Protest Laws and Political Radicalism in 1970s Australia: The making of the Public Order Act 1971

I have just submitted an article for peer-review on the development of the Public Order (Protection of Persons and Property) Act 1971 (Cth), a piece of legislation introduced by the McMahon Government to deal with the dual ‘threat’ of the anti-Vietnam War and anti-Apartheid movements that were growing in Australia during the late 1960s and early 1970s. Due to the word count limits of the journal that I submitted the article to, I had to cut around 3,000 words from the paper. I thought I would use some of the finer parts that I had to cut to give a quick overview of my research….

In  the late 1960s and early 1970s, Australian witnessed an upsurge in radical social movements, that was mirrored across the globe. The most prominent social movements that emerged at this time were the anti-Vietnam War movement, building from various demonstrations in the mid-1960s to the Vietnam Moratorium Campaign in 1970-71, and the anti-Apartheid movement, which saw a growing resentment by Australians towards the racist policies of the South African government. Other movements, such as the student movement, women’s liberation and the push for Aboriginal rights, also grew during this era and there was much overlap between the different movements.

This upsurge in political and cultural radicalism worried the Liberal-Country Party Government, which had held power in Australia at federal level since 1949. For the Government, intelligence and law enforcement agencies, there was a concern that the protestor of the late 1960s/early 1970s was different from the typical protestor from other eras, such as the unemployed worker from the Depression era or even the Communist and/or trade unionist of the early Cold War era (Douglas 2004: 60), and they were fearful that this new breed of protestors were unlikely to obey the ‘rule of law’. For example, Thomas Hughes (1970a: 2-3), the Attorney-General from November 1969 to March 1971, argued that, ‘[i]f any substantial group of citizens… decide that civil disobedience is to be a regular and accepted manner of bringing to notice their disagreement with [the] law, our system will break down.’ To address this concern, McMahon’s predecessor as Prime Minister, John Gorton, announced publicly in August 1970 that the Government was to introduce the Public Order Bill, first devised, as the records of the National Archives show, as the protection from Unlawful Demonstrations Bill in early 1970. (Draft legislation, Sep. 24, 1970) Apart from addressing these concerns about the threat of demonstrations to the rule of law,  Malcolm Saunders (1982: 372) has argued that this Bill was part of a wider ‘law and order’ campaign by Liberal and Country Party backbenchers, rallying against the ‘permissive society’ that seemed to be emerging in the late 1960s in Australia.

There were two factors that initially pushed the Government towards introducing public order legislation. Firstly, there was a concern that Canberra would increasingly become the focus of demonstrations during the 1970s and secondly, the authorities seemed to be frustrated by the demonstration tactic of the ‘sit-in’ and the legal grey area that surrounded it.

Regarding the first factor, while demonstrations regularly occurred in other capital cities, the Federal Government suggested that the ire of the protest movement was more likely to be directed towards Parliament House in Canberra and other institutions of the Federal Government in the ACT in the forthcoming years.  The reasoning behind this suggestion was that the anti-Vietnam War movement were protesting against Australian involvement in the War, a federal policy decision, and against conscription, handled by the Commwealth Department of Labour and National Service. An internal document generated during Cabinet discussions over the proposed legislation stressed that ‘Commonwealth laws are being attacked… involving the use of force and violence by demonstrators’, which, the Government argued, required particular laws concerning public order to be enacted by Commonwealth (Cabinet document, n.d.). This was reiterated in a submission to Cabinet by Thomas Hughes (1970b: 5) which stated that ‘[i]n recent times, demonstrations involving force and violence have been directed solely against Commonwealth laws’ and in response to this, ‘it is desirable that laws relating such matters… should be Commonwealth laws’. (Emphasis in the original text) Nigel Bowen (1969: 1) had said the same thing a year earlier, saying that ‘[m]ost of the demonstrations have been directed have been directed against Commonwealth policy or legislation, such as the National Service,’ adding that foreign embassies were also the target of much protest. On the other side of politics, leader of the Opposition, Gough Whitlam seemed to concur with this assessment, stating that the main demonstrations that have occurred on Commonwealth territory have been ‘on matters where the Federal Government’s policy has stirred people up’, adding that ‘[t]here are 2 particular matters in this regard, apartheid and Vietnam’. Whitlam went on to declare:

