In Germany, disruptive protest demanding climate change mitigation policies has provoked popular and constitutional discussion. Commentators have questioned whether acts of illegality committed as civil disobedience should be treated distinctly from ‘ordinary’ criminality and punished more leniently. In other parts of the world, however, legislative activity has singled out the illegality involved in civil disobedience to the opposite end. Legislatures have introduced laws that radically increase penalties for existing offences involved in disruptive protest and blockades, conferred new powers on police, and created new offences for previously legal forms of protest.
In this post I explore an Australian legislative trend of the last decade that specifically targets environmental civil disobedience by imposing additional criminal penalties upon its exercise. The Australian case study is a cautionary tale of what can follow a failure to recognise democratic value in civil disobedience and treat it with constitutional nuance. Unlike in Germany, Australian climate and environmental activists do not employ constitutional arguments to frame their demands. Civil disobedience is also established in the Australian political tradition, and was the origin story of the world’s first Green political party. In recent years, however, state legislatures have become active against protestors in the old growth forest, animal and climate protection movements. Court treatment of that legislation, while divergent and at an early stage of development, has tended to reduce constitutional analysis to questions of legality and the need to disincentive criminal conduct. I suggest some reasons why courts have adopted this approach, which resembles Jürgen Habermas’ description of ‘authoritarian legalism’, notwithstanding Australia’s political history. The Australian example demonstrates the role that courts and constitutions can play in prescribing avenues for political and social change even in cases where they are textually ‘minimalist’ or practice parliamentary deference. It warns against collapsing the practice of democracy and the meaning of the constitutional mechanisms that protect it to the meaning given by a parliament at a particular time.
Recent Trend of Legislative Backlash
The island state of Tasmania is home to some of the world’s oldest and tallest forests. It has been a site of intense conflict between conservationists and state and industry actors seeking to extract economic value from its rich natural resources. Protests have been influential, deciding elections and successfully blockading projects so that they became unviable. Protests have leveraged federal politics to secure Commonwealth intervention and protection of forests.
In 2014 a conservative state government was elected on a promise to “tear up” a deal between industry and environmental movements and open up protected forests not covered by heritage listing. It enacted legislation to ensure that protestors would not “damage business premises” or “obstruct the carrying out of business activities” on logging sites. The legislation prohibited participation in a “demonstration, parade, event or a collective activity” on “business premises” without the consent of the “business occupier”. Provisions empowered police officers to arrest protestors without warrant and remove them from areas designated as business premises, which could include public places and roads. This legislation was successfully challenged for breaching a constitutionally implied freedom of political communication, which I explore below.
The Tasmanian government has passed subsequent legislation — most recently in 2022 with bipartisan support — attempting to respond to the Court’s objections while still increasing penalties for protest on logging sites. The most recent bill increases criminal penalties and treats protest on business premises as aggravated trespass, an offence previously reserved for situations such as trespass involving a firearm. MPs have been transparent that additional penalties introduced against organisations are targeted at the Bob Brown Foundation, a civil society organisation at the centre of the Tasmanian forestry movement. In 2022 the Victorian state government passed similar legislation increasing criminal penalties for protest on logging sites.
Animal activists engage in civil disobedience when they trespass into animal agricultural facilities to document and distribute footage of animal treatment. This serves a similar purpose to disruptive environmental protests, which I explore below. Mainstream politics assigns a particular value to animals as property and as a resource for extracting wealth and enabling consumption. But other values are also assigned to animals that sit in tension with that treatment. By recording and distributing footage of commercial animal agricultural facilities, animal activists seek to highlight contradictions between those ways of assigning value.
