Peak Hour Traffic Trumps The Right To Protest, Court Finds

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And down the slippery slope we go, a few inches more. In a national context characterised by expansion of the state’s powers to monitor the internet, punish whistleblowers, and restrict the power of the media to report matters of public interest, a further incremental affront to democratic freedoms has just occurred in NSW.

On Wednesday, Supreme Court Justice Peter Hidden upheld a decision by the NSW police to prohibit the protest called for last night’s Sydney opening of the 2014 Israeli Film Festival, screening at the Palace Verona cinema in Paddington.

Sydney Staff for BDS, an unofficial group of Sydney University staff members, of which I am a member, was one of the protest organisers.

In a remarkable act of intimidation towards grassroots organisations, police also sought costs against us – thankfully, unsuccessfully.

This would have placed a substantial obstacle in the way of our capacity to organise, as it was no doubt intended to do. We were only able to be represented in the Supreme Court thanks to a legal team working pro bono through the NSW Council for Civil Liberties.

The Israeli Film Festival is funded by the Israeli Embassy and the Australia Israel Cultural Exchange, an organisation established in 2002 by the Australian and Israeli governments ‘to promote Israeli culture in Australia and Australian culture in Israel’. Festivals like this are appropriate objects of protest because they serve to “culture wash” Israel’s ongoing crimes against Palestinian people.

With the death toll in Gaza now exceeding 2000, we called the protest to draw attention to the gulf between the carefully manufactured image of Israel as a tolerant, sophisticated and culture-loving nation, and the reality of the ongoing horror being inflicted on Gaza. 

Our objection is not to Israeli films as such: it is to the official state-sponsored festivals that use them to cloak the reality of Israel’s policy towards Palestine.

The decision to prohibit our protest should be of grave concern to everyone committed to political freedom in this country. The right to unfettered political expression is a cornerstone of a democratic society, but a judicial decision has now effectively muted public political expression over an issue of international significance.

The decision to outlaw a protest is a step down a dangerous road, at the bottom of which looms a darkly blinking police-state. Very strong grounds are needed before the state can legitimately stop people publicly expressing their political views.

In this case, the police’s grounds were weak. They argued that the demonstration would disrupt peak-hour traffic, thereby endangering the safety of participants. At the same time, however, they tendered a detailed plan to the court showing how they could facilitate the protest if necessary.

That plan was never implemented. In a decision that has every appearance of a politically motivated bid to frustrate pro-Palestine activism, the court found that the right to protest was not important enough to justify the same arrangements which would easily be made for a traffic accident.

Commuter convenience is not more important than the exercise of fundamental democratic rights.

Protest is inherently disruptive and always has been. The court’s decision to prevent us conveying our message outside the film festival would appear to logically entail that no political group should expect to be able to demonstrate publicly if it interferes with peak-hour traffic.

Apparently avoiding a slight delay to commuters’ trips home is a higher public priority than freedom of expression. The precedent established by this decision now gives the police a perfect excuse to ban further demonstrations it finds inconvenient. The risk for grassroots politics shouldn’t be underestimated.

As it happens, there was plenty of traffic blocked last night – not by protesters, but by the ludicrously large phalanx of riot police, including horses, sent to contain us. Demonstrators were the frequent objects of unceremonious shoving, jostling and discourtesy from the riot police.

Bans on protests have historically been rare in NSW. But Palestine activism in particular seems to be a favoured target.

A few weeks ago, the police refused to allow a march to the offices of News Corp, which Palestine protesters had called to highlight the deeply biased Gaza coverage emanating from that organisation. In 2012, they tried unsuccessfully to prevent a march through the CBD to mark Nakbah day, the commemoration of the ethnic cleansing of Palestine during the founding of Israel in 1948.

Other protest movements which regularly organise street protests, such as the refugee rights movement, do not encounter such regular obstruction. We should be asking why Palestine activism is subjected to legal harassment to such a marked extent.

The court’s decision follows the banning of three Gaza protests in and around Paris last month, and comes in the context of tightening restrictions on the right to protest in Australia. Victoria and Tasmania have both recently introduced laws which substantially restrict protesters’ rights.

Our demonstration was called to defend Palestinians’ right to justice and political freedom. In a far less acute way, we found ourselves having to defend our own. While pro-Palestine protesters were pushed down the footpath and directed to move on because they were “blocking access”, a pair of men holding a giant Israeli flag was allowed to occupy the path next to the Verona Cinema entrance, protected by a police line. Clearly, whether you have the right to occupy a public thoroughfare in NSW in 2014 turns on which side of Israel-Palestine question you stand.

The court’s prohibition of the protest should be condemned, and condemned unreservedly. To do so is neither exaggeration nor alarmism. Attacks on fundamental freedoms don’t come with a sign saying “Danger: attack on civil liberties inside”. Fundamental freedoms aren’t swept away in obvious full-frontal assaults – they are eroded gradually, with each further step carefully cocooned in the reassuring idioms of legal rationality, administrative sobriety and respect for basic rights. 

However this erosion happens, it must be resisted. Political freedoms matter in Australia, just as they matter in Palestine. The police cannot be given the right to determine which causes are allowed to take to the streets.

It is up to supporters of democratic freedoms on the left to assert the right to protest uncompromisingly. 

New Matilda

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