THE RIGHT TO PROTEST IN THE TIME OF COVID

Mia Stone and Andrew Ray

  1. Context

The recent attempt by NSW Police to ban a protest in Sydney on public health grounds in the time of COVID-19 raises pertinent constitutional questions which have not been addressed by litigation on the matter. The protest was organised in the wake of the recent death of unarmed African American man George Floyd at the hands of Minneapolis police. The incident has struck a particularly sensitive chord in Australia where parallels have been drawn to Australia’s own history of racism, abuse of police powers and, in particular, the 437 Indigenous deaths to date in custody since 1991.[1] Protests in solidarity with the US movement and against Aboriginal deaths in custody have been held around Australia in the past week, attracting large crowds. One of the largest was held in Sydney on Saturday 6 June where around 20,000 people marched.[2] All of this, however, takes place against the backdrop of a global pandemic in response to which drastic restrictions have been imposed on people’s movements and gatherings. This raises constitutional questions about the extent of the implied freedom of political communication and whether the act of protest can be curbed by public health orders.

  1. COVID and the public health orders

Public discussion around the protests has centred on whether the protests should have gone ahead in light of restrictions imposed to combat COVID, with many commentators referring to the sacrifices that Australians had made to date in response to the pandemic. In Australia, restrictions were imposed both by the Federal Government (to block international travel, quarantine returning travelers and impose restrictions on particular (Indigenous) communities), and state and territory governments (generally limiting which businesses could remain open and the size of gatherings). These restrictions vary between jurisdictions, and have begun to be eased as Australia continues to “flatten the curve”. In NSW the present restrictions are set out in the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 3) 2020 (the Order) which was made pursuant to s 7 of the Public Health Act 2010 (NSW) and came into effect on 1 June 2020. Under Part 2 of the Order, gatherings are limited in outdoor areas to a maximum of 500 persons (clause 8(1)(a)). There is nothing in the Order that expressly deals with the rights and responsibilities of people to engage in or organise protests, and the general media reports about the Black Lives Matter protests similarly only referred to the “500-person rule”. Earlier public health orders, however, did bar leaving the house for any reason that was not essential – a list that did not include protesting. In addition to the specific regulations, advice was issued by the Prime Minister, various Premiers and Health Officers that people should not attend the Black Lives Matter protests.

  1. NSW law on protests

The Sydney protest was also subject to NSW law regarding public assembly. The Summary Offences Act 1988 (NSW) provides a framework by which protests can become “authorised”, protecting participants from certain offences they might otherwise be liable for (such as obstruction of traffic). Authorisation also protects individuals against liability for participation in an unlawful assembly as defined in s 545C of the Crimes Act 1900. This made authorisation extremely important in the present context, given the prohibition on outdoor gatherings of over 500 people. A protest will be authorised if the Police Commissioner is given at least seven days’ notice of the proposed gathering and it is not prohibited by a court, or, if less than a week’s notice is given, the gathering is authorised by a court.

  1. Judgments

On the evening of Friday 5 June, less than 24 hours before the Sydney Black Lives Matter protest was scheduled to commence, the NSW Police Commissioner sought an urgent injunction from the NSW Supreme Court prohibiting the protest on the grounds that it would increase the risk of transmission of COVID-19. Although the first-instance judgment has not yet been published, some information has been made available via news media. It is reported that the Police Commissioner argued that over 33,000 people had indicated an interest in attending on Facebook, and that organisers had admitted to not being able to ensure social distancing. The State’s Chief Health Officer, Dr Kerry Grant, gave evidence that although community transmission levels were low, it was possible that some cases remained undetected and a large gathering would increase risks.[3] On the other hand, protest organisers submitted to the Court that people would march regardless, and the event would be safer if authorised, as people could better space themselves without pressure from police.[4] There was also debate about whether the required notice had in fact been given as a result of significant amendments to the number of attendees expected.[5] The Court accepted the Police Commissioner’s arguments and granted an injunction. From the extracts of the judgment that have been made available, Justice Desmond Fagan appears to have deferred considerably to the executive, stating that ‘for the court to authorise a gathering would amount to a defiance of a judgement that has been made by ministers of the government and the public health officials who advise them’.[6] He acknowledged the importance of the issue, but ultimately decided that the current health orders took precedence over the right to assembly,[7] adding that the right was not ‘taken away’, but merely ‘deferred’.[8] It is unclear what he meant by the term ‘right’ as there is no constitutional or common law right to assembly in Australia.

