Let’s talk about protesting

Protest laws were back in the news this week. The Western Australian Barnett government has proposed laws that would restrict protests in certain circumstances.

The question of what constitutes a reasonable restriction on the right to protest is an important issue for public policy makers. It is a question which is complicated by the existence of public spaces designed to serve a range of purposes. One recent example illustrates this point well.

In Melbourne in 2011 the Occupy Movement set up a makeshift camp in the heart of the CBD. The protestors were in a government-owned space – City Square – which members of the public can use free of charge. Many protests have been carried out in the space and the vast majority of them have been uncontroversial. But the Occupy protest was different. Protestors used the space to live in – building large structures, including accommodation, cooking and waste facilities. The protestors were allowed to stay in City Square for around a week until they were finally evicted.

There are many problems with the way the Occupy protestors conducted themselves. The space was entirely appropriated for use by the protestors and surrounding businesses suffered. The eviction, clean up and subsequent legal challenge cost the taxpayer more than $1 million.

Occupy Melbourne was an example of where the government is justified in restricting the conduct of protestors. The City of Melbourne was right to evict the protestors after an eminently reasonable amount of time had passed for the protestors to make their point and move on.

The changes proposed by the Barnett government apply at an even higher threshold. The heart of these laws is the following prohibition:

A person must not, with the intention of preventing a lawful activity that is being, or is about to be, carried on by another person, physically prevent that activity.

The proposed laws restrict only the physical prevention of lawful activity. They are directed at protestors who chain themselves to machinery or erect barricades in front of worksites. They are the kind of laws that give police the powers they ought to have in order to carry out their job. Protest restrictions are justified where they provide better protection for property rights.

Although I believe the content of these laws is reasonable it’s clear that the government has gone too far in including two provisions which reverse the onus of proof (clauses 68AA(3) and 68AB(2)). They are an abrogation of the fundamental right to the presumption of innocence. Those provisions should go.

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