One cannot expect men and women of 18,19 and 20 years of age to respect laws which they abominate. They are entitled to express their views about them, and I believe that future generations of Australians will be grateful that the members of today’s younger generation have shown that they abominate apartheid and the Vietnam War. (Hansard, House of Representatives Parliamentary Debates, 7 April, 1971, 1580)

The second factor was the tactic of the ‘sit-in’, which unnerved the Government and the police. A tactic inspired by the civil rights movement and the student movement in the United States, the sit-in was utilised at anti-Vietnam War and other demonstrations in Australia during the late 1960s and early 1970s. As it was generally a non-violent tactic, used more as an act of obstruction rather than anything more aggressive, it was debated within government whether this form of peaceful occupation of Government premises and/or public areas in the ACT was, in fact, breaking any Commonwealth laws. As Andrew Hiller (1973: 252) wrote, in the preparation of the legislation, ‘account was taken of sit-in demonstrations and intrusions upon the peaceable occupation of land and premises by their lawful occupiers.’ Senator George Hannan complained that the Commonwealth lacked the necessary legislation to deal with this form of protest, stating:

Commonwealth premises have been to some extent an area of no-man’s land… [R]ecently we had in Melbourne people who I would in fact describe as hoodlums but who describe themselves as protestors, who attempted to set fire to wastepaper baskets in the General Post Office…

We have seen in this country in recent times a growth in what has been euphemistically described as ‘sit-ins’. Only the States of New South Wales and Victoria have appropriate legislation to deal with this particular activity. (Hansard, Senate Parliamentary Debates, 28 April, 1971, 1078-79)

Neil Brown, a Liberal MP, made a similar complaint, stating in the Second Reading of the Public Order Bill in the House of Representatives in April 1971:

the former Attorney-General indicated in his second reading speech that there is no law except in New South Wales and Victoria under recent amendments to the law there, to cover the offence known popularly as a sit-in. I would have thought the events of the last few days in Melbourne indicate that there is a need for such a law. Surely this type of conduct should be an offence and surely the law should adequately cover that type of situation so that it can be stopped. (Hansard, House of Representatives Parliamentary Debates, 20 April, 1971, 1709)

To overcome this problem, the Public Order Act provided the powers of arrest for ‘sit-in’ explicitly, regardless whether or not the demonstration was violent or non-violent.  Section 9 of the Act stated:

A person who, in a Territory or on Commonwealth premises, while taking part in an assembly, engages in unreasonable obstruction is guilty of an offence…

The other relevant section (section 12.1-2) legislated against sit-ins by stating:

A person who, without reasonable excuse, trespasses on Commonwealth premises is guilty of an offence…

A person who –

(a) engages in unreasonable obstruction in relation to the passage of persons or vehicles into, out of, or on Commonwealth premises or otherwise in relation to the use of Commonwealth premises;

(b) being in or on Commonwealth premises, behaves in an offensive or disorderly manner; or

(c) being in or on Commonwealth premises, refuses or neglects, without reasonable excuse, to leave those premises on being directed to do so…

is guilty of an offence…

Once the Public Order Bill entered Parliament in April 1971, the Government seemed to portray the new legislation was a much broader antidote to all forms of ‘violent’ demonstrations and rallied against the anti-Vietnam War movement across Australia, suggesting that it was run by violent militants and Communist agents. Bob Katter Sr. of the Country Party announced, ‘Every decent Australia will treat the Moratorium with the contempt it deserves. Do not fall for this business about peaceful demonstrations.’ (Hansard, House of Representatives Parliamentary Debates, 14 April, 1970, 1078)

