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Aidan Ricketts[*]
Participation in public protest has been a familiar feature of Australian political life for most of this century, yet the extent to which Australians have any legally enforceable right to participate in protests is questionable. In the absence of explicit constitutional guarantees, citizens’ rights to publicly express dissent are dependent on the maintenance of institutions and attitudes tolerant of such activities.
While many Australians may view the concept of ‘democracy’ as entailing little more than the right to elect governments, broader concepts of democracy than this ‘majoritarian’ version still persist. The radical environmental movement, in particular, has been active in recent decades in promoting a ‘participatory’ style of democracy which insists on a right to protest — even where this involves breaking the law.[1] The important challenge for governments and their law enforcement agencies, when faced with non violent direct action, has been whether to respond by attempting to eliminate such activities, or to seek to accommodate them within a broad concept of maintaining democratic values within the rule of law.
Given the generally weak nature of legislative protection of the right to protest, it becomes vital for those seeking to assert political rights to focus attention on the exercise of police discretion and mechanisms for the review of that discretion.
The North East Forest Alliance (NEFA) has achieved some notoriety for the determination with which it pursues its primary objective of halting old growth logging in New South Wales. NEFA has a history of successfully combining uncompromising ‘direct action’ strategies in the form of blockades and occupations with sophisticated lobbying and litigation. In December 1998 an historic ‘Forest Protest Protocol’ was entered into between the NSW Police Service and NEFA. This document is the first of its kind and represents a significant breakthrough in community/police co-operation in the field of public protest.
Naturally, the finalisation of such an historic document did not occur in a vacuum. The successful conclusion of the process is attributable to several factors. These include the determination of NEFA to establish a long-term solution to the uncertainty surrounding the force used by police in responding to forest protests, a growing awareness on the part of senior officers within the NSW Police Service of the need to take an impartial position in responding to public protests, and the important role played by the Ombudsman’s Office to which I will return later.
Legal commentators and politicians frequently discount the significance of direct action in achieving environmental outcomes, preferring to focus on high profile litigation and legislative initiatives. This approach fails to recognise the very real importance that protests have in creating the public sympathy which leads to political outcomes, and certainly underestimates the scale of the public protests which have accompanied the major changes in forest policy in New South Wales in recent years.
The police, however, find themselves on the front line in forest protests, and it is a role that can be both professionally challenging and expensive. Forest protests can be protracted and almost invariably take place in remote and inaccessible places. The Chaelundi campaign in 1991 ran for five months and cost the NSW police $436,000 to attend. When this figure is considered in the context of the decade long old growth forest campaign in which NEFA has been involved, the economic concerns for police are considerable. It is, therefore, no surprise that the first initiatives by police to reach some accommodation with protesters occurred at the end of 1992, a year in which forest protests were virtually constant from April at Mt Killiekrankie near Bellingen, through to the infamous capture by NEFA activists of the State Forests’ headquarters at Pennant Hills in November of that year.
In December 1992, Chief Superintendent Rick Kane, Maitland District Commander proposed a stakeholders’ meeting in Port Macquarie with a view to ‘resolving logging disputes’.[2] While the idea of resolving the disputes was perhaps overly ambitious, the meeting did represent the first time that police had taken the initiative to consult with community groups on the issue.
The important challenge for policing of public protest is to determine the proper role of police attending such disputes. One view, and that preferred by forestry personnel, is that the role of police is to attend to prevent protesters from interfering with ‘otherwise lawful’ forestry operations.[3] In this scenario, the protesters are assumed to be the offenders and the logging contractors and State Forests the victims. Such a simplistic view has proved inadequate to deal with the complexity of the situation.
In most disputes there is a legal as well as a moral objection being taken by environmentalists, and charges against protesters are often later dropped when it is revealed that the forestry operation itself was in breach of the law.[4] NEFA, for its part, always accepted the presence of police at protests but has maintained that the law enforcement role of police should be discharged with impartiality. NEFA’s concerns about partiality of police operations and the failure of police to obtain independent advice about the legality of forestry operations were first formally communicated to police on 26 September 1994.
