‘Your honour will see that we are in for some inclement weather’, Ron Merkel QC pointed out at a Federal Court directions hearing today, trying to persuade the judge to make an interim order allowing Occupy Melbourne to put up their tents in Treasury Gardens pending a final decision on their case. Basically, Occupy Melbourne are seeking an order to prevent the City of Melbourne from evicting them, but until such time as the proper trial occurs, they are asking for an interim order to allow them to put up their private tents, a large tent for cooking and eating, and some protest banners.
James Muldoon, the litigant from Occupy Melbourne (as I understand, he’s not representing the group – they don’t do things that way) has challenged the council’s power to evict protesters on the basis that it unreasonably limits the constitutional freedom to political constitution (one of the few human rights protected by our constitution, and it’s not even written there – it had to be implied by judges). The Victorian Human Rights Charter is relevant too – as a public authority, the council is bound to act compatibly with human rights.
On 4 November, the City of Melbourne served a notice of compliance telling Occupy Melbourne that they had infringed by-laws the use of anti-camping and for using portable advertising signs (i.e. political banners). Occupy Melbourne sent letters to the police and council to see whether they could stay in the gardens over the weekend. The council didn’t respond, but the police told the protesters that they could stay there, for now, as long as they didn’t erect tents. Protesters asked police if they could sleep under the tarpaulin, but police said this was also a structure. Signs were OK, but as long as they didn’t put them on the ground or stick them up anywhere. The police said that as long as the protesters complied with these conditions, they wouldn’t be evicted over the weekend.
Yesterday, Occupy Melbourne applied for a permit to camp in Treasury Gardens, which at the trial today, the Council promised to respond to within 48 hours. Last night, the Council of Melbourne submitted an affidavit saying that they wouldn’t enforce the notice. This meant that at the hearing today, Occupy Melbourne amended their application for an interim order to ask for the following specifics:
- A tent not exceeding 8m by 8m to be erected and used for kitchen and sleeping between 9.00 pm and 9.00 am
- Personal tents for sleeping between 9.00 pm and 9.00 am
- Signs on tents not more than 1.5m by 4.00m saying ‘Welcome to Occupy Melbourne, Welcome to Direct Democracy’
Merkel pointed out that occupation of a public place was central to the global occupy movement, and therefore an important aspect of the Occupy Melbourne protest (he also noted that even if there are only a few people actually sleeping out, there’s a social media aspect to it, which involves an even wide group).
Actually, the camping aspect of Occupy Melbourne is something I’ve struggled with a bit. It seemed to make more sense in America, where Wall Street is an obvious symbol of corporate greed. But in Melbourne, I think most people just saw the protesters as an annoyance. ‘Occupy Melbourne’ – it doesn’t make quite as much sense as ‘Occupy Wall Street’. I think that’s why Robert Doyle, an experienced politician, felt like he could say all those ridiculous things in the Sunday Herald Sun, the most widely circulated newspaper in Australia.
Occupation of public space is obviously conceptually related to what Occupy Melbourne are protesting about, ie private appropriate of public goods and unfair distribution of resources, which might well include public land (and note, one of the first motions passed by Occupy Melbourne was to support a Treaty). Members of the Occupy movement also say that camping is an important part of their movement too, in that it creates a unique atmosphere for generating ideas, a sense of community, and that it’s a social leveller.
But I wonder if, given the political climate in Australia, the focus on actually occupying space that people don’t actually have any negative associations with (i.e. City Square, Bolan Lane, the State Library, Treasury Gardens), will do more harm than good, distracting people from other important issues.
On the other hand, perhaps if Occupy were able to camp in public for a while, public attitudes would become more positive, as people see that they’re not a bunch of dirty hippy layabouts, or that even if some are, that’s not necessarily such a threatening thing. Actually, my experience so far is that, while there are naturally the usual freaks that are always attracted to these kind of things, there are some smart, switched on people involved in the movement.
Merkel’s arguments about the council by-laws seemed, broadly, to be as follows (and please excuse me if I have not got them quite right, my head was swimming a bit with the legal stuff):
- Prima-facie (on the face of it) case that political signs are not caught by the clause in council by-laws that prevents advertising, because advertising tends to be commercial in-nature.
- Even if anti-advertising provisions are interpreted to include political signs, they are invalid under the Commonwealth Constitution to the extent that they limit political communication.