Visual footage of animal mistreatment is distinct in its capacity to communicate and persuade. It taps into certain social values and emotions — concern for animal welfare, and aversion to cruelty and violence — that sit in tension with the way that other social and economic structures assign value to animals. The power of visual footage to persuade, and of visual evidence of abuse obtained undercover to cause change, reflects in the reality of political practice: footage obtained by activists has exposed breaches of law, prompted investigations of businesses for animal mistreatment, driven legislative change and improved standards, affected consumer choices, and led to the closure of abattoirs unwilling or unable to comply with regulatory standards. Material obtained through trespass has also exposed breaches of welfare codes that regulators have been unable to expose because of a lack of resources and the warning that operators receive prior to inspection of premises. In Germany, for instance, activists have availed themselves of the defence of necessity because the act of trespass ultimately exposed other violations of law.
‘Ag-gag’ legislation targets undercover investigations and whistleblowing in animal agriculture. Originating in the United States in the early 1990s, ‘ag-gag’ legislation can impose greater penalties on activists that trespass to obtain footage, restrict the distribution of footage obtained during that trespass, or penalise misrepresenting membership of an animal rights organisation when pursuing employment with an agricultural facility. A ‘second wave’ of ag-gag legislation has emerged over the past two decades, spreading from the United States to Australia and Canada.
In 2007 the New South Wales government passed the Surveillance Devices Act, which included a prohibition on disseminating material that had been recorded on private premises without consent. It did not provide for an exemption for material in the public interest, unlike legislation in other Australian states. This meant that, while the legislation was not designed to work as ‘ag-gag’ legislation, it can be applied in this way. Subsequent laws introduced in New South Wales, Queensland and South Australia have introduced aggravated penalties for trespass onto farms to interfere with a business, damage property or release livestock. In 2022 Farm Transparency Ltd, an animal protection charity, brought a constitutional challenge to provisions of the New South Wales Surveillance Devices Act that prohibit dissemination of footage. This was narrowly upheld by the Australian High Court for reasons I explore below.
Disruptive Climate Protests
Disruptive protests are a social movement tactic that seeks to shape political agendas. They work by influencing the broader political and social environment in which institutionalised political processes operate. In some historical cases movements have relied on disruptive protests to expose a lack of social licence for a particular activity. In others they have sought to ensure a topic remains on the political agenda because of the disruption that a violation of the law attracts. The willingness of activists to expose themselves to criminal sanctions can itself be a form of persuasion, communicating the seriousness of the activists’ convictions. To understand the function of disruptive protest, it is important to distinguish between mainstream political activity within institutions — which seeks popularity and public support, affirmed at elections — and activity targeted at the broader political ecosystem and norms that influence the rules and opportunities for action within mainstream institutions. Disruptive protest may be unpopular at the time, because it is confrontative, conflictual and cultivates what Martin Luther King Jr described as ‘creative tension’. Social movements have used it successfully throughout history, however, even if that success was not apparent at the time. That success reflects that conflict, tension, discomfort and emotions such as anger and moral shame are often the motors of social and political change. It can extend the Overton window for acceptable arguments within mainstream politics, alter how the more ‘moderate’, mainstream flank of a movement appears, and expose contradictions in values in mainstream politics.
Across the world, disruptive protest has become a popular tactic for flanks of the climate movement. Since the disruptive climate protest movement became active in Australia, state legislatures have increasingly moved against it. In 2019 the Queensland Parliament passed legislation introducing jail terms for using certain lock on devices such as ‘dragon’s dens’ and tripod suspension devices that are difficult for police to remove without causing injury. In 2022 the New South Wales Parliament passed legislation that made disrupting, blocking or causing the closure of prescribed railway stations, ports or infrastructure an offence. An exemption was carved out for industrial action. It also introduced an offence of disrupting or obstructing Sydney Harbour Bridge, except as part of an industrial action. In December 2022 protestor Deanna ‘Violet’ Coco was sentenced under the legislation to 15 months in prison with a non-parole period of eight months for blocking a lane on Sydney Harbour Bridge for 28 minutes. Her sentence was later overturned on the basis that police had misled the Court during the initial sentencing by claiming Coco had blocked an ambulance. Helen Kvelde and Domonique Jacobs, activists from the Knitting Nannas, brought a constitutional challenge to the New South Wales legislation in May.