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Inquiry into the right to legitimately protest or demonstrate on National Land and in the Parliamentary Zone in particular

CHAIR —On behalf of the committee I welcome Mr Terence O'Gorman, Vice President of the Australian Council for Civil Liberties. I remind you that the proceedings today are legal proceedings of the Parliament and warrant the same respect that proceedings in a house demand. Although the committee does not require you to give evidence on oath, you should be aware that it does not alter the importance of the occasion and that a deliberate misleading of the committee may be regarded as a contempt of the Parliament.

The committee has received your submission and authorised its publication in a separate volume of submissions. Do you have any amendments or additions you want to put to that submission?

Mr O'Gorman —No amendments but, with your leave, Mr Chairman, I intend to address some additional remarks.

CHAIR —If you would you like to make an opening statement.

Mr O'Gorman —I propose to expand upon the written submission by making comments under these headings: general comments about the necessity for peaceful protests to be recognised; the necessity for the law to recognise the right to protest; general comments on some necessary restrictions on the right to protest in terms of getting the balance right; some attributes of desirable model legislation; the history of the Queensland act; and police powers in the context of controlling demonstrations. I firstly thank you for the cheque that you have made available to me for my appearance this morning. It was appreciated.

CHAIR —The federal government always pays something.

Mr O'Gorman —I will move first to some general comments in relation to protests. Might I indicate that I have been nonplussed about the particular part of the terms of reference that talks about the special qualities of the national capital. It would appear to me that the national capital's only special qualities are the extraordinarily greater amounts of money that are spent in relation to keeping the city green and clean than is spent in relation to other capital cities. That, with respect, is the only particular special quality that we can see that the national capital has.

I want to draw some attention to some of the submissions that have been made in the two volumes of submissions that have been made available, recognising, of course, that the principal emphasis you want to hear about today is the Peaceful Assembly Act in Queensland. I note that the Chairman of the North Star District Council of the New South Wales Farmers Federation made this comment at page 38 of the submissions:

If you put demonstrations in a set area of Parliament house, politicians get off scott free. They can come and go without seeing the protesters which would completely negate the efforts of demonstrators.

Chris Miles MHR noted at page 7 of the submissions:

It is not the location that concerns me as a Member of Parliament, but rather the manner and nature of the protest.

The ACT Greens noted:

The right to protest within the Parliamentary Zone should be retained, because it is unlikely that demonstrations would be observed by decision makers if they occurred in any other location. The Aboriginal Embassy structure is such an example. Its appearance could be said to remind people in comfortable Canberra what living conditions are like for the majority of indigenous people, more than 200 years after European occupation.

Kristen Walker, a Melbourne University law lecturer, noted at pages 246 to 247 of the submissions:

The right to freedom of expression should be maintained in relation to National Land and the Parliamentary Zone--if anything, it is more important in those locations than in others.

She made an observation, which was also reflected by a solicitor to the Queensland Law Society and which I have made some passing reference to, where she said:

It is difficult to understand the concept of special qualities of the national capital.

Moving to the necessity for the law to recognise the right to progress, Elizabeth Evatt noted:

The New Zealand Bill of Rights and the Canadian Charter of Rights and Freedoms and the Queensland Peaceful Assembly Act recognise the importance of guaranteeing the right of peaceful assembly and--

the now disbanded--

EARC has recommended that--

right be incorporated in a Queensland--

Bill of Rights.

Elizabeth Evatt goes on to note, at pages 182 to 185 of the submissions:

The right to legitimately protest in the Parliamentary Zone supports democracy by enabling citizens to convey their views to government and the legislature about political matters. The term "legitimately" implies that the demonstration or protest must be peaceful to secure protection.

The Australian Law Reform Commission, in its submission at page 223, stated:

The right to protest or demonstrate in a peaceful public assembly should be positively recognised and guaranteed by legislation. This legislation should provide that the right to protest or demonstrate in a peaceful assembly may be restricted only in clearly defined and limited circumstances.

The ACTU submission, at page 368 of the submissions, stated:

We note the perception by Mr. Howe that the National Capital has special qualities which might be compromised by allowing freedom of expression. However, there is no explanation of any special qualities of the National Capital compared with the rest of Australia which should reduce rights to protest or demonstrate. It is natural that the Seat of the National Government is seen by citizens as an appropriate place to demonstrate or protest.

Under the heading of `Restrictions--getting the balance right', I would like to refer to a comment by Simon Bronitt, a law lecturer at the ANU, as well as the Human Rights and Equal Opportunity Commission and the Australian Law Reform Commission. Mr Bronitt particular noted some comments by Mr Justice Wright, which I entirely agree with. He noted:

. . . in the APPM case, Wright J. paid no regard to the fundamental nature of the right to peaceful protest.

Indeed, I would go further and say that, if one has regard to what the judges in this country and in the UK have said about the right to protest, the judges are the last ones you would go to seek an enlightened view about the right to peaceful protest. Certainly during the march ban era which occurred in this state in 1977 to 1980, one looked totally in vain to the judges of the Supreme Court for any recognition of a basic fundamental right to peaceful protest. So we can largely forget the judiciary as a source of wisdom or enlightenment in relation to the right to peaceful protest both in Australia in the main and in the UK.

