Activists demonstrate outside Max Brenner’s in Melbourne, 29 July 2011.
(Corey Oakley / Flickr)
July 27, 2012
Sixteen Palestine solidarity activists arrested during a pro-boycott demonstration have been cleared of the charges of "trespassing" and "besetting" by an Australian court. The 23 July ruling has been hailed as a "landmark victory" for freedom of expression and for the campaign to defend the rights of Palestinians ("'Landmark victory’ for Max Brenner protests," ABC News, 23 July 2012).
The 57-page decision by Magistrate Simon Garnett brought an end to a year-long struggle by the protesters.
The activists were among 19 people arrested on 1 July 2011, at a peaceful demonstration outside the Max Brenner chocolate shop in Queen Victoria Square, which is located within the Queen Victoria shopping precinct in central Melbourne. The protest was organized by the Coalition Against Israeli Apartheid and sought to highlight the complicity of the company Max Brenner Chocolate and its parent company, the Strauss Group, in Israel’s occupation and apartheid policies. The action was the fourth protest against the company since December 2010.
The Strauss Group is one of Israel’s largest food and beverage companies. On its website, the Strauss Group has highlighted its support for the Israeli military, providing care packages, books, games and sports and recreational equipment for soldiers. In particular, Strauss has boasted of its support for the Golani and Givati brigades, who have a long record of human rights abuses against Palestinians and in Lebanon.
Both brigades were heavily involved in Operation Cast Lead, Israel’s 2008-09 assault on the Gaza Strip, which resulted in the killing of approximately 1,400 Palestinians, including approximately 350 children. Strauss initially removed information about its support for the two brigades from its English language website but information about the company’s support for both brigades remained on their Hebrew language site for some time before it too was removed.
The 16 activists were charged with offenses under the Summary Offences Act (1966). All of the activists were alleged to have "wilfully and without lawful authority beset premises" and to have engaged in "wilful trespass," while a small number of those arrested were also accused of a number of other charges, including "hindering," "resisting" and "assault."
Video evidence contradicts police testimony
The police’s case against the activists was contested over 17 days beginning on 1 May this year. Evidence was given by 26 police officers and four civilians, including the manager of Max Brenner and the manager of the Queen Victoria shopping center and two other staff members.
Almost five hours of video footage of the demonstration and arrests, shot by protesters, police and closed-circuit security cameras, were viewed by the court. However, in numerous instances, the sworn statements and evidence given by police officers was in stark contrast to the video evidence shown.
Witnesses for the police case were subject to intense cross-examination by lawyers defending the 16 activists — in particular about the discussions which took place between police and QV management prior to the demonstration last year. At the end of the hearing, the lawyers acting for the protesters submitted a "no-case" to answer, asking Garnett to dismiss all charges.
Garnett upheld the no-case submissions in all 16 cases relating to the main charges. A number of the other charges are still being contested.
In his ruling, Garnett stated that Queen Victoria Square was a public space and that protesters had a lawful right to be there and thus were not engaged in "wilful trespass." Garnett ruled that because the shopping center had a contract with Melbourne City Council which requires it to keep the square and laneways located within the shopping precinct open to the public 24 hours a day, seven days a week, management "did not have the legal authority to apply conditions on members of the public who wished to enter QV or the laneways."
Garnett also ruled that "the conduct of the protesters did not promote violence," and there was no evidence to suggest that the protesters had any criminal intent. According to Garnett, "the protesters had a lawful right to enter QV Square without restriction. They had a lawful right to conduct the political demonstration."
In dismissing the "besetting" charge (obstructing or impeding the right to leave a premise), Garnett noted, "In my opinion, it cannot be said that it was the actions of the protesters that caused any obstruction, hindering or impediment to members of the public from entering Max Brenner’s, if they chose to do so."
Instead, he said it was "the establishment of the police lines" at the front of Max Brenner’s which extend across the square and nearby laneways "that caused the obstruction, hindrance and impediment to members of the public." Garnett found there was no evidence that the protestors had any "hostile intent." The protestors had engaged peacefully with the public who had been passing by or who were sitting in the Chocolate Bar.
While Garnett ruled that the Victorian Police did not act illegally in arresting the activists, he noted that some of the police actions had been heavy-handed and that "unreasonable force" had been used in some arrests. Video footage of the arrests viewed by the court had shown that one of the arrested protestors was put in a chokehold and lost consciousness, while several other protestors were dragged by their feet across the square and one of the arrested protestors had been put in a headlock.
Robert Stary, a lawyer representing a number of the activists, told journalists that the protesters had been "completely exonerated" by the ruling.
