The Road to Repression

On 2 December 2022, the UN Special Rapporteur Freedom of Association sent a remarkable Tweet. “Australia – ”, the Special Rapporteur tweeted, “I  am alarmed at #NSW court’s prison term against #ClimateProtester Deanna Coco and refusal to grant bail until a March 2023 appeal hearing. Peaceful protesters should never be criminalised or imprisoned.” The Special Rapporteur was referring to the arrest of Deanna ‘Violet’ Coco to 15 months in prison with a non-parole period of eight months for blocking one of five lanes of traffic on Sydney Harbour Bridge during a climate change protest for 28 minutes. Coco’s actions were inconvenient but there is no allegation that they were in any way violent. Coco was initially denied bail prior to her appeal, an extraordinary decision at odds with usual practice for non-violent offenders who have abided by their previous bail conditions. Whilst the refusal of bail was later overturned, Coco’s arrest for peaceful protest and term of imprisonment, and the arrest of others, continues to be a significant concern at the time of writing.

Coco was arrested under NSW anti-protest legislation that was passed in April 2022 to target environmental protestors, in particular protest “activities that caused major disruptions to the New South Wales transport network”, or “major traffic delays”.

This blog post will explain the regulation of protest in NSW and the operation of the new anti-protest legislation. It will outline why the new anti-protest laws are likely to be unsuitable, inadequate and unnecessary to achieve their purpose and therefore unconstitutional and why they may also place Australia in violation of its international obligations to protect freedom of assembly and speech.

There has been a proliferation of anti-protest laws across Australia targeting protestors taking increasingly disruptive measures to draw attention to catastrophic climate change.  The NSW anti-protest laws, however, are the most draconian in the country owing to their wide application and harsh penalties. Whilst the NSW anti-protest laws were passed in response to environmental protests, the hefty fines and jail terms can be used against any protestors that fall foul of the legislation including those protesting for women’s rights, Indigenous rights, refugee rights or even participating in anti-vaccination or lockdown protests. They set a dangerous precedent for other jurisdictions and are a threat to democracy.

Regulation of Protest in NSW

As Australia is a federation, the regulation of protest falls largely within the purview of Australia’s states and territories. Coco’s imprisonment was made possible by the passing of the Roads and Crimes Legislation Amendment Act 2022 (RCLAA) in April 2022 in New South Wales (NSW). Legislation, that enabled certain protestors to be punished with up to $22,000 and two years in jail in the state.

The Bill for the RCLAA was met with fierce opposition from civil rights and environmental groups. In an open letter, 39 legal, human rights and community organisations “called on the NSW government to cease the introduction of draconian penalties for protest” and argued that “such laws are incompatible with the democratic right to protest and our fundamental civil liberties”.

Protest is not illegal in NSW. However, protestors, regardless of the cause they are protesting, have always run the risk of being charged with a range of offences, even prior to the passing of the RCLAA. To avoid the risk of punishment relating to their participation in the protest or their obstruction of people or vehicles in a public place, protestors in NSW have to apply to have their planned protest authorised in advance. If successful, they can protest without being charged for these very limited actions. They remain liable, however, for all other criminal sanctions including for any damage to property or harm to others.

If a protest is not authorised, protestors can lose their immunity against criminal charges for participation in the protest or their obstruction of people or vehicles in a public place.

Even if a protest is authorised in NSW, the NSW police still have the discretion to decide when a protest has gone too far and is no longer ‘substantially in accordance’ with what was authorised.

Even more broadly, police have the power to ‘move on’ protestors if they believe ‘on reasonable grounds’ that such a direction is ‘necessary to deal with a serious risk to the safety of the person to whom it is given or to any other person’.

So what’s new about the new law?

The RCLAA created much bigger penalties for those protestors who engage in certain behaviour that causes damage or disruption to major roads or major public facilities.

The RCLAA amended the Roads Act 1993 and Crimes Act 1900 so that protestors who damage or disrupt a major facility or “damage, [cause] disruption or [cause] obstruction of [the] Sydney Harbour Bridge and other major bridges, tunnels and roads” face a maximum penalty of $22,000 or imprisonment for two years, or both.

The penalties apply to “a main road’, ‘highway’, ‘freeway’, ‘tollway’, ‘a bridge or tunnel in the Greater Sydney Region … the city of Newcastle [or the] …City of Wollongong”.

The NSW Government has argued that the purpose of the legislation is to avoid major inconvenience and severe financial impacts caused by political protests.

Yet, it has also conceded that existing laws already address these issues. The main impetus for the laws appears to be the creation of harsher penalties to deter certain kinds of protests.

Which protests are affected?

The new laws were passed to target environmental protestors following Blockade Australia’s disruption of traffic across Sydney in early 2022. However, the RCLAA’s impact is far reaching and is not limited to environmental protests.

The RCLAA’s broad application can be seen for example in the penalisation of a person entering, remaining on, being near, climbing, jumping from or otherwise trespassing on or blocking entry to any part of a major facility with a “major facility” being defined to include railway stations; private ports or infrastructure facilities.

