Key Takeaways

Under the new NSW legislation, persons could be fined up to $22,000 and/or jailed for a maximum of two years for protesting illegally on public roads, rail lines, tunnels, bridges, and industrial estates.

The NSW Parliament has passed new laws to target protestors disrupting major roads and facilities, with the state government aiming to prevent “economic chaos”.

Under the new legislation, persons could be fined up to $22,000 and/or jailed for a maximum of two years for protesting illegally on public roads, rail lines, tunnels, bridges, and industrial estates.

Metropolitan Roads Minister Natalie Ward, a key member behind the reform, commented that she “wasn’t prepared to have a small group of selfish, disruptive protesters continue to hold our state to ransom.”

The action came after numerous protests, mainly for action on climate change.

Members of Blockade Australia recently staged protests on bridges, roads, freight rail lines and a crane around Sydney’s Port Botany, the largest container hub in NSW.

Furthermore, members of ‘Fireproof Australia’ were arrested after blocking peak-hour traffic on the Princes Highway in Sylvania, by holding banners across the road.

Ward wrote an opinion piece for the Sydney Morning Herald, aiming to explain ‘why’ she changed the law for protestors, largely centring on when she was stuck in traffic on Spit Bridge after protestors sat in the middle of the road.

“In case you were wondering how NSW ended up with some of the most draconian anti-protest laws in the world: a Minister got inconvenienced by a protest against her own party’s inaction on climate change.” commented Abigail Boyd, Greens MP.

Attorney-General Mark Speakman said that the laws applied to activities that “shut down major economic activity” and that the state government was “on the side of climate change action”.

“There seems no doubt the law is a response to protest actions motivated by concerns as to climate change and the failure to abate it through different energy policies. The policy questions this raises are complex. It cannot in my view be suggested the laws are not aimed at activity that can legitimately be criminalised, they certainly are so aimed.

“The real question is whether the laws are proportionate to a particular social problem and whether their reach is too broad. These are questions, in the context of the engagement of the right to protest, that deserve a judicial answer in my view. Our parliaments’ have not historically proven to be reliable defenders of fundamental human rights.” explained Barrister, Stephen Lawrence.

NSW Labor supported the amendments to the legislation in parliament.

Despite this, the Greens argued that the laws undermine the ability of people to peacefully protest and opposed and tried to amend parts of the bill.

Greens NSW Senate Candidate David Shoebridge commented that the government was trying “to jail their political opponents”noting that “that’s not just bad public policy, it’s deeply anti-democratic.”

The amendments were passed in relation to the Crimes Act 1900 (NSW) named the ‘Crimes Amendment (Major Facilities) Regulation 2022’ and the Roads Act 1993 (NSW) named the ‘Roads Amendment (Major Bridges and Tunnels) Regulation 2022’.

Pursuant to section 214A of the Crimes Act (1900) (NSW), a person must not enter, remain on or near, climb, jump from or otherwise trespass on or block entry to any part of a major facility if that conduct:

  • causes damage to the major facility,
  • seriously disrupts or obstructs persons attempting to use the major facility,
  • causes the major facility, or part of the major facility, to be closed, or
  • causes persons attempting to use the major facility to be redirected.

Major facilities are defined to include:

  • Railway stations or other public transport facilities, including ferry terminals,
  • Ports, including Sydney Cove Passenger Terminal,
  • Infrastructure facilities, which include distribution centres, power stations, and airports.

Pursuant to section 144G of the Roads Act 1993 (NSW), it is an offence to enter, remain on, climb, jump from or otherwise trespass on any part of the Sydney Harbour Bridge or any other major bridge, tunnel, or road if that conduct:

  • causes damage to the bridge, tunnel, or road, or
  • seriously disrupts or obstructs vehicles or pedestrians attempting to use the bridge, tunnel, or road.

A person will be taken to have ‘seriously disrupted or obstructed’ traffic if the bridge, tunnel, or road must be closed or vehicles or pedestrians are redirected.

A major bridge, tunnel, or road is defined to include a main road, a highway, a freeway, a tollway, a bridge, or tunnel joining any of the aforementioned roads, or one located in the Greater Sydney Region, the City of Newcastle, or the City of Wollongong.

What are the new penalties for protesting in NSW?

The maximum penalty for each offence is a fine of $22,000 and/or 2 years imprisonment.

Defences are provided under both sections where the person has a reasonable excuse for the conduct, or it is part of an industrial action, dispute, or campaign.

The offences are also inapplicable where the conduct occurs at the workplace at which the person works.

Furthermore, authorisation may be provided by the NSW Police Force, another public authority, the owner, and operator of the facility (in the case of a privately owned facility), or Transport NSW (in the case of a public bridge, tunnel, or road).

Many advocates for human rights have criticised the recent legislation and advocated for wider law reform with respect to how protests are dealt with.

“The “right to protest in NSW” is a misnomer. We have no bill of rights enshrining it and no statutory regime that protects it. The regime in the Summary Offences Act for protest approval only creates a limited immunity from certain offences. This law is likely constitutionally valid and will not need to be consistent with a constitutionally enshrined right to protest in order to be so.

“If there was such a protection the proportionality and effect of the law could be considered by a court in determining validity. The controversial passage of this law is yet another reminder that we need a bill of rights endorsed by the community and given the force of a supreme law so that there can be independent objective determination of whether laws, often rashly passed and poorly drafted, are consistent with basic human rights.” explained Barrister, Stephen Lawrence.

Notably, under Australian law there is no positive guarantee in relation to the right of persons to gather in a public place. Here is more on protesting law in New South Wales.

Participation in a public assembly may leave persons liable to a variety of charges including unlawful assembly, obstructing persons or traffic, riot, offensive behaviour, or they may be directed by police to ‘move on’.

Protests referred to as ‘public assemblies’ are largely governed under Part 4 of the Summary Offences Act 1988 (NSW).

A public assembly is defined as an “assembly held in a public place, and includes a procession so held”.

Pursuant to section 23, organizers may gain authorization for a public assembly from the Commissioner of the NSW Police.

Gaining authorization involves serving a notice (more than 7 days prior to the event) containing a proposed date, the time and place, the route if is involves a procession, and the purpose of the assembly.

The Commissioner will then consider the notice and determine whether to authorize the holding of the public assembly.

Alternatively, the Commissioner may apply to the Court for an order prohibiting the holding of a public assembly.

Organizers may apply to a Court for an order authorising the holding of the public assembly, if the notice is served less than 7 days before the event, or the Commissioner has not responded yet regarding authorization, pursuant to section 26.

If authorization is gained, and the public assembly is held substantially in accordance with submitted plans, persons will not be found guilty of offences related to participating in an unlawful assembly, obstructions of traffic laws, or subject to ‘move on’ directions.

However, if authorization is not gained, participants will not be exempt from any offence(s) relating to the participation of an unlawful assembly, obstructions of traffic laws, or move-on directions.

Notably, it is not specifically a crime to participate in an unauthorised public protest (known as an unauthorised or prohibited public assembly) in NSW.

It is an offence to knowingly join an unlawful assembly or continue in it, if it involves 5 or more people, with the common objective, by means of intimidation or injury, to compel a person to do what the person is not legally bound to do or to abstain from doing what the person is legally entitled to do.

Pursuant to section 545C of the Crimes Act 1900 (NSW), a maximum sentence of up to 6-months jail and/or $550 fine is applicable.

By Poppy Morandin.

Image credit: A Sharma

Published on 18/05/2022

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