Our rights to protest
Many Australian activists and social change organisations support the international struggle for human rights and work to ensure that the Australian government abides by the principles embedded in the various conventions, covenants and declarations adopted by the international community.
These include the Universal Declaration of Human Rights , and the International Covenant on Civil and Political Rights ICCPR (1966).
Since 1991, Australian citizens are able to complain to the UN Human Rights Committee if their human rights are infringed.
Why talk about rights?
 It is commonly believed that we have rights and responsibilities, not because a state or some law bestows them, but because they are inherent in our human and social being. The international human rights framework has been developed to protect ordinary people from the abuses of the state.
Although by no means adequate to stop or prevent human rights abuses by the state, the range of human rights mechanisms and processes are often utilised by activists in politically repressive countries and situations around the world.
Awareness of our rights as activists is vital for two reasons:
- We may need to assert them when they are denied us;
- We can utilise them as benchmarks for how we expect to be treated by the government or how we want the government to behave.
Asserting our rights
As progressive activists we are engaged in a process of participatory democracy that does not require the permission of any state, police force or court system.
We do not need to rely upon legal rights or international human rights in order to protest or resist injustice. But we can use them.
Activists have asserted and quoted international human rights to police at protests, to magistrates in the courtroom. Sometimes acting under the mandate of the ‘international community' can give our action greater credibility. Every time we refuse to answer police questions we are asserting our common law right to silence.
Asserting basic human, civil and political rights can also help targeted or more vulnerable sections of the activist movement. The rights of marginalised or minority activists are more often denied or abused. Asserting our rights as activists can sometimes mean protecting the rights of others who are more vulnerable.
Using international human rights
As activists, it is worth learning about these basic international rights documents. The International Covenant on Civil and Political Rights (ICCPR) is particular useful and relevant to activists in Australia. Police in Australia commonly use arbitrary arrests and detention, special bail conditions to deny our right to peaceful assembly and other actions which could arguably contravene sections of the ICCPR. Activists who are familiar with this document and able to refer to it when confronting police abuse of power can use it to deter individual police officers, confront commanding officers and highlight these abuses in the media. Human Rights Observer Teams and Legal Support Teams can use the ICCPR as part of their mandate, in activist legal briefings and on the ground at protests, highlighting abuses as they occur. The effect of using international human rights as deterrence to state violence and abuse will always be hard to determine, but combined with:
can form a part of the ‘web of constraint' that we can form to deter police violence and abuse. For a useful guide to using international human rights instruments in campaigns see the Complete Activist site.
Civil and political rights in Australia
Our rights to protest, demonstrate and take part in political activities are recognised by the Universal Declaration of Human Rights (1948) as well as the International Covenant on Civil and Political Rights (ICCPR )and other covenants.
In Australia, these international human rights are seldom enforceable and any mechanisms that exist are slow and difficult. Although we have these rights and we can assert them as citizens and activists, we shouldn't expect them to be respected without question. Australian law is based on the British common law system. Unlike most similar liberal democracies, Australia has no Bill of Rights to protect human rights in a single document. Therefore most ‘rights' in this system are in reality nothing more than those freedoms that are not prohibited. However some important rights may be found in the concept of the rule of law, the Australian Constitution, common law and legislation – Acts passed by the Commonwealth Parliament or State or Territory Parliaments. The ‘Rule of Law' According to the ‘Rule of Law', each person has equal rights under the law. It is meant to be a fair and impartial system. Australia is known as a ‘rule of law' state. This means that:
- The Government must not act arbitrarily. It must have proper reasons for its actions and must follow proper procedures.
- The government is answerable to the people and the courts. Judges and the courts are independent of government, and they make their decisions impartially.
- Every citizen is subject to the law. This makes arbitrary imprisonment illegal and means that all people, including senior politicians, police and military, have to obey the same laws.
Support for the 'rule of law' can at times reinforce important values (such as equality before the law) in Australia. However, legal rights (particularly in a system such as Australia's, with few formal rights guarantees) often depart from the international consensus that is human rights, and so cannot serve as a proper basis for defining the tactics of 'rights activists' (Anderson, 2002). For example, following the success of the Aboriginal Tent Embassy in 1972, special laws were passed to ban unauthorised tent settlements in the Australian Capital Territory. Aboriginal activists used this as an example to ridicule the liberal argument 'we don't mind if you protest, so long as you stay within the law' (see Cavadini 1972).
Australia's Constitution
The framers of Australia's Constitution, working in the 1890s, debated the adoption of a Bill of Rights along the lines of that in the United States. The proposal was defeated and our Constitution contains few protections for what we now call human rights.
Nevertheless, there are five explicit individual rights in the Constitution. These are the right to vote (section 41), protection against acquisition of property on unjust terms (section 51(xxxi)), the right to a trial by jury (section 80), freedom of religion (section 116) and prohibition of discrimination on the basis of State of residency (section 117).
In recent years the High Court has found that additional rights for individuals may be necessarily implied by the language and structure of the Constitution. In 1992 the Court decided that Australia's form of parliamentary democracy (dictated by the Constitution) necessarily requires a degree of freedom for individuals to discuss and debate political issues. (Nationwide News Pty Ltd v Wills, 1992, 177 CLR 1; Australian Capital Television v The Commonwealth, 1992, CLR 1.)
