Explainer: Protests during COVID-19 – Sep 2020
During the COVID-19 pandemic, public health orders have limited the extent to which Victorians can gather together publicly to speak up on issues they care about. While Victoria’s Charter of Human Rights and Responsibilities protects protest rights, these rights may be lawfully limited in a state of emergency. Here are some answers to the frequently asked questions about protest rights while stage 4 restrictions apply in metropolitan Melbourne.
Do we have a right to protest?
People’s ability to gather peacefully and speak out on matters that they care about is a fundamental aspect of democracy.
Victoria’s Charter of Human Rights and Responsibilities sets out the basic rights, freedoms and responsibilities of all people in Victoria. There are a number of rights in the Charter that support the ability to protest and enable people to organise, gather peacefully, speak up on issues and march, rally or publicly demonstrate, including rights to:
Can the human rights that support protest be limited?
The rights to peaceful assembly, freedom of association and freedom of speech are critically important; however, they are not absolute. Even outside of the COVID-19 pandemic, the human rights that support protest are limited by other laws:
- Freedom of speech is limited by laws prohibiting offensive language, misleading and deceptive conduct, and racial and religious vilification.
- Peaceful assembly is limited by laws prohibiting violence, trespass and property damage.
The Charter also allows for human rights to be limited, including protest rights, if the limitations are necessary, justified and proportionate (section 7(2) of the Charter).
How does the state of emergency affect protest rights?
Once a state of emergency is declared, the Chief Health Officer (CHO) has emergency powers under section 199(2) of the Public Health and Wellbeing Act 2008 to issue orders preventing a serious risk to public health. Victoria’s Health Minister first declared a state of emergency to combat COVID-19 on 16 March 2020, and Victoria has been subject to a state of emergency ever since.
The CHO and his delegates have used their emergency powers to issue the Stay at Home Directions, which restrict the reasons people in metropolitan Melbourne can leave their homes and attend public gatherings. The directions do not make it unlawful to protest, however, any protest activity must be done consistently with the restrictions on activity set out in the Stay at Home directions. Currently people in metropolitan Melbourne must only leave their house for one of four main permitted reasons:
- shopping for necessary goods and services, including health or medical services
- socialising or exercise in a public outdoor place (with groups of up to five people from a maximum of two households)
- permitted work
- caregiving, for compassionate reasons or to seek medical treatment.
Note: People in metropolitan Melbourne can still leave their homes in emergency situations including to leave family violence.
The Stay at Home Directions also require people in metropolitan Melbourne to stay within 25 kilometres of their home when shopping, socialising or exercising; to wear a mask in public places (unless they have an exemption from doing so); and to practise social distancing.
Can the Chief Health Officer prevent people from protesting?
The Stay at Home Directions impact many human rights, including rights to movement, peaceful assembly and association. The directions do not make it unlawful to protest, but any protest away from home must comply with the Stay at Home directions. In practice, it means you must adhere to a permitted reason for being out of your house, remain within 25 kilometres of home, wear a face mask (unless you have an exemption from doing so) and practise social distancing. You must also not gather in groups of more than 10 people from more than two households, including your own household.
The CHO is empowered to issue these directions but, as a public authority under the Charter, the CHO must also act consistently with the human rights in the Charter. This means that any restrictions on human rights in the CHO’s directions need to be justified, proportionate, necessary and timebound.
The directions state that their purpose is to address the serious public health risk posed to Victoria by COVID-19 and that the directions are reasonably necessary to protect public health. This can be seen as the CHO using the protection of peoples’ right to life (section 9 of the Charter) and public health as a justification for limiting Charter rights.
Both the state of emergency and the CHO’s directions are timebound – the state of emergency for COVID-19 is in place for a maximum of four weeks at a time and 12 months in total, and the CHO’s Stay at Home Directions are limited for a period of approximately three weeks.
What role do the police have in limiting protest?
Victoria Police has a role in enforcing the CHO’s directions under the emergency powers. As public authorities, police are also required to act in accordance with human rights under the Charter, including while they are enforcing the CHO’s directions.
A person who refuses or fails to comply with the Stay at Home direction is subject to an on-the-spot fine of $4957, which can reach up to 120 penalty units ($19,826.40) for repeat offenders (section 203 of the Public Health and Wellbeing Act 2008). These fines are subject to a review process.
Why could the Black Lives Matter protest go ahead, but now the anti-lockdown protests are being stopped?
The Black Lives Matter protests were held in June 2020, before Victoria went into stage 4 lockdown, and protest organisers undertook to stage the protests in a manner which would comply with the CHO directions in place at the time. In June 2020, Victorians could leave home for any reason but the Stay Safe Directions required people to take reasonable steps to maintain a distance of 1.5 metres from other people and restricted gatherings outside to a maximum of 20 people. Black Lives Matter organisers encouraged protesters not to breach the restrictions and asked people to wear masks, bring hand sanitiser and remain 1.5 metres apart, ensuring distance between each group of 20 people.
At the time, Victoria Police stated it would prefer the protest be postponed and warned protest organisers they would be fined if the CHO Directions were not complied with, and announced it would not fine people who attended the rally. Victoria Police later issued fines to three protest organisers for staging the protest in a manner which did not comply with the CHO Directions.
Does the Parliament need to issue an override declaration for the CHO to limit Charter rights?
The Charter has continued to apply in Victoria during the COVID-19 pandemic. The Chief Health Officer and his delegates have the power to issue directions that lawfully limit Victorians’ human rights in the Charter, so long as those limitations are necessary, justified and proportionate.
An override declaration is not required for the CHO to limit human rights. An override declaration is a separate mechanism under section 31 of the Charter, which allows the Victorian Parliament to expressly declare that the Charter has no application to a particular Act or a provision of an Act.
How can I express my opposition to the lockdown or views on other issues?
It is critically important in a democracy that people can join together and speak up on issues of communal importance.
While people in metropolitan Melbourne are currently limited in their ability to gather publicly to voice their concerns, there are other ways in which people can protest and express their view that do not violate the public health orders and respect the human rights of other Victorians. These include signing a petition, contacting your local Member of Parliament and gathering online to discuss your concerns.
Who can I contact if I feel that my human rights have been breached?
If you have questions about the Charter, you can contact the Victorian Equal Opportunity and Human Rights Commission on 1300 292 153 or via email@example.com.
If you are concerned that your human rights have been breached, you may wish to make a complaint to the Victorian Ombudsman on 9613 6222 or via firstname.lastname@example.org.
If you have concerns about the behaviour of Victoria Police when they are enforcing public health orders, you may wish to contact the Independent Broad-based Anti-corruption Commission (IBAC) on 1300 735 135 or via email@example.com.