August 15, 2012
Palestenian rights activists return to the Max Brenner store at Melbourne’s QV square after their court victory for free speech and assembly in Victoria.
August 15, 2012
Palestenian rights activists return to the Max Brenner store at Melbourne’s QV square after their court victory for free speech and assembly in Victoria.
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
All 16 protesters charged with “Besetting” and “trespass” (at a protest rally against the Max Brenner store last year), have had their charges dismissed. Melbourne Magistrate Court, Monday July 23, 2012.
by ABC news
Legal experts say a Melbourne Magistrate’s dismissal of a Victoria Police case against protesters could influence future disputes.
Sixteen people were arrested and charged after clashing with police during a pro-Palestinian rally outside an Israeli-owned chocolate shop in Melbourne last July.
A Magistrate ruled the protesters were exercising their human rights and said their demonstration was lawful.
Magistrate Simon Garnett also found the protesters did not threaten the peace or disrupt the public order.
He also criticised the police response in some arrests, describing it as ‘heavy-handed’.
Lawyer Rob Stary represented the protesters.
He says the case against his clients was doomed to fail.
“If they (his clients) oppose the occupation of the Gaza Strip or the West Bank they should be entitled to say so,” he said.
We don’t live in a totalitarian regime, this is not Syria or Iraq or Egypt.Lawyer Rob Stary
Mr Stary says he expects the case to set a precedent, including on picket lines.
“I think it’s got very very wide ramifications,” he said.
“I think firstly police should not get involved in political protests, or industrial disputes of this nature, that they shouldn’t be criminalised.
“We live in a democratic robust society, and people should be entitled to express their views.”
Mr Stary says people should be allowed to exercise their right of freedom of speech.
“We don’t live in a totalitarian regime, this is not Syria or Iraq or Egypt,” he said.
“This is Australia where we should be able to engage in robust debate about important issues.”
Protester Vashti Kenway said the decision was a victory for freedom of speech.
“We feel particularly pleased that this result has been made because it leads on to affect other questions, such as Occupy Melbourne.
“It’s a victory for our capacity to protest in places where corporations have previously said they controlled,” she said.
“It’s also useful for us to know that the QV management have no right to say we are not allowed to express our political opinions within that space.”
The protesters demonstrated at the Max Brenner chocolate store in Melbourne’s QV in July last year.
Protesters targeted the Lonsdale Street store claiming the franchise had aided the Israeli Army.
Following the police crack down on a BDS protest in Australia last year, a court has found pro-Palestinian activists innocent of a series of charges laid against them, including “trespass in a public place.”
Sixteen Palestine solidarity activists arrested during a pro-boycott demonstration have been cleared of the charges of “trespassing” and “besetting” by an Australian court. The 23 July ruling has been hailed as a “landmark victory” for freedom of expression and for the campaign to defend the rights of Palestinians (“‘Landmark victory’ for Max Brenner protests,” ABC News, 23 July 2012).
The 57-page decision by Magistrate Simon Garnett brought an end to a year-long struggle by the protesters.
The activists were among 19 people arrested on 1 July 2011, at a peaceful demonstration outside the Max Brenner chocolate shop in Queen Victoria Square, which is located within the Queen Victoria shopping precinct in central Melbourne. The protest was organized by the Coalition Against Israeli Apartheid and sought to highlight the complicity of the company Max Brenner Chocolate and its parent company, the Strauss Group, in Israel’s occupation and apartheid policies. The action was the fourth protest against the company since December 2010.
The Strauss Group is one of Israel’s largest food and beverage companies. On its website, the Strauss Group has highlighted its support for the Israeli military, providing care packages, books, games and sports and recreational equipment for soldiers. In particular, Strauss has boasted of its support for the Golani and Givati brigades, who have a long record of human rights abuses against Palestinians and in Lebanon.
Both brigades were heavily involved in Operation Cast Lead, Israel’s 2008-09 assault on the Gaza Strip, which resulted in the killing of approximately 1,400 Palestinians, including approximately 350 children. Strauss initially removed information about its support for the two brigades from its English language website but information about the company’s support for both brigades remained on their Hebrew language site for some time before it too was removed.
The 16 activists were charged with offenses under the Summary Offences Act (1966). All of the activists were alleged to have “wilfully and without lawful authority beset premises” and to have engaged in “wilful trespass,” while a small number of those arrested were also accused of a number of other charges, including “hindering,” “resisting” and “assault.”
