Civil Disobedience and Judicial Theories of Political Change

Democratic constitutions establish and protect democratic institutions. They also establish and protect the processes through which those institutions form and are active. In doing so, constitutions engage with the problem of pre- and extra-institutional conditions. What conditions are needed for an election to be free and fair? The representative institution itself cannot be the ultimate authority on these questions. That constitutions often rely on narratives of extra-institutional authority — such as popular sovereignty and constituent power — compounds this dilemma and provides much material for constitutional theorists.

The constitutional treatment of civil disobedience is an instance of this problem. It exposes a “tension between democracy as a system of institutions and democracy as a practice of citizenship that can also potentially take an insurrectional form.” Civil disobedience doesn’t necessarily involve revolution. It often works within an existing legal order, appealing to contradictions and incoherence within that order, but ultimately recognising the order’s authority by submitting to criminal punishment and sanctions. Civil disobedience occupies a ‘grey area’ as an act that violates the will of a representative institution at a particular time — a criminal code — but is directed toward influencing and improving the composition and conduct of that representative institution. How constitutional systems and constitutional arguments recognise its ‘grey’ status reveals much about their democratic imagination and judicial theories of political change. A ‘theory of change’ is a model, often used strategically by social movements, of how a particular initiative will causally lead to a particular social or political outcome. I do not describe a ‘judicial theory of political change’ in this intentional or strategic sense, but rather, to refer to the assumptions that judges have regarding the causal relationships within democratic systems and the pre- and extra-institutional conditions that need to be protected for those institutions to realise the political sovereignty of the Australian people.

This post considers the latest episode of Australia’s engagement with civil disobedience under its constitutionally ‘implied freedom of political communication’ — Kvelde v New South Wales (‘Kvelde’). I have described elsewhere how the Australian High Court has treated this problem to date. The Australian ‘implied freedom’ is a useful lens for examining this problem comparatively, because unlike a fundamental right, the freedom is defined in terms of democratic representative institutions and the processes for electing them. How Australian courts treat civil disobedience under the freedom directly engages with the problem of judicial theories of political change that I describe above. In Kvelde a judge of the New South Wales Supreme Court followed the tendency of some High Court judges of reducing the democratic value of civil disobedience to binary terms: if a form of political speech is already illegal, the Court will not engage with further legislative acts seeking to increase penalties for it. I describe this as the ‘binary approach.’ I argue that the binary approach reflects a particular judicial theory of political change not necessarily prescribed by the freedom, that is also out of step with historical Australian political practices. I reflect on the legal professional cultural reasons why this approach may have begun to develop and suggest an alternative.

New South Wales’ Disruptive Protest Legislation and the Kvelde Challenge

The Roads and Crimes Legislation Amendment Bill 2022, passed in March 2022, inserted section 214A into the Crimes Act 1900 (NSW) to prohibit entering, remaining on or near, climbing, jumping from, or trespassing or blocking entry to certain infrastructure and major facilities where it:

(a) caused damage to the facility;

(b) seriously disrupted or obstructed people trying to use the facility;

(c) caused it to be closed in whole or part; or

(d) caused people trying to use it to be redirected.

Some of these activities — such as property damage, trespass and disrupting the Sydney Harbour Bridge — were already criminal offences. The Bill increased the penalty for those offences to a maximum of a $22,000 AUD fine and / or two years imprisonment, and expanded the number of roads and bridges caught by the provision through regulations. Existing offences carried fines between $440 AUD and $2000 AUD. The Bill was passed with support from the then state Liberal National government and Labor opposition, the latter of which negotiated an exemption for industrial activity (ie, protests and strikes by workers). It followed increased disruptive action by climate groups. In debating the Bill, the Minister carrying the motion observed that “the actions of these protestors make it clear that the penalties available for these offences are not sufficient to deter illegal protests that disrupt the lives of the people of New South Wales.” 

The plaintiffs, two members of the ‘Knitting Nannas’ protest group, argued that the provisions burdened the implied freedom of political communication. I have explained elsewhere that, while the Australian Constitution lacks express constitutional rights, the High Court found in 1992 that constitutional provisions requiring that Parliament be “directly chosen by the people” guarantee a freedom of political communication. This freedom is directed at protecting institutions established under the Constitution rather than individual rights, which the High Court has been anxious to stress. Because it is an institutional protection, how the implied freedom is applied touches directly on the problem of pre- and extra-institutional conditions that I described above.

