Image: Plaintiffs Helen and Dom outside the NSW Supreme Court. Photo: Environmental Defenders Office.
By WENDY BACON
NSW Labor maintained its support for harsh NSW anti-protest laws at its state conference last weekend, disappointing a broad coalition of civil liberties and environmental groups.
A motion by the Australian Services Union to scrap the laws was defeated by a majority of conference delegates. If it had passed, Labor would have taken a policy to repeal the laws to the state election in March 2023.
NSW Council for Civil Liberties says NSW Labor has failed an important test in the lead-up to the election.
The debate highlighted divisions within NSW Labor. Groups inside the NSW Labor Party including several local branches and unions supported a campaign to win support for the motion. But in a counter move, Deputy Leader Prue Car successfully moved an amendment that defeated the purpose of the motion and fed into propaganda that the laws are directed to violent protest and do not impact on peaceful direct action.
At stake is the future of the draconian Roads and Crimes Legislation Amendment Bill 2022 which passed into law in April following climate crisis protests that blocked roads to Port Botany and Spit Bridge. This law makes it a crime, punishable by up to 2 years in jail and a $22,000 fine, to even briefly obstruct a road or block the entrance to train stations, roads, ports and public and private infrastructure.
The law, which was introduced without consultation and with only one day’s notice, is one of the most oppressive anti-protest laws ever passed in Australia.
Car’s counter-amendment justified support for the laws by referring to a successful Labor amendment that carved out industrial action from the laws and stated: “destructive and violent protest actions cannot be condoned by government”.
Those calling for repeal of the laws disagreed that the ‘carve-out’ for industrial action was wide enough to capture protest actions traditionally mounted by unions. It does not include protests where unionists take action without court approval or with others in support of social justice causes.
In moving his motion, the ASU’s Angus McFarland said, “Progress comes from protest: the eight-hour day; the campaign for equal pay; Medicare; native title; marriage equality; the NDIS; action on climate change; the right to vote; the right to have a voice. We should have pride, not shame, in protest.” Many of campaigns he mentioned have included protests which used peaceful direct action strategies such as lying down on roads or blocking entrances to gates or buildings. McFarland’s speech received loud applause.
Following the defeat of the ASU motion, NSW Council for Civil Liberties President, Josh Pallas issued a media release which stated, “While the law was introduced by the government, it passed with Labor’s support. The ASU’s motion put to the conference gave Labor an opportunity to restore confidence in its support for the right to protest. But they failed in this important test.”
Meanwhile the campaign against the laws continued in the courts.
Last week, two Knitting Nanas protesters Helen and Dom, represented by the NSW Environmental Defenders’ Office, launched a Supreme Court challenge to the anti-protest laws on grounds that they are unconstitutional because they interfere with an implied right to political communication and assembly.
For “Knitting Nannas who use our freedom to protest to push for climate action while floods and bushfires destroy our communities around us, this attack on our democratic freedoms is a slap in the face,” Plaintiff, Knitting Nanna, mother and wildlife carer Dominique said.
“We will ask the Court to find that aspects of these new laws are unconstitutional. Australians like us shouldn’t have to risk imprisonment or bankruptcy to participate in our democracy, and the Government should not be taking away our democratic freedoms.”
Car also referred to the Knitting Nannas challenge in her amendment: “Conference notes the Supreme Court proceedings currently underway relating to the legislation and respects the separation of powers, judicial process and decisions of the court.”
Car did not explain how adopting a policy to scrap laws, considered by many to be a serious violation of civil rights, would disrespect a court hearing of a limited legal challenge that may or may not be successful. NSW CCL were unimpressed.
In response Pallas said, “…Labor hides behind a challenge brought by two courageous activists and climate defenders who are seeking to have their rights vindicated in the courts. It shouldn’t have to come to this. Unjust laws should be dispensed with and not need a court to strike them down. Unionists and Labor members articulately put the case for repeal at Labor Conference. Civil society stands with them all the way.”
Pallas said that Car’s amendments that successfully obstructed the original motion were “very telling about the Labor leadership’s level of respect for the right to protest. The amended references to violent protest are nothing more than a dog whistle. Violence was already otherwise prohibited by the law. These laws exist to stymy peaceful disruptive protest. Nothing more.”
Almost immediately after the NSW Perrottet government announced the laws, Labor leader Chris Minns jumped in to support them. It was a ‘captain’s pick’ that was only later supported by the Labor caucus. Some Labor backbenchers raised problems with the laws in their parliamentary speeches but all voted for them. Only the NSW Greens, Animal Justice and Independent MP Alex Greenwich voted against the laws.
It is more likely that Labor was as much influenced by a tip-off (probably from inside the Labor party) to conservative broadcaster 2GB’s Ben Fordham than by the Knitting Nannas court challenge. Fordham got wind of the motion to repeal the laws at Labor’s state conference in September. In a strong editorial, he portrayed Labor leader Minns as been at risk from ‘fringe’ elements of the party who are trying to ‘derail’ him. He derided the idea that the laws attack the principle of peaceful protest.
“Sydneysiders won’t cop the idea of the blockheads getting a green light”.
What chance now for repeal of protest laws?
