BDS victory in Australia

IN WHAT defense lawyers have described as a "landmark" case, a Melbourne, Australia, magistrate dismissed charges against 16 Palestine solidarity activists arrested at a protest outside the QV Max Brenner store on July 1 last year.

The 56-page judgment by magistrate Simon Garnett is a stinging rebuttal of the prosecution case and of the campaign of lies and distortions waged against the Max Brenner protests in the media and from politicians of all stripes. The legal rulings, particularly on the issues of trespass and how that relates to the Victorian Charter of Human Rights, will have significant implications for other political and industrial protests.

The court's findings confirm what Palestine solidarity activists have argued all along--that protesting peacefully in a public space is legitimate, legal, and should not be subject to a violent police response, arrests, prosecution in the courts and vilification in the media.

The decision should shame those on the left like the Greens who have distanced themselves from or denounced the boycott, divestment and sanctions (BDS) movement--cowed by the Murdoch press-driven consensus that criticism of Israel makes any protest group beyond the pale. History will have much to say about such cowardice.

But the importance of the ruling goes well beyond the Palestine question and vindicates the hostility that many community groups, trade union activists and others have had to the aggressive police tactics adopted in Victoria since the Liberal government of Premier Ted Baillieu took power in 2010. In particular, it justifies criticisms of the use of paramilitary police units like the Public Order Response Team (PORT) to break up peaceful protests and carry out large-scale arrests.

Lawyer Rob Stary, who acted for a number of the defendants in the trial, told reporters outside the court:

The magistrate has ruled that there was nothing unlawful in the actions of the protesters. There was no breach of the peace, they were not involved in any other conduct in the protest itself that might constitute a disturbance, and so in a public space, in a public domain, they had a right to express themselves in that manner. It was a peaceful protest and the protesters have been completely exonerated.

Stary pointed to the broader implications of the result, saying:

This result has very wide ranging implications. First that police shouldn't get involved in political protests or in industrial disputes. Protests shouldn't be criminalized. People should be entitled to express their views. If they oppose the occupation of the Gaza Strip or the West Bank they should be able to say so. We don't live in a totalitarian regime. This is not Syria or Iraq or Egypt.

Victoria Police and the Victorian government solicitor's office put an extraordinary amount of money and effort into trying to shut down the Max Brenner protests, and put an end to the BDS campaign against Israel's occupation of Palestinian land.

During the trial, Senior Sergeant Andrew Falconer, the operations commander of the Public Order Management (POM) unit, confirmed that 132 police were present at the protest on July 1 last year. Falconer and other senior police, including Inspector Mick Beattie and Rick Burkett from the Security Intelligence Group (SIG) engaged in extensive collaboration with Max Brenner and QV management in the planning of the police operation of the day.

In his testimony, Falconer admitted that the police had planned in advance the arrest of activists they had "identified as the leaders of the demonstration."

On July 1, those arrested were held for several hours in police brawler vans before being charged. Even then, they were only let out if they agreed to sign draconian bail conditions preventing them from being on the premises of QV or Melbourne Central.

Several months later, four of those charged were arrested at their homes at dawn by squads of police that included officers from Baillieu's POM and PORT units, as well as from SIG. They were told they had been arrested for an alleged breach of bail conditions, and thrown in the lockup at Melbourne Magistrates' Court until late that night.

The four were only released on bail after putting up between $2,000 and $10,000, in a hearing where the presiding magistrate accepted on face value all the allegations of the police--allegations that were later comprehensively disproved at trial.

The prosecution of the activists began on May 1, 2012, and took 17 days to be heard, with 26 police witnesses and four others giving evidence. More than four hours of video evidence was shown by the police, although this backfired when police witnesses were extensively cross-examined about the numerous instances in which their sworn statements and evidence in the court was starkly at odds with what could be seen in the prosecution's own videos.

In several cases, a number of police officers gave almost identical accounts of events, which bore almost no resemblance to what was on the video footage.

