Scott Morrison wants to crack down on protesters who meddle with businesses supporting the fossil fuel industry, writes Dr Binoy Kampmark.
THE PERMISSIVENESS of protest in Australia has always been qualified. States have often controlled it through the issuing of permits. Regulations must be observed. The good protester is respected; a quiet creature who doesn’t shout, scream or make a fuss.
Australia remains a country shaped in the true Anglo mould of property and preservation. Protests over the big picture ideals of environment and sustainability might be catching hold, but they remain suspect before the traditional lobbies of mining and big business. They proclaim a sacred duty to loot in the name of a decent livelihood, whatever that might mean.
This instinct is dressed up in various guises. The current Treasurer, Josh Frydenberg, is interested, as most treasurers are, in productivity. He has a particular bone to pick with federalism itself, which he argues acts as “the handbrake… on our productivity”. The cult of productivity involves eliminating inefficiencies. Protest is hardly efficient, being, as it were, a necessary component of democratic assertiveness.
In Australian political history, protest constitutes such an inefficiency, a stumble in the quest for productivity. In 2007, then Treasurer Peter Costello was keen to get at campaigners (“ignorant,” he scoffed) opposed to the mulesing of sheep. His weapon? The Australian Competition and Consumer Commission (ACCC), subsequently kitted out with powers to sue those seeking an international boycott of Australian wool.
Costello said:
“There’s no law that’s going to stop ignorant commentary, but there will be a law which will allow the ACCC to stand up for Australian farmers where they suffer from a boycott.”
In an effort to make an equivalent mark in office against that dastardly breed of protester, Prime Minister Scott Morrison has promised to rein in environmentalists who dare confront the secondary chain of supply to mining and other fossil fuel industries. How dare these progressives, he told the Queensland Resources Council, be so mouthy in telling ‘you where to live, what job you can have, what you can say and what you can think — and tax you more for the privilege of all those instructions’?
Evidently, according to Morrison, the actions had worked their wicked charm:
‘Some of Australia’s largest businesses are now refusing to provide banking, insurance and consulting services to an increasing number of firms who just [provide] support through contracted services to the mining sector and the coal sector in particular.’
Home Affairs Minister Peter Dutton has similarly taken up the cudgel, suggesting that such activists are not entitled to any right to protest per se.
His method is crudely tactical: label the protester a species unworthy of protection:
“This is not about free speech, it’s not about the ability to protest, these people are completely against our way of life.”
Such language would find pride of place in the totalitarian states of the 1930s: single out the disagreeable vermin and deal with them accordingly.
Labor has been predictably dual-minded in response. Labor Deputy Leader Richard Marles, who would find admission to a Tory club a sure guarantee after retirement from political life, dismissed the very idea that environmental protests had a cause worth defending. They were psychedelic misfits, engrossed in ego and self-interest. (By implication, those in fossil fuel depredation are selfless promoters of the Commonwealth.)
Marles said:
“The protesters are completely indulgent… these are people that are now actually about a cause, they’re about engaging in a personal experience at the expense of Australians trying to get on with their lives.”
In many ways, this ignores the obvious point that boycott laws do already exist. They, as expected, have generally been the drafting preserve of conservative governments. In the 1970s, “secondary boycotts” came into policy vogue, with the Fraser Government seeking to target any potential disruptions to competition and trade law. The focus was always on reining in the power of unions who might make such use of pressure as to be effective.
And effective they have proven to be. It was demonstrated in spectacular fashion in frustrating tours of Australia by teams from apartheid South Africa. In 1971, prior to the Springbok Rugby tour, the Australian Council of Trade Unions issued a call to union members and affiliates to ‘take whatever action is necessary as an act of conscience to obstruct the tour’.
In 1959, the Waterside Workers Federation and the Seamen’s Union of Australia heeded a call from the South African Congress of Trade Unions to do their bit in frustrating trade with the white apartheid regime. Led by Jim Healy, South African ships were embargoed. Prime Minister Robert Menzies – white bread and white crust – expressed much fury, urging the criminalisation of such conduct.
The modern union moment in Australia, in stark contrast, is straitjacketed into the accommodations of benign industrial action in the context of an enterprise bargain. The idea of disruption has come to be seen as a touch obscene.
Legislative enthusiasm in punishing incitement against those interfering in economic activity is in full swing. Last year, the Criminal Code Amendment (Agricultural Protection) Act 2019 was passed, punishing those inciting trespass on agricultural land, ostensibly to protect family farms. The protection is extensive, covering the whole scope of primary production.
The Law Council made various salient criticisms of the legislation, claiming a potential stifling of “legitimate public dialogue”, duplication of existing state and territory offences and inadequate exemptions for whistleblowers and journalists.
Such nasty statutes do their bit in nibbling away at the very idea of lawful assembly.
As Richard Denniss of the Australia Institute surmises:
‘I suppose one way to govern for the “quiet Australians” is to criminalise making noise… so much for freedom of speech and participatory democracy.’
The Australian legal system, through the High Court, has already acknowledged the legitimacy of silencing noisy public servants who dare question the wisdom, let alone legality, of their department’s practices.
The Morrison gambit must contend with one legal snare.
As University of Queensland’s Graeme Orr notes:
‘Encouraging or organising consumers to put pressure on one company to limit its dealings with secondary “target” companies is a form of political communication and association.’
Australia’s laws on the subject are pitiable and grant no personal, enforceable rights to citizens on the subject of free speech, but at the very least the implied test advanced by the High Court offers a restriction on government power.
Constitutional lawyer Anne Twomey suggests:
“A complex test would have to apply, which takes into account the purpose of the law, its compatibility with the system of representative and responsible government prescribed by the Constitution and its proportionality.”
Former Greens leader Bob Brown has already shown that cases against anti-protest legislation can be won on that principle. Tasmania’s Workplace (Protection from Protesters) Act 2014 permitted police to stop protests that interfered with “business activity” prior to their commencement if they took place on business premises of access areas. They were duly found to be incompatible with the implied right to freedom of communication.
But the High Court was hardly advertising itself as a standard bearer for protest rights, affirming the powers of Parliament to target activists who seek to interfere with business activities.
The Court acknowledged that the Tasmanian law had been:
‘...enacted against a background where protesters, or at least some of them, were perceived to be those persons, or groups, who would cause damage or disrupt economic activities during protests of particular kinds.’
It failed merely because of its bluntness and “Pythonesque absurdity”.
This leaves the Morrison Government some drafting room to criminalise environmental protests in a secondary boycott sense. The cult of productivity must be placated, even if it withers the already starving tree of Australian free speech while damning the environment.
Dr Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. You can follow Dr Kampmark on Twitter @BKampmark.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
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