Among many problematic aspects is that it is not clear what is meant by a person ‘being near’ a major facility. Can a child striking for climate and peacefully sitting near a Sydney train station be fined $22,000 and face two years in jail if they cause the public to move around them? The short answer is yes- potentially.  Under existing laws- even being near a major road or facility when protesting may get you fined or jailed in NSW.

A person can also be subject to this very hard penalty if they damage, disrupt or obstruct Sydney Harbour Bridge and other major bridges, tunnels and roads. This covers “main roads’, ‘highways’, ‘freeways’, ‘tollways’, ‘a bridge or tunnel in the Greater Sydney Region … the city of Newcastle [or the] …City of Wollongong”.

As a compromise to secure the vote of the centre-left Labor party, the RCLAA does not affect protests if the conduct forms part of an industrial action, dispute or campaign. Nevertheless, the union movement remains validly concerned about the laws because the carve out does not protect union members who participate in protests in solidarity with the industrial actions of others or protect union members who are protesting on issues not related to industrial action. Many in the Union movement have spoken out against Coco’s jailing and their ongoing concerns with the NSW anti-protest laws.

Does the RCLAA comply with the Constitution?

Australia does not have a bill of rights and Australians do not enjoy an individual right to protest under the Australian Constitution.

However, the Constitution does contain an implied freedom of political communication. As such, any legislation that takes away the right to communicate (including via protest) about political matters could be found to be unconstitutional – and therefore invalid – under certain circumstances.

First, it would be reasonable to expect the Australian courts to find that the RCLAA places a burden on political communication because it threatens hefty fines and jail time for certain kinds of protests.

Second, the courts would have to look at the purpose of the law and determine whether it is legitimate to limit political communication to achieve that purpose.

If the courts finds that the purpose of the legislation is indeed to avoid major inconvenience and severe financial impacts caused by political protests, as claimed by the NSW government, then it will ask if the RCLAA is necessary, suitable and adequate for avoiding those by limiting political communication.

Considering that existing laws already address potential major inconvenience and severe financial impacts caused by protests, as well as the importance of the implied freedom of political communication to Australian democracy, it is likely that Australian courts would find some of the amendments introduced by the RCLAA to be unsuitable, inadequate and unnecessary to achieve their purpose. In such a case, the offending parts of the RCLAA would be found to be invalid.

A legal challenge to the Constitutional validity of the RCLAA is currently underway in NSW. At the time of writing, no decision had yet been made on this issue.

What about obligations under international human rights law?

It is also highly unlikely that the RCLAA would comply with international law.

Australia is a party to the International Covenant on Civil and Political Rights (ICCPR) which protects freedom of speech and freedom of assembly (Articles 19 and 21), so any legislation limiting protest must comply with this.

The ICCPR only protects ‘peaceful’ protest, that is, protests that are not “characterised by widespread and serious violence”. Disruption is not the same as violence and the RCLAA does not distinguish between peaceful or violent protests. So, the punishment of protestors who are disruptive but not engaged in widespread and serious violence under the RCLAA would not be permitted under international law.

The NSW Government could try to argue that the activities penalised under the RCLAA are necessary to protect public order. However, international human rights law places great significance on the right to protest and stresses that any restrictions on this right must be proportionate, appropriate and the least intrusive option to achieve the desired result. Public authorities must afford assemblies that do not meet domestic legal requirements a degree of tolerance.

On this basis, it is unlikely that the RCLAA would be found to be valid because the punishment for the disruption ($22,000 or two years in jail) is not proportionate to the aim of maintaining public order and existing laws for the same purpose are less intrusive.

However, even if the RCLAA places Australia in violation of its international obligations, there are few avenues for protestors to enforce their international human rights in Australia.  Under Australia’s dualist model international law does not become Australian law unless municipal legislation is passed incorporating such obligations. In the absence of a bill of rights at the Commonwealth level or enshrined protections of the freedoms of assembly and speech at the state level, protestors in NSW remain vulnerable to state overreach.

Why we must protect the right to protest

The RCLAA is not the only cause for concern. NSW police are dedicating significant resources to the stifling of peaceful protests including through the creation of Strike Force Guard, to concentrate police resources on protest activity. There are accounts of disruption of planned protests through pre-emptive  raids and reports of people being visited in their homes by police and warned against taking protest action-  people who have sometimes had no interactions with the police in the past. This is really concerning and undoubtedly a blatant attempt to have a chilling effect on a democratic right.

Protest action – including the kinds of disruptive actions penalised by the RCLAA – is a fundamental cornerstone of any democratic society. Protest movements have led to victories for the labour movement, movements for gender equality, LGBTQI+ movements, environmental rights movements and many other social and political movements in Australian history. Protest is the cornerstone of any democracy because it allows anyone, even those without political connections or financial backing from corporate interests to take to the streets and demand change. Protests can be uncomfortable, particularly for those who disagree with them. But sometimes a little disruption and a little discomfort is worth enduring to protect democracy and human rights.