Nsw anti-protest laws are part of a corrosive national trend

Protesters confront police outside Parliament House last week, demonstrating against the NSW government’s anti-protest laws. Photo: Kate Geraghty

NSW’s harsh and unnecessary new anti-protest laws are the latest example of an alarming and unmistakeable trend. Governments across Australia are eroding some of the vital foundations of our democracy, from protest rights to press freedom, to entrench their own power and that of vested business interests.

The NSW laws give police excessive new powers to stop, search and detain protesters and seize property as well as to shut down peaceful protests that obstruct traffic. They expand the offence of “interfering” with a mine, which carries a penalty of up to seven years’ jail, to cover coal seam gas exploration and extraction sites.

They also create a tenfold increase in the penalty applying to unlawful entry to enclosed land (basically any public or private land surrounded by a fence) if the person “interferes” or “intends to interfere” with a business there. At the same time as ratcheting up this penalty for individuals who protest, recent changes made by the NSW government mean that resource companies that illegally mine can receive a $5000 penalty notice instead of a potential $1.1 million fine.

Disturbingly, these laws aren’t isolated.


Tasmania last year targeted environmental protest with broad and vague new offences including “hindering” access to business premises or “obstructing” business operations, with penalties of up to $10,000 and four years’ imprisonment. In Western Australia, proposed legislation contains extremely broad new offences of “physically preventing a lawful activity” and “possessing a thing for the purpose of preventing a lawful activity” with proposed penalties of up to two years in prison and fines of up to $24,000.

Common to these anti-protest laws are harsher penalties, excessive police powers and the prioritisation of business interests (particularly mining and forestry operations) over the rights of Australians to gather together and protest about issues they care deeply about.

Our democracy doesn’t start and end on election day. Its enduring success rests on vital components like press freedom, the ability of NGOs to advocate freely, the rule of law, watchdog institutions like the Australian Human Rights Commission and the right to peacefully protest.

We can’t take these foundations for granted. They are critical components of the democratic system that has helped to make Australia one of the safest, most stable and prosperous places on the planet.

But just as protest rights are being undermined, so too are many other vital democratic foundations.

Governments across Australia are deliberately using a range of funding levers to suppress advocacy by NGOs including gag clauses, targeted funding cuts and threats to the ability of environmental organisations to receive tax deductible donations from supporters – a tax status which is often critical to financial sustainability.

Secrecy laws and an increasingly aggressive attitude to whistleblowers mean that people who expose even the most serious human rights abuses face unprecedented risks of reprisals, including prosecution and jail. Press freedom is being eroded by new laws and policies jeopardising journalists’ ability to maintain the confidentiality of sources and to report on matters of public interest. All the while, in critical areas governments are undermining or sidelining the courts and institutions that were created to keep them in check.

Last month, I was joined in Canberra by leaders from across Australian civil society to launch our Safeguarding Democracy report. The report documents this corrosive trend and outlines ways to reverse it.

Leaders who spoke out in support of issues raised in the report included representatives from the nation’s peak community agency, peak Indigenous body, faith-based agencies, the media, unions, philanthropy, international development and the environment movement.

They share a common concern for the health of our democracy. It’s a concern that should be shared by political leaders across the spectrum.

Encouragingly, the work to stop the damage has begun in some places. The Queensland government has removed gag clauses from NGO contracts imposed by its predecessor and is looking to protect fundamental human rights, including protest and assembly rights, in a Queensland Human Rights Charter. Victoria has repealed excessive move-on laws that threatened peaceful protest and is strengthening its charter. At the federal level, the government recently agreed to wind back certain aspects of ASIO laws that undermine press freedom and is looking to reset its relationship with the Australian Human Rights Commission after the extraordinary political attacks last year.

We need more.

We need to call out regression like the NSW anti-protest legislation for what it is. We need to recognise the cumulative democratic harm being inflicted by particular environment, counter-terrorism or refugee policies. Ultimately, if we truly care about protecting our democratic rights and freedoms, we need to guarantee them in an enforceable national Human Rights Charter.

