As a favour to its mates in the state mining industry, the New South Wales Coalition government passed legislation in March 2016 amending the Inclosed Lands Protections Act. The bill created the offence of aggravated unlawful entry on inclosed lands, which is land or a building where a business is operating.
It also upped the penalty that applies to trespassing on such property tenfold: from a fine of $550 to $5500.
Right now, the NSW government has the Right to Farm Bill before parliament. Ostensibly to protect farmers, the bill lowers the bar as to when aggravated inclosed land trespass applies and raises the penalty to $13,200 for a sole trespasser, or $22,000 when in company.
This reflects an ongoing project, not just by NSW, but all Australian governments, to prevent citizens from venting warranted opposition to destructive industries and businesses, as well as government itself.
However, the fact that governments are continuing to pass laws that criminalise protesters shows this attempt to silence dissent isn’t working.
Criminalisation
Charles Sturt University criminal justice lecturer Dr Piero Moraro told Sydney Criminal Lawyers that while anti-protest legislation, such as the inclosed land amendments and the farming bill, are framed as providing protection to workers and farmers, it is really about shielding business and criminalising activists.
Moraro said: “There’s this underlying narrative that this is not civil disobedience. These are not good people. These are criminals, who have to be stopped.
“But, when we look at these laws, we see they’re an attempt to stop people from asking questions of government.”
He outlined that mounting anti-protest laws are trying to prevent disruption — similar to that being caused by Extinction Rebellion (XR) — which is becoming increasingly difficult for governments to ignore.
“We live in a democracy, and people have the right to hold businesses and people in positions accountable for their actions,” Moraro emphasised. “And we cannot just think that elections are the only moment for people to act on that.”
Stifling protest
Tasmania’s 2014 Protesters Act is oft-cited as the beginning of the current nationwide crackdown on mobilising. These corporate-driven laws include a penalty of up to $10,000 for an individual charged with hindering a business and a prison term of up to four years for a further offence.
Besides 2016’s interfering on inclosed land laws, the NSW government passed draconian biosecurity ag-gag laws in 2015, with dire implications for animal rights protesters. Last year, it beefed-up restrictions on the right to assemble on Crown lands — 40% of state territory.
At the federal level, last year’s Espionage and Foreign Interference Bill contained sabotage laws with penalties of up to 20 years behind bars that can apply to demonstrators, and the 2018 Defence Call Out Bill could see the military called in to deal with a domestic protest.
Regarding these laws, NSW Council for Civil Liberties president Pauline Wright warned last year that “if we don’t feel that we can stand up and say that we are concerned about an activity – for fear of being charged with a criminal offence for doing so – that is going to have a chilling effect.”
Former Australian Greens leader Bob Brown challenged the legitimacy of Tasmania’s anti-protest laws, with the High Court ruling in October 2017 that they were unconstitutional. While this ruling has bearing upon laws nationwide, governments are continuing to pass more.
Rising mobilisation
Currently, protests are on the rise globally. Last weekend’s Yellow Vest protesters in France marked their 48th week of demonstrations, while in Hong Kong, anti-government street actions are now into their fourth month.
This month’s Spring Rebellion saw XR activists bring a halt to business-as-usual in more than 60 cities worldwide. This included Brisbane, which has been a flashpoint of XR protests in recent months, prompting the state Labor government to draft new anti-protest laws.
Queensland Premier Annastacia Palaszczuk vowed to fast-track anti-protest legislation following the recent week-long XR spring protests. If passed, these laws would criminalise the use of lock-on devices used in peaceful demonstrations, with penalties of up to two years imprisonment applying.
Moraro stressed these laws are being framed in a dubious manner, with non-violent protesters being described as aggressive criminals who pose a physical threat to emergency services due to the use of devices that, in reality, constitute no danger at all.
“These protests are causing a disruption, which the government cannot ignore, like it usually does when there’s some form of protest,” Moraro said, adding that rather than listening to protesters' demands, local authorities prefer to class them as outlaws and lock them up.
Dissent can’t be thwarted
But, as governments table further anti-protest legislation upon the ever-increasing mountain of laws designed to prevent civil opposition, what’s glaringly obvious is the previous measures are not working – and politicians are concerned about rising discontent.
This is further evidenced by the extreme bail conditions that NSW police applied to XR protesters arrested on October 7, after they brought traffic on Sydney’s Broadway to a halt. The terms imposed mirrored local consorting laws, designed to deal with outlaw bikie gangs.
But XR arrestees deprived of their liberty by police say this has done nothing to curb their determination to demonstrate.
Following her release, 22-year-old university student Lilly Campbell declared: “I’m planning on protesting for climate justice until the end, as long as we can. This is the greatest issue of our times.”
Seventy-five-year-old environmental scientist Dr Martin Wolterding proclaimed: “The social contract given to those who govern us has been broken. Therefore, it’s not only my right, but my moral duty to rebel to defend life itself.”
[Paul Gregoire is a Sydney-based journalist and writer for Sydney Criminal Lawyers.]