More on the restrictions on public demonstrations proposed by the Victorian government. Legal expert Sarah Moulds says the law will need to balance freedom of religion with the right to peaceful protest.
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00:00Protest is a fundamental human right that's protected at international law and something
00:07that we can't take for granted here in Australia, however, it is something that must give way
00:13to other important rights and interests, including people's right to feel safe and for their
00:18right to be able to express their religious beliefs, so I think it's a matter of trying
00:23to design a law that's proportionate in its impact and protects freedoms but also people's
00:29liberty and their safety.
00:32And what would be proportionate in terms of a place of worship?
00:36Well I think enabling people to express themselves peacefully and to assemble peacefully to share
00:42views on matters of important public interest is important, however, it's possibly necessary
00:49to ensure safe access for people to places of worship and so it might be necessary to
00:55ensure that people are able to access these important places for their religious expression
01:02without fear of physical harm or verbal abuse.
01:07And so would you be comfortable with say a 100 metre radius or less or more?
01:13Well that kind of distance is something that the High Court's considered in a very different
01:18context in the terms of prohibitions of protest around places that undertake terminations
01:25of pregnancy and abortion, so that might be an indication that that kind of distance
01:31could be appropriate if the High Court's looking at a law like this, but the High Court would
01:36be really interested in the general impact of the law on people's ability to communicate
01:41peacefully about political issues that are impacting Australia's democracy, so it would
01:47be hard for any lawmakers to predict where the High Court might draw that line when it
01:51comes to ensuring freedom of political communication whilst balancing public safety and other important rights.
01:59What about a ban on face masks and balaclavas in protests?
02:03Well again, people have a right to be able to express themselves peacefully and to express
02:09their views on matters of public importance and also people have a right to express their
02:14religion in the ways that they dress and it's important that we protect those freedoms and
02:19liberties in our democracy in Australia.
02:22However, we have seen laws be enacted before that limit people's ability to use face coverings
02:29and so again, I guess the question is about proportionality.
02:34If it's unnecessarily impeding police efforts to keep other people safe, that could be an
02:40example of something that requires an intervention to ensure that people can be identified if
02:46they're causing harm or breaching the criminal law in other ways, but this must be done really
02:51delicately because if we get the balance wrong and we stop people from being able to express
02:58themselves peacefully and assemble and participate in democratic discussion that way, we can
03:05create unintended consequences as well, so it's difficult to know where the High Court
03:11would draw the line.
03:13It is fair to say that we have got laws in place that restrict face coverings in other
03:18settings so possibly that might be seen as a legitimate purpose in this context.
03:24What about a ban on glue, ropes and locks?
03:28We've definitely seen laws like that be passed in other jurisdictions in Australia, so all
03:33around the country we've seen parliaments respond to all sorts of different protests
03:38by enacting heavier penalties for people who protest in certain places, who use different
03:44bits of equipment to clamp themselves to bridges, for example, and we've seen that those laws
03:51can be passed.
03:52That's because we don't have a Bill of Rights in our Constitution.
03:56Our Constitution doesn't protect the right to protest.
04:00Instead we've got protections to communicate freely on political matters, so that's where
04:06the limits are when it comes to what the High Court might think.
04:09However, in Victoria you do have the Charter of Rights and Responsibilities, an important
04:14law that protects human rights, including freedom of peaceful assembly, and you also
04:20have laws around religious discrimination as well, so it will be interesting to see
04:26how the Parliament goes about balancing those different public interests when it reviews
04:32any legislation once it's introduced by the government in this area.
04:36And what about this social cohesion pledge for multicultural organisations that they've
04:42got to make before they're going to be able to get access to government grants?
04:47Well again, I think we need to take cautious interest in how this law might interact with
04:55different organisations' ability to speak freely about matters of public policy and
05:00to be able to represent the interests of their communities in peaceful ways.
05:05So it would seem to me that if that discussion, led by community groups, crosses the line
05:12into inciting hatred or crosses the line into encouraging people to act in ways that could
05:17constitute violence or other criminal offences, that might be the type of thing that's seen
05:22as appropriate for the High Court's perspective around laws restricting speech.
05:29However, if it's broader than that and is an attempt to censor or restrict community
05:34groups' ability to debate these issues and represent the interests of different perspectives,
05:41then that might be something that breaches that implied freedom of political communication.
05:46I think in general the community is hungry for leadership from government to address
05:53what's considered to be really unsettling tensions and concerns in the community about
05:59everybody's safety. So it's important that governments listen carefully to what communities
06:05want and listen to people with lived experience from these different perspectives about what
06:12they think will work in terms of keeping people safe and keeping the values that are important
06:18to us in our democracy here in Australia.
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