Governance, Protest and Sport: An Australian Perspective



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Three pertinent themes can be drawn from these examples. First, Australian sport clearly has the capacity to accommodate and even embrace acts of individual or collective protest, provided the sanctity of the event remains unaffected by intentional disruption. Adherence to formal norms and customs of sport can facilitate the widespread communication of dissenting images or statements, even in the most comprehensive law and order climate. The strategic value of individual acts of protest and their emotive power, such as the symbolic ‘Black Power’ salute at the 1968 Mexico Olympic Games,[46] are a pertinent reminder of the importance of sport as a central communication device to global and domestic audiences regarding contentious governmental practices, discriminatory social policies or human rights violations. Nevertheless, the practical legacies of such actions remain the subject of further critical inquiry.

Second, and by logical extension, disorder and harm to persons and property have generally emerged where the aims of protest have been over-ambitious, or where law enforcement responses actively seek to suppress dissent, collective expression or fun. The Springbok tour provides evidence of the former trend, with protesters taking an unrealistic and uncompromising stance in attempting to stop each match from proceeding. Evidence from Bathurst highlights collective and violent resistance by biker sub-cultures in direct response to saturation policing methods aimed at sanitising various forms of recreational expression considered unlawful or anti-social. In both cases harmful disorder was a direct and inevitable legacy of these tactics, driving a communications wedge between law enforcers and protesters, undoubtedly linked to physical violence, counter-violence and a spiral of civil disorder and interpersonal harm. Similar themes are evident in conflicts between police and young men at Australian soccer matches. Popular media depictions feed into this process by over-exaggerating causal links between confrontational youthful ethnicities and violence at the expense of alternate explanations focusing on masculinity, problematic relations with law enforcement and state authority, and social dislocation.

Third, local, national and international political developments are intimately linked with Australian sport at a variety of levels. It is fruitless to consider the issue of protest without recourse to broader social, political and cultural developments affecting sport and everyday life. As demonstrated below, most of these issues promote adversarial and confrontational legal and enforcement philosophies of control, order maintenance and the suppression of protest under the criminal law. However, recent developments in corporate governance simply ignore or side-step any concept of the right to express dissenting views at major domestic and international entertainment fixtures, primarily to ensure the commercial sanctity of these popular events.

3 Criminal, Summary Offences Laws and Site-Specific Regulations

As a sub-branch of a rapidly emerging field of entertainment law, traditional federal and state legislative measures in and around sports stadia are largely devoted to consolidating pre-existing criminal justice procedures and practices. Historically, the bulk of responsibility for order maintenance at domestic and international sporting fixtures has involved the enforcement of state-based criminal and summary offences legislation with general application. Occasionally, these principles are supplemented by subordinate legislation or venue-specific by-laws reinforcing or duplicating the jurisdiction of state policing agencies in these largely private spheres with some modifications. At major events of national or international significance, federal laws dealing with the protection of Commonwealth landmarks or the preservation of national security supplement and override state provisions where the two conflict.[47] The following provides a brief overview of significant Victorian and New South Wales public order legislation and site-specific subordinate regulations, and outlines various effects of these provisions on public law enforcement activity in and around major sports stadia and related venues.[48]

Each Australian state has exclusive jurisdiction over non-federal criminal matters under the respective Crimes Acts and related Criminal Codes. The Victorian Crimes Act 1958 and the New South Wales Crimes Act 1900 outline a variety of offences relating to public disorder with general application in or around any public place.[49]

In Victoria the Unlawful Assemblies and Processions Act 1958 is the principle legislative enactment regulating public disorder alongside common law offences of riot, rout, common assault and unlawful assembly.[50] Section 5 prohibits riotous and tumultuous meetings disturbing the peace throughout the state and provides legislative indemnities for those who kill, hurt or maim suspects in attempting to quell such disturbances. Section 6 empowers a magistrate to disperse an unlawful assembly by reading ‘the Riot Act’ in the following terms: ‘Our Sovereign Lady the Queen doth strictly charge and command all manner of persons here assembled immediately to disperse themselves and peaceably depart to their own homes. God save the Queen.’ Failure to disperse within 15 minutes can lead to mandatory arrest without a warrant and summary prosecution or an indictable offence.[51] The provisions extend to all public meetings other than parliamentary proceedings and encompass behaviours including the carriage of weapons, the display of provocative banners, flags, emblems or symbols, and the chanting of provocative songs.[52] The Act also provides detailed requirements for the appointment of special constables through magisterial order,[53] and public inquiry and compensation procedures where damage to person and property occurs.[54] Adjunct provisions under the Crimes Act 1958 provide criminal penalties for damage to buildings and other property caused by riotous behaviour or forcible entry, and prohibit taking unlawful oaths to commit acts of treason or the formation of collective associations with seditious aims.[55]

