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New South Wales’ Anti-Protest Laws Are Deeply Problematic

“This is some of the most anti-democratic legislation I’ve ever seen.”

by Lavender Baj  29 June 2022
nsw protest

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Climate action activists have made headlines again this week as multiple protests organised by Blockade Australia have caused disruption across Sydney.

As is to be expected, the protests have been met with a high police presence — with allegations of cops using excessive force and threats of fines and jail time for those involved.

But what exactly is the legality of the situation? Do New South Wales residents still have the right to peaceful protest, and what do the climate protests mean for our rights more broadly?

What Are The NSW Laws?

Under tough, new anti-protest laws passed through the NSW Parliament back in April, protesters can face up to two years in prison and fines of up to $22,000.

The new laws are designed to target those who want to wreak “economic chaos” in New South Wales, according to the Parliament.

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Protesters can be fined for illegal protests on public roads, rail lines, tunnels, bridges and industrial estates in Sydney — as well as ports in Newcastle, Port Kembla and Port Botany. Previously, the fine for illegal protesting was only $400.

“The old laws, at $400 a pop, were no deterrent,” New South Wales Attorney-General Mark Speakman said. “We have to give these laws a go.”

The new laws — passed by the Perrottet Liberal government — received the support of the NSW Labor Party, but were opposed by the NSW Greens for being undemocratic.

“That’s not just bad public policy, it’s deeply anti-democratic,” said David Shoebridge at the time.

“This move to target political and environmental campaigners may well be in breach of the constitutional protections for political communication and we anticipate a court challenge on them very soon.”

But Don’t We Have A Right To Protest?

Technically speaking, Australians have the right to freedom of political expression — including the right to peaceful protest — under the Australian Constitution. This means, in theory, you cannot be charged for participating in a political protest.

However, there are a number of offences associated with protesting — such as obstruction, unlawful assembly and disorder-related charges that you can, and will be prosecuted for if caught by police.

Following the NSW laws, other states like Tasmania have moved to pass similar legislation to crack down on protesting.

So how protected is our right to protest, really?

Protests Are Inherently Disruptive

When the laws first came into effect, NSW Attorney-General Mark Speakman asserted that the laws weren’t designed to stop organised strikes — like those happening this week — but to prevent total economic shutdown.

“What we are stopping, or criminalising even further, are protests that shut down major economic activity,” he said.

However, as protester Mali Cooper — who was detained by police for 30 hours after blocking the entrance to the Harbour Bridge tunnel — told The Project, protests are disruptive by nature.

“Disruption has been proven time and time again to have an impact and to have an effect that allows change to happen. Some people may see what I did as incredibly radical but we need radical change to save the planet,” said Cooper.

The Laws Have Been Criticised As A Threat To Democracy, But Are Unlikely To Change

The new laws have been repeatedly criticised by the Greens — who have accused the government of only implementing the legislation to target climate activists.

“The government did nothing when there were thousands of right-wing anti-lockdown protesters blocking the streets during lockdown,” said Greens member for Balmain Jamie Parker. “It’s only when climate activists take action that the government says we need draconian laws to stop them.”

Unions have also called out the laws, pointing out that nurses and teachers who are striking for basic working rights could be thrown in jail. “This is some of the most anti-democratic legislation I’ve ever seen,” secretary of Unions NSW, Mark Morey told The Guardian. “It’s completely bloody-minded. The worst sort of bullying of the workforce I’ve seen in many years.”

The policy has also been slammed by the Aboriginal Legal Service, NSW Council for Civil Liberties, the Human Rights Law Centre and the Environmental Defenders Office.

“The Aboriginal Legal Service was born out of a protest movement in the 1970s. You would be hard-pressed to find any win for Aboriginal and Torres Strait Islander peoples’ rights that wasn’t brought about by public protest,” the Aboriginal Legal Service said in a statement. “The right to assemble and demonstrate in our streets, towns and cities is a fundamental cornerstone of democracy. For marginalised communities, public protests enable us to be seen and heard, even — and especially — when those in power would rather suppress our voices.

“We condemn in the strongest terms this government crackdown on our right to protest.”

Blockade Australia Isn’t Stepping Down, Even Amid Jail Threats

Despite arrests — including ten protesters who were detained in police custody on Monday alone — Blockade Australia stresses its work will continue all week.

“Disruption to the infrastructure of Australia’s project of exploitation is essential in cutting through the climate denial that this system survives off,” Blockade Australia told The Guardian in a statement. “Our collective survival rests on organised opposition and the use of strategic direct action to stand against this project of destruction.”

Blockade Australia has also alleged that journalists were not permitted to enter the courtroom to report on the prosecution of protesters.

“Courts are not allowing journalists to enter to report on proceedings concerning Blockade Australia climate activists. This carceral state is trashing our freedom of expression, assembly, movement and now freedom of the press as well. Australia, the colony,” said Blockade Australia in a statement.