He thinks we doth protest too much (the constitution says otherwise)

As Australia’s northeastern states continue to burn in catastrophic and unprecedented bushfire conditions, and with Australia’s trust in politicians at an all-time low, public protest is pressuring the government to face up to its climate responsibilities.

But as climate protest action has increased, most politicians are so far unmoved. PM Scott Morrison has labelled protesters “anarchists” pushing a “new breed of radical activism” that “at its heart would deny the liberties of Australians”. This is an interesting way to refer to an activity — protest — that is key to Australia’s democracy.

It’s also, in part, why CIVICUS Monitor, the global research collaboration that tracks fundamental freedoms in 196 countries, recently downgraded Australia’s status from an “open” country to one where civil space is “narrowed”.

Nevertheless, Morrison and his team claim to be “working to identify mechanisms that can successfully outlaw” the so-called “indulgent and selfish practices” of climate protesters. Morrison made these promises during a live-broadcast speech to the Queensland Resources Council earlier in November, which made climate advocates, members of the media, and those at the other end of the political spectrum hot under the collar.

But the question of how much a government can reasonably punish climate protesters — with cuts to welfare, fines, even arrests and jail time — depends on an often vastly misinterpreted section of the Australian constitution, concerning our implied right to freedom of political communication.

Adrienne Stone is a Redmond Barry Distinguished Professor and Director of the Centre for Comparative Constitutional Studies at Melbourne Law School. She explains to Crikey what “right to protest” the constitution provides to Australians.

“The constitution says that the houses of the Australian parliament shall be directly chosen by the people,” Stone said, “and since the early 1990s the High Court has said the constitution requires that the Australian people make a choice as to who governs them.”

“As a result,” she explained, “they need to be in a circumstance where they can make a true choice. And to make a true choice, they need freedom of political communication.” That’s the line of reasoning, Stone says, that “gives rise to this doctrine of political communication in the constitution. And it’s a potentially very powerful idea.”

The right to freedom of political communication covers various formats — not just “rational political discussion like they have on Insiders on Sunday morning,” Stone said. It can include “expressive conduct” and “appeals to emotion”, and also “quite raucous and unpleasant kinds of communication”.

And, says Stone, the High Court has also been “quite clear” that the capacity for “protesters to protest at a particular place of their choosing is important”. She cites the recent High Court win for former Greens leader Bob Brown and Jessica Hoyt against Tasmania’s 2014 anti-protester laws, which allowed police to stop protests before they had started if they were on a business premises or an access area.

It was under this legislation that Brown was arrested on a public road in Tasmania’s north-west, while trying to take video footage of loggers. Though the charges against Brown were dropped, he and Hoyt took their challenge to the High Court to test the laws many believed were unconstitutional, despite facing opposition from the Victorian, New South Wales, Queensland, South Australian and federal governments, which supported Tasmania’s anti-protest legislation.

As Stone puts it, “they accepted the reasoning … that one of the important things for environmentalists was to be able to protest on site”. It doesn’t mean they’ll always be protected: she points out that “the High Court’s recognised reasonably strong but not unlimited rights to protest”.

But what of Morrison’s claims to be investigating “mechanisms” to outlaw the protesting he and many of his parliamentary colleagues find so distasteful?

While Stone notes that “nothing I’ve seen has been terribly clear about what he’s proposed”, she’s keen to point out that “the right to protest is not unlimited”. You cannot, for example, cause unlimited damage, or obstruct public roads indefinitely in the course of protesting. “And federal courts have recognised, in the case of the Occupy Melbourne and Sydney, that you can’t just indefinitely occupy a public park.”

But, regarding the idea that you could outlaw a campaign calling on people to exercise their consumer rights in a certain way, “I think it’s very novel, and it’s much, much, much more significant — if that is what’s being proposed.” Stone also notes that the government would need to be “very careful” that whatever they propose did not “only apply to protesters who have particular points of view.

“If you look at the High Court’s case law, there’s reason to think that if a law distinguishes between types of protesters without good reason to do so, that the High Court will think that’s not a reasonable limit on freedom of expression. That they’re not going to, I think, just permit the government to simply intervene in public debate and favour some voices over the voices of others.”