Criminal, Summary Offences Laws and Site-Specific Regulations
Legacies of Public and Private Regulation
Governance, Protest and Sport: An Australian Perspective
[Ian Warren (M.A; LLB) is a PhD Candidate at the School of Human Movement, Performance and Recreation, Faculty of Human Development, Victoria University of Technology.]
Peaceful acts of protest are relatively common in popular Australian sports and entertainment. Traditionally, protest has been regulated through criminal and adjunct summary offences or policing legislation. Trends in corporate governance and state-sponsored event management have significant implications for individual and collective rights of protest at popular domestic and international events. In reviewing prominent incidents of protest and the evolution of public order laws in Victoria and New South Wales, this article highlights the complexity and contradictions underpinning the regulation of protest at major entertainment venues, and examines the impact of recent legislative reforms facilitating professional corporate event management.
Keywords: Sport Protest Australia Legislation Victoria New South Wales Reforms Popular Culture
This is a refereed article published on 24th November 2004.
Citation: Warren, Ian, 'Governance, Protest and Sport; An Australian Perspective', Entertainment and Sports Law Journal (ESLJ)Volume 1, Number 1, .
1 Protest, Law and Popular Culture
The term ‘protest’ encompasses a vast array of intentional and imputed forms of conduct. The breadth and variety of forms of protest makes systematic analysis extremely difficult. Some protests are highly organised collective actions with a clear intention to communicate dissenting ideas to governments, private organisations or the general public. Vigils, sit-ins, blockades, primary and secondary boycotts, demonstrations, parades, marches and other forms of organised expression fit neatly into existing order maintenance frameworks promoting the peaceful communication of contentious social or political ideas. However, many actions have more subtle intentions, often leading to perceptions of threat, disorder and unrest, resisting neat classification through objective principles and languages of law.
There is no doubt sport is both a vehicle for protest in its own right and a setting for the communication of dissenting political, social and cultural views existing in the broader milieux. Amongst the wide range of popular entertainments in Australia, national, regional and local sports receive significant yet highly disparate levels of popular exposure. Trends in elite sports management, marketing and the development of sport each impact on the nature of dissenting messages and their public communication. Moreover, the interrelationship between the state, protesting individuals or selves, and the broader community of others is melded with various forms of cultural production and reproduction, deeming certain forms of protest legitimate and others illegal. The immense range of protest scenarios and settings in or associated with contemporary sports places considerable strain on law-makers, enforcers, sports managers and sporting cultures in defining and responding to contentious incidents in any given context.
The immense popularity of sport in Western society ensures multiple forms of cultural production through televised or print media and popular sports narratives. Each published discourse has a prominent role in communicating messages of hegemony or dissent by the state or aggrieved selves to diverse populations of interested others. Popular communication processes and their dissemination are central in classifying perceived or actual conduct as legitimate protest or illegitimate and worthy of formal legal intervention. As with analogous terms such as ‘riot’, ‘disorder’ and ‘crime’, the word ‘protest’ has various positive and negative connotations in popular language. The meanings evoked by these terms have important ramifications on how individual or collective acts are defined and interpreted by institutional practices of the state, law-making and enforcement bureaucracies, sporting cultures and society in general. Diverse methods of televised, press and literature production, invoking considerations of access, reception and interpretation, all feed into the complex equation relating to protest in or associated with sport and other forms of popular culture.
When equated with disorder, threats to person, property or the sanctity of major cultural events, the prospect of collective protest often provides justification for the use of force or other forms of pre-emptive or reactive suppression by the state to maintain peace and good order. The discretion to tighten legal rules or enforcement practices is closely linked to popular languages and discourses equating protest with crime. Literature on riots continually suggests the popular media actively promotes negative discourses to divert public attention from contentious state practices and their often violent outcomes, or to accept their necessity in times of social change. While such practices invariably misinform the public on the nature of protest activity in various settings, Schoedinger indicates such trends also compromise effective law-making and operational planning for public order maintenance:
[e]ssential to the sensible planning for any riot control is the placing of riots in their proper perspective. Contrary to what the news media have often suggested, riots, even as serious as Watts, Newark, and Detroit, are neither insurrection nor guerilla warfare.
Where individual acts of protest are concerned, accidental or incidental conduct is often mis- or re-interpreted as intentional protest by the state, the popular media or the broader community. This is particularly common in cases involving elite athletes, where the heat of the moment and spontaneous passions often thrust an unwilling or unprepared individual into the public spotlight. Televisual media plays a significant and highly problematic role in this process, with slow motion replays and their constant repetition converting the unintentional act, utterance or gesture into a popular newsworthy event.