In a dramatic turn of events, however, the decision to disallow the protest was reversed by the Court of Appeal just 15 minutes prior to the event (which had attracted a considerable crowd despite the ruling). However, the decision was made on the narrow procedural basis that the Supreme Court had made an error of law in finding that the updates to expected participant numbers rendered it a new notice, triggering the need for authorisation. Instead, the Court of Appeal held that it was merely an amendment and the protest therefore met the notice requirements.[9] Hence, unresolved questions remain about the interaction between the implied freedom of political communication and the present restrictions on gatherings to deal with public health threats. In particular, it remains unclear on what grounds police could seek to prevent future protests, and what factors a court would need to take into account were such a decision to be challenged.

  1. IFPC and balancing the ‘right to protest’ against public health

It is important to acknowledge that Australians do not have a constitutional right to protest, a right to gather, or a right to free speech (unlike their US counterparts). Instead, in Australia these “rights” are broadly protected by the implied freedom of political communication (the IFPC), a limitation on federal and state legislative and executive power that was derived by the High Court of Australia in key cases throughout the 1990s and early 2000s. The Court drew the IFPC from the text and structure of the Constitution particularly ss 7, 24 which establish a system of responsible and representative government (through requiring that Senators and Members of Parliament are “directly chosen by the people”) as well as ss 64 and 128. Together, the  High Court has held that they amount to an IFPC which is necessary to protect the ability for Australian citizens to engage in political discourse around elections. The IFPC is, however, not a private right and may be limited or taken away in certain circumstances. A striking example is the longstanding ban on political communication by public servants, severely limiting the efficacy of protests within the ACT and barring a significant number of experts from commenting publicly on political matters. The High Court applies the McCloy test as modified in Brown v Tasmania to determine whether a law or action inappropriately infringes the IFPC, asking:

1.  Does the law effectively burden the implied freedom in its terms, operation or effect?

2.  If ‘yes’ … is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

3.  If ‘yes’ … is the law reasonably appropriate and adapted to advance that legitimate objective … ?[10]

It is clear that blocking the protest would burden political communication (the matter being inherently political, and one of importance to national debate). However, the purpose of the law (preventing a public health emergency) is likely compatible with the system of representative and responsible government. The key issue is therefore whether blocking such protests could be considered reasonably appropriate and adapted. In applying (3) the Court asks whether the law or action is suitable, reasonably necessary and adequate in its balance – the “structured proportionality” test.

While the calculus to be applied to question (3) is complex, factors that would need to be considered would include the actual public health threat and the steps that could be taken instead of an outright ban. While it the Court settled the question on narrow grounds without considering the IFPC, given low rates of community transmission and the continued reopening of businesses and borders, it seems likely that outright banning of the Black Lives Matter protests would not accord with the IFPC (although bans earlier in the pandemic cycle may have been legitimate). At the time of the hearing, no community transmission had been recorded in NSW for over a week. The four new cases that were recorded that day were from recent overseas returnees, all of whom were in hotel quarantine.  Although it must be acknowledged that the risks of complications from COVID-19 is higher for Indigenous Australians (who were out in large numbers at the Black Lives Matter protests), the low risks meant that measures to limit contact and spread protestors out would likely form a less restrictive means of accomplishing the health objective, such that a ban would not be necessary. For example, requiring the protestors to march in waves of 500 people, to wear masks, and to remain as far from possible as reasonably practical would be a better alternative (more consistent with the IFPC) than stopping the protests altogether. Other forms of expression, for example, posting on social media or writing to politicians about the issue, are not as effective or powerful and are much easier to ignore by governments. There is also evidence that the use of tear gas and pepper spray, commonly used by police against protesters, is likely to increase the risk of spreading coronavirus.[11] This is because these substances can cause tears and runny noses as well as coughing and sneezing, spreading these potentially virus-carrying droplets. Acknowledging that protesters had vowed to march regardless of the court outcome, a practical approach allowing the protest would actually reduce the risk of infection. It is much less likely that chemical agents would be used by police to break up a lawful protest (although this did still occur to some extent). Justice Fagan’s rejection of this argument on the grounds that it would be ‘futile’ to assume that people would not respect the court’s decision elevates black-letter law philosophy over the particularly imperative nature of practicality in a public health crisis.

Such a harm-minimisation approach would mirror the approach taken in the ACT and SA where protests were allowed with additional health precautions, and is both more sensible and more compatible with constitutional rights than NSW Police’s attempt to block the protest altogether.

A further concern is Justice Fagan’s apparent adoption of Scott Morrison’s flawed reasoning that Australians had made significant sacrifices in order to combat COVID-19 and that protesters did not deserve an exception. Not being able to protest is not analogous to not being able to attend an ANZAC Day ceremony or funeral. All involve commemorating the dead, however, unlike ANZAC Day and funerals, the Black Lives Matter protests are inherently political, and are about demanding change in the present. The political nature of protesting distinguishes it from other activities, in that it attracts the protection afforded by the IFPC and as such it should be afforded different protections than other types of activities. It is also important to note that the health risks at present differ significantly from the situation around the time of ANZAC Day, when Australia’s ability to flatten the curve was far less certain.

