ANALYSIS: By Wendy Bacon

Many who witnessed the horrific police violence in Sydney’s CBS on the evening of February 9 say they had never seen anything like it before.

After a week of broadcasts of police “kettling”, viciously assaulting and pepper spraying peaceful protesters, the NSW Law Enforcement Conduct Commission (LECC) announced an independent investigation into the police conduct.

It will examine the policing operation as well as individual cases of unlawful policing.

One of the matters LECC should investigate is which politicians and senior police were involved in organising a massive increase in available police powers shortly before Herzog’s arrival, and what instructions were given to police on the ground about those powers.

The legislation that was used is a little-known act called the Major Events Act 2009, under which the NSW Minister for Tourism, Stephen Kamper, approved a new regulation which transformed Herzog’s visit into a “major event”.

Major Events Act
The objects of the Act are to bring “benefits” to spectators and enhance NSW’s reputation for holding events. The Act grants special powers to plan and regulate major events, including shutting off access to areas, searching people, and using “reasonable force” to compel citizens to comply with directions.

It relieves the state of most liability for damage caused in the exercise of these powers.

The powers have the potential to severely impact the exercise of citizens’ political rights, which is probably why the Act includes a section that a political protest must not be declared a major event. The Act is designed to cover events of a “sporting, cultural or other nature”.

These police powers triggered the lack of restraint witnessed last Monday. This does not mean that police actions were lawful, but that these were the powers under which they thought they were acting.

As one constable who was part of two lines blocking protesters from entering Town Hall Square said when questioned, “I heard something about a major event.”

Court challenge failed
The new regulation was announced on Saturday, February 7, just 48 hours before Herzog arrived.

The Palestinian Action Group (PAG), represented by Hanna Legal, had 24 hours to challenge the regulation.

PAG’s case was that the regulation was “unreasonable”, “disproportionate” and was created for an improper purpose of suppressing protests. Within an hour of NSW Supreme Court Justice Robertson Wright dismissing the challenge, NSW Police were already using the Major Event powers.

Before dismissing the Palestinian Action Group challenge on Monday, Justice Wright said that he found both sides’ arguments persuasive and that it was difficult to decide. But there was no hint of uncertainty in his judgment, which adopted almost all of the NSW government’s case.

The judge, who is near retirement, was described on his appointment as “a soldier, a historian and a gentleman”. His reasons were not published until two days later.

By that time, protesters had been violently flung to the ground while praying, and hundreds had been trapped and assaulted in Town Hall Square. People were blinded or choked with pepper spray. Others had been hospitalised with broken limbs or bleeding wounds.

Journalist and filmmaker James Ricketson, 76, had been injured in an assault by six officers and held in a cell for five hours without water before being released without charge. Videos of NSW police punching people had gone viral around the world.

Premier Chris Minns, Minister for Police Yasmin Catley and Police Commissioner Mal Lanyon defended the police actions as “reasonable” in the circumstances.

Not a political event?
Few would disagree that Herzog’s visit to Australia was the key political event of last week. Yet key to the judgment was Wright’s determination that the Herzog visit wasn’t.

Before he arrived, Herzog defined the purpose of his visit as rebuilding Australia’s relationship with Israel. He brought a top-level delegation from Jewish national institutions with him. This was in evidence before the judge.

Also in evidence was the fact that Chris Sidoti, who had sat on a UN Commission of Inquiry that found Israel was committing genocide in Gaza and that Herzog had incited it, had called for his arrest in Australia.

But Justice Wright found that politics was not a “defining” or “dominant” purpose for the visit and that it was a “cultural event”.

Herzog’s tour did have cultural aspects, such as a trip to Bondi to meet victims of the December massacre and visits to a synagogue and school. But Herzog and Zionist leaders also consistently stressed that an important purpose was to encourage the Australian government to stand with Israel.

The act has never been used for a foreign dignitary visit before or at such short notice.

Until last week, no one would have imagined that this law would be used to enable police violence to be unleashed on peaceful citizens protesting against a controversial visit by a foreign head of state.