At different points in the Second Reading of the Public Order Bill in the House of Representatives in April 1971, Liberal MPs referred to 10 public order episodes that occurred in Sydney, Melbourne, Adelaide and Brisbane that could not have been dealt with under Commonwealth legislation, but were used to bolster their argument and portray the ‘chaos’ that required new legislation to be dealt with. John McLeay Jr., a South Australian MP, raised an episode of a Vietnam Moratorium demonstration in Adelaide, alleging that flag poles ‘of some other country’ were being used ‘against the police force’. The Liberal member for Boothby claimed that ‘[d]uring that demonstration I think 17 policemen were admitted to the Royal Adelaide Hospital as a result of injuries received in this peaceful demonstration’, adding that one person was arrested for kicking a constable in the chest and face and calling him a ‘fascist pig’. McLeay pronounced, ‘[t]his is the sort of peaceful person whom members opposite think should be permitted to demonstrate’, leaving out the fact that it was not up to the Commonwealth government to permit or police demonstrations in the capital cities, unless they were in the vicinity of a foreign consulate. (Hansard, House of Representatives Parliamentary Debates, 7 April, 1971, 1610-1611)

Another Liberal MP, John David Jess raised more episodes of protests that had occurred in the States, with only one incident raised in this section of his speech falling under the proposed legislation. Jess announced in Parliament:

Let us look at more of these occurrences. On 11th April 1969 more than 180 arrests were made during violent anti-Vietnam demonstrations in Sydney and Adelaide. On the same day students of the MonashUniversity occupied the Oakleigh Commonwealth Employment Service office. On 1st May 1969 there was another incident. On 5th May 1969 hundreds of students stormed the Monash administration building. On 12th June 1969 students occupied the Senate room at the University of Queensland. There were other incidents on 24th June 1969, 4th July 1969, 12th July 1969, and so it goes on. It is a repeat performance of people coming into buildings, taking over offices, opening files, distributing documents and terrifying civil servants working in these offices. And the Opposition says that nothing should be done. (Hansard, House of Representatives Parliamentary Debates, 20 April, 1971, p. 1721)

In response to this characterisation of the anti-Vietnam War movement as violent, Gordon Bryant asked the Government rhetorically, ‘Who are the people of violence in the community? Who are the people who are visiting violence upon us continuously?’ and suggested that it was the Liberals at Federal and State level, as well as the police, who were ultimate perpetrators of violence. Bryant said, ‘We should be trying to produce a situation in which the police are not associated with violence. Do not tell me that the police are not unduly rough on many occasions.’ (Hansard, House of Representatives Parliamentary Debates, 7 April, 1971, 1615)

To deal with an unruly, and potentially violent, demonstration, the Public Order Act gave the police the powers of dispersal, in what Barry York (1984: 64) has described as an updating of the old Riot Act legislation, an 18th century Act inherited from British law. Like the reading of the Riot Act, all the police officer needed to do to invoke the Public Order Act, and the police powers granted under the Act, was to declare:

In pursuance of the Public Order (Protection of Persons and Property) Act of the Commonwealth of Australia, I [name of police officer], being a Sergeant [or higher rank, as the case may be] in the [name of Police Force], direct all persons taking part in this assembly to disperse forthwith. Persons who fail to disperse may render themselves liable to the penalties provided by the Act. (Section 8 Part 2)

If the crowd did not disperse within 15 minutes, the police officer was allowed to ‘use such force, as he believes, on reasonable grounds, to be necessary for that purpose’, which was open to a variety of interpretations by those policing protests in the 1970s. It seems that the authorities intended to use the Public Order Act to establish the message that any form of unruliness from a demonstration would be met with considerable force by the police with the powers to arrest most disobedient demonstrators. However, the government was warned that this approach could be a slipper slope, as some protestors could ‘provoke’ a reaction by the police to highlight the ‘violence’ of the state/system. ASIO warned Nigel Bowen (1969: 7) that it was possible that ‘extremist groups will reach the conclusion that more violent action will be required in order to attract the maximum amount of publicity and compensate for an anticipated loss of support from the mass of students’.