Elizabeth Evatt notes that article 21 of the ICCPR does not follow that every restriction imposed by law is in fact compatible with the principles of the covenant. The submission of the Human Rights and Equal Opportunity Commission notes this:

Legitimate restrictions on peaceful protest are justifiable under Article 21 of the ICCPR, especially restrictions in the interests of national security, public safety, public order--

So far, I agree with them. Another thing it notes, which I find a bit puzzling, is the protection of public morals. I do not quite follow what that might mean. But it notes a restriction in the interest of the protection of the rights and freedoms of others. We recognise that that is an important restriction. There cannot be any such thing as an absolute, untrammelled, unrestricted right of public protest.

The Human Rights and Equal Opportunity Commission then goes on to say:

While I can understand that there may be a concern that protest activities which involve camping within the Parliamentary Zone might be seen as disruptive to the aesthetics of Parliament House, the prevention of the conduct of such protest activities could not be reconciled with the observance of freedom of expression and assembly in a participating democracy unless--

in that context they were talking the Aboriginal embassy--

the camp poses a threat to one of the grounds which justify a restriction on the exercise of the freedoms as outlined above.

The Australian Law Reform Commission notes that:

The right to protest or demonstrate in a peaceful public assembly should be positively recognised and guaranteed by legislation. This legislation should provide that the right to protest or demonstrate in a peaceful assembly may be restricted only in clearly defined and limited circumstances.

We will now move to what the attributes of model legislation might be. My submission will be that the Peaceful Assembly Act 1992 is largely good model legislation. I will give a history of protest in Queensland that I have been involved in as a leading observer. Unfortunately, in terms of testing the efficacy of the 1992 act, since it was passed, in terms of public protest in the state, it has been a period of political quiescence.

They would say that that is unfortunate in terms of tumultuous public protest. In terms of arguing to you whether this act has met the test of hard protest, their position is that it has not, because it has been a period of political quiescence. That is not necessarily an endorsement of the state Labor government. It may be a reflection of the fact that, after the Bjelke Petersen years and the Fitzgerald Royal Commission, people perhaps want a rest. But I look at the attributes of model legislation.

The ACT Community Law Reform submission, at pages 372 to 375, made some observations. I think they are particularly pertinent. There is a crying need for one protest law to cover the national capital. The ACT Community Law Reform submission notes this:

The freedom to assemble in public places in the ACT is governed by a substantial number of ACT and federal laws . . . At best, the right to assemble in the ACT is a heavily qualified right. It is qualified by many dozens of provisions in a number of Commonwealth and ACT laws. It is qualified by laws relating to traffic, trespass, noise, public places, parliamentary precincts, diplomatic premises, and public meetings.

They also say:

On paper, there is not a lot left when all the qualifications are toted up.

There are more than 20 laws, a dozen of which are federal, which impact upon the right to assemble in public within the ACT. This very fact highlights one of the problems, namely the inability of the ACT to legislate in areas covered by federal law.

The General Counsel of the federal AG's department, in his submission, from pages 353 to 358, makes this observation:

Most of the laws are not directly concerned with the regulation of protests or demonstrations . . . There is some confusion about who is responsible for management of the National Land.

It is evident from the discussion of the present laws applying to National Land, and to the Parliamentary Zone in particular, that many problems could be overcome if a single law designed to regulate protests or demonstrations applied to National Land and the Parliamentary Zone in particular.

And we particularly support that.

You get a more than slightly contradictory position from the submission of the Senate President at page 387. He seems to be more concerned with aesthetics and not displeasing important visitors. He says:

Understandably, Parliament House will be a focus of protests and demonstrations and the right of people to protest in the precincts is recognised. However, that right must be balanced against the maintenance of the security of Parliament House and its occupants, the ability of Senators and Members to go freely about their parliamentary business and upholding of the law. It must also be recognised that Parliament House has become an important venue for the welcoming and hosting of visits of overseas dignitaries. These visits should be able to take place in a setting appropriate to the nature of the visits and with an appropriate level of dignity provided for visitors.

In the current context, that argument would probably make it impossible for Australians opposed to what the Indonesian government has done in East Timor to burn the Indonesian flag within the view or earshot of an Indonesian important visitor to Parliament House.

Look at the history of the Queensland act. We could spend a long time on this. I will only spend five minutes. The Queensland act has to be seen against a history of repression of peaceful public protest in Queensland over many years. The EARC report on this, which you and your secretariat have access to, makes the observation--it is historically fair--that it was not just the conservatives under Bjelke Petersen who were harsh on protests when the protests were critical of them; Labor in the past in Queensland has not been particularly flash in its recognition of the peaceful public protest.

Indeed, another historical account on public protest in Queensland is Jesuit lawyer Frank Brennan's book entitled Too much order with too little law. It notes that former lawyer and communist parliamentarian Patterson received a quite damaging baton to the head courtesy of the Labor movement before the 1955 split. The Labor government used the police in the same way that Bjelke Petersen used the police.