Common law rights
Australia's common law was inherited from the United Kingdom. And that in turn developed from the Magna Carta of 1215 – probably the first human rights treaty in the western world – between King John and his Barons. So human rights regulating the freedom of the citizen and limiting the power of the King or government are fundamental to our law.
Common law is often called 'judge-made' law. This distinguishes it from laws made in Parliament. It is certainly true that many protections we can identify as human rights are protected by Australian judges applying common law principles.
Examples include the obligation of a court to refuse to allow an unfair trial to go ahead (even though the common law does not recognise a right to free legal representation in a criminal trial) [1] and the interpretation of permissible limits on freedom of movement within Australia. [2] See Common law defences for further information. Common law can be expanded or reduced by legislation passed by Parliament. This frequently happens. An example of reduction is the common law principle that the police have no power to detain someone for questioning. [3] South Australia's Summary Offences Act 1953 grants the police this power where a serious offence is suspected. [4] An example of expansion is the recognition in legislation of the equality of men and women. Judges developing common law principles refused to make this recognition, instead treating their sex as a disability for women, disentitling them from pursuing many professions.
1. Dietrich v R ( 1992) 177 CLR 292.
2 . The test for the lawfulness of restrictions on freedom of interstate commerce (as guaranteed by the Constitution) was stated in various ways in Cunliffe v The Commonwealth (1994) 182 CLR 272.
3 . R v Lemsatef [1977] 2 All ER 835, per Lawton LJ at page 839.
4 . Section 78 inserted in 1985. From Human Rights and Equal Opportunity Commission: http://www.hreoc.gov.au/human_rights/human_rights_dialogue/aus_law.html
Our rights in international law
Under international law our rights are better articulated but more difficult to assert in Australia. The rights of freedom of assembly, speech, expression and association are embodied in both the Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (ICCPR) (1966). These are not enforceable under Australian law, but may be usefully cited and relied on in broader argument in court. As Australia is a signatory to the ICCPR, Australian governments are required to comply with its Articles and report to the UN on how they have met its obligations.
In Australia, any individual is also able to lodge a complaint under the International Covenant of Civil and Political Rights directly (albeit through a long process) with the UN Human Rights Committee once they have exhausted domestic remedies in Australia.
A right to freedom of assembly and association
 A right to freedom of peaceful assembly is part of international law under the UN Declaration of Human Rights , Article 19 and 20 which states that: “ Everyone has the right to freedom of peaceful assembly and association.” No one may be compelled to belong to an association. The International Covenant on Civil and Political Rights includes Article 21 which states: “The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order.” Article 22 of the ICCPR states that: “Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.”
The right to participatory democracy
ICCPR Article 25 acknowledges the right to engage in participatory democracy “without unreasonable restrictions”. The right to freedom of opinion and expression Article 19 Universal Declaration of Human Rights states that: ”Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Rights around arrest and detention
 ICCPR Article 7 states that: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”
ICCPR Article 9 also states that:
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
The duty to protest
Another useful international precedent is the 1946 Nuremberg trials which, in rejecting the Nazi war criminals' defence of ‘only following state orders', also recognised the necessity for individuals to act according to the dictates of their own conscience, and to retain the capacity to defy the state where serious conflict occurs between conscience and legal systems. These activists who engage in civil disobedience and seek to use the defence assert, through the defence, that domestic law should be broken by an individual to prevent the state or its agent from violating international law. The Nuremberg Defence is sometimes raised as a defence to prosecutions such as trespass. Although the defence has not been recognised in Australian law it has been used, sometimes successfully, in the USA. The Nuremberg principles outline what to many of us would be common sense. Some actions are plainly wrong, and every one of us has a responsibility to prevent genocide. The principles specify that to act on the orders of your government does not relieve you of this responsibility in the eyes of international law. It provides a legal adjunct to Martin Luther King's remark, "One has moral responsibility to disobey unjust laws." (Letter from Birmingham Jail) It is for these reasons that the Nuremberg Principles are key to Citizen's War Crimes Inspections around the world and many anti-nuclear actions such as those held at Pine Gap in the Northern Territory in Australia since the 1980s. In various anti-nuclear actions around the world, activists have maintained, when stopped by police, that they are acting on a higher authority than theirs – not just their consciences, but international law itself.
The Nuremberg tribunal gave a strong impulse to the human rights movement, and established important, innovative principles that form the core of international criminal law today. In particular, it established the principle of individual responsibility for crimes, with no immunity from prosecution or punishment for Heads of State or Government officials, and allowing of no pleas of superior orders in mitigation. It also established that a government could commit crimes against humanity against its own nationals as well as against aliens, and that these crimes could be committed by civilians as well as by combatants, in 'peace' time as well as war.
See also: Nuremberg Defence
Further reading on international law:
- The (Il)legality of Threat or Use of Nuclear Weapons: A Guide to the Historic Opinion of the International Court of Justice , by John Burroughs. Lit 1997, ISBN 3-8258-3516-2
- The Nuremberg Defence in Courts , by Francis A. Boyle, edited by Merja Pentikäinen. IPB 1984, ISBN 951-9193-40-5
- The Modern Nuremberg Defense: International law transferred to the domestic arena Perrin Reid
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