The Public Order Act received the royal assent in early May 1971 and was used in several demonstrations that year. Amongst the most notorious uses of the Act were during the ‘Days of Rage’ in May 1971, when protestors conducted two days of protest, the first as a ‘sit-in’ outside the South African Embassy and the second against the Vietnam War, which involved several marches and occupations of public space within Canberra City Centre and the Parliamentary Zone. In clashes with the police, 24 people were arrested at the South African Embassy, including 19 arrested under the Public Order Act (Anonymous report 1971: 2) and 190 were arrested on the second day, with the Canberra Times (22 May, 1971) reporting that ‘more than twice the number arrested at any previous demonstration’, with ‘two-thirds… charged with obstruction, and about one-third with failing to disperse, all under the new Public Order (Protection of Persons and Property) Act.’ In an internal memo of the Commonwealth Police (1971), written in July of the same year,  it was argued that the Act had ‘had a sobering effect on demonstrators in the A.C.T.’ and claimed that ‘[m]ore than one local identity has voiced his concern over the thought of being prosecuted under this legislation.’

However massive use of the Public Order Act, as seen in 1971, fell as the level of protest activity in the ACT ebbed and flowed throughout the 1970s.

Number of demonstrations in ACT, 1970-1979

Period Number of demonstrations
July 1970 – June 1971 49
July 1971 – June 1972 51
July 1972 – June 1973 45
July 1973 – June 1974 36
July 1974 – June 1975 n/a
July 1975 – June 1976 n/a
July 1976 – June 1977 78
July 1977 – June 1978 35
July 1978 – June 1979 N/a
Oct 1979 – Dec 1979 15

(Source: Human Rights Commission 1985: 207)

After the initial flurry of protest in Canberra after the Governor-General’s decision to dissolve the Whitlam Government and call for fresh elections, the Government believed, and were informed by the police and ASIO, that the much larger threats to Parliament and security in Canberra were from terrorists, rather than the left-wing groups and social movements, which had grown exponentially during the late 1960s and early 1970s and were responsible for the majority of demonstrations in the ACT. ASIO (1978: 3-4) still warned that Parliament House would still be focus of attention for ‘revolutionary groups’ as of its ‘symbolic political value’, but viewed the threat from the leftist groups as negligible, stating that ‘[f]orewarning and the opportunity for appropriate briefing of police is therefore likely to be available before demonstrations of significant size [can] occur outside Parliament House.’ Instead the threat of political violence was thought to come from anti-Yugoslav terror groups from the Croatian diaspora community and the Ananda Marga. In the review of national security by Justice Hope (1979: 312), ordered by Lionel Murphy in 1973 after the Commonwealth Police raided the offices of ASIO in regards to links between Australian security services and these terrorist groups, it was shown that the number of incidents of anti-Yugoslavia political violence and/or vandalism was 67 incidents between 1963 and 1978, the second highest behind anti-conscription incidents (91 in the same time period) and far higher than anti-apartheid incidents (28 overall, with 26 occurring in 1971).

In an epilogue to the developments in the policing of protest in the ACT in the 1970s, in 1982, the Fraser Government passed a Public Assemblies Ordinance for the Australian Capital Territory to prevent ‘Women Against Rape’ demonstrations from interrupting ANZAC Day proceedings (Human Rights Commission 1985: 11-19). The Public Assemblies Ordinance 1982 (ACT) is quite unique in Australian legislation as it recognised ‘the right of peaceful assembly’; however it also put many limitations on what was considered ‘authorised public assembly’ and required potential demonstrations to seek permission to demonstrate on ‘a day of national, historic, religious or social significance or solemnity to or for the people of Australia, the community in the Territory or a section of that community’ (Public Assemblies Ordinance 1982 (ACT), s. 3-5). Labor MPs, such as Tom Uren, believed that the Ordinance ‘constitute[d] a serious infringement of civil liberties’ (Hansard, House of Representatives Parliamentary Debates, 23 August, 1983, 116) and the Ordinance was repealed by the first Hawke Government in 1983. It was also noted that the Ordinance only pertained to the ACT and the recognition of the right to peaceful assembly could be over-ridden by the Commonwealth legislation of the Public Order Act.