I want to draw your attention to the Springbok tour in 1970 and the state of emergency that was declared there simply to enable a football match to occur in circumstances where there had been no previous violence. The absence of the Peaceful Assembly Act and the absence of any guarantee of the recognition of peaceful public assembly enabled that state of emergency to be declared.

There was then the 1977 to 1980 street march ban, where Bjelke-Petersen walked into this Parliament one afternoon in September 1977 and, without notice, changed the law, which at that stage required a permit to be obtained for public protest. There was a right of appeal, if a permit was granted, to a magistrate. But Bjelke Petersen came in without notice and simply changed that. He abolished the right of appeal and said that you still had to get a permit. You applied to the local sergeant. If the sergeant refused it, your right of appeal was to the police commissioner. You then had a situation for three years where something in the vicinity of 2,000 plus ordinary people, if that makes any difference, were arrested for walking around the block here in Brisbane on a Saturday afternoon doing what was permitted.

On a particular Saturday afternoon here in October 1977, which I personally recall, 400 people were arrested on National Anti-Uranium Day for simply marching around the block at 3 p.m. The television screens that night showed that tens of thousands of people did it in Sydney and Canberra. In Brisbane, the police were arresting them. The television screens showed that in Sydney and Melbourne the police were leading the demonstrations on motorcycles. If you had an act such as the one that exists in Queensland now, I would hope that march ban would have been impossible to have been brought in.

Perhaps the most notorious and funny aspect of the march ban occurred in 1977. I will read an extract from Frank Brennan's book:

Two "rallies" then took place highlighting the Draconian nature of the government policy and the absurdity of police conduct. On 10 March Harry Akers, a twenty-nine-year-old Bundaberg dentist, informed the press that he had applied for a permit for a protest march. He planned to march in company with his dog Jaffa down an unnamed "no through" road at the Hummock outside Bundaberg at 2.45 a.m. on 1 April.

He deliberately chose 1 April. It continues:

He informed the police that he intended to march only one hundred metres and as he was a pacifist he assured the police that the march would be peaceful. He also applied for a permit to carry a placard bearing the words: "The majority is not omnipotent. The majority can be wrong and it is capable of tyranny." Inspector Seaniger, who had been the district superintendent in Toowoomba at the time . . . refused the application and told Akers "that a permit could not be issued because it was a protest march".

Frank Brennan continues:

Leaving aside considerations of whether or not a permit is required for a "procession" of one man and one dog and whether or not Akers's placard was to be supported by any rigid material other than cardboard, thereby making the holding of a permit necessary, Akers conducted his "illegal procession" in the wee hours of the morning of April Fools' Day observed by only carload of plain clothed detectives. Sightseers were kept away by the rain. He was not arrested.

The Peaceful Assembly Act, in our view, has not been tested by a period of sustained public protest. It has, however, been tested by one incident of some considerable attention, which was a public march from Southbank over the bridge down to police headquarters and then down to Parliament House by a large group of Aboriginal people in the wake of the Daniel Yock death in a police van, or shortly after his being taken from a police van to the police watch house. That march went off without incident. I want to use that march as an example. The act is not the only law or the only thing we have to look at.

In that march there was no incident. I am not sure whether a permit was applied for or whether under the act notice was given. But certainly the act went off without incident. As you are aware, the procedure of the act is essentially this: you can give notice to the police or a local authority if, for example, in Brisbane the mall, King George Square or some other council area is affected. If the police or the local authority--the Brisbane City Council--object they can go to a Magistrate's Court. The Magistrate's Court then make an order. If the march is permitted, traffic matters and law and order offences, such as public disorder and disorderly conduct, are largely exempted. As you are aware, there are mediations provisions that exist where you are supposed to try to mediate differences between the demonstrators and the marchers prior to going to the Magistrate's Court. However, it is important to observe that if you do not go through the procedure as a protest organiser of going to the Magistrate's Court, or if you do not get a sanction from the Magistrate's Court, that does not make the march illegal; it simply robs you of the protection from being arrested for a range of traffic and minor public disorder offences. If the march were sanctioned you would otherwise be protected from those offences.

So the Queensland act provided for notice, mediation and court determination. Court determination against the protesters does not necessarily mean that the protest is illegal or cannot go ahead. As you would be aware, the Peaceful Assembly Act was the result of extensive research by EARC, particularly in New South Wales and South Australia where the notification procedure had existed for some time. The parliamentary committee supervising EARC made certain changes. The principle change the committee made was to change the supervising court from the District Court to the Magistrate's Court.

I would urge you that, if you are attracted by the Queensland act, there is much to justify having the procedure in Canberra dealt by the Supreme Court. I understand that you do not have a District Court or a court in between the Magistrate's Court and the Supreme Court. If that is true, it seems to me that it is appropriate that the Supreme Court in Canberra should be the appropriate monitoring body because that would reflect the fact that protest law is important. I think there is a perception that, having magistrates giving these particular orders or refusing them, tends to diminish the importance of public protest in the legal machinery. We certainly argued that the District Court here should by the supervising court. EARC accepted that, but the parliamentary committee rejected it principally on the basis that Queensland is a very geographically spread out place and Magistrates' Courts were readily available whereas District Courts were not. I would submit that the same argument does not apply in Canberra. To give public protest and legal regulation of pubic protest its necessary status there would be much to recommend the regulation in Canberra being done by the Supreme Court.