- The Council, in the way they apply the law (and the decision about the permit), have a duty to act compatibly with the Victorian Human Rights Charter, including the freedom of association and political communication.
- The anti-tent provisions may be invalid to the extent that they are used to prevent political protest, and therefore infringe the implied constitutional right to freedom of political communication.
Merkel also referred to the Evans case, in which the Sydney Federal Court struck down World Youth Day Regulations that made it a crime to ‘annoy’ participants at World Youth Day, allowing political protesters at the event to hand out condoms without fear of punishment.
The hearing today touched on bigger questions about who controls public space, and how we should cooperate to share public space. Merkel’s lawyerly rhetoric was entertaining too; I generally find such words lofty and elite, but in this instance it was comforting to hear those words of power turned around to make the less powerless seem like the legitimate and genteel ones, those on the side of common sense.
In Merkel’s words, the police eviction of 21 October (‘the October regime’) was ‘unseemly’ and ‘disastrous…the public believed it was a public place, but Doyle seemed to consider it his private backyard.’ Letting people camp in the Gardens, but denying them shelter for health and hygiene, was ‘arbitrary and capricious’ and not letting people put up a tent after 9.00 pm in a public gardens was ‘absurd’ – after all, how could that possibly interfere with the amenity or beauty of a public area?
Having to protest without identifying yourself with banners was ‘the antithesis’ of a political protest, he said. He said that there was a ‘reasonable apprehension’ that if the Occupy Melbourne protesters were not granted a ‘minimal subsistence level’, they might take the view that they have a constitutional right to put up tents and the police can’t stop them. And then it got a bit dodgy. Merkel pointed that he didn’t represent the movement, only the litigant, and suggested that there might be ‘mayhem’ if the protesters were not allowed to put their tents up, and that if forcibly removed, the protesters may feel they are ‘entitled to physically fight my learned friend’s [the other lawyer’s] authorised officers.’
Merkel seemed to me to be implying that the protesters would riot if they didn’t get their way, and that’s how the judge interpreted it too. This was a bit out of the blue given that one of the Occupy movement’s first resolutions was that their protest would be peaceful, (and having met some of them, I can tell you they’re not the rioting type). But that said, Merkel was, in general, excellent.
The City of Melbourne lawyer’s main arguments seemed to be that it would be an inappropriate exercise of judicial power for the judge to the protesters ‘extra’ to what they had now through an interim injunction allowing them to put their tents up, i.e. to change the ‘status quo’. He argued that allowing the protesters to stay (for now), but not put tents, signs, or any other infrastructure up, did not infringe on their right to political protest. ‘There is no evidence that not having a tent will stop anyone protesting’, he said. This was met by sighs and shaking of heads from the Occupy Melbourne people in the back row, who’d actually experienced the reality of sleeping without shelter.
In support of this argument, the City of Melbourne lawyer relied on the litigant’s affidavit, which said that he would personally keep protesting even without a tent. However, the lack of security in their accommodation, combined with being forbidden to put tents up, has actually discouraged a lot of Occupy Melbourne people, existing campers and, I suspect, potential campers. In City Square, there were 70 or 80 people camping, and now there are only 20, despite Treasury Gardens seeming like a lot nicer place to camp.
The judge seemed unwilling to grant the interim injunction allowing protesters to set up tents, particularly as the situation was likely to change depending on whether or not Council would grant the permit. Merkel asked for an adjournment to allow Muldoon to prepare an affidavit about why not having a tent would actually impede on their ability to protest. The Council wasn’t keen on the adjournment, accusing Merkel of ‘keeping his powder dry.’ In the end, a compromise position was reached and the directions hearing was adjourned until 2.15 pm on Friday. ‘Unusually’, noted Merkel during the case, ‘Occupy Melbourne come to seek rule of law, rather than the rule of power or the rule of men.’ I’m not sure the distinction is so clear-cut.
And at Occupy Melbourne’s General Assembly that night, the ‘inclement weather’ Merkel was referring to arrived in the form what was, for Melbourne at least, a fairly dramatic thunderstorm. Still, Occupy Melbourne voted to respect the authority of the court, and opted not to put up tents.
*Update: I wasn’t able to go to the adjourned directions hearing on Friday but apparently Occupy Melbourne’s request for an interim order so they could put their tents up was denied. However, the substantive case will go ahead, with a trial date yet to be set.*