The complaint concerned events at a forest protest at Wild Cattle Creek state forest in September 1994. Unlike many protest sites, Wild Cattle Creek is easily accessible from the nearest town, Dorrigo, which has strong pro-logging sympathies. There had already been incidents in 1992 of assaults on protesters and the protesters were angry that police had not pursued assault charges against the timber industry supporters responsible. NEFA activists were determined that in future such events would be documented thoroughly and police inaction would result in formal complaints.
The opportunity arose on 26 September 1994 when security guards employed by a milling company allegedly assaulted and endangered the lives of protesters by tipping them out of dangerous protest installations, and in one case causing a protester to fall five metres into a creek bed. Despite these assaults, no charges were laid against the security guards. The protester who had fallen five metres was arrested and detained without any check of his injuries being conducted by police.[5] NEFA responded quickly with a detailed complaint alleging negligent disregard by police for the safety of protesters, manufacturing of false evidence, and selective prosecution.
In February 1995, the Assistant Commissioner of Police submitted the matter to the Office of the Ombudsman.
The Office of the Ombudsman wrote to both parties in March 1995, proposing that conciliation between the parties would be preferable to formal investigation, and advising that if the parties agreed, formal investigation and report by the Office would be withheld pending the outcome of that conciliation.[6] This represented a major breakthrough for NEFA in its attempts to have the matter seriously dealt with by the NSW Police at a senior level, and is practical confirmation of the useful role that an institution such as the Ombudsman’s office can play in assisting public interest advocates in achieving outcomes in their disputes with government agencies.
As part of the negotiations that followed, NEFA sought specific commitments from the Police Service in relation to the matters set out in the original complaint. The aim of these was to ensure that the negotiations would bring about a lasting improvement in police operations at forest protests rather than simply responding to the complaint in a retrospective way. These commitments formed the basis of the Protocol which was signed on 21 December 1998.
For NEFA the signing of the Protocol was a major achievement. The Protocol reflected NEFA’s philosophy that non-violent direct action, even where it involves intentional law breaking, can operate within a framework which respects the rule of law. It also represented a positive step in gaining official recognition of the legitimacy of public protest.
The Protocol offers a number of substantial benefits to NEFA and its supporters. First, it offers substantial protection for members of the public by providing a mechanism for defining ‘arrestable’ and ‘non arrestable’ activities at protests. Second, it attempts to ensure impartial policing together with a requirement for the Police Service to obtain independent legal advice before responding to State Forests’ calls for assistance. The Protocol also establishes specific immunities for specified NEFA personnel performing the roles set out in the Protocol.
The advantages to police include an undertaking by NEFA to inform them of intended protest actions, clear lines of communication with the mass of protesters, and a complaint process which heads off disputes before they get to the Ombudsman’s Office. This latter provision, added at the insistence of negotiators on behalf of the police service, is further confirmation of the sensitivity of police to external review.
Although lack of space precludes a full text of the Protocol document, there are certain important features of the Protocol that should be addressed. The following paraphrases some of the more important provisions and their benefits to the parties involved.
Paragraph 4 of the Protocol provides for the creation of a number of special categories of persons present at protests who enjoy specific roles, rights and responsibilities:
Legal Observers are persons who are legally qualified, and observe the conduct at forest protest actions. They may record evidence of misconduct by timber industry supporters, State Forests, Police or any other person. They are not independent legal observers, they are acting in NEFA’s interests.
While legal observers do not enjoy any special immunities, their presence is a key feature in NEFA’s ability to monitor and enforce the Protocol.
Paragraph 5.1 provides that, through the liaison persons, police can inform protesters of potential arrestable situations so that all persons may make choices to comply or face arrest. This is important to NEFA, as it means that protests can be safe places for people to come, bring their families, express their views and not find themselves charged with offences which they may not have intended to commit.
This is one of the most problematic parts of the Protocol in that under the Forestry Act 1916 (NSW), the state, and not the police, retains primary power over the admission of persons to closed areas of state forest during disputes. Paragraph 6 attempts to deal with the situation by providing that the Local Area Commander’s liaison person will assist in seeking authorisation from State Forests for the entry of NEFA personnel performing roles of police liaison person or legal observers pursuant to the Protocol.