I want to look at the aspect of police powers in the conduct of demonstrations. The Peaceful Assembly Act provides an important framework. It provides what I might describe as a skeleton. The flesh on the skeleton is represented by what the police do on the ground and by the application of the remaining criminal law--your general body of public order offences, your assault, your obstruction, and your obscene language. Those sorts of offences are still preserved. I think that has to be underlined. What the Peaceful Assembly Act does is essentially do away with the abuse that occurred in relation to the majority of Traffic Act provisions under the March ban era.

During the march ban era the majority of people were arrested on the basis of a policeman would come up to them--and this used to be the evidence they would give in court--and say, `I, constable X, held my hand up thus as prescribed by regulation 128 of the Traffic Act and I said, " My name is Constable Smith. My registered number is blank. I hereby command you to move from the carriageway onto the footpath." The defendant said'--in normally more aggressive terms than this--`"Get stuffed". I said to him, "I warn you". He said, "Get stuffed" again and I arrested him.'

In fact, what occurred during that era was that the power vested in the police to move people on for traffic regulation purposes was abused in the name of breaking up legitimate and peaceful political protests. This act prevents that from occurring. The importance of this act is that it enshrines in the objects provisions of the act a recognition that there is a right to peaceful political protest. We see that as a particularly important thing because, when protest organisers are arguing with a magistrate about whether a particular protest should be allowed or not, if one of the principal objects of the act is a recognition of the right of peaceful political protest, then it could be argued that there is a presumption in favour of an order being given and that, we consider, is important. But it should still be kept in mind that the ordinary police officer's discretion that exists in a public protest situation, or in any public street situation in relation to a whole range of public order offences, still exists.

It is on that point that I want to conclude this submission. If you look at the Aidex controversy and the pro-loggers rally they represent the opposites of the political spectrum. The pro-loggers would have probably been there supporting the gun-sellers of Aidex. Those opposed to the Aidex gun-sellers would have been opposed to the pro-loggers' rally. The problem is that there were significant policing problems with the Aidex rally. There were not significant policing problems with the pro-loggers rally. One could be cynical and say that that might have represented the particular political attitude of the AAP in Canberra but the AAP would say that was a very unfair comment. If it is an unfair comment, it nevertheless behoves you to look, focusing as you are on Canberra, at what went wrong with Aidex, on the one hand, and what went right with the pro-loggers' rally. Simplistic though it is, having read the report that the Aidex protesters put out, and having observed some of what went on with the pro-loggers, it is my conviction--and I accept this as a simplistic analysis--that probably AAP was more sophisticated in the it dealt with the pro-loggers rally than it was in the way it dealt with the Aidex protest.

There is a very real problem with individual police on the ground misusing their considerable discretion in relation to public order offences. During the march ban era, when the message was sent by Bjelke-Petersen--when he passed this anti-street march law--he said in Parliament, `The day of the political street march is over'. That sent a message to police on the ground, which was ably abetted by the very pliant police commissioner Lewis--who was later convicted and is now serving a 14-year term of imprisonment for corruption. It sent a message that protest per se, no matter how peaceful, is illegal.

The beauty of the Peaceful Assembly Act is in its object provision where it says that public political protest is legitimate. I think that is important. Even if the AFP police commissioner were minded to tell his troops in any given controversial process, `Keep in mind that public protest, so long as it is peaceful, is legitimate' you then have to deal with what does the individual police officer do. That police officer is clothed with an enormous amount of discretion as to what he or she does in a protest situation.

In the submissions that you have, Simon Bronitt has particularly looked at the law in relation to breach of the peace and I would urge you to pay close regard to what he has had to say in that area. I mention just four paragraphs from his submission. He says at page 52:

Breach of the peace lies at the heart of the peacekeeping powers of the police. However, breach of the peace is not a crime. Breach of the peace may be likened to obscenity. Judges rarely offer a definition because they know it when they see it.

One of the leading cases of breach of the peace relates to a BBC journalist standing in a bus queue in London. He was, so it was said, sick and was trying to get home quickly. He was at the bottom of the queue when a bus turned up. He jumped the queue, ran up and hopped on the bus. That excited some abuse from the other people in the queue. An off duty police officer grabbed him and said, `You are a committing a breach of the peace. Stop it'. He would not. He was arrested. So breach of the peace is not missiles or bricks being thrown, arrows being shot, or pieces of wood being used to break glass. It is very low level stuff as that particular case, which is still one of the leading cases, demonstrates.