It's likely this will be the last trial in which police introduce hours of video into evidence. Without it, there would be very little the defense could do to refute sworn statements from numerous officers who are simply assumed by the court, in the normal course of events, to be truthful and trustworthy, despite all evidence to the contrary.

At the end of the prosecution, the defense lawyers made a "no-case" submission in respect of all of the charges. A no-case submission is basically what it sounds like: after the evidence of the prosecution the defendants have "no case to answer"--that is, they couldn't lawfully be convicted on the evidence as it stands.

Simon Garnett upheld the no case submissions with regards to the charges of trespass and beset. With regards to secondary charges like resist arrest, hinder police and assault police, the no case submission was upheld in two cases, and rejected in five. Those later charges are now being contested.

With regards to the beset charge, Garnett found that the accused protesters "did not surround the premises with hostile intent or demeanor, nor did their actions obstruct, hinder or impede any member of the public who wished to enter, use or leave Max Brenner's Chocolate Bar." Instead "it was the establishment of the police lines at the front of Max Brenner that caused the obstruction, hindrance and impediment to members of the public."

Garnett further found that "there is no evidence of any 'hostile intent' by any of the protesters towards members of the public in QV Square or at the outside tables at Max Brenner's."

This finding demolishes the relentless slanders about the so-called "violent" and "aggressive" nature of the protests, which were endlessly paraded as established fact in the media and by many opponents of BDS over the last year.

The dismissal of the beset charge is of some significance, as it was the first time that the charge of beset had been used in a criminal trial in Australia. Previously, the charge of beset had been brought in civil cases, most notoriously the "dollar sweets" case in the 1980s, where the company successfully won an injunction preventing unionists from picketing its factory.

If the police prosecution had been successful in applying the charge of beset to a criminal case, it could potentially have opened the door to more widespread use against pickets by unionists as well as community groups.

The most significant part of the judgment though was on the question of the trespass charge. There were a number of elements to this. The first was the question of public versus private space.

QV, like an increasing number of formerly publicly owned civic spaces, was long ago sold off to private developers. The private operators of these spaces--Federation Square in Melbourne is among the most notorious--vigorously deny that anyone has the right to political expression in their space without nearly impossible-to-obtain permission from management. So the effect has been the closing down of the space--literally--for public political speech.

It was clear that the working assumption of both QV management and Victoria Police was that QV had an absolute right to evict people from QV Square because it is "private property." In her evidence, QV manager Jane Fleming repeatedly and at times apoplectically asserted that QV could do whatever it wanted on its own premises.

The conditions that QV management tried to enforce via Victoria Police was summed up in a notice posted at various entrances to the QV site, which read in part:

Victoria Police wishes to advise you of the following...

The interiors of Melbourne Central and QV are private property. If you propose to demonstrate disapproval of the political or social interests of any retail tenant within Melbourne Central or QV, or create any form of disturbance in and around retail premises within Melbourne Central or QV, then you are prohibited from entering these shopping complexes.

It was established by the court that Victoria Police and QV management had absolutely no right to impose such conditions.

The private owners of QV, when they took over ownership of the site from the state government, signed a covenant which bound them to certain conditions, including keeping the lanes and squares open to the public 24 hours a day, seven days a week, in a manner "which is reasonably analogous to comparable squares." And in the fine print, "comparable squares" was defined as "like Melbourne City Square," the site of the Occupy Melbourne encampment last year.

Magistrate Garnett concluded that "the owners of QV and therefore QV management, by virtue of the Square and laneways being subject to the S173 Planning and Environment Act agreement and therefore a 'public place,' did not have the legal authority to apply conditions on members of the public who wished to enter QV Square or the laneways on the site."

The defense argument, which was accepted by the court, was that the only basis that the charge of "trespass in a public place" could be made out was if protesters were guilty of "willful trespass," which only applied if they had entered or were in a public place with "criminal intent."

