Noise Is Not A Design Flaw.

There is a small tradition in Australian public life of passing legislation quickly and in good conscience, and then being surprised when it turns out to do something slightly different from what was advertised.

The New South Wales anti-protest provisions arrived in that tradition. They came in the weeks after Bondi, when the public mood was unsettled and the appetite for measures that looked decisive was, understandably, high. The legislation was presented in the language of reassurance. It promised cohesion. It was called, with a straight face, the Terrorism and Other Legislation Amendment Act. It delivered, as the Court of Appeal found occasion to observe earlier this month, something rather tidier than reassurance, and tidier, it turned out, in ways that deserved a second look.

The mechanism was straightforward enough. A declaration could be made. an area could be defined, a category of activity could be quietly discouraged in its entirety, no negotiation with organisers and no requirement to distinguish between the inconvenient and the genuinely dangerous. An administrative gesture that fell across whatever happened to be assembled in front of it.

What the public had in mind, in those weeks after Bondi, was probably fairly specific. What the mechanism had in mind was considerably less so. It turned out to be indifferent, as mechanisms generally are, to the distinctions that mattered. A threat to public safety was one thing. A group in bare feet with climate placards was another. A vigil with green, red and white banners was another still. All three were, in the relevant sense, an assembly. All three fell within a declared area. The law did not play favourites. It was equally inconvenienced by all of them, which is not quite the same thing as being equally justified in relation to all of them.

This is the sleight of hand worth pausing on. The legislation was sold on one image and operated on a considerably wider one. The emotional permission it carried, and it carried quite a lot of it, in that particular moment, was specific. The administrative power it created was not. That gap is not an accident of drafting. It is, rather, what happens when a law is designed to address a feeling rather than a defined harm.

The existing framework was not without resources: violence was already unlawful, threats were already unlawful. Intimidation and obstruction, the more direct forms of public disruption, covered, in some detail, by provisions that had not suddenly stopped working. What the new scheme added was not precision, it widened the category of activity to be discouraged, drawing peaceful assembly a little closer to unlawful conduct, not because it was the same thing, but because it could produce a similar degree of inconvenience.

There is an honest argument for that position, and it was made. Roads were blocked, events were interrupted. Patience was tested in fairly direct ways by people who had, in some cases, tested it before. The irritation is not difficult to understand. What is slightly harder to maintain, under examination, is the step from "this is irritating" to "this should therefore be treated as a category of risk." One is an observation about public mood. The other is a claim about democracy, and the two are not the same claim.

The Court of Appeal made this point in the careful language courts prefer, which means it did not quite say what it meant as directly as one might wish. What it meant, approximately, was this: cohesion understood as quiet is not the same thing as a functioning democracy. A system that depends on the exchange of political views has always carried with it a certain level of noise. The noise is not a design flaw. It is, in some respects, the point.

Australians remain, in principle, supporters of tolerance. It is a quality we like to attribute to ourselves, and occasionally to admire in others. In practice, it tends to be conditional. We are broadly in favour of it, provided it does not involve tolerating anything especially irritating, anyone with large banners, a cause that divides opinion, or a willingness to stand in the heat for several hours making a point that many people would prefer not to hear. That category, it turns out, is quite large, and it contains rather more legitimate political expression than we perhaps acknowledged at the time.

The courts, from time to time, are left to point this out. It is not a role that attracts particular gratitude. It runs against the grain of the moment, involves disappointing people who felt the legislation was reasonable and who are not entirely wrong that it felt that way, and requires the application of a framework that operates on longer timeframes than the news cycle.

We are fortunate, for the moment, to have courts willing to do it. That this feels worth saying, that it registers as something to notice, rather than something to take for granted, is perhaps the more interesting observation. Elsewhere, the relationship between judicial independence and political convenience has been under a degree of renegotiation. We have not, as yet, gone there.

It would be worth continuing not to.

If you know someone who’d appreciate this, they probably will. Please share. Sharing's nice.
...
If you enjoyed this article and would like to see more, 'Buy the Goose a Coffee →'.
...
The views expressed are those of the correspondent. Factual claims draw on publicly available sources.