Part IIIA of the New South Wales Crimes Act 1900 provides statutory definitions of riot and affray whilst abolishing their common law equivalents.[56] Under section 93B a riot consists of a gathering of 12 or more persons who use or threaten violence with a common purpose with the effect of causing a ‘person of reasonable firmness … to fear for his or her personal safety’. There are no qualifications stipulating the offence must occur in a public place,[57] and proof of intention to use violence, or awareness that one’s conduct may be violent is essential to establish the mental element of the crime.[58] A maximum penalty of ten years imprisonment may be imposed.[59]

Criminal laws also serve to consolidate state police powers regarding on-site enforcement of public order laws. Specific offences are designed to protect police members by prohibiting harmful activity aimed at resisting arrest and lawful apprehension,[60] either during the commission of a suspected offence or through the issue of a warrant or related paper procedure.[61] Bogus calls for police assistance are also covered under general public mischief prohibitions.[62]

An extensive range of secondary offences applies to protest activities threatening to cause harm to persons and property. These include prohibitions on the intentional or malicious destruction of property,[63] offences relating to transport facilities including airlines and railways,[64] issuing documents containing threats to cause harm,[65] common assault and causing grievous bodily harm,[66] unlawful possession or manufacture of explosives and other dangerous goods,[67] contamination of goods,[68] breach of recognisances to keep the peace,[69] and a variety of offences relating to aiding and abetting as a principal or a secondary offender, or procuring any indictable or summary offences under the criminal law.[70]

Summary or police offences legislation in each state supplements these general criminal law prohibitions. In Victoria, the Summary Offences Act 1966 contains numerous provisions directed specifically at protest activity and the maintenance of public order in and around entertainment venues. Under section 17, the Victoria Police have extensive discretion to prevent or prosecute various activities in public places, including obscene, indecent or threatening conduct, offensive language, songs, ballads, artwork, flags and other symbols, and summary activity of a riotous, offensive or insulting nature.[71] Most judicial decisions relating to these provisions and their historical equivalents relate to the possession of dangerous weapons in public places, or the possession, production and distribution of seditious or pornographic material.[72] Additional prohibitions apply to obscene exposure, obstructing traffic, willful trespass, damaging fountains, shrines, monuments, statues and other public structures, property destruction, defacing public property with chalk, spray paint, placards or posted bills, lighting fires, public drunkenness and the possession of offensive implements including knives or other weapons likely to cause injury to persons or property.[73] Supplementary provisions require the authorisation of public assemblies from senior police managers or by Supreme Court order, with particulars of the date, time, nature, location, route or any other relevant matters likely to affect public order to be furnished by the applicants.[74]

The final cluster of provisions involve site-specific venue regulations or by-laws passed under the authority of a principle or enabling Act of Parliament. The Melbourne Cricket Ground Regulations 1994[75] and various by-laws passed under the Sydney Cricket and Sports Ground Act 1978 delineate a range of site-specific regulations aimed at ensuring good order within and around these major stadia. Most provisions duplicate summary offence laws relating to language, preservation of venue property, and the possession or discharge of offensive and dangerous items. More importantly, venue regulations help to clarify police jurisdiction in mass-private entertainment sites, and confer additional enforcement powers on in-house or sub-contracted private security agents,[76] voluntary stewards and venue managers. In operational terms, statutory regulations are preferable to formal criminal or summary prosecutions, offering a convenient mechanism to deter and prevent rowdy behaviour from escalating into large-scale collective illegality and disorder. However, criticism has been levelled at recent amendments to venue regulations aimed at promoting security at major domestic and international sporting fixtures, with increased fines for pitch invasions and the prospect of temporary and permanent exclusion orders extending well beyond conventional notions of re-active criminal responsibility.[77]

