This is one of a special series of posts exploring the public law implications of the COVID-19 pandemic. For more information on the Gilbert + Tobin Centre’s work in the area of public law and public health, see here.

BY MARIA O’SULLIVAN

Introduction

The COVID-19 pandemic is exposing conceptual and structural weaknesses in our laws. Although these are not normal times, and our laws are obviously being tested in ways we could not have foreseen, the discourse around the exercise of our key democratic rights during this time has been concerning in some respects. One of those areas has been in the debates about and legal responses to protest.

It is well recognised that protests are one of the most important ways in which a populace can express disagreement with government action. Indeed, the ability to voice dissent is considered to be vital to maintain a functioning democracy. That has been acknowledged in Australia in the jurisprudence on the constitutional implied freedom of political communication, which has linked protest to the maintenance of representative and responsible government.  Despite this, enforcement action has been taken against protestors under COVID-19 laws and some protests have been disallowed.

For instance, in April 2020, activists staged a car convoy protest in Melbourne to highlight the plight of refugees in detention who face a heightened risk of contracting COVID-19 due to overcrowded conditions. Despite the fact that protestors were observing social distancing restrictions in the cars, police arrested one man and fined 26 others a total of $43,000 because they were not in public for a permitted reason (education/work, exercise, shopping for essentials or caregiving). More recently, there has been litigation in NSW in relation to the running of the Black Lives Matter protests (Commissioner of Police v Bassi, Fagan J; Bassi v Commissioner of Police (NSW), Bathurst CJ, Bell P, Leeming JA; Commissioner of Police v Gray, Adamson J) and protests relating to refugees rights (Commissioner of Police (NSW) v Supple, Walton J). There have been some differences in the application of the law to the facts and the outcomes of these cases: in Supple, Walton J prohibited the holding of a protest planned to take place in Sydney in June, whereas in Gray Adamson J made orders permitting a protest to proceed in Newcastle in July. Just yesterday (Sunday 26 July 2020), Ierace J of the NSW Supreme Court made an order which prohibits a protest against Aboriginal deaths in custody in Sydney, set to take place on Tuesday 28 July (Commissioner of Police (NSW) v Gibson; I note that as of the afternoon of 26 July, solicitors for the protestors were preparing to appeal that decision to the NSW Court of Appeal).

Obviously there are competing public interests at play here which are of great importance. On the one hand, there are rights of free speech and public assembly and, on the other, the significant public health issues arising from the COVID-19 pandemic (including the need to enforce the public health measures that have been put in place to minimise the scope for community transmission of that virus).

However, I would question whether the appropriate balance has been struck between these sets of interests. One example of this is the classification of protest as a ‘non-essential’ activity under Stay at Home directives. Although the exact content of these directives differs across Australian states and territories, these instruments generally permit persons to leave their homes for only four ‘essential’ reasons while Stay at Home restrictions are in place: work/education, exercise, essential shopping and care-giving. These Stay at Home directives are important as they (along with restrictions on public gatherings) have been the most influential reason for enforcement action against protestors.  It is notable here that the COVID-19 directions that limit gatherings (‘Gathering Restrictions’) set out a long list of very specific exceptions for certain activities which include community sporting events, real estate inspections, weddings and funerals. This is in contrast to the general exclusions for work/education etc under the Stay at Home directives. Again, notably, although the Gathering Restrictions set out this comprehensive list of specific exceptions, they do not refer to protest action as an exception to the limits on gatherings (see eg, Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 (NSW) (Order 4)). This was a factor in the decision by Adamson J to permit a protest in Newcastle in July in Commissioner of Police v Gray. Her Honour noted that:

Sporting venues may now open. Community sporting activities involving up to 500 people can take place. A crowd of 10,000 people is allowed to attend a football stadium to watch a match (at [64]).

As I have argued elsewhere, protests should be recognised under law as ‘essential’ activities and be permitted (if they otherwise accord with COVID-19 restrictions such as social distancing and the wearing of masks).  In particular, a wholesale ban on protest would not be compliant with the implied freedom of political communication under our Constitution. Although COVID-19 restrictions may serve a legitimate purpose (by ensuring the safety and wellbeing of the community), it is arguable that they are not proportionate and that there are alternative means of achieving the purpose of the COVID-19 restrictions in a manner which is less burdensome on political communication. Specifically, rather than a wholesale ban on protesting, the restrictions could be changed to allow protest as a permitted reason to leave home under the Stay at Home directives and as an explicit exception to Gathering Restrictions. This would be on the basis that protesters would be expected, in both cases, to observe social distancing rules. As noted by Fagan J in Commissioner of Police v Bassi, and by Walton J in Commissioner of Police (NSW) v Supple, it may be impossible for social distancing to occur in very large protests. However, I would argue that this is possible in a ‘sit down’ protest (as has occurred in Israel and elsewhere) or in a ‘drive by’ protest via limiting cars to members from the same household, or to a maximum of two people in those states and territories where gatherings are severely restricted.

Rather than revisit that legal debate, what I wish to do in this commentary is to use the COVID-19 situation to raise some deeper conceptual and structural questions about how protest is viewed and discussed in Australia in constitutional terms. I particularly want to focus on the notion of our concept of ‘public spaces’, which has been the subject of special treatment in constitutional case law in the United States but has not, in my opinion, been sufficiently recognised in Australia.

The rest of this post therefore asks the following questions:

  1. Should there be a special status given to public spaces as sites of protest in Australia (as there is in the US)? and
  2. Related to Question 1, can online ‘protest’ be a substitute for protest in a public place?