Hugh de Kretser is executive director of the Human Rights Law Centre. Twitter: @hughdekretser

20 comments so far

The author seems not to understand how democracies function. In our representative system we elect a group of people to manage the affairs of State. If we do not like what they do we can vote against them at the next election. We also have the right to let them know, in fairly robust terms, if we think that they are doing things incorrectly – this is known as protest. What we do NOT have is the right to be destructive.

All the complaints made by the author of increased penalties for protest are about events which are destructive. Trespassing, damage to property, locking onto machinery, blockading thoroughfares are all simple offences – just because they are done as a form of protest does not make them legal. Hence penalties must apply and the law, passed by our democratically elected representatives, must be enforced.

Being equipped to carry out these breaches of the law is no different from a burglar being equipped with burglary tools and is equally subject to penalties.

Protestors have brought this on themselves; the rising incidence of malicious acts has meant that the laws have had to be strengthened.

I am sure that the author would be demanding protection of the law if those being protested against took physical action to remove the protestors so he should not complain if the targets get protection. Commenter MFL Date and time March 22, 2016, 2:32PM

MFL, malicious or destructive acts are few and far between. Chaining yourself to a tree or a tractor to save a rainforest is hardly malevolent. Little by little Liberal Governments (often with the cooperation of Labor Oppositions) are eroding our freedoms. This is a very sad state of affairs. However, if we protest we’ll probably be locked up or fined. Commenter jofek Date and time March 22, 2016, 5:31PM

I suppose you would also agree to very severe penalties and imprisonment for mining companies that fail to clean up the environment they ruin after their minin g operations have ceased. Or on financial organisations that rort consumers, and so on.

Or does not those principles apply to corporations? Commenter Dr Reg Date and time March 22, 2016, 5:48PM

We’ll start caring about the right to protest again just as soon as we’ve restored our Freedom of Speech and rid ourselves of insidious 18C.

Until then, not interested. Commenter Gatsby Date and time March 22, 2016, 7:09PM

MFL – Interesting that the Government has made it legal for Coal Seam Gas and Mining Companies to Intrude on to Private Farming and Tribal Land, damage the Land by Mining and Fracking and interrupt the lives of the long-term owners, who in many cases, don’t want this intrusion.

Do the Companies get gaoled for 7 years and fined – no because our “Democratic” Government has made Mining Intrusion on to Private Property legal. They have only made it illegal for the Protesters who go onto property where Mining is being carried out to object to the many damaging issues that Mining and Fracking may have on their lives. Commenter Darcy Location Sydney Date and time March 22, 2016, 8:20PM

MFL – I agree. And I also find it unacceptable that someone can wake up one morning and decide that their right to protest in the name of whatever cause takes their fancy that day can over-ride my right to go to work and get on with my legitimate personal business. Why do so many protesters believe that their cause entitles them to block public roads and interfere with others’ freedoms? Sure, stand on the footpath and protest, but keep out of my way! Commenter Kym Location Canberra Date and time March 22, 2016, 9:21PM

I agree, the basic point here is that nobody should be able to protest against business activity in anyway at all. Nobody should be legally able to prevent commercial activity from happening. Business people are the most important people in our country, and should be protected from complaint. If you are on private property, or near a business person, even if they are occupying your land without your permission, you should keep your mouth shut and obey. That is what good government is all about. Commenter JM Location Sydney Date and time March 22, 2016, 9:29PM

Baird’s government can pass whatever laws it is able to finagle. Police, prosecutors and the Magistracy will tie themselves in knots trying to enforce them in the face of powerful informed advocacy. Strange that the Libs in NSW cannot see the economic downside to their pathetic attempts to make protest illegal. What a waste of time and money to protect interests that defy definitions of corporate decency. Commenter RonnyP Location St Andrews NSW Date and time March 22, 2016, 3:01PM

These laws do NOT make protest illegal. What they do is make trespass, destruction, obstruction and locking machinery illegal and make the punishment for these violent actions more appropriate.

You can still protest but you cannot be destructive. Commenter MFL Date and time March 22, 2016, 7:59PM

Nobody is proposing to make protests illegal. They are simply controlling the way protests are carried out….Given the militant actions of some advocacy groups, it’s a good thing.

Read MFL’s very well written and informative post. Commenter Jack Location Lake Macquarie Date and time March 22, 2016, 8:27PM

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