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Chris Merritt
Legal Affairs Contributor
13 October, 2023
Ban on Palestine march consistent with our legal obligations

Those who wanted to hold a second anti-Israel rally in the streets of Sydney must be terribly disappointed. They have been denied permission to lawfully assemble and exercise their right to free speech.

But for all true supporters of human rights, this is cause for celebration. It shows that this state’s system of protecting human rights is working as it should.

After what happened outside the Opera House on Monday, it was entirely foreseeable that more incitement of murder and racial hatred against Jews would result if another anti-Israel rally were permitted.

Preventing such an outcome is entirely consistent with this country’s obligations under the International Covenant on Civil and Political Rights – which is a point that seems to have eluded some well-meaning if misguided lawyers.

Just as there is no right to shout “fire” in a crowded theatre, the right to freedom of expression comes to an end when it endangers public safety and the rights of others.

Nobody has a right to incite murder.

The ICCPR, which this country has ratified, makes specific provision for freedom of speech to be restricted when this is necessary to protect national security and public order.

Just as Israel is entitled to protect its citizens from those who would do them harm, this country is entitled to prevent the supporters of anti-Israel terrorism from inciting harm against Australians.

Freedom of expression and the right to protest are important. But it would be ludicrous if those rights prevailed over public safety.

This point seems to have been forgotten by the NSW Council for Civil Liberties and eight other organisations that sent a joint letter to Premier Chris Minns on Wednesday.

That letter was signed by Josh Pallas, president of the Council for Civil Liberties, and made no mention of the anti-Semitic mob outside the Opera House that had called for Jews to be gassed.

Instead, it says: “The fundamental right to peaceful protest enables all of us to express ourselves collectively and to participate in shaping society.”

It expressed concern that members of the government had supported a prohibition on the right to protest, believed protest should be more strongly policed and that police should more forcefully shut down protest.

The context for this letter was a clear threat to kill Australians. The letter’s failure to mention that context undermines its power to persuade, as does its failure to recognise that the right to freedom of expression is not absolute.

Officially, the authorities in NSW assert that the decision to withhold permission for a second anti-Israel rally was due to the failure of the organisers to give seven days’ notice.

That looks like window dressing. After what happened outside the Opera House, the risk to public safety was clear and foreseeable. That justified banning a second rally regardless of the timing.

If the organisations that endorsed that letter to Minns are serious about free speech, there is a much greater threat to this right.

Right now, a federal parliamentary committee is considering whether parliament should enact a Human Rights Act that would water down the protection for freedom of expression that is found in the ICCPR.

That watered down protection is outlined in a model for a federal Human Rights Act that has been drawn up by the Australian Human Rights Commission.

If the commission’s model is enacted, the way will be open for freedom of expression to be wound back by the federal government for reasons that extend beyond the limited grounds outlined in the ICCPR.

Article 19 of that treaty protects freedom of expression and says it can only be restricted if this is necessary in order to respect the rights and reputations of others or to protect national security, public order, public heath or morals.

That is a specific and narrow list of restrictions which is appropriate given the importance of freedom of expression. Yet it is broad enough to permit restrictions on truly dangerous speech – such as incitement to kill Jews.

Compare this to the commission’s model which would abandon the narrow restrictions favoured under the ICCPR and make it possible for the federal government to introduce more extensive limitations.

The federal government is already under fire for the adverse impact on freedom of expression that would result from its planned misinformation and disinformation bill.

If the Human Rights Commission’s model is taken up by the government, a federal Human Rights Act could encourage the government to restrict free speech in ways that have not yet been imagined.

Any restriction on freedom of expression would be permissible so long as the government considered it to be “reasonable” and “justified in a free and democratic society”.

In practical terms, that amounts to open slather.

Has anyone ever heard of any government anywhere that does not consider everything it does to be reasonable and justified in a free and democratic society?

The real problem, however, goes beyond freedom of expression.

A federal Human Rights Act would amount to a federal charter of rights. And like all charters and bills of rights, it would weaken our system of parliamentary democracy by requiring the judiciary – and not the legislature – to make value judgements when setting the limits on fundamental rights.

From a rule of law perspective, the shift to a federal charter of rights would also undermine legal certainty and harm the standing of the judiciary.

As the ban on the second anti-Israel rally shows, rights frequently come into conflict. And because rights reflect value judgements, the boundary between conflicting rights should be set by the legislature, not the judiciary.