Each variable ensures the role of law in defining and responding to protest activity is clouded by a complex array of interpretations and values, compromising notions of objectivity, impartiality and consistency indicative of the legal process. Discretionary law-making and enforcement remain key variables to understanding the complex dynamics between the state, protesting selves and the broader public when laws regulating public order are invoked. Multi-tiered levels of governance characteristic of Australian federalism further complicate matters, with an amorphous mix of public, private, express and implied laws providing diverse choices for enforcement agents at local, state and national levels. Combined with the immense diversity of popular media sources and their varied print and visual outputs, each incident deemed an act of individual or collective protest has the capacity to be construed and misconstrued to the point where it has no objective meaning. As such, dominant and preferred constructions of certain behaviours, often sanctioned by political reality, law and conventional media production methods, are critical in the realm of protest.
The criminal law is the principal means of defining and responding to protest when individual or collective acts threaten to disrupt Australia’s major sporting and cultural events. A combination of specific purpose and general laws under national and state criminal codes articulate powers to identify and control protest firmly within domestic policing jurisdictions. Often co-existing with venue- or event-specific order maintenance provisions, public criminal laws outline the broad limits of legitimate or illegitimate protest actions, and confer considerable enforcement discretion on state and federal policing agencies to preserve public order. Procedures of arrest, search and seizure, the inspection and confiscation of personal property, and even the regulation of language and methods of communication feed into this framework. Summary or criminal prosecutions, fines and terms of imprisonment are all potential outcomes when protest becomes disorderly or threatens the sanctity of a sporting or cultural event. By conferring clear powers and limits on authorised agents of state to intervene in private or citizen affairs, the criminal laws of protest follow accepted notions of British constitutionalism to curtail the reach of state power. These provisions are often supplemented or duplicated by site-specific administrative ‘by-laws’ or statutory rules, reinforcing the primacy of state agents in public order maintenance. In the absence of a positive statement or charter of citizen rights, public law powers conferred through these methods offer a de facto statement of citizen responsibilities by encouraging peaceful public and private conduct, subject to competing citizen rights under the laws of property, privacy and equivalent common law and statutory regimes.
Developments in the administration of Australian sport and the evolution of governance have moved the goalposts significantly in recent years, leading to serious questions about the right to protest under Australian state and federal law. Throughout the last decade of the twentieth century, corporate philosophy has pervaded many aspects of Australian public law and life. Corporate governance and state-authorised site-specific event management provisions have become a core means of ensuring the professional administration of major events with domestic and international appeal. When combined with the systematic ‘downsizing’ and privatisation of public services and the rapid emergence of in-house and contracted private security, considerable doubt remains over the legal status of collective protest at major sporting and entertainment venues. Corporate and private philosophy also clouds the jurisdiction of state policing agencies, particularly at publicly sanctioned yet technically private events. The centralised rules of the criminal justice game no longer appear viable in securing the efficient or effective management of major events. Indeed, Australia’s popular and successful sporting tradition has been one of the principal catalysts for the erosion of conventional notions of protest and order maintenance under national and domestic law.
The remainder of this article outlines the impact of these developments by providing a select history of individual and collective protest actions and their regulation at Australian sporting events. Of particular concern is the comparative impact of corporate governance and the historical co-existence of criminal justice and subordinate legislation governing site-management at major venues in Victoria and New South Wales. These states are Australia’s most populated jurisdictions, with Melbourne and Sydney host cities for the only two Olympic Games held in the southern hemisphere, and each are extremely well-serviced by a range of sports venues catering for domestic, national and international athletes and patrons. The paper discusses the interplay between state and federal laws promoting domestic security and order maintenance through the public criminal law, and the effect of corporate governance on current rights to protest in these jurisdictions. Before proceeding it is necessary to outline some prominent themes, incidents and effects of various forms of protest and its regulation at Australian sport from the range of sporting, legal, policing and popular cultural archives.
2 Prominent Themes and Notable Incidents
Notwithstanding the foregoing complexities and the absence of systematic data quantifying incidents of protest in Australian sport or society, disorder, harm and damage to person and property in and around sports venues is rare in domestic experience. Individual and team sports promote a diverse range of economic, social, political and cultural benefits, offering vital insights into the mainstream Australian psyche. Most prominent incidents of disorderly protest involve relatively isolated and rarely publicised actions. Where disorder has occurred, the relevant contexts and settings have been subject to extensive academic or journalistic inquiry. The relative absence of disorder, violence and disruption directly linked to protest in or associated with Australian sport is indicative of two possible trends.