The campaign against the protest laws will undoubtedly continue. The best chance for a review in the near future is the election of a minority Labor government in 2023. Greens MPs have committed to repeal and it is possible that a larger cross bench along with civil society groups and progressive unionists could continue to press NSW Labor to change or at least modify its policy. Otherwise, a parliamentary review won’t take place until 2024.
Anti-Protest laws will ‘chill’ protests
There is no doubt that even temporary blockages to traffic seriously annoy some people. For this reason, some climate activists argue that such actions should not be taken because they lose public support. For those (like this reporter) with past experience in protesting, such arguments about tactics are not new.
Not everyone agrees that those who use peaceful direct action protest tactics to cause disruption are ‘blockheads’. Many past actions could now fall foul of these laws. For example, Invasion Day marches pausing for short occupations of road intersections; early land rights protests in which maritime workers protected protesters from the police so they could walk down Sydney roads; Green Ban protests on major property developments; Vietnam protests that blocked roads; and more recently, actions to prevent logging of native forests or endangered wildlife and many anti-Westconnex actions in which Inner West residents peacefully blocked roads or tried to stop demolition of homes on a major infrastructure project sites. The list could go on and on.
There is also concern about the police apparatus that underpins the laws. At around the same time as the laws were passed, the NSW police force set up Strike Force Guard, which aims to “prevent, investigate and disrupt unauthorised protests” (Unauthorised protests are any protests which do not have express police permission.) This has already been used for spying and for targeting particular individuals.
Fears of groups opposing the laws were realised when they had their first test in June before, during and after Blockade Australia protests in Sydney’s CBD.
Police tactics included spying on a peaceful planning camp, breaking it up with scores of armed police, holding people in custody for unusually long periods and then imposing extraordinary bail conditions that prevent people from entering inner Sydney or associating with friends, even through social media or third parties. They have followed and searched suspected protesters in the street and tailed cars.
Two protesters arrested at the peaceful planning camp were kept in prison for weeks. At a small gathering before they appeared in Penrith court, the father of one protester said that he was proud of his son and had come from Victoria to support him.
Amnesty International campaign manager Tim O’Connor criticised the excessive bail conditions that had already been imposed on other protesters, including banning communication with friends, being required to hand over passwords on personal devices and being unable to leave home after 9am.
The following day the two men were released on condition that they travel with their families back to Victoria and not associate with a long list of friends and allies.
When those arrested appear for hearing of the charges against them, magistrates will have a wide range of discretion. This means that the sentencing outcome can depend on the luck of the draw.
Twenty-two year old Mali Poppy Cooper, who uses they pronouns, locked themself onto the steering wheel of a car on the eastern approach to the Sydney Harbour tunnel in June. She was charged under the laws and faced a sentencing hearing in September.Her barrister Mark Davis argued that her actions were linked to trauma caused by the floods in January 2022. The magistrate Jeff Linden dismissed the charges and released her on condition that she seek help of a psychologist for six months.
But legal wins against the worst impact of the laws should not deflect attention from what David Morris, CEO of Environmental Defenders Office described as “the criminalisation of peaceful protest” which “has far reaching and damaging implications for our democracy and linked positive environmental outcomes “.
“Legislation which unjustly restricts people’s freedoms to express dissent ought to be wound back. Heavy penalties and greater restrictions on peaceful protest included in recent reforms are not a proportionate response to non-violent citizen action which draws attention to the climate crisis or other kinds of environmental damage.”
City Hub has spoken to people who are pulling back and thinking twice about protesting in current conditions. It is unlikely however that the laws will deter all peaceful direct action that causes temporary disruption, especially as massive disruption caused by climate change becomes daily more distressing.
Quite apart from the continuing disruption on a myriad of levels including loss of housing and property, damage to water and sewerage infrastructure, damage to roads, suspension of farming and other work, access in and out of towns and loss of life and injury in floods, bushfires and deadly heatwaves in Australia, 12 million residents have been displaced by floods in Northern Bangladesh and Pakistan in recent months. 500 died in floods in Nigeria in recent weeks while more than one million were displaced. Millions are at risk of starvation in Somalia.
As we saw from an action at Van Gogh painting in London last weekend, ‘blockheads’ ,as Fordham calls them, are not alone. After throwing two cans of tomato soup onto the painting, two young women glued themselves to the wall and asked, “ what is worth more, art or life…crops are failing, millions of people are dying in monsoons, wildfires and extreme drought. We cannot afford more oil and gas.” This followed two weeks of protest in London aimed at stopping new oil and gas drilling.
In April, 1000 scientists used civil disobedience tactics after the release of the Intergovernmental Panel on Climate Change report. Chaining himself to the Los Angeles office of oil and gas funder JP Morgan, climate scientist Peter Kalmus said that because his terror for his kids and humanity, he doesn’t understand how scientists can stand on the sidelines and not take action. “It takes courage to break social norms, and it takes courage to risk your career. I think it’s worth it. Life on Earth is at stake. Our kids’ lives are at stake. That’s worth infinitely more than my career. It’s even worth risking my freedom for. At this point, we need to start thinking in terms of ‘deep time.’The action we take today, or the inaction, will reverberate for thousands of generations” he told Morning Star.
Wendy Bacon is a journalist who was previously the Professor of Journalism at UTS. For more on the protest laws, you can read her article in the Saturday Paper about police response to Blockade Australia protests in June.