Canberra, as the home of Federal Parliament since 1927, has been a focal point for demonstrations and other forms of political protest, primarily on the lawns outside Parliament House (and Old Parliament House). Particularly since the political and cultural radicalism of the late 1960s and early 1970s, what Greg Langley called the ‘decade of dissent’ (Langley 1992), the Government has attempted to strike a balance between the public’s right to political expression and the maintenance of law and order. My work has explored the historical continuities and discontinuities that exist in the history of the relationship between the Federal Government, the criminal justice system and protestors in Canberra since the 1970s. This history demonstrates the tension between allowing protests to occur and their handling by the authorities. Informed by the theories of David Garland, I argue that the Government’s handling of protest in Canberra depicts an exercise in ‘structured ambivalence’ (Garland 2002: 111).
The influence of British law
Patrick Parkinson has aptly stated that ‘[t]he tradition of law in Australia is… a received tradition’ and it ‘cannot be understood without some appreciation of the idea of law as it was developed through some seven centuries in Britain prior to the settlement of Australia’ (Parkinson 2009: 4; 3) With Australia’s political and legal systems inherited from Britain, British law has had two major impacts upon protest in modern Australia. The first is that under common law, there is no protected right to protest. Although the Australian Constitution makes no explicit mention of the right to protest – it is implied as a freedom of political communication with many limitations (McGone 2005: 276).
The second is that British public order legislation (inherited by Australia prior to Federation) had evolved since the fourteenth century, with various Riot Acts established to disperse unruly crowds, when no idea of universal democracy, as we know it, existed. Although the states had created legislation for dealing with protests and other points of public order, the Commonwealth had no such legislation. (The Australian Capital Territory had introduced the Unlawful Assemblies Ordinance in 1937 to deal with protests and public order issues during the last major upswing in political and social radicalism) The utility of these British legal precedents was debated at length in 1971, as the McMahon Government introduced the Public Order (Protection of Persons and Property) Bill into Federal Parliament. The pretext used by the ruling Liberal Party to introduce the legislation was that the British laws were outdated and were unable to cope with the upsurge in protests and other radical political activities in the late 1960s. The Government saw these protests as ‘fraught with the risk of discord and… of violence’ (HOR 1971: 926) and that current laws were inadequate. One of the nefarious elements that had emerged (which the Government felt inadequately equipped to deal with) without this new legislation was a ‘sit in’ protestor who demonstrated on Commonwealth property. George Hannan elaborated on this ‘threat’ in the Senate in a debate on the Public Order Bill:
Commonwealth premises have been to some extent an area of no-man’s land… [R]ecently we had in Melbourne people who I would in fact describe as hoodlums but who describe themselves as protestors, who attempted to set fire to wastepaper baskets in the General Post Office….
We have seen in this country in recent times a growth in what has been euphemistically described as ‘sit-ins’. Only the States of New South Wales and Victoria have appropriate legislation to deal with this particular activity (Senate 1971: 1078-79).
The new legislation was introduced as part of a response to what was viewed as an unprecedented wave of political and social radicalism, but in many ways, the collective institutional memory of the ‘decade of dissent’ has continued to inform how the Government has reacted to demonstrations and other forms of protest, while at the same time, political and social movements (and how their relationship with the institutions of the state) have changed. In my work, I have been able to identify certain themes in the history of protest in modern Australia and government responses that illustrate this conflict between collective memory and contemporary modes. These are:
The hierarchy of rights – the right to protest v the rule of law
One of the recurring debates is the tension between the right to protest and law and order concerns. Nearly all those involved in the debate, in Parliament, in the criminal justice system, the media and the wider public, agree that the freedom of political expression and the right to protest is an integral part of modern democracy, but it is often combined with limitations upon this right – the caveat that all protests must be ‘peaceful’ and protestors must obey the ‘rule of law’ is often stipulated. Any violent, or even mildly disruptive, activities are nearly always condemned by the Government, with many protestors portrayed as subversive or deviant. But there have been changes in opinion over the kind of activities undertaken by protestors. In the early 1970s, the ‘sit-in’ was criticised by both Liberal and Labor politicians (see: Senate 1971: 1078-79), but nowadays this tactic is viewed as a relatively peaceful action, seemingly preferred to acts of ‘vandalism’, such as when a crowd of protestors broke away from an ACTU rally outside Parliament House in 1996 and smashed the glass doors of the building, which is often highlighted and condemned by politicians and the press.