The police’s case against the activists was contested over 17 days beginning on 1 May this year. Evidence was given by 26 police officers and four civilians, including the manager of Max Brenner and the manager of the Queen Victoria shopping center and two other staff members.
Almost five hours of video footage of the demonstration and arrests, shot by protesters, police and closed-circuit security cameras, were viewed by the court. However, in numerous instances, the sworn statements and evidence given by police officers was in stark contrast to the video evidence shown.
Witnesses for the police case were subject to intense cross-examination by lawyers defending the 16 activists — in particular about the discussions which took place between police and QV management prior to the demonstration last year. At the end of the hearing, the lawyers acting for the protesters submitted a “no-case” to answer, asking Garnett to dismiss all charges.
Garnett upheld the no-case submissions in all 16 cases relating to the main charges. A number of the other charges are still being contested.
In his ruling, Garnett stated that Queen Victoria Square was a public space and that protesters had a lawful right to be there and thus were not engaged in “wilful trespass.” Garnett ruled that because the shopping center had a contract with Melbourne City Council which requires it to keep the square and laneways located within the shopping precinct open to the public 24 hours a day, seven days a week, management “did not have the legal authority to apply conditions on members of the public who wished to enter QV or the laneways.”
Garnett also ruled that “the conduct of the protesters did not promote violence,” and there was no evidence to suggest that the protesters had any criminal intent. According to Garnett, “the protesters had a lawful right to enter QV Square without restriction. They had a lawful right to conduct the political demonstration.”
In dismissing the “besetting” charge (obstructing or impeding the right to leave a premise), Garnett noted, “In my opinion, it cannot be said that it was the actions of the protesters that caused any obstruction, hindering or impediment to members of the public from entering Max Brenner’s, if they chose to do so.”
Instead, he said it was “the establishment of the police lines” at the front of Max Brenner’s which extend across the square and nearby laneways “that caused the obstruction, hindrance and impediment to members of the public.” Garnett found there was no evidence that the protestors had any “hostile intent.” The protestors had engaged peacefully with the public who had been passing by or who were sitting in the Chocolate Bar.
While Garnett ruled that the Victorian Police did not act illegally in arresting the activists, he noted that some of the police actions had been heavy-handed and that “unreasonable force” had been used in some arrests. Video footage of the arrests viewed by the court had shown that one of the arrested protestors was put in a chokehold and lost consciousness, while several other protestors were dragged by their feet across the square and one of the arrested protestors had been put in a headlock.
Robert Stary, a lawyer representing a number of the activists, told journalists that the protesters had been “completely exonerated” by the ruling.
“The judge ruled that there was nothing unlawful engaged in in the activity of the protesters; there was no breach of the peace, they were not involved in any other conduct in the protest itself that would constitute a disturbance [and] in a public place; they had the right to express themselves in that manner,” he said.
Stary noted that the ruling has “very, very wide ramifications,” particularly in relation to the right to engage in political and industrial protests in public spaces.
“Firstly, police should not get involved in political protest or industrial disputes. They should not be criminalized,” said Stary. “People should be entitled to express their views, if they oppose the occupation of the Gaza Strip or the West Bank; they should be entitled to say so.”
The arrested activists noted in the immediate aftermath of their arrests in 2011 that the police attack on the peaceful action in Melbourne not only highlighted the increasing attacks on civil liberties and freedom of speech by the state government in Victoria, but that it also highlighted the increasing attempts to criminalize Palestine solidarity activism both in Australia and internationally.
This was borne out by evidence given by the Victorian police during a bail variation hearing on 27 July 2011. During the hearing, the Victorian Police confirmed that the decision to arrest activists was made before the demonstration and that this decision had been made after discussion with Zionist organizations, the Victorian government, QV Center management and the management of Max Brenner. The Victorian Police also confirmed that they had deliberately targeted activists who they believed to be leaders of the protest.
Reports in the Australian Jewish News also confirmed that in April 2011, the Jewish Community Council of Victoria had made representations to the Victorian police and had called on them “to stamp down harder on aggressive protesters” (“Police questioned as protests turn violent,” 15 April 2011) .
Similar calls for government and police crackdowns on activists urging boycott, divestment and sanctions (BDS) against Israel were made in June 2011 in the New South Wales state parliament (“Police called to action on BDS,” Australian Jewish News, 24 June 2011).