Somehow or other you have to deal with what police on the ground do. Breach of the peace, I dare say, could remain your Canberra equivalent of the Queensland misuse of the traffic regulation power that was designed to regulate vehicle and pedestrian traffic. It was a wholesale misuse to prevent legitimate peaceful public protest. In your report you are going to have to deal with the police abusing their power of arrest for a breach of the peace. In a demonstration situation you could have that BBC journalist in the bus queue situation or you can have a situation where a demonstrator is yelling abuse at a rival demonstrator or is yelling abuse at, dare I say, a parliamentarian walking to Parliament. As a committee you would have sufficient appreciation of the necessity of some abuse in a public protest, and you cop it. The fact is that even abuse of itself can amount to a breach of the peace, even if the abuse is not obscene. Bronitt goes on to say there is a similar concern about the inability of the courts to provide adequate protection for fundamental freedoms arising from the lack of reference to the requirement that an apprehended breach of the peace must be both imminent in time and place. The concept of imminence clearly has the potential to prevent unnecessary restrictions upon the freedoms of speech, assembly and association. Abridgment of those constitutional rights is only justified where there is a clear and present danger of harm.

Bronitt is very critical--and I think rightly so--of Mr Justice Wright's decision in the APPM case--the Burnie Paper Mill case. Bronitt is of the view that you have to, particularly in a public protest situation, redefine the common law offence of breach of the peace to make it imminent both in time and place.I urge you to look at that because, on my reading of the submissions, other than Bronitt there does not appear to have been many people who have addressed this point. The three previous public hearings might have. I urge you to look at redefining the issue of breach of the peace in a public protest situation as to imminence in both time and place.

Also, I would want to take Bronitt's position further as to seriousness. If, for instance, you have a demonstrator urging others to attack the police, then that is sufficiently serious, I would contend, to warrant an arrest once warning is given. If you have a demonstrator who wants to turn a peaceful protest into an unpeaceful one by urging the demonstrators to attack the police, then perhaps ACT law should be recast to say that in that situation the police should be obliged to warn him or her saying, `If you continue that I am going to arrest you for a breach of peace.' If that public urging of attack of the police after a warning is given is continued with then, in my view as a civil libertarian, it is justified for that person to be arrested.

At the moment, the common law as it applies in Canberra to breach of the peace gives police the power, if they are so inclined, to arrest for a breach of the peace for very minor conduct which would objectively be regarded as part and parcel of the to and fro of noisy but peaceful political protest. `Peaceful' should be regarded as non-violent, not non-noisy.

I urge that upon you in very strong terms. Bronitt says that powers which do not involve the arrest of a person and breach of the peace can be used simply to say to a person, `I am removing you from here because you are breaching the peace.' That person can then be taken 200 yards away and told, `Don't come back.' If they do come back, they can be arrested and taken before a court for the offence of a breach of the peace. So many of these breach of the peace arrests can be used to remove people from the protest.

A politically motivated police commissioner, as Lewis was--I am certainly not saying Palmer is; Palmer has his hands full with the Wood commission--or even superintendents or gung-ho constables, can say, `I am going to pinch X because I see X as the demonstration leader,' and thereby try and take the wind out of what is otherwise a peaceful political protest. That occurred frequently during the march ban. Coppers here used to go in and pinch principally Dan O'Neill, who was a very charismatic law lecturer from the English department of the University of Queensland. They used to pinch him and one or two others and the protest used to just dissolve after that. That is an illegitimate use of the breach of the peace power. I finish with this quote from Bronitt:

Resorting to powers which do not involve the arrest of the person threatening to breach the peace offer several advantages to the Police. First, resorting to transitory preventive measures provides for quick and effective Police action which is unlikely to be challenged in the Courts.

So if I am pinched--as I once was, outside Parliament House for obstructing the head of the special branch; I was thankfully acquitted for that quite unjustified charge--for a substantive offence, I can at least argue it in court. With breach of the peace, if I am a demonstration leader and I am removed, I cannot necessarily challenge that in the court because I am not pinched, I am not taken to the watch-house, I am not arrested and I am not required to appear in court. If I come back and back, I probably will.

I urge you to look at not only the skeleton of this act. That is only half the equation. The other half of the equation is: how do you control the unbridled discretion, the unbridled use of police powers in a demonstration context? I say that your mix should be that when a demonstration looks like becoming violent in the example I give, give police the power to go and warn, and if the warning is not taken up and the demonstration organiser or agitator continues to urge an attack on the police, give the police power to pinch them. That protects the police and it keeps the demonstration peaceful.

But you have to do something. You have to learn from the Queensland experience because there have not been many other places in Australia, other Melbourne under Kennett. You can get some good examples there from the Richmond College scenario. I urge you to talk to the Victorians, particularly the VCCL and the Victorian Justice Coalition. They have some good examples of some pretty bad use of police power there. But other than Kennett and Queensland, Canberrans are pretty free, other than Aidex, from factual examples.

CHAIR —Thank you very much, Mr O'Gorman. It was very interesting, I can assure you. Thank you for that background on the Peaceful Assembly Act. Do you think the requirements of the Peaceful Assembly Act are in any way onerous on the protesters or demonstrators?

Mr O'Gorman —I do not think in theory they are too onerous. The fact is that the Queensland Council for Civil Liberties, with which I am also associated, has not had any cause, since this act was introduced, to advise protesters. It is not an act that has been particularly tested.

CHAIR —Do the protesters usually comply with the requirements of the act?