But a bright idea by the NSW Police changed this.

Police concerns
As public opposition to Herzog’s visit grew and likewise support for a peaceful march from Town Hall to Parliament House during Herzog’s visit, senior police became concerned that the new anti-protest law passed on December 23 might not be sufficient to stop a big march in Sydney.

The ban over most of the CBD and the Eastern Suburbs was extended on February 2. On the same day, according to evidence tendered in last week’s court case, NSW police advised the government that the Major Events Act, with its extensive powers, could help avoid any risks to Herzog during the visit, advising “Police will be empowered to address any behaviour which poses a security threat or risk to the Presidential Visit.”

It is worth noting that nothing was ever planned at the protest related to a security threat or risk to Herzog. That was also in evidence.

The Cabinet office then prepared a minute setting out arguments, including ones for and against protests, for the Minister for Tourism Kamper to consider before making his decision. He was then told to sign but not date his recommendation, which was agreed to by the NSW Executive Council and gazetted on Friday, February 6.

In arguing that the regulation had been declared for the improper purpose of suppressing protests, PAG’s barrister Felicity Graham relied on the timing of events and material in the Cabinet minute. She also relied on Premier Chris Minns’ media conference on Saturday, February 7, in which he announced the “Major Event”.

Minns talked about 3500 police, fines of more than $5500 for disobeying directions and needing to prevent “the clash of mourners and protesters”. The latter seemed to be an idea of Minns’ own making because there was never any plan for protesters to be near mourners.

Suppressing protests to keep us safe
Justice Wright agreed that it would be improper for the purpose of the regulation to be the suppression of protests. But he found that protests could be suppressed if it was consistent with the goal of facilitating “safety and crowd control” and that there was no intention on the part of the Minister or any other relevant person to “adversely affect any protest or right to protest except to the extent reasonably appropriate to facilitate the conduct of the visit”.

He agreed that there was no evidence that the protest would interfere with the President, but found that it did not matter.

When PAG’s barrister Felicity Graham argued that the powers in the Regulation could lead to unjust treatment of citizens, even those who were not protesters, the judge appeared mildly exasperated.

He assumed that officers act “reasonably”.

That turned out to be wildly optimistic. If the purpose was to keep us all safe, it had the opposite effect.

PAG is considering an appeal. The event is over, but there are many potential cases against the police, and the Act restricts liability and compensation. It might also be possible to raise implications of the Major Events Act on “freedom of expression”, which was not attempted in the short one-day hearing.

A protest was held near Parliament on Friday evening with a speech delivered from her hospital bed by a woman who suffered broken vertebrae: “We will not be silent. He [MInns] needs to take full responsibility for this and the laws that were passed. The police who did it need to take responsibility.”

If the Major Events Act can validly be used in protests, it needs reform. Imagine if the UN decided to hold a major climate conference backed by fossil fuel interests in Sydney? The whole city could be shut down to protesters.

Accountability for this disaster must start at the very top and run through to the police on the ground.

Wendy Bacon is an Australian investigative journalist who was professor of journalism at the University of Technology Sydney (UTS). She worked for Fairfax, Channel Nine and SBS and has published in The Guardian, New Matilda, City Hub and Overland. She has a long history in promoting independent and alternative journalism. She is a long-term supporter of a peaceful BDS movement and the Greens. This article was first published by Michael West Media and is republished with permission.

Article by AsiaPacificReport.nz

Following an open letter by Auckland University academics speaking out in support of their students’ right to protest against the genocidal Israeli war on Gaza, a group of academics at Otago University have today also called on New Zealand academic institutions to “repair colonial violence” and end divestment from any economic ties with Israel.

“In order to honour commitments to decolonisation and human rights, universities must act now,” says the open letter signed by more than 165 academics.

