The time has come for it to be made clear that responsible, peaceful and socially distanced protest activity is lawful in the State of Victoria.
Liberty Victoria is very concerned by the recent arrests and issuing of infringement notices for persons engaged in protest activity. This includes:
- On 27 October 2020, the arrest of 50 persons and issuing of a significant number of $4,987 fines to persons protesting the destruction of culturally significant trees to the Djab Wurrung people near Buangor, west of Melbourne;[1] and
- On 3 November 2020, the arrest of 404 people protesting outside Parliament House in Melbourne’s central business district, and the issuing of 395 fines.[2]
During the COVID-19 pandemic, Liberty Victoria has supported limitations on human rights protected by the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter), including the human rights of freedom of expression and peaceful assembly as protected by ss 15 and 16 of the Charter, where such limitations are proportionate and based on expert public health advice.
However, we are now in a different environment; one where a prohibition on protest activity is no longer justified or proportionate. Thankfully new cases of COVID-19 transmission have fallen to zero. Under the present “Stay Safe Directions” people are free to visit crowded shopping centres, play outdoor sport, and gather in outdoor groups of up to ten persons. In those circumstances, people should be free to engage in responsible, peaceful and socially distanced protest activity. Of course this does not extend to any acts of intimidation or violence.
In the recent Supreme Court judgment of Loielo v Giles[3] (where the previously imposed curfew was found to be lawful) the State of Victoria accepted that those public authorities making the directions pursuant to the Public Health and Wellbeing Act 2008 (Vic) are bound by s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Act).[4]
In those circumstances, and where the rights of freedom of expression and peaceful assembly are clearly limited by the directions, the onus of “demonstrably justifying” the limitations in accordance with s 7(2) of the Charter resides on the Government.[5] In light of what must be justified, the standard of proof is high.[6]
It is submitted that, in the present circumstances, Directions that purport to prohibit protest activity may well be unlawful. Liberty Victoria calls for the Directions to be amended so that is it clear that responsible, peaceful socially distanced protest activity is lawful. Further, those infringements issued against persons engaged in recent protest activity (and who did not engage in other alleged criminal offences) should be withdrawn. Peaceful protest, whatever the cause, is vital to a functioning democracy.
For enquiries contact spokesperson Michael Stanton, Liberty Victoria at: info@libertyvictoria.org.au or phone 03 9670 6422.
[1] Wahlquist, Calla, “Djab Wurrung trees: destruction on hold as Victorian supreme court agrees to hear case”, 28 October 2020, <https://www.theguardian.com/australia-news/2020/oct/28/djab-wurrung-tree… at 5 November 2020.
[2] ABC News, “Melbourne anti-lockdown protest sees around 400 demonstrators arrested and fined”, 3 November 2020, <https://www.abc.net.au/news/2020-11-03/melbourne-anti-lockdown-protest-s… at 5 November 2020.
[3] [2020] VSC 722. This concerned the curfew between 9:00pm and 5:00 contained in the Stay at Home Directions (Restricted Areas) (No 15).
[4] Loielo [2020] VSC 722, [207], fn 195.
[5] Re an application under the Major Crime (Investigative Powers) Act 2004; DAS v Victorian Human Rights & Equal Opportunity Commission [2009] VSC 381; (2009) 24 VR 415 (DAS), 448 [147] (Warren CJ). Approved by the Court of Appeal in R v Momcilovic [2010] VSCA 50; (2010) 25 VR 436, 475 [144]; Children v Minister for Families and Children (No 2) [2017] VSC 251; (2017) 52 VR 441, 498 [175] (John Dixon J).
[6] Ibid. In DAS at 449 [148], Warren CJ cited with approval the observations of Dickson CJ in the celebrated judgment of R v Oakes [1986] 1 SCR 10, 43 [70]:
There are… three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in question … Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance.” [citations omitted]