On the one hand, sport provides a unique setting for Australian citizens and sports fans to engage in protest within recognised boundaries accepted by the rules, norms and customary values of sport. Most sports with mass popular appeal, such as dominant footballing codes in the Western ‘manly’ tradition, attract and generate extremely diverse forms of cultural production. News items, stories of athletes, coaches and other participants and their exploits or opinions, and detailed social and cultural histories all provide a wide range of narrative voices prominent throughout Australian popular culture. Principles of freedom of participation and comment have a strong capacity to incorporate peaceful and critical dissenting views. However, the hegemonic dominance of certain sports in Australian culture indicates a strong capacity to suppress dissent both within and beyond the sporting realm. In other words, rather than accommodating protest, difference and diverse popular opinion within cultural norms and practices, dominant modes of producing sport and related cultural narratives are extremely good at excluding minority voices on the grounds of race, class, sex or gender identity, age, disability or related forms of ‘otherness’. Australian sporting experience suggests both views are equally tenable.
Most popular televised sports, for instance, are dominated by male team activities. Professional and highly commercial football codes such as rugby league, rugby union, Australian Rules and soccer, combined with motor sports, horseracing, cricket and athletics, represent the norm in Australian popular culture. Saturation coverage of these events occurs at the expense of alternate codes. Well-established manly team sports are over-popularised at the expense of activities such as netball, gymnastics, diving or weightlifting, the latter deriving subsistence through the participation of women or ethnic and other cultural ‘minorities’. Large ‘coffee table’ pictorial histories, investigative texts on specific incidents, themes or controversies, critical academic and research works, and an immense range of parodies and humorous ‘piss-takes’ all target dominant media cultures of sport through a critical, often cynical lens. Nevertheless, the effect of these discourses on changing the realities of hegemonic participation and popular communication practices remains conjectural.
In addition, the subject matter of individual or collective acts of protest demonstrates similarities across Western jurisdictions. Two tentative themes relating to protest at or involving organised sport are observable. First, sport is a prominent setting for the dissemination of messages relating to racial, ethnic or cultural disadvantage. Actions by athletes or spectators, either in connection with or focusing on the conduct of certain sports, have a substantial tradition of promoting awareness of various forms of discrimination, either within a particular sport or in Australian society more generally. A second and more recent trend locates protest within the urban and cultural landscape. Of particular concern is the precarious interplay between the sustainable development of sporting, cultural or entertainment institutions, and the maintenance of tradition, historical and cultural integrity and the Australian urban and rural environments. Contentious tensions between local and global economic, political, cultural and legal interests have led to considerable protest activity in recent decades, with sport and other forms of popular entertainment direct sites for confrontational and often heated debates over domestic and global governance policies.
Despite recent trends, direct targeting of sport by acts of civil protest is surprisingly uncommon in Australian history. Though local, national and international political and social developments often contribute to a substantial threat or fear of civil disruption amongst the Australian sporting populace, the majority of protest activities involving Australian sport have been overt actions integrated or accommodated within accepted ‘rules of the sporting game’. Most protest acts or omissions lead to extensive public debate and awareness of problematic social and political issues, but little threat of disruption to the conduct of major events. Nevertheless, certain disorderly protest actions are evident in Australian sports culture and highlight pertinent limitations in communicating and responding to acts of civil and political dissent. The following brief and selective survey of prominent literature on protest actions associated with domestic and international sport provides several insights into the complex issues involved in defining and responding to individual and collective protest activity in and around Australian sports venues.
The modern Olympic movement has been a prominent site for protest activity, often leading to significant threats of disorder or terrorism. The unifying ideal of sport in promoting peace and goodwill amongst diverse nations and cultures invariably clashes with the realities of international politics. The impact on host nations has been well-recognised since the massacre of eight Israeli delegates by Palestinian terrorists at the 1972 Munich Olympics, and extensive measures are routinely adopted to ensure security threats are no barrier to the continuance of the Games in times of international or domestic turmoil. Despite considerable potential for harm and disorder stemming from contentious international and local politics, disruptive protest actions are largely unknown in Australian Olympic experience.
