- Rob Stary
- From: Herald Sun
- July 25, 2012 12:00AM
Rob Stary says management of QV should indemnify Victoria Police for the costs of dispersing the protesters.
THE exoneration of the Max Brenner protesters on July 23 represented a significant victory for those engaged in peaceful protest.
It provides a salutary lesson to the authorities as to why police should not be engaged where people are simply exercising their democratic right of peaceful protest.
It’s a fundamental right in any tolerant and civilised democratic society.
And this episode raises the question of why scarce police resources were invoked at the behest of a large commercial interest in dispersing lawful peaceful protesters.
The management of QV should indemnify Victoria Police for the costs of this operation. It should not be borne by the general public.
The legal costs that will be ordered against Victoria Police as a result of this case should also be borne in part by the Victorian Government Solicitor’s Office, as a result of its advice as to what might constitute wilful trespass or besetting of premises.
A number of demonstrations took place outside the Max Brenner store at QV in April and May 2011, protesting against the involvement of its parent company in supporting the Israeli army’s military operations in the Gaza Strip and West Bank in Palestine.
The protesters were in support of the struggle of the Palestinian people against Israeli armed aggression. At all stages the protest was peaceful. And, as the magistrate found this week, there was no breach of the peace or any other unlawful activity engaged in by the protesters themselves.
The management of QV invoked the intervention of police, essentially to protect its commercial interests.
This ultimately resulted in charges of wilful trespass and besetting premises being laid.
It appears that Victoria Police relied on advice from the Victorian Government Solicitor’s Office, and it appears that advice was the foundation of the laying of charges.
After four weeks of argument the magistrate concluded that the portion of the premises where the protest had taken place was a public area.
In fact, a covenant on the QV land title directed that laneways and other public areas remain open to the public 24 hours a day, seven days a week.
It could not be successfully argued that the protesters were trespassing on land that was either public or private.
Their peaceful assembly could not be construed as a wilful trespass on publicly accessible areas.
The second charge, that of besetting premises, related to the effective obstruction of the Max Brenner business.
What the evidence actually showed was that it was Victoria Police deployed in this operation that impeded the public from entering and leaving the area adjoining the shop.
It could not be argued that the mere fact of a lawful assembly protesting against Israeli army incursions could amount to a besetting of the premises.
In fact, the magistrate alluded to the fact that there were patrons of Max Brenner sipping coffee and eating chocolates while the protests took place.
The whole of the activity was captured on CCTV footage.
The protesters relied on rights of freedom of assembly and freedom of expression that are enshrined in our Charter of Rights and Responsibilities.
Those common law rights are enshrined in various Bills of Rights from the United States to the United Kingdom to Canada and New Zealand.
This week’s decision is likely to have a major impact on the way other trespass cases, such as any brought against Occupy Melbourne protesters, are handled in the future.
It is the fundamental right in every democratic society for its citizens to participate peacefully in protest.
Victoria Police, to its credit, successfully handled the Patrick Stevedore waterfront dispute where many thousands of people blockaded the waterfront.
Victoria Police acted successfully in a way to defuse a tense situation.
It is a form of policing that has proved successful in the past, and that model should be invoked in any peaceful dispute where there is no risk to property of members of the public.
We do not live in Stalinist Russia, Syria or any other totalitarian regime where lawful peaceful protest is repressed by the state.
Rob Stary is a leading Melbourne criminal lawyer. He represented some of the protesters in court this week