The space of protest
Since the 1960s, there has been a continual debate over what spaces should be available for public protest and how access to this space should be administered by the authorities. A general consensus has been formed that the lawned areas outside Old Parliament House and Parliament House should be available for short-term, peaceful demonstrations (with temporary structures), which must not interfere with government functions, tourism or roadways, although this is subject to various restrictions by the Federal Government, the ACT Government and the police. Kurt Iveson (2001: 368) has argued that this limits protests to the realm of ‘symbolic’ action, rather than direct action.
However the process of legitimisation of protest activities in public space can change. One example of this change is the Aboriginal Tent Embassy, established on the lawns outside Old Parliament House in January 1972, was originally perceived by the Government as an illegitimate site of protest and eventually dismantled by the authorities (Robinson 1994; Lothian 2007). Newly digitalized documents from the National Archives of Australia show the level of distrust amongst the Government and ASIO towards the Embassy and the concentration of surveillance placed upon the site. But since the mid-1990s the Embassy has been recognised by the Australian Heritage Council as ‘a site representing political struggle for all Aboriginal and Torres Strait Islander people’ and the structures are, more or less, accepted as a permanent feature. (AHC n.d.)
But at the other end, the public space open for protest and demonstrations has dramatically decreased as policing techniques have changed from confrontation to co-option and the denial of space for protest activities. Public order policing in Australia has developed, in line with policing strategies developed in Britain, Europe and the United States, towards securing spaces, such as the space around government buildings, financial/business districts and city centres more generally, and preventing protestors from entering these ‘sensitive’ areas. This policing strategy flows on from what Greg Martin (forthcoming) has described as the ‘neoliberalisation of cities’ and the ‘privatisation of public space’, where cities are moulded into ‘hospitable environments for corporate investment, retail, tourism and other high-end services’, while the ‘socially and economically marginalised’ are excluded.
There has been a significant amount of material written on the shifts in methods used in policing demonstrations and scenes of public disorder in Australia over the last thirty years, as protest movements and policing techniques both change. Rather than the straight forward confrontation between protestors and the police during the 1970s and 1980s, since the 1990s, policing methods have focused containing protest activities, surveillance and the denial of space for protest. Greg Martin (forthcoming), David Baker (2008), Kate Epstein and Kurt Iveson (2009) have all demonstrated how these techniques have been used in other Australian cities and the same processes have been used in policing protests in Canberra. Alongside this, an issue raised by protestors and civil libertarians has been how the policing of protests has been informed by national security and counter-terrorism concerns, with the introduction of post-9/11 legislation under John Howard having the potential to subject protestors to extraordinary police powers and penalties. (see: Hocking 2004: 200-202; 238-239; Lynch & Williams 2006: 16-18).
The police also encourage negotiation between the authorities and protest organisers over the boundaries of the protest and protest actions. The National Capital Authority (2003: 3) has published guidelines for protest organisers in Canberra, stating while formal approval is not required to conduct a protest or demonstration in the ACT, ‘it may be in your interests if you are planning a protest or demonstration to discuss your plans with the relevant authorities’. These negotiations rely on ‘good faith’ between the authorities and protestors, which is not always present and can lead to significant conflicts of interest. An example of these points is the AIDEX demonstration in 1991, where clashes between the police and protestors led to hundreds of arrests and many injuries (see: McIntyre 2008).