Australia’s two Olympic Games were each held amidst uncertain political climates offering considerable threats of protest ultimately failing to materialise. Although immensely under-researched, the 1956 Melbourne Games were conducted amidst a global political environment indicative of the Cold War period. The Games coincided with two prominent international incidents that heightened fears of disruption hitherto unseen in modern Australia outside the world war periods. United Nations troops intervened in the Suez Crisis on the day of the opening ceremony, leading to substantial and violent protests by Egyptian nationals on their soil. The Soviet invasion of Hungary and the seizure of deposed President Imre Nagy coincided with assassination attempts on the Iraqi president on day two of competition. This confusing amalgam of events threatened to cloud the two weeks of competition, with six nations boycotting the Games, yet barely caused a ripple in the Olympic city. The only significant incident of protest involved a bloody fight between the Soviet and Hungarian male water polo teams during their qualifying match in the Melbourne Olympic pool, an incident conspicuously overlooked in the official report of the Games.
The explosion of a pipe bomb on 27 July 1996 at Centennial Park, Atlanta, highlighted the unpredictability of terrorist activity at modern Olympic venues. A Turkish cameraman died of a heart attack at the scene where more than 100 people were injured, and the incident significantly heightened security concerns for the Sydney 2000 Organising Committee which were again unrealised. The perpetual self-surpassing Olympic philosophy ensures each event is hailed as ‘the greatest Olympics ever’. Nevertheless, Sydney 2000 was devoid of major incident despite widespread concern over threats of international terrorist activity, organised pickets by pro-Indigenous rights groups prominent at other major athletics meets, and pre-event concerns over the lack of coordination between state, federal and private agencies charged with venue security. Extensive integration of Indigenous culture throughout the opening ceremony and amongst the Australian athletic community, exemplified by the success of 400 metre runner Cathy Freeman, nominated to ignite the Olympic flame, ensured the futility of any attempts to cause disruption at major venues by cashing in on the extensive domestic and international media coverage.
Several isolated incidents of protest were reported during the Sydney Games. During the closing ceremony, Australian rock band Midnight Oil appeared on stage with t-shirts prominently displaying the word ‘Sorry’, a pertinent reminder of the Howard federal government’s failure to apologise to Indigenous communities after 200 years of displacement, discrimination and white Australian ‘settlement’. Of related concern was the suppression of economic protest through extensive ambush marketing regulations designed to secure exclusive protection for authorised sponsors and their Olympic memorabilia, and the unpredictable activities of ‘serial pest’ Peter Hore, a diagnosed schizophrenic claiming to be a reincarnation of Christ with a history of disrupting major sporting and cultural events.
A prominent example of disorderly collective protest at domestic Australian sport involved the Springbok Rugby Union tours of the early 1970s. Harris details the systematic and organised activities of opponents of the South African apartheid regime with journalistic accounts from each venue. Graphic photographs of police apprehending young males and females are combined with insider accounts of the organisation and conduct of these incidents, presenting a vivid memoir of the level of confrontation between state law enforcers and demonstrators aiming to stop the tour. Subsequent histories have failed to examine the direct law enforcement outcomes of this wave of post-1960s civil unrest in Australia. Nevertheless, this series of events clearly demonstrates the problem of organised protest at major sports sites. Supporters of the tour were actively and provocatively pitted against organised groups of predominantly student protesters, with a spiral of confrontation inevitably contributing to disorder and the contentious use of force by state police in most jurisdictions. The tour and the apartheid regime continued despite these intrusions. However, extensive domestic and international coverage raised considerable public awareness of the interplay between Australian sport, entertainment and international politics, arguably contributing to formal sanctions by all elite sporting bodies against South African athletes and teams persisting until the demise of apartheid in the late 1980s.
The 1982 Brisbane Commonwealth Games provided the basis for the most contentious law and order crackdown in recent Australian sporting history. Jock Given outlines the scope of this crackdown in response to the formation of the Black Protest Committee seeking to target the Games through ‘peaceful and dignified’ collective protest. The then Queensland National Party government responded by threatening to repeal legislation conferring reserve land on Indigenous communities, and introduced 19 new public order offences under the Commonwealth Games Act applicable to collective gatherings in and around Games venues. These measures provided impetus for several organised gatherings, leading to a series of peaceful rock concerts and other Indigenous events in the lead-up to and during the Games. Thirty-nine Indigenous people were arrested and detained during the Opening Ceremony and around 300 arrests followed under these provisions during the subsequent two weeks. Along with collective demonstrations, pro-Indigenous groups smuggled flags into the main stadium with no formal police action taken. The publicity of these incidents on domestic and international television strengthened consciousness amongst Indigenous groups, despite continued divisions between politicians, law enforcers, and Indigenous communities in Queensland and other jurisdictions following the Games.
