The right to protest in the spotlight as demonstrators continue to push boundaries

The rally led to calls from the federal Opposition for police to charge anyone identified holding the Hezbollah flag, to avoid inflaming extremist views in the community.

The flag display, which is now being investigated by the Australian Federal Police, is just the latest in a string of provocative protest actions across the nation, including:

• the pelting of police and police horses by demonstrators with excrement, urine-filled bags and golf balls during three days of violent clashes outside a major military hardware exhibition
• the closure of Melbourne’s West Gate Bridge by climate change activists who used a semi-trailer to block several lanes of peak hour traffic, infuriating motorists
• the appearance of balaclava-clad neo-Nazis at an anti-transgender rights rally on the steps of Melbourne’s Parliament House.

For some, such actions have tested Australia’s long-held commitment to the right to protest as a fundamental foundation of a healthy democracy.

The appropriateness of holding mass gatherings to mark strongly held beliefs was front and centre again this week with the first anniversary of the deadly October 7 attacks on Israel by terrorist organisation Hamas.

The lead up to the sombre milestone sparked debate about the appropriateness of plans by pro-Palestinian supporters to protest against the wars against Hamas in Gaza and against Hezbollah in Lebanon on a date on which more than 1200 Israelis were murdered in a mass terror attack and 101 people remain held hostage by Hamas.

NSW Police went to the Supreme Court in a bid to prevent the Sydney demonstration from taking place, citing concerns for the safety of Jewish people. A compromise resulted in the planned march being abandoned and a vigil held instead.

Victoria Police took a different tack, pleading with protestors to abandon any plans to mark the anniversary, which they said would be socially divisive. Thousands turned out regardless.

The right to protest has even become an issue in the race to elect Melbourne’s next lord mayor, with candidate Nick Reece declaring he was tired of the Sunday protests by pro-Palestinian supporters, which have been going on in the city for a year.

His comments follow those of rival lord mayoral candidate and former AFL football star Anthony Koutoufides, who in August criticised the number of rallies being held in Melbourne’s CBD.

While acknowledging the right to protest, Mr Koutoufides said there were limits and argued for a cap to be placed on the number of demonstrations.

“I think we make it so easy for people, they just demonstrate for the sake of demonstrating,” he told the Herald Sun.

Anti-protest commentary and fraying community sentiment is part of a wider trend that Australian Democracy Network executive director Saffron Zomer said should be of concern to anyone who values democratic rights and freedoms in Australia.

While not condoning violence, Ms Zomer told the Community Advocate disruption was an inherent part of protest action.

“Historically, protest has always been seen as a perfectly mainstream, legitimate form of democratic expression and that’s what it should be.”

Ms Zomer said a cultural shift had resulted in a form of collective amnesia in relation to how critical protest has been historically in shaping society.

“So many of the things today that we take for granted about our lives were achieved through social movements that used protest,” she said.

“Suffrage for women, protecting the Franklin [River]: none of these things would be true today if people hadn’t protested about them at the time.”

Ms Zomer said not only had there been pushback against Australians’ democratic right to protest, but those rights were being steadily eroded by legislation.

“Over the past couple of decades there have been 49 different state, territory and federal laws narrowing the scope for protest in Australia.

“Some of them are incredibly extreme in relation to the kinds of penalties that have been introduced for perfectly peaceful, legitimate protests. It is shocking.”

In response to what had been described as anti-democratic and draconian legislation designed to silence citizens, the Human Rights Law Centre (HRLC) last November released its Declaration of Our Right to Protest.

The initiative called for governments across the nation to adhere to international standards and human rights law to protect protest rights.

HRLC senior lawyer David Mejia-Canales said Australians’ right to protest was fundamental to democracy and must be protected.

"Blanket bans on protests are disproportionate,” he said.

“Any limitations must be the least restrictive possible and based on an individualised assessment of the conduct of participants, not on assumptions or generalisations about the event.”

Mr Mejia-Canales said restricting and prohibiting protests should only ever be a measure of last resort.

"International law is clear: peaceful assemblies must not be used for advocating national, racial or religious hatred.

“Antisemitism, Islamophobia and violence have no place in Australia and there are laws to address these. However, action should focus on the individual perpetrators, not punishing the entire protest or discouraging participation."

The executive director of the Institute of Community Directors Australia, Adele Stowe-Lindner, said the right to protest came down to a question of balance.

“In the community sector we navigate what a strong democracy must look like to ensure voices can be heard and at the same time safety can be assured for groups with different lived experience to one another,” she said.

“Controversy continues to abound in Australian states regarding how best to balance punishing individual perpetrators rather than discouraging participation on the one hand, to protect democracy, and the impact of protest on making communities in Australia unsafe, which endangers democracy, on the other.”

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