The plaintiffs’ submissions highlighted the significant history of political protest around infrastructure caught by the Bill, and the recognition in Brown v Tasmania (‘Brown’) that these have been a means of bringing about political and legislative change. They characterised the purpose of the Bill as increasing deterrence to disruptive conduct causing serious public inconvenience. The submissions highlighted that the provisions did not necessarily serve that end — not all activity causing redirection will cause disruption — and that the conduct already attracted penalties and less burdensome alternatives were available. They also drew attention to the ‘content’ discrimination that arose because of an exemption for industrial activity (ie, workers’ protests).

The Court’s Treatment of Civil Disobedience

Justice Walton of the New South Wales Supreme Court found subsections (a) and (b) of the above — prohibiting activity causing damage and serious disruption or obstruction — were valid. The Court concluded that subsection (d) — prohibiting conduct causing people to be redirected — was invalid, and that subsection (c) was invalid to the extent it prohibited conduct causing partial closure of a facility. It found subsection (c) was valid to the extent it prohibited conduct causing full closure of the facility.

To reach this conclusion the Court used what I’ve described above as the ‘binary approach’. It classified political communication based on whether it amounted to conduct that was already caught by criminal provisions or torts of trespass or public nuisance. It assumed that the freedom of political communication had no application to this conduct because existing laws that were constitutionally valid already imposed sanctions on it. Because these existing restrictions on conduct were constitutionally valid — a “constitutionally valid baseline” — any further legislative activity regarding that restricted conduct could not be protected by the freedom of political communication. I explore this reasoning and the assumptions that supported it further below.

Counsel for both the plaintiffs and the state defendant had adopted these assumptions in their submissions based on dicta in earlier High Court cases. A significant part of the dispute in Kvelde therefore turned on whether the construction of section 214A covered conduct that was otherwise restricted by criminal law or the tort of public nuisance. Walton J found that conduct not necessarily covered by criminal law – causing redirection of people trying to use the listed facility or causing partial closure — was disproportionate for a lack of necessity and a lack of adequacy of balance (the Australian term for proportionality in the strict sense/ Verhältnismäßigkeit im engeren Sinne). Justice Walton concluded that an alternative offence of engaging in unlawful conduct that causes damage or serious disruption to major facilities would have achieved the same end.

Problems with the Binary Approach

1. Genealogy of the Binary Approach

The reasoning that the Court relied on in Kvelde followed the ‘binary approach’: if the form of political activity is “independently unlawful, so that there was no legal freedom to communicate about government or political matters, then there can be burden on the freedom.” As authority for this reasoning Justice Walton cited Justice Edelman’s dissenting judgment in Brown.

The binary approach is threaded through some – but by no means all – of the reasons given for implied freedom decisions involving potentially unlawful political activity tracing back to Justice McHugh’s judgment in the 1997 decision of Levy v Victoria (‘Levy’):

[…] our Constitution does not create rights of communication. It gives immunity from the operation of laws that inhibit a right or privilege to communicate political and government matters. But, as Lange shows, that right or privilege must exist under general law.

Justice Hugh’s conclusions in Levy would become a touchstone for Justice Nettle’s judgment in Brown. Justice Gordon’s reasoning with the majority and Justice Edelman’s dissent in Brown, that I described above, follow a similar logic. Justice Gordon’s judgment introduced the concept of a ‘constitutionally valid baseline’:

[…] the conduct that is addressed by the impugned provisions was and remains substantially unlawful conduct. None of the laws constituting this wider legal framework was challenged as being an impermissible burden on the implied freedom. That framework was and remains a constitutionally valid baseline.

The ‘binary approach’ is an undercurrent in the reasoning of Kiefel CJ and Keane J, and again in the separate judgments of Justices Gordon and Edelman, in the 2022 decision of Farm Transparency v New South Wales (‘Farm Transparency’). In that decision the Court had to consider whether restrictions on the publication of footage obtained during trespass of an abattoir were a proportionate burden on the implied freedom. Farm Transparency concerned a challenge to the provisions restricting publication, but not to the offence of recording itself. Although partly dictated by the arguments that had been presented by the plaintiffs, the assumption in these judgments is that political activity that was already unlawful could not be protected by the freedom. In Ruddick v Commonwealth (2022) Gordon, Edelman and Gleeson JJ stated that “the implication is an ‘implication of freedom under the law of an ordered society’”, citing a comment from Chief Justice Mason in an early implied freedom decision.

The upshot of the ‘binary approach’ is to effectively draw a line between political activity that is unlawful independent of the challenged legislation, and that which is not. Activity that falls within the ‘constitutionally valid baseline’ receives no protection from further legislative interference under the implied freedom.

2. Judicial Theories of Political Change

The ‘binary approach’ involves assumptions regarding the nature of political change that trace in part to the uneasy origins of the implied freedom.

