Court defends right to protest, government seeks to criminalise dissent

July 27, 2012
Reclaim public space rally, QV Square, July 27.

Activists in Melbourne have won a big victory for the right to political protest after the charges against the Max Brenner 16 were dismissed on July 23. The court trial lasted for 17 days in May.

The 16 Palestine solidarity activists had been arrested and charged over a protest outside the Max Brenner chocolate shop in QV Square, Melbourne in July last year. The protest was part of the campaign for boycott, divestment and sanctions (BDS) against Israel and the occupation of Palestine.

The court verdict rejected police charges of besetting and willfully trespassing and confirmed the right to protest in a public place.

One victory in the case was the right to protest in solidarity with the Palestinians without it being labelled “anti-semitic”. When the protesters first appeared in court on July 27 last year, Inspector Michael Beattie gave evidence that the July 1 protest “expressed a lot of anti-Israel and anti-Jewish sentiment”.

However, under cross-examination by defence lawyer Rob Stary, Beattie admitted that was a “poor choice of words”, that there was no anti-Jewish sentiment and the BDS group “is not anti-Jewish”.

The trial revealed the close working relationship between the managements of QV and Melbourne Central shopping centres and the police.

Evidence during the trial indicated that these parties hatched a plan in several meetings whereby protesters would be allowed to protest outside Max Brenner at Melbourne Central with police waiting to move against protesters at QV.

Protesters would be “allowed” to demonstrate for 15-20 minutes before being told that they were trespassing. Around 130 police were mobilised for the operation.

Senior Sergeant Andrew Falconer admitted the police planned to arrest activists they thought were part of the leadership group. Protesters holding megaphones were targeted for arrest.

In dismissing the besetting charge, the magistrate found that the protesters “did not … obstruct, hinder or impede any member of the public who wished to enter, use or leave Max Brenner’s Chocolate Bar”. Instead, “it was the establishment of the police lines at the front of Max Brenner that caused the obstruction, hindrance and impediment to members of the public”.

The verdict was especially significant regarding the right to protest in public spaces such as shopping centres, which are also privately owned. The management of the two shopping centres thought they had total control over who entered the space and whether or declare them trespassers.

On the night of the protest, QV management posted notices around the shopping centre saying “if you propose to demonstrate disapproval of the political or social interests of any retail tenant within Melbourne Central or QV, or create any form of disturbance in and around retail premises within Melbourne Central or QV, then you are prohibited from entering these shopping complexes”.

It was revealed during the trial that when the government sold the QV site to the private developer, a covenant was signed, binding the new owners to keep the laneways and squares open to the public 24 hours a day, seven days a week, in a manner “which is reasonably analogous to comparable squares”.

Because of this, the magistrate ruled that the owners of QV did not have the legal authority to apply conditions to members of the public who wished to enter QV Square or the laneways on the site.

The magistrate also accepted the defence argument that to be guilty of wilful trespass in a public place, it had to be shown that you had a criminal intent, and political protest was not evidence of this.

The magistrate ruled that any attempt to label protesters “wilful trespassers” violated and limited their right to peaceful assembly and freedom of expression, which are protected by the Victorian Charter of Human Rights.

The Charter was legislated in 2006. Some in the Coalition state government have been calling for the charter to be dumped.

While the magistrate found in favour of the political right to protest on the central charges, he also dismissed the defence argument that the police had acted unlawfully, finding that the police made the arrests with the “reasonable belief” that protesters were acting illegally.

This resulted in him finding four protesters guilty of hinder arrest, resist arrest and assault of police, with a fifth protester to hear the result of his additional charge on July 31.

In an interview with filmmaker Anthony Snowden outside the court, defence lawyer Rob Stary said: "Peaceful protest and the protesters have been completely exonerated. QV is a public place, people have a right to protest, a right to assemble. This has wide ranging ramifications.

“Police should not get involved in political protests or industrial disputes. They shouldn't be criminalised. We live in a democratic society in which people should be entitled to express their views. If they oppose the occupation of the West Bank or the Gaza strip, they should be entitled to say so... We should be able to engage in a robust debate about these important issues. Police should not be brought in to criminalise that behaviour.”

Sue Bolton, one of the 16 exonerated, said: "This is a huge victory on a number of accounts. In particular it's a victory for the right to free speech and the right to demonstrate, including against the political views of retailers.

“It sets a precedent that we've got the right to use public space, even within these privately owned shopping centres. This also allows us the right to continue to protest in support of the rights of Palestinians."

In response to the court victory, the Victorian government has sought to toughen anti-protest laws to stop them closing businesses.

Premier Ted Baillieu said: “The BDS group in my opinion is better titled as bigoted, dangerous and shameful. They have sought to close down businesses just because they are associated with the state of Israel."

The July 25 Australian said: “Chief commissioner Ken Lay said Victoria Police would also seek advice on whether to appeal against the decision, request legislative change or alter their tactics when dealing with protests.”

Since its election, the Baillieu government has pushed a law and order agenda with a militarised policing style for protests. New fines were introduced in 2010 for swearing in public and a new riot squad was created that has been used against protesters at Max Brenner and Occupy Melbourne.

While the government has cut funding to the public service and TAFE education, it will spend $1 billion on a new prison in Victoria.

Activists have vowed to continue the campaign for free speech in Melbourne and in support of the global BDS campaign against the state of Israel.

About 150 protesters converged on QV Square on July 27 to celebrate the court’s recognition that it is public space. Cups of free hot chocolate were distributed while people spoke about the significance of the victory.

Photos by Ali Baktiavandi:

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