Social Change, Protest & The Law. What role should the legal profession play?
Jennifer McKay, Sarah Moulds, University of South Australia
Abstract
In this presentation we will provide a typology of protest types and overview of the current laws regulating protest activity in Australia. This review suggests that in the face of protests State governments have passed laws increasing the scope and gravity of criminal offences aimed at certain forms civil disobedience and certain types of public speech (Moulds, 2023; McKay 2021). This presentation will also touch upon the extent to which these legislative reforms interact with the implied freedom of political communication in the Australian Constitution, having regard to the High Court’s decision in Brown v Tasmania (2017) 261 CLR 328 and Kvelde v State of NSW [2023]NSWSC 1560 and related cases. It will also showcase some impending research on community approaches to art inspired activism.
The presentation will also discuss the role of the legal profession within this public discourse (Jacobowitz, 2021) – both as legal advisers to governments, not-for-profits and private entities, and as members of a profession that values individual human rights and rule of law. We contend that the legal profession has an obligation to play an important conduit role between passionate citizens seeking to raise their voice in our democracy, and our elected law-makers tasked with balancing potentially competing public interests and rights.
References
Brown v Tasmania (2017) 261 CLR 328 Kvelde v State of NSW [2023]NSWSC 1560.
Jacobowitz, Jan L, ‘Chaos or Continuity? The Legal Profession: From Antiquity to the Digital Age, the Pandemic, and Beyond’ (2021) 23(2) Vanderbilt Journal of Entertainment and Technology Law 279
McKay, J 2021, 'Sentencing climate change activists in Australia: issues and lessons from the early jurisprudence in Queensland', IUCN Academy of Environmental Law eJournal, no. 11, pp. 125-129.
Moulds, Sarah, ‘South Australia’s Obstruct Public Place Laws: How Do They Fit within Australia’s Anti-Protest Law Landscape?’ [2023] 37(9) Australian Environment Review 187
Biographies
Dr Sarah Moulds is an Associate Professor in law at the University of South Australia, editor of the Australasian Parliamentary Review and co-founder and director of the Rights Resource Network SA. She is passionate about parliaments and connecting citizens and communities with law makers. In 2022 Dr Moulds was awarded Churchill Fellowship to explore how to empower young people to engage effectively with Australian parliaments. Dr Moulds is actively engaged in local, national and international conversations about the role parliaments can and should play in holding governments to account, and how communities and parliaments can work together to plan for a better future for all of us. She is the Deputy Chair of the International Parliamentary Engagement Network, a group that helps connect people to parliaments all around the world.
Professor Jennifer McKay AM was born in Melbourne and studied Geography and environmental management at the University of Melbourne for her PhD. Then she studied Law at the University of Adelaide and after admission practiced for Finlaysons in Commercial advisory. She completed a Graduate diploma in human rights law at American University in 2009 whilst on a senior Fulbright at UC Berkeley. She has recently completed a Graduate certificate in Education online learning. She is a socio-legal researcher applying empirical research methods to socio legal questions about law, business and the environment and environmental management, human rights and climate change. She practices engaged research and won the Premiers medal for advice based in her water law research. This award was for research on trust in government and water planning processes. She has over 183 publications and in these has experimented with innovative methods to evaluate the emotional aspects to law and enforcement and the impacts of laws chilling human rights. She is engaging currently in further research on protest laws. She teaches environmental law, domestic and international and business law courses and engages students in reflective practices. She co edits the IUCN Journal of Environmental law.