Firstly, the ‘binary approach’ assumes that political activity that is otherwise unlawful cannot be relevant to the exercise of electoral choice. This assumption is more normatively rather than factually grounded. The reasoning in Chief Justice Kiefel and Justice Keane’s Farm Transparency judgment reflected concern that constitutional immunity for publishing content procured illegally could have the effect of sanctioning or encouraging the unlawful means of procurement.

Other reasons for the’ binary approach’ assume that lack of relevance as their starting point. In Brown, for example, Justice Nettle described legislation imposing greater penalties on an already unlawful activity as a ‘burden on communicators’, rather than a ’burden on communication’. But the impact of the penalty on those engaged in civil disobedience clearly impacts its viability. Social movements and individuals who act in the name of groups accept a criminal sanction in exchange for the political value of collective action. The possibility of a long custodial sentence alters that calculation — a fact acknowledged in Kvelde and reflected in the rationale for legislatures increasing penalties in the first place.

A second assumption related to the above is that the implied freedom can only deal with conduct in binary terms. This assumption connects with the Court’s application of the ‘constitutional baseline’. Put another way: if legislation catches political activity that is otherwise unlawful, the Court must either remove the restriction on that activity completely or leave its treatment to the legislative wolves. It also assumes that the nature of the conduct, rather than the practical effect of the impugned legislation, acts as the preliminary determinant of how the implied freedom applies.

The ‘binary approach’ also neglects what Hannah Arendt described as the collective, political significance of civil disobedience. It is this feature and not just the motive of the individual that creates it as a phenomenon. And while the legislation targeting civil disobedience defines the offense at the level of the individual, its character — including the aim that it pursues — must be examined at the level of consequences to the political system.

The attraction of the ‘binary approach’ is likely cultural. The Australian Constitution was received by a legal professional culture steeped in inherited British approaches to institutions. Those inherited approaches saw democratic authority and representative institutions as entirely identical. This partly explains the unease with which the Australian legal profession reacted to the 1992 implied freedom doctrine. It introduced ideas of democratic practices and forms of sovereignty that precede representative institutions, and to which those representative institutions may be hostile. This forced Australian courts and the Australian legal profession to develop a kind of ‘democratic imagination’ on which members of parliament at a particular time could not be a fully reliable authority. In response the Australian High Court has developed a number of principles that attempt to structure and constrain the implied freedom.

But the nature of the implied freedom means that the Court can’t ‘get around’ the problem of deciding on the value of certain democratic practices. Excluding unlawful activity as entirely irrelevant to the exercise of choice at elections is also a value judgment — and one contrary to Australian political history. Australian political history features multiple instances of civil disobedience that have contributed to social, and secured legislative, change to support environmental protection, the rights of First Nations people (here and here), and on one view universal male suffrage in pre-Federation Victoria. By excluding it from the scope of the implied freedom absolutely, the ‘binary approach’ not only neglects that history, but insists on a more restrictive account of democracy that narrows opportunities for political contestation outside of formal political party processes. Increased opportunities for that contestation will be crucial in the climate crisis, where electoral politics organised through established party systems, internal party processes and consultation with industry stakeholders constrain opportunities for ‘bottom up’ democratic engagement.

A Preferable Approach?

The Court should return to the fundamental ideas in the implied freedom test. This involves assessing the legislation that increases penalties for civil disobedience on its own terms, focussing on the “incremental effect of the law on the real world ability of a person or persons to make or receive communications which are capable of bearing on electoral choice” (emphasis added). This concept of ‘real world’ effects from Justice Gageler in Brown is useful. A problem with the structured proportionality test used for the implied freedom — which Justice Gageler has criticised — is that it can abstract the value judgments involved in characterising legislation to a level where their ‘real world’ effects are concealed. The Australian approach is to define the aim of legislation at such a level of abstraction — itself a value judgment — that it is rarely invalidated at this level.

Legislation that targets civil disobedience for increased penalties has a clear purpose. It seeks to isolate a particular societal and political phenomenon for distinct deterrents to those applied in ordinary criminal law, for the purpose of extinguishing that activity and undermining its viability as a political practice. The ordinary criminal law that sanctions crimes of trespass and blockage of roads prescribes penalties calculated to balance aims of deterrence and proportionality in punishment. This additional legislation exists to extinguish what is essentially a political phenomenon, at any cost.

The Court can, and should, consider whether a separate legislative regime to extinguish what is essentially a political phenomenon can be justified as a burden on the implied freedom. While reasonable minds may differ depending on their beliefs regarding political change, the Court must take responsibility for its value judgment on that question. Deference to parliaments increasingly hostile to alternative forms of political contention will only take it so far.