“As a te Tiriti-led university in Aotearoa New Zealand”, the academic staff said they were calling for the University of Otago to immediately:

1. Endorse the Boycott, Divestment and Sanctions (BDS) movement and disclose and divest from any economic ties to the apartheid state of Israel,
2. Condemn those universities [that] have called on police to violently remove protesters from their campuses, and
3. Call for the protection of students’ rights to protest and assemble and endorse the aims of those protests — the immediate demand of ceasefire and longer term demands to end the apartheid, violence, and illegal occupations under which Palestinians continue to suffer.

The full letter states:

“Kia ora koutou,

“As we write this letter, universities across the United States have become battlegrounds. University administrators are sanctioning and encouraging violence against students and faculty members as they protest the genocidal violence in Gaza.

“Over 35,000 Palestinians have been killed—of those deaths, it is estimated that more than 13,000 of them have been children. Israel has destroyed all 12 universities in Gaza and targeted staff and students at those universities.

“The recent discovery of mass graves in Gaza, the hands and feet of many victims bound, has shocked the conscience of the world.

“In keeping with a long tradition of campus protest, students and staff are demanding their universities stop contributing to genocidal violence.

Student bodies brutalised
“In return, their bodies have been brutalised, their own universities endorsing their arrests. Universities should, at the very least, offer crucial spaces for protest, debate, and working through collective responses to urgent social issues. Instead, administrators have called in militarised police forces, fully decked out in anti-riot regalia to repress student protests.

“The results have been predictable: Professors and students have been arrested en masse and physically assaulted (beaten, pepper-sprayed, shot with rubber bullets, knocked unconscious, choked, and dragged limp across university lawns, their hands cuffed behind them).

“We at the University of Otago, an institution committed to acknowledging, confronting, and seeking to repair colonial violence, are part of a society that extends far beyond the borders of Aotearoa New Zealand.

“Acknowledging our history, including that history within its students’ experiences and working practices, compels us as a collective to call out and condemn colonial violence as and when we see it. It is not at all surprising that many of the protests in Aotearoa New Zealand calling for a ceasefire in Gaza have been organised and led by Māori alongside Palestinian activists.

“Most recently, the Ngāti Kahungunu iwi have come out against the genocide, with one of the rally organisers, Te Ōtane Huata, stating “Tino rangatiratanga to me isn’t only self-determination of our people, it is also collective liberation.”

“If it is to mean anything to be a te Tiriti-led university here in Aotearoa New Zealand, we must include acknowledgment that the history of Aotearoa New Zealand has been marked by consistent and egregious violations of that very treaty, and that such violations are indelibly part of settler colonialism.

“Violent expropriation, cultural annihilation, and suppression of resistance have been the hallmarks of this project.

Decolonisation and human rights
“In order to honour commitments to decolonisation and human rights, universities must act now. We thus call for the University of Otago to immediately:

“1. Endorse the Boycott, Divestment and Sanctions (BDS) movement and disclose and divest from any economic ties to the apartheid state of Israel,
“2. Condemn those universities who have called on police to violently remove protesters from their campuses,
“3. Call for the protection of students’ rights to protest and assemble and endorse the aims of those protests – the immediate demand of ceasefire and longer term demands to end the apartheid, violence, and illegal occupations under which Palestinians continue to suffer.

“In other words, the University must call for a liberated Palestinian state if it is to conceptualise itself as a university that seeks to confront its own settler-colonial foundations.

“The above position aligns with the named values of our universities here in Aotearoa New Zealand. It is our duty that we make these demands, particularly as Palestinians have seen the systematic destruction of their universities and educational infrastructure while Palestinian students of our universities have witnessed their families and friends targeted by the Israeli government.

“If the University of Otago wants to authentically position itself as an institution that takes seriously its role as a critic and conscience of society and acknowledges the importance of coming to grips with ongoing settler-colonial violence, it should take these demands seriously.

“We further support the Open Letter to Vice-Chancellor Dawn Freshwater from Auckland University Staff in Solidarity with Students Protesting for Palestine.”