A month later, Vic Alhadeff, the chief executive of the NSW Jewish Board of Deputies confirmed that the various calls for police and government crackdowns on BDS activism was part of “a nationally coordinated strategy” developed in conjunction with the Israeli foreign ministry (“BDS: to protest or not to protest?”, Australian Jewish News, 29 July 2011).
Following the Melbourne court ruling, one of the arrested activists, Omar Hassan, told The Electronic Intifada that Garnett’s decision was a “triumph for free speech, in particular the right to campaign for Palestine.”
Hassan noted that the magistrate’s ruling “cut against the lies of the Murdoch press, that we were violent, anti-Semitic and fanatical.” He was referring to smears made against Palestine solidarity campaigners in media outlets owned by the tycoon Rupert Murdoch (“Prominent Australians fight anti-Semitism with hot chocolate,” The Australian, 28 July 2011).
In the three months following the arrests the Murdoch press ran at least 16 articles on the Melbourne protests and Palestine solidarity activism in Australia, the majority of which were negative. Palestine solidarity campaigners were regularly denounced as “anti-Semitic” and compared to Nazis (“The campaign against the Max Brenner protesters,” ABC, 22 August 2011).
Another protester, Louise O’Shea, told The Electronic Intifada that the dismissal of the charges against the demonstrators “shows that it is worth standing up for your rights against the police, government and corporations, as well as the pro-Israel lobby.”
O’Shea pointed out that while the proceedings against the peaceful demonstrators were “an attempt to intimidate us from taking a stance in support of Palestine, what we went through is nothing compared to what the people in Palestine experience and have to deal with every day.”
James Crafti, who was also one of the 16 defendants, told The Electronic Intifada that the court victory was significant because “Australia is one of an increasingly small number of countries who are still prepared to bend over backwards to support Israel and both major parties in Australia, at both state and federal levels, [and] have made it clear that they are prepared to use police force to repress people’s right to freedom of speech and to try and silence pro-Palestine solidarity campaigning.”
Crafti, who is Jewish, noted that “while we were arrested for daring to stand up for Palestinian human rights, the Israeli state continues to carry out war crimes and human rights abuses against the Palestinian people and are not held to account for their occupation and apartheid practices.”
“The fact that Israel and the companies that support these practices are not the ones on trial, is an injustice itself,” he said. “When we start to see Israel on trial in the International Court of Justice and the companies that profit from Israel’s occupation [are] put on trial, that is when we will see real justice emerging.”
Kim Bullimore has lived and worked in the West Bank, is a member of the Melbourne Coalition Against Israeli Apartheid and was a co-organizer of the first national Australian BDS conference, which took place in 2010. She has a blog at livefromoccupiedpalestine.blogspot.com.
By Friends of Palestine WA: 28 June 2012
The prosecution case against two activists dubbed the “Christmas Carol Criminals” collapsed when a Perth magistrate dismissed all charges on June 29.
Alex Bainbridge and Miranda Wood from the Friends of Palestine WA (FOPWA) had been charged with trespass in relation to a December protest outside Israeli cosmetics company Seacret. Seacret benefits from the illegal occupation of Palestine by stealing resources from the Dead Sea to use in its products.
The company has been targeted by FOPWA and other campaigners around Australia as part of the BDS (boycott, divestment & sanctions) campaign against Apartheid Israel.
“This [acquittal] is a tremendous victory for freedom of speech and the right to protest,” Bainbridge said of the result.
“The court action against the Max Brenner 19 in Melbourne and recent attempts by NSW police to prevent a pro-Palestine demonstration from taking place in Sydney demonstrate that there is a notable pattern of legal harassment against the BDS movement,” he said.
“In the current climate, Palestine activists have to fight not only for justice for Palestine, but also for the very right to protest,” he said.
These FOPWA arrests were part of the same pattern. Evidence presented in court demonstrated that the arresting officer was targeting individual activists and that he did not given them any time to comply with a direction to leave the shopping centre. The latter point was explicitly endorsed by the magistrate in his summation and was one of two reasons the prosecution failed.
More than 40 activists joined Father Christmas in attending a support action for the “Christmas Carol Criminals” as their court case began on June 28.
[Friends of Palestine meets fortnightly at the CitiPlace Community Centre. For more information visit http://www.fopwa.org.]