No human right is absolute: we have lost our sense of right and wrong
After two years of rage in the streets, blind Freddy can see this is the real issue that needs to be resolved: does the right to free speech under Australian law protect those who celebrate the killing of Jews?
Or should the rights Australian law bestows upon terror supporters be balanced against the right of every Australian to be protected from intimidation and racial hatred?
In a perfect world, that is how the argument about the proposed public protest on the Opera House forecourt would be framed.
It would empower the court to deal squarely with the shocking reality of what has happened to this country since the terror attacks on Israel two years ago.
Synagogues have been firebombed, Jewish businesses have been attacked by street toughs, Jewish business have been vandalised and unprecedented security measures are now common at Jewish institutions.
And all of this just happens to coincide with endless gatherings in our major cities of those seeking destruction of the Jewish state “from the river to the sea”.
If this argument were pitched this way, it would require the court to strike a balance between two fundamental rights: on the one hand, freedom of speech for those who celebrate murder; on the other, the right of every Australian to be free from intimidation.
Yet thanks to the flawed nature of NSW laws governing street protests, the Court of Appeal will be required to deal with this issue under a statute that is fatally biased. It has been designed to facilitate street protests, not prevent them.
NSW police are trying to persuade the Court of Appeal to issue a “prohibition” order under Part 4 of the Summary Offences Act against the proposed assembly outside the Opera House.
Here’s the problem: the provision at the heart of this system does not mean what it says.
When section 25 of this act says “prohibition” orders against a protest can be issued by a judge, what it really means is that any such order will not stop a protest.
If the Court of Appeal does issue such an order, all that will happen is that participants in the proposed protest would be stripped of limited immunity from prosecution for some offences.
The protest itself could still proceed, whether or not the court issues a prohibition order.
This is because Part 4 of the Summary Offences Act gives priority to ensuring street protests go ahead, which has been made abundantly clear by the Supreme Court in several recent decisions.
In 2003, in a case known as Rintoul, judge Carolyn Simpson ruled: “The making of a prohibition order does not render the conduct of, or participation in, an assembly unlawful.”
In 2004, in a case known as Gabriel, judge John Hamilton, ruled: “The whole purport of the part is not to prohibit public assemblies but, certainly where they are a due exercise of the democratic right of free speech, to facilitate them by protecting participants in appropriate circumstances from prosecution for certain offences.”
In August, when police applied unsuccessfully for a prohibition order against the proposed protest on the Harbour Bridge, judge Belinda Rigg said the consequence of issuing such an order “is not that the assembly would be prevented from taking place. Rather the consequence would be that the immunity conferred by section 24 would not apply.”
Freedom of speech – and freedom to protest – are fundamental rights in our democracy, but no human right is absolute. They all need to be balanced against the rights enjoyed by others.
It is perfectly legitimate to regulate the manner in which the right to free speech is exercised. Yet the law governing street protests in NSW has set the wrong balance.
It comes very close to treating the right to protest as some sort of absolute entitlement regardless of whether this has a foreseeable and adverse impact on the rights of others.
There is no right to shout “fire” in a crowded theatre precisely because it is foreseeable that such an act would threaten the right to public safety enjoyed by others.
Exactly the same logic should decide the argument about whether those who celebrate the murder of Jews should once more be entitled to use one of our national icons to intimidate Australians because of their race or religion.
That, unfortunately, is unlikely because the argument before the Court of Appeal will be infected by the flawed provisions of the Summary Offences that, as the judges have said, are designed to “facilitate” street protests.
Chris Merritt is vice-president of the Rule of Law Institute of Australia
More Coverage
A boy’s death in custody puts the youth justice system on trial
The real issue that should be before the NSW Court of Appeal is whether the right to free speech protects the glorification of mass murder and incitement of racial hatred.