Illegal, indecent or essential: What happened to Australians’ right to protest?

The Sydney Opera House has attracted global adoration for decades. Last year, it was a different story. Outside its famous steps, days after Hamas’ attack on Israel killed 1200 people, a small group of people shouted antisemitic slogans. The protest, which made international news, was seared in the minds of politicians as an event that must not be repeated and opened a tense political debate over the right to protest in Australia.

That quietened down over the year. It’s not that people stopped demonstrating: pro-Palestinian activists have taken to the streets of Sydney and Melbourne every weekend since. But the events have been largely peaceful and uncontroversial.

The way Australians mark October 7 looms as a test of the country’s democratic strength and social cohesion.Credit: Margaret Gordon

That is, until the waving of Hezbollah flags by some demonstrators last weekend, after Israel assassinated the terrorist group’s leader, reignited the debate about how – and whether – people should protest. NSW Police tried to cancel events planned for Sunday and Monday, and Opposition Leader Peter Dutton unsuccessfully pushed Victoria to do the same. Activists vowed to disregard their instruction in any case, condemning an assault on their fundamental rights.

Now, the way Australians mark October 7 – a significant anniversary of the conflict that has consumed the Middle East and diaspora communities around the world – once again looms as a test of the country’s democratic strength and social cohesion.

Dutton, from a party that has historically defended free speech and people’s right to offend, wants the law to enforce a moral standard: that protesting on October 7 is inappropriate. Prime Minister Anthony Albanese argues the protests should not happen, but defers to police. The Greens, the party which has most fiercely defended anti-vilification laws placing guardrails around political speech, have become the loudest voice asserting people’s right to take to the streets. The dynamics have starkly shifted in the decade since former Coalition attorney-general George Brandis said people had a right to be bigots.

Beneath the political rhetoric are two groups in pain. For the Jewish community, vigils are planned to mourn the day that Hamas militants killed more Jews in a single day than any since the Holocaust. For Muslims and Palestinians, it’s a time to draw attention to Israel’s ongoing war in Gaza, now spilling into Lebanon, in which more than 41,000 people have been killed.

Concerns about hate speech or pro-terrorist displays now underpin political debate, which last flared when students established pro-Palestinian encampments on university grounds. The appearance of some pro-Hezbollah material at last weekend’s rallies turbocharged the conversation. Australian Federal Police Commissioner Reece Kershaw this week told 2GB that some protesters who waved flags had broken counter-terrorism laws prohibiting hate symbols, which Labor strengthened late last year, and police would act. There are cases being pursued in both NSW and Victoria.

Protest organisers appeared to heed warnings. In Melbourne, they urged attendees to only wave Palestine and Lebanon flags so as to not invite trouble. Sydney organiser Josh Lees told the ABC he did not agree with the laws, but would encourage people to comply.

Palestinian protesters outside the Supreme Court on Thursday, after NSW Police applied to cancel rallies.Credit: Edwina Pickles

“I personally would not fly that flag, I don’t politically agree with Hezbollah, but we defend people’s right to hold pieces of cloth,” he said. “I don’t think that the way it’s been talked about is at all reasonable in the media.” Lees said protesters would push ahead with a mass demonstration on October 6 and a vigil on October 7, regardless of whether it was sanctioned by police.

Dutton was furious. He condemned events planned for October 7 as a “celebration of death” that Victorian Premier Jacinta Allan should block with any powers necessary, as the state government did to events during COVID. “We should never allow people to celebrate the anniversary of what happened on October 7,” Dutton said.

But Allan rejected the calls from a “divisive federal leader of the opposition” as she doubted whether permits could change behaviour. “Do we really think that individuals with hatred in their hearts, with a desire to cause ongoing division, potentially carrying flags of proscribed terrorist organisations, do you really think they’re going to apply for a permit?” she said.

Students face off at Melbourne University: Political concern last flared when students established pro-Palestinian encampments on university grounds.Credit: Darrian Traynor

Her fellow Labor premier, Chris Minns, took a different tack, saying it was reasonable for NSW Police to be “highly sceptical” about organisers’ claims as he backed their call to cancel the events. “Twelve months ago, on the streets of Sydney, a protest or a vigil that was meant to take place in Town Hall ended up all the way down at the Opera House on the front pages of newspapers right around the world. We don’t want a repeat of that.”

In the end, events in Sydney and Melbourne will proceed, after NSW Police and rally organisers reached an 11th-hour agreement to avoid the Great Synagogue in the CBD. They will have a strong police presence.

But civil liberty advocates say existing laws – some of which are yet to be tested – should have been enough for protests to have proceeded without controversy. “We have legal protections against dangerous, violent, or offensive conduct. It is those laws that should be applied if necessary,” said Geoffrey Watson, director of the Centre for Public Integrity. “The freedom to protest peacefully is an essential characteristic of a healthy democracy. A blanket ban like this is anti-democratic.”

The government’s envoy for social cohesion, Labor MP Peter Khalil, says laws clearly outline what is and is not tolerable. “It’s a fundamental democratic right to be able to protest and to be able to express oneself as a citizen on any issue. And that is supported 100 per cent,” he said. “Where the social cohesion is frayed, is [with the] very small number of incidents where there have been some levels of intimidation or physical harassment or violence. And that is unacceptable.”

But he doesn’t think the conversation about protests on October 7 should be about what’s legal.

“Legal permits aside, people are free to do whatever they want, right? But outside of the law, there’s a question of basic decency. There’s a question of looking at what happened to the Jewish community on that day,” he said.

“The law can’t determine everything. But people need to think through what is the best thing they can do to support others in pain: empathising, listening, acknowledging pain and suffering ... Social cohesion is about how we behave, how we engage with each other. And that basic decency that we have towards each other, even if I disagree with you.”

Student protests outside Town Hall in Sydney last November.Credit: Nick Moir

Alex Ryvchin, co-chief executive of the Executive Council of Australian Jewry, said he had never objected to pro-Palestine rallies each weekend. “We’ve objected to elements of those protests: the open support for terrorism, the anti-semitism, the placards, the chants... But the notion of actually assembling and rallying for something which they care about and believe in, even if I find it abhorrent, is perfectly fine,” he said.

“But all rights have limits,” Ryvchin said. “To do this on October 7 is so provocative and shameful that it requires police action... I appeal to these protesters: show a shred of dignity and humility … let the good and decent people of this city mourn and commemorate on that day. And if these protesters won’t listen, the law should be enforced and the police should act to bring harmony back to our society.”

Activists say this week, as the war escalates, is an important time to keep protesting. Amnesty International said there was a concerning global trend of repressing pro-Palestinian protests and any restrictions must be “necessary, proportionate and justified”.

Abeer Saleh, from the Palestinian Australians Welfare Association, said the rally was a chance to be “heard and seen”.

“It’s an opportunity to collectively heal and deal with the trauma we are experiencing,” Saleh said. “More than any other time, we need to grieve and seek the support of those who stand for justice and advocate for our welfare. Taking this away would be yet another example of hypocrisy and double standards.”

Greens Senator Mehreen Faruqi said the government and Coalition were “silencing dissent” in their calls for demonstrators to stand down. “People have every right to gather and protest, it is a fundamental democratic right,” Faruqi said on social media.

Khalil disagreed: “There have been hundreds of protests, every weekend. There have been protests in front of electorate offices. There have been protests in the city, major cities. There has been media coverage, there’s been articles … Does anyone really think that anyone is being silenced?”

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