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Further implications
Freedom of speech and assembly are under some challenge in Australia. Laws have been passed which specifically remove the presumed right of Australian protesters to demonstrate against climate change or the clearing of forests.
Some of Australia's anti vilification laws have been seen as an unjustifiable limitation on freedom of speech. Attempts to regulate content on the Internet have also been interpreted as a threat to free expression. While recent calls for university students to be prevented from conducting pro-Palestinian protests on campus have also been viewed as an attack on the presumption of a right to free speech and assembly. Unlike the United States' Constitution, Australia's does not explicitly guarantee rights to free speech and assembly; however, Australia is a signatory to several international conventions that do endorse these rights. The Australian Human Rights Commission has noted that as Australia is a signatory to the International Covenant on Civil and Political Rights (ICCPR), Australians have the right to hold opinions without interference and the right to freedom of expression. The right to freedom of expression includes the freedom to seek, receive and impart information and ideas of all kinds either orally, in writing or in print, in the form of art, or through any other chosen medium. The exercise of these rights carries with it special duties and responsibilities, including respect for the rights or reputations of others and the protection of national security or of public order, or of public health or morals.
The Australian Attorney General's Department notes that Australia is a party to seven core international human rights treaties. The right to freedom of assembly and association is contained in articles 21 and 22 of the International Covenant on Civil and Political Rights (ICCPR) and article 8(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right to peaceful assembly protects the right of individuals and groups to meet for a common purpose or to exchange ideas and information, to express their views publicly and to hold a peaceful protest. The right extends to all gatherings for peaceful purposes, regardless of the degree of public support for the purpose of the gathering.
Both the rights referred to above are subject to legitimate limitations. The right to freedom of expression does not include a right to commit slander or libel, to vilify (racially or otherwise), to threaten public health or to promote unrest or disorder. The right to assembly only extends to peaceful gatherings that do not involve disorder or physical harm.
Laws which limit or prohibit freedom of speech or assembly can be contested. In December 2023, the New South Wales Supreme Court struck down part of a suite of strict anti-protest laws passed by state parliament in 2022. The state Supreme Court ruled that criminalising activities that cause partial closures or redirections around ports and train stations was constitutionally invalid. The laws were intended to prohibit climate change protests which obstructed roads, bridges, or ports. In making his ruling, Justice Michael Walton stated that the government could not criminalise activities which led to facilities being only partially closed, or which caused people attempting to use them to be redirected. Justice Walton stated that trying to prohibit demonstrations based on public inconvenience had 'a chilling effect on political communication via protests and public assemblies'.
On June 14, 2024, Sydney University ordered the pro-Palestinian encampment to be removed from the campus almost eight weeks after tents, flags and banners were set up and protesters gathered on the quadrangle lawns. A university spokesperson stated, 'The front lawns are a shared space, and as we have said previously, our shared spaces should be welcoming and inclusive to all members of our community. Since 24 April, the encampment has taken over this shared space to the exclusion of others.'
The University is not claiming that the protesters caused violence or physical harm or that they used 'hate speech' or vilified others, all of which would be grounds for their removal. The argument being put is that they are denying other students access to the area where they are encamped and are causing 'significant disruption to core university operations'. Vice chancellor, Mark Scott, has written to the protest organisers telling them the protest camp needs to be cleared so the lawns can be made ready for the start of semester two's 'Welcome Fest'.
Sydney University's vice chancellor had previously stated, 'Over the years you can go back to the Vietnam War, the conscription debate - there have always been strongly held views and intense debates. That's part of who we are. Our instinct is never to pre-emptively shut down free speech and debate and the right to protest.'
The University is arguing that it is not pre-emptively shutting down the debate, that it has negotiated unsuccessfully with the protesters and now needs to act to protect its 'core...operations'.The protesters have not yet decided how to respond to the order to remove their encampment. It may take an appeal to the New South Wales Supreme Court to determine whether the University can move them on as proposed.