  1. Conclusion

While balancing public health risks against the right for people to peaceably protest is a complex task, the IFPC offers significant guidance through the application of a structured proportionality test. While we are yet to see the full decision of the NSW Supreme Court, the reasoning of the Court of Appeal suggests it will not offer significant analysis of the issues we identify above. In the authors’ view, the IFPC should extend to protecting Black Lives Matter protestors and organisers, and that the Australian governments should consider appropriate harm minimisation strategies, rather than banning the protests altogether. Protesting plays a fundamental role in Australia’s democracy and remains an important check on power during a time of secrecy and rapid decision-making (in many cases without time for wide and transparent consultation). While necessary in a time of crisis, there is a risk that governments may continue to use the cover of a pandemic to silence dissent, even as risks decrease to a point where appropriate harm-mitigation strategies can meet the objectives of both democratic participation and  public health needs.

The Authors wish to thank Associate Professor Matthew Zagor and Senior Lecturer Dilan Thampapillai of ANU College of Law for their guidance and feedback on this piece.

[1] Lorena Allam, Calla Wahlquist and Nick Evershed, ‘Aboriginal deaths in custody: Black Lives Matter protests referred to our count of 432 deaths. It’s now 437’, The Guardian (online, 9 June 2020) <https://www.theguardian.com/australia-news/2020/jun/09/black-lives-matter-protesters-referred-to-our-count-of-432-aboriginal-deaths-in-custody-its-now-437&gt;.

[2] ABC News, ‘George Floyd protests live updates: Black Lives Matter protesters gather around the world’, ABC News (online, 7 June 2020) <https://www.abc.net.au/news/2020-06-07/george-floyd-protests-us-live-updates-black-lives-matter/12330128&gt;.

[3] Jamie McKinnell, Lily Mayers and Emma Elsworthy, ‘NSW Supreme Court bans Sydney Black Lives Matter protest’, ABC News (online, 5 June 2020) <https://www.abc.net.au/news/2020-06-05/court-rules-sydney-black-lives-protest-unsafe-due-to-coronavirus/12324186&gt;.

[4] Steven Trask, ‘’Justice won’t wait’: Protesters vow to defy Supreme Court at Sydney Black Lives Matter rally’, SBS News (online, 6 June 2020) <https://www.sbs.com.au/news/justice-won-t-wait-protesters-vow-to-defy-supreme-courst-at-sydney-black-lives-matter-rally&gt;.

[5] Georgina Mitchell and Michaela Whitbourn, ‘Court of Appeal rules Sydney Black Lives Matter protest is authorised’, Sydney Morning Herald (online, 6 June 2020) <https://www.smh.com.au/national/nsw/court-of-appeal-rules-sydney-black-lives-matter-protest-is-authorised-20200606-p55058.html&gt;.

[6]  Steven Trask, ‘’Justice won’t wait’: Protesters vow to defy Supreme Court at Sydney Black Lives Matter rally’, SBS News (online, 6 June 2020) <https://www.sbs.com.au/news/justice-won-t-wait-protesters-vow-to-defy-supreme-courst-at-sydney-black-lives-matter-rally&gt;.

[7] Matilda Boseley, Daniel Hurst and Elias Visontay, ‘Sydney Black Lives Matter rally: NSW court rules protest is illegal’, The Guardian (online, 5 June 2020) <https://www.theguardian.com/australia-news/2020/jun/05/sydney-black-lives-matter-rally-nsw-police-go-to-court-to-have-protest-declared-illegal&gt;.

[8] Jamie McKinnell, Lily Mayers and Emma Elsworthy, ‘NSW Supreme Court bans Sydney Black Lives Matter protest’, ABC News (online, 5 June 2020) <https://www.abc.net.au/news/2020-06-05/court-rules-sydney-black-lives-protest-unsafe-due-to-coronavirus/12324186&gt;.

[9] Raul Bassi v Commissioner of Police (NSW) [2020] NSWCA 109.

[10] Clubb v Edwards & Anor; Preston v Avery & Anor [2019] HCA 11, [5] (Kiefel CJ, Bell and Keane JJ).

[11] Maanvi Singh, ‘Teargas and Pepper Spray will Accelerate Spread of COVID-19, Doctors Warn’, The Guardian (online, 6 June 2020) <https://www.theguardian.com/us-news/2020/jun/06/teargas-coronavirus-george-floyd-protests&gt;.

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