The timing is shameful, but the pro-Palestinians have a right to protest

The right to peaceful protest has long been recognised as an ancient right of all citizens at common law. More than a century ago, in the 1922 case of Melbourne Corporation v Barry, the High Court recognised the right of all citizens “to use the King’s highway in company on occasions that frequently represent great and important national, political, social, religious or industrial movements or opinions”, pointing out that “a procession passing along a public thoroughfare is, to begin with, no more than a number of individuals exercising in the aggregate the individual right of each to pass along the thoroughfare”.

Pro-Palestinian protesters at Hyde Park in Sydney.Credit: Dean Sewell

While its exercise is subject to appropriate regulation to maintain public order, and cannot be exercised for an unlawful purpose, those limitations are qualifications on the fundamental right to participate in an orderly procession to demonstrate on behalf of a political cause.

The majority of Australians – and most political leaders – will have little sympathy for the pro-Palestinian protests taking place this long weekend. The fact that they have been deliberately scheduled to coincide with the first anniversary of the Nova Music Festival massacre is shameful and grotesque. But that does not make them unlawful. Those of us who support Israel in its war against Hamas and Hezbollah – and, as I have made clear in columns in this masthead, nobody supports Israel’s position more strongly than I do – must not let our distaste for the protesters’ cause, or our disgust at their timing, overcome our commitment to the rights that all citizens enjoy, in a liberal democracy, to speak freely and to associate peacefully.

Voltaire may or may not have actually uttered the words often attributed to him — “I disapprove of what you say, but I would fight to the death for your right to say it” — but the sentiment is a wise one. If we truly believe in free societies, we must respect the freedom of others: those with whom we profoundly differ just as much as those whose views and values we share. And that applies to everyone, including those (like so many of the pro-Palestinian protesters) who do not extend reciprocal respect to the rights of those who disagree with them. As the American jurist Oliver Wendell Holmes once observed, “a constitution is made for people of fundamentally differing views”. To be a free society is to be a tolerant one. It is one of the paradoxes of freedom that this can mean tolerating the intolerant.

That liberal spirit of tolerance is not a natural instinct. As Sir Robert Menzies said in one of his Forgotten People broadcasts in 1942: “[T]he whole essence of freedom is that it is freedom for others as well as for ourselves: freedom for people who disagree with us as well as for our supporters; freedom for minorities as well as for majorities. Here, we have a conception which is not born with us but which we must painfully acquire. Most of us have no instinct at all to preserve the right of the other fellow to think what he likes about our beliefs and say what he likes about our opinions. The more primitive the community, the less freedom of thought and expression it is likely to concede.”

The rhetoric of pro-Palestinian activists is as contemptible as it is dishonest. One egregious instance is the incessantly repeated claim that Israel is guilty of genocide. The 1948 Genocide Convention defines the crime of genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical [sic.], racial or religious group”. A defensive war against terrorist entities, undertaken for the purpose of eliminating an existential threat to the Israeli state, is not genocide. The only participants in this war which are committed to genocide – whose declared and explicit objective is the elimination of the nation of Israel – are Hamas and Hezbollah. Yet this weekend, Hamas and Hezbollah apologists accuse Israel of the very crime of which it is the intended victim.

Nevertheless, unless they cross the legal line of actually displaying terrorist symbols, or engage in violent or disorderly conduct, this weekend’s protesters will be breaking no law. Idiocy, ignorance and dishonesty are not grounds to prohibit the expression of political opinions.

The Liberal Party needs to tread carefully here. It must have the strength to resist the incandescent demands of elements of the right-wing commentariat who fail to see that to have justifiable contempt for the views of the protesters does not mean denying their right to demonstrate those views.

It is many years since the left gave up on freedom of speech. In its embrace of identity politics and political correctness, it abandoned the field to conservatives. The Liberal Party has, over those years, won a hard-earned reputation as the champion of free speech. Defending free speech can be hard. As Menzies pointed out, it does not come naturally to human beings to defend the rights of those who disagree with them. As I found in my time in parliament, uniquely among the parties, it is only Liberals who defend the rights of their enemies.

Yet you can only be taken seriously as a defender of free speech if you are willing to do just that: to defend the right to free expression of views which you oppose and, at times, despise. Indeed, it is the very fact that we do defend that right which defines us as a free society. This weekend is, for Australia, our Voltairean moment.

George Brandis is a former high commissioner to the UK, Liberal Party senator and federal attorney-general.

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