Mr O'Gorman —I think the police, who are speaking after me, are probably a better group to ask that. I simply go back again to the fact that, on my recollection in preparing this, I went through my demonstrations file in which I keep newspaper clippings of demonstrations. Other than a demonstration outside Parliament House here where a gate post was supposedly almost knocked down--

CHAIR —I can recall that on TV. That looked fairly violent.

Mr O'Gorman —It was only play. I think the gate post was a bit loose anyway. They made it a bit looser. Whether they had a permit for that, I do not know. But I think that was a particularly good example. When I say `permit', I mean that whether it was a previously notified, court approved march I do not know. I suspect it was not.

Even if one accepts that it was pretty heated, and arguably potentially violent, the reason that demonstration went off so well in the end was sensible policing, rather than the provisions of this act. If the previous law had been in place, there would have been a justification for arresting all of the gatherers on the basis that it was an illegal assembly. At least they could not have been arrested for that.

It was argued that certain people permitted wilful destruction--criminal damage to property type charges--by almost knocking over the gate. That is a good example of how the ordinary law is preserved. If there was evidence of that, then there was justification for the police to arrest. This act did not prevent the people who were alleged to be involved in almost knocking down the fence from being arrested for the criminal offence of wilful destruction of property. Arguably, breach of the peace may then have been a justifiable arrest.

Senator BELL —You have virtually said that you do not know whether the requirements of the act are too onerous or not. On many occasions, you would not know whether there had been an attempt made to comply with the act in terms of its permits, et cetera. For example, I mention the students rally a few days ago in Queensland.

Mr O'Gorman —I was not even aware of that. Was there a march in from the university?

Senator BELL —I think it was essentially high school students about French testing.

Mr O'Gorman —That rally, as I understood it, was in the city square; I do not think it was a march around the street.

Senator BELL —I do not see what the difference would be.

Mr O'Gorman —There is an important practical difference.

Senator BELL —In the area of protesting, the right to present a point of view is not necessarily infringed by needing to get a permit or not get a permit or to march around the streets or not march around the streets.

Mr O'Gorman —That is so. Under this Peaceful Assembly Act, the permit concept--a couple of times I have used the term `permit', and I have tried to correct myself--does not operate. What you have got to do is get an order to be protected, but if you do not get the order you can still have the march but you are not protected against traffic act violations. The fact is that you can still have protests and protests are still conducted.

The essential difference between now and 1977 to 1980 is that, if you had a renegade police force, as you then did, who are minded to arrest people, this law would prevent them from arresting them simply for the fact of gathering outside Parliament House. Under the old law, if you did not have a permit, you simply could not gather. They cannot arrest for gathering now. They can arrest if one of the gatherers commits a criminal offence.

Senator REID —I want to be sure of that point as to whether people do apply for a permit or not.

Mr O'Gorman —I think the police could better answer that. I cannot tell you.

Senator REID —What happens if you do not? That was the thing I was asking. We have had evidence, as you would know, from people who advocate a permit system and others who do not. There are good arguments for both, and that is what we are wrestling with. I was looking at that point. Section 5 in the act deals with the right of peaceful assembly, and section 7 deals with the authorised public assembly giving us an assembly notice. There does not seem to be any specific mention of what happens if you do not go through these processes.

Mr O'Gorman —Section 6 is probably the relevant section instead of legal immunity for a participant in the public assembly. If a public assembly is authorised, peaceful and held substantially in accordance with the order, a person who participates in the assembly does not, merely by the act of participation, incur any civil or criminal liability because of the obstruction of a public place.

What used to occur pre this act, particularly in the 1977 to 1980 ban, is that, if a group of people gathered outside the gates of Parliament House--the minders here were someone like the President of the Senate--they would close the gate, so you would have to gather outside the gates. That of itself resulted in arrest, because an inspector would get up and say, `This is an illegal assembly. I command you to disperse.' If the people did not disperse--and all they were doing was standing there, even with gags around their mouths--they would be arrested for failing to obey a direction to disperse.

Under this act that cannot be done. But if someone outside Parliament House assaults a police officer or assaults an MP, which is a criminal offence, they are not protected from ordinary criminal offences; they are protected under section 6 from the civil or criminal--I forget the label; it might be the offence of, say, obstructing traffic.

I would urge you to particularly look--no doubt you have--at the chapter 13 summary and recommendations of the EARC report on this Peaceful Assembly Act. The EARC report traversed all the other jurisdictions and looked at a number of the arguments, pro and con, relating to the permit system. It went against the permit system because it said that there was an objection for people saying, `I should not have to get a permit to engage in peaceful, political protest.' They said, essentially, `What is in a name?' `What does it matter whether you call it a permit or a legitimate public assembly under section 6?'

It is not so much the name, but it is the consequences that flow. If you are a participant in a public assembly that has been authorised, you cannot be pinched for obstructing traffic. However, if your obstruction of traffic is absolutely unreasonable, if you are on the footpath outside and you think it is funny to go and sit in the middle of the road, then you can still be arrested for unreasonable obstruction of traffic.

Senator REID —I am wrestling with the right to protest. As soon as you put a permit on it, in a sense you have interfered with the right to protest.