Paragraphs 8 deals with the post arrest situation. It provides that where possible police will proceed by way of summons rather than arrest and will co-operate with NEFA personnel by providing the names and destination of all arrestees removed from the site.
Despite the fact that either party can revoke the Protocol at any time, there is some security for NEFA in the fact that such a decision can only be taken by the Commander of the Northern Region. This means that while the Protocol remains in force, all officers attending forest protests in the region are bound to exercise their discretionary powers in accordance with the terms of the Protocol. This is significant given that police discretion is probably the greatest single factor beyond the letter of the law itself which determines the nature and quality of law enforcement in practice.
In the Forest Protest Protocol NEFA gains a promise of fairer and more certain outcomes in terms of on-the-ground policing. The New South Wales Police Service gains relief from some of the persistent problems it has faced in policing forest protests such as unpredictability, inadequate legal advice, the inexperience of junior officers called to protests, and the high cost of investigating persistent complaints about policing of protests.
It must be observed, however, that the Protocol would not have been possible without good will on both sides. The NSW Police have shown a willingness to learn from and understand that direct action, including intentional law breaking, does not necessarily mean a disrespect for the rule of law. NEFA, on the other hand, has persisted with a view that the police need not be seen as the enemy of the protester and has actively pursued its vision of impartial policing.
The result is an historic document which gives a message to the community that the police can be responsive to community concerns about the quality of policing and can adopt a flexible approach to perceived problems.
The Protocol also appears to be effective on the ground. The level of cooperation between police and protesters evident at forest protests conducted by NEFA in recent times can be contrasted with some of the alarming outbreaks of violence at anti-mining protests and other street protests not covered by the protocol in north east New South Wales.
The Protocol’s significance consequently goes beyond the context of forest disputes and provides a model for other police organisations and protest groups to apply in other contexts. It gives concrete form to the otherwise vague concept of impartial policing of political demonstrations. Significantly, it also implicitly recognises the right of citizens to intentionally break the law in order to make a political statement, and as such represents a rare reinforcement of a participatory view of democracy. Hopefully the apparent success of the Protocol will also incline police to the view that force is not always the cheapest or most effective way to deal with public protest.
References
[*] Aidan Ricketts teaches in the School of Law and Justice at Southern Cross University. Aidan also worked as a coordinator for the North East Forest Alliance from 1991 until 1995, and was personally involved in the negotiations that led to the development of the Forest Protest Protocol.
[1] The term majoritarian is used here to describe the attitude to electoral democracy associated with the concept of electoral mandate. The current federal government has used the rhetorical concept of mandate to attempt to invalidate public opposition to its legislative program. Such a view of democracy can be described as majoritarian because it presumes that majority will, as expressed by a choice between major political parties, carries with it some moral precedence over competing views. Participatory democracy, on the other hand is used here to broadly describe an attitude which sees the effective expression of dissent by minorities as a fundamental feature of the practice of democracy.
[2] Invitation to attend meeting sent to NEFA coordinators from NSW Police Service Chief Superintendent Kane 17 November 1992 (on file with the author).
[3] Rogers, N. (ed.), Green Paradigms and the Law, Southern Cross University Press, Lismore 1998, p.154.
[4] Three times between 1990 and 1992 the courts found logging operations subjected to protests to be in breach of the law. These included the logging of Chaelundi state forest in both 1990 and 1991 and forestry operations at Mt Killiekrankie in 1992 in respect of which Forestry Commission NSW later pleaded guilty to a prosecution by the NSW EPA. Also see Rogers, N., above, p.151.
[5] Correspondence, John Corkill to Assistant Commissioner Ray Donaldson 26 September 1994 (on file with author).
[6] Correspondence, Office of the Ombudsman to John Corkill 21 March 1995 (on file with author).
[7] Forest Protest Protocol, NSW Police Service/North East Forest Alliance (NEFA) 21 December 1998.
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