The English poet Michael Rosen (1946–) wrote:
‘I sometimes fear that people think that fascism arrives in fancy dress,
worn by grotesques and monsters, as played out in endless re-runs of the Nazis.
Fascism arrives as your friend’.
And despite my guest Echo editorial and Aslan Shand’s cautioning follow-up on protest laws, the NSW government response to Bondi has seen a huge transfer of power from the courts to the police.
Previously, if a protest authorisation was sought, the form was filled in and the police could object.
If resolution could not be agreed, the court decided balancing the freedom to protest with the objections made. Thus, on a rainy winter day up to 300,000 people marched in support of Palestinians across the Harbour Bridge sending a loud and clear message to governments that there was significant concern for Israel’s actions in Gaza.
The police opposed it, the courts approved it and a peaceful and powerful event occurred.
Marches are influential, not just because their numbers can be indicative of genuine community concern, but because they are an important democratic right protected by the court’s interpretation of the federal Constitution, and (until now) NSW laws.
After decades of successful and appropriate balance, all that has changed in a rush. The new protest laws ban any applications in any period determined by the police commissioner. These periods are triggered by a terrorism event declaration. That declaration is determined by… the police commissioner.
So, NSW Parliament has shifted the previous power to decide to permit a protest from the courts, to the police, famous for being unbiased arbiters of democratic rights.
Under the old regime, if a mass protest march against a genocide in Gaza had been sought in the two weeks after the shootings, then the police may well have opposed it on public safety grounds. For example, if they had argued that their resources were stretched so thin protecting the Jewish community and they were concerned with copycat attacks then this would have almost certainly and rightly have thwarted the assembly.
The police commissioner took no time at all flex his muscle and ban all march applications. And the reasons – not lack of resources, fear of further attacks or reprisals. No, the reason given included the most anti-democratic mush possible:
‘This is a time for community to come together and to show respect and courtesy. It’s not a time for large public assemblies and division’.
Wow. So, we cannot exercise our democratic rights because it might be disrespectful and uncourteous. Let me tell you, I find the anti-immigration marches disrespectful and rude as hell, but I would be appalled if they had been banned. The pathetic numbers of sad souls wrapped in the Australian flag tell the whole story really. And I find the anti-abortion protests and marches with pictures of foetus, and replete with misogyny disgusting.
But jailing the participants would be way worse.
If a key factor in determining protest marches by police is going to be ‘respect and courtesy’ then presumably only those marches that don’t offend Mal Lanyon will be permissible.
Maybe ANZAC day? And the two-up better be bloody polite too. And of course, the ALP ensured that industrial marches were still permitted. Phew.
The other limb being rushed is the potential banning of certain phrases like ‘globalise the intifada’ and ‘from the river to the sea’. Emeritus Professor Anne Twomey has released the most brilliant YouTube mini-lecture as to why these provisions are likely going to be unconstitutional anyway.
We already have laws criminalising offensive language and inciting violence or racial hatred. We even have laws specifically banning Nazi symbols and further protections against discrimination. Enough already!
So why are we even considering banning marches and words – because it is said that the marches and these phrases are somehow connected to the Bondi shootings.
That first there are words, then there is property hate crime and then there were the shootings and so somehow the first has caused the third. An utterly evidence-free theory.
Nobody really believes this. Not even the premier. I have searched every single inquest and enquiry I can locate following a terrorist attack and not one has ever recommended banning assemblies or SPECIFIC words OR PHRASES. Indeed, I cannot find even a submission to any enquiry that suggested such a thing. Nothing, because it is novel and absurd. They are only words. If you don’t like them, argue against them, call them out.
If they are objectively offensive, then they are illegal.
If they incite racial hatred or are discriminatory, they are illegal.
And the best example is in the United Kingdom where ‘Palestinian Action’ has been declared a terrorist organisation and anyone protesting with a banner including those words is subject to 14 years imprisonment. Only 2,500 arrests later and suggesting that this has worked to increase community unity is laughable.
The real reason the NSW government has acted is because some Jewish people don’t like these words or assemblies. They find (just like I find the anti-immigration and anti-abortion rants) offensive and scary and wrong. Ah, the pitfalls of democracy.
So beware – transfer of the power from the courts to the police is a characteristic of every society that has drifted from democracy to fascism. Be afraid of that. Be very afraid.
Professor David Heilpern is Dean of Law and Chair of Discipline at SCU.
For four decades The Echo has printed the stories some people loved, some people hated, and some pretended not to read. If you want us to keep telling the truth, the real truth, not the sugar-coated version. We’ll need your support to keep the presses rolling. 