Mr O'Gorman —That is why EARC went against the permits.

Senator REID —Yes, that is the dilemma I am trying to work through--whether your right to protest is better protected by having a permit as against my first reaction, which is that an infringement on the right to protest merely suggests that you must get a permit.

Mr O'Gorman —My submission is that your right to protest is best protected by the scheme of the Public Assembly Act because it does not have the offensive thing where you have got to get a permit from the very government or the state authorities that you want to protest against. Nevertheless, this act, borrowed as it is from New South Wales, and South Australia particularly, effectively regulates the problem of how you protect the interests of other people who are not part of the demonstration.

CHAIR —You may not have to get a permit, but you have still got to go to someone to get an okay, to get the tick to do it--a de facto permit.

Senator BELL —Yes, but it would have little relevance to protests outside Parliament House if you are in Canberra, for example. When we were looking at what the special qualities of the national capital were, we thought that that is probably one of them.

Mr O'Gorman —Did you find any?

Senator BELL —Yes, I would suggest that there could be at least half a dozen. The fact that diplomats regularly visit and that there are embassies which attract that sort of attention in a greater concentration than in any other city is one of the other characteristics. Surely, the fact that it is not a CBD centre block, which is traditionally used in most other cities, and that there are not commuters, bus traffic and commerce going on around the area which would be an area of protest would be another special characteristic. I would have thought that traffic offences would be the least thing that the AFP would be concerned about.

Mr O'Gorman —If, because of Canberra's wider footpaths--

Senator BELL —No--

Mr O'Gorman —The fact that it is Parliament House--

CHAIR —We have got a couple of members from Canberra here.

Senator BELL —A couple of kilometres of roadery, if you like, around Parliament House, which is the traditional centre of gathering, rather than a CBD.

Mr O'Gorman —If your question is whether there is some justification for restricting protests in the Parliament House vicinity or precincts to, say, the north-west corner but that only--you cannot have a protest at the main entrance or at the side entrance where the Leader of the Opposition or the Prime Minister habitually might walk in on a given day--my response is that there should be no geographical limit, in terms of the precincts of Parliament House, as to where a demonstration can be conducted.

Similarly, in relation to protests outside, let us take a fashionable example, the French Embassy. That should be permitted under the same scheme as the Peaceful Assembly Act--keeping in mind that ordinary criminal law powers apply--so that, if people block the Ambassador's gate so he cannot get in and out, that is a criminal offence. Of course, the law of trespass under this act is specifically spelt out to apply.

CHAIR —What impact do you think the right to freedom of communication of political matters, which is implied in the constitution, would have on protests or demonstrations?

Mr O'Gorman —Are you asking me to guess what the High Court might say?


Mr O'Gorman —We will have to look at what Justice Gummow said in the more recent case where they jumped in.

CHAIR —Is that the Teoh case?

Mr O'Gorman —Yes. My view is that I hope the High Court would philosophically fall along the line something like the Peaceful Assembly Act and say that there is a presumption in favour of peaceful political protest, to use Senator Bell's example, anywhere around the two kilometres of road around Parliament House. As Kevin O'Connor from the Human Rights and Equal Opportunities Commission noted, it should be subject to certain basic restrictions. You have to make it subject to the ordinary operation of the criminal law. For instance, if the French ambassador was scheduled to meet with the Prime Minister through the main entrance of Parliament House today and the AFP felt that there was a risk that he might be pelted with eggs, it would be reasonable for the AFP to put him out of egg pelting distance, but not so far away that the protest is ineffectual.

I do not know whether that answers your question but I would hope that the political ads and the Theophanous decision would create in the High Court a presumption in favour of public protest anywhere around Parliament House or outside the embassies, subject to the reasonable restrictions that are spelt out in article 21 of the ICCPR.

Senator IAN MACDONALD —There is a proposal by the presiding officers to have a set area for demonstration, which is around the front of the building, so that you never see the Prime Minister or any of his guests, or any member of the executive. Do you think that would be an inappropriate direction?

Mr O'Gorman —We are totally opposed to that. If there is two kilometres of roadway and footpath around Parliament House, anywhere in that two kilometres should be permissible. On that example, Malcolm Fraser and Gough Whitlam would have been able to go in different side entrances each day and never be seen by the masses that were gathered. I just think that is offensive in terms of a democracy to say, `We are going to put you here', and `here' is normally the place where you have the least impact. If you go anywhere else you are pinched. In my view that is what the permit system would permit.

Senator IAN MACDONALD —This is even beyond the permit system; it is in the Parliamentary Precincts, which the presiding officers have control over. As I understand it, they are going to direct that protests be held in a certain area.

CHAIR —That is not certain; that is one of the things that has been brought up. We cannot say it is going to happen.

Mr O'Gorman —I would like to see that power--I have seen the guidelines annexed in the back of the discussion papers--taken away from the Speaker of the House and the President of the Senate. This type of concept should be the overriding provision with no guidelines that override it. You can use the Protective Service and the AFP to meet, in any given situation, any particular problem. Other than someone who drove a car through the front door of Parliament House, when is the last time Parliament House has been stormed? Once you get in, where do you go? It is too vast.