Since the introduction of the Public Order Act, over 40 years ago, successive governments (both Liberal and Labor) have debated whether to introduce further laws to deal with demonstrations and issues of public order, but as other scholars, such as Janis Bailey and Kurt Iveson, David Baker and Iain Macintyre, have shown, this has often been through other means, rather than the implementation of the Public Order Act* or other pieces of new legislation. At the same time, the Public Order Act has been used only sparingly over the last decade as the authorities have engaged in other forms of policing and negotiation to cope with demonstrations in Canberra. Although it was considered to be extensive in scope and in the powers it bestowed, the Public Order (Protection of Persons and Property) Act 1971 was actually an over-blown legislative response to an over-estimated threat that seemed to dominate the concerns of a conservative government on its last legs, and in practice, has been rather limited in its use.

*According to the Commonwealth Director of Public Prosecutions, 60 summary charges were made under the Public Order Act in 1999-2000 and this number has wavered between 49 charges in 2002-03 and 1 charge in 2005-06. In 2010-11, only 12 summary charges against the Act were reported. (CDPP, 2000: 23; 2001: 19; 2002: 20; 2003: 27; 2004: 30; 2005: 37; 2006: 71; 2007: 70; 2009: 108; 2010: 94; 2011: 131)
The research undertaken for this project was conducted while I was an Australian Prime Ministers Centre Fellow with the Museum of Australian Democracy at Old Parliament House in Canberra, during January 2010.

Another little piece I have written on my research into this topic can be found here.

REFERENCES

Anonymous report (1971) ‘Public Order (Protection of Persons and Property) Act, 1971: Application at Canberra for demonstrations held on Wednesday, 19th May 1971, and Friday, 21st May, 1971’, A432 1970/5108 Part 4, NAA

ASIO (1978) ‘ASIO Assessment of the Threat to Parliament House’, Paper 714, 1978 Cabinet Series, NAA

Bowen, N (1969) Nigel Bowen, ‘Public Order’, Cabinet submission draft, April, A432 1970/5108 Part 1, NAA

Cabinet document (n.d.) ‘Public Order’, A432 1970/5108 Part 2, NAA

Commonwealth Police (1971) ‘CPF memo’, 15 July, A6122 2116, NAA

Commonwealth Director of Public Prosecutions (2000 – 2011) CDPP Annual Reports 1999-2000 – 2010-2011 (CDPP: Canberra)

Douglas, R (2004) Dealing with Demonstrations: The Law of Public Protest and its Enforcement (Federation Press: Leichhardt)

Draft legislation (1970) ‘Protection from Unlawful Demonstrations Bill’, draft legislation, 24 September, A2863 1971/26, NAA

Hiller, A (1973) ‘Law and Order and the Public Order Act 1971’, Australian Law Journal, 47 (May)

Hope, J (1979) Protective Security Review Report: Unclassified Version (Australian Government Publishing House: Canberra)

Hughes, T (1970a) ‘Public Order (Protection of Persons and Property) Bill: General Note on Civil Liberties’, A432 1970/5108 Part 4, NAA

Hughes, T (1970b) ‘Public Order: Supplementary Paper by the Attorney-General’, Cabinet submission no. 507, 2 September, A432 1970/5108 Part 2, NAA

Human Rights Commission (1985) The Right of Peaceful Assembly in the ACT, Occasional Paper no. 8 (Australian Government Publishing Service: Canberra)

Saunders, M (1982) ‘“Law and Order” and the Anti-Vietnam, War Movement: 1965-72’, Australian Journal of Politics and History, 28/3, pp. 367-379

York, B (1984) ‘Police, Students and Dissent: Melbourne, 1966-1972’, Journal of Australian Studies, 14 (May) pp. 58-77

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