Something must be said concerning the illusion of “free speech” in this country and specifically about where free speech intersects not only with reality but also with the concept of quiet enjoyment.
We must also consider where these competing rights might overlap and how they can be inconsistent with what happens in the wider world. Professional sport does not exist in a vacuum.
Specifically, is it reasonable that during the first Test match in Perth, a banner erected by spectators, plainly and politely, that bore only the words “ALL LIVES ARE EQUAL FREEDOM IS A HUMAN RIGHT” was forcibly removed by venue security? Or, instead, should we be troubled and affronted that such action would be taken in 2023 in Australia?
These are serious questions. The Boxing Day Test starts next Tuesday and the world will be watching to see what happens next.
And it’s not just a “cricket thing” either – the Australian Open starts in three weeks, which has in the past enticed the Putin sympathisers from the shadows.
The starting point, of course, is that when you buy a ticket to an event, things are more complex than what’s explained by the vendor or on Ticketek’s app. I’ll bet none of you has ever trawled through the MCG’s “conditions of entry” let alone Cricket Australia’s “ticket and entry conditions”. Each instrument constitutes many layers of added complexity to activities which once were fun. They are both nanny-statism writ massive.
Illustration:Credit: Simon Letch
It might surprise you, however – as it did me – to learn the MCG’s rules run for just a polite couple of pages. There’s nothing directly saying you can’t bring into the ground and drape over the bannister a king-sized bedsheet spray-painted with the words “ALL LIVES ARE EQUAL FREEDOM IS A HUMAN RIGHT”.
The only rule of potential relevance is that patrons attending the MCG can’t bring in any item that has the potential to cause a public nuisance.
Now the term “public nuisance” is a legal cause of action in tort. And, by necessity, in order for a claim in public nuisance to succeed a defendant – such as the person who made the banner – must (a) be perceived to have acted in a disorderly, threatening or offensive manner; (b) cause substantial annoyance; and (c) cause particular harm to specific plaintiffs, beyond that suffered by the public at large.
It’d be an unreasonable interpretation of the MCG’s rules to conclude that a banner, displaying the words “ALL LIVES ARE EQUAL FREEDOM IS A HUMAN RIGHT” would have any potential to cause any public nuisance.
To establish justification for removing the banner, one must then turn to Cricket Australia’s conditions, which are way more draconian. Rule 23 (a) mandates that spectators can’t wear or display any signage or logo that is political, religious, negatively motivated or offensive. Rule 24 operates in a manner by which spectators agree to not engage in any conduct (including displaying banners) that are likely to offend, insult, humiliate, intimidate, threaten, disparage or vilify.
Rule 25 (a) (which must be a rule very selectively enforced) then says that nobody can display ANY BANNER, pretty much anywhere in the same postcode as a match venue, without Cricket Australia’s prior written consent. Finally, rule 50 is the clincher, in that it provides that the consequences of contravening any of the rules of entry include expulsion from the ground, ticket confiscation, bans in relation to future matches and litigation. Heavy-handed, much?
Now the core question of course, is one of if, and if so then how, the displaying of a this banner emblazoned with the words ″ALL LIVES ARE EQUAL FREEDOM IS A HUMAN RIGHT″ constitutes a statement that is (a) political, (b) religious, (c) negatively motivated and/or (d) offensive. I’d venture to say the words don’t qualify for the affixing of any such labels, and that the words are a statement of blatant and uncompromised fact. OK, the words were painted in the colours of the Palestine flag, but do you think it would have been any different if they were in black only?
Moreover, would the displaying of a banner with those words be likely to offend, insult or humiliate any other human being? Hardly, but that’s a matter for you, I guess.
Professional sport rightly spun itself into a frenzy after George Floyd’s murder in Minnesota in May 2020. Black Lives Matter protests did, for a time, become a de rigueur pre-contest ceremony for many sports. On this point, I do struggle in identifying any important distinguishments between that movement and the unfurling of a banner citing that “ALL LIVES ARE EQUAL” and that “FREEDOM IS A HUMAN RIGHT”.
Cricket Australia’s approach to removing banners shouldn’t be blindly accepted or left unscrutinised. The sting in the tail, however, for the Boxing Day Test at least, is this: Victoria as a jurisdiction is unique in that the Parliament has enacted special legislation – to wit, the Charter of Human Rights and Responsibilities Act 2006, which operates as a sort-of charter of human rights for the state.
A pro-Palestine banner is removed by security in PerthCredit: AAP
Section 15(2) of that Act enshrines in law in Victoria that every person has the right of freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds by various means, including in writing, in print, by way of art, and in other mediums selected by the person.
Section 15(3) is the counterbalance, in that it provisions that special duties and responsibilities attach to this right of freedom of expression, and that lawful restrictions can be imposed, but only to the extent reasonably necessary to respect the rights of other people; and to safeguard national security, public order and public morality.
Ask yourself the question. Is it reasonable and necessary, to prohibit the display of a banner at a sporting event that says only “ALL LIVES ARE EQUAL FREEDOM IS A HUMAN RIGHT”? Is the displaying of that banner at all likely to infringe on the human rights of any section of society? Is the forced removal of such a banner necessary to protect national security, or public order?
If the answer to those questions is in the negative, it’s quite possibly the case that CA has a legal problem that nobody’s quite thought of. CA has declared its “no banner” edict will be in force come Boxing Day. However, it’s arguable that its heavy-handed zeal might contravene Victoria’s legislation, protecting certain inalienable human rights in that state.
What exactly would prevent a person who’s bought a ticket to the first day of the Boxing Day Test, approaching the Supreme Court of Victoria either today or tomorrow (presumably the Duty Judge would be aggrieved, if a plaintiff sought to interrupt Christmas lunch)? Cricket Australia has declared its hand – there’s no doubt how it’ll approach things next Tuesday.
Why couldn’t those ticket-holders seek declaratory relief permitting the display of a banner, tastefully and respectfully saying the words “ALL LIVES ARE EQUAL FREEDOM IS A HUMAN RIGHT”, on the basis that to tear the banner down would be contrary to the human rights laws of Victoria?
And what would prevent those plaintiffs seeking to injunct CA and the MCG’s army of high-viz security types, restraining them from ripping the banner down just because CA’s terms of entry say they can? At the very least, it would create some interest in what otherwise might be another benign, one-sided on-field contest.
Venue security should stick to the confiscation of evil contraband, beer snakes and beach balls because, of course, the world has been a much safer place since those policies were enacted and humanity is so very thankful.
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