This extensive amalgam of public criminal, summary offences and subordinate legislation are the primary and traditional mechanism for identifying and responding to individual and collective protest activities in Australian society. There are two principal functions of these laws. First, the prohibitions outline the limits of permissible civil conduct in public places subject to authoritative intervention by police agencies and other authorised state organisations. Second, these provisions confer substantial rights, responsibilities and discretion on police and allied agencies to define disorderly or anti-social conduct, and to prevent the commission or continuance of behaviour in public or private threatening to cause civil unrest. Of particular concern is the absence of any statements conferring a general right to protest. Indeed, any right to engage in collective acts of protest is invariably subject to approval by senior police members or the judiciary on formal application, or remains implied by what is not prohibited or canvassed under these multiple and overlapping rules. The problems of this omission are extensive, particularly in light of the selective and discretionary enforcement or non-enforcement of these prohibitions in any public order scenario. This is compounded by the lack of qualifying statements regarding appropriate levels of discretionary force to be employed by public or private agents under each strand of law. The de facto rights status of these provisions, nevertheless, contrasts with recent developments in corporate governance prominent at major sporting events throughout the last decade of the twentieth century. This shift has been instrumental in facilitating the sound commercial and economic management of major sporting and cultural events, in absence of any direct and positive statements outlining a right to protest under Australian federal or state law.

4 Corporate Governance

Commencing in the early 1990s, corporate governance began to penetrate federal, state and local law-making institutions with a variety of contentious and at times problematic effects. The most profound implications stem from the corporatisation and privatisation of public criminal justice institutions, with prisons and policing heavily affected by corporate managerial philosophies, economic rationalism and public service downsizing.[78] The often haphazard supplanting of state institutions with corporate structures rests somewhat uneasily with conventional notions of public service provision and public law philosophy favouring centrally funded and publicly accountable state service provision.[79] The speed and extent of these substantial constitutional and legislative changes, initiated by a highly reformist Liberal political agenda in the state of Victoria, are only just beginning to be realised in the new millennium with a change of government and a new political climate favouring community consultation and open democratic participation.

An adjunct function of corporate governance is critical to the field of entertainment law. As part of the entrepreneurial push to generate increased state revenue during the 1990s, corporate governance became the central method of securing the specific-purpose management of major recreation and sports venues, either for initial development, up-grading or ongoing day-to-day maintenance. Throughout the 1990s, various locations affected directly by corporate management regimes were direct sites of collective protest activity. Environmental changes to city and popular resort landscapes pitted supporters of heritage preservation and consultative democracy against those advocating development, progress and the promotion of economically viable industries such as tourism, sport and the arts through non-democratic means. Corporate philosophy provided a means for ensuring the private management of many prominent domestic and international events with direct legislative sanction, notably at state level. The following examples illustrate the legislative framework prompting these developments, and some implications of this process in generating and quelling protest and other forms of dissent central to notions of public accountability and democratic participation in matters of sport, entertainment management and governance.

The most prominent example of corporate governance leading to extensive local protest is the Australian Formula One Grand Prix. Originally held in Adelaide, the capital city of South Australia, the event was subject to a political coup by the conservative Victorian Kennett government in 1994. The intricate politics underpinning this shift remain largely unknown to the broader Victorian community. However, public opposition to the choice of the Albert Park site for this annual and highly popular international fixture was considerable and indicative of the extent of local concern surrounding the influence of economic rationalism on the urban environment and regional democratic participation.

Located within five kilometres of the centre of Melbourne, the site is surrounded by a densely populated middle-class residential district and a mixture of small- and large-scale commercial businesses. The 5.3km track, compliant with international Formula One standards, skirts an extensive network of public reserves accommodating local football, soccer and cricket grounds, a public golf course, boating and walking facilities surrounding the Albert Park lake. The region is serviced by trams terminating at the city centre, and forms a picturesque gateway to Melbourne’s eastern and south-eastern suburbs.

Local residents and small business operators concerned with the environmental impact of the event formed the Save Albert Park group in a concerted attempt to raise significant awareness of the intrusive and undemocratic nature of the Kennett government’s decision. From the first announcement of the temporary site in 1994,[80] this loyal yet dwindling band of protesters maintain an annual vigil at the site, and continue to engage in highly publicised opposition to the commercial and cultural benefits advocated by race supporters within and beyond state parliamentary circles. Substantial environmental development to the entire region immediately followed the public designation of the Albert Park site, and served as the primary focus of systematic resistance to preserve the history and peace of this recreational setting. Despite extensive domestic and international publicity, the continued designation of the site as temporary under Victorian law, and the death of a volunteer steward after a crash involving Jacques Villeneuve in 2001,[81] the Bracks Labor government elected in 1999 have extended the state’s agreement with the Federation Internationale de l’Automobile (FIA) until 2008. The event is now well entrenched in Victoria’s annual sporting calendar and contributes significantly both to state government revenue and tourism, and to Australia’s international reputation as a sporting nation.

