Restrictions on the Right of Assembly

Melbourne Activist Legal Support (MALS) raises concerns regarding Victoria Police imposing harmful, unfair and arbitrary restrictions upon the right to peaceful assembly, and failing to consider and act compatibly with human rights under the Victorian Charter of Human Rights and Responsibilities.

Summary

Victoria Police have begun placing restrictions upon the use of a public address (PA) truck that has been used by organisers of the large Free Palestine protest rallies each Sunday afternoon since October 2023. 

MALS believes that this: 

A midsize truck with removable sides has been used by rally organisers as a sound stage and platform for speakers and PA equipment each Sunday for the past 36 weeks without incident.  The vehicle has been parked on an area of sidewalk in front of the State Library between 11.00am and 2.00pm facing the large crowd that is usually gathered on the lawns of the State Library (see Figure 1).

The large pro-Palestine rallies and marches have attracted over 60,000 people. Recent rallies have attracted between 4,000 to 15,000 people. On most weekends they are the single largest public event in the Melbourne central business district. As such, these assemblies require significant organisation, preparation, and infrastructure including large sound systems, first aid teams, stalls, and marshalls. 

The covered PA truck used by rally organisers provides elevation for the emcee addressing the rallies, for speakers, and for Auslan interpreters standing beside them, as well as poets, musicians, and performers. It also provides cover from the rain and elements for personnel and for valuable sound equipment. 

The use of a vehicle as a stage minimises set up and pack down time and allows the volunteer team to quickly and safely move the equipment to the end of the rally at Parliament House several blocks away on Spring Street. 

The use of the truck had been permitted by police Forward Commanders for approximately 36 successive weeks up until Sunday 9 June, 2024. Police had not indicated any concerns regarding the position or use of the truck before this date.

MALS asserts that the restriction of the sound truck at this and other assemblies serves no legitimate purpose and effectively undermines the right to assembly as protected by the Victorian Charter of Human Rights and Responsibilities (the Charter) for attendees in general and for Deaf and hearing impaired people in particular.

Sudden change in police approach

The police approach to the PA truck changed on Sunday 9 June, 2024, when the Forward Commander approached the driver of the sound truck, directed them to move, and threatened to fine the driver or tow the truck away. Despite attempts by rally organisers to negotiate, police fined the driver with the minor traffic offence of ‘parking on a footpath’. The truck was not towed and the speeches proceeded. 

The following Sunday 16 June 2024, police prevented the sound truck from entering its usual position in front of the State Library and stopped it in the middle of Swanston Street. This created a tense flashpoint, significant disruption to trams and pedestrians, and meant that thousands of people gathered on the road and tram tracks instead of on the lawns of the State Library. MALS legal observers documented the incident and spoke directly to senior police on-site. 

A Deaf rally attendee reported the following to MALS:

“On Sunday 16th of June at the rally, the truck wasn’t allowed to be parked in its usual position. I was confused, disoriented and unsure of what to expect if there were to be major disruptions, mass arrests and violence. Police do not know how to interact with Deaf and hard-of-hearing people. Deaf people do not always stay at the front of the crowd, some deaf people choose to stand throughout the crowd to watch the rally as they have a line of sight to the interpreters on the truck.

I didn’t know what to expect, I felt panic. The panic and uncertainty on Sunday was traumatic for me, I lost myself and my identity. I didn’t know what was happening. I only wanted to attend the Rally to see the speakers and go home. I wanted to access the information. I really don’t want this to happen again. 

With Victoria Police’s decision to not allow the truck to park where it always has, I felt disempowered. I could not see the interpreters clearly when they were standing on the ground. I also know that some Deaf community members who attend, also stand throughout the crowd as they have freedom of access and movement and can see the interpreters when they are visible on the truck. 

This freedom of choice and movement while still accessing the speakers through interpreters is important to us.”   

Senior police indicated that this would be their approach going forward despite attempts by organisers to negotiate. At no point did senior police indicate to legal observers that they had considered the impact of their decisions upon the ability of assembly attendees to fully enjoy their Section 16 Charter rights.  

Arbitrary nature of the restrictions

These restrictions have been imposed suddenly and arbitrarily. MALS made note of five different reasons cited by senior police on-site for the sudden change of approach. 

The Forward Commander on 9 June indicated that they would now be “looking for where they can take enforceable action” in response to a protest action the week prior which involved a large street theatre-style action outside Flinders Street Station. This involved a different truck and a different driver dumping rubble symbolically in the middle of the road. 

Senior police present on 16 June provided several different rationales for the new restriction, citing safety concerns, issues with vehicles in the Parliament House area, complaints by “other rally organisers”, decisions by police to be consistent, and simply that “things have changed”.  When asked, police were not able to specify any safety concerns nor point to any public amenity issues caused by the truck being temporarily located at the State Library for three hours each week. 

Because the police’s change of attitude to the sound truck was sudden and came after such a long period of discretion, an inference can be drawn that it is arbitrary, unwarranted, and unnecessary.

Failure to consider or act compatibly with human rights

Section 38(1) of the Charter imposes two distinct obligations on public authorities such as Victoria Police. It makes it unlawful for a public authority to act incompatibly with human rights (‘the substantive obligation’), or to fail to give proper consideration to relevant human rights when making a decision (‘the procedural obligation’).

MALS asserts that police have acted incompatibly with human rights and failed to adequately consider human rights regarding these restrictions for the following reasons: 

A. Article 21 of the International Covenant of Civil and Political Rights (ICCPR) and its related rights not only protect participants but also associated activities conducted by a group, outside the immediate context of the gathering. Activities that are integral to making the exercise of peaceful assembly meaningful are also covered. This includes the mobilisation of resources and broadcasting of or from the assembly. 

