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The rights you thought you had

By Kellie Tranter - posted Wednesday, 9 November 2011

There is no question that most police officers do a good job, and their union may be justified in protesting and passing motions of no confidence in NSW Police Minister Mike Gallacher and Commissioner Andrew Scipione if their members are being disadvantaged by plans to replace a death and disability compensation scheme for police with a new commercial insurance arrangement. But it’s interesting that while they’re standing up for their rights, at the same time they have no qualms about being deployed to crack down on peaceful assemblies of people of all ages and from all walks of life calling for things like government accountability, increased equality and an end to corporate debauchery.

Unfortunately, unlike the United States, we don't enjoy constitutional rights enshrined by a Bill of Rights. Even though there is no Commonwealth legislation that enshrines the right to freedom of assembly and association, people seem to forget that Australia is a party to the International Covenant on Civil and Political Rights (ICCPR). The right to freedom of assembly and association is contained in Articles 21 and 22. 

Political analyst, and author of "Speech Matters: Getting Free Speech Right", Katharine Gelber provides the following insight in her paper ‘The right to protest in Australian political culture’:


The Commonwealth has the constitutional power to legislate in favour of the right to assembly as a component of implementing the ICCPR, should it wish to do so, under the auspices of the external affairs power (s51(xxix)). But to date no federal government has legislated to implement comprehensively the terms of the ICCPR, or to enshrine the right of peaceful assembly.  In the absence of explicit statutory developments at a Commonwealth level, resort to the ICCPR as a method of clarifying ambiguities in domestic legislation is highly unlikely...Some attempts have been made to introduce constitutional and statutory protection of human rights related to the right to protest, but all have failed.

Gelber quite helpfully points out that in New South Wales, for instance:

...provision for ‘authorised public assemblies’ is made in the Summary Offence Act 1988 (s23).  The Act allows for a notice of an assembly with relevant particulars to be addressed to the Commissioner of Police in order to hold an authorised assembly.  Doing so grants immunity to participants from potentially related offences such as obstruction...In addition, the Law Enforcement (Powers and Responsibilities) Act 2002 (s200) provides that police officers’ power to give directions to persons in public spaces do not extend to the authorisation to give directions in relation to ‘an apparently genuine demonstration or protest’ or an ‘organised assembly’...’

So while Americans’ have been assembling now for a period of 51 days in exercise of their constitutional rights, Australians with similar grievances but without a positively stated right to peaceful assembly are dispersed by force when the authorities decide “they have made their point”. 

In September 2010, the U.N. Human Rights Council decided to appoint a Special Rapporteur on the freedom of peaceful assembly and association. The Special Rapporteur, Maina Kiaiis, is mandated to promote and protect the rights to freedom of peaceful assembly and of association.

In October 2010, the Human Rights Council, of which Australia is a non-member State, adopted Resolution 15/21 (without a vote). That Resolution reaffirmed that everyone has the rights to freedom of peaceful assembly and of association; recognised the importance of the rights to freedom of peaceful assembly and of association to the full enjoyment of civil and political rights, and economic, social and cultural rights; recognised also that the rights to freedom of peaceful assembly and of association are essential components of democracy, providing individuals with invaluable opportunities toexpress their political opinions; and recognised further that exercising the rights to freedom of peaceful assembly and of association free of restrictions, subject only to the limitations permitted by international law - is indispensable to the full enjoyment of these rights, particularly where individuals may espouse minority or dissenting religious or political beliefs.


The Special Rapporteur is required to act upon receiving credible information on concrete incidents and individual cases related to the infringement of the rights to freedom of peaceful assembly and of association. Upon receipt of prima facie credible and reliable information, the Special Rapporteur transmits the information to the Government concerned and requests it to provide him with comments and observations.

Lodging individual complaints with the Special Rapporteur is fairly straightforward, so it will be interesting to see what emerges if members of the ‘OccupyOz’ movement go down that path.

The recent State Government crackdowns on peaceful assemblies also raise the important issue of action and reaction.  Students of peace theory and the dynamics of protest will be well aware of the warning that all too often the evolutionary process of peaceful change is thrown out of balance by an overzealous initial use of force, giving rise to an escalating see-saw of action and reaction. The first use of force polarises the conflict, hardening attitudes, both of those agitating for change and those opposing it, and escalating the antipathy.  The original objectives of the protesters become lost, the sole goal becomes winning the “battle” and the loser is social cohesion. 

One wonders whether or not our State Governments, in the infinite wisdom conferred by right and might – and the Federal Government too, standing silently by notwithstanding its international obligations – realise that sending in riot police and mounted police, using pepper spray, destroying personal property in compactors, and gratuitously using force (in Sydney, particularly, the "wrist-lock" manoeuvre) to disperse peaceful assemblies sets us on a path to radicalisation. Irrespective of their views on the merits or otherwise of the Occupy protests, most Australians were discomfited, and many were appalled, by the quite unnecessary use of force against non-violent, relatively orderly, demonstrators.  Many others have had cause to wonder whether or not they are living in some sort of police state, with the repression by force of people exercising democratic rights they mistakenly thought we had. 

Hopefully the sense of outrage the wider community feels about the top end raining fire and brimstone on the innocuous and downtrodden will reinvigorate calls to the state governments – futile as they are likely to be – and our federal government to enshrine our basic human and civil rights in laws conferring positive rights that will prevent the forceful oppression of non-violent, popular protest movements.

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About the Author

Kellie Tranter is a lawyer and human rights activist. You can follow her on Twitter @KellieTranter

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