In solidarity,
Dr Peyton Bond (Teaching Fellow, Sociology, Gender Studies and Criminology)
Dr Simon Barber (Lecturer in Sociology)
Rachel Anna Billington (PhD candidate, Politics)
Dr Neil Vallelly (Lecturer in Sociology)
Erin Silver (PhD candidate, Sociology)
Professor Richard Jackson (Leading Thinker Chair in Peace and Conflict Studies)
Dr Lynley Edmeades (Lecturer in English)
Dr Olivier Jutel (Lecturer in Media, Film and Communication)
Lydia Le Gros (PhD candidate & Assistant Research Fellow, Public Health)
Dr Abbi Virens (Postdoctoral Fellow, Centre for Sustainability)
Sonja Bohn (PhD candidate, Sociology)
Joshua James (PhD Candidate, Gender Studies)
Sophie van der Linden (Postgrad Student, Bioethics)
Dr Fairleigh Evelyn Gilmour (Lecturer in Gender Studies, Criminology)
Brandon Johnstone (Administrator, TEU Otago Branch Committee Member)
Dr David Jenkins (Lecturer in Politics)
Jordan Dougherty (Masters student, Sociology)
Rosemary Overell (Senior Lecturer in Media, Film and Communication)
Dr Sebastiaan Bierema – (Research Fellow, Public Health)
Dr Sabrina Moro (Lecturer in Media, Film and Communication studies)
Rauhina Scott-Fyfe (Māori Archivist, Hocken Collections)
Dr Lena Tan (Senior Lecturer, International Relations & Politics)
Cassie Withey-Rila (Assistant Research Fellow, Otago Medical School)
Duncan Newman (Postgrad student, Management)

Article by AsiaPacificReport.nz

Fiji celebrated Constitution Day today virtually due to the ongoing civid-19 pandemic crisis, but many see the day as a hollow event not worth celebrating.

The national holiday marks the eighth year that the adoption of the controversial and contested 2013 Constitution by the Bainimarama government has been observed.

Among the critics this year is opposition National Federation Party (NFP) leader Professor Biman Prasad who says the document is “widely rejected” around the world while being “frequently ridiculed” at home in Fiji.

“Every year the FijiFirst Party desperately attempts to talk up the Constitution,” he declared in a statement today mocking the document.

“It even tries to suggest that it is one of the world’s best. Yet no serious constitutional lawyer believes so. Around the world it is widely rejected. In Fiji, it is frequently ridiculed.”

Prasad said the Constitution was nothing more than “a piece of paper if it is not honoured in spirit”.

“In Fiji, the Constitution does not belong to the people. The people live in fear of its institutions.”

Dr Prasad spelt out the reasons he believed caused this “national fear”:

• “Most people live in fear of the government. Many fear police assaults, which are now routine.
• “Other people fear being identified with the opposition, because they will be denied government benefits.
• “People who do not want to be vaccinated are denied welfare. Those who dissent with the government line on vaccinations are arrested.
• “Laws such as Bill 17 [introducing governance changes for indigenous land] are rammed through the Parliament without consultation. Even MPs who criticise these laws are detained and questioned by police.
• “Under our Constitution people have a right to health. Yet this government’s shocking handling of the covid-19 second wave has led to hundreds of deaths, both from the disease and from denied care. We have had some of the highest covid infection rates in the world.
• “Trade unions are refused the right to march to demand workers’ rights. And the government has not increased the already pitiful minimum wage for nearly five years. Even people with full-time work live in poverty.
• “Our Human Rights Commission is supposed to enforce and protect our constitutional rights. Yet it is widely ridiculed as a pro-government mouthpiece and a national joke.”

Dr Prasad lamented that this was the Constitution as Fiji lived it today – “the so-called ‘reality of the matter’.”

He pledged a National Federation Party government would abolish “Constitution Day” if elected in Fiji’s general election next year.

“We will instead create a Founders’ Day – a day to commemorate the great leaders of Fiji’s past, a reminder to all of us about those who led us in the lead-up to independence and helped to create our country.

“A NFP government will also reinstate Ratu Sukuna Day as a public holiday.

“We have been blessed with sound, wise leadership in the past. One day, good leadership will return to our country.”

Article by AsiaPacificReport.nz