Several domestic sporting events, such as motorcycle racing, one-day and test cricket, soccer and shooting sports, have been settings for various forms of protest and periodic incidents of disorder in recent decades. During the 1980s a series of law enforcement crackdowns at the annual Bathurst motorcycle races contributed to a number of landmark studies on police relations with minority sub-cultures at entertainment venues. Rob Lynch’s work on class relations at international one-day and test cricket fixtures has been highly influential in fostering awareness of the interplay between social class, ‘rowdiness’, protest and commercialisation in Australian sport, heavily influencing subsequent works on law enforcement, ethnicity and social culture at Australian soccer and related events including heavy metal rock concerts.
Recent acts of individual protest at Australian sport bear marked similarities to international experience. Incidents involving athletes highlight often misguided popular concerns over the extent of racial violence at events such as domestic soccer. With substantial multi-ethnic support and fuelled by sensational media coverage highlighting the un-Australian nature of ‘[s]occer’s fierce ethnic passions’, acts such as Perth Glory striker Bobby Despotovski’s three fingered Serbian salute to a predominantly Croatian end heighten broader community fears of domestic ethnic tensions. As each incident of youthful disorder on the terraces combines with reports of maladministration and calls to ‘de-ethnicise’ the world game on local playing fields, the perception of racial conflict promotes a confrontational spiral of control at major domestic fixtures. Consensual and common sense harm minimisation strategies, improvements to venue facilities and greater tolerance of carnival activities such as the waving of banners or discharge of flares are overlooked in the order maintenance equation, while popular attention is diverted from problematic relations between Australian law enforcement agencies and diasporan male youths under the false shroud of ethnic conflict.
A final example worth noting relates to the recent controversy surrounding former National Rugby League star-turned-professional boxer, Anthony Mundine. The sport of boxing represents a confusing paradigm for racial empowerment, but exemplifies the melding of Trojan Horse and direct protest motives at sport events and the complex role of state regulation. Tatz’s pioneering work in this field draws on the disproportionate successes of Indigenous boxers and the relationship between empowerment of the self and Indigenous communities through engagement in the professional prize ring. As a form of protest in its own right, the contentious ethics of prizefighting allow for economic self-determination as well as popular cultural recognition when revered fighters from minority communities wave the flag on behalf of the Australian nation. Other groups, notably post-Second World War southern European immigrants, have also promoted widespread recognition of various forms of social disadvantage through success in the boxing ring, and this tradition has filtered through into other dominant sporting codes. Despite the questionable legality and risks associated with this pastime, without such participation and the popular cultural rewards thereby produced, much awareness of the social plights of racial and other minority participants and their communities would be lost, ignored, or solely confined to the Australian political realm.
Two days after defeating Perth boxer Guy Waters, Mundine was interviewed on morning television by entertainment journalist Richard Wilkins. In response to a question about the United States government’s response to the 11 September terrorist attacks, the ‘outspoken world title contender’ and convert to the Islamic faith stated: ‘Its not about terrorism, it’s about fighting for God’s laws … America’s brought it upon themselves, you know, in what they’ve done in the history of time’. Wilkins denied any intention to trap Mundine, and during a corrective interview that evening on the same television station the statement was toned-down after considerable publicity on most news and current affair programmes throughout the day.
Two notable issues emerged in the immediate aftermath of this incident. First, the diversity of publicity in Melbourne’s daily newspapers indicates the breadth of journalistic narratives relating to sport. The Herald-Sun and The Australian each ran prominent ‘headline’ stories on the statement in the ‘news’ sections of their respective Monday afternoon and Tuesday editions.The Age did not report the incident as either daily or sporting news. Two days later the World Boxing Council (WBC) stripped Mundine of his world ranking, with United States boxing officials threatening a permanent exclusion from competition in response to the comment. WBC president Jose Sulaiman stated: ‘Such statements are unbelievable and intolerable and seriously hurt world society and boxing …[t]he WBC will not tolerate the utilisation of a position in boxing to make such absurd and denigrating public statements’. Mundine is currently preparing for a sanctioned International Boxing Federation world title fight to be held in Germany on 1 December 2001.