Minns’ bid to block protest could be costly for free speech

The decision by NSW Premier Chris Minns to seek to limit a pro-Palestinian rally in Sydney planned for this weekend raises important human rights issues, namely the right to freedom of assembly and to freedom of speech.

More broadly, governments need to be very cautious in seeking to curtail or ban protests. It is preferable to use existing laws to prosecute those who attend and incite racial hatred or who demonstrably use a protest to support terrorist organisations such as Hamas in this case.

Palestinian supporters at the Sydney Opera House on Monday. Credit: AP

While Minns has not said he is banning the proposed Palestinian Action Group Sydney’s protest at the Sydney Town Hall on the weekend, he has taken the unusual step of indicating he would not let such an event “commandeer our streets” because, he says, the organisers are “not a peaceful organisation” and the result of last Monday night’s rally at the Opera House was “hatred on the streets of Sydney”.

The intervention of the premier provides an opportunity to take a more high-level look at how to manage the right to protest when the topic is highly sensitive.

Freedom of assembly and freedom of speech are core values in a liberal democracy, and particularly because of the context of political participation. Of course, they are rights that are not unlimited in scope. But there should be a presumption in favour of allowing protests in public places if the organisers pledge that the protest is non-violent in both a verbal and physical sense.

Furthermore, it needs to be recognised that unfortunately protests can attract individuals and groups who wish to “gate crash” for nefarious purposes. That is no reason for governments to make it more difficult for peaceful protesters to gather. In fact, “commandeering our streets” is a hallmark of protests in Australia, and has been for many years.

For example, a handful of the Voice referendum No case rallies have seen the presence of racist groups and others peddling extremist and disturbing views. This masthead reported on September 23 that a Melbourne No case rally had seen “neo-Nazi Thomas Sewell [who] gatecrashed the end of the No rally with a group of people wearing black masks, unfurling a banner on the steps of Victoria’s state parliament that read ‘Voice = anti-white’”.

The official No case rightly distanced itself from this appalling spectacle but since then, many No rallies have been held across Australia.

It is a big reason to be concerned when political leaders such as Minns make statements that indicate an intention to make protests more difficult. It undermines what the United Nations Human Rights Committee has called “a valuable tool that can and has been used to recognise and realise a wide range of other rights, including economic, social and cultural rights”.

The committee’s 2020 “general comment” on peaceful assembly makes it clear that authorities must allow protests to “take place without unwarranted interference and to facilitate the exercise of the right and to protect the participants”. As the committee notes, when it comes to proposed restrictions, they “must be narrowly drawn”. Minns’ effective ban on the proposed Palestinian protest being allowed to march down Sydney’s streets might be said to be too broad a restriction.

A better approach for governments in dealing with protests about highly contested and deeply emotive issues, where there is potential for violence or hate speech on the part of a minority, is to use existing laws to charge people who break them.

Those who incite hatred against the Jewish people can be charged under the NSW Crimes Act, which makes it an offence to publicly threaten or incite violence on a range of grounds, including race and religion. This offence carries a maximum penalty of three years’ imprisonment.

There are also offences, many of which emerged after the terrorist attacks of September 11, 2001, which deal with support for terrorist organisations. Under the Commonwealth Criminal Code, offences relating to advocacy and support for terrorist actions and organisations carry jail terms of between five and 25 years.

Another difficulty with Minns’ approach is the precedent it might set. It appears he and his government were caught by surprise when elements of last Monday’s rally incited racial and religious hatred of the most egregious kind.

His reactive response appears to establish criteria for curtailing or banning future protests based on whether – despite organisers’ pledges that they will protest peacefully – elements might infiltrate the gathering.

If this is the case, it could lead to a future government using this as a reason to decide it will not allow a protest, or at least reduce its capacity to influence public discourse, simply because it finds the subject matter too controversial.

Greg Barns SC is national criminal justice spokesman for the Australian Lawyers Alliance.

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