountability. 

As tens of thousands of masked protestors marched in capital cities across Australia, news spread of another death in custody: a 40 year old Aboriginal man in Western Australia. Despite data validating the need for urgent government action on this enduring issue, Prime Minister Scott Morrison condemned the protesters and encouraged arrest of participants for breaching public health orders, days before a controversial announcement that football venues would be open to crowds of 10,000. 

Several legal and human rights groups have condemned the state governments’ responses to the BLM protest, saying that their approaches have been inconsistent with the international right to freedom of assembly and the functioning of a democracy. It is clear that Australian politicians are preoccupied by the alleged risk to public health and safety, despite data showing that more than two weeks on from the protests, no community transmission of COVID-19 has been linked to the demonstrations.

As the world watches U.S. governments dismantle police institutions in places like Minneapolis, the very same debate continues in Australia. But with some states recording a spike in COVID-19 transmission, politicians are using the opportunity to censure further demonstrations, reducing the likelihood of urgent reform.

Alysha is an Australian criminal defence lawyer, advocating on behalf of disadvantaged adults and children in accessing justice. She is undertaking a Masters of Public and International Law at the University of Melbourne, with interests in refugee law, criminal justice and children in international law.

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