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An inconvenient protest: Censorship and World Youth Day
by Dr. Binoy Kampmark
2008-07-29 08:50:36
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Frustration of an authority’s attempt to censor protest should give civil libertarians room to gloat.  But the recent decision by the Australian Federal court to strike out various words in the World Youth Day Act, a New South Wales provision penalizing protesters against the international event, Catholic World Youth Day, was far from conclusive.

The event, which attracted tens of thousands of international pilgrims to Sydney (more so than the Olympics of 2000), prompted the state government of NSW to appoint its own World Youth Day minister and pass an act specifically dealing with the event as far back as 2006.

In many ways, the issue is now academic.  Pope Benedict XVI has come and gone; the pilgrims were pleased to see the Pontiff, and sensible Sydneysiders took time to make money out of the sudden influx of tourists.  But a sudden inflation of police powers to muzzle protest is always worrying. Excuses are always at hand: the need to protect high officials, or, in this case, the pilgrims in question. 

This inflation of powers could be found specifically in regulations passed a fortnight prior to the event without consultation or debate. The wording of the amendments to the Act was obtuse even by the standards of the most inept legal draftsman. The initial provisions penalized ‘conduct that causes annoyance or inconvenience to participants in a World Youth Day event.’  Wearing an anti-Pope T-shirt may well have cost a protester a penalty amounting to $5,500, additionally allowing police to detain the protesters in question.

Two activists of the NoToPope group, Rachel Evans and Amber Pike challenged the provisions. The Australian Federal Court did not disappoint civil libertarians, though their enthusiasm in victory was misplaced.  In the first place, Australia does not have a ‘free speech’ right in the clear sense that the US constitution allows.  The right rather is to free political communication in limited cases.

The full bench (Evans v State of New South Wales, 15 July) decided in a lawsuit launched by activists that the Act ‘should not be interpreted as conferring powers [on the World Youth Day Coordination Authority] that are repugnant to fundamental rights and freedoms at common law in the absence of clear authority from Parliament.’  The words ‘annoyance or’ were struck out.  ‘Clause 7 is invalid to the extent that it seeks to prevent merely annoying conduct.  Morever its scope is uncertain.’ 

The ruling still left the word ‘inconvenience’ in place.   And it did not accept the argument made by the activists that banning the sale of various items (badges, T-shirts, and stickers) were unconstitutional infringements upon free political communication.  Nonetheless, the protesters were pleased and determined, in the words of Rachel Evans, to be hading out ‘condoms, coathangers, wear t-shirts’.

The beleaguered and barely competent New South Wales Premier Morris Iemma, took some delight in noting the limitations of the decision. Protesters, he noted, would still have to avoid causing disruption to the pilgrims. ‘“Inconvenience’ is still there and they can still achieve the same objective, and that is to ensure that people who do want to make a point in a protest can do so without disrupting the pilgrims or the events.’

In the final analysis, the victory is formidable in so far as it suggests that governments in Australia will be unable to stifle political protests in certain cases.  Free political communication is considered a crucial component by Australia’s judiciary in holding the threads of democracy together.  But the judgment was also clutching at straws.  Instead of invalidating the regulations in their entirety (including the limitations on sale of goods), it purposely drew on conservative canons of law: what is not uncertain and unclear cannot have legal validity.  Free speech remains as fragile as ever to infractions by Parliaments.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, University of Cambridge. He teaches modern history at the University of Queensland.

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Emanuel Paparella2008-07-29 11:54:44
Indeed, there is no doubt that free speech is crucial to any viable democracy. The other side of the coin is the right to worship (or not to worship)without any government interference or censorship. Strangely, that right is not even mentioned in this article. Both rights needs to be respected and harmonized.

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