The Right to Protest

Most people assume that because they have the freedom to march up to Parliament House that they have the right to protest.  Most people think that citizens of Victoria have the right to protest against unfair laws.  
Politicians point to the Victorian Charter of Human Rights and Responsibilities, where ‘Freedom of Expression and Association” is one of the rights enjoyed by Victorians.  
In fact the right to protest is a highly qualified ‘right’ in Victoria, and it is only some kinds of protests that are  lawful.
The law is now known as the “Move On” law.  Labor originally introduced ‘move on’ legislation in 2009.  Their law enabled police to deal with gatherings of intoxicated or anti-social youth. The original aw gave police the right to ‘move on’ those people they had a ‘reasonable belief’ they were going to break the law.  The conservative government’s amendment meant that they could act in circumstances where they had ‘formed a suspicion’ than an illegal act was about to take place.
Then Attorney-General Robert Clark explained the need for the new law saying that police had lacked the power needed to move protesters away from trouble spots – and make them stay away. The laws, Mr Clark said, would give Victoria Police the power to issue move-on orders to protesters who ”deliberately seek to stop people going about their lawful business”.  He went on to say that police should not have ”to deal repeatedly with the same individuals at the same unlawful blockades” day after day, he said (The Age, 8 March 2014).
The law protects vested interests, particularly property interests.  When it was brought in, commentators thought that it was designed to deal with East-West link protestors.  In fact one of its first uses was to break up the Anti-McDonalds protest at Tecoma, and has been consistently used against industrial protests.  By the time the law was amended back to its original form by Labor in March 2015 it had also been demonstrated to be routinely used against homeless people.
The right to protest peacefully against wrong-headed laws often means that protestors are in conflict with someones’ right to carry out their business.  This happens because that business is permitted under a law that the protestors see is against the community’s interest, but may be in someone’s (or some corporation’s) private interest.

The campaign against Fracking (Unconventional Gas) & the right to protest

Fracking, and the onshore unconventional gas industry, was a lawful activity under Victorian law until March 2017, when the Victorian Parliament passed a permanent ban on Onshore Gas.  This followed a moratorium on fracking and coal-seam gas drilling being announced by the then Liberal Premier Ted Bailleau in 2012. Under Victorian regulations* an energy company only needed a ‘works approval’ to proceed from exploration to production. A long community campaign, lead by the Lock The Gate movement raised the profile of its disastrous impacts on food and agricultural production and on the underground water aquifers, to communities across affected regions of Victoria (principally the West and East of the state). They pointed to the community as well as environmental effects as demonstrated in the Darling Downs in Queensland, and in the NSW Hunter Valley.
Lock the Gate is a movement which aims to remove the gas companies right to operate: their “social licence” in each community. However when the gas companies had the upper hand if the community, or landholder, decided to protest.  The community’s right to protest against an unconventional gas field being established in their area comes directly in conflict with the right of a miner to pursue their lawful business.  The moratorium came just as farmers in the Seaspray area of Gippsland were preparing to protest and ‘lock on’ to the gas wells already drilled there and being prepared to operate.
At the end of the day, despite the ‘Move On’ law still being available to the State to break up such protests, politicians of both conservative and progressive persuasions were not prepared to lock up farmers for protecting their farms from gas companies.

Environmental Protests

The changes to the ‘Move On’ laws in 2015 did not change restrictions on the right to protest against bad environment laws in Victoria.  Under the Andrews Labor Government it is still illegal to protest on public land against either logging in a logging coupe, or go into a proscribed wetland during the duck hunting season to protest.  This is how they do it.
Banning & Exclusion Orders for Anti-Duck Hunting protestors, and an exclusion zone of 25m from the water’s edge or 10 m from a duck hunter with a firearm. The Wildlife Act 1975 was changed by the Coalition government in 2012 to create the “Wildlife (Game) Regulations”.  These regulations, also rationalised in terms of public safety, introduce ‘banning orders’ and ‘exclusion orders’.  These orders mean that a person can be banned from returning to a public wetland for a defined period (a day, a week, a month, the entire duck hunting season).

“Authorised officers and Victoria Police can issue a banning notice to a person who they suspect on reasonable grounds is committing or has committed any of the above offences.”

(Game Management Authority, Victoria, Factsheet, Duck hunting & public safety)

Exclusion Orders, Charges & Fines for anti-logging protestors, and an exclusion zone of 150 m around a coupe.  The Sustainable Forests (Timber) Act 2004 (SFTA) was changed by the Coalition Government in Victoria in 2013 to make logging protests and other disruptions to logging an offence.  These have not been repealed by the subsequent Labor Government.

The changes are are framed in terms of “safety” but effectively stop citizen scientists and other interested parties from finding endangered species in areas the government plans to log, and prevent them from doing post-logging surveys.   The changes to the Act create “Timber Harvesting Safety Zones” for up to 150m from a logging coupe.  This cloaks wholesale breaches of logging regulations in secrecy.  These laws are also explicitly designed to prevent legitimate protest action about special areas being logged.  These ‘direct actions’ are usually a last-ditch attempt to prevent the destruction of precious old-growth forest, and happen only after all other avenues of protest have been exhausted.

Just in case you think I am making this up, this is what the Department’s website says I am copying this word for word from the department website.

“Offences [under the Sustainable Forests (Timber) Act] include:

  • entering or remaining in a timber harvesting safety zone if you are not an authorised person
  • removing or destroying a barrier or fence that has been erected to prohibit or restrict access to a timber harvesting safety zone
  • allowing a dog to enter a timber harvesting safety zone
  • hindering, interfering with or obstructing timber harvesting operations;
  • possessing a prohibited thing in a timber harvesting safety zone, where a prohibited thing is defined as: a bolt cutter; cement or mortar mix; a constructed metal or timber frame; a linked, or a heavy steel chain; and a shackle or joining clip
  • intentionally using a prohibited thing to hinder, obstruct or interfere with timber harvesting operations.

Penalties for non-compliance can result in an Infringement Notice, or charges being laid, leading to appearance in the Magistrates Court where a conviction can be recorded.

 Furthermore, the powers of Department of Environment and Primary Industries’ authorised officers to seize items have been expanded. They may seize any item where they believe, on reasonable grounds, that an offence has been, or is being, committed. They may also seize any item where they believe, on reasonable grounds, that an offence is about to be committed.

The SFTA also empowers a court to make an order excluding an offender from a timber harvesting safety zone or an area of state forest for a period not longer than 12 months. It is a serious offence to contravene an exclusion order. Strong penalties apply to all offences and the courts can hand down appropriate penalties which reflect the seriousness of the offence.” 

Department of Agriculture, Maintaining Public Safety (web page)

The Duty to Protest

Having the right to protest is not the same as having the ‘duty to protest’.  This is a moral obligation.

The last word goes to William Faulkner:

“Never be afraid to raise your voice for honesty and truth and compassion against injustice and lying and greed. If people all over the world…would do this, it would change the earth.”