Right to protest in Queensland under threat

Queensland law is making it tougher to stage peaceful protests, a pattern being followed by other states limiting protest rights. David McIlveen writes.

I JOINED the Queensland Council of Civil Liberties (QCCL) to help promote civil liberties in Queensland and to understand them, better perhaps to use them, especially regarding the right to protest.

There are few better ways to understand the real limit or extent of this right than through the people who take to the street to test them — to understand where the law stands on protest and where one can stand with respect to the law.

I was curious to read the outcome of the case of student protester Drew Pavlou, who recently appealed a council fine for a peaceful protest in Queen Street Mall in Brisbane’s CBD. I was especially curious as arguments from the angle of human rights were tried by the defendant. (Queensland’s Human Rights Act 2019 commenced in its entirety on 1 January 2020 and counts among our fundamental rights freedom of expression, peaceful assembly and association.)

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QCCL wrote a letter to Brisbane City Council’s (BCC) Chief Legal Counsel in December of last year and the appeal was concluded in May of this year (the appeal was dismissed and the fine upheld). I don’t have a legal background, but reading the case (Pavlou v Brisbane City Council, QDC 73), it seemed to turn at least in part on a technicality and some generous interpretation.

Under s68 of the Public Land and Council Assets Local Law 2014 (“the Local Law”), prior consent is required to communicate any advertising matter. The judge concluded with respect to a handheld sign referencing the Tiananmen Square massacre (the sign read ‘Nothing happened June 4 1989, change my mind’) that, although it did not communicate anything of a commercial nature, it still constituted “advertising”, supposedly interpreting the meaning of the word in the context of the Local Law, and seemingly in contrast to the common use and understanding of the term and its dictionary definition.

Interpreted as such, prior approval for displaying the sign was required from BCC — hence the fine and court costs of several thousand dollars.

As QCCL alluded to in its letter to the BCC, in requiring permission from the council to peacefully protest, it in effect grants the Council power to deny such an act with, presumably, only a broad and perhaps convenient interpretation of “public safety” or “public interest” required.

Out of curiosity, I went through the process of applying for a permit for the same activity and at the same location via the Council website and noted on the site that, apparently, protests involving a ‘procession’ or an assembly of 15 or more participants are outright banned in Queen Street Mall. (See for yourself. I wonder if these restrictions have been challenged.)

What’s more, several days later, I was informed by a member of BCC’s Corporate Security team that my protest activity would not be authorised, as the site – on a public footpath, on Adelaide Street, adjacent the mall – was not in an “approved location”, effectively preventing the same protest that resulted in the fine given to Drew Pavlou.

In my case, however, I had sought prior consent and notified the Council. Rather at odds, it seems, with the judge’s opinion in Pavlou’s appeal case that the Local Law did not prevent free speech, but “simply required a consent, easily obtainable, to exercise it”. I was not able to obtain that consent. Why is it for a local council to decide on which footpath one can stand and peacefully protest in the Brisbane CBD, without any justifiable reason (such as public safety) given?

Rights can be curtailed in dramatic, overt and authoritarian ways. But more often in countries like Australia, it seems, they’re curtailed in small, maybe superficially sensible, bureaucratic ways. As I write this, I’m reading the Human Rights Law Centre’s newly released report, ‘Protest in Peril’ — an ominous title.

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In it, the authors state:

...over the last 20 years, most governments around Australia have proposed and enacted laws to limit protest rights that are incompatible with our international human rights obligations. Common elements of these laws are vague and ill-defined offences, excessive police powers, disproportionately harsh penalties, and the prioritisation of corporate interests…

[In that period], 49 laws affecting protest have been introduced in federal, state and territory parliaments. New South Wales has introduced the most anti-protest laws, while South Australia has the toughest financial penalties with fines of up to $50,000 for common protests.

The report, along with recent events and convictions (especially in other states), presents a timely reminder of the value of the vigilance maintained by organisations like QCCL in Queensland, NSW Council for Civil Liberties and others. Watch those rights, people.

David McIlveen studied science and environmental engineering at the University of Queensland and now works as an environmental consultant in Brisbane.