A few days ago, the much ballyhooed case against pro-Palestinian activists charged for picketing the Max Brenner store in Melbourne’s Swanston Street QV shopping complex spectacularly collapsed.
In part, the magistrate’s ruling rested on a judgement that protesters hadn’t actually obstructed Max Brenner’s customers. But more importantly it revealed a longstanding agreement between the QV management and the Melbourne City Council, which, as a condition of the lease, stipulated that the land must be accessible to the public 24 hours a day, seven days a week.
In other words, QV had no right to exclude people (protestors or anyone else) from the site.
If the outcome seems surprising, it’s probably because few Melburnians knew of QV’s responsibilities. Why would they? Certainly, the management had never advertised that ordinary people had rights there. On the contrary, the area seemed entirely corporate, another one of those private kingdoms built not for citizens but for consumers, an entirely different category.
The protesters themselves drew out the implications of their victory for other cases, most notably, the Occupy Melbourne activists. You’ll remember that the Occupy protest was violently dispersed from Melbourne’s City Square with Mayor Doyle denouncing the demonstrators as "a self-righteous, narcissistic, self-indulgent rabble", who were "denying use of popular and busy public space to anyone except themselves".
Yet that was an argument that would have made more sense if applied in the 1990s — for it was then that unelected city commissioners sold off large chunks of the square to developers, to set up private businesses on what was once public land.
Struggles over public spaces are fundamental to capitalism. For most of human history, shared land was taken for granted, with the bulk of the population feeding themselves via areas managed collectively
indeed, prior to the 18th century, there’s no clear definition of "property" in English legal writings.
The early modern period saw a conscious and extraordinary rapid destruction of communal space, most obviously in the privatisation and enclosure of the traditional commons, where forests and fields that had once been shared by all were declared to "belong" to a single individual, so that the older customary uses became felonies. As one astonished writer noted in 1583, "rich men eat up poore men, as beasts doo eat grasse".
Yet the historic appropriation of the commons, and the resulting creation of a landless workforce, did not end conflicts over public space. In some respects they intensified, since the modern city concentrated previously unimaginable numbers of people together. In the mid-19th century, Baron Haussmann’s famous "modernisation" of Paris was consciously designed to facilitate troop movements in the streets and prevent workers erecting the kind of barricades they’d thrown up in 1848.
You can see similar concerns at work in early Melbourne. Parliament House boasts twin apertures on its façade said to be gunslits, a legacy of renovations from the 1890s. In the context of the Maritime and Shearers disputes, and regular unemployed processions during that decade’s great depression, authorities built in a handy snipers’ nest, with a clear field of fire on mobs marching up Bourke Street.
More importantly though, the architects building the site wanted an expansive forecourt to show off their handiwork, the government refused, both during the original construction and then again in 1929. On each occasion, they concluded that open space might facilitate protests and thus should be avoided.
But these battles have never gone all one way. At various times, activists won unofficial tolerance for various "free speech forums" (most famously, along the bank of the Yarra) where dissenters could gather and speak and organise.
Today, in the wake of Jeff Kennett’s privatisation of the City Square, most protests begin outside the State Library, one of the few remaining opening areas. It’s worth remembering, then, the library’s own contested history. On the one hand, explicitly constructed as a public service; on the other, originally kept closed on Sundays, the one time that working people might actually use it, until after a prolonged campaign (during which several people were jailed) in the late 19th and early 20th century.
Which brings us back to QV.
What’s fascinating about its agreement with the council is that, until now, it seems to have had no operational effect whatsoever, since everyone simply assumed that it was private. That’s symptomatic of how, in the neoliberal era, the very concept of the public sphere has been so systematically eroded that we forget our rights, even when they’re actually enshrined in law.
Think back to Doyle’s denunciation of Occupy. "Our streets belong to everyone," he wrote, "not a self-appointed rabble".
The fact that he can say that in a context in which the streets in question self-evidently don’t belong to everyone — Jeff Kennett sold them to a hotel chain — speaks volumes. Neoliberalism introduces the market into every aspect of social life, reshaping citizenship as consumption. The notion of a collective public disappears, as the paradigm for every interaction becomes the market exchange. In the neoliberal mind, corporations become better citizens than people; they more perfectly manifest a market logic.
Hence Doyle’s remarks: the protesters were "selfish" because they trampled on the rights of businesses, the natural owners of the square.
The battle over QV isn’t yet over; the police are considering an appeal and Ted Baillieu’s mulling over legislative reform. Meanwhile, protests against Max Brenner will no doubt continue. But there are other issues at stake, too.
The demand for public access is not simply about the right to protest, as important as that is. More fundamentally, it’s also about how we think of the city and the society that inhabits it.
In 19th and 20th century Melbourne, citizenship was narrowly defined in all sorts of ways. But while the public sphere was contested, no-one doubted that it existed. Take a walk through Melbourne’s Botanical Gardens, for instance. Of course, the gardens were always intended for genteel visitors, rather than everyday riff-raff. Nonetheless, the notion of a wide swathe of land lovingly curated and tended, and then made freely open to the public to enjoy, seems entirely anomalous.
Many of Melbourne’s public utilities have been privatised; its public transport sold off to inept private companies. Everyone knows that, were a garden precinct to be designed today, it would be privately operated along user-pays principles, with an entry fee, gift shops and overpriced kiosks abounding and perhaps even an electronic system counting the precise number of trees at which visitors looked so that they could be billed accordingly.
Is that really how we want to live?
Defending public space means standing up for freedom of assembly. But it also means asserting a collective identity, not reducible to mere consumption.