Published: 31 October 2011
The removal of Occupy Melbourne was a denial of peaceful assembly rights
The Labour Lawyer correspondence continues.
Dear Minister for All Things
Freedom of Assembly: Occupy Melbourne
I had not thought that a citizen's right of peaceful assembly was an issue in this State or in Australia. I was wrong.
Article 20 of the Universal Declaration of Human Rights of 1948 provides that:
"Everyone has the right to peaceful assembly and association.”
Article 21 of the International Covenant on Civil and Political Rights ratified by Australia in 1980 provides:
"The rights of peaceful assembly shall be recognized. No restrictions may be placed on the exercies of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of health or morals or the protection of the rights and freedoms of others."
The Charter of Human Rights and Responsibillities Act 2006 (Vic) succinctly provides by s16(1):
"Every person had the right of peaceful assembly."
While the Charter does not confer substantive legal rights, I note the High Court recently upheld the validity of its operation in Momcilovic -v- The Queen.
In view ot these provisions, I had thought that Victorian citizens would be free to exercise a right of peaceful assembly.
However it seems that the recent presence of citizens peacefully assembled in the CIty Square under the "Occupy Melbourne" banner was such that the State considered they had to be denied their right of peaceful assembly.
By all accounts, the group assembled were peaceful, good-natured and well behaved. The need to infringe their freedom to assembly was justified in a number of ways:
(a) they had agreed to move peacefully and did not do so and hence they had to be forcibly removed;
(b) almost a week was enough time for them:
(c) a coffee shop proprietor claimed its business was down, and
(d) the group was trespassing on Melbourne City Council property.
None of these points seems to me sufficiently persuasive to justify the forcible infringement of the right of assembly of this group and the resulting violence.
Nowhere is the right of peaceful assembly restricted to a particular number of days. The right is not something to be trifled with or lightly abrogated on the whim of some minor local official. It is fundamental and does not expire after six days.
It is an indictment of this Government that the State was not sufficiently robust as to allow these citizens their right of peaceful asembly (and freedom of expression). The use of the apparatus of the State to forcibly deny them their rights reflected badly on us all and particularly on your Government.
Yours disturbedly,
The Labour Lawyer
The Office of the Minister for All Things
Dear Labour Lawyer
Freedom of Assembly: Occupy Melbourne
You refer to the High Court decision in Momcilovic -v- The Queen. I draw your attention to the dissenting judgement of Justice Haydon in which His Honour described the language of a key provision of the Charter in two sentences as:
"highly general, indeterminate, lofty, aspirational and abstract... nebulous, turbid and cloudy."
Little more needs to be said on that issue. The Charter confers no substantive rights and has been previously described by a now senior member of my Liberal Government as:
"... more likely to help criminals frustrate the law than help honest citizens obtain justice."
As for the International Covenant on Civil and Politcal Rights and the Universal Declaration of Human Rights, of themselves, they are no part of Australian or Victorian domestic law. In any event, a city square cafe proprietor claimed their profits were apparently being reduced by the presence of the protestors and so their economic rights were being prejudiced.
The right to which you refer is the right of peaceful assembly. Certainly these demonstrators were far from peaceful when forcibly moved on. The Victorian Police did a good job. I note they have now been offered a pay increase.
Furthermore, you well know that the Queen was coming to the city centre and the fact that it was tidied up was a good thing. As you said yourself in previous correspondence: "Enough is Enough".
Yours sincerely,
The Minister For All Things
40 years in the law
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