Question 1: The Special Status of Public Spaces

The notion that protest should be carried out in public spaces is supported by several rationales. The act of public protest brings people together and has great symbolic and communicative value. This is particularly so if the protest gains media coverage – the public nature of the protest enables images of the protestors and their banners to be broadcast and disseminated widely, thereby increasing the chance that the public will take an interest in the particular issue at stake. The taking over of city streets or occupying buildings is also a key strategy of some protest groups, such as the Occupy Movement.

In some instances, the ability of people to protest at a particular public site is directly linked to the communicative value of that protest (eg, the carrying out of environmental protests at logging sites). The communicative power of onsite protest has been recognised by the High Court in key constitutional political communication cases. For instance, in Brown v Tasmania, Nettle J noted that:

on‑site protests against forest operations and the broadcasting of images of parts of the forest environment at risk of destruction are the primary means of bringing such issues to the attention of the public and parliamentarians (at [240]; also cited by Kiefel CJ, Bell and Keane JJ in Clubb v Edwards at [81]).

The symbolic and expressive value of protest was also recognised in the NSW Supreme Court litigation relating to the Black Lives Matter protests in June. For instance, in Commissioner of Police v Bassi Fagan J, at first instance, acknowledged:

… the public interest in free speech and assembly and in the facilitation of public gatherings at which people with views on matters of public importance may gather together and show their strength, to demonstrate their solidarity with a point of view on a particular issue. The right of assembly and of expression by that means is of great importance in a democracy such as that enjoyed in Australia (at [17]).

However, the jurisprudence in Australia falls short of granting public places a special protected status in the same way that other comparable jurisdictions have done. Here, the jurisprudence on protest from the United States is illuminating.

The Special Status given to Public Places in the United States

The First Amendment to the US Constitution prohibits Congress from enacting legislation that would limit peaceful assembly. It provides that:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The 14th amendment to the US Constitution is also relevant here, as this make much of the Bill of Rights (including the right to peaceful assembly) applicable to the states.

The special status of public places is a core principle running through the US cases. This principle is linked to the classification of public streets and sidewalks as traditional forums for speech on matters of public concern. This has meant that such places have been given what the US Supreme Court has called a ‘special position in terms of First Amendment protection’ (United States v Grace (1983) at 180).

The importance of the place of protest and the particular status of streets as public places was dealt with in Hague v Committee for Industrial Organization (1939). In this case, Justice Roberts, delivering one of the majority opinions of the Court, stated that:

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.

I wish here to highlight the reference to the importance of public places as ‘held in trust’ for the public and those places as facilitating communication between citizens. Although, as noted above, Australian courts have referred to the importance of political communication to representative democracy, more significance could be granted to the status of public places as having a special position in law. In the context of COVID-19, this would mean that blanket bans on protest would be more difficult to justify than is currently the case under existing Australian legal principles. As noted earlier, this is important not only due to the particular exigencies of the current health emergency, but also more generally for the future development of protest law in Australia.

Question 2: Can online protests serve as an alternative to protests in public places?

A related question is whether online protests can be an alternative or substitute for public protests. I have raised this as a question as there seems to be an assumption in public discourse that this is the case. Indeed, when the NSW Police Commissioner recently announced that he would block a Black Lives Matter protest planned for 28 July in the Supreme Court,  he stated he was ‘encouraging people to protest online in order to protect the community’. However, I would question the assumption that online protest is a substitute or suitable alternative for public protest (if it is possible to allow such physical protest in light of  the health evidence).

The core reason for this is that, as acknowledged in Australian jurisprudence, public protest serves a strong communicative purpose. Indeed, in my opinion, protest is at its most powerful when it is visible and disruptive. Although social media campaigns can serve a useful complementary means of garnering support for a particular case, I would argue that they are not as effective in terms of their symbolic value and visual impact. This is particularly important for raising consciousness of an issue in the general public, and not merely amongst those already aware of a particular matter. If we view this principle alongside the concept that public spaces should be given special status, then it is strongly arguable that protest action during COVID-19 cannot simply be limited to online forms of action.

Interestingly, this was recognised by Adamson J in Commissioner of Police v Gray. Her Honour rejected the submission of counsel for the NSW Police Force that ‘the same effect as is sought to be achieved by the protest could be achieved “in this day and age” by social media’ (at [59]), noting that:

Demonstrations in public spaces remain a powerful method of advancing particular causes to governments and the general community, as well as engendering a feeling of solidarity among participants and those associated with them who may be unable to be present (at [59]).

Conclusions

In the absence of a federal charter of human rights in Australia, it is significant that Australian courts have recognised a form of a ‘right to protest’ via the implied freedom of political communication and that jurisprudence on protest during COVID-19 has recognised the centrality of protest to democracy. In a time when our laws are being tested in ways that they have never been tested before, we should also ask whether our protest principles can be improved. I would argue that consideration should be given to strengthening the status of public spaces as sites of communication and places belonging to the community. Further, and more broadly, I would argue that the notion of the common good and public interest in the protection of health must also entail consideration of the common good in upholding the democratic value of public protest.

Maria O’Sullivan is a Senior Lecturer in the Faculty of Law, Monash University and a Member of the Castan Centre for Human Rights Law.

Suggested Citation: Maria O’Sullivan  ‘Protest in a Pandemic – The Special Status of Public Spaces’ on AUSPUBLAW (27 July 2020) <https://auspublaw.org/2020/07/protest-in-a-pandemic-the-special-status-of-public-spaces/>