An adequate sound system is integral to the right to peaceful assembly protected under the Charter and the ICCPR from which the Victorian Charter has been drawn.

Large crowds require adequately amplified sound systems as they need to see speakers and hear important safety announcements and directions. Very large protest events necessarily require suitably large sound systems. Large sound systems that require a vehicle to transport and set up with an elevated stage are commensurate with the needs of any large public assembly involving many thousands of people. An elevated sound stage would be expected at any street festival, public performance, or any public gathering of a similar scale. 

Allowing and facilitating this basic infrastructure is part of the ‘enabling environment’ that states have an obligation to promote. The obligation to protect peaceful assemblies extends to planning and resourcing the assembly itself (General Comment No. 37 (2020) on the right of peaceful assembly (article 21), CCPR/C/GC/37 s 33).

The recognition of the right of peaceful assembly imposes a corresponding obligation on State parties to respect and ensure its exercise without discrimination (International Covenant of Civil and Political Rights, art. 2 (1)). This requires States to allow such assemblies to take place without unwarranted interference, to facilitate the exercise of the right of peaceful assembly, and to protect the participants.

The need for an adequate PA system is a corollary to the right to peaceful assembly.

B. Auslan interpreters use the height provided by the sound truck to interpret speeches and messages to members of the Deaf community attending the rally. That the Auslan interpreter is positioned high on a stage or truck so Deaf people in the crowd can see has been described by interpreters as ‘imperative’ (see Figure 2).

According to a Deaf attendee at over 20 of these rallies,

“It is very difficult if the interpreter is standing at ground level, especially if they are interpreting to a group of more than two or three people (often the case). Ground level also requires everyone to congregate in one spot at the very front. If the interpreter is elevated, then Deaf protestors can spread out a bit or stand where they want. This is important for us feeling safe – i.e. maintaining personal space, space from police, space from barricades or where the crowd is heavier, space when the crowd starts moving.

“An elevated interpreter is also very important for access for other disabled activists. The space we occupy is usually directly behind or adjacent to other disabled activists who need to be at the front for various reasons (i.e. need to sit, or are in a wheelchair, short stature, vision impaired, cannot ascend stairs, prams etc.). We make space for them too, and often also compete against pushy photographers, activists with big signs, videographers etc.  When an interpreter is elevated it better allows us to maintain and support space for other disabled activists, not just Deaf. If the interpreter is on the ground this wouldn’t be possible.”

According to the United Nations Human Rights Council, law enforcement needs to consider in their planning phase the needs, risks, and safety concerns of individuals and groups in situations of vulnerability, such as by ensuring access to protest sites for persons with disabilities (Model Protocol for Law Enforcement Officials to Promote and Protect Human Rights in the Context of Peaceful Protests, A/HRC/55/60, Human Rights Council Fifty-fifth session, 2024).

Police are required to make specific, supportive and protective efforts to facilitate the right to freedom of peaceful assembly of individuals or groups that may be in situations of vulnerability, that have been subjected to discrimination or marginalisation or that may face particular challenges in participating in assemblies.

As emphasised by the Convention on the Rights of Persons with Disabilities (CRPD) sign language is inseparable from deaf people’s human rights. Without sign language, deaf people are not equal. The ability of Deaf rally attendees to access their full enjoyment of Section 16 Charter rights is dependent upon the safe and reliable access to Auslan interpretation.

The restriction of the use of an elevated sound truck for Auslan interpreters would unduly restrict the rights of Deaf and disabled activists from the full enjoyment of their right to assembly under the Charter. 

MALS asserts that Victoria Police failed to consider the issues above when changing their approach to the use of a sound truck at these assemblies. 

MALS notes that: 

• Rally organisers are adamant that they need the sound truck for the successful and safe running of the rallies.
• There is a risk of escalating confrontation between police and rally attendees should this approach continue.
• At no point did police indicate that they had considered the impacts of their operational decisions upon the Charter rights of rally attendees. 
• The use of the truck is a temporary measure for only a few hours each week to ensure speakers and equipment are protected from the elements.

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ACTIONS AND RECOMMENDATIONS

In light of the above areas of concern, Melbourne Activist Legal Support calls upon all authorities, Members of Parliament, human rights and legal agencies and organisations to ensure the following:

1. Victoria Police take immediate and proactive measures to facilitate the access of the sound (PA) truck to its usual location in front of the State Library on Swanston Street on Sunday 23 June, 2024 and all subsequent rallies.  

2. The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) seek the views of Deaf community members regarding their access to and full enjoyment of their Section 16 right of peaceful assembly under the Charter as well as recent experiences at rallies and protests in Victoria.

3. Victoria Police, as a matter of urgency, review operational planning in relation to assemblies to ensure that the rights to peaceful assembly, association, and expression are not limited by unwarranted or arbitrary operational decisions. 

4. Victoria Police ensure that their Victoria Police Manual (VPM) policies and operational orders for assemblies are aligned with the United Nations Human Rights Council General Comment No. 37 (2020) and the Model Protocol for Law Enforcement Officials to Promote and Protect Human Rights in the Context of Peaceful Protests A/HRC/55/60 Human Rights Council (2024) and the Victorian Charter of Human Rights and Responsibilities.

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This Statement of Concern is a public document and is provided to media, the Victoria Police Office of the Chief Commissioner, the Professional Standards Command (PSC), the Independent Broad-based Anti-corruption Commission (IBAC), the Victorian Equal Opportunity and Human Rights Commission (VEOHRC), Government ministers, Members of Parliament, and international human rights agencies. It can be provided to other agencies upon request.

For inquiries regarding this statement please contact [email protected]