Senator BELL —One of our considerations has been those who do enter under one pretext and conduct their affairs differently, having got past the pass section. That is a considerable problem.

Mr O'Gorman —I think within the House it is fair enough. This is analogous to the protection of the law of trespassing in this act. But I think different considerations apply in the House. If you have someone who comes in in a suit looking like a parliamentarian and then throws a suit off and becomes a protester, you ought to have--

Senator BELL —I did raise it as a side issue; I did not want to take your time.

Mr O'Gorman —You ought to have domestic power to control what happens within your own hours.

CHAIR —Would you see any value in providing sanctions for failure by demonstrators to comply with a notification or permit system?

Mr O'Gorman —No, because in making allowance for the qualification it has been a reasonably quiet period. This has worked well over three years. Sanctions were looked at by EARC and rejected as being unnecessarily heavy handed. Rather than look at what other people might say, even though I commend EARC very strongly, let us look at a practical example that has worked for three years, admittedly in a reasonably quiet time. But with some periods, particularly the Yock example, sanctions are not needed.

Senator BELL —I really worry about this concept you are promoting of a period of political acquiescence or quietness with no issues to raise. If I was in Queensland at the moment and wanted to gain some publicity, which is probably the climax of a protest action, I would organise myself and my group to not have a permit and seek to conduct myself in such a way that an arrest was made and the paddy wagons were called in and publicity was achieved.

Mr O'Gorman —The difference between now and then is that what you would now have to do to get arrested is something that is palpably illegal. The reason why Bjelke-Petersen's move was so counterproductive was that, if you proceed on the premise for the moment that a protester wants to get arrested so there is footage of him or her being thrown into the paddy wagon, Bjelke-Petersen created that. This makes it almost impossible to achieve that here unless you go up and hit a cop. And if you hit a cop, you deserve to be arrested.

Senator BELL —Sure, and your issue suffers.

Mr O'Gorman —Yes, your issue suffers. But the main problem is that most of the protesters in the Joh Bjelke-Petersen era are now part of government.

CHAIR —Times change though.

Senator IAN MACDONALD —You may have mentioned it before I arrived, for which I apologise, but I do not think you commented on it in your submission. Do you have any comment on the length of time a protest could last? The Peaceful Assembly Act really speaks more about an assembly of people. It presupposes, from a quick look at it, that it is a moving sort of thing. Do you have any comment about structures? I refer to the `Trojan Horse' and the tent embassy.

Mr O'Gorman —Yes, I think that they should be permitted. Again, if criminal offences of a serious nature are committed, they suffer the consequences. One of the submissions I read talked about how ill-behaved the pro-loggers were. Close your eyes and change the flavour. That is what used to be said of the opposite end of the political spectrum. The reality is that if the pro-loggers were sitting around at night on the booze in a public place, that may well have been an offence in Canberra. But to arrest for that would be, even if not legal, an abuse of the discretion to arrest.

In terms of whether these lengthy structures be allowed there, yes, because it is a matter of course. People just get tired of them. It is uncomfortable, it gets cold and it gets wet. I have seen them outside Canberra Parliament; I have seen them outside the Tasmanian Parliament on the same issue but the other side--the anti-loggers. So long as there is no prohibition of access by MPs or other members of the public to and from Parliament House, yes.

Senator IAN MACDONALD —So it can be unlimited for years if needs be, which is the case with the Aboriginal embassy. In the case of the `Trojan Horse', in spite of the cold and the wet and everything, that demonstration stayed. It was only moved when it was forcibly removed by the police. When does your right to make a political point move beyond that and become a permanent feature of the landscape? Perhaps, while you are thinking about that, you may have a comment on where these sorts of things then become dangers to health and safety because they are not in accordance with building and workplace health and safety structures and that sort of thing.

Mr O'Gorman —That is a good question and it is a question I have not considered. I will give you a supplementary written submission. My initial response is that a stage must be reached. I would have to think it through and consult some of the constituent state councils to give you a final position on this, but a stage has to be reached where it has become such a permanent structure and/or health problems are evident that it should be removed. When and under what circumstances I would like to think about. I certainly would be prepared to say that it is not reasonable to say that a structure should remain there for years. I was not aware that the Aboriginal embassy was there for years.

CHAIR —It is still there now.

Senator BELL —There is a suggestion about national heritage.

Senator IAN MACDONALD —The site is, not the building.

Mr O'Gorman —I would like to think about that, because I think that is an important thing that I have not considered.

Senator IAN MACDONALD —It is very important.

Mr SMYTH —There has actually been something at the Aboriginal embassy site in front of old Parliament House on and off for about 20 years now. It started with a tent, then disappeared and it came back.

Mr O'Gorman —I will communicate with your secretariat, but it would be very useful to find out what is done in Washington and whatever the capital of Canada is. I would not worry about the UK. I would be interested in getting some comparative material.

CHAIR —I think we should finish there; we are running a long way behind time. We may have some further questions. If so, we will write to you. Thank you very much for appearing before us this morning.

[10.45 a.m.]