History is watching – we must protect the right to protest and academic freedom

By Amra Lee and Dr Felicity Gray | 29 Aug 24
Student protests for Palestine

Across Australia, student protestors have been on the frontlines defending the right to peaceful protest, calling for a permanent ceasefire in Gaza and for universities to divest from arms manufacturers. Over 1200 Israelis and people of other nationalities were killed in the 7 October Hamas attack and 200 individuals taken hostage. Since then, over 40,000 Palestinians have been killed, with experts estimating the death toll to be closer to 186,000 including indirect health impacts. Much of Gaza has been reduced to rubble and senior UN officials have frequently described the situation as “Hell on earth’”

The deepening political and humanitarian crisis, and ongoing actions taken by Australians to demand action in response, raises important questions related to respect for human rights in Australia. This includes respect for the right to peaceful protest, academic freedom of expression, and the role of our universities in supporting such physical and intellectual spaces.

Defending the right to peaceful protest

As the crisis has unfolded, Australian students and faculty have joined their colleagues around the world in using nonviolent action to press for a permanent ceasefire. Calls for a ceasefire have often been linked to demands that their affiliate universities disclose and divest in investments linked to Israel.

Amnesty International and other civil rights organisations have raised concerns over the actions taken by some Australian universities in response to student-led protests, highlighting several of these actions as threatening the right to peaceful protest through restricting freedom of expression and peaceful assembly. It has identified the requirement to lodge an advance application for a permit as undermining the right to protest as provided in Human Rights Committee General Comment 37.

Restrictions on student protest are linked to a broader trend of restricting the right to peaceful protest in Australia. Last month the Human Rights Law Centre released their report Protest in Peril canvassing the progressive criminalisation of the right to protest in Australia. The report identified 49 laws passed over the past two decades that restrict the right to peaceful protest in Australia. Punishment for breaches of these new laws include prohibitive financial penalties of up to $50,000 and imprisonment. The chilling effect of these laws and penalties are self-evident. These laws may serve the short-sighted political interests of repressing dissent, but over the long term they undermine the democratic values and practices that have driven the social and cultural development of our nation.

Australia has not always been this way. Australia was one of eight countries involved in drafting the Universal Declaration of Human Rights (UDHR) adopted in 1948. We can thank activist Jessie Street, as the only woman on the Australian delegation, for amending the initial opening sentence from “All men and brothers” to “All human beings are born free and equal”.

Respect for the right to protest has been essential to advancing critical social justice issues in Australia – such as the right to vote for First Nations people and women, to the 8 hour work day and the anti-nuclear movement in the 1980s. It has enabled Australians to safely and freely express dissent over political decisions that have led our country and our soldiers into wars from Vietnam to Iraq and Afghanistan. The right to protest has helped us to be on the right side of history on many social justice issues – protecting it is essential for the health of our democracy.

“Our lives begin to end the day we become silent on things that matter” – Martin Luther-King

Protesting Israel’s continued war on Gaza

Student protestors’ early calls for divestment from arm manufacturers has been affirmed by the 19 July International Court of Justice (ICJ) advisory opinion. A majority found that Israel is under an obligation to end its unlawful occupation in the Occupied Palestinian Territories “as rapidly as possible” and that states have an obligation “not to render aid or assistance in maintaining the situation”. A coalition of Australian lawyers and scholars have argued that a good faith interpretation of the legal obligations from the ICJ opinion requires states to suspend all investment and technical cooperation with Israel and a comprehensive arms embargo covering the “export, import, transfer of weapons, including parts, components and dual use items as well as military jet fuel.”

The ICJ’s provisional measures and advisory opinion affirmed student protestors just cause, and role in initiating important changes to several university’s investment policies and partnerships. At the Australian National University, the last remaining student encampment disbanded after 4 months citing the university’s decision to update its long term investment policy to divest from arms manufacturers, and challenges related to electricity and lighting.

Protecting critical thinking and academic freedom

Our universities have traditionally been considered places that will nurture and support critical thinking and provide students and our society with the “skills to navigate ambiguity and uncertainty” as recently discussed on SBS Insight. International students come to Australia to benefit from the high standards our education system offers. That some students have faced intimidation from foreign actors here shows us the value of our system and principles underpinning it, and the need to defend it from policies and practices that may threaten it.

All students and staff must feel safe and free from discrimination and hate speech on university campuses. Concerns have been raised in relation to the decision of several Australian Universities to adopt the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism without sufficient consultation. Criticisms include that the definition was not intended to be legally binding and as such its adoption may support unintended consequences, including having a chilling effect on academic freedom.

Last year a coalition of over 100 Israeli and international civil society organisations wrote to the UN advising against its adoption cautioning that necessary measures to combat antisemitism should “not inadvertentbly embolden or endorse policies and laws that undermine fundamental human rights”. According to the experts, the IHRA definition has the potential to inaccurately conflate what may constitute legitimate criticisms of the state of Israel’s conduct with respect to human rights with antisemitism. The coalition reference two alternative definitions they consider to reduce these risks.

History shows us we need to defend civic space for difficult conversations

For the Gaza crisis, it is hard to understand how calls to end unrestricted warfare and for a permanent ceasefire are being politicised, particularly following the ICJ finding of a plausible risk of genocide. And that it remains necessary to continue to state that protecting civilians from the conduct of hostilities is a requirement on all parties under international humanitarian law – that violations by one side do not justify violations by the other.

The Israel-Palestine situation shows us how conflicts with contested histories, intergenerational trauma, and complex cycles of violence – as well as powerful lobby groups – will require time and space for individuals and decision-makers to critically reflect, and reassess the underlying sources and drivers behind long-standing crises. Legal and policy frameworks that support and nurture the right to peaceful protest and academic freedom, to explore all paths forward, are essential for an environment conducive to such reflection and dialogue.

Where to from here?

The increasing criminalisation of the right to protest should worry us all. There is an urgent need to protect the right to protest and academic freedom in domestic law, as well as institutional policies and practices.

Australia, as the only liberal democracy without a national human rights act, requires one urgently. And alongside this, as the former Justice Michael Kirby advocated earlier this year at Rights on Time, for human rights to be taught in Australian schools to instil an understanding of the principles and values that underpin our society. Such education should also include a critical examination of Australian and global human rights histories – from the colonisation of Australia to the Holocaust and the Iraq War – to provide students with opportunities to confront past injustices and understand what is needed for repair. Nurturing these values and spaces for critical reflection are essential for maintaining a healthy democracy and learning the lessons of history.

Australian universities have a central role to play in protecting our rights through leading by example. They should actively support and defend spaces for critical dialogue and difficult conversations, as well as divest from commercial investments that profit from human rights violations and human suffering. Policies or practices that prevent or discourage these essential conversations are never the answer.