Protesters should be protected (Herald Sun)

By August 2, 2012 April 10th, 2018 Democratic Rights, In the media

Thursday 2/08/2012 Nicholas Croggon, Herald Sun Law Blog

OPINION: Environmental lawyer and activist Nicholas Croggon argues protesters have a right to privacy after police refused to destroy video footage from an anti-coal rally.

It has been a landmark year for protesters and the law in Victoria. 

Recently, the Magistrates’ Court dismissed charges laid against 13 individuals who protested in front of a Melbourne Max Brenner chocolate and coffee store.

In March, the Federal Court heard a challenge brought by participants in the Occupy Melbourne protest against Melbourne City Council and others, the decision in this case is still pending. 

These two cases were important for raising questions about the significance that the right to protest, the ability to raise one’s voice in dissent, holds in our democracy, and the circumstances in which this right can be limited.

The Environment Defenders Office (EDO), where I work as a solicitor, recently acted in a third important case.

We acted on behalf of Lisa Caripis, a writer and researcher on climate change law, who brought a challenge in VCAT claiming that Victoria Police had breached privacy laws and her human rights by retaining video footage which it had collected of her attending a peaceful protest outside the Hazelwood Power Station in 2010. 

Heard on July 17-18, Lisa’s case asked the Tribunal to consider some important questions:

For what reasons are Victoria Police entitled under privacy laws to retain video footage taken of someone participating in a peaceful protest, when they are doing nothing wrong? 

And, are these reasons consistent with Lisa’s right to privacy, and her rights to freedom of expression and peaceful assembly (the legislatively protected rights that can amount to a right to protest)?

Hazelwood Power Station. Picture: Getty Images

As has been noted elsewhere, the answers to these questions are far from simple – and so far, untested by Victorian law.  The Tribunal has a tough decision ahead of it.

However, regardless of the Tribunal’s ultimate answer, it is important that these questions be asked.

The EDO has noticed in recent times, a marked increase in the surveillance of environmental protesters, and in the collection and retention of their personal information by public authorities as a tool to manage environmental protests. 

This is the third legal challenge in recent years that the EDO has brought in relation to public authorities’ treatment of protester information. 

In 2010, the EDO represented protesters who discovered a Victorian Government memorandum of understanding authorising the transfer of protesters’ private information to the consortium building the Wonthaggi desalination plant. 

In 2011, the EDO acted for a farmer who protested the North-South Pipeline (Sugarloaf Pipeline), and as a result had large amounts of her personal information collected by Melbourne Water.

The EDO only acts in cases that are in the broader public interest and will result in a better outcome for the environment. So why did we act in these cases?

We acted because we believe it is always in the public interest for concerned and conscientious people like Lisa to be able to voice their opinions without being made to feel like they have done something wrong, or feeling like their privacy has been infringed. 

This is all the more important when the opinions that people like Lisa seek to voice are about the most pressing of issues: how we are to deal with the urgent threat of climate change.

Lisa’s case is important – not just because it seeks to deal with what Lisa considers to be an interference with her personal privacy – but because it seeks to clarify the extent to which Victorian privacy law, and the human rights to privacy, freedom of expression and peaceful assembly, regulate the use of surveillance at protests.

Clarification of this area of law is relevant to all Victorians who believe that the right to protest is a key part of our democracy.

Nicholas Croggon is a solicitor at the Environment Defenders Office (Vic) Ltd, a not-for-profit community legal centre that helps people use the law to protect the environment.

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