Letter to vice chancellors of universities with protest encampments

15 May 2024

Dear Vice Chancellor,

We write in respect to the ongoing student protest encampments that have been established at your and other university campuses over recent weeks.

We acknowledge the pressures that your administration is currently facing regarding the balancing of the rights to protest, freedom of speech, academic liberty, and freedoms from discrimination and harassment on campus.

We also affirm your office's stated support for freedom of expression as a foundational principle of university governance and your university’s support for freedom of speech, academic freedom and the right to assemble.

We have consulted with legal agencies and human rights expertise across the country and would like to bring to your attention the following points and resources.


Protection of the rights to speech, protest and information

In April 2024 member organisations of the International Network of Civil Liberties Organizations (INCLO) issued an important statement on the protection of the rights to speech, protest and information in the fight against antisemitism and islamophobia. It said that governments must uphold their duty to protect these rights and ensure that protests are not met with violence or undue restrictions.

The INCLO statement argued that by prohibiting manifestations of solidarity, via bans or restrictions placed on pro-Palestinian protests, events and activities, states are contributing to building tensions and hatred around this conflict. UN human rights experts have reinforced that the rights to express solidarity with calls for peace and human rights are protected by international law.

We stress the point made in that statement that, in moments of grave social crisis, outlets for people to express their emotions are key. Protest is therefore a vital safety valve giving people an outlet to express their concerns. By responding to protests in ways which unlawfully oppress or discriminate, states and institutions only increase hostility and hinder the resolution of religious, ethnic and other social conflicts.

We urge your office not to unduly restrict participation, debate or critical commentary about the conflict. As recently affirmed by Associate Professor of Law Maria O’Sullivan:

“In my view, it would be unlawful under human rights law to close down an entire protest simply on the basis [of the language being used by protestors].

Human rights law requires limitations on protests to be reasonable and proportionate. Removing entire encampments could be considered a disproportionate response in this case.”

We do not condone any instances of conduct that do amount to racial vilification and the Racial Discrimination Act provides a pathway for addressing any such instances. Remedies under the RDA focus on conciliation and do not contemplate police intervention.


Guidance on article 21 rights to assemble

The United Nations Human Rights Committees (UNHRC)’ General comment No. 37 (2020) on the right of peaceful assembly (article 21 of the International Covenant on Civil and Political Rights (ICCPR)) provides detailed summaries of international jurisprudence on the obligations of state parties in regard to the protection and observation of article 21 rights. Although obligations under the ICCPR pertain to state authorities, the principles contain important guidance for university administrations when considering actions that might restrict or infringe upon the rights to assemble. Furthermore, Principle 10 of the Principles of the Propre Management of Peaceful Assemblies affirms that businesses have a responsibility to uphold human rights standards when responding to peaceful assemblies.

In particular we note that General Comment #37 states that if individuals engage in violent behaviour during a protest, police must differentiate between those individuals and other participants; the right to protest of those not involved in violence must not be affected ie: Individuals are responsible for their own behaviour, not the collective.

We urge your office to take this principle into consideration in relation to actions or behaviours of protesters involved in the encampments. Further, General Comment No. 37 also asserts that the violent behaviour of counter-protesters does not mean that a protest can be labelled “violent” or “non-peaceful”.

The Human Rights Charters legislated in Victoria, ACT and Queensland are drawn directly from the ICCPR and serve to place its core human rights protections within state legislation. Authoritative interpretations and guidance provided by the United Nations Human Rights Committee, which is responsible for oversight of the implementation of the civil and political rights set out in the ICCPR, is therefore critical in the local interpretation of the Charters by public authorities.
As General comment No. 37 (2020) provides guidance on the responsibilities of states in ensuring the rights set out in the ICCPR, it should guide the interpretation of obligations of the state Human Rights Charters.

Access by independent legal observers

Journalists, human rights defenders and independent observers are critical for the enjoyment of the right to protest. Their roles are recognised by the UNHRC and protected by the ICCPR because they are engaged in the promotion and defence of human rights, by documenting, reporting, and seeking information on potential violations.

In light of this we encourage your administration to fully support the right of independent legal observers to access university grounds to observe the policing in relation to these protest encampments.

We request that legal observers not be prevented or limited in exercising their functions, including when they are monitoring the actions of police and campus security officers, including at points when trespass notices or directions to leave have been issued to people involved in the protest. The independent monitoring of police at these points is a critical element of human rights protection.

Conclusion

We note that the principles of respecting independent legal observers, differentiating between the behaviour of individual protestors and the collective and upholding the right to protest have been included in the Declaration of Our Right to Protest (2023), a document that has been endorsed by over 130 civil society organisations including the Australian Council of Social Services, Greenpeace Australia, the Human Rights Law Centre and Amnesty International Australia.

We call on your administration to exercise your authority in a way that respects these fundamental legal principles, including refraining from inappropriate suspensions of students, penalties on protestors or police intervention.

We thank you for your time and consideration of these matters.


Yours faithfully,