The melding of environmental, political, local and international concerns over the selection and use of the site represents half of the Albert Park story. Of core significance to entertainment law is the legislative regime securing the management of this event. The Australian Grands Prix Act, Vic, 1994, also regulating site management at the Australian 500cc Motorcycle Grand Prix at Phillip Island, 125km south-east of the Melbourne central business district, confers extensive powers on the Australian Grand Prix Corporation to oversee and manage all aspects of the event.[82] The Corporation has a structure and powers analogous to public and private companies under Australian state and federal law, including the right to acquire property, perpetual succession, the use of a common seal, and the right to sue or be sued in the corporate name.[83]

While technically a public corporation subject to the control and oversight of the Victorian Minister for Sport,[84] the Corporation has exclusive monopoly and quasi-private powers to manage and promote the event each year, to secure the Albert Park site, and to undertake all necessary environmental adaptations to ensure the race conforms to FIA standards.[85] The permanent ‘renovations’ to the Albert Park region combine with significant exemptions from private and public legal actions by aggrieved citizens under the laws of nuisance and related health, environment protection and local government legislation stemming from the race itself or environmental changes to the venue commissioned under the authority of the Act.[86] The absence of any direct consultative debate on the viability of the Albert Park or any alternative sites is clearly evident in the scope of the Corporation’s additional powers. Any notion of a public right to protest at the site, or express community-based challenges to the viability of the event and its management are neatly evaded by this site-specific corporate model.

Detailed provisions identify a wide range of functions associated with the efficient corporate and economic management of the event. Exclusive rights are conferred on the Corporation acting on behalf of the state of Victoria to determine appropriate entry fees, national and international tourist schemes associated with the event, sponsorship, merchandising, photographic, broadcast and intellectual property rights, and to accumulate and manage Corporation assets.[87] The Act contains prohibitions on ambush marketing and the misuse of authorised race logos and insignia enforceable by the Victoria police,[88] and confers extensive real property rights over the site and its environmental management including the power to cordon off certain areas during specified periods or at the Corporation’s discretion.[89] Powers to make regulations governing the administration of any aspect of the Act or the event are also conferred on the Corporation[90] and section 49 contains extensive restrictions on public access to official Corporation documents and commercial contracts through state freedom of information laws.[91]

These provisions have become a model for the staging of international events on Australian territory. The Sydney Organising Committee for the Olympic Games (SOCOG) Act, NSW, 1993 replicates the corporate managerial structure emblematic in the Grands Prix legislation. Sections 4 and 6 constitute SOCOG as a corporation with perpetual succession, a seal, and powers to sue or be sued under the corporate name. Section 5 indicates the organisation is responsible for its own assets and debts, and the Committee’s budget is independent of any New South Wales parliamentary revenues. Under s.6(1), the Committee has the same legal capacity and powers as a company under the corporations law within and outside the state of New South Wales.[92] The Committee’s organisational and managerial powers subsist from the passage of the Act until all financial and administrative matters are cleared on completion of the event.[93]

While corporate structures provide a convenient vehicle for the sound commercial management of major sporting events with international or extensive domestic appeal, there is a darker side to this model. Nineteenth century pre-centralised criminal justice history indicates decisions of corporate managers were seldom made with the best interests of the community or democratic society in mind. The 1809 English case of Clifford v. Brandon[94] is a significant historical precedent outlining the effect corporate democracy and the implications of private justice in generating protest at popular entertainment venues. [e??]

As part of a series of protests advocating a return to the ‘Old Prices’[95] after renovations to Covent Garden theatre, the case concerned the right of Mr Clifford MP to obtain compensation for false imprisonment and trespass to the person after management intervention to quell the disruption. Evidence indicated Clifford did not actively engage in or promote the disturbance, and compensation of £10 was awarded for the inconvenience caused. Of particular note is the extent of private discretion to maintain good order and decency within the theatre as conferred under Royal Patent by Charles II in 1674. These powers are extremely similar to the monopolies in the Grands Prix and SOCOG examples, including extensive rights to charge fees for admission, to expel redundant actors permanently from the venue, to allow all parts for women to be played by men, and to ‘purge … all scandalous and offensive passages’ from ‘the old plays’. In absence of any countervailing public statement of rights to collective protest, the corporate management of popular entertainment effectively privatises the enforcement of public morality, civil dissent and entertainment culture, while ironically contributing to the very sorts of protest action these models attempt to avoid.[96]

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