The freedom of assembly is not absolute, but neither should any important freedom be absolutely abrogated. That is why the High Court is likely to rule the arrest of the Victorian freedom protesters in recent weeks was constitutionally illegal – meaning that Australia has witnessed the detention of its first political prisoners.
These are defined as people who are “deprived of their liberty solely because of their non-violent freedom of peaceful assembly and association”.
The overreach by the Victorian government in forcibly detaining everyday people who disagree with its approach of carpet bombing the economy and civil rights to flatten the COVID-19 curve has stunned almost everyone.
Internationally, some now see Australia as a human rights pariah and we may be shamed into silence when it comes to lecturing other countries on human rights abuses in the future.
Fortunately, there is a likely remedy for the unprecedented assault on freedoms in Victoria. The Constitution contains the right to freedom of assembly.
Victoria cannot override that.
The High Court, in a series of cases in the early 1990s, implied the existence of a number of rights from the democratic and representative framework of the Constitution. In Australian Capital Television Pty Ltd v Commonwealth, the Court held that Australians had the freedom of political communication.
In a number of other subsequent decisions, numerous judges have held that the freedom of association is a necessary incident of the freedom of communication, given that the ability to communicate is contingent upon people being able to gather together (Mulholland v Australian Electoral Commission).
The High Court has expressly noted that implied freedoms can be limited, but only if restrictions are “reasonably appropriate and adapted” to serve a legitimate objective in a manner consistent with representative and responsible government.
This is where arresting lockdown protesters becomes questionable. In order for a total ban on demonstrations to be justified, the Victorian government would need to show that this is proportionate to the ends of mitigating the harm caused by COVID-19.
While it is established that the best way to limit infections is to break the chain of infection, the jurisprudential equation is not one-sided. It is also necessary to look at the damage caused by a total ban on freedom of assembly. This is where exhortations that “we need to defeat the virus” and “we must follow the rules” by Premier Daniel Andrews might not be enough.
The High Court is likely to be far more influenced by the scientific observation from Victorian Chief Health Officer Brett Sutton that the likelihood of spreading the virus is 20 times less outdoors than indoors. And international responses will be relevant. Much has been learned about the risk-assessment calculus. No other developed country barricades its citizens in order to deal with the pandemic. They understand the health, economic and social side-effects are too burdensome, nor do they crack down – other than in China – as hard on those who would protest the lockdown.
Even if it is permissible to restrict gatherings, it does not mean an absolute ban on them is acceptable. The limitation should go only as far as necessary. If, for example, protesters were required to wear masks, remain 2m apart and register before attending a protest, it is likely this would facilitate the exercise of the constitutional freedom without materially increasing the spread of the virus. A protest need not mean a rabble – it can be orderly and controlled.
Neither will the atmospherics be lost on the High Court. Victorian Police command has taken an eccentric approach to dealing with the protesters; rather than objectively enforcing the law, it refers to them as the “tinfoil hat wearing” brigade. You might expect that from one of Andrews’s ministers, but never from an independent executive branch of government.
Their unalloyed hypocrisy in not arresting even one of the 10,000 Black Lives Matters protesters, while hunting down freedom protesters, will undermine the Victorian government’s case that all protests need to be banned.
It also won’t be missed by the High Court that the freedom protesters have been law-abiding Victorians leading responsible lives. Their only crime is that they prefer freedom to non-freedom, unless there is a demonstrated need for the restrictions. Has an offender ever been less blameworthy?
What is less in dispute is that the rule of law in Victoria is broken. Regularly in recent years, it is only intervention by the High Court that has shone a light on dark cases (including Lawyer X and George Pell) in Victoria. Nonetheless, it seems the Andrews government still sees itself as having some immunity from the core principles of democracy and the rule of law. Fortunately for Victorians, High Court judges have can cross the ring of steel and see justice done in their state.