"The judge ruled that there was nothing unlawful engaged in in the activity of the protesters; there was no breach of the peace, they were not involved in any other conduct in the protest itself that would constitute a disturbance [and] in a public place; they had the right to express themselves in that manner," he said.
Stary noted that the ruling has "very, very wide ramifications," particularly in relation to the right to engage in political and industrial protests in public spaces.
"Firstly, police should not get involved in political protest or industrial disputes. They should not be criminalized," said Stary. "People should be entitled to express their views, if they oppose the occupation of the Gaza Strip or the West Bank; they should be entitled to say so."
Decision to arrest made before demonstration
The arrested activists noted in the immediate aftermath of their arrests in 2011 that the police attack on the peaceful action in Melbourne not only highlighted the increasing attacks on civil liberties and freedom of speech by the state government in Victoria, but that it also highlighted the increasing attempts to criminalize Palestine solidarity activism both in Australia and internationally.
This was borne out by evidence given by the Victorian police during a bail variation hearing on 27 July 2011. During the hearing, the Victorian Police confirmed that the decision to arrest activists was made before the demonstration and that this decision had been made after discussion with Zionist organizations, the Victorian government, QV Center management and the management of Max Brenner. The Victorian Police also confirmed that they had deliberately targeted activists who they believed to be leaders of the protest.
Reports in the Australian Jewish News also confirmed that in April 2011, the Jewish Community Council of Victoria had made representations to the Victorian police and had called on them "to stamp down harder on aggressive protesters" ("Police questioned as protests turn violent," 15 April 2011) .
Similar calls for government and police crackdowns on activists urging boycott, divestment and sanctions (BDS) against Israel were made in June 2011 in the New South Wales state parliament ("Police called to action on BDS," Australian Jewish News, 24 June 2011).
A month later, Vic Alhadeff, the chief executive of the NSW Jewish Board of Deputies confirmed that the various calls for police and government crackdowns on BDS activism was part of "a nationally coordinated strategy" developed in conjunction with the Israeli foreign ministry ("BDS: to protest or not to protest?", Australian Jewish News, 29 July 2011).
Smears in Murdoch media
Following the Melbourne court ruling, one of the arrested activists, Omar Hassan, told The Electronic Intifada that Garnett’s decision was a "triumph for free speech, in particular the right to campaign for Palestine."
Hassan noted that the magistrate’s ruling "cut against the lies of the Murdoch press, that we were violent, anti-Semitic and fanatical." He was referring to smears made against Palestine solidarity campaigners in media outlets owned by the tycoon Rupert Murdoch ("Prominent Australians fight anti-Semitism with hot chocolate," The Australian, 28 July 2011).
In the three months following the arrests the Murdoch press ran at least 16 articles on the Melbourne protests and Palestine solidarity activism in Australia, the majority of which were negative. Palestine solidarity campaigners were regularly denounced as "anti-Semitic" and compared to Nazis ("The campaign against the Max Brenner protesters," ABC, 22 August 2011).
Another protester, Louise O’Shea, told The Electronic Intifada that the dismissal of the charges against the demonstrators "shows that it is worth standing up for your rights against the police, government and corporations, as well as the pro-Israel lobby."
O’Shea pointed out that while the proceedings against the peaceful demonstrators were "an attempt to intimidate us from taking a stance in support of Palestine, what we went through is nothing compared to what the people in Palestine experience and have to deal with every day."
James Crafti, who was also one of the 16 defendants, told The Electronic Intifada that the court victory was significant because "Australia is one of an increasingly small number of countries who are still prepared to bend over backwards to support Israel and both major parties in Australia, at both state and federal levels, [and] have made it clear that they are prepared to use police force to repress people’s right to freedom of speech and to try and silence pro-Palestine solidarity campaigning."
Crafti, who is Jewish, noted that "while we were arrested for daring to stand up for Palestinian human rights, the Israeli state continues to carry out war crimes and human rights abuses against the Palestinian people and are not held to account for their occupation and apartheid practices."
"The fact that Israel and the companies that support these practices are not the ones on trial, is an injustice itself," he said. "When we start to see Israel on trial in the International Court of Justice and the companies that profit from Israel’s occupation [are] put on trial, that is when we will see real justice emerging."
Kim Bullimore has lived and worked in the West Bank, is a member of the Melbourne Coalition Against Israeli Apartheid and was a co-organizer of the first national Australian BDS conference, which took place in 2010. She has a blog at livefromoccupiedpalestine.blogspot.com.