The use of the Liquor Control Act to ban vegan protester Tash Peterson from every licensed venue in Western Australia has been described by legal experts as an "overreach" and "misuse" of the law, in a state with no human rights legislation through which to challenge it.
Ms Peterson, a controversial figure known in WA for holding graphic and confrontational animal rights protests involving fake blood and nudity, has left that state after being banned from all licensed venues under Section 115AA(2) of the Act. The ban includes restaurants, bars, nightclubs, pubs, licensed events, and liquor stores.
"I have no doubt it is an attempt to try and silence me as an animal rights activist," said Ms Peterson, who has been convicted of two counts of disorderly conduct and one count of trespassing over her protests.
"And I believe I have my rights to speak up for non-human animals in a non-violent manner, and I'm always non-violent in my protesting."
Under the law, the Commissioner of Police or his delegate has the power to issue such a ban when they believe "on reasonable grounds" that the person has been violent, disorderly, indecent, or broken any law at or near licensed premises.
But some legal experts said the use of the barring notice against Ms Peterson was concerning.
"[They are] for the people who get violent, and they hurt people, they glass people.
"And when you look at most of the decisions, that's what they're really mainly about."
A tool and not a punishment, says Liquor Commission
According to a written decision made by the Liquor Commission, which oversees the use of the law, the main purpose of a barring notice was to "protect the general public or a licensee and is not to act as a tool to punish the offender".
Murdoch University Associate Professor Anna Copeland said barring notices were not designed to be used in cases where alcohol was not a factor.
"It's really clearly designed to kind of address disorderly indecent behaviour or disorderly conduct associated with alcohol consumption," Professor Copeland said.
"It's that problem that every Act has to be limited [to its purpose] because, otherwise, you would have overreach on all sorts of fronts.
"I think it is misusing the Act in this circumstance."
Ms Peterson has been subject to multiple bans over the years, including the most recent order that was issued in June and remains in effect until March, 2023.
Order is a 'protective mechanism': Police
WA Police said there was a process for deciding when a barring notice was warranted.
"Incidents with a nexus to licensed premises are reviewed by the [Police] Commissioner's delegate," a spokesperson said.
"After considering the circumstances, a decision is made if a barring notice is required to support the objectives of the Act [harm minimisation]."
The spokesperson said the time frame of the barring notice was "proportionate with the seriousness of the offending," and that it was a "protective mechanism" rather than a punishment.
A test of the law
Ms Peterson has been arrested and convicted of disorderly conduct three times as a result of her protests, where she has described the deaths of animals for meat as "murder" and referred to the meat industry as an "animal holocaust".
In WA she is a highly controversial figure who has been the target of vitriol and death threats, as well as being manhandled and verbally abused during protests.
Professor Copeland said cases like Ms Peterson's test the laws that protect the right to protest.
"That's the point of their protection, so it's not just there for protests that we don't mind, or that we think are OK, or that may be aligned with our values — or even don't align with our values but we can understand where they're coming from," she said.
Australians have a right to peaceful protest under international human rights treaties that the country has signed on to.
But human rights protections differ state by state because, unlike many other Western democracies such as Canada and the UK, Australia does not have a Bill or Charter of Rights.
University of Sydney law professor Simon Rice said the fact that WA, in particular, did not have its own Human Rights Act limited Ms Peterson's ability to challenge the barring order.
"She'd have a basis for asking the courts whether the act against her, the exclusion of her, is a proportionate limit on her right of free speech."
"I think the courts might well say it is — that the way she goes about her protesting is such that it's probably permissible to prevent her [from accessing venues] — but at least you can have that discussion."
Constitution does not explicitly protect free speech
In 2007, the WA Labor government committed to introducing a Human Rights Act and a draft bill was distributed for public comment but the bill was never passed.
Although the Australian Constitution does not explicitly protect free speech or the right to protest, the High Court of Australia has determined the constitution provides "implied" freedom of political communication.
Mr Rice said this was the only avenue through which Ms Peterson could challenge the order through the courts.
The avenue of appeal provided by the Act in WA is to challenge it through the Liquor Commission, a cohort of mostly lawyers who are appointed by the Minister for Racing and Gaming.
Last year the Commission denied an appeal from multiple people who received a barring notice for an apparent protest at a restaurant in 2020. That barring notice applied only in licensed restaurants, rather than an widespread ban like the one dealt to Ms Peterson.
Alcohol doesn't need to be a factor, says Commission
The protesters argued that the Act did not apply because their conduct was not related to alcohol, and that the punishment was disproportionate because they were not violent and did not cause harm.
But in a written decision, the Commission determined that consumption of alcohol was not a required factor to issue barring notices under the Act.
"It is sufficient that the incident took place upon licensed premises," the decision said.
The Liquor Commission declined to comment and referred questions to WA Police.
Ms Peterson said she saw the barring order as a restriction on freedom of speech.
Since arriving in Melbourne earlier this month she has already participated in a topless protest.
"If we're looking back into every social justice movement in history, all activists did have to disrupt and take part in civil disobedience to create social change," she told ABC Radio Perth host Christine Layton in an interview earlier this month.
She plans to appeal her previous two disorderly conduct convictions through the Supreme Court, on the basis that the magistrates in WA erred in concluding her conduct was "disorderly".
