The Aftereffects of NSW’s Unconstitutional Anti-Protest Laws
In late March 2022, activists from Blockade Australia took to harnesses and ropes to disrupt major economic infrastructure at Port Botany. Over three days, protestors blocked roads, train lines, and marine access to ports. [1] Not even a week afterwards, the NSW government passed the Roads and Crimes Legislation Amendment Act. [2] The NSW Attorney General at the time cited these disruptive series of protests as being the catalyst for the new laws. [3]
This Act amended section 144G of the Roads Act to encompass major bridges, tunnels, or roads as relevant infrastructure that must not be disrupted or damaged. [4] Changes to the Crimes Act saw the introduction of section 214A which made it an offence for a person to trespass and block entry to any part of a major facility if doing so causes damage, disrupts people attempting to use the facility, or causes a part of the major facility to be closed. [5].
Unsurprisingly, these amendments did not go unchallenged. Civil society organisations were quick to label these amendments as ‘anti-protest laws’. [6] The Human Rights Watch decried them as ‘disproportionately punishing climate protesters in violation of their basic rights to peaceful protest’. [7] In October 2022, two members of the Knitting Nannas, a climate activist group, put forward the case that these laws were constitutionally invalid. They were represented by the Environmental Defenders Office in Kvelde v State of New South Wales (Kvelde). [8]
In the matter, the Court found that parts of s 214A of the Crimes Act impinged on the right of freedom of political communication, as implied within the Australian Constitution. [9]
The Court identified that subsections 214A(1)(c) and 214A(1)(d), which together made it an offence to enter a facility if doing so would cause a major facility to be partially closed or cause people attempting to use the facility to be redirected, were invalid. Justice Walton acknowledged that these amendments specifically targeted environmental protests, which he explained were a valid form of political communication due to the value environmental protest adds to the effectiveness of Australia’s democratic system. [10]
What does this mean for lawyers?
These newly introduced anti-protest laws could not be applied to arrestees from last year’s Rising Tide Blockade in Newcastle even though the act of civil disobedience blocked access to ‘the busiest coal port in the world’. [11] Originally a police-approved protest, the situation escalated after attendees on kayaks continued to block port access beyond their allocated 30-hour window. As this event occurred on-water however, the offence fell under the Marine Safety Act s14 ruling that a person must not operate or use a vessel in a manner which unreasonably interferes with the lawful use of navigable waters by other persons. [12] This offence has a maximum penalty of a $5,500 fine, a far cry from the maximum $22,000 fine and 2 years’ imprisonment under s 144G of the newly amended Roads Act. This provides some insight on the limits of s 144G, and some may find a layer of poeticism in the legislation’s inability to enforce the very mischief Parliament sought to discourage.
As held in Kvelde, amendments to s 144G of the Roads Act are still in full force, as the Court did not find them beyond the scope of regulation-making power. [13] As for the Crimes Act, although the amendments are still in place, s 214A (c) and (d) now include editorial notes referencing their invalidity as a result of the Kvelde decision. [14] In recent cases involving constitutionally invalid laws, amendment acts such as the Australian Citizenship Amendment (Citizenship Repudiation) Act have been created to repeal the defunct laws. [15]
A new precedent has been established in NSW, declaring that protests on environmental issues constitute political expression. This decision builds upon the established authority held in the High Court matter of Brown v Tasmania [16], which was heavily referenced in Kvelde. It is worth observing that the growing catalogue of case law protecting environmental protests could have meaningful ramifications on the punishments delivered to environmental activists across Australia.
[1] Laura Chung, ' Activists slam new anti-protest laws as ‘knee-jerk’ after three days of protests', The Sydney Morning Herald (online, March 24 2022) <https://www.smh.com.au/environment/climate-change/who-is-behind-the-port-botany-protest-and-what-do-they-want-20220323-p5a7c0.html>.
[2] Roads and Crimes Legislation Amendment Act 2022 (NSW).
[3] New South Wales, Parliamentary Debates, Legislative Assembly, 30 March 2022, 8938 [84].
[4] Roads Act 1993 (NSW), 144G.
[5] Crimes Act 1900 (NSW), 214A.
[6] ‘Open Letter against anti-protest laws’, CounterAct (Online, 31 March 2022) <https://counteract.org.au/open-letter-against-anti-protest-laws/>.
[7] ‘Australia: Climate Protesters’ Rights Violated’, Human Rights Watch (online, 22 June 2022) <https://www.hrw.org/news/2022/06/22/australia-climate-protesters-rights-violated>.
[8] Kvelde v State of New South Wales [2023] NSWSC 1560.
[9] Ibid [519].
[10] Kvelde v State of New South Wales [2023] NSWSC 1560, [484].
[11] Paul Gregoire, ‘Getting Arrested at the Nation’s Largest Civil Disobedience Action for Climate’, Sydney Criminal Lawyers (online, 28 November 2023) <https://www.sydneycriminallawyers.com.au/blog/getting-arrested-at-the-nations-largest-civil-disobedience-action-for-climate/>.
[12] Marine Safety Act 1998 (NSW), s 14.
[13] Kvelde v State of New South Wales [2023] NSWSC 1560 [2-3].
[14] Crimes Act 1900 (NSW), 214A.
[15] Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023 (Cth).
[16] Brown v Tasmania [2017] HCA 43.