Open Letter to Victoria Police

‘Disruption to others’ does not justify limiting the right to peaceful assembly

Melbourne Activist Legal Support (MALS) acknowledges the response to our recent Statement of Concern by Victoria Police Assistant Commissioner Luke Cornelius (3 October 2019).

In reply and in light of protest events planned in Melbourne for the month of October we take this opportunity to remind Victoria Police senior command and all operational commanders assigned to public order policing duties over the coming weeks of the following:

• There is no basis for claiming that a protest that is deliberately disruptive to the activities of others falls outside the protection of rights to freedom of assembly;
• The Right to Peace Assembly, Freedom of Association and the Right to Political Expression have far greater legal protections and recognition both within Victorian legislation and in international law than the Melbourne Flower Show, The Grand Final Day Parade, Moomba and White Night and many other similar public events regularly held in Melbourne’s CBD;
• Events such as the Melbourne Flower Show, The Grand Final Day Parade, Moomba and White Night all cause significant disruption to public access to roads, public parks, through traffic, trams and vehicular access. Policing these events includes facilitating the shutting down of significant parts of the city over significant periods of time;
• Disruption to others’ is not, nor can it be used as an excuse, rationale or justification for limiting or preventing civil society groups from enacting the Right to Peaceful Assembly and The Right to Freedom of Political Expression at public events;¹
• There is no commensurate ‘right not to be disrupted by other people’s activities’;
• In light of the fact that political expression is the most protected by law of all forms of expression, it is arguable that peaceful protest should be facilitated over and above that provided to commercial and community events mentioned above;
• We remain concerned about recent public comments made by North West Metro Region Commander Tim Hansen,², that seem to equate disruption with threats of violence as well as earlier comments by Minister for Home Affairs, Peter Dutton.³
• International human rights jurisprudence clearly recognises that peaceful assembly, by its very nature, is disruptive, and can inconvenience and be perceived as a nuisance by some people, but that “Rights worth having are unruly things.”⁴
• Furthermore, the actions of some or a minority of people involved in an event do not remove the rights of peaceful assembly for others collectively; individual actions that are unlawful committed in the course of a demonstration cannot be used to justify the removal or limitation of the collective rights to peaceful assembly and expression;⁵
• The rights to peaceful assembly, association and expression are explicitly recognised and protected within Victorian legislation and international human rights law precisely due to their importance to the establishment and maintenance of a free, equal and democratic society;
• In essence, the bar to determine whether ‘disruption’ becomes a threat to ‘public order or safety or morality’ needs to be set quite high. Particularly in light of the extent of disruption caused regularly by other public events such as community festivals, parades, commercial events and road works which are not protected in legislation;
• Any policing of civil society actions or events that limits these Charter rights must be:
  • lawful,
  • necessary, reasonable and proportionate, and
  • in compliance with the Charter of Human Rights and Responsibilities Act 2006;
• Further any limitation must be demonstrably justified in a free and democratic society based on ‘human dignity, equality and freedom’. Decisions by public authorities to limit Charter rights require substantial evidential backing to be justifiable and cannot be based upon assumptions, opinions, operational imperatives or current practices;⁶
• Melbourne Activist Legal Support will be fielding teams of trained, independent Legal Observers in the CBD at protest events during October to record, monitor and report upon actions of Victoria Police members according to their responsibilities under the Charter, the International Covenant of Civil & Political Rights (ICCPR) the Victoria Police Manual, use of force guidelines and other human rights considerations and jurisprudence;
• We remind Victoria Police of the recommendations made regarding the policing of public protest events and reiterate our request that they be incorporated into operation orders and the VPM.⁷

Responses or further inquiries regarding this open letter can be made by contacting us.