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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-07-23 Daily Xml
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RIGHT OF ASSEMBLY BILL

Introduction and First Reading

The Hon. SANDRA KANCK (17:32): Obtained leave and introduced a bill for an act to provide rights in relation to assemblies held for the purposes of genuine advocacy, protest, dissent or industrial action. Read a first time.

Second Reading

The Hon. SANDRA KANCK (17:32): I move:

That this bill be now read a second time.

On 17 June 8,000 teachers had their protest march rerouted down North Terrace instead of taking the time-honoured route of protest down King William Street. On that day I announced I would be asking the Minister for Police about restrictions on marching down King William Street and said that if I did not get a satisfactory answer I would introduce a bill to protect our rights of assembly. I did not receive a satisfactory answer, so here is the bill.

The first I heard of this new arrangement for marches and protest rallies was an article in the The Advertiser on Thursday 12 June, which said that some marches between Victoria Square and Parliament House would be banned on the grounds of safety. The Advertiser reported that the ban related to the tramline extension and safety issues, but that major events, such as the Christmas pageant or celebration parades, would be exempted from the ban.

My office then contacted SAPOL for clarification and was told that each request to march was subject to a risk assessment and that obviously they would not close off King William Street for three men and a dog. I was reassured. However, the very next day it was reported that protesting teachers would be forced to take a different route down North Terrace. As it turned out, around 8,000 teachers marched on Tuesday 17 June—hardly three men and a dog. My experience over 30 years or so that I have joined rallies from Victoria Square to Parliament House has been that, where only a small number of marchers attend, we have still marched down and the police have blocked off just one lane. The police have always shown common sense in how they regulate small and sometimes spontaneous marches. Members may recall that on Tuesday 17 June I asked the Minister for Police the following questions:

1. Why were the teachers not allowed to march down King William Street today?

2. Will other political rallies and marches be permitted?

3. Will other large events that require the closure of King William Street, such as tickertape parades for returning Olympians, a premiership winning Port or Crows team, or soldiers returning from Iraq or some other tour of duty, be permitted?

4. If these other events are to be allowed, can the minister outline the criteria that will be used to make an assessment about which rallies are to be permitted?

The minister said that it was a matter for the Adelaide City Council but that it was decided on the advice of the police. The police told my office that there was no blanket ban and that it would be decided on a case-by-case basis. Adelaide City Council advised that it automatically took the advice of the police.

The ABC891morning program then revealed that there was an agreement, with the introduction of the tram, between Adelaide City Council, SAPOL and the public transport division that King William Street could no longer be utilised for marches and parades, with the exception of NAIDOC, the Christmas pageant, the City to Bay Fun Run, and one-off events such as this year's Olympic parade. However, a Conlon staffer contacted the morning program and said that the minister does not have a problem with the use of King William Street for protesters. So, is anyone confused?

Adelaide City Council has done what it can to clear up this mess. On 30 June it passed a motion from Councillor Anne Moran that attempted to protect democracy and provide certainty. The motion states:

That this council believes that the use of a ceremonial street such as King William Street for the purposes of peaceful and orderly marches or protests demonstrates the strength of our free society in democracy, and therefore adopts a policy that, despite the construction of the tram line by the state government, the citizens of Adelaide and South Australia should continue to have the peaceful and orderly use of King William Street to celebrate or to protest as has been the tradition of this city, and directs the administration to apply this policy when deciding on or providing comments about requests.

Councillor Moran deserves particular commendation for her efforts, but the clear conclusion from this whole debacle is that there is no solid protection for our rights. Any council could do away with them by refusing a permit to march. A politicised police force could penalise selected protesters by advising the council to refuse a permit to march, and no one would be the wiser. We cannot assume that protesters can take an alternative route. That, too, is up to people who do not have to account for their decisions. Importantly, the state government will not stand up for our rights. It was conspicuously silent throughout this whole affair; hence the need for this bill.

It is also important to remind ourselves that we live in a time when basic rights are progressively being taken away. Who would have thought, for example, that a South Australian could be sent to gaol for who they know, not what they do. But that is what we agreed to under the Serious and Organised Crime (Control) Act when we passed provisions relating to criminal association. Under this new act, a person can go to gaol for going fishing with their uncle if that person is or has been a member of an outlaw motorcycle gang. Obviously, most members think that we are under such extreme threat from motorcycle gangs and organised crime that this sort of measure is justified. However, we are on the slippery slope to what one commentator has called a 'marshmallow dictatorship'.

If that sounds extreme, think about the anti-annoyance laws that the New South Wales government introduced for World Youth Day. Under those provisions, a person could have been fined $5,500 for wearing a T-shirt that offended a youth day tourist. Fortunately, these provisions were thrown out by the court. The court explained that the word 'annoying' was wide enough to encompass any observable act a human being can do. The Australian's 18 July edition covered the Federal Court's questioning of the New South Wales Solicitor-General. One of the judges asked the New South Wales Solicitor-General the following question:

How about barracking for the Dockers while you are sitting in the middle of a bunch of Swans supporters? I've done that.

The court threw out the law on a technicality, not on a point of principle. It was simply too subjective and beyond the regulation making power conferred under the World Youth Day Act. With this government, it could be that we will even see something like that in South Australia. It appears that if parliaments dot their i's and cross their t's they can take away any freedom and any form of expression. If you can outlaw a T-shirt, why not outlaw printed material such as leaflets or even magazines? If a Catholic hoedown demands such measures, what controls will state governments institute during a visit from a Chinese government trade delegation? After all, there could be billions of dollars worth of contracts at stake. That is why this bill matters. It is one small attempt to protect a tradition and the right of protest in this state and country. The key provisions of the Right of Assembly Bill are:

it confers a general right of assembly, which affirms our inalienable right to assemble in a public place for protest;

it specifically deals with the impact of the Serious and Organised Crime (Control) Act by stating that attendance at an assembly does not amount to association or communication with another person present at the assembly;

it enables the minister to exempt protests from laws under which they could otherwise be prosecuted, such as road traffic and public order offences. Importantly, this provision is an option for protest; protest organisers can still go to the council for permission and seek exemption from the minister only if the council refuses them;

it requires that the minister set out the grounds on which such an exemption is refused to a person and prepare a report for parliament as to why that exemption was refused, with particular reference to the risk to public safety, within six days;

it provides for the right of appeal to the District Court against a decision by the minister to refuse to grant an application for exemption; and

it requires a report on the operation of the act by 30 September each year. This report would give details of applications for exemptions that were granted and those that were refused, giving grounds for that refusal. A copy of that report should be laid before both houses of parliament.

In summary, this bill would not stop police from making reasonable judgments about the safety of a particular event, and it would not automatically replace the process of applying to council for permission to march, but it would provide the ability to go over a council to the minister. It would also ensure that decisions to refuse marches and protests were explained to applicants and to the parliament. More of the sunshine that we heard about from the Hon. Mark Parnell in another motion a few weeks ago in relation to donations from developers!

It would be much tidier and more effective to protect our basic freedoms through a comprehensive charter of rights; that way, measures which might infringe on rights would be prevented rather than tidied up afterwards in this piecemeal fashion. However, for as long as a charter of rights remains off the agenda, we are reduced to this very unsatisfactory reactive and scattergun approach to protecting rights. This bill is simple and inexpensive to implement. It will change very little but, by affirming the right of assembly and protests, and ensuring transparency, it will prevent some of our rights from being denied.

Debate adjourned on motion of Hon. B.V. Finnigan.

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