The Inquiry into the Right to Protest
Between April 1995 and December 1996, the Joint Standing Committee on the National Capital and External Territories conducted an inquiry into the issue of the right to protest with the ACT, with a final report (including recommendations) published in 1997. The documents of this inquiry provide an understanding of the many competing interests that need to be taken into consideration in the ways that the Government (and other institutions such as the police) handles demonstrations and other forms of protest. The contested interpretations of how the authorities should deal with protest in Canberra was not limited to various protest and social movement groups that provided written submissions and testimonies, but was also demonstrated by the conflicting testimony given by various branches of the government, the civil service and the police. The documents of the Joint Standing Committee illustrate very clearly the ‘structured ambivalence’ (Garland 2002: 111) of the authorities in dealing with protest and public order issues. This is further demonstrated by the outcome of the Joint Standing Committee, which failed to provide definitive guidelines for the right to protest in Canberra or resolve some of the competing issues highlighted, such as juxtaposition between the right to protest and the rule of law, or the issue of co-operation between the authorities and potential protestors, or the subject of available space for acts of protest.
I would argue that since the 1970s, the issue of protest in Canberra has been continually negotiated by the authorities in both theoretical and practical terms, taking into account both historical precedents and modern challenges, as outlined above. The relationship between the right to protest and the rule of law is continually debated in Australian politics, but there seems to be little chance of a resolution between these tenets of democracy, but all those involved must acknowledge the tension between these facets of political life in Australia.
This work is based on research conducted as part of my fellowship at the Australian Prime Ministers Centre with the Museum of Australian Democracy in Old Parliament House, Canberra. Please direct any comments, criticisms or questions to me at: email@example.com
Australian Heritage Council (n.d) ‘Aboriginal Embassy Site’, Australian Heritage Places Inventory, http://www.heritage.gov.au/cgi-bin/aphi/record.pl?RNE18843
Baker, D (2008) ‘Paradoxes of Policing and Protest’, Journal of Policing, Intelligence and Counter Terrorism, 3/2 (October) pp. 8-22
Epstein, K & Iveson, K (2009) ‘Locking Down the City (Well, Not Quite): APEC 2007 and Urban Citizenship in Sydney’, Australian Geographer, 40/3 (September) pp. 271-295
Garland, D (2002) Culture of Control: Crime and Social Order in Contemporary Society (Oxford University Press, Oxford)
Hocking, J (2004) Terror Laws: ASIO, Counter-Terrorism and the Threat to Democracy (UNSW Press, Sydney)
House of Representatives (1971) Hansard Parliamentary Debates, 16 March
Iveson, K (2001) ‘Counterpublics and Public Space: Comparing the Labour Movement and Aboriginal Protest at Parliament House, Canberra’, in Markey, R (ed.), Labour & Community: Historical Essays (ASSLH, Wollongong)
Langley, G (1992) A Decade of Dissent: Vietnam and the Conflict on the Australian Homefront (Allen & Unwin, Sydney)
Lothian, K (2007) ‘Moving Blackwards: Black Power and the Aboriginal Embassy’, in Macfarlane, I & Hannah, M (eds), Transgressions: Critical Australian Indigenous Histories (ANU E-Press, Canberra) pp. 19-34
Lynch, A & Williams, G (2006) What Price Security? Taking Stock of Australia’s Anti-Terror Laws (UNSW Press, Sydney)
Martin, G (forthcoming) Showcasing Security: The Politics of Policing Space at the 2007 Sydney APEC Meeting’, Policing and Society
McIntyre, I (2008) Always Look on the Bright Side of Life: The AIDEX ’91 Story (Homebrew Books, Melbourne)
McGone, D (2005) ‘The Right to Protest’, Alternative Law Journal, 30/6 (December) pp. 274-277
National Capital Authority (2003) The Right to Protest Guidelines (NCA, Canberra)
Parkinson, P (2009) Tradition and Change in Australian Law (Thomson Reuters, Sydney)
Robinson, S (1994) ‘The Aboriginal Tent Embassy: An Account of the Protests of 1972’, Aboriginal History, 18/1, pp. 49-63
Senate (1971) Hansard Parliamentary Debates, 28 April