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The New South Wales Supreme Court has ruled that criminalising activities that cause partial closures or redirections around ports, train stations, or infrastructure facilities is constitutionally invalid, thus partially striking down anti-protest laws introduced to state parliament last year.

The laws were passed in April 2022 following various climate protests, including those by Blockade Australia on bridges, roads, freight rail lines and a crane around Sydney’s Port Botany, the largest container hub in NSW.

They meant that protestors faced a maximum of 2 years imprisonment and/or a $22,000 fine for causing damage or disruption to a major facility, and major bridge, tunnel, or road.

Helen Kvelde and Dominique Jacobs, who are members of the Knitting Nannas protest group, sought a declaration that the laws created (section 214A of the Crimes Act 1900 (NSW) and clause 48A(1) of the Roads Regulation 2018 (NSW)) were invalid.

They both have a history of engaging in protest actions as part of this group, including protesting on or near roads, train stations and ports about environmental and climate change issues.

For section 214A, they argued that it was invalid as it infringes the implied freedom of political communication, whereas for clause 48A(1) they argued that it is beyond the scope of the regulation-making power contained in the Roads Act 1993 (NSW).

The implied freedom of political communication is not ‘a personal right of free speech’ but rather works as a restriction on legislative power to preserve and protect our system of government – which necessitates political communication.

Ultimately, a main argument submitted was that it impacts a wide range of protest activities, including those in popular places such as train stations, and associated areas (i.e., Town Hall and Martin Place).

Jacobs noted: “Protesting at central locations, which in my experience are often near train stations, like Martin Place, provide an accessible means to allow persons, such as myself, to come and express their views about the climate crisis.

“Going forward, the [impugned laws] will have a big impact on me – I don’t think I would risk the possibility of arrest for simply being near the Martin Place train station as part of an action with the Nannas to engage with the community.”

Justice Michael Walton held that the amendment to the Crimes Act: “deters lawful protest activity by the imposition of a broad prohibition on such activities.”

His Honour noted that the law is likely to discourage protests of all kinds at specified locations which are often used for political communication, such as remaining near Town Hall Station for a protest at Town Hall.

Justice Walton said: “in my view, the adverse effect of s 214A on the implied freedom in terms of deterring otherwise lawful protests significantly outweighs the benefit sought to be achieved by more effectively deterring any conduct that may disrupt major facilities themselves. It does represent overreach from the legislative purpose.”

He found that two sub-sections of the offence under section 214A – namely subsection 214(1)(c) which pertains to causing part of a major facility to be closed and subsection 214(1)(d) which pertains to causing a person attempting to use the major facility to be redirected – were invalid.

He dismissed other arguments pertaining to the remaining subsections of 214A, which relate to causing serious damage, disruption, or complete closure of a major facility and those related to the Roads Regulation 2018.

His Honour noted that there was a “substantial deterrent or chilling effect resulting from the increased penalties introduced.”

The first person to be sentenced to imprisonment under these laws was Deanna ‘Violet’ Coco who was originally sentenced to 15 months imprisonment, with a non-parole period of eight months.

Coco appealed this sentence and was instead issued with a 12-month conditional release order, which is essentially a good behaviour bond.

Her and three others drove a truck onto the Harbour Bridge in morning peak-hour traffic as part of a ‘Fireproof Australia’ protest against climate inaction.

The group climbed onto the roof of the vehicle, lighting orange flares and livestreaming.

The protest involved one of the bridge’s five city-bound lanes being blocked for around 25 minutes by a truck, during morning peak hour, before officers were able to remove the protestors.

It is important to note that the decision remains a ‘partial win’ for protestors, with aspects of the laws remaining in force.

Section 214A of the Crimes Act 1900 (NSW) prescribes that 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.

To be considered an offence under this section, the conduct must:

  • cause damage to the major facility,
  • seriously disrupt or obstruct persons attempting to use the major facility, or
  • cause the major facility to be closed.

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.

The other offence introduced as part of this law reform was section 144G of the Roads Act 1993 (NSW) which provides that 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, as defined by clause 48A of the Roads Regulation 2018 (NSW).

The maximum penalty for both offences 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).

Image credit: P Benny Marty 

AUTHOR Poppy Morandin

Poppy Morandin is the managing law clerk and an integral part of the team of criminal lawyers at Criminal Defence Lawyers Australia . She's also a part of CDLA's content article production team. Poppy is passionate about law reform and criminal justice.

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