Political protest does not constitute such intent. Therefore any attempt to label protesters as "willful trespassers" violated and limited their right to peaceful assembly and freedom of expression, which are protected by the Victorian Charter of Human Rights.

The charter, when it was introduced in 2006, was considered by many (including me) to offer fairly flimsy legal protection for the right to protest and political speech. The case made by the defense in this case, and accepted by the magistrate, has the potential to give it considerably more teeth.

The charter basically grants simple rights: speech, thought and assembly--with certain caveats. For example, the right to freedom of expression may be restricted for "the protection of national security, public order, public health or public morality."

But an important caveat to the caveats, which the defense emphasized, was the provision that "[s]o far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights." That is, the rights to political speech and action trump incidental inconvenience of shoppers, pedestrians or even the holy right of business to make a buck without anyone questioning the morality of their business practices.

The simple truth is that if protesters bowed to such concerns, no political movement in history would have got off the ground. From the right to vote, to the abolitionist movement against slavery, to the right to form trade unions and fight for living wages, weekends and holidays – none of it would have happened if we had retreated from action that might inconvenience anyone.

The case law cited by the defense concerning the right to protest was for the most part powerful, although the occasional passage quoted without irony did indicate a certain lack of self-awareness from even the best quarters of the legal profession. An example is the rousing call to arms from a British court: "Freedom of expression constitutes one of the essential foundations of a democratic society, subject to paragraph (2) of article 10."

Simon Garnett's conclusions on the issues of political rights, however, were compelling, so we will quote them at length. He wrote:

I do not accept the prosecutions submission that the accused entered QV Square without lawful excuse, willfully or without a legitimate purpose. They entered for the purpose of conducting a "political demonstration." As I have already found, they had a lawful right to enter QV Square.

There is no evidence to suggest that they had criminal intent or were reckless as to the consequences of their acts whether it be by causing criminal damage to property, causing a significant breach of the peace or a threat to public order.

The evidence indicates that the demonstration was noisy, consisted of virtually non-stop politically based chanting and speeches; the displaying of banners; and, involved some intermittent physical interaction between the protester line and the police line immediately in front of Max Brenner's, of unknown origin.

The presence of the protesters in QV Square for the purpose of conducting a political demonstration, or "peaceful protest," as it was referred to in some of the speeches made, does not, in my opinion, cause the protesters to be classified as willful trespassers...The protesters had a lawful right to enter QV Square without restriction. They had a lawful right to conduct the "political demonstration"...

The conduct of the protesters did not promote violence. To interpret Section 9 (1)(d) as submitted by the prosecution would, in my opinion, contravene their right to "freedom of expression" as enacted in the Charter. In addition, a refusal to leave after being requested to do so on the basis that the protesters were: "demonstrating disapproval of the political or social interests of a retail tenant of this shopping centre" is also not compatible with those human rights. I accept as valid the submission made by the accused that to interpret S9(1)(d) otherwise would unjustifiably interfere with their rights to "freedom of expression" and "peaceful assembly."

Garnett didn't rule entirely on the side of the accused. He determined that even though those arrested were committing neither of the crimes--beset or trespass--with which they were charged, the police were still not acting illegally in arresting them.

According to Garnett, they made the arrests with a "reasonable belief" that protesters were acting illegally. And the fact, almost but not quite conceded by the judge, that the police tactics were wildly over the top (he called them "heavy handed"), did not, in Garnett's opinion, invalidate the arrests.

Apparently the police can't be judged by standards that have the advantage of "hindsight" and do not consider the heat of the moment. The "heat of the moment" is, of course, not a defense for resisting or hindering arrest.

But although there are still issues around the edges--some of which are continuing and so cannot be discussed--the overall result is a significant victory for the right to protest.

As Vashti Kenway, a spokesperson for the defendants, told the press, "This is a huge victory for the right to protest, and in particular the right to protest in solidarity with the Palestinians. We stood and raised our voices for Palestine in a